HomeMy WebLinkAboutC-7197-2 - License Agreement for Civic Center Charging StationsN
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AMENDMENT NO. ONE TO
LICENSE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH
V AND
EVGO SERVICES LLC
THIS AMENDMENT NO. ONE TO LICENSE AGREEMENT ("Amendment No.
One") is made and entered into as of this 6th day of January, 2023 ("Effective Date"), by
and between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City"), and EVGO SERVICES LLC, a Delaware limited liability company
("EVgo"), whose address is 11835 West Olympic Blvd., Suite 900E, Los Angeles, CA
90064, and is made with reference to the following:
RECITALS
A. On January 8, 2018, City and EVgo entered into a License Agreement
("Agreement") regarding EVgo's use and attachment of the DC Level 3 Electric
Vehicle Charging Stations at the Installation Sites ("Project").
B. The parties desire to enter into this Amendment No. One to extend the term of the
Agreement, by way of renewal pursuant to Section 4 of the Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
Section 4 of the Agreement is amended in its entirety and replaced with the
following: "The term of this Agreement shall commence on the Effective Date, and shall
terminate on January 6, 2028, unless terminated earlier as set forth herein."
2. INSURANCE
Exhibit C of the Agreement shall be deleted in its entirety and replaced with Exhibit
C, attached hereto and incorporated herein by reference. Any reference to Exhibit C in
the Agreement shall hereafter refer to Exhibit C attached hereto.
3. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
EVGO SERVICES LLC Page 1
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: Uzi/s�23
By:
��rC. rp
Ci y Attorney
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a Californi m nicipal corporation
Date:
By:
Gr Panager
Leung Lj C
CONSULTANT: EVGO SERVICES LLC,
a Delaware limited liability company
Date:
Signed in Counterpart
By:
Marcy Bauer
SVP of Deployment
SIGNATURES]
Attachments: Exhibit C — Insurance Requirements
EVGO SERVICES LLC Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: �Z/�b723
By: Yz.�
ar C. rp
Ci y Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Grace K. Leung
City Manager
CONSULTANT: EVGO SERVICES LLC,
a Delaware limite liability company
Date: f `! Z? .Z ..?
By:
Marcy Ba r
SVP of Deployment
[END OF SIGNATURES]
Attachments: Exhibit C — Insurance Requirements
EVGO SERVICES LLC Page 2
EXHIBIT C
INSURANCE REQUIREMENTS
1. Provision of Insurance. Without limiting EVgo's indemnification of City, and prior
to commencement of work, EVgo shall obtain, provide and maintain at its own
expense during the term of this Agreement, policies of insurance of the type and
amounts described below and in a form satisfactory to City. EVgo agrees to
provide insurance in accordance with requirements set forth here.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. EVgo shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
EVgo shall submit to City, along with the certificate of insurance, a Waiver
of Subrogation endorsement in favor of City, its City Council, boards and
commissions, officers, agents, volunteers and employees.
C. General Liability Insurance. EVgo shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract) with no
endorsement or modification limiting the scope of coverage for liability
assumed under a contract.
D. Automobile Liability Insurance. EVgo shall maintain automobile insurance
at least as broad as Insurance Services Office form CA 00 01 covering
bodily injury and property damage for all activities of EVgo arising out of or
in connection with work to be performed under this Agreement, including
coverage for any owned, hired, non -owned or rented vehicles, in an amount
not less than one million dollars ($1,000,000) combined single limit each
acci en .
EVGO SERVICES LLC Page C-1
4. Worker's Compensation Insurance Requirements. The policies are to contain, or
be endorsed to contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees, or shall specifically allow EVgo or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. EVgo hereby waives its own right of recovery
against City, and shall require similar written express waivers from each of
its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
excess liability and automobile liability, if required, but not including
professional liability, shall provide or be endorsed to provide that City, its
City Council, boards and commissions, officers, agents, volunteers and
employees shall be included as an additional insured under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. EVgo shall provide certificates of insurance to City
as evidence of the insurance coverage required herein, along with a waiver
of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, EVgo shall, within ten (10) days after receipt of written notice of
such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies.
during the term of the Agreement to change the amounts and types of
EVGO SERVICES LLC Page C-2
insurance required by giving EVgo sixty (60) calendar days advance written
notice of such change; provided, however, EVgo, shall not be obligated to
conform to such changes if doing so would result in a material increase in
cost of EVgo's insurance.
C. Right to Review Subcontracts. EVgo agrees that upon request, all
agreements with subcontractors or others with whom Evgo enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. EVgo shall require and verify that all subcontractors
maintain insurance meeting all the requirements stated herein, and EVgo
shall ensure that City is an additional insured on insurance required from
subcontractors. For CGL coverage, subcontractors shall provide coverage
with a format at least as broad as CG 20 38 04 13.
C. Enforcement of Agreement Provisions. EVgo acknowledges and agrees
that any actual or alleged failure on the part of City to inform EVgo of non-
compliance with any requirement imposes no additional obligations on City
nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type.
E. Self -insured Retentions. Any self -insured retentions must be declared to
and approved by City. City reserves the right to require that self -insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non -Compliance. If EVgo or any subcontractor fails to
provide and maintain insurance as required herein and such failure
continues uncured for ten (10) business days after receipt of written notice,
then City shall have the right but not the obligation, to terminate this
Agreement or to suspend EVgo's right to proceed until proper evidence of
insurance is provided.
G. Timely Notice of Claims. EVgo shall use best efforts to give City prompt
and timely notice of claims made or suits instituted that arise out of or result
from EVgo's performance under this Agreement, and that involve or may
involve coverage under any of the required liability policies. City assumes
no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such ulairn ur ulaims if they aie likely to
involve City.
EVGO SERVICES LLC Page C-3
H. EVgo's Insurance. EVgo shall also procure and maintain, at its own cost
and expense, any additional kinds of insurance, which in its own judgment
may be necessary for its proper protection and prosecution of the work.
EVGO SERVICES LLC Page C-4
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EVGO Services, LLC
7197-2
11835 West Olympic Blvd, Suite
900E, Los Angeles, CA, 90064
Currently in Compliance.
Insured
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Address 1:
7197-2
Maintenance/Repair
Services Agreement
EVGO Services,
LLC
11835 West
Olympic Blvd, Suite
900E
Address 2:
State: CA
Zip: 90064
Address Updated:
Physical Address
LICENSE AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH
AND
EVGO SERVICES LLC
Tic nse eement ("Agreement") is made and entered into as of this 1'4,
day of (,.Effective Date"), by and between the City of Newport Beach, a
California municipal corporation and charter city ("City"), and EVGO SERVICES LLC, a
Delaware limited liability company ("EVgo"), whose address is 11390 West Olympic Blvd.,
Suite 250, Los Angeles, CA 90064. City and EVgo are referred to hereinafter individually
as "Party" and collectively as "Parties."
