HomeMy WebLinkAboutReso 170-2018 (18-794)City of South San Francisco P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
Resolution: RES 170 -2018
File Number: 18 -794 Enactment Number: RES 170 -2018
RESOLUTION APPROVING A LICENSE AGREEMENT WITH
EVGO SERVICES LLC FOR A PAYMENT OF $50,000 AND A TERM
OF TEN (10) YEARS FOR THE INSTALLATION AND OPERATION
OF FOUR (4) HIGH POWERED ELECTRIC VEHICLE CHARGERS
AND USE OF (5) FIVE PARKING SPACES AT THE MILLER
AVENUE PARKING GARAGE LOCATED AT 329 MILLER
AVENUE, SOUTH SAN FRANCISCO.
WHEREAS, the transportation sector is the largest contributor to greenhouse gas and pollution
emissions in California; and
WHEREAS, transforming the State's transportation system away from gasoline to zero - emission
vehicles is a key part of California's strategy to reduce greenhouse gas emissions and improve air
quality; and
WHEREAS, consistent with the State's emission reduction and air quality improvement efforts, the City
of South San Francisco (City) is pursing installation of electric vehicle (EV) charging infrastructure to
support the City's Climate Action Plan which aims to reduce energy use and greenhouse gas emissions;
and
WHEREAS, the City has held discussions with EVgo Services LLC (EVgo), which operates the largest
public fast charging EV network in the nation, with over 1,000 charging stations countrywide, regarding
the potential of operating EV charging stations in the City; and
WHEREAS, EVgo is proposing to enter into a license agreement with the City of South San Francisco to
install four (4) high powered EV charging stations and use five (5) parking stalls (one stall for
accessibility) at the Miller Avenue Parking Garage located at 329 Miller Avenue; and
WHEREAS, EVgo will provide a 100 percent turnkey project at no cost to the City which includes
design, engineering, utility connections, permitting, construction, commissioning as well as operations
and maintenance of the chargers; and
WHEREAS, EVgo will pay the City $50,000 to make up the lost parking revenue for the five spaces
over the term of the ten -year term agreement.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of South San Francisco that
the City Council approves the license agreement, attached hereto as Exhibit A, with EVgo Services LLC
of Los Angeles, California.
City of South San Francisco Page 1
File Number. 18 -794 Enactment Number. RES 170 -2018
BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute the agreement and
any other related documents on behalf of the City upon timely submission by EVgo Services LLC of the
signed contract and all other documents, subject to the approval of the City Attorney.
BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to take any other
related actions consistent with the intention of this resolution.
At a meeting of the City Council on 9/26/2018, a motion was made by Mark Addiego, seconded by Pradeep
Gupta, that this Resolution be approved. The motion passed.
Yes: 5 Mayor Normandy, Mayor Pro Tem Matsumoto, Councilmember Garbarino,
Councilmember gHpfa,1and Councilmember Addiego
Attest by
ista
City of South San Francisco Page 2
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LICENSE AGREEMENT
This License Agreement (this “Agreement” or “License”) is entered into effective as of
September 26, 2018 (“Effective Date”) by and between the City of South San Francisco, a
municipal corporation (the “City” or “Licensor”) and EVgo Services LLC, a Delaware limited
liability company (the “Licensee”). The City and Licensee are hereinafter collectively referred to
as the “Parties.”
RECITALS
A. The City is the owner of that certain real property consisting of three adjacent
parcels of land located at 329 Miller Avenue within the City of South San Francisco, known as
San Mateo County Assessor’s Parcel Numbers 012-312-040, 012-312-050 and 012-312-060,
respectively, and more particularly described in Exhibit A attached hereto (the “Property”).
