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HomeMy WebLinkAboutC33701A-C Amend EV Charging StationsContract No. C33701A Contract No. C33701 B Contract No. C33701 C Contract No. C33701 E STAFF REPORT CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT MEETING DATE: July 11, 2019 PREPARED BY: Emily Roethler, Project Manager REQUEST: Approve the first contract amendments to Contract No. C33700A, C3370013, C33700C, and C33700E, Electric Vehicle Program Agreements for the Electric Vehicle Charging Stations. Recommendation By Minute Motion: Approve Amendment No. 1 to Contract No. C33700A, C3370013, C33700C, and C33700E, Electric Vehicle Program Agreements for the Electric Vehicle Charging Stations; and 2. Authorize the Mayor to execute the subject Contract Amendments. Strategic Plan Obiective The Energy and Sustainability Priority 2 goal to promote greater usage of more sustainable materials is highlighted with this amendment. The Priority 2 goal helps to reduce air pollution and expands the availability of alternative fuel options throughout the community. Backqround City Council previously authorized public/private agreements between the City of Palm Desert and Desert Community College District (COD) (C33700A), PRU/Desert Crossing, LLC. (C33700B), Westfiled, LLC. (C33700C), and The Regents of the University of California/University of California, Riverside (UCR) (C33700E), each identified as "Participant," for the installation and use of an electric vehicle charging station located at respective locations throughout Palm Desert. The initial terms of these agreements are from its "Effective Date" to the five (5) year anniversary of its "Operational Date". Under these agreements, the Participants agree to supply the location and be responsible for all costs and expenses related to and associated with operating the charger including, but not limited to, electricity. Additionally, Participants grant the City access to the charger(s) to perform inspections and July 11, 2019 - Staff Report Approve 1st Amendments to Contracts for Electric Vehicle Charging Stations Page 2 of 2 maintenance as required to keep the charging station active. These amendments will extend the original agreements and the terms and conditions an additional five (5) years. Fiscal Analvsis While there is no cost associated with extending these agreements, the City is responsible to pay for the maintenance of the existing charging stations. The annual maintenance fee is $4,480. LEGAL REVIEW DEPT. REVIEW FINANCIAL CITY MANAGER REVIEW " �, N/A l�G� %t �G Robert W. Hargreaves City Attorney PARTICIPANT A PARTICIPANT B Tom Garcia, P.E. Director of Public Works 0�C eet M. Moore Lauri Aylaian Director of Finance City Manager Desert Community College District (COD) PRU/Desert Crossing, LLC PARTICIPANT C: Westfiled, LLC PARTICIPANT E: The Regents of the University of California/University of California, Riverside (UCR) ATTACHMENTS: Contract No. C33700A Contract No. C33701A, Amendment No. 1 to Contract No. C33700A Contract No. C33700B Contract No. C33701 B, Amendment No. 1 to Contract No. C33700B Contract No. C33700C Contract No. C33701 C, Amendment No. 1 to Contract No. C33700C Contract No. C33700E Contract No. C33701 E, Amendment No. 1 to Contract No. C33700E N OContract No. C33700A CITY OF PALM DESERT ELECTRIC VEHICLE PROGRAM MASTER AGREEMENT This Electric Vehicle Program Master Agreement (this "Agreement'), effective as of April 24, 2014 (the "Effective Date"), is entered into by and between the City of Palm Desert ("Palm Desert"), and Desert Community College District, a Community College ("Participant'). Palm Desert and Participant are at times referred to individually as a "Party" and collectively as the "Parties." RECITALS A. WHEREAS, Palm Desert has received a grant from the Mobile Source Air Pollution Reduction Review Committee ("MSRC") (the "Grant") to undertake the deployment of electric vehicle charging infrastructure (the "EV Project") and B. WHEREAS, Palm Desert desires to deploy electric vehicle Chargers at strategic locations as part of the EV Project, including commercial and university locations; and C. WHEREAS, Participant owns and operates College of the Desert located at 43-500 Monterey Avenue, Palm Desert, CA 92260 and desires to participate in the EV Project upon the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the mutual undertakings and covenants herein, and for such other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties -hereby agree and covenant as follows: 1. INSTALLATION 1.1 Expressly contingent upon Palm Desert's sole discretion in determining that it has sufficient funds through the Grant and other Palm Desert sources of funding and upon the terms and conditions set forth herein, Palm Desert agrees to provide to Participant one (1) Level 2 Electric Vehicle Supply Equipment Charger ("Charger(s)") and to install such Charger(s) at Participants property located at 43-500 Monterey Avenue, Palm Desert, CA 92260 (the "Site"), as further described and depicted on Exhibit "A" attached hereto and incorporated by this reference. Palm Desert grants Participant the right to use, and authorize its customers to use, the Charger(s) pursuant to the terms of this Agreement. 1.2 Palm Desert shall work with Participant and contractors to schedule and complete the installation of the Charger(s). Palm Desert shall not be liable for any failure to .install the Charger(s) within any specific time frame due to any circumstances, including but not limited to funding, manufacturing, government permitting, UL certification, electric box or transformer upgrades, unusual installation conditions, inspection delays or other obstacles. 1.3 Palm Desert will bear all direct costs associated with the design, construction, purchase, delivery, signage, installation and initial setup of the Charger(s) at the Site, based on available funding to perform necessary work to install the Charger(s). Q'rr► Contract No. C33700A 1.4 Except as otherwise required pursuant to Sections 2.6 under this Agreement, Participant agrees during the Term of this Agreement and any renewal thereof, and in no event less than five (5) years from the date the Charger(s) are first operational and available to the public ("Operational Date"), not to uninstall, disable, turn off, remove, or relocate the Charger(s) without prior written approval by Palm Desert unless in the case of an emergency and at the direction of Palm Desert. 1.5 Participant hereby grants Palm Desert a limited license to use and occupy the areas at the Sites where the Charger(s) are located, including but not limited access and use of its electrical panels, for the sole purpose of installing, operating and maintaining the Charger(s) in accordance with this Agreement. Palm Desert shall obtain any necessary approvals for the Charger(s) installation and electrical hook-up from third party Site owners and landlords prior to the installation of the Charger(s) and as may be required under any contract or any federal, state or local law, rule, regulation, or MSRC grant requirement applicable to the rights and obligations under this Agreement ("Applicable Law") to which Palm Desert is bound. Participant agrees to cooperate with Palm Desert in obtaining any such approval. 1.6 Participant hereby agrees to provide parking space(s), electricity, and access to the Charger(s) at the Site to accommodate customer use of the electric charging units, as further described and depicted on Exhibit "A." 2. CHARGER(S) OWNERSHIP, USE AND MAINTENANCE 2.1 All right, title and interest in and to the Charger(s), including all associated hardware, software and intellectual property rights (including, but not limited to, copyrights, patent rights, trademarks, trade secrets and trade names), as between the, Parties shall at all times remain the sole property of Palm Desert. The Charger(s) shall not be transferred, delivered, or sublet by Participant to any person or corporation, shall remain free of all levies, liens, and encumbrances, shall not be collateralized, and no security interest shall be granted therein. 2.2 Participant agrees that the Charger(s) shall be used and operated only for their intended use and only pursuant to this Agreement, and in a careful manner and in compliance with all governmental requirements. In no event shall the Charger(s) be misused or subjected to depreciation above the normal depreciation associated with the intended use thereof, or be used or operated for any illegal purpose. 