RECITALS
A. City is the fee title owner of real property spaces located at the Newport
Beach Civic Center and the Newport Coast Community Center in the City of Newport
Beach, California. EVgo desires to install DC level 3 electric vehicle charging stations at
the Newport Beach Civic Center and the Newport Coast Community Center (collectively,
"City Property"), along with related equipment, hardware, software, signage and
supporting equipment (collectively, "DC Level 3 Electric Vehicle Charging Stations");
B. The installation of the DC Level 3 Electric Vehicle Charging Stations
requires the temporary use of City parking spaces at appropriate locations to be effective
and of the greatest value to City residents;
C. City desires to allow EVgo to install its DC Level 3 Electric Vehicle Charging
Stations on certain portions of City Property located at the Newport Beach Civic Center
parking structure and the Newport Coast Community Center parking lot and more
specifically depicted in Exhibit "A" (individually, "Installation Site"; collectively, "Installation
Sites"), subject to the execution of this Agreement and subject to the review and final
approval by City;
D. Pursuant to City Council Policy F-7, Section (E) the City did not conduct an
open bid process or charge fair market value for the use of the Installation Sites because
the DC Level 3 Electric Vehicle Charging Stations provide an essential and unique service
to the community that might not otherwise be provided were full market value of the
property charged. Additionally, EVgo's proposed use of the Installation Sites promotes
the goals of the City to support the health, welfare and safety of City residents by providing
a high quality source for residents to charge electric vehicles; and
E. City and EVgo have agreed to enter into this Agreement regarding EVgo's
use and attachment of the DC Level 3 Electric Vehicle Charging Stations at the Installation
Sites upon the terms, conditions and other considerations set forth herein.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
EVGO SERVICES LLC Page 1
1. LICENSE
1.1 City grants an exclusive license ("License") to EVgo for the term of this
Agreement, to install, operate, repair, maintain, and remove the DC Level 3 Electric
Vehicle Charging Stations on the Installation Sites. The exclusive license granted
hereunder shall not extend to any City parking spaces or portions thereof. City further
grants EVgo a non-exclusive license to use any other areas of City Property, including
City parking spaces, for the sole purpose of providing access to the Installation Sites for
installation, operation, repair, maintenance, and removal of the DC Level 3 Electric
Vehicle Charging Stations. All DC Level 3 Electric Vehicle Charging Stations to be
installed on the Installation Sites shall conform to the improvement drawings, designs and
specifications ("Improvement Drawings') as depicted in Exhibit "B" and as reviewed by
and on file as a public record with the City's Public Works Department.
1.2 All installation, maintenance, operation, repair, and removal activities shall
be at EVgo's sole cost and expense, including but not limited to the fees and costs
associated with all activities related to the installation, maintenance, operation, use,
repair, replacement, improvement, alteration, inspection, testing and removal of the DC
Level 3 Electric Vehicle Charging Stations and any required utilities or meters, as
identified in said Improvement Drawings. The City is not responsible for any damage
caused to the DC Level 3 Electric Vehicle Charging Stations by third -parties or acts of
God. EVgo shall at its sole cost and expense comply with all applicable federal, state
and/or local laws and regulations. The License granted herein is subject to the terms,
covenants and conditions hereinafter set forth, and EVgo covenants, as a material part
of the consideration for this License, to keep and perform each and every term, covenant
and condition of this Agreement.
1.3 All of EVgo's construction and installation work shall be performed at
EVgo's sole cost and expense and in a good and workmanlike manner and the
Improvement Plans reviewed by the City Engineer, and in compliance with all applicable
ordinances, regulations or law.
1.4 Notwithstanding EVgo's construction and installation of the DC Level 3
Electric Vehicle Charging Stations, it is the Parties' intention that EVgo's interest in the
Installation Sites is restricted to this License and the City retains all rights, title and interest
in the Installation Sites.
1.5. This Agreement does not authorize EVgo to install DC Level 3 Electric
Vehicle Charging Stations within the public right -of way. EVgo shall obtain all applicable
approvals, licenses, and permits from the City and other governmental entities prior to
installation of the DC Level 3 Electric Vehicle Charging Stations.
2. PERMITS, APPROVALS AND PUBLIC NOTIFICATION
2.1 In addition to this License, EVgo shall also secure all applicable
encroachment permits, traffic control permits, and/or other permits and approvals
necessary to install the DC Level 3 Electric Vehicle Charging Stations at the Installation
Sites.
EVGO SERVICES LLC Page 2
2.2 Any future modifications to EVgo's DC Level 3 Electric Vehicle Charging
Stations shall require further review, submittal, and written approval by City, including any
additional permits required from City; provided, however, EVgo may remove or swap out,
like for like, any DC Level 3 Charging Stations during the Term without such further review
or approval.
3. USES
3.1 Construction and operation of the DC Level 3 Electric Vehicle Charging
Stations shall be at EVgo's sole expense. EVgo shall keep the Installation Sites free from
hazards or risk to the public health, safety or welfare.
3.2 Except as provided under this Agreement and the exhibits attached hereto,
EVgo shall not make or permit to be made any alterations, additions or improvements to
the Installation Sites, or paint, install lighting or decorations, or install any signs, lettering
or advertising media of any type or any other visual displays, on or about the Installation
Sites without the prior written consent of City. Notwithstanding the foregoing, EVgo shall
place warning signs on or about the DC Level 3 Electric Vehicle Charging Stations in the
event that such signs are required by Federal, State or local law.
3.3 EVgo hereby acknowledges, agrees and covenants that this Agreement
does not authorize or bestow any rights to EVgo to provide or to sublease the Installation
Sites.
4. TERM
4.1 The term of this Agreement shall commence on the Effective Date and shall
expire five (5) years following that date, with the option to renew for one (1) additional five
(5) year term at the discretion of the City Manager, unless terminated earlier as set forth
herein.
4.2 The City Manager may renew this License for one (1) additional five (5) year
term if it is determined that (i) Licensee has complied with the terms of the Agreement;
(ii) a copy of all required license, permits and certificates are on file with the License
Administrator (as defined in Agreement Section 7, below); and (iii) the use of the License
Area by Licensee is not negatively impacting City Property or any surrounding properties
and uses. Any renewals approved pursuant to this Section must be in writing and
approved as to form by the City Attorney.
5. FEES AND COSTS
5.1 As compensation for EVgo's use of the Installation Sites, EVgo shall pay to
City an annual license fee in the amount of Four Hundred Eighty -Three Dollars and
00/100 ($483.00) ("License Fee") per Installation Site.
5.2 Licensee shall commence payment of the License Fee upon the first day of
operation of the DC Level 3 Electric Vehicle Charging Station at the respective Installation
Site or one hundred and twenty (120) calendar days following execution of this
Agreement, whichever date is first ("Fee Commencement Date").
EVGOJSERVICES LLC Page 3
5.3 The License Fee shall be due upon the Fee Commencement Date and on
each anniversary thereafter during the term of this Agreement. EVgo shall pay the
License Fee within thirty (30) days of such due date.
5.4 Place for Payment of License Fee: All payments of the License Fee shall
be made in lawful money of the United States of America and shall be paid to City on line
at www.newportbeachca.gov, in person or by United States' mail, or overnight mail
service, at the Cashier's Office located at 100 Civic Center Drive, Newport Beach, CA
92660, or to such other address as City may from time to time designate in writing to
EVgo. EVgo assumes all risk of loss and responsibility for late charges and delinquency
rates if payments are not timely received by the City regardless of the method of
transmittal, unless such delay is governed by Section 38 herein.
5.5 A ten percent (10%) penalty shall be added to the License Fee if not
received by City within thirty (30) days following the due date.
5.6 In addition, all unpaid fees shall accrue interest at the rate of five percent
(5%) per month or any portion of a month until paid in full.
