HomeMy WebLinkAboutResolution 2012-013 vehicle charging stationsMARANA RESOLUTION NO. 2012-13
RELATING TO REAL ESTATE; APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE A LICENSE AGREEMENT FOR ELECTRIC VEHICLE CHARGING STATIONS
WHEREAS the United States Department of Energy (the "DOE ") has provided funding
through the American Recovery and Reinvestment Act ( "ARRA ") to accelerate the development
and production of electric vehicles ( "EVs ") in order to reduce petroleum consumption in the
United States; and
WHEREAS for the use of EVs to expand drivers of EVs will require access to sufficient
publicly available Electric Vehicle Supply Equipment ( "EVSE ") stations exist to provide for
convenient re- charging of EVs in locations remote from the drivers' homes; and
WHEREAS to encourage the development and use of EVs, the DOE is supporting the
development of a large publicly available EV charging infrastructure in several cities in the
United States, including the Town of Marana, through a program known as the "EV Project,"
which will provide EVSE units at publicly available locations in the United States; and
WHEREAS the Electric Transportation Engineering Corporation, doing business as
ECOtality North America, ("ECOtality") has received a grant from the DOE (the "DOE Grant ")
as part of the EV Project to install EVSE stations and to collect data relating to public use of the
EVSE stations; and
WHEREAS the data collected from publicly available EVSE and EV Project participants
will be analyzed under the DOE Grant to determine vehicle use and charging patterns in a variety
of topographies and climate conditions, to evaluate the effectiveness of the charge infrastructure
deployed under the EV Project, and to support the future deployment of EV infrastructure in
other regions; and
WHEREAS the Town has a long- standing commitment to resource conservation and has
been an active participant in energy conservation, energy efficiency and environmental
preservation and is committed to protecting the environment and providing a sustainable future
for its residents; and
WHEREAS the Town is interested in the outcome of the studies and other efforts being
undertaken by ECOtality as part of the DOE Grant, including the extent to which EVSE stations
on Town sites licensed to ECOtality would affect energy use by Town and the use of EVs by
members of the public; and
WHEREAS ECOtality desires to obtain a license from the Town to use certain Town -
owned lands for the purpose of installing, maintaining, operating and removing EVSE stations to
facilitate ECOtality's implementation of the DOE Grant; and
Resolution No. 2012 -13 - I - { 00029520.DOC/)
WHEREAS the Mayor and Council of the Town of Marana find that approving the
license agreement to ECOtality is in the best interests of the citizens of Marana.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, that the license agreement for electric vehicle charging stations between
the Town of Marana and Electric Transportation Engineering Corporation, doing business as
ECOtality North America, ( "ECOtality ") attached to this resolution as Exhibit A is hereby
approved, and the Mayor is authorized to execute it for and on behalf of the Town of Marana.
IT IS FURTHER RESOLVED that the Town Manager and staff are hereby directed and
authorized to undertake all other and further tasks required or beneficial to carry out the terms,
obligations, conditions and objectives of the agreement.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 6 th day of March, 2012.
ATTEST:
A ocelyn .Bronson, Town Clerk
U
Mayor Ed Honea
Resolution No. 2012 -13 -2- {00029520.1300)
APPROVED AS TO FORM:
F. Recd d RECORDER 11101II01111III 1111IIIIII11101I1IIIII11011111IIIIII10111II
DEPUTY RECORDER pit _�
` SEQUENCE: 20120690198
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SMARA �o.o y AG 03/09/2012
TOWN OF MARANA �. '/ 11:50
TOWN CLERK 94 02OtdP MAIL
11555 W CIVIC CENTER DR AMOUNT PAID: $17.00
MARANA AZ 85653
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TOWN OF MARANA LICENSE AGREEMENT FOR
ELECTRIC VEHICLE CHARGING STATIONS
THIS LICENSE AGREEMENT (this "Agreement ") is entered into by and between the
TOWN OF MARANA, an Arizona municipal corporation (the "Town "), and ELECTRIC
TRANSPORTATION ENGINEERING CORPORATION, an Arizona corporation (the "Licensee "),
dba ECOtality North America. The Town and the Licensee are sometimes collectively
referred to as the "Parties," either of which is sometimes individually referred to as a
"Party."
RECITALS
A. The Town owns certain real properties more particularly described on Exhibit A
attached to and incorporated by this reference in this Agreement (collectively the
"Town's Properties "), specific portions of which will be licensed to the Licensee
pursuant to this Agreement. The licensed portions are described and depicted on
Exhibit B and Exhibits B -1 through B-A attached to and incorporated by this reference
in this Agreement, and collectively referred to in this Agreement as the "Licensed
Premises."