2.3 Participant shall be, and hereby agrees to be, solely responsible for all costs and expenses related to and associated with operating the Charger(s), including but not limited to, all costs and expenses for electricity used and/or distributed by the Charger(s). Participant may impose a fee on customers for use of the Charger(s), including but not limited to all costs of electricity, however. Participant hereby agrees and covenants it will not impose any fee on customers for use of the Charger(s) during the period beginning on the Operational Date and ending on the one (1) year anniversary of the Operational Date. 2.4 Participant agrees and: (a) warrants that during the Term of this Agreement, and solely at its own cost and expense, Participant shall repair and maintain the Charger(s) in good working order and condition, properly serviced and repaired by a qualified and/or licensed Initial Initial contractor. OR (b) grants to Palm Desert an easement on the Site sufficient to allow Palm Desert to access the site to repair, inspect and maintain the Charger(s) in good working order and condition. Upon the condition that Participant grant such an easement, nitial Initial Palm Desert agrees to repair and maintain the Charger(s) in good working order and condition, properly serviced and repaired during the Term of this Agreement. 2 QQ Contract No. C33700A 2.5 Participant is not responsible for any third party's negligence or mistreatment (gross, criminal or otherwise) of the Charger(s) at the Site unless (a) Participant authorized such mistreatment, (b) the damages to the Charger(s) are caused by the negligence of Participant, or (c) the damages to the Charger(s) are the result of Participant failure to comply with the terms of this Agreement, including but not limited to Sections 1.4, 2.2, 2.4, and 2.6. 2.6 Participant shall: (a) regularly inspect and clean the Charger(s) and the area around the Charger(s) on the same schedule and using the same degree of care that Participant uses for its own property, fixtures and equipment, but at least daily when open for business, including removal of graffiti, posted bills, stickers or other debris, ensuring the screen and user interface is clean for customer use; (b) maintain appropriate signage after initial installation by Palm Desert that clearly and prominently identifies and, where appropriate, provides directions to the Charger(s) so that they may be easily located by drivers of electric vehicles; (c) take reasonable efforts to ensure that the Charger(s) are readily accessible for use by customers and access is not blocked by vehicles not using the Charger(s); (d) promptly repair (or report to Palm Desert under Section 2.4) any evidence of damage, defects, hazards (for example, cut or worn cables, exposed wiring, cracked connectors, damage to connector pumps), or vandalism to the Charger(s); (e) promptly repair, or report in writing and within 24 hours to Palm Desert under Section 2.4, any observed or reported tampering, operational or maintenance issues with the Charger(s); and (f) disable access to and place "Out of Service" signs on any Charger(s) with safety or operational problems that are noticed by or brought to the attention of Participant until such Charger(s) can be promptly repaired. 2.7 Software to monitor use of the Charger(s) and the amount of electricity distributed by the Charger(s) may be available through the manufacturer or a third party vendor, from time to time. Participant agrees that it is solely responsible for the determination whether or not to obtain such software for the Charger(s) and is and will be solely responsible for the costs and expenses of any such software. Participant agrees that Palm Desert does not require such software to be obtained. Notwithstanding the foregoing, in the event that Participant elects in its discretion to obtain such software, Participant hereby agrees that any information obtained by Participant related to the Charger(s) through such software which meets the definition of "Feedback" below, shall be considered Feedback subject to the terms of this Agreement. 3. TERM; TERMINATION 3.1 The term of this Agreement shall commence on the Effective Date of this Agreement and shall end on the five (5) year anniversary of the Operational Date (the `.`Term"). 3.2 Termination for Cause by Either Partv. Either Party may terminate this Agreement in its entirety for cause if the other Party or its authorized personnel (a) commit a material breach or numerous breaches which collectively constitute a material breach of this Agreement, which is not cured or capable of cure within thirty (30) days after notice of such breach; (b) has a material adverse change in the financial condition which affects or will affect the Party's performance under this Agreement; (c) files proceedings, or has proceedings filed against it, under federal bankruptcy or state insolvency statutes, and QO Contract No. C33700A a proceeding instituted against the Noticed Party is not dismissed within 30 days; or (d) has a receiver or trustee appointed for the property and assets of the Party relatedto this Agreement and the receivership is not discharged within 30 days of such appointment. 3.3 Termination in Whole or In Part for Convenience Palm Desert. In the event Palm Desert wishes to terminate this Agreement, either in whole or in part, prior to the expiration of the Term without cause and for the convenience of Palm Desert, Palm Desert shall provide Participant with a thirty (30) days prior written notice of its intent to terminate, specifying with particularity the reasons for early termination (the "Termination Notice"), and shall confer in good faith to resolve any issues that caused the Termination Notice. 3.4 Effect of Termination. (a) Upon the termination of this Agreement for cause by either Party, or for convenience of Palm Desert, Palm Desert is authorized, at its sole discretion, either (i) to enter upon the Site, with or without legal process, and take possession of and remove the Charger(s) at its own expense and perform any work required to return the Site to a safe condition, with the electricity to the Charger(s) installation location capped, the breakers turned off, and the Charger(s) anchor/mounting bolts cut flush/removed; or (ii) to provide Participant a Bill of Sale for the Charger(s) which Participant shall accept. (b) Upon the termination of this Agreement .and election of Palm Desert to provide Participant with a Bill of Sale for the Charger(s), Participant hereby expressly agrees not to uninstall, disable, turn off, remove, or relocate the Charger(s) for five (5) years from the Operational Date without prior written approval by Palm Desert unless in the case of an emergency and at the direction of Palm Desert. This Section 3.4(b) shall survive termination of this Agreement. 3.5 NEITHER PARTY SHALL, BY REASON OF THE EXPIRATION OR TERMINATION OF THIS AGREEMENT, BE LIABLE TO THE OTHER PARTY FOR COMPENSATION, INDEMNIFICATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF ANY LOSS OF PROSPECTIVE PROFITS, ANTICIPATED SALES OR GOODWILL OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS OR COMMITMENTS MADE IN CONNECTION WITH THIS AGREEMENT OR THE ANTICIPATION OF EXTENDED PERFORMANCE HEREUNDER. 4. EXPIRATION Upon the expiration of the Term of this Agreement: 4.1 If Participant is imposing a fee for use of the Charger(s), Participant shall have the option to acquire ownership of the Charger(s) installed at the Site at no cost to Participant by providing Palm Desert thirty (30) days prior written notice of intent to acquire ownership of the Charger(s). Upon timely receipt of Participant's written notice of intent to acquire the Charger(s) and upon the expiration of this Agreement, Palm Desert shall execute and deliver a bill of sale evidencing transfer of ownership of the Charger(s) to Participant; 4.2 If Participant is not imposing a fee for use of the Charger(s), and if the Charger(s) are maintained by Palm Desert pursuant to an easement granted by .Participant, Participant shall have the option to allow the Charger(s) to remain as then installed, owned and maintained by Palm Desert upon execution 'of a separate lease, maintenance, and service agreement with Palm Desert; or 4.3 Participant shall have the option to request that Palm Desert enter upon the Site and take possession of and remove the Charger(s) at Palm Desert's own expense and perform any work required to return the Site to a safe condition, with the electricity to the Charger(s) installation location capped, the breakers turned off, and the Charger(s) anchor/mounting bolts cut flush/removed. . . 