B. Licensee is engaged in providing electric vehicle charging and support services to
owners of electric vehicles, and desires to obtain a revocable license from the City to use a
portion of the Property solely as a public charging station for its customers. The portion of the
Property for which a license is granted pursuant to this Agreement (the “Licensed Premises”) is
described in Exhibit B attached hereto.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1. Grant of License; License Fee; No Leasehold or Property Rights Created. The
City hereby grants to Licensee a revocable license to use the Licensed Premises solely for any
lawful activity in connection with the development, construction, installation, maintenance,
repair, replacement, removal, and operation of electric vehicle chargers and ancillary items,
including, without limitation, electrical equipment, hardware, software, signage and all
supporting equipment and structures (which may include concrete pads and protective bollards)
(collectively, the “Charging Station”), together with any other uses permitted herein, on the
terms and conditions set forth in this Agreement (collectively, the “Permitted Activity”),
undertaken in compliance with the Conditions of Use set forth in Section 9 below. Within thirty
(30) days from the date the Charging Station is first operational (the “Commencement Date”),
Licensee shall pay to the City a one-time fee (the “License Fee”) in the amount of Fifty
Thousand Dollars ($50,000.00). This fee is based on estimated lost revenue to the City’s Parking
District during the term of this Agreement. This Agreement is not intended to nor shall it be
interpreted to create or vest in Licensee any leasehold or any other property rights or interests in
the Property or the improvements located thereon, or any part thereof. As additional
consideration for the License provided hereunder, Licensee shall provide to City during the Term
a discount for City's use of the EV Charging Equipment (as defined below) equal to twenty
percent (20%) off Licensee’s then-current “Pay As You Go” usage rates” which, as of the date
hereof, are available at the following: https://www.evgo.com/charging-plans/. Such percentage
discount will always be tied to the then current “Pay As You Go” usage rate, such that any rate
change to the “Pay As You Go” rates from time to time will be reflected in the discounted rate.
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2. Exclusivity. City grants to Licensee the exclusive right to provide DC fast-
charging at the Property during the term.
3. Term of License. The term of the License and right of entry granted hereby, shall
commence on the Effective Date and shall continue for a period of ten (10) years following the
Commencement Date. Following the expiration of the initial term, the Agreement will
automatically renew for successive one (1)-year periods, unless terminated by either party upon
at least fifteen (15) days prior written notice.
4. Termination of License.
4.1 Termination for Cause. The Agreement may be immediately terminated
or suspended by written notice (i) following a breach of either Party’s obligations under this
Agreement, and failure to cure any such breach within ten (10) days following written notice of
default from the non-breaching Party or (ii) if either Party becomes insolvent or proceedings are
instituted by or against either Party under any provision of any federal or state bankruptcy or
insolvency laws.
4.2 Early Termination. This Agreement may be terminated upon (30) days’
written notice to either Party:
a. in the case of Licensee, without penalty or fee, at any time prior to
the submission of the permit application for construction of the Charging Station at the Property
or in the event that Licensee determines that the construction or continued operation of the
Charging Station is impracticable or uneconomical; and
b. in the case of the City, (i) , in the event the Commencement Date
has not occurred within fifteen (15) months following the Effective Date;; or (ii) in the event that
City elects to terminate this Agreement for convenience. If City elects to so terminate this
Agreement, then City may be obligated to pay a fee (any such fee, a “Termination Fee”) to
Licensee in an amount equal to $650,000 multiplied by the applicable Termination Percentage
set forth in Schedule I attached hereto. For the avoidance of doubt, no Termination Fee shall be
payable by City to Licensee in the event City exercises its right to terminate following the tenth
(10th) anniversary of the Commencement Date. Upon the City’s notice to terminate, Licensee
shall remove the EV Charging Equipment (as such term is defined in Section 9(i) below) from
the Licensed Premises but shall leave in place the EV Supply Infrastructure (as defined in and in
accordance with such Section 9(i)).
5. Licensee Customers; Access; Utility Service.
5.1 Licensee Customers. Licensee may provide access to the Charging Station
to its subscribers, customers, agents, employees, contractors, vendors, guests and invitees
(“Licensee Customers”), who shall be charged in amounts reasonably determined by Licensee,
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which may change from time to time in Licensee’s sole discretion. Licensee Customers may
include members of the public, as well as commercial fleet and rideshare vehicles.
5.2 Access. Licensee Customers shall have access to the Licensed Premises
twenty-four (24) hours per day, seven (7) days per week, and 365/366 days per year. Licensee
and its employees, contractors, and vendors may, at any time during the term, access the
Licensed Premises and City Property to maintain, inspect, repair, upgrade, remove or replace any
portion of the Charging Station. The City may access any portion of the Licensed Premises that it
determines is necessary in its sole discretion in an emergency situation or other exigent
circumstances, whether or not the City has notified Licensee of the emergency. Licensee’s use of
the Licensed Premises may not impede or delay in any way the City’s authority and ability to
make changes to the Licensed Premises or surrounding areas necessary to maintain its street
lights, utility services, or other municipal services.
5.3 Utility Service. Upon commencement of construction of the Charging
Station, Licensee shall upgrade electrical transformers for providing future utility services.