5.7 EVgo, or any successor or authorized assign, shall bear all costs incurred
in connection with EVgo's or its employees', contractors', subcontractors' or agents'
planning, design, installation, construction, maintenance, repair, operation and removal
of the DC Level 3 Electric Vehicle Charging Stations. City shall not be responsible or bear
any cost for repair of any damage or movement of the DC Level 3 Electric Vehicle
Charging Stations due to repair, maintenance and/or failure/collapse of any existing gas,
water and sewer lines or any other improvements or works approximate to the DC Level
3 Electric Vehicle Charging Stations, except for the active negligence orwillful misconduct
of the City, its officers, agents, employees, contractors or subcontractors. City shall not
be responsible or bear any cost for repair or replacement of any streetlight, or any other
City Property which may be damaged as a result of installation, except for the active
negligence or willful misconduct of the City, its officers, agents, employees, contractors
or subcontractors. City shall not be responsible for damage caused to the DC Level 3
Electric Vehicle Charging Stations as a result of the actions or inactions of other parties,
including, but not limited to, damage resulting from traffic accidents or contractors not
employed by the City.
5.8 Upon the first anniversary of the Effective Date and upon each anniversary
of the Effective Date thereafter, the License Fee shall be adjusted in proportion to
changes in the Consumer Price Index, subject to the maximum adjustment set forth
below. Such adjustment shall be made by multiplying the License Fee by a fraction, the
numerator of which is the value of the Consumer Price Index for the calendar month four
(4) months preceding the calendar month for which such adjustment is to be made, and
the denominator of which is the value of the Consumer Price Index for the same calendar
month immediately prior to Effective Date. The Consumer Price Index to be used in such
calculation is the "Consumer Price Index, All Items, 1982-84=100 for All Urban
Consumers (CPI -U)", for the Los Angeles -Riverside -Orange County Metropolitan Area,
published by the United States Department of Labor, Bureau of Labor Statistics. If both
an official index and one or more unofficial indices are published, the official index shall
be used. If said Consumer Price Index is no longer published at the adjustment date, it
shall be constructed by conversion tables included in such new index. In no event,
EVGO SERVICES LLC Page 4
however, shall the amount payable under this Agreement be reduced below the License
Fee in effect immediately preceding such adjustment. The maximum adjustment increase
to the License Fees, for any year where an adjustment is made pursuant to this Section,
shall not exceed two and one-half percent (2.5%) of the License Fees in effect
immediately preceding such adjustment.
5.9 Any provision in this Agreement that requires EVgo to pay additional
amounts classified as "Additional Fees" shall be paid within thirty (30) calendar days of
City's written demand therefore (unless a different time for payment is expressly provided
in this Agreement). Additional Fees does not reduce or offset EVgo's obligations to pay
License Fees.
6. PURPOSE OF THIS LICENSE
The purpose of this License is to allow for the installation, operation and
maintenance of DC Level 3 Electric Vehicle Charging Stations within the Installation Sites.
Use of any area outside the Installation Sites shall not be permitted unless prior written
consent is provided by the City. EVgo agrees to use the Installation Sites only for the
activities described herein, and not to use or permit the use of the Installation Sites for
any other purpose without first obtaining the prior written consent of City, which consent
may be withheld in City's sole and absolute discretion.
7. ADMINISTRATION
This License shall be administered by the Public Works Department. The Public
Works Director or his/her designee shall be the "License Administrator" and shall have
the authority to act for City under this Agreement. The License Administrator or their
authorized representative shall represent City in all matters pertaining to this Agreement.
8. CONDITIONS OF LICENSE
EVgo shall comply with the following conditions prior to the commencement of use
of the Installation Sites:
8.1 EVgo shall procure and maintain any and all required licenses, permits and
certifications to install and operate the DC Level 3 Electric Vehicle Charging Stations in
accordance with Agreement Sections 2 and 3, above.
8.2 EVgo shall submit a rendering of the graphics and design of the DC Level
3 Electric Vehicle Charging Stations, for review and approval by the City's Public Works
Department. If the City determines that it is necessary, the EVgo shall obtain building
permits and/or any other permits.
9. INSTALLATION, OPERATION AND MAINTENANCE OF DC LEVEL 3 ELECTRIC
VEHICLE CHARGING STATIONS
9.1 EVgo, at EVgo's sole cost, shall be responsible for the installation of the DC
Level 3 Electric Vehicle Charging Stations at the Installation Sites. EVgo shall also install
and bear the cost of any utilities necessary for the operation of the DC Level 3 Electric
Vehicle Charging Stations. The type of DC Level 3 Electric Vehicle Charging Stations
installed shall be consistent with the DC Level 3 Electric Vehicle Charging Stations
EVGO SERVICES LLC Page 5
provided on the specification sheet attached hereto as Exhibit "B". Installation shall be
performed between 7:00 a.m. and 6:00 p.m. on non -holiday weekdays. Any contractors
hired by EVgo shall be fully licensed and bonded. EVgo's contractors and any
subcontractors shall obtain insurance in an amount and form to be approved by City's
Risk Manager, including workers compensation insurance as required by law, general
liability, automobile liability and builder's risk insurance covering improvements to be
constructed, all pursuant to standard industry custom and practice. City, its City Council,
boards and commissions, officers, agents, volunteers and employees shall be named as
an additional insured on the contractors and any subcontractor's policies.
9.2 EVgo shall diligently maintain the DC Level 3 Electric Vehicle Charging
Stations at EVgo's sole cost and expense. EVgo shall use commercially reasonable
efforts to regularly inspect, service, clean, and maintain the DC Level 3 Electric Vehicle
Charging Stations, keep the DC Level 3 Electric Vehicle Charging Stations operating and
in good working order, and to promptly maintain the DC Level 3 Electric Vehicle Charging
Stations in a clean and sanitary condition in accordance with all applicable federal, state
and local laws. The DC Level 3 Electric Vehicle Charging Stations shall be and at all times
remain the property of EVgo. Upon notice of termination of this Agreement, EVgo shall
be responsible for removal of the DC Level 3 Electric Vehicle Charging Stations at EVgo's
expense, and shall be further responsible for any and all repairs or modifications
necessary to return the Installation Site to its original condition, ordinary wear and tear
excepted, pursuant to Section 25 of this Agreement.
9.3 Upon written request from City, EVgo shall use commercially reasonable
efforts to promptly respond to and resolve maintenance issues identified by City;
provided, however, that such response and proposed resolution shall be communicated
to City no more than five (5) business days following City issuing its written request.
10. DAMAGE OR DESTRUCTION
Should the DC Level 3 Electric Vehicle Charging Stations be damaged or
destroyed by any cause not due to the negligent or willful act of City, EVgo shall, at its
own cost and expense, promptly repair the same. Should said damage or destruction
substantially impair, in the reasonable judgment of EVgo, the satisfactory operation of the
DC Level 3 Electric Vehicle Charging Stations, EVgo may terminate this Agreement by
providing City written notice of such termination not more than thirty (30) calendar days
following the occurrence of such damage or destruction.
11. CONDITIONS OF OPERATION
EVgo shall comply with the following conditions of operation during use of the
Installation Sites:
11.1 The operating hours of the DC Level 3 Electric Vehicle Charging Stations
shall be twenty-four (24) hours per day, seven (7) days per week, and 365/366 days per
year. City reserves the right to temporarily modify the hours of operation, in the City's
sole and absolute discretion, so long as (i) the City provides advance written notice of
such modification to EVgo and (ii) such modification shall not last more than seventy-two
(72) hours, emergency situations excluded.