4 QContract No. C33700A 5. FEEDBACK FROM OPERATION OF CHARGER(S) 5.1 "Feedback" means all information and data (whether provided in oral, written, electronic or other format) related to or generated by the installation, operation and use of the Charger(s) at the Site, received by Participant, during the Term of this Agreement. Feedback does not include any personal identification information of customers, customer credit card numbers or financial institution information, or any other information protected under the applicable privacy policies of either Party or any consumer privacy laws. 5.2 Participant agrees to use its best efforts to collect and record Feedback from customers and users of the Charger(s), their employees, their vendors, and their agents and deliver the Feedback to Palm Desert at least quarterly following Site installation. PRESS RELEASE 6.1 The Parties will cooperate with each other in the preparation of a joint press release concerning the subject matter of this Agreement. The Parties must each approve the substance of the press release in advance of publication or distribution, such consent not to be unreasonably withheld or delayed. 6.2 Neither Party will publish any official statement or undertake any activity which would demean, tarnish, or negatively affect or impact in any way the services, products, marks, and/or image of the other Party. Neither Party will engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to the other Party or the EV Program. 7. REPRESENTATIONS AND WARRANTIES 7.1 Each Party represents and warrants to the other that: (a) It is a duly incorporated or organized, validly existing and in good standing under Applicable Laws; (b) It has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) It will comply with all Applicable Laws and has obtained and will continue to obtain all licenses, authorizations, approvals, consents or permits required to carry on and conduct its business as now conducted and as contemplated by this Agreement, except where the failure to do so would not have a material adverse effect on its ability to perform its obligations hereunder, and all of such licenses, authorizations, approvals, consent and permits are in full force and effect in all material respects; (d) It will not, and shall not authorize any third party to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to other Party or the EV Program; (e) The execution, delivery and performance of this Agreement and the consummation of the rights and obligations contemplated by this Agreement have been duly authorized by the requisite corporate action on the part of such Party; and (f) The execution, delivery, and performance of this Agreement shall not: (a) conflict with, result in the breach of, or constitute an event which would, either immediately or with the lapse of time or giving of notice or both, result in a default under, or accelerate the performance required by, the terms of any agreement, document, contract, instrument or commitment to which it is a party or by which it is bound; (b) violate its articles of incorporation or bylaws; (c) conflict with or require any written consent or approval under any judgment, order, writ, decree, permit or license to which it is a party or by 5 pa Contract No: C33700A which it is bound; or (d) require the written consent or approval of any other party to any agreement, document, contract, instrument or commitment to which it is a party or by which it is bound. 8. INSURANCE 8.1 Without limiting Participant's indemnification of Palm Desert, and prior to commencement of any work, Participant 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 that is satisfactory to Palm Desert: (a) General Liabilitv Insurance. Participant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. (b) Automobile Liability Insurance. Participant 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 the Participant 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 $1,000,000 combined single limit for each accident. (c) Workers' Compensation Insurance. Participant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000). Participant shall submit to Palm Desert, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City of Palm Desert, its officers, agents, employees and volunteers. (d) Umbrella or Excess Liabilitv Insurance. Participant may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Participant shall obtain and maintain an umbrella or excess liability insurance policy with limits of not less than $4,000,000 that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer's liability. Such policy or policies shall include the following terms and conditions: (i) A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; (ii) Pay on behalf of wording as opposed to reimbursement; (iii) Concurrency of effective dates with primary policies; and (iv) Policies shall "follow form" to the underlying primary policies. (v) Insureds under primary policies shall also be insureds under the umbrella or excess policies 8.2 Proof of Insurance. Participant shall provide certificates of insurance to Palm Desert as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by Palm Desert's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with Palm Desert at all times during the term of this contract. Pahn Desert reserves the right to require complete, certified copies of all required insurance policies, at any time. 6 QContract No. C33700A 8.3 Duration of Coverage. Participant shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by Participant, his/her agents, representatives, employees or sub -consultants. 8.4 Palm Desert's Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Palm Desert has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by Palm Desert will be promptly reimbursed by Participant, or Palm Desert will withhold amounts sufficient to pay premium from Participant payments. In the alternative, Palm Desert may cancel this Agreement. 8.5 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 Palm Desert's Risk Manager. 8.6 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Participant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Participant hereby waives its own right of recovery against Palm Desert and shall require similar written express waivers and insurance clauses from each of its sub -consultants. 8.7 Enforcement of Contract Provisions (non estoppel). Participant acknowledges and agrees that any actual or alleged failure on the part of Palm Desert to inform Participant of noncompliance with any requirement imposes no additional obligations on Palm Desert nor does it waive any rights hereunder. 8.8 Specifications 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. 8.9 Notice of Cancellation. Participant agrees to oblige its insurance agent or broker and insurers to provide to Palm Desert with a thirty (30) day notice of cancellation (except for nonpayment for which a ten [10] day notice is required) or nonrenewal of coverage for each required coverage. 8.10 Additional Insured Status. General liability policies shall provide, or be endorsed to provide, that Palm Desert and its officers, officials, employees, and agents shall be additional insureds under such policies. This provision shall also apply to any excess liability policies. 8.11 Palm Desert's Right to Revise Snecifications. Palm Desert reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Participant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Participant, Palm Desert and Participant may renegotiate Participant's compensation. 8.12 Self -Insured Retentions. Any self -insured retentions must be declared to and approved by Palm Desert. Palm Desert 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 specifications unless approved by Palm Desert. 7 Contract No. C33700A 8.13 Timelv Notice of Claims. Participant shall give Palm Desert prompt and tnnely notice of claims made or suits instituted that arise out of or result from Participant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 8.14 Additional Insurance. Participant 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. 9. INDEMNIFICATION 9.1 This Section 9 shall survive the expiration or termination of this Agreement. 9.2 Participant shall defend, indemnify and hold MSRC and Palm Desert and its affiliates, and any and all of its and their respective officers, directors, shareholders, employees, agents and representatives, and any and all of its and their assigns, successors, heirs and legal representatives, harmless from and against any and all claims, demands, litigation, settlements, judgments, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees) arising directly or indirectly out of or in connection with a breach of any representation, warranty or covenant of Participant hereunder or the negligent and/or willfully wrongful act or omission of Participant in performance of its obligations hereunder. Palm Desert agrees to promptly notify Participant of any written claim or demand for which Participant is responsible hereunder. 