Licensee shall obtain a City encroachment permit and other applicable approvals for such
upgrade and related work. Upon the Charging Station becoming fully operational, Licensee shall
have completed arrangements to provide separate utility meters and service at Licensee’s sole
cost and expense.
6. Signage; Promotional Activities.
6.1 Signage. In compliance with all applicable requirements of the South San
Francisco Municipal Code, including but not limited to Chapter 20.360, Licensee may stripe
and place appropriate, removable signage at the Charging Station parking spaces, and mark
the Charging Station and related equipment in Licensee’s sole discretion. In addition, subject
to City’s prior approval Licensee may place signage, marks, or advertising devices in, on, or
about and around the Licensed Premises within the Property at Licensee’s sole cost and
subject to applicable laws and regulations. Notwithstanding this subsection, in no event shall
Licensee be permitted to install, erect or place signage on City property that would cause
permanent damage to any part of such buildings, structures, and facilities.
6.2 Promotional Activities. During the term of this Agreement, Licensee may
promote the availability of the Charging Station (to the extent they are on Licensee’s network
of EV charging stations) through traditional and/or electronic media, including providing the
address of the Property and a description thereof. No Party shall use the other party’s trade or
service marks, logos or other proprietary materials without the prior written consent of the
other Party.
7. Operation and Maintenance. Licensee shall be responsible for operating and
maintaining the Charging Station in good working order and repair.
8. Construction. Subject at all times to the requirements of Section 9, Licensee shall,
at its sole cost and expense, be responsible for all installation activities (the “Installation
Activities”) required to support the operation of the Charging Station and services therewith,
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including the hiring and coordination of all vendors and contractors; the installation of electrical
equipment, utility lines, hardware, and software; site preparation, trenching, repaving, and
landscaping. Licensee shall comply with all Conditions of Approval with respect to all work
done in the License Area, as stated in Exhibit D and attached hereto and incorporated herein,
including required plans, specs, encroachment permits and building permits, and all other
applicable approvals, at Licensee’s sole cost including payment for all permit fees. Before
beginning any Installation Activities, Licensee shall provide a copy of the construction schedule
and installation plans to City for its approval, which approval shall not be unreasonably delayed
or withheld. Licensee shall ensure that it or its designated contractor(s) and/or service providers
obtain from governmental authorities all licenses, permits, or other approvals (collectively,
“Approvals”) required to conduct such installations (City will reasonably cooperate with
Licensee’s designated contractors and service providers as required to obtain such Approvals),
bring on the Licensed Premises and permitted adjacent areas of the Property only those
materials and equipment that are being used directly in the Installation Activities, perform
Installation Activities only during times and days acceptable to City and in a manner so as to
not unreasonably interfere with City’s business operations, not permit or suffer any mechanic’s
or materialmen’s liens to attach to the Licensed Premises. If such a lien attaches to the Licensed
Premises, Licensee shall remove or bond over such lien at Licensee’s sole cost and expense,
within twenty (20) days of Licensee receiving written notice thereof from City. City shall not
retain any ownership rights in the Charging Station or any of Licensee’s related equipment.
9. Conditions of Use. Licensee’s right to enter upon and use the Licensed Premises
is limited to the Permitted Activity (defined in Section 1 above) subject to compliance with all
conditions set forth in this Section 9 (the “Conditions of Use”). Without limiting the foregoing,
Licensee agrees to comply with all of the following specific requirements:
a. Subject to Section 11 below, Licensee shall be liable for any
damage to the Property, or any part thereof, or any improvements located thereon, or any other
property of the City or City right-of-way (collectively, “City Property”), or other entities, that
occurs as a result of this License and the use of the Licensed Premises by Licensee, its
contractors, agents and invitees, except to the extent caused by the negligence or willful
misconduct of the City, or their respective easement holders, employees, agents, or contractors.
Any damage to the Property, the improvements located thereon, or City Property shall be
immediately repaired to the satisfaction of the City, as applicable, at Licensee’s sole cost and
expense.
b. Licensee shall not interfere with any existing easement rights on
the Property, nor encroach on the public right-of-way adjacent to the Property, except to the
extent necessary or required for Licensee’s construction activities on the Property, in which case
City will provide access to the alley for such construction by means of an encroachment permit
that will have specific conditions of approval such as approved traffic control plan and other
comparable measures
c. Licensee shall incorporate all storm water pollution control
measures required by an approved storm water pollution prevention plan. Licensee shall employ
adequate dust control measures to ensure that neighboring businesses and residences are not
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adversely impacted by Licensee’s activities on the Licensed Premises. Licensee shall comply
with all Conditions of Use and with all state, federal, and local laws, regulations, rules and
orders, applicable to this License, the Property or the Permitted Activity, including without
limitation all Environmental Laws (defined in Exhibit C attached hereto and incorporated herein
by reference). Licensee shall not cause or permit any Hazardous Material (defined in Exhibit C)
to be generated, brought onto, used, stored, or disposed of in or about the Property.