EVGO SERVICES LLC Page 6
11.2 Notwithstanding anything to the contrary, the DC Level 3 Electric Vehicle
Charging Stations may be temporarily restricted from operation due to a special event on
City Property without any compensation or reimbursement to EVgo, so long as (i) the City
provides advance written notice of such restriction to EVgo and (ii) such restriction shall
not last more than seventy-two (72) hours, emergency situations excluded.
11.3 EVgo shall be responsible for hiring the necessary personnel to conduct the
operation and maintenance of the DC Level 3 Electric Vehicle Charging Stations. EVgo
shall comply with all federal, state, and local Laws related to minimum wage, social
security, nondiscrimination, ADA, unemployment compensation, and workers'
compensation. If required by the City, EVgo's employees shall wear an identification
badge while at City Property.
11.4 EVgo may, at its own expense, place unlit signs on City Property subject to
the prior written consent of the City as to the size, type, number, design and method of
installation and in compliance with the City's sign code regulations and any deed
restrictions applicable to City Property. All signage placed by EVgo on City Property shall
remain the property of EVgo and shall be removed by EVgo upon termination or expiration
of this Agreement at EVgo's expense. Installation of any signs shall conform to all
applicable building, zoning and other regulations of any applicable governmental
authority.
12.EMERGENCY
12.1 EVgo understands that the DC Level 3 Electric Vehicle Charging Stations
are located on City Property and emergency situations may develop from time -to -time
that require power to the DC Level 3 Electric Vehicle Charging Stations to be immediately
shut off and thereby interfere or temporarily terminate EVgo's use of its DC Level 3
Electric Vehicle Charging Stations and Installation Sites. EVgo agrees that if such a
situation occurs, and/or there are frequency interferences of any nature between City's
Police and Fire Department public safety communications equipment or City's facilities
affecting operation of sewer or water service and that of EVgo in a manner that threatens
public health or safety, City shall have the right to immediately shut off power to the DC
Level 3 Electric Vehicle Charging Stations and any equipment of EVgo's located on the
Installation Sites for the duration of the emergency. EVgo agrees not to hold City
responsible or liable for any damage, loss, claim or liability of any nature suffered as a
result of the loss of the use of the DC Level 3 Electric Vehicle Charging Stations by the
shut off of power under the circumstances described in this Section.
12.2 EVgo agrees to install a clearly marked and accessible master power "cut-
off' switch on their equipment at each Installation Site for the purpose of assisting City in
such an emergency.
12.3 Unless otherwise specifically provided in a notice of termination of this
Agreement, City's exercise of the right to shut off any power to the DC Level 3 Electric
Vehicle Charging Stations is not intended to constitute a termination of this Agreement by
either Party and such event is a risk accepted by EVgo. EVgo and City shall meet after
the City determines that an emergency situation has ended to establish the time and
manner in which power shall be restored.
EVGO SERVICES LLC Page 7
12.4 City shall have the right to reasonably determine what constitutes an
"emergency situation" pursuant to this Section.
13.ACCEPTANCE OF CONDITION OF EVGO AREA
EVgo accepts use of the Installation Sites in an "as is" condition, with no warranty,
express or implied from the City as to any latent, patent, foreseeable and unforeseeable
condition of the Installation Sites, including its suitability for the use intended by EVgo.
To the best of City's knowledge, the Installation Sites have not been used for generation,
storage, treatment or disposal of Hazardous Substances as defined in this Agreement.
EVgo has conducted its own appropriate due diligence investigation of the Installation
Sites prior to its execution of this Agreement.
iCl1►C�11i!rlr�:i��il►��:Z�],�:i�7
Nothing herein shall be deemed to create a lease, or easement of any property
right, or to grant any, possessory or other interest in the Installation Sites, or any public
right-of-way, other than a license to use and access the Installation Sites, revocable and
for a temporary term as set forth in this Agreement.
15. RESERVATION OF RIGHTS
EVgo understands, acknowledges and agrees that any and all authorizations
granted to EVgo under this Agreement shall remain subject to all prior and continuing
regulatory and propriety rights and powers of City to regulate, govern and use City
Property, as well as any existing encumbrances, deeds, covenants, restrictions,
easements, dedications and other claims of title that may affect City Property.
16. POWERS TO ENTER INTO AGREEMENT
The individuals executing this Agreement represent and warrant that they have the
right, power, legal capacity and authority to enter into and to execute this Agreement on
behalf of the respective legal entities of the EVgo and the City.
17. UTILITY FEES
EVgo shall be responsible for the cost of all utility services necessary for the
operation of the DC Level 3 Electric Vehicle Charging Stations as follows:
With regard to the Installation Site located at the Civic Center, EVgo shall
pay to City, beginning on the Fee Commencement Date and continuing thereafter
throughout the term, a monthly fee to compensate City for the electricity usage at the
DC Level 3 Electric Vehicle Charging Stations (the "Reimbursement Amount") equal
to the product of (A) $0.186 and (B) the number of actual kWh used by the DC Level
3 Electric Vehicle Charging Stations. During the term, either party shall have the right
to request a change in the rate used to calculate the Reimbursement Amount
following an adjustment in the applicable average kWh rate or kW demand rate of
more than ten percent (10%) or another substantial basis for revising the rate set
forth above. Any adjustment to the applicable rate shall be applied as of the first day
of the next calendar month and, absent any further adjustment, for each calendar
month thereafter for the remainder of the term.
EVGO SERVICES LLC Page 8
With regard to the Installation Site located at the Community Center, EVgo shall
ensure that the DC Level 3 Electric Vehicle Charging Stations contain separately -
metered electricity with EVgo as the customer of record for such meter.
Neither City nor EVgo has any responsibility or liability for interruption,
curtailment, failure, or defect in the supply or character of utilities furnished to the DC
Level 3 Electric Vehicle Charging Stations, unless the cause of the interruption is
covered by the party's indemnity provided for in Section 28.
18. INSPECTION
City shall be entitled, at any time, without prior notice, to visually inspect the
Installation Sites and DC Level 3 Electric Vehicle Charging Stations for compliance with
the terms of this Agreement, and with all applicable Federal, State and local (including
those of the City) government regulations.
19. CITY RETENTION RIGHTS
EVgo's right to use the Installation Sites during the term of this Agreement shall be
subordinate and junior to the rights of City to use and occupy the Installation Sites for any
purpose that does not interfere with EVgo's use of the Installation Sites as provided
herein.
20.EVGO'S RETENTION OF TITLE
Title to the DC Level 3 Electric Vehicle Charging Stations placed on the Installation
Sites by EVgo shall be held by EVgo or its equipment lessors, successors, or assigns.
The DC Level 3 Electric Vehicle Charging Stations shall not be considered a fixture. EVgo
has the right to remove the DC Level 3 Electric Vehicle Charging Stations at its sole
expense from time -to -time and in all events by the expiration of this License or within sixty
(60) calendar days after an early termination of this License.
21.SURRENDER
Upon expiration or termination of this Agreement, EVgo at its sole cost and
expense, shall within sixty (60) calendar days of written notice from City, remove the DC
Level 3 Electric Vehicle Charging Stations, restore the Installation Sites to their original
condition, ordinary wear and tear excepted, and vacate the Installation Sites. Should
EVgo fail to restore the Installation Sites to a condition satisfactory to City, City may
perform such work or have such work performed by others and EVgo shall within sixty
(60) calendar days reimburse City for all direct and indirect costs associated with such
work upon receipt of an invoice for such costs. EVgo shall continue to pay the License
Fee until the Installation Sites are so restored as required by this Agreement.