9.3 Palm Desert shall defend, indemnify and hold Participant and its affiliates, and any and all of its respective officers, directors, shareholders, employees, agents and representatives, and any and all of its assigns, successors, heirs and legal representatives, harmless from and against any and all claims, demands, litigation, settlements, judgments, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees) arising directly or indirectly out of or in connection with a breach of any representation, warranty or covenant of Palm Desert hereunder or the grossly negligent and/or willfully wrongful act or omission of Palm Desert in performance of its obligations hereunder. Participant agrees to promptly notify Palm Desert of any written claim or demand for which Participant is responsible hereunder. 10. LIMITATION OF LIABILITY 10.1 EXCEPT FOR THE WARRANTIES STATED HEREIN FOR PARTICIPANT, NO WARRANTY, CONDITION OR REPRESENTATION, EXPRESSED, IMPLIED, ORAL OR STATUTORY, IS PROVIDED TO PARTICIPANT OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY, CONDITION OR REPRESENTATION: (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) THAT THE CHARGER(S) 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. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. PARTICIPANT'S SOLE AND EXCLUSIVE REMEDIES HEREUNDER AND THE ONLY LIABILITY OF PALM DESERT IS EXPRESSLY LIMITED TO THE TERMS OF THE AGREEMENT. PALM DESERT SHALL NOT BE LIABLE TO PARTICIPANT, OR ANY THIRD PARTY, FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, INCLUDING WITHOUT LIMITATION, LITIGATION COSTS, LOSS OF DATA, PRODUCTION OR PROFIT ARISING FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. FOR PURPOSES OF THIS 8 aContract No. C33700A PROVISION, PALM DESERT INCLUDES PALM DESERT'S' DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, SUBCONTRACTORS AND SUPPLIERS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY CLAIMS FOR DAMAGES BY EITHER PARTY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ACTUAL RECOVERIES UNDER SUCH PARTY'S INSURANCE POLICIES. 11. GOVERNING LAW 11.1 Any claim or controversy arising out of or related to this Agreement, including without limitation warranty claims, shall be governed by the internal laws of the State of California, without regard to conflicts of law principles. Venue for any cause of action relating to this Agreement shall be the state and federal courts located in Riverside County, California. 12. MISCELLANEOUS PROVISIONS 12.1 This Agreement does not make either Party the agent or legal representative of the other for any purpose and neither Party will transact any business or make any promise or representations in the name of, or on behalf of, the other without prior written approval. 12.2 • Grant. Any and all terms of the Grant received by Palm Desert from MSRC which impact the relationship between Palm Desert and Participant, but not otherwise incorporated in this Agreement, are hereby incorporated herein by this reference. Participant hereby agrees to abide by any and all such terms of the Grant, if any. 12.3 Assignment and Enforcement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Agreement may not be assigned by either Party and any attempted assignment is void, unless upon the prior written consent of the non -assigning Party. In the event of a breach or threatened breach by any Party hereunder, the other Party shall be entitled to all remedies provided by law or in equity, including without limitation the right to specific performance and damages. 12.4 Attornevs' Fees. In the event of litigation, arbitration or if an attorney is retained by either Party to this Agreement to enforce the terms hereof or to collect any monies due hereunder, the prevailing Party shall be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorneys' fees and court costs as awarded by the court or arbitrator. 12.5 Entire Agreement: Amendment. This instrument contains the entire agreement of the Parties with respect to the subject matter hereof and no representations, warranties or inducements have been made by either of the Parties except as expressly set forth herein. This Agreement may only be amended (a) in writing executed by both Parties or (b) as required for the Agreement to conform to any local, state or federal government or regulatory agency or granting requirements applicable to Palm Desert. 12.6 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given on the earlier of actual receipt or two (2) days after deposit thereof in the United States mail in a sealed envelope, postage prepaid, registered or certified mail, and addressed to the address specified in this Agreement. 12.7 Countemarts. This Agreement may be executed by the Parties in separate counterparts, each of which when executed and delivered shall be an original, but all of which together shall constitute one and the same instrument. Facsimiles and email transmissions of ".pdf' or similar format shall be considered originals for purposes of this Agreement. 0 M Contract No. C33700A 12.8 Severabilitv. If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be in any way impaired. 12.9 Waiver. A provision of this Agreement may be waived only by a written instrument executed by the Party waiving compliance. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision. IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first above written. City of Palm Desert By: Van G. Tanner, Mayor Address: 73-510 Fred Waring Drive Palm Desert, California (760)`346-0611 Approved As To Form: David--J,. Erwin) Counsel for Qy of Pa Desert ATTEST: _ [Participant] By: Name: Lisa Howell Title: Vice President. Administrative Services Address: 43-500 Monterey Avenue 92260 Palm Desert. CA 92260 (760)674-7625 Attest: By: Its: Secretary R chelle D. Klas en,;City CZ k City of Palm Desert; California 10 Cdntract No. C33700A CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of `` \�1J�S 1 Li— On 1 (O r ZO before me, 1 \e V 6 Q �1 itn l�N )w lL►S. /`t ECQh ja �U b �t G7 Date N e and T1114 of the Officer U personally appeared _"c�- �._ Name(s) of Signer(s) REVAE TEM�EYNOLOS Commission # 19131153 Notary( PubUc - California Riverside County My Comm. Expires Welk 2014# Place Notary Seat Above who proved to me on the basis 'of satisfactory evidence to be the person(s) whose names) is/are6;- subscribed to the within instrument and acknowledged to me that .he/she/they executed the same in .his/her/their authorized capacity(l* and that by .his/her/t1Wr signature(s) on the instrument the person(s'), or the entity upon behalf of which the person(s) acted, executed the Instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my nd and fficial seal. Signature: " Signat re of Ablary Public OPTIONAL Though this section is optional, completing this Information can deteralteration'of the document or fraudulent reattachment of this form to an unintended document Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Titie(s): ❑ Partner — ❑ Limited 0 General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: 0 Corporate Officer — Title(s): Partner — ❑ Limited 0 General 0 Individual 0 Attorney in Fact 0 Trustee ❑ Guardian or Conservator 0 Other: Signer Is Representing: ��, s a. wo��h.*.�wo-v,.�src..Ar", $t ,a;.u� —. e,:"�rr. 0 2013 National Notary Association • www.NationaiNotary.org • 1-800-US NOTARY (1-800.876-6827) Item #6907 s �J O CALIFORNIA•ACKNOWLEDGMENT I State of California County of Riverside On June 24, 2014 Date personally appeared before me, Van G. Tanner s M.G.SANCHEZCommission # 1906339i Notary Public - California a Riverside County 4 My Comm. Expires Oct 29, 2014 C . 'I II, M. G. Sanchez, Notary Public Here Insert Name and Title of the Officer Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person) whose name(&) is/" subscribed to the within instrument and acknowledged to me that he/mac executed the same in hisAWMW authorized capacity(M), and that by hisAUUM t signature(TI) on the instrument the person(), or the entity upon behalf of which the person(K) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand Place Notary Seal Above Signature/ ��� eof o r P l OPTION] / Though the information below is not required by law, it may prove valuable td perso s relying on a doc ent and could prevent fraudulent removal and reattachment of this fo � to other docum t. Description of Attached Document Electric Vehicle. Program Master Agreement Title or Type of Document: C33700A - Desert Community College District Document Date: April 24, 2014 Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Van_ G. Tanner Signet's Name: ❑ Individual ❑ Individual ❑ Corporate Officer — Title(s): ❑ Corporate Officer — ' e(s): ❑ Partner — ❑ Limited ❑ General _ ❑ Partner — ❑ Limited ❑ neral _ _ e. ❑ Attorney in Fact ❑ Attorney in Fact � - • ❑ Trustee Top of thumb Here ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator tX Other: Mavor ❑ Other: Signer Is Representing: Signer Is Representing: City of Palm Desert \ National Notary Assaciation•9350DeSoto Ave.,P.O. Box 2402•Chatsworlh,CA91313-24D2-wwwNadonelNotaryorg Item45907 Reorder.CafiToll-Ftee1.800.8766827 . c Contract No. C33700A Exhibit "A" Description and Depiction of Site College of the Desert Campus located at 43-500 Monterey