(i) Notice of Release or Investigation. If during the term of
this Agreement, Licensee becomes aware of (a) any actual or threatened release of any
Hazardous Material, caused by Licensee’s activities hereunder, in, on, under, or about the
Property, or (b) any inquiry, investigation, proceeding, or claim by any government agency or
other person regarding the presence of Hazardous Material, caused by Licensee’s activities
hereunder, in, on, under, or about the Property, Licensee shall provide the City with written
notice of the release or investigation within five (5) days after learning of it and shall
simultaneously furnish to the City copies of any claims, notices of violation, reports, or other
writings received by Licensee that concern the release or investigation.
(ii) Remediation Obligations. If the presence of any Hazardous
Material brought onto the Property by Licensee or Licensee’s agents, employees, invitees,
customers, consultants, contractors or subcontractors results in contamination of the Property or
any part thereof, Licensee shall promptly take all necessary actions to remove or remediate such
Hazardous Materials, whether or not they are present at concentrations exceeding state or federal
maximum concentration or action levels, or any governmental agency has issued a cleanup order,
at Licensee’s sole expense, to return the Propert y to the condition that existed before the
introduction of such Hazardous Material. Licensee shall first obtain the City’s approval of the
proposed removal or remedial action.
d. Consistent with section 5.2, Licensee shall not impair or interfere
with the City’s ability to access the Property for any purpose. Additionally, Licensee shall not
impair or interfere with the City, its respective employees, agents, contractors, or any
beneficiaries of easements on the Property ability to access the Property.
(i) Licensee shall allow parties to pre-existing license
agreements with the City regarding the Property reasonable access and accommodation to the
Property, as well as their respective employees, agents, or contractors to conduct inspections and
possible environmental testing, as set forth in the current license agreements.
e. Licensee expressly acknowledges and agrees that the City shall
have no obligation to provide security services or fencing, and Licensee’s use of the Licensed
Premises is at Licensee’s own risk.
f. Licensee expressly acknowledges and agrees that the City has no
obligation to maintain or repair the Property, the improvements located thereon, or the Licensed
Premises, and Licensee accepts use of the Licensed Premises in its AS-IS condition.
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g. Licensee shall, at Licensee’s sole cost and expense, maintain the
Licensed Premises in its condition existing as of the Effective Date, reasonable wear and tear
excepted, and shall use commercially reasonable efforts to keep the Licensed Premises in
condition free of debris, litter, and graffiti. Without limiting the generality of the foregoing,
Licensee shall be responsible for undertaking at Licensee’s sole expense without reimbursement,
any necessary repair or resurfacing of paved surfaces on the Licensed Premises. Licensee shall
be responsible for payment of all utilities serving the Licensed Premises. Licensee shall take
reasonable steps to ensure that access to the Licensed Premises is limited to Licensee and
Licensee’s customers, agents, employees, contractors and subcontractors.
h. The City shall have the right at all times during the term of this
Agreement to enter upon and to inspect the Licensed Premises to ensure compliance with this
Agreement.
i. Existing improvements to the Licensed Premises shall be restored
to existing or better condition. Improvements shall include, but not be limited to, pavement,
curbs, gutters, sidewalks, storm and sanitary sewer facilities, public utilities, surface
improvements, landscaping, and lighting. Licensee shall be responsible for cleanup of any
contamination by regulated substances introduced to the site by Licensee’s activities on the
Licensed Premises. Within ninety (90) days following the expiration or termination of this
Agreement, at Licensee’s sole cost and expense, Licensee shall remove all vehicles, equipment,
materials and personal property only as to the Charging Station from the Licensed Premises, that
is, Licensee shall remove from the Licensed Premises all Charging Station equipment and
hardware used for delivering electricity to electric vehicles including conductors, electric vehicle
connectors, chargers, attachment plugs, and all other fittings, devices, power outlets, or
apparatuses installed specifically for the purpose of delivering energy from the Licensed
Premises wiring to the electric vehicle (“EV Charging Equipment”), and any wiring thereto
required to be removed by applicable electrical codes. Any electrical supply infrastructure
enabling the operation of an electric vehicle charging station, such as conductors, transformers
and associated substructures from the utility distribution system, and electrical panel, and cable
and conduit to deliver power to the parking space (“EV Supply Infrastructure”) must remain at
the Property. If Licensee fails to comply with the foregoing, the City shall have the right to
remove all vehicles, equipment, materials and personal property from the Licensed Premises and
to restore the Licensed Premises to its Original Condition, and Licensee shall be obligated to pay
City for all costs incurred by the City in connection with such removal and restoration within
five (5) business days following receipt of the City’s invoice therefore.