22.ASSIGNMENT
22.1 All of the terms and provisions of this Agreement shall inure to the benefit
of and shall be binding upon the Parties and their respective successors and assigns.
This Agreement and the rights and obligations of EVgo shall not be assigned, transferred,
or hypothecated (collectively referred to as "transferred"), in whole or in part, without the
express written consent of the City, which consent shall not be unreasonably withheld,
EVGO SERVICES LLC Page 9
delayed or conditioned and may be withheld if assignee is of lesser financial status than
EVgo when this Agreement was executed; provided, however, that EVgo may assign its
rights and obligations in and under this Agreement to a successor by merger or acquisition
or successor to all or substantially all of its assets at any time and without consent ("a
Change in Control"). Any attempted transfer in violation of this Section shall be null and
void. Notwithstanding the above, EVgo shall provide City at least thirty (30) calendar days
advance written notice prior to any proposed transfer or Change in Control.
22.2 If EVgo desires at any time to effect a transfer, it shall first deliver to City:
(1) a written request for approval; (2) the name, address and most recent financial
statements of the proposed transferee; and (3) the proposed instrument of assignment or
sublease, which in the case of assignment shall include a written assumption by the
assignee of all obligations of this Agreement arising from and after the effective date of
assignment. City may approve or deny EVgo' transfer request in its sole and absolute
discretion. The requirements of this Section 22.2 shall not apply in the event of a Change
in Control.
23. TAXES
EVgo shall pay all personal interest property taxes, real property taxes, fees and
assessments which may at any time be imposed or levied by any public entity and
attributable to the DC Level 3 Electric Vehicle Charging Stations authorized herein. City
hereby gives notice to EVgo, pursuant to Revenue and Tax Code Section 107.6 that this
Agreement may create a possessory interest that is the subject of property taxes levied
on such interest, the payment of which taxes shall be the sole obligation of EVgo.
24. TERMINATION
24.1 For Cause. This Agreement may be immediately terminated for cause by
either Party in the event of the following:
24.1.1 Breach. The other Party breaches or fails to perform any of its
obligations in any material respect, and such breach or failure continues uncured for ten
(10) business days after receipt of written notice.
24.1.2 Assignment. The other Party attempts to assign or otherwise
transfer its rights, obligations or duties under this Agreement in a manner prohibited by
this Agreement.
24.1.3 Insolvency. 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.
24.2 Notwithstanding the above, City shall have the unilateral right to terminate
this Agreement without liability upon ninety (90) days' prior written notice of termination
to EVgo if City determines that any Installation Site is no longer appropriate for use by
Licensee due to public emergency or another matter of significant public interest and upon
a finding by City Council that the Installation Site is necessary for City to use to provide
for the public health, safety, or welfare.
EVGO SERVICES LLC Page 10
24.3 Notwithstanding the above, EVgo shall have the right to terminate this
Agreement at any time prior to the submission of the permit application for construction
of the Charging Stations at the City Property or in the event that EVgo determines that
the construction or continued operation of the Charging Stations is impracticable or
uneconomical.
25. REMOVAL OF DC LEVEL 3 ELECTRIC VEHICLE CHARGING STATION
Upon the expiration or termination of this Agreement (per each Installation Site),
EVgo shall remove the DC Level 3 Electric Vehicle Charging Stations from the Installation
Site, and restore the Installation Site to its original condition, ordinary wear and tear
excepted, at EVgo's sole cost and expense. EVgo shall repair any damage to the
Installation Site caused by such removal at EVgo's sole cost and expense. Such removal
shall occur not more than sixty (60) calendar days after the expiration or other termination
of this Agreement (per each Installation Site). If the DC Level 3 Electric Vehicle Charging
Stations are not removed from the Installation Site this time, then City shall have the right
to dispose of such items in such manner as it may deem fit and to charge EVgo for the
reasonable costs of such removal, disposal, and repair which reasonable costs EVgo
shall pay promptly following written notice and demand.
26. CONSTRUCTION
26.1 EVgo agrees to take all prudent action to protect the Installation Sites and
City Property from any damage or injury caused by any work performed by or on behalf
of EVgo regarding the construction, installation, operation, inspection, maintenance,
repair, reconstruction, replacement, relocation, or removal of the DC Level 3 Electric
Vehicle Charging Stations or the failure, deterioration or collapse of such DC Level 3
Electric Vehicle Charging Stations.
26.2 EVgo shall, at its sole cost and expense, continually maintain and repair
any damage to the Installation Sites, to the extent such damage is caused by EVgo or
any of its agents, representatives, employees, contractors, subcontractors, or invitees.
EVgo shall immediately notify the City Manager and the appropriate public safety agency
(e.g., police and fire department) of any damage or injury caused by work authorized
pursuant to this Agreement.
26.3 Without limitation of any other remedy available hereunder or at law or in
equity, if EVgo fails to repair or refinish any such damage to the Installation Sites or City
Property, City may, at its sole discretion, but not be required to, repair or refinish such
damage and EVgo shall reimburse City of all costs and expenses incurred in such repair
or refinishing.
27. MAINTENANCE
At its sole cost and expense, EVgo shall take good care of the DC Level 3 Electric
Vehicle Charging Stations and keep DC Level 3 Electric Vehicle Charging Stations clean
and free from graffiti at all times.
EVGO SERVICES LLC Page 11
KI-%l►11A"fiI� IIaGI Eel 14
28.1. To the fullest extent permitted by law, EVgo shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents, volunteers
and employees (collectively, the "Indemnified Parties") from and against any and all third
party claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, California Coastal Commission
enforcement actions, causes of action, suits, losses, judgments, fines, penalties,
liabilities, costs and expenses (including, without limitation, attorney's fees,
disbursements and court costs) of every kind and nature whatsoever (individually, a
Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or
indirectly) to EVgo's breach of the terms and conditions of this Agreement, any latent or
patent defects in the design and construction of the DC Level 3 Electric Vehicle Charging
Stations, or work thereon conducted under this Agreement including, without limitation,
defects in workmanship or materials or EVgo's presence or performance of duties on the
Installation Sites (including the negligent and/or willful acts, errors and/or omissions of
EVgo, its representatives, agents, officers, directors, managers, members, shareholders,
partners contractors or employees, vendors, suppliers, subcontractors ("collectively,
"Related Parties"), anyone employed directly or indirectly by any of them or for whose
acts they may be liable or any or all of them).
28.2. Notwithstanding the foregoing, nothing herein shall be construed to require
EVgo to indemnify the Indemnified Parties from any Claim arising from the negligence or
willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed
as authorizing any award of attorney's fees in any action on or to enforce the terms of this
Agreement. This indemnity shall apply to all claims and liability regardless of whether
any insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by EVgo.
29. LIMITATION OF LIABILITY
In no event shall either party be liable (in contract or in tort, including negligence
and strict liability) to such other party or its Related Parties and Indemnified Parties for
any special, indirect or consequential damages relating to the Agreement. The entire
liability of each party for any and all claims of any kind arising from or relating to the
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 to the other party and its Related
Parties and Indemnified Parties on an aggregate basis arising out of or in connection with
the Agreement, whether in contract or in tort, shall not exceed Five Million Dollars
($5,000,000.00); provided that the foregoing limitation shall not apply to (1) the extent of
applicable insurance coverage required to be maintained under this Agreement; or (2)
indemnification obligations arising from third party claims.