B. Licensee is the owner of the Equipment and Software more particularly described
on Exhibit C attached to and incorporated by this reference in this Agreement,
(collectively the "Equipment ").
C. The United States Department of Energy (the "DOE ") has provided funding
through the American Recovery and Reinvestment Act ( "ARRA ") to accelerate the
development and production of electric vehicles ( "EVs ") in order to reduce petroleum
consumption in the United States.
D. For the use of EVs to expand drivers of EVs will require access to sufficient
publicly available Electric Vehicle Supply Equipment ( "EVSE ") stations exist to provide
for convenient re- charging of EVs in locations remote from the drivers' homes.
E. To encourage the development and use of EVs, the DOE is supporting the
development of a large publicly available EV charging infrastructure in several cities in
the United States, including the Town of Marana, through a program known as the "EV
Project," which will provide EVSE units at publicly available locations in the United
States.
F. Pursuant to the EV Project, the Licensee has received a grant from the DOE (the
"DOE Grant ") to install EVSE stations and to collect data relating to public use of the
EVSE stations. The data collected from publicly available EVSE and EV Project
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participants will be analyzed to determine vehicle use and charging patterns in a
variety of topographies and climate conditions, to evaluate the effectiveness of the
charge infrastructure deployed under the EV Project, and to support the future
deployment of EV infrastructure in other regions.
G. The Town has a long - standing commitment to resource conservation and has
been an active participant in energy conservation, energy efficiency and environmental
preservation and is committed to protecting the environment and providing a
sustainable future for its residents.
H. The Town is interested in the outcome of the studies and other efforts being
undertaken by the Licensee as part of the DOE Grant, including the extent to which
EVSE stations on the Licensed Premises would affect energy use by Town and the use
of EVs by members of the public.
I. The Licensee desires to obtain from the Town certain rights over, under and across
the Licensed Premises for the purpose of installing, maintaining, operating and
removing the Equipment to facilitate Licensee's implementation of the DOE Grant.
J. On March 6, 2012, the Marana Town Council adopted Town of Marana Resolution
No. 2012 - , approving and authorizing the Mayor to execute this Agreement.
AGREEMENT
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1. The License. Town hereby grants to Licensee a revocable license (the "License') to
use and occupy the Licensed Premises, on the terms and conditions stated in this
Agreement, to install, maintain, and operate the Equipment for the limited purpose of
implementing the DOE Grant.
1.1. Limited, Nonexclusive Rights. This License is a revocable, nonexclusive, and
non - possessory authorization for Licensee to enter upon and use the Licensed
Premises solely for the limited purposes described in paragraph 1.3 below on the
terms and conditions stated in this Agreement. The Licensee may not use the
Licensed Premises for any other purpose or in any other manner without Towns
prior written consent. This License in no way restricts Towns use or conveyance of
the Licensed Premises, any interest in it, or any improvements on it, or Town's use
of the Licensed Premises in any manner not inconsistent with the License. This
License is not intended to create or convey to Licensee an interest in real property,
and may not be recorded without Towns prior written permission.
1.2. Rights of Others. Nothing in this License shall be construed as Town's
representation, warranty, approval, or consent regarding rights in the Licensed
Premises held by other parties, and Licensee is responsible for ascertaining the
rights of all third parties in the Licensed Premises and obtaining their consent to the
activities described in this License as necessary or appropriate. The Licensee agrees
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to obtain, at its sole expense, such other licenses, permits, consents and agreements
as may be required to address the rights of others by other appropriate agreements,
easements, privileges or other rights, whether recorded or unrecorded, and shall
make its own arrangements with holders of such prior rights.
1.3. Scope of License; Permitted Uses. During the term of this Agreement, the
Licensee shall have reasonable access to the Licensed Premises for the limited
purpose of installing, maintaining, using, operating, repairing, and removing the
Equipment. The Licensee may not use the Equipment located on the Licensed
Premises for any purpose other than to provide for EV charging and to collect data
relating to the use of the EVSE. The Licensee may not display any logo,
advertisement, or other information on the Equipment, other than instructions
regarding the operation and use of the Equipment, without Town's prior written
approval.