j. All lay down and staging areas shall be fenced to prevent public
access and screened from public view. Prior to storing materials on the Licensed Premises,
Licensee shall, at Licensee’s sole expense without reimbursement, screen from view the portion
of the Licensed Premises that fronts along Antoinette Lane and the portion of the Licensed
Premises that faces the Chestnut Avenue located to the south of the Property. Screening
materials shall be approved by City, which approval will not be unreasonably withheld.
k. Licensee shall post notices on the Property that will reasonably
notify all nearby residents and businesses affected by the use of the Licensed
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Premises. Notifications shall include at a minimum: work hours, Licensee contact information,
brief description of the work, and project duration. A copy of the notices shall be provided to the
City for review prior to distribution.
l. Use of the Property for construction activity is limited to
Licensee’s employees, consultants, and contractors and is limited to construction hours specified
in the City’s municipal code (8 a.m. through 8 p.m. Monday through Friday, 9 a.m. to 8:00 p.m.
Saturday, and 10 a.m. to 6 p.m. Sunday and holidays), unless otherwise approved by the City
Engineer or authorized representative. Overnight parking, storage of equipment, and relatively
quiet, non-construction activities are acceptable outside of regular working hours.
10. Representations, Warranties and Covenants. Each of City and Licensee hereby
represents and warrants to the other that, as of this Effective Date: (a) it has all necessary power
and authority to execute, deliver, and perform its obligations hereunder; (b) the execution,
delivery, and performance of 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, regulation, order, or other legal determination applicable to it; (c)
there is no pending or, to its knowledge, threatened litigation or proceeding that may adversely
affect its ability to perform this Agreement; (d) it is duly organized and validly existing under the
laws of the jurisdiction of its organization; (e) this Agreement constitutes a legal, valid and
binding obligation of such party, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors’ rights and by general principles of
equity; 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.
11. Indemnification. Licensee agrees to indemnify, defend (with counsel approved by
City) and hold the City, and their respective elected and appointed officers, officials, employees,
agents and representatives (all of the foregoing collectively “City Indemnitees”) harmless from
and against all liability, loss, cost, claim, demand, action, suit, legal or administrative
proceeding, penalty, deficiency, fine, damage and expense (including, without limitation,
reasonable attorneys’ fees and costs of litigation) (all of the foregoing collectively “Claims”)
resulting from or arising in connection with the use of the Licensed Premises or the
improvements located thereon by Licensee or Licensee’s agents, employees, invitees, contractors
or subcontractors, including without limitation, Claims arising as a result of or in connection
with any release of any Hazardous Material in, on, under or about the Properties by Licensee, or
Licensee’s agents, employees, invitees, contractors, or subcontractors, or any other violation of
any Environmental Law by Licensee or Licensee’s agents, employees, invitees, contractors or
subcontractors, except and to the extent caused solely by the negligence or willful misconduct of
any of the Indemnitees. Licensee’s indemnification obligations set forth in this Section 11 shall
survive the expiration or earlier termination of this Agreement.
12. 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 respective affiliates,
representatives, agents, officers, directors, managers, members, shareholders, partners,
contractors, or employees (the “Related Parties”) for any special, indirect or consequential
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damages relating to this Agreement. Each Party’s total liability to the other Party and its Related
Parties on an aggregate basis arising out of or in connection with this Agreement, whether in
contract or in tort, shall not exceed the limits of the applicable insurance coverage required
hereunder, except as it applies to any obligations pursuant to Section 11, entitled
“Indemnification.”
13. Release of Claims. Licensee hereby waives, releases, and discharges forever the
City Indemnitees from all present and future Claims arising out of or in any way connected with
entry upon or use of the Licensed Premises and the improvements located thereon by Licensee or
Licensee’s agents, employees, invitees, contractors or subcontractors, including without
limitation all Claims arising in connection with any injury to persons or damage to or theft of
vehicles, equipment, materials, or any other personal property, except and to the extent caused
solely by the gross negligence or willful misconduct of any of the Indemnitees. The provisions
of this Section 13 shall survive the expiration or earlier termination of this Agreement.