30.INSURANCE
Without limiting EVgo's indemnification of City, and prior to commencement of
work, EVgo shall obtain, provide and maintain at its own expense during the term of this
Agreement or for other periods as specified in this Agreement, policies of insurance of
the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit "C" and incorporated herein by reference.
EVGO SERVICES LLC Page 12
31. HAZARDOUS SUBSTANCES
31.1 From the date of execution of this Agreement throughout the Term, EVgo
shall not store, manufacture or maintain on the Installation Sites any Hazardous
Substances except (i) in such quantities and types found customary in construction,
repair, maintenance and operations of the DC Level 3 Electric Vehicle Charging Stations
approved by this Agreement, (ii) natural gas, or petroleum and petroleum products
contained within regularly operated motor vehicles. EVgo shall handle, store and dispose
of all Hazardous Substances it brings onto the Installation Sites or any City Property in
accordance with applicable laws.
31.2 For purposes of this Agreement, the term "Hazardous Substance" means:
(i) any substance, product, waste or other material of any nature whatsoever which is or
becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA");
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the
Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the
Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33
U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and
Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act,
Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and
Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California
Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous
Substances); the California Hazardous Waste Management Act, Health and Safety Code
Sections 25170.1 et seq.; California Health and Safety Code Sections 25501 et seq.
(Hazardous Materials Response Plans and Inventory); or the Porter -Cologne Water
Quality Control Act, Water Code Sections 13000 et seq., all as they, from time -to -time
may be amended, (the above-cited statutes are here collectively referred to as "the
Hazardous Substances Laws') or any other Federal, State or local statute, law,
ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereafter in effect; (ii) any substance,
product, waste or other material of any nature whatsoever which may give rise to liability
under any of the above statutes or under any statutory or common law theory, including
but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or
under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and
(iv) asbestos.
31.3 Notwithstanding any contrary provision of this Agreement, and in addition
to the indemnification duties of EVgo set forth in this Agreement, EVgo agrees to
indemnify, defend , protect, and hold harmless the City, its officials, officers, employees,
agents, and assigns from and against any and all losses, fines, penalties, claims,
damages, judgments, or liabilities, including, but not limited to, any repair, cleanup,
detoxification, or preparation and implementation of any remedial, response, closure or
other plan of any kind or nature which the City, its officials, officers, employees, agents,
or assigns may sustain or incur or which may be imposed upon them in connection with
the use of the Installation Sites provided under this Agreement by EVgo, arising from or
attributable to the storage ordeposit of Hazardous Substances on or underthe Installation
Sites by EVgo. This Section is intended to operate as an agreement pursuant to Section
107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code
EVGO SERVICES LLC Page 13
Section 25364, to insure, protect, hold harmless, and indemnify City for any claim
pursuant to the Hazardous Substance Laws or the common law.
31.4 City and EVgo shall not, and will not authorize any third party to, use,
generate, store, or dispose of any Hazardous Substances on, under, about or within the
Installation Sites in violation of any law or regulation. City and EVgo each agree to
defend, indemnify and hold harmless the other and the other's partners, affiliates, agents
and employees against any and all losses, liabilities, claims and/or costs arising from any
breach of any representation, warranty or agreement contained in this Section. This
Section shall survive the termination of this Agreement. Upon expiration or earlier
termination of this Agreement, EVgo shall surrender and vacate the Installation Sites and
deliver possession thereof to City on or before the termination date free of any Hazardous
Substances released into the environment at, on or under the Installation Sites that are
directly attributable to EVgo.
32. COMPLIANCE WITH LAWS
32.1 EVgo, at its sole cost, shall observe, perform, and comply with all laws,
statutes, ordinances, rules, and regulations promulgated by any governmental agency
and applicable to the DC Level 3 Electric Vehicle Charging Stations and the Installation
Sites, or the use thereof, including all RF safety standards, Americans with Disability Act
requirements, applicable zoning ordinances, building codes and environmental laws.
EVgo shall not occupy or use the DC Level 3 Electric Vehicle Charging Stations and
Installation Sites or permit any portion of the DC Level 3 Electric Vehicle Charging
Stations and Installation Sites to be occupied or used for any use or purpose that is
unlawful in part or in whole, or deemed by City to be disreputable in any manner or extra
hazardous on account of fire.
32.2 All EVgo's use of the Rights -of -Way under this Agreement shall be in
accordance with the laws of the United States of America, the State of California and in
accordance with its franchise agreement and all applicable rules and regulations and
ordinances of the City now in force, or hereinafter prescribed or promulgated by resolution
or ordinance or by State or Federal law.
33. CONFLICT OF INTEREST
EVgo or its employees may be subject to the provisions of the California Political
Reform Act of 1974 ("Act"), which (a) requires such persons to disclose any financial
interest that may foreseeably be materially affected by the work performed under this
Agreement, and (b) prohibits such persons from making, or participating in making,
decisions that will foreseeably financially affect such interest. If subject to the Act, EVgo
shall conform to all requirements of the Act. Failure to conform to the requirements of the
Act constitutes a material breach and is grounds for immediate termination of this
Agreement by City. EVgo shall indemnify and hold harmless City for any and all claims
for damages resulting from EVgo's violation of this Section.
34. NOT AGENT OF CITY
Nothing contained in this Agreement shall be deemed or construed to create the
relationship of principal and agent or of partnership or of joint venture or of any association
whatsoever between City and EVgo, it being expressly understood and agreed that
EVGO SERVICES LLC Page 14
neither the computation of fees nor any other provisions contained in this Agreement nor
any act or acts of the Parties hereto shall be deemed to create any relationship between
City and EVgo other than the relationship of City and EVgo.
35. NO THIRD PARTY BENEFICIARIES
City and EVgo do not intend, by a provision of this Agreement, to create in any
third party, any benefit or right owed by one Party, under the terms and conditions of this
Agreement, to the other Party.
36. NOTICES
All notices and other communications required or permitted to be given under this
Agreement, including any notice of change of address, shall be in writing and given by
personal delivery, or deposited with the United States Postal Service, postage prepaid,
addressed to the Party intended to be notified. Notice shall be deemed given as of the
date of personal delivery, or if mailed, upon the date of deposit with the United States
Postal Service. Notice shall be given as follows:
To City:
To EVgo:
Watershed/Conservation Specialist
Public Works Department
City of Newport Beach
P.O. Box 1768
100 Civic Center Drive
Newport Beach, CA 92660
EVgo Service LLC
11390 West Olympic Blvd, Suite 250
Los Angeles, CA 90064
Attn: CEO
37. PREVAILING WAGE
Pursuant to the applicable provisions of the Labor Code of the State of California, not
less than the general prevailing rate of per diem wages including legal holidays and overtime
work for each craft or type of workman needed to execute the work contemplated under the
Agreement shall be paid to all workmen employed on the work to be done according to the
Agreement by EVgo and any subcontractor. In accordance with the California Labor Code
(Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general
prevailing rate of per diem wages in the locality in which the work is to be performed for each
craft, classification, or type of workman or mechanic needed to execute the Agreement. A
copy of said determination is available by calling the prevailing wage hotline number (415)
703-4774, and requesting one from the Department of Industrial Relations. EVgo is required
to obtain the wage determinations from the Department of Industrial Relations and post at
the job site the prevailing rate or per diem wages. It shall be the obligation of EVgo or any
EVGO SERVICES LLC Page 15
subcontractor under it to comply with all State of California labor laws, rules and regulations
and the parties agree that the City shall not be liable for any violation thereof.