Ave., Palm Desert, CA 92260 Project site more generally described as college campus parking lot north of Monterey Ave entrance adjacent to building. Contract No. C33701A FIRST AMENDMENT TO CITY OF PALM DESERT ELECTRIC VEHICLE PROGRAM MASTER AGREEMENT This First Amendment to City of Palm Desert Electric Vehicle Program Master Agreement ("First Amendment"), effective as of September 10, 2019 (the "Effective Date") is entered into by and between the City of Palm Desert ("Palm Desert") and Desert Community College District, a community college ("Participant"). Palm Desert and Participant are at times referred to individually as a "Party" and collectively as the "Parties". RECITALS A. WHEREAS, on or about April 24, 2014, the Parties entered into the City of Palm Desert Electric Vehicle Program Master Agreement ("Agreement") for an initial term of five (5) years, which will expire on or about September 10, 2019; and B. WHEREAS, the Parties wish to extend the Agreement on the same terms for an additional term of five (5) years. AGREEMENT NOW, THEREFORE, the Parties hereby agree as follows: 1. Extension. The Agreement is extended for an additional term of five (5) years, on the same terms and conditions, except to the extent the provisions of the Agreement have already been completed, and expiring on September 10, 2024, unless extended by further agreement of the Parties. IN WITNESS WHEREOF, The Parties have executed this Agreement effective as of the date first above written. City of Palm Desert Susan Marie Weber, Mayor Address: 73 -5 10 Fred Waring Dr. Palm Desert, CA 92260 (760) 346-0611 Participant By: Name: John Ramont Title: Vice President, Administrative Services Address: 43-500 Monterey Ave. Palm Desert, CA 92260 (760) 674-7625 77365.00000\31924732.1 1 APPROVED AS TO FORM: ATTEST: By By: Robert W. Hargreaves Its: Secretary Counsel for City of Palm Desert ATTEST: Rachelle D. Klassen, City Clerk City of Palm Desert, CA 77365.00000\31924732.1 2 EXHIBIT `A' Description and Depiction of Site College of the Desert Campus located at 43-500 Monterey Avenue, Palm Desert, CA 92260 Project site more generally described as college campus parking lot north of Monterey Ave entrance adjacent to building. A notary public or other officer completing this cernfxcate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfi.ilness, accuracy, or validity of that document. 77365.00000\31924732.1 3 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfiLess, accuracy, or validity of that document. 77365.00000\31924732.1 4 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfiAness, accuracy, or validity of that document. 77365.00000\31924732.1 5 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) A notary public or other officer completing this certificate verifies only the identity of the aidividual who signed the document to which this certificate is attached, and not the truthfi&ess, accuracy, or validity of that document. 77365.00000\31924732.1 6 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) 77365.00000\31924732.1 7 Contract No. C33700B return the Site to the same condition as prior to the installation, with the electricity to the Charger(s) installation location capped, the breakers turned off, and the Charger(s) anchor/mounting bolts cut flush/removed. FEEDBACK FROM OPERATION OF CHARGER(S) 5.1 "Feedback" means all information and data (whether provided in oral, written, electronic or other format) related to or generated by the installation, operation and use of the Chargers) at the Site, received by Participant, during the Term of this Agreement. Feedback does not include any personal identification information of customers, customer credit card numbers or financial institution information, or any other information protected under the applicable privacy policies of either Party or any consumer privacy laws. 5.2 Participant agrees to use its best efforts to collect and record Feedback from customers and users of the Charger(s), their employees, their vendors, and their agents and deliver the Feedback to Palm Desert at least quarterly following Site installation. 6. PRESS RELEASE 6.1 The Parties will cooperate with each other in the preparation of a joint press release concerning the subject matter of this Agreement. The Parties must each approve the substance of the press release in advance of publication or distribution, such consent not to be unreasonably withheld or delayed. 6.2 Neither Party will publish any official statement or undertake any activity which would demean, tarnish, or negatively affect or impact in any way the services, products, marks, and/or image of the other Party. Neither Party will engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to the other Party or the EV Program. REPRESENTATIONS AND WARRANTIES 7.1 Each Party represents and warrants to the other that: (a) It is a duly incorporated or organized, validly existing and in good standing under Applicable Laws; (b) It has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) It will comply with all Applicable Laws and has obtained and will continue to obtain all licenses, authorizations, approvals, consents or permits required to carry on and conduct its business as now conducted and as contemplated by this Agreement, except where the failure to do so would not have a material adverse effect on its ability to perform its obligations hereunder, and all of such licenses, authorizations, approvals, consent and permits arc in full force and effect in all material respects; (d) It will not, and shall not authorize any third party to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to other Party or the EV Program; (e) The execution, delivery and performance of this Agreement and the consummation of the rights and obligations contemplated by this Agreement have been duly authorized by the requisite corporate action on the part of such Party; and (f) The execution, delivery, and performance of this Agreement shall not: (a) conflict with, result in the breach of or constitute an event which would, either immediately or with the lapse of time or giving of notice or both, result in a default under, or accelerate the performance required by, the 72500.0000 l \8497816.2 5 Contract No. C33700B terms of any agreement, document, contract, instrument or commitment to which it is a party or by which it is bound; (b) violate its articles of incorporation or bylaws; (c) conflict with or require any written consent or approval under any judgment, order, writ, decree, permit or license to which it is a party or by which it is bound; or (d) require the written consent or approval of any other party to any agreement, document, contract, instrument or commitment to which it is a party or by which it is bound. INSURANCE 8.1 Without limiting Participant's indemnification of Palm Desert, and prior to commencement of any work, Participant 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 that is satisfactory to Palm Desert: (a) General Liability Insurance. Participant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. (b) Automobile Liability Insurance. Participant 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 the Participant 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 $1,000,000 combined single limit for each accident. (c) Workers' Compensation Insurance. Participant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000). Participant shall submit to Palm Desert, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City of Palm Desert, its officers, agents, employees and volunteers. (d) Umbrella or Excess Liability Insurance. Participant may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Participant shall obtain and maintain an umbrella or excess liability insurance policy with limits of not less than $4,000,000 that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer's liability. Such policy or policies shall include the following terms and conditions: (i) A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; (ii) Pay on behalf of wording as opposed to reimbursement; (iii) Concurrency of effective dates with primary policies; and (iv) Policies shall "follow form" to the underlying primary policies. (v) Insureds under primary policies shall also be insureds under the umbrella or excess policies 8.2 Proof of Insurance. Participant shall provide certificates of insurance to Palm Desert as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by Palm Desert's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file 725M.00001 \8497816.2 6 Contract No. C33700B with Palm Desert at all times during the term of this contract. Palm Desert reserves the right to require complete, certified copies of all required insurance policies, at any time. 8.3 Duration of Coverage. Participant shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by Participant, his/her agents, representatives, employees or sub -consultants. 