14. EVgo Insurance. Throughout the term of this License, Licensee shall maintain a
commercial general liability policy in the amount of at least Two Million Dollars ($2,000,000)
combined single limit, including coverage for bodily injury, property damage, and contractual
liability coverage. Such policy or policies shall be written on an occurrence basis, shall be issued
by an insurance carrier licensed to do business in the State of California with current A.M. Best's
rating of no less than A: VII, and shall name the City as an additional insured.
Throughout the term of this License, Licensee shall maintain a comprehensive
automobile liability coverage in the amount of at least Two Million Dollars ($2,000,000.00),
combined single limit including coverage for owned, non-owned, and leased vehicles.
Automobile liability policies shall name the City and the Indemnitees as an Additional
Insured. Throughout the term of this License, Licensee shall maintain worker’s compensation
insurance in the amount required under applicable state law, covering Licensee’s employees, if
any, at work at the Licensed Premises or engaged in services or operations in connection with the
Permitted Activity.
The insurance limits required hereby may be satisfied through an umbrella or excess
liability policy. Prior to the Effective Date, Licensee shall furnish the City with certificates of
insurance in forms acceptable to the City evidencing the required insurance coverage and duly
executed endorsements evidencing such additional insured status. The certificates shall contain a
statement of obligation on the part of the carrier to notify the City of any material change,
cancellation, termination or non-renewal of the coverage at least thirty (30) days in advance of
the effective date of any such material change, cancellation, termination, or non-renewal, except
in the event of non-payment of premium a ten (10) day notice will be provided. Coverage
provided by Licensee shall be primary insurance and shall not be contributing with any
insurance, or self-insurance maintained by the City and the policies shall so provide. The
insurance policies shall contain a waiver of subrogation for the benefit of the City. Licensee
shall provide the City with certified copies of the required insurance policies upon City’s request.
15. City Insurance. During the Term, City agrees to maintain in full force and effect,
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at its cost and expense: (i) Property insurance, including boiler & machinery coverage; (ii)
Automobile Liability insurance; and (iii) General Liability insurance, written on an occurrence
basis, covering bodily injury, personal injury, and property damage, with combined single limit
of not less than $1,000,000.
16. Casualty and Condemnation. If any portion of the Property is damaged by
fire or other casualty in a manner that adversely affects Licensee’s use of the Licensed Premises,
then either Party may, within thirty (30) days of the date of such fire or other casualty elect to
terminate this License on written notice to the other Party. If any portion of the Property is
condemned or taken in any manner for a public or quasi-public use that could adversely affect
Licensee’s use of the Licensed Premises, then Licensee may elect to terminate this License
effective as of the date title to the condemned portion of the Property is transferred to the
condemning authority.
17. Notices. Except as otherwise specified in this Agreement, all notices to be sent
pursuant hereto shall be made in writing, and sent to the Parties at the addresses specified below,
or such other address as a Party may designate by written notice delivered to the other Party in
accordance with this section. All such notices shall be sent by:
a. personal delivery, in which case notice shall be deemed delivered
upon receipt;
b. certified or registered mail, return receipt requested, in which case
notice shall be deemed delivered two (2) business days after deposit, postage prepaid in the
United States mail;
c. nationally recognized overnight courier, in which case notice shall
be deemed delivered one (1) day after deposit with such courier; or
d. facsimile transmission, in which case notice shall be deemed
delivered on transmittal, provided that a transmission report is generated reflecting the accurate
transmission thereof.