38. FORCE MAJEURE; CHANGE IN LAW
Performance rendered pursuant to this Agreement shall be extended because of any
delays due to unforeseeable causes beyond the control and without the fault or negligence
of EVgo, including but not restricted to acts of God or of the public enemy, unusually severe
weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight
embargoes, wars, and/or acts of any governmental agency, including the City, if EVgo,
within ten (10) days of the commencement of such delay, notifies City in writing of the cause
of the delay. City shall ascertain the facts and extent of delay, and extend the time for
performing the services for the period of the enforced delay when and if in the judgment of
the City such delay is justified. City's determination shall be final and conclusive upon the
parties to this Agreement. In no event shall EVgo be entitled to recover damages against
City for any delay in performance of this Agreement, however caused, EVgo's sole remedy
being extension of the Agreement pursuant to this Section. Further, if any rule, directive,
order, decision or law adversely impacts the ability for EVgo to perform its obligations under
the Agreement without becoming licensed or otherwise regulated by a public utility
commission or analogous agency in the relevant jurisdiction ("Adverse Directive"), EVgo
may, at its option, and within ten (10) business days of the commencement of such Adverse
Directive, notify City in writing of such Adverse Directive and request to either suspend
performance or terminate this Agreement. Within five (5) business days upon City's receipt
of such notice, City shall agree to either suspend EVgo's performance under this Agreement
or terminate this Agreement without penalty to either party if, in the reasonable judgment of
the City, such Adverse Directive exists.
39.TIME IS OF THE ESSENCE
Time is of the essence for this Agreement.
40.STANDARD PROVISIONS
40.1 Waiver. The waiver by either Party of any breach or violation of any term,
covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not
be deemed to be a waiver of any other term, covenant, condition, ordinance, law or
regulation, or of any subsequent breach or violation of the same or other term, covenant,
condition, ordinance, law or regulation. The subsequent acceptance by either Party of
any fee, performance, or other consideration which may become due or owing under this
Agreement, shall not be deemed to be a waiver of any preceding breach or violation by
the other Party of any term, condition, covenant of this Agreement or any applicable law,
ordinance or regulation.
40.2 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the Parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein. Each
Party has relied on advice from its own attorneys, and the warranties, representations,
and covenants of this Agreement itself. This Agreement shall inure to the benefit of and
be binding upon the Parties hereto and their respective successors and assigns.
EVGO SERVICES LLC Page 16
40.3 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and any other attachments attached hereto, the
terms of this Agreement shall govern.
40.4 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either Party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
40.5 Amendments. This Agreement may be modified or amended only by a
written document executed by both EVgo and City and approved as to form by the City
Attorney.
40.6 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
40.7 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange.
40.8 Equal Opportunity Employment. EVgo represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age.
40.9 No Attorney's Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing Party shall not be entitled to attorney's fees.
38.10 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
40.11 Exhibits. All exhibits attached to this Agreement are hereby
incorporated by reference herein.
[SIGNATURES NEXT PAGE]
EVGO SERVICES LLC Page 17
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed in duplicate on the dates indicated below.
APPROVED AS TO FORM:
THE CITY ATTORNEY'S OFFICE
Date:
By:
Aaro . Harp
City Attorney
ATTEST: ' frj I v
Date: 4 D
By:
Leilani
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By: r- J� '—e -A
Dave
City Manager
EVGO: EVGO SERVICES LLC,
a Delaware limited liability company
Date:
By: c
avid.Seherler h2Mb� ,pip
Chief Executive Officer
Date:
By��
Chris kDonnell
Chief Financial Officer
[END OF SIGNATURES]
Exhibit A: Installation Sites
Exhibit B: Improvement Drawings
Exhibit C: Insurance Requirements
EVGO SERVICES LLC Page 18
EXHIBIT A
INSTALLATION SITES
1. Newport Beach Civic Center: Two (2) ABB DC Level 3s
2. Newport Coast Community Center: One (1) BTC DC Level 3
VEWPORT BEACH CIVIC CENTER 100 CIVIC CENTER DR. NEWPORT BEACH, CA 92660
'COPE OF WORK_ OC L3 CHARGING STATIONS
108V 400A DUAL METERIDISTRIBUTION EQUIPMENT.
2) SAE DC LEVEL 3 ELECTRIC VEHICLE CHARGER.
N
I
L`
208V 400A DUAL METERIDISTRIBUTION EQUIPMENT.
(2) SAE DC LEVEL 3 ELECTRIC VEHICLE CHARGER.
EVgo_
EVGO SERVICES LLC Page A-1
NEWPORT COAST COMMUNITY CENTER 6401 SAN JOAQUIN HILLS RD. NEWPORT BEACH, CA92857
INSTALLATION OF AN EVGO DC L3 EV CHARGING STATION:
208V 400A DUAL METERIDISTRIBUTION EQUIPMENT.
_R.
EVgo.
(INSTALL r11 BTC DC LEVEL 3 ELECTRIC VEHICLE CHARGER 1
EVGO SERVICES LLC Page A-2
EXHIBIT B
IMPROVEMENT DRAWINGS
Technical Specifications
Model
EVP -FC -25-001
EVP -FC -50-001
Power Rating
25kW
SOW
Connectors
CHAdeMO, SAE)l772 Combo
Network
Credit Cards accepted (Visa, Master, Discover, AMX)
Input Power
208VAC,3-Phase
Input Power Breaker
100A 200A
Efficiency Rating
>90% >90%
Max. Output DC Current
52A 100A
Max. Output DC Voltage
50-500V
Auto Restart
Automatic restart in case of power outage or ground fault
Plug -Out Detection
Power terminated perSAE 11772specifications
Surge Protection
6000 VAC
Ambient Condition
-20°Cto+5o°C, 95% humidity, 6000ft altitude.
Dimensions
38"w, 72.75'h, 27.6"d, 750lbs. 43"w, 72.75'h, 32.25"d, 9001bs.
SafetyCompliance
ETLListed for USA and Canada; Complies with UL2594,UL2231-
i, UL2231-2, NEC Article 625, ADA Compliant
All specifications are subject to change.
1719 S Grand Ave. Santa Ana, CA 92705 Tel. 714.259.4888 Fax. 714.259.0840
CON us
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intertek
4005113
BTCPOWER'"
www.btcpower.com
EVGO SERVICES LLC Page B-1
The Terra 53 multi -standard DC
charging station is a configurable
single or dual port 50 kW fast charging
station. Its flexible multi -protocol design
allows CCS (C), CHAdeMO (J) or dual
functionality depending on the individual
charging needs of each customer.
Designed for the "charge and go"
segment, the Terra 53 multi -standard
DC charging station is ideal for use at
car dealerships, fuel stations and busy
urban areas.
The Terra 53 multi -standard DC charging station combines
industry standardization with fast charging technology to
support the next generation of electric vehicles. its muti-
protocol design allows for easy tailoring to support SAE
Combo (CCS) and CHAdeMO 1.0 for DC feet charging.
Seamless integration with several payment and billing piatform
solutions enables easy and secure payments via smart -
phone and/or RFIO card. The Terra 53 multi -standard OC
charging stations smart connectivity allows remote monitoring.
maintenance and functional upgrades that provide customers
with the tools necessary to gather granular usage statistics
and reports.