8.4 Palm Desert's Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Palm Desert has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by Palm Desert will be promptly reimbursed by Participant, or Palm Desert will withhold amounts sufficient to pay premium from Participant payments. In the alternative, Palm Desert may cancel this Agreement. 8.5 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 Palm Desert's Risk Manager. 8.6 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Participant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Participant hereby waives its own right of recovery against Palm Desert and shall require similar written express waivers and insurance clauses from each of its sub -consultants. 8.7 Enforcement of Contract Provisions (non estoppel). Participant acknowledges and agrees that any actual or alleged failure on the part of Palm Desert to inform Participant of noncompliance with any requirement imposes no additional obligations on Palm Desert nor does it waive any rights hereunder. 8.8 Specifications 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. 8.9 Notice of Cancellation. Participant agrees to oblige its insurance agent or broker and insurers to provide to Palm Desert with a thirty (30) day notice of cancellation (except for nonpayment for which a ten [10] day notice is required) or nonrenewal of coverage for each required coverage. 8.10 Additional Insured Status. General liability policies shall provide, or be endorsed to provide, that Palm Desert and its officers, officials, employees, and agents shall be additional insureds under such policies. This provision shall also apply to any excess liability policies. 8.11 Palm Desert's Right to Revise Specifications. Palm Desert reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Participant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Participant, Palm Desert and Participant may renegotiate Participant's compensation. 8.12 Self -Insured Retentions. Any self -insured retentions must be declared to and approved by Palm Desert. Palm Desert reserves the right to require that self -insured retentions be eliminated, lowered, 72500.0000 1 \8497816.2 7 Contract No. C33700B or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by Palm Desert. 8.13 Timelv Notice of Claims. Participant shall give Palm Desert prompt and timely notice of claims made or suits instituted that arise out of or result from Participant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 8.14 Additional Insurance. Participant 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. 9. INDEMNIFICATION 9.1 This Section 9 shall survive the expiration or termination of this Agreement. 9.2 Participant shall defend, indemnify and hold MSRC and Palm Desert and its affiliates, and any and all of its and their respective officers, directors, shareholders, employees, agents and representatives, and any and all of its and their assigns, successors, heirs and legal representatives, harmless from and against any and all claims, demands, litigation, settlements, judgments, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees) arising directly or indirectly out of or in connection with a breach of any representation, warranty or covenant of Participant hereunder or the negligent and/or willfully wrongful act or omission of Participant in performance of its obligations hereunder. Palm Desert agrees to promptly notify Participant of any written claim or demand for which Participant is responsible hereunder. 9.3 Palm Desert shall defend, indemnify and hold Participant and its affiliates, and any and all of its respective officers, directors, shareholders, employees, agents and representatives, and any and all of its assigns, successors, heirs and legal representatives, harmless from and against any and all claims, demands, litigation, settlements, judgments, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees) arising directly or indirectly out of or in connection with a breach of any representation, warranty or covenant of Palm Desert hereunder or the grossly negligent and/or willfully wrongful act or omission of Palm Desert in performance of its obligations hereunder. Participant agrees to promptly notify Palm Desert of any written claim or demand for which Participant is responsible hereunder. 10. LIMITATION OF LIABILITY 10.1 EXCEPT FOR THE WARRANTIES STATED HEREIN FOR PARTICIPANT, NO WARRANTY, CONDITION OR REPRESENTATION, EXPRESSED, IMPLIED, ORAL OR STATUTORY, IS PROVIDED TO PARTICIPANT OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY, CONDITION OR REPRESENTATION: (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) THAT THE CHARGER(S) 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. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. PARTICIPANT'S SOLE AND EXCLUSIVE REMEDIES HEREUNDER AND THE ONLY LIABILITY OF PALM DESERT IS EXPRESSLY LIMITED TO THE TERMS OF THE AGREEMENT. PALM DESERT SHALL NOT BE LIABLE TO PARTICIPANT, OR ANY THIRD PARTY, FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, INCLUDING WITHOUT LIMITATION, LITIGATION COSTS, LOSS OF DATA, PRODUCTION OR PROFIT ARISING FROM 72500,00001 \8497816.2 Contract No. C3017.00B ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. FOR PURPOSES OF THIS PROVISION, PALM DESERT INCLUDES PALM DESERT'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, SUBCONTRACTORS AND SUPPLIERS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY CLAIMS FOR DAMAGES BY EITHER PARTY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL, BE LIMITED TO ACTUAL RECOVERIES UNDER SUCH PARTY'S INSURANCE POLICIES. GOVERNING LAW 11.1 Any claim or controversy arising out of or related to this Agreement, including without limitation warranty claims, shall be governed by the internal laws of the State of California, without regard to conflicts of law principles. Venue for any cause of action relating to this Agreement shall be the state and federal courts located in Riverside County, California. 12. MISCELLANEOUS PROVISIONS 12.1 This Agreement does not make either Party the agent or legal representative of the other for any purpose and neither Party will transact any business or make any promise or representations in the name of, or on behalf of, the other without prior written approval. 12.2 Grant. Any and all terms of the Grant received by Palm Desert from MSRC which impact the relationship between Palm Desert and Participant, but not otherwise incorporated in this Agreement, are hereby incorporated herein by this reference. Participant hereby agrees to abide by any and all such terms of the Grant, if any. 12.3 Assignment and Enforcement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Agreement may not be assigned by either Party and any attempted assignment is void, unless upon the prior written consent of the non -assigning Party. In the event of a breach or threatened breach by any Party hereunder, the other Party shall be entitled to all remedies provided by law or in equity, including without limitation the right to specific performance and damages. 12.4 Attornevs' Fees. In the event of litigation, arbitration or if an attorney is retained by either Party to this Agreement to enforce the terms hereof or to collect any monies due hereunder, the prevailing Party shall be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorneys' fees and court costs as awarded by the court or arbitrator. 12.5 Entire Agreement: Amendment. This instrument contains the entire agreement of the Parties with respect to the subject matter hereof and no representations, warranties or inducements have been made by either of the Parties except as expressly set forth herein. This Agreement may only be amended (a) in writing executed by both Parties or (b) as required for the Agreement to conform to any local, state or federal government or regulatory agency or granting requirements applicable to Palm Desert. 12.6 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given on the earlier of actual receipt or two (2) days after deposit thereof in the United States mail in a scaled envelope, postage prepaid, registered or certified mail, and addressed to the address specified in this Agreement. 12.7 Counterparts. This Agreement may be executed by the Parties in separate counterparts, each of which when executed and delivered shall be an original, but all of which together shall constitute 72500.00001 \8497816.2 9 Contract No. C33700B one and the same instrument. Facsimiles and email transmissions of ".pdf' or similar format shall be considered originals for purposes of this Agreement. 12.8 Severability. If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be in any way impaired. 12.9 Waiver. A provision of this Agreement may be waived only by a written instrument executed by the Party waiving compliance. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision. [signatures on following page] 725W.0000 1 \8497816.2 10 Contract No. C33700B IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first above written. City of Palm Desert By: Van G. Tanner, Mayor UCR Asset Services As Agent for PRU/Desert Crossin LLC n By: J. Scod eaver, President Address: 73-510 Fred Waring Drive Address: 8080 Park Lane, Suite 800 Palm Desert, California 92260 Dallas, Texas 75231 (760) 346-0611 Approved As To Form: B avid Erwi / Counse r Clify—olf Palm Desert ATTEST: achelle D. Klassen, City Clerk City of Palm Desert, California Attest: A&-4 a4 By: / Its: Secretary �, tM DEBRA CAROL CANDY ApV 20, 2017 a K'� 72500.00(H)1 \8497816.2 Contract No. C33700B Exhibit "A" Description and Depiction of Site Desert Crossing Shopping Center located at Hwy 111, Palm Desert, CA 92260 Project site more generally described as Desert Crossing parking lot located next to the existing golf cart charging station in the general vicinity of Famous Footwear Exhibit "A" 725W.00001 \8497816.2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT .,y.�i,»�iA`.-.ni:n,`..Cey�K,M.�.n�.Rv1?R�lw ;Ln., - +�.exn,�.�,�;�.�„n�,✓.r: _ j MtMNLM�i'N.C'C ...v...�.C�C3ff•`.f:C..frf7f State of California County of Riversi-dP On June 24, 2014 -- before me, Date 14. G. Sanchez, Notary Public Here Insert Name and TNIe of the Officer personally appeared ___- __ Van G. Tanner ------------------------ - - — -- - - - -- — — Name(s) o1Signer(s) _ who proved to me on the basis of satisfactory evidence to be the personN) whose name(§) is/= subscribed to the within instrument and acknowledged to me that he/NWN%v� executed the same in hisA%MtW authorized capacity(M), and that by his/XWMN signature(l) on. the M. G. SANCHEZ instrument the person(g), or the entity upon behalf of Commission # 1906339 which the person(19) acted, executed the instrument. Notary Public - California z Z Riverside County ' 1 certify under PENALTY OF PERJURY under the laws My Comm. Expires Oct 29, 2014 of the State of California that the foregoing g g paragraph is true and correct. WITNESS my hand and ici seal. Signature / Place Notary Seal Above ; / {S gnat a of Notary ublic OPTIONAL �\ Though the information below is not required by law, it may proGe valuable persons r lying on the ument and could prevent fraudulent removal and reattachment of this fo to anot r document. Description of Attached Document Electric Vehicle Program Master Ag ement- Title or Type of Document: C33700R — PRU/Desert Crossing, LLC Document Date: April 24, 2014 Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Van G. Tanner '1 Individual 11 Corporate Officer — Title(s): 11 Partner —[ 1 Limited L 1 General l_1 Attorney in Fact Nablow 11 Trustee Top of Thumb here U Guardian or Conservator [X Other: Mavor Signer Is Representing: City of Palm Desert Signer's Name: l.i Individual :.J Corporate Office Title(s): U Partner — U Limite General [_' Attorney in Fact Lj Trustee l Guardian or Conservator I- i Other: Signer Is Representing: Top of thumb here 02007 National Notary Association • 9350 De Soto Ave- P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.Na*ywlNotary.org Item f15907 Reorder: Call Toll -Free 1.80p-876-6827 Contract No. C33701 B FIRST AMENDMENT TO CITY OF PALM DESERT ELECTRIC VEHICLE PROGRAM MASTER AGREEMENT This First Amendment to City of Palm Desert Electric Vehicle Program Master Agreement ("First Amendment"), effective as of November 6, 2019 (the "Effective Date") is entered into by and between the City of Palm Desert ("Palm Desert") and PRU/Desert Crossing, LLC by and through its Agent, Four Partners, LLC d/b/a UCR Asset Services ("Participant"). Palm Desert and Participant are at times referred to individually as a "Party" and collectively as the "Parties". RECITALS A. WHEREAS, on or about April 24, 2014, the Parties entered into the City of Palm Desert Electric Vehicle Program Master Agreement ("Agreement') for an initial term of five (5) years, which will expire on or about November 6, 2019; and B. WHEREAS, the Parties wish to extend the Agreement on the same terms for an additional term of five (5) years. AGREEMENT NOW, THEREFORE, the Parties hereby agree as follows: 1. Extension. The Agreement is extended for an additional term of five (5) years, on the same terms and conditions, except to the extent the provisions of the Agreement have already been completed, and expiring on November 6, 2024, unless extended by further agreement of the Parties. IN WITNESS WHEREOF, The Parties have executed this Agreement effective as of the date first above written. City of Palm Desert Participant By: By: Susan Marie Weber, Mayor Name: Title: Address: 73-510 Fred Waring Dr. Address: Palm Desert, CA 92260 (760) 346-0611 77365.00000\31924732.1 1 APPROVED AS TO FORM: ATTEST: By By: Robert W. Hargreaves Its: Secretary Counsel for City of Palm Desert ATTEST: Rachelle D. Klassen, City Clerk City of Palm Desert, CA 77365.00000\31924732.1 2 EXHIBIT `A' Description and Depiction of Site Desert Crossing Shopping Center located at Highway 111, Palm Desert, CA 92260 Project site more generally described as Desert Crossing parking lot located next to the existing golf cart charging station in the general vicinity of Famous Footwear. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the trutlifiAness, accuracy, or validity of that document. 77365.00000\31924732.1 3 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 77365.00000\31924732.1 4 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 77365.00000\31924732.1 5 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 77365.00000\31924732.1 6 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) 77365.00000\31924732.1 7 CONTRACT NO. C33700C CITY OF PALM DESERT ELECTRIC VEHICLE PROGRAM MASTER AGREEMENT This Electric Vehicle Program Master Agreement (this "Agreement"), effective as of June 12, 2014 (the "Effective Date'), is entered into by and between the City of Palm Desert ("Palm Desert"), and Westfield, LLC, a Delaware limited liability company, in its capacity as agent for the owner of Westfield Palm Desert ("Participant"). Palm Desert and Participant are at times referred to individually as a "Party" and collectively as the "Parties." RECITALS A. WHEREAS, Palm Desert has received a grant from the Mobile Source Air Pollution Reduction Review Committee ("MSRC") (the "Grant') to undertake the deployment of electric vehicle charging infrastructure (the "EV Project") and B. WHEREAS, Palm Desert desires to deploy electric vehicle Chargers at strategic locations as part of the EV Project, including commercial and university locations; and C. WHEREAS, Participant owns and operates Westfield Palm Desert located at 72-840 Highway 111, Palm Desert, California ("Shopping Center") and desires to participate in the EV Project upon the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the mutual undertakings and covenants herein, and for such other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree and covenant as follows: 1. INSTALLATION 1.1 Expressly contingent upon Palm Desert's sole discretion in determining that it has sufficient funds through the Grant and other Palm Desert sources of funding and upon the terms .and conditions set forth herein, Palm Desert agrees to provide to Participant one (1) Level 2 Electric Vehicle Supply Equipment Charger ("Charger(s)") and to install such Charger(s) at Participants property located at 72-840 Highway 111, Palm Desert, California (the "Site"), as further described and depicted on Exhibit "A" attached hereto and incorporated by this reference. Palm Desert grants Participant the right to use, and authorize its customers to use, the Charger(s) pursuant to the terms of this Agreement. 1.2 Palm Desert shall work with Participant and contractors to schedule and complete the installation of the Charger(s). Palm Desert shall not be liable for any failure to install the Charger(s) within any specific time frame due to any circumstances, including but not limited to funding, manufacturing, government permitting, UL certification, electric box or transformer upgrades, unusual installation conditions, inspection delays or other obstacles. 1.3 Palm Desert shall be responsible for and shall bear all direct costs associated with the design, construction, purchase, d� ery signage, installation and initial setup of the Charger(s) at the Site, based on available funding to p o ! ec sowd rl t install the Charger(s). The design and location of the Charger(s) within the Shopp�g..Center shall mutually agreed to by the parties and shall be t- CONTRACT NO. C33700C completed pursuant to plans and specifications previously approved by Participant, such approval not to be unreasonably withheld. All work shall be coordinated with Participant so as to minimize any interference with the Shopping Center. All work shall be performed by Palm Desert or under its direction and shall be performed in a good and workmanlike manner. 