City: City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attn: Mike Futrell, City Manager
Telephone: (650) 877-8500
Licensee: EVgo Services LLC
11390 W. Olympic Blvd., Suite 250
ATTN: Site Acquisition
with a copy to:
EVgo Services LLC
11390 West Olympic Blvd., Suite 250
10
Los Angeles, CA 90064
Attn: Legal Department
For communications relating to this Agreement, Licensee’s point of contact prior
to construction shall be Thomas Reagan ([email protected]) and after construction
Licensee’s point of contact shall be Jonah Eidus ([email protected]
18. Assignment. The rights granted hereby are personal to the Licensee and may not
be transferred or assigned by operation of law or otherwise without the written consent of the
City; provided, however, that Licensee 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. This Agreement is binding on and inures to the benefit of
the Parties and their respective heirs, successors, assigns, and personal representatives. In the
event the Licensed Premises is transferred or City ceases to have the requisite level of control
over the Licensed Premises necessary to fulfill its obligations under this Agreement (each, a
“Transfer Event”), City shall assign its rights and obligations under this Agreement to the
person or entity which would be able to comply with City’s obligations following such Transfer
Event. Further, City agrees that any such Transfer Event shall not affect, terminate or disturb
Licensee's right rights under this Agreement, so long as Licensee is not then in default under any
of the terms, covenants or conditions of this Agreement. If City is unable to assign its rights and
obligations, this Agreement shall be deemed terminated for City’s convenience. and the terms
of Section 4.2(b.)(ii) shall apply.
19. Force Majeure. Neither Party is responsible for any delay or failure in
performance of any part of this Agreement to the extent that delay or failure is caused by fire,
flood, explosion, war, embargo, government requirement, civil or military authority, act of God,
act or omission of carriers or other similar causes beyond the Party’s control.
20. Entire Agreement; Amendments. This Agreement together with Exhibits A
through D attached hereto and incorporated herein by reference, constitute the entire agreement
of the Parties with respect to the subject matter hereof, and supersedes all prior written or oral
agreements, understandings, representations or statement with respect thereto. This Agreement
may be amended only by a written instrument executed by the Parties hereto.
21. Severability. If any term, provision, or condition of this Agreement is held by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement
shall continue in full force and effect unless the rights and obligations of the Parties have been
materially altered or abridged thereby.
22. No Waiver. A waiver by either Party of the performance of any covenant or
condition herein shall not invalidate this Agreement nor shall the delay or forbearance by either
party in exercising any remedy or right be considered a waiver of, or an estoppel against, the
later exercise of such remedy or right. No waiver of any breach of any covenant or provision of
this Agreement shall be deemed a waiver of any subsequent breach of the same or any other
covenant or provision hereof. No waiver shall be valid unless in writing and executed by the
waiving Party.
23. Captions; Interpretation. The section headings used herein are solely for
11
convenience and shall not be used to interpret this Agreement. The provisions of this Agreement
shall be construed as a whole according to their common meaning, and not strictly for or against
any party, in order to achieve the objectives and purposes of the Parties.
24. Attorneys’ Fees. In any action at law or in equity, arbitration or other proceeding
arising in connection with this Agreement, the prevailing party shall recover reasonable
attorney’s fees and other costs, including but not limited to court costs and expert and
consultants’ fees incurred in connection with such action, in addition to any other relief awarded.
25. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
26. Governing Law. This Agreement, and the rights and obligations of the Parties,
shall be governed by and interpreted in accordance with the laws of the State of California
without regard to principles of conflicts of law. Any action to enforce or interpret this
Agreement shall be filed in the Superior Court of San Mateo County, California or in the Federal
District Court for the Northern District of California.
27. No Third Party Beneficiaries. Nothing in this Agreement is intended to or shall
confer upon any person other than the Parties any rights or remedies hereunder.
28. Time is of the Essence. Time is of the essence for each condition, term,
obligation and provision set forth in this Agreement.
29. Possessory Interest. Licensee acknowledges that this License may create a
possessory interest subject to property taxation, and that Licensee may be subject to the payment
of property taxes on such interest.
SIGNATURES ON FOLLOWING PAGE(S)
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IN WITNESS WHEREOF, the Parties have executed this License Agreement as of the
date first written above.
LICENSEE:
EVGO SERVICES LLC
By: _____________________________
Print Name: __Jonah S. Eidus____________________
Title: ___Senior Director – Site Development______________________
CITY:
THE CITY OF SOUTH SAN FRANCISCO, a municipal corporation
By:____________________________
Mike Futrell, City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
________________________
City Attorney
2989873.1
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Exhibit A
MILLER AVENUE PARKING GARAGE
The land referred to is situated in the County of San Mateo, City of South San Francisco, State of
California, and is described as follows: 329 Miller Avenue Parking Garage.
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Exhibit B
MILLER AVENUE GARAGE LICENSED PREMISES
EVgo shall have access to install high powered chargers to four parking stalls and one accessible
parking stall as indicated in the drawing. Additionally, access shall be granted to upgrade the
transformer in coordination with PG&E and install electrical service and high-power support
equipment in the location as indicated, plus installation of electrical conduits via a trapeze under
the ceiling from the electrical support equipment to the vehicle charging equipment.