1.4. Condition of Premises. The Licensee agrees to accept the Licensed Premises
"As Is," without warranty of any kind, express or implied. The Licensee
acknowledges that the Town is not obligated to construct or install any
improvements or facilities of any kind on the Licensed Premises. The Licensee must
use commercially reasonable efforts to maintain the Licensed Premises and any
Equipment installed on the Licensed Premises in a condition satisfactory to the
Town, including the removal of graffiti and other unsightly, dangerous or offensive
conditions from the Equipment and the Licensed Premises. During the term of this
Agreement, the Licensee will have primary and ultimate responsibility for
maintaining the condition of the Licensed Premises at the Licensee's sole expense,
but the Town will cooperate with the Licensee to implement appropriate, mutually
agreed upon procedures to assure that the Licensed Premises are maintained in a
condition that is satisfactory to both the Town and the Licensee.
1.5. Town Energy Use Monitor. Each EVSE monitors the energy used and
dispensed to customers. The Licensee shall give the Town the capability to access
data from a portal to monitor each EVSE's energy use.
1.6. Condition of Licensee's Equipment. During the term of this Agreement, the
Licensee shall maintain the Equipment in a reasonable, safe and operable condition
at all times when the Equipment is installed on the Licensed Premises. The Town
will have no right or responsibility to repair, maintain, or operate the Equipment.
The Town will cooperate with the Licensee to implement appropriate, mutually
agreed upon measures to assure that the Equipment is maintained in operable
condition and that if the Equipment is damaged or becomes inoperable that the
Licensee is promptly notified. The Licensee shall repair or replace, at the Licensee's
option and at the Licensee's sole expense, the Equipment or parts or components of
it as the Licensee deems necessary and appropriate.
1.7. Environmental Hazards. The Licensee shall not use or store, or permit to be
used stored, on the Licensed Premises, gasoline or petroleum products, hazardous
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or toxic substances or flammable materials, herbicides, pesticides, fungicides,
algaecides. The Licensee shall not produce, locate, transport, store, treat, discharge,
dispose of, or release any substance regulated under any local, state or federal
environmental protection law or regulation upon or under the Licensed Premises.
1.8. Waste, Nuisance. The Licensee shall not commit or suffer to be committed any
waste or impairment of the Licensed Premises, or any use or activity that constitutes
a nuisance.
1.9. Compliance with Laws. The Licensee shall comply with all applicable federal,
state, municipal and local laws, and the rules, orders, regulations and other legal
requirements, including laws and regulations relating to occupational safety and
health and environmental protection, and all orders, writs, judgments, injunctions,
decrees or awards of any court or governmental authority with jurisdiction over the
Licensee or the Licensed Premises. The Licensee shall promptly obtain and shall
maintain in effect throughout the term of this Agreement all licenses, permits,
authorizations, registrations, rights and franchises necessary to conduct the actions
required or permitted by this Agreement. The Licensee shall not encourage or
permit any use in or upon the Licensed Premises in violation of any applicable
federal, state or local laws, statutes, rules or regulations.
1.10. Compliance with Town Requirements. Any use made of the Licensed Premises
pursuant to this License, and any construction, maintenance, repair, or other work
performed thereon by the Licensee, including the installation and removal of any
article or thing, shall be accomplished in a manner satisfactory to the Town.
1.11. Structures. The Licensee shall not place or construct upon, over or under the
Licensed Premises any installation or structure of any kind or character that is not
expressly authorized in this Agreement or in writing signed by a duly authorized
representative of the Town.
1.12. Alterations; Damage; Restoration. The Licensee shall not alter the Licensed
Premises without obtaining the prior written consent of the Town and, if applicable,
any other person or entity having an interest in or right to use or occupy the
Licensed Premises. The Licensee shall bear all costs and expenses associated with
performing any alterations to the Licensed Premises, including without limitation
any and all costs of construction and any increased operating costs resulting from
the alterations. The Licensee shall not alter, destroy, displace or damage the
Licensed Premises or any neighboring property in the exercise of the privileges
granted by this Agreement without the prior written consent of the Town and any
other affected landowner, and the express agreement of the Licensee promptly to
replace, return, repair and restore the Licensed Premises or any neighboring
property to a condition satisfactory to the Town and any other affected landowner
upon demand, and at the Licensee's sole cost and expense.
1.13. Operation and Use of the Equipment. The Licensee shall confine activities on
the Licensed Premises strictly to those necessary for the enjoyment of the activities
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licensed by this Agreement. The Licensee shall not mar or impair the appearance of
the Licensed Premises, obstruct access to it, interfere with the transaction of the
Town's business and the convenience of the public, or jeopardize the safety of
persons or property, or cause justifiable public criticism.
1.14. Expense. Any cost, expense or liability connected with or in any manner
incident to the granting, exercise, enjoyment, or relinquishment of this License shall
be assumed and paid or discharged by the Licensee. Such costs shall include, but
shall not be limited to, costs to install or remove the Equipment, costs to install
electricity or other power supplies to serve and operate the Equipment, and costs to
keep the Equipment free of graffiti and debris.
1.15. Assignment. The Licensee shall not assign this Agreement and shall not sub-
license all or any portion of the Licensed Premises, and any purported assignment or
sub - license by the Licensee is void. This License does not confer on or convey to the
Licensee any possessory interest in, any right to exclusive possession or occupancy
of, or any right of quiet enjoyment of the Licensed Premises. The privileges granted
to the Licensee by this Agreement are personal to the Licensee and may not be
assigned or transferred to any other person, firm, corporation, or other entity
without the prior, express and written consent of the Town.
1.16. Cancellation for Conflict. This License is subject to cancellation by the Town
in certain instances involving conflicts of interest, as set forth in Arizona Revised
Statutes Section 38 -511, as amended.
1.17. Responsibility for Others. The Licensee shall be responsible for the conduct
and discipline of its employees, contractors, subcontractors, invitees, licensees, and
other persons entering upon or using the Licensed Premises pursuant to this
Agreement.
1.18. Subordination. This Agreement and the License granted in it are subject and
subordinate to the terms of all bond covenants, ground leases, superior leases,
mortgages, deeds of trust, other security instruments, and any other prior rights and
matters of record now or hereafter affecting the Town's interest in the Licensed
Premises.
2. Effective Date; Term of License. This Agreement is effective on the signature date of
the last Party to sign this Agreement. The License granted by this Agreement shall
become effective as of December 1, 2011 (the "Commencement Date "), and shall
automatically expire and terminate on December 31, 2012 unless sooner terminated as
provided for in this Agreement or unless otherwise agreed in a writing signed by the
Parties.
3. EVSE Access Fees. The Licensee may charge fees for the use of the Equipment in
amounts and at rates set by the Licensee consistent with its obligations under the DOE
Grant and any and all other applicable laws and regulations.
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3.1. Transaction Privilege Taxes. The Licensee shall be responsible for payment of
any and all applicable transaction privilege taxes for fees and rates charged for EVSE
access.
4. Consideration. As consideration for the License, the Licensee agrees to pay the
Town as follows:
4.1. Initial Payment. The Licensee shall pay the Town $1.00 upon execution of this
Agreement.
4.2. Quarterly Payment. The Licensee shall pay the Town the Energy Cost plus
50% of the net revenues received by the Licensee from access fees charged at the
Licensed Premises (the "Quarterly Net Revenues ").
4.3. Time of Quarterly Payment. Quarterly Net Revenues shall be paid quarterly
within 30 days of the end of each calendar quarter.
4.4. Calculation of Quarterly Payment. Quarterly Net Revenues shall be the sum of
the Energy Cost and half of the Quarterly Net Revenues, calculated as follows:
4.4.1. Energy Cost. The Lessee shall pay the Town's direct cost of electricity
used during the calendar quarter at all facilities licensed under this Agreement
(the "Energy Cost ").This cost shall be determined based on the energy use data
from the EVSE portals referenced in paragraph 1.5 above.
4.4.2. Half of Quarterly Net Revenues. The Lessee shall pay the Town 50% of the
difference between (i) the total EVSE access fees received by the Lessee from the
use of the Equipment on the Licensed Premises during the calendar quarter and
(ii) the Energy Cost.
5. Surrender; Removal of the Equipment. On the expiration or any earlier termination of
this Agreement, the Licensee shall vacate the Licensed Premises and surrender
possession of the Licensed Premises to the Town.
5.1. The Town's Option to Retain the Equipment upon Expiration of the Term. Upon
the expiration of the Term, the Town, in its sole and absolute discretion, may elect to
retain the Equipment. The Town shall notify the Licensee in writing not less than 30
days prior to the expiration of this Agreement if the Town desires to retain the
Equipment on some or all of the Licensed Premises. If the Town fails to deliver the
written notice within the 30 -day period, the Town will be deemed not to have
elected to retain the Equipment at the Licensed Premises. If the Town elects to retain
the Equipment installed at some or all of the Licensed Premises, the Town shall
thereby acquire from Licensee all rights, title, and interest in and to the Equipment
and to the software necessary to operate it at no additional cost, and the Licensee
agrees to execute and deliver to the Town such documents as the Town's attorney
may reasonably request to evidence the transfer of title.
5.2. Removal of the Equipment by the Licensee upon Expiration of the Term. Unless the
Town elects to retain the Equipment as described in subparagraph 5.1 above, the
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Licensee shall remove (at the Licensee's sole cost and expense) any or all of the
Equipment, and shall restore the Licensed Premises to a safe and reasonable
condition, as more specifically described in subparagraph 5.4 below. Should the
Town elect to continue ECOtality Blink Network and Equipment support, following
the Term or earlier termination thereof, such additional services shall be subject to a
new written agreement to be entered into between the Parties.
5.3. Removal of the Equipment by Town. If Town timely notifies Licensee of Towns
election to have Licensee remove the Equipment from the Licensed Premises,
Licensee will promptly remove the Equipment and restore the condition of Licensed
Premises as provided in subparagraph 5.4 below. If Licensee does not remove the
Equipment and restore the condition of the Licensed Premises within said ninety
day period, Town may cause the Equipment to be removed and the condition of the
Licensed Premises restored, and may recover from Licensee all expenses reasonably
incurred in connection with such removal and restoration. Licensee agrees to pay all
expenses of removal promptly upon receipt of demand for such payment. In
addition, the Equipment will be deemed abandoned by Licensee and title shall
automatically be vested in Town, which may use or dispose of the Equipment in its
sole discretion.
5.4. Restoration. Upon expiration or termination of the License and removal of the
Equipment Licensee will, at Licensee's sole expense and to Towns satisfaction,
restore the affected portions of the Licensed Premises (surface and subsurface) to the
condition they were in on the Commencement Date, ordinary wear and tear, fire and
other casualty excepted, except as specifically described on Exhibit D attached hereto.
6. Termination. This Agreement and the License may be terminated by either Party,
in that Party's sole discretion, for any reason or no reason, upon delivery of 30 days'
written notice of termination to the other Party, in the manner provided in paragraph 10
below.
7. Use of the Equipment by the Town.
7.1. Software License. During the term of this Agreement and for any additional
period the Town uses the Equipment after termination in accordance with
paragraph 5.1 above, the Licensee grants to the Town a non - exclusive and non-
transferable license, to use the Licensee's software in the form in which it is
embedded in the Equipment on the delivery date for use in conjunction with other
parts of the Equipment on the condition that the Equipment shall be used for its
intended purpose only. Nothing contained in this paragraph shall be construed as
an assignment or transfer of any copyright, design right or other intellectual
property rights in such software, all of which rights are owned by the Licensee.
7.2. Limitation of Licensee's Liability. The Licensee makes no warranty or
representation, expressed, implied, oral or statutory, to the Town or any third party,
with respect to the Software or the Equipment, including, without limitation, any
warranty, condition or representation: (a) of merchantability, fitness for a particular
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purpose, satisfactory quality, or arising from a course of dealing, usage, or trade
practice; (b) that the products will be free from infringement or violation of any
rights, including intellectual property rights of third parties; or (c) that the operation
of any software supplied will be uninterrupted or error free.
8. Indemnification. Licensee shall indemnify, defend, save and hold harmless the
Town of Marana and its officers, officials, agents, and employees (collectively referred
to as the "Town') from and against any and all claims, actions, liabilities, damages,
losses, or expenses (including court costs, attorneys' fees, and costs of claim processing,
investigation and litigation) (hereinafter referred to as "Claims ") for bodily injury or
personal injury (including death), or loss or damage to tangible or intangible property
caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or
omissions of the Licensee or any of its owners, officers, directors, agents, employees or
contractors, arising out of or related to the Licensee's occupancy and use of the Licensed
Premises. It is the specific intention of the Parties that the Town shall, in all instances,
except for Claims arising solely from the negligent or willful acts or omissions of the
Town, be indemnified by the Licensee from and against any and all Claims. The
Licensee shall be responsible for primary loss investigation, defense and judgment costs
where this indemnification is applicable. In consideration for the use and occupancy of
the Licensed Premises, the Licensee agrees to waive all rights of subrogation against the
Town, its officers, officials, agents and employees for losses arising from the use,
occupancy or condition of the Licensed Premises.
9. Insurance Requirements. The Licensee shall procure and maintain for the duration
of this Agreement insurance against claims for injury to persons or damage to property
which may arise from or in connection with this Agreement. These insurance
requirements are minimum requirements and in no way limit the indemnity covenants
contained in this Agreement. The Town does not warrant that the minimum limits
contained in this paragraph are sufficient to protect the Licensee from liabilities that
may arise out of this Agreement. The Licensee is free to purchase such additional
insurance as the Licensee determines necessary. An excess liability policy or umbrella
liability policy may be used to meet the minimum liability requirements provided that
the coverage is written on a "following form" basis. The Town shall be named as
"additional insured" on all insurance policies providing coverage related to this
Agreement to the full limits of liability purchased by the Licensee. Each insurance
policy required by this Lease must be in effect at or prior to commencement of this
License and remain in effect for the duration of the License.
9.1. Commercial General Liability - Occurrence Form. Policy shall include bodily
injury, property damage and broad form contractual liability coverage.
• General Aggregate .......... ............................... .....................$2,000,000
• Products - Completed Operations Aggregate ................$1,000,000
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• Personal and Advertising Injury ................. .....................$1,000,000
• Each Occurrence ............... ............................... ....................$1,000,000
• Fire Damage (Damage to Rented Premises) ......................$100,000
9.2. Primary Insurance. The Licensee's insurance coverage shall be primary
insurance and non - contributory with respect to all other available sources.
9.3. Notice of Cancellation. The Licensee shall provide the Town notice within two
business days after the Licensee becomes aware that any insurance policy referenced
in this Agreement is suspended, voided or cancelled for any reason, or if the
coverage amounts are reduced in any way. The Licensee's notice to the Town shall
be mailed, emailed, hand delivered or sent by facsimile transmission to the address
set forth in paragraph 10 below.
9.4. Acceptability of Insurers. All insurance referenced in this Agreement shall be
procured by the Licensee from insurers duly licensed or authorized to do business in
the state of Arizona and with an "A.M. Best" rating of not less than B+ VI. The Town
does not warrant that this minimum insurer rating is sufficient to protect the
Licensee from potential insurer insolvency.
9.5. Verification of Coverage. The Licensee shall furnish the Town with certificates
of insurance (ACORD form or equivalent approved by the Marana Town Attorney)
as required by this Agreement. The certificates for each insurance policy shall be
signed by a person authorized by that insurer to bind coverage on its behalf. All
certificates and any required endorsements shall be received and approved by the
Town before the License commences. All certificates required by this Agreement
shall be sent directly to the Marana Town Attorney at the address set forth in
paragraph 10 below. The Town reserves the right to require the Licensee to provide
complete, certified copies of all insurance policies and endorsements required by
this Agreement at any time.
9.6. Modification. Any modification or variation from the insurance requirements
in this Agreement shall have prior approval from the Marana Town Attorney,
whose decision shall be final. Modification or variation of insurance requirements
shall not require a formal amendment of this Agreement, but may be made by
administrative action.
10. Notices. All notices or other communications required or permitted to be
provided pursuant to this Agreement shall be in writing and may be hand delivered,
sent by United States Mail, postage prepaid, or delivered by a nationally recognized
courier service. Any notice will be deemed to have been given when delivered if hand
delivered, when received if sent by courier, or 48 hours following deposit in the United
States Mail. Notices shall be addressed as follows:
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To the Town: Town of Marana
Attention: Town Manager
11555 West Civic Center Drive
Marana, Arizona 85653
with a required copy to: Town of Marana
Attention: Town Attorney
11555 West Civic Center Drive
Marana, Arizona 85653
To the Licensee: Electric Transportation Engineering Corporation,
dba ECOtality North America
430 South 2nd Avenue
Phoenix, AZ 85003 -2418
11. Governing Law. This Agreement shall be interpreted according to, and governed
by, the procedural and substantive laws of the State of Arizona.
12. Interpretation. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this
Agreement. When a reference is made in this Agreement to a paragraph, such reference
shall be to a paragraph of this Agreement unless otherwise indicated.
13. Entire Agreement. This Agreement and the exhibits and schedules referenced or
attached to it constitute the entire agreement between the Parties with respect to the
subject matter of this Agreement and shall supersede all prior agreements,
understandings and negotiations, both written and oral, between the Parties with
respect to the subject matter of this Agreement.
14. Severability. If any terms or other provision of this Agreement or the schedules or
exhibits attached to it are determined by a court, administrative agency or arbitrator to
be invalid, illegal or unenforceable, such invalidity or unenforceability shall not render
the entire Agreement invalid. Rather, this Agreement shall be construed as if it does not
contain the particular invalid, illegal or unenforceable provision, and all other
provisions of this Agreement shall nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions contemplated by this Agreement is
not affected in any manner materially adverse to either Party. Upon a determination
that any term or other provision is invalid, illegal or unenforceable, the Parties shall
negotiate in good faith to modify this Agreement to carry out the original intent of the
Parties as closely as possible in an acceptable manner to the end that the transactions
contemplated by this Agreement are fulfilled to the fullest extent permitted under
applicable law.
15. Information. Subject to applicable law and privileges, each Party covenants with
and agrees to provide to the other Party all information regarding itself and
transactions under this Agreement that the other Party reasonably believes is required
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to comply with all applicable federal, state, county and local laws, ordinances,
regulations and codes.
16. Further Agreements. The Parties shall execute or cause their applicable affiliates to
execute such additional agreements between the Parties and /or their respective
affiliates as may be reasonably necessary to effectuate the intent of this Agreement.
17. Binding Effect. This Agreement shall inure to the benefit of and be binding upon
the Parties and their respective legal representatives and successors, and nothing in this
Agreement, express or implied, is intended to confer upon any other person any rights
or remedies of any nature whatsoever under or by reason of this Agreement.
18. Amendment and Modification. This Agreement may be amended at any time by
mutual consent of the Town and the Licensee, evidenced by an instrument in writing
signed on behalf of each of the Parties.
19. Default; Remedies. The actual or prospective failure of either Party to satisfy any
material obligation under this Agreement, and the breach of any material
representation or warranty stated in this Agreement, shall be an event of default. If a
Party's default continues without cure for 30 days after delivery of a written notice of
default in the manner provided in paragraph 10 above, the other Party shall be entitled
to terminate this Agreement for cause, and to all other remedies available at law or in
equity, including damages and specific performance. The rights and remedies set forth
in this Agreement are not intended to be exhaustive and the exercise by either Party of
any right or remedy does not preclude the exercise of any other rights or remedies that
may now or subsequently exist in law or equity or by statute or otherwise.
20. Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or delay on the
part of either Party in the exercise of any right under this Agreement shall impair that
right or be construed as a waiver of, or acquiescence in, any breach of any
representation, warranty or agreement set forth in this Agreement, nor shall any single
or partial exercise of any right preclude other or further exercise of that right or of any
other right.
21. Authority. Each Party represents to the other Party that (a) it has the corporate or
other requisite power and authority to execute, deliver and perform this Agreement,
(b) the execution, delivery and performance of this Agreement by it have been duly
authorized by all necessary corporate or other actions, (c) it has duly and validly
executed and delivered this Agreement and (d) this Agreement is its legal, valid and
binding obligation, enforceable against it in accordance with this Agreement's terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and general equity principles.
22. Third Party Beneficiaries. None of the provisions of this Agreement shall be for the
benefit of or enforceable by any third party, including any creditor of any Party. No
third party shall obtain any right under any provision of this Agreement or shall by
reasons of any such provision make any claim in respect of any liability (or otherwise)
100028"5.DOC / 2} Town of Marana EV Charging Stations License Agreement 2/8/201210:53 AM
Page 11 of 17
against either Party. Notwithstanding the foregoing, it is understood that the Licensee's
rights under this Agreement shall inure to the benefit of Licensee's affiliates and their
officers, directors and employees.
23. Attorneys' Fees. If a suit, action, arbitration or other proceeding of any nature
whatsoever is instituted in connection with any controversy arising out of this
Agreement or to interpret or enforce any rights under this Agreement, the prevailing
Party shall be awarded its reasonable attorney fees, and costs and expenses incurred.
24. Iran and Sudan. Pursuant to A.R.S. §§ 35- 391.06 and 35- 393.06, the Licensee
certifies that it does not have a scrutinized business operation, as defined in A.R.S. §§
35 -391 and 35 -393, in either Iran or Sudan.
25. Confidentiality and Data Security. Personal identifying information, financial
account information, or restricted Town information, whether electronic format or hard
copy, must be secured and protected at all times to avoid unauthorized access. At a
minimum, the Licensee shall encrypt and /or password - protect electronic files,
including data saved to laptop computers, computerized devices or removable storage
devices.
25.1. Destruction. When personal identifying information, financial account
information, or restricted Town information, regardless of its format, is no longer
necessary, the information must be redacted or destroyed through appropriate and
secure methods that ensure the information cannot be viewed, accessed, or
reconstructed.
25.2. Notification. If data collected or obtained by the Licensee in connection with
this Agreement is believed to have been compromised, the Licensee shall
immediately notify the Marana Town Attorney. The Licensee shall reimburse the
Town for any costs incurred by the Town to investigate potential breaches of this
data and, where applicable, the cost of notifying individuals who may be affected by
the breach.
25.3. Incorporation into Subcontracts. The Licensee shall incorporate the
requirements of this paragraph 25 shall be incorporated into all subcontractor/
subconsultant agreements entered into by the Licensee. Violation of this
paragraph 25 shall be deemed to cause irreparable harm that justifies injunctive
relief in court. A violation of this paragraph 25 may result in immediate termination
of this Agreement without notice.
25.4. Survival after Termination. The Licensee's obligations under this
paragraph 25 shall survive the termination of this Agreement.
26. Data Collection for DOE Grant Purposes. During the term of this Agreement, the
Town will allow the Licensee reasonable access to the Equipment, the Licensed
Premises, and existing sources of electrical energy as reasonably necessary to enable the
Licensee to collect and transmit data regarding public use of the Equipment as may be
required by the DOE Grant.
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Page 12 of 17
27. Miscellaneous. Time is of the essence with respect to the performance of every
provision of this Agreement in which time of performance is a factor. Except as
expressly provided in this Agreement to the contrary, when this Agreement requires a
Party to do something, it shall do so at its sole cost and expense without right of
reimbursement from the other Party. Whenever one Party's consent or approval is
required to be given as a condition to the other Party's right to take any action pursuant
to this Agreement, unless another standard is expressly set forth, consent or approval
shall not be unreasonably withheld, conditioned or delayed.
28. Counterparts. This Agreement may be executed in separate counterparts, each of
which shall be deemed an original and all of which, when taken together, shall
constitute one and the same agreement.
IN WITNESS OF this Agreement each of the Parties has caused this Agreement to be
duly executed as of the last Party signature date set forth below.
THE TOWN: THE LICENSEE:
I TOWN OF MARANA, an Arizona municipal ELECTRIC TRANSPORTATION ENGINEERING
corporation CORPORATION, an Arizona corporation
By: G / t B
.-
Y
Ed Ho ea, Mayor Tom Jacobson, irector of Sales
i ATTEST:
3
T wn C k
APPROVED AS TO FORM:
'i
T wn Att ey
STATE M tvg& Ss.
County of Axr 1
.The foregoing instrument was acknowledged before me this lyr of
2012 by Tom Jacobson, Director of Sales of ELECTRIC
TRANSPORTA N ENGINEERING CORPORATION, an Arizona corporation, doing business
as ECOtality North America, on behalf of the corporation.
OFFICIAL SEAL
m PffMN6ER
Pyblic Stote of Arizona
PA ee%lj
N1Y
'MX �aainii °Expires Mor. 15 2015 Notary Public
100028445.DOC / 2} Town of Marana EV Charging Stations License Agreement 2/8/201210:53 AM
Page 13 of 17
EXHIBIT A
Description of the Town's Properties
Location No. Property Address # of EVSE
1. Ora Mae Harn Park -13250 N. Lon Adams Road, 85653 -1 Pedestal
2. Crossroads at Silverbell District Park - 7548 N. Silverbell Road, 85653 - 4 Pedestals
3. Marana Operations Center - 7548 N. Silver Bell Road, 85653 - 2 Pedestals
Town of Marana EV Charging Stations License Agreement
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EXHIBIT B
Description and /or Depiction of the Licensed Premises
Location No. 1- Ora Mae Harn Park
EXHIBIT B -1
Town of Marana EV Charging Stations License Agreement
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Location No. 2 - Crossroads at Silverbell District Park - Locations 1 & 2
Town of Marana EV Charging Stations License Agreement
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Town of Marana EV Charging Stations License Agreement
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EXHIBIT C
Description of the Equipment and Software to be installed on the Licensed Premises
B1inkTm Level 2 Electric Vehicle Supply Equipment
B1inkTM Level 2 Electric Vehicle Supply Equipment (EVSE) provides the transfer of electrical
energy from the utility to the vehicle. Level 2 charging (240 volt AC input) is the primary and
preferred method for charging vehicles in residential and commercial facilities. The Blink EVSE
design provides intelligent, user - friendly features to easily and safely charge electric vehicles.
Specifications, Standards, and Certifications
-22° F ( -30° C) to +122° F ( +50
Mounting Wall -mount or pedestal
16" ,D
uailable)
Blink Level 2 EVSE complies with the following standards and certifications:
• SAE J 1772- compliant
• NEC Article 625 electric vehicle charging system
• UL and ULc to 2594
Town of Marana EV Charging Stations License Agreement
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Blink"m — Simply Smart Pedestal Design
Benefits of Blink's unique binary design:
1 Dramatic, timeless, stylish appearance
2 Ease of installation
3 Specified advertising space on pedestal
4 Convenient cable management for long reach and storage between uses
5 Connector holster for protection and storage
6 Intuitive connector docking
7 Selective height design for convenient compliance with ADA requirements
8 360° beacon light for easy way finding
Town of Marana EV Charging Stations License Agreement
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Figure 1— Blink Level 2 Pedestal EVSE