Main features
- OC CGS standard fast charging station
- 30 to 80% in 15 minutes
- Web connected and future proof
- Remote assistance, management and servicing
- Smart software upgradeabilty
- Easy to use
- 8' daylight readable touch screen display
- D;splay charging progress
- RFID authorization
- Aesthetic design and all weather steel hous.;ng
- Quick and easy installation
- Low operational noise
Applications
- H.ighway fuel statdon operators
- Busy urban areas
- Commercial fleet operators
- EV Infraetructure operators and service providers
Key optional features
- CHAdeMO OC fast chargmg expansion package
- Pin code authoreation
- Input power limiting software avoids expensive grid upgrades
- Galaxy web based management software
- Statistics module with data per user
- Fleet access management module
- Point of sale, back office integration to enable external billing
and payment solutions
- Charger statue information for car navigation purposes
- Wide temperature range: -35'G to +55°C
- Customized branding possibilities and user interface styling
- Extended cable length to allow placement flexibility
- Credit card reader
Power and productivity AItlop
for a hotter world-"
EVGO SERVICES LLC Page B-2
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Power and productivity
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I
EVGO SERVICES LLC Page B-3
EXHIBIT C
INSURANCE REQUIREMENTS
1. Provision of Insurance. Without limiting EVgo's indemnification of City, and prior
to commencement of work, EVgo shall obtain, provide and maintain at its own
expense during the term of this Agreement, policies of insurance of the type and
amounts described below and in a form satisfactory to City. EVgo agrees to
provide insurance in accordance with requirements set forth here.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. EVgo shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
EVgo shall submit to City, along with the certificate of insurance, a Waiver
of Subrogation endorsement in favor of City, its City Council, boards and
commissions, officers, agents, volunteers and employees.
C. General Liability Insurance. EVgo shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract) with no
endorsement or modification limiting the scope of coverage for liability
assumed under a contract.
D. Automobile Liability Insurance. EVgo shall maintain automobile insurance
at least as broad as Insurance Services Office form CA 00 01 covering
bodily injury and property damage for all activities of EVgo arising out of or
in connection with work to be performed under this Agreement, including
coverage for any owned, hired, non -owned or rented vehicles, in an amount
not less than one million dollars ($1,000,000) combined single limit each
accident.
EVGO SERVICES LLC Page C-1
4. Worker's Compensation Insurance Requirements. The policies are to contain, or
be endorsed to contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees, or shall specifically allow EVgo or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. EVgo hereby waives its own right of recovery
against City, and shall require similar written express waivers from each of
its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
excess liability and automobile liability, if required, but not including
professional liability, shall provide or be endorsed to provide that City, its
City Council, boards and commissions, officers, agents, volunteers and
employees shall be included as an additional insured under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. EVgo shall provide certificates of insurance to City
as evidence of the insurance coverage required herein, along with a waiver
of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving EVgo sixty (60) calendar days advance written
notice of such change; provided, however, EVgo, shall not be obligated to
conform to such changes if doing so would result in a material increase in
cost of EVgo's insurance.
C. Enforcement of Agreement Provisions. EVgo acknowledges and agrees
that any actual or alleged failure on the part of City to inform EVgo of non-
compliance with any requirement imposes no additional obligations on City
nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
EVGO SERVICES LLC Page C-2
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non -Compliance. If EVgo or any subcontractor fails to
provide and maintain insurance as required herein and such failure
continues uncured for ten (10) business days after receipt of written notice,
then City shall have the right but not the obligation, to terminate this
Agreement or to suspend EVgo's right to proceed until proper evidence of
insurance is provided.
G. Timely Notice of Claims. EVgo shall use best efforts to give City prompt
and timely notice of claims made or suits instituted that arise out of or result
from EVgo's performance under this Agreement, and that involve or may
involve coverage under any of the required liability policies. City assumes
no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to
involve City.
H. EVgo's Insurance. EVgo shall also procure and maintain, at its own cost
and expense, any additional kinds of insurance, which in its own judgment
may be necessary for its proper protection and prosecution of the work.
EVGO SERVICES LLC Page C-3
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach.'
Date Received: 10/24/17
Dept./Contact Received From: Edwin/Raymund
Date Completed: 1/5/18 Sent to: Edwin/Raymund By: Jan/Alicia
Company/Person required to have certificate: EVgo Services LLC
Type of contract: Public Works
I. GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 6/17/17 — 6/17/18
A.
INSURANCE COMPANY: Westchester Surplus Lines Insurance
Company
B.
AM BEST RATING (A-: VII or greater): A++/ XV
C.
ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
❑ Yes N No
D.
LIMITS (Must be $1 M or greater): What is limit provided?
$IM/$2M
E.
ADDITIONAL INSURED ENDORSEMENT — please attach
N Yes ❑ No
F.
PRODUCTS AND COMPLETED OPERATIONS (Must
(What is limits provided?)
include): Is it included? (completed Operations status does
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
not apply to Waste Haulers or Recreation)
® Yes ❑ No
G.
ADDITIONAL INSURED FOR PRODUCTS AND
G.
HIRED AND NON -OWNED AUTO ONLY:
COMPLETED OPERATIONS ENDORSEMENT (completed
H.
NOTICE OF CANCELLATION:
Operations status does not apply to Waste Haulers)
® Yes ❑ No
H.
ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
N Yes ❑ No
I.
PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
® Yes ❑ No
J.
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence" wording?
❑ Yes N No
K.
ELECTED SCMAF COVERAGE (RECREATION ONLY):
N N/A ❑ Yes ❑ No
L.
NOTICE OF CANCELLATION:
❑ N/A N Yes ❑ No
II. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 6/17/17 — 6/17/18
A.
INSURANCE COMPANY: _ACE American Insurance Company
B.
AM BEST RATING (A-: VII or greater) A++/ XV
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
N Yes ❑ No
D.
LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided?
$1,000,000
E
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided?)
N/A
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
Haulers only):
N N/A ❑ Yes ❑ No
G.
HIRED AND NON -OWNED AUTO ONLY:
❑ N/A ❑ Yes N No
H.
NOTICE OF CANCELLATION:
❑ N/A 0 Yes ❑ No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: 6/17/17-6/17/18
A.
INSURANCE COMPANY: Argonaut Insurance Company
B.
AM BEST RATING (A-: VII or greater): A / XIII
C.
ADMITTED Company (Must be California Admitted):
® Yes
❑ No
D.
WORKERS' COMPENSATION LIMIT: Statutory
® Yes
❑ No
E.
EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater)
$1,000,000
F.
WAIVER OF SUBROGATION (To include): Is it included?
® Yes
❑ No
G.
SIGNED WORKERS' COMPENSATION EXEMPTION FORM:
® N/A ❑ Yes
❑ No
H.
NOTICE OF CANCELLATION:
❑ N/A ® Yes
❑ No
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
® N/A ❑ Yes ❑ No
V POLLUTION LIABILITY
® N/A ❑ Yes ❑ No
V BUILDERS RISK
® N/A ❑ Yes ❑ No
HAVE ALL ABOVE REQUIREMENTS BEEN MET? ® Yes ❑ No
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Approved
v
9 1/5/1:Agent of AltmirinsoqnerycAs Date
Broker of record for the City ewport Beach
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Risk Management approval needed for non -admitted General Liability carrier. Sheri approved 12/15/17
Approved:
Risk Management Date
* Subject to the terms of the contract.