1.4 Except as otherwise required pursuant to Sections 2.6 under this Agreement, or unless earlier terminated in accordance with the terms herein, Participant agrees during the Term of this Agreement and any renewal thereof, and in no event less than five (5) years from the date the Charger(s) are first operational and available to the public ("Operational Date'), not to uninstall, disable, turn off, remove, or relocate the Charger(s) without prior written approval by Palm Desert, which shall not be unreasonably withheld, unless in the case of an emergency or in connection with any redevelopment, refurbishment, construction, alteration, or other modification to the Shopping Center. If Participant determines it necessary to uninstall, disable, turn off, remove, or relocate the Charger(s) in connection with any redevelopment, refurbishment, construction, alteration, or other modification to the Shopping Center, all costs associated with such work and all work required to return the Site to a safe condition, with the electricity to the Charger(s) installation location capped, the breakers turned off, and the Charger(s) anchor/mounting bolts cut flush/removed and otherwise restore the Site ' to the condition as existed immediately prior to installation, normal wear and tear excepted, shall be paid at Participant's sole expense. 1.5 Participant hereby grants Palm Desert a limited non-exclusive license to use and occupy the areas at the Sites where the Charger(s) are located, including but not limited reasonable access and use of its electrical panels, for the sole purpose of installing, operating and maintaining the Charger(s) in accordance with this Agreement. Palm Desert shall obtain any necessary approvals for the Charger(s) installation and electrical hook-up from third party Site owners and landlords prior to the installation of the Charger(s) and as may be required under any contract or any federal, state or local law, rule, regulation, or MSRC grant requirement applicable to the rights and obligations under this Agreement ("Applicable Law") to which Palm Desert is bound. Participant agrees to reasonably cooperate with Palm Desert in obtaining any such approval. All access provided to the Site hereunder shall be exercised in cooperation with Participant so as to minimize any interference with the Shopping Center. 1.6 Participant hereby agrees to provide parking space(s), electricity, and access to the Charger(s) at the Site to accommodate customer use of the electric charging units, as further described and depicted on Exhibit "A." 2. CHARGER(S) OWNERSHIP, USE AND MAINTENANCE 2.1 All right, title and interest in and to the Charger(s), including all associated hardware, software and intellectual property rights (including, but not limited to, copyrights, patent rights, trademarks, trade secrets and trade names), as between the'Parties shall at all times remain the sole property of Palm Desert. Palm Desert represents and warrants that the Charger(s) do not infringe upon any third party intellectual property rights. The Charger(s) shall not be transferred, delivered, or sublet by Participant to any person or corporation, shall remain free of all levies, liens, and encumbrances, shall not be collateralized, and no security interest shall be granted therein. Except as set forth in Section 2.5, all risk of loss to the Charger(s) shall be borne by Palm Desert. 2.2 Participant agrees that the Charger(s) shall be used and operated by Participant only for their intended use and only pursuant to this Agreement, and in a reasonable manner and in compliance with all governmental requirements. In no event shall the Charger(s) be knowingly misused or subjected to abuse, or be used or operated for any illegal purpose. 2 O O CONTRACT NO. C33700C 2.3 Participant shall be, and hereby agrees to be, solely responsible for all costs and expenses related to and associated with operating (but excluding Palm Desert's obligations under Section 2.4 below) the Charger(s), including but not limited to, all costs and expenses for electricity used and/or distributed by the Charger(s). Participant may impose a fee on customers for use of the Charger(s), including but not limited to all costs of electricity, however. Participant hereby agrees and covenants it will not impose any fee on customers for use of the Charger(s) during the period beginning on the Operational Date and ending on the one (1) year anniversary of the Operational Date. 2.4 Palm Desert shall repair, inspect and maintain the Charger(s) in good working order and condition and Participant grants Palm Desert a limited and' non- exclusive license to enter the Site for such purposes. In the event Participant Initial revokes or materially alters such license prior to the expiration or termination of this Agreement, other than as a result of Palm Desert's breach or default under the terms herein, Participant, at its sole cost and expense, agrees to repair, inspect and maintain the Charger(s) in good working order and condition for the remaining term of this Agreement. 2.5 Notwithstanding anything to the contrary contained in this Agreement, Participant is not responsible for any third party's acts or omissions, including, without limitation, any third parry's negligence or mistreatment (gross, criminal or otherwise) of the Charger(s) at the Site unless (a) Participant knowingly authorized such mistreatment, (b) the damages to the Charger(s) are caused by the gross negligence or willful misconduct of Participant. 2.6 Participant shall use commercially reasonable efforts to: (a) regularly inspect and clean the Charger(s) and the area around the Charger(s) on the same schedule and using the same degree of care that Participant uses for its own property, fixtures and equipment, but at least daily when open for business, including removal of graffiti, posted bills, stickers or other debris, ensuring the screen and user interface is clean for customer use; (b) maintain appropriate signage after initial installation by Palm Desert, as required by law, that clearly and prominently identifies and, where appropriate, provides directions to the Charger(s) so that they may be easily located by drivers of electric vehicles, all as reasonably determined by Participant; (c) take reasonable efforts to ensure that the Charger(s) are readily accessible for use by customers and access is not blocked by vehicles not using the Charger(s); (d) report to Palm Desert under Section 2.4 any evidence of damage, defects, hazards (for example, cut or worn cables, exposed wiring, cracked connectors, damage to connector pumps), or vandalism to the Charger(s) or which Participant is aware; (e) report in writing or verbally and within seventy-two (72) hours to Pahn Desert under Section 2.4, any observed or reported tampering, operational or maintenance issues with the Charger(s); and (f) disable access to and place "Out of Service" signs on any Charger(s) with safety or operational problems that are noticed by or brought to the attention of Participant until such Charger(s) can be promptly repaired. 2.7 Software to monitor use of the Charger(s) and the amount of electricity distributed by the Charger(s) may be available through the manufacturer or a third party vendor, from time to time. 0 O CONTRACT NO. C33700C Participant agrees that it is solely responsible for the determination whether or not to obtain such software for the Charger(s) and is and will be solely responsible for the costs and expenses of any such software. Participant agrees that Palm Desert does not require such software to be obtained and the Parties agree that Participant is not obligated to utilize any such software. Notwithstanding the foregoing, in the event that Participant elects in its discretion to obtain such software, Participant hereby agrees that any information obtained by Participant related to the Charger(s) through such software which meets the definition of "Feedback" below, shall be considered Feedback subject to the terms of this Agreement. 3. TERM; TERMINATION 3.1 The term of this Agreement shall commence on the Effective Date of this Agreement and shall end on the five (5) year anniversary of the Operational Date (the "Term"). 3.2 Termination for Cause by Either Party. Either Party may terminate this Agreement in its entirety for cause if the other Party or its authorized personnel (a) commit a material breach or numerous breaches which collectively constitute a material breach of this Agreement, which is not cured or capable of cure within thirty (30) days after notice of such breach; (b) has a material adverse change in the financial condition which affects or will affect the Party's performance under this Agreement; (c) files