15
Exhibit C
DEFINITION OF HAZARDOUS MATERIAL, ENVIRONMENTAL LAWS
As used in this License, the term “Hazardous Material” means any chemical, compound,
material, mixture, or substance that is now or may in the future be defined or listed in, or
otherwise classified pursuant to any Environmental Laws (defined below) as a “hazardous
substance”, “hazardous material”, “hazardous waste”, “extremely hazardous waste”, infectious
waste”, toxic substance”, toxic pollutant”, or any other formulation intended to define, list or
classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity,
carcinogenicity, or toxicity. The term “hazardous material” shall also include asbestos or
asbestos-containing materials, radon, chrome and/or chromium, polychlorinated biphenyls,
petroleum, petroleum products or by-products, petroleum components, oil, mineral spirits,
natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable as fuel, perchlorate,
and methy tert-butyl ether, whether or not defined as a hazardous waste or hazardous substance
in the Environmental Laws.
As used in this License, the term “Environmental Laws” means any and all federal, state and
local statutes, ordinances, orders, rules, regulations, guidance documents, judgments,
governmental authorizations or directives, or any other requirements of governmental authorities,
as may presently exist, or as may be amended or supplemented, or hereafter enacted, relating to
the presence, release, generation, use, handling, treatment, storage, transportation or disposal of
Hazardous Materials, or the protection of the environment or human, plant or animal health,
including, without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.),
the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.),
the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33 U.S.C.
§ 2701 et seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C.
§ 11001 et seq.), the Porter-Cologne Water Quality Control Act (Cal. Water Code § 13000 et
seq.), the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et seq.), the Safe
Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et
seq.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et seq.), the
Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code
§ 25500 et seq.), and the Carpenter-Presley-Tanner Hazardous Substances Account Act (Cal.
Health and Safety Code, Section 25300 et seq.).
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Exhibit D
CONDITIONS OF APPROVAL
Conditions of installation and construction of EV charging infrastructure
- EVgo shall provide plans and specifications to Public Works Department for review and
comment prior to submission of Building Division submittals. Public Works Department
shall return comments to EVgo within ten (10 business days)
- EVgo shall secure all necessary permits and approvals at its own costs from the City
which may include, but are not limited to, building permits and encroachment permits
- EVgo shall coordinate construction activities with Public Works Department and give at
least 5 business day notice prior to installing temporary fencing or temporary removal of
spaces during construction activities.
- During the construction EVgo shall maintain power at the Miller Garage as to not
interrupt normal operations. Any power shut offs that may be needed as part of the
construction activities shall occur during weekends.
- EVgo to provide City of South San Francisco monthly reports or access to real time
monitoring of the charging equipment. At a minimum data provided should include the
following:
o Percent occupancy of chargers per hour/per day
o Number of unique charging sessions per day
o Amount of electricity in kW hours consumed for charging per day
o Average session time in minutes per day/per month
- City will create an EVgo account and EVgo shall provide the City with the discount off
then current “Pay As You Go” usage rates that is provided for in Paragraph 1 of the
License.
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Schedule I
TERMINATION SCHEDULE
Early Termination Date Termination
Percentage
prior to the first (1st) anniversary of the Commencement Date 100%
after the first (1st) anniversary of the Commencement Date, but
prior to the second (2nd) anniversary of the Commencement Date
90%
after the second (2nd) anniversary of the Commencement Date, but
prior to the third (3rd) anniversary of the Commencement Date
80%
after the third (3rd) anniversary of the Commencement Date, but
prior to the fourth (4th) anniversary of the Commencement Date
70%
after the fourth (4th) anniversary of the Commencement Date, but
prior to the fifth (5th) anniversary of the Commencement Date
60%
after the fifth (5th) anniversary of the Commencement Date, but
prior to the sixth (6th) anniversary of the Commencement Date
50%
after the sixth (6th) anniversary of the Commencement Date, but
prior to the seventh (7th) anniversary of the Commencement Date
40%
after the seventh (7th) anniversary of the Commencement Date,
but prior to the eighth (8th) anniversary of the Commencement
Date
30%
after the eighth (8th) anniversary of the Commencement Date, but
prior to the ninth (9th) anniversary of the Commencement Date
20%
after the ninth (9th) anniversary of the Commencement Date, but
prior to the tenth (10th) anniversary of the Commencement Date
10%
After the tenth (10th) anniversary of the Commencement Date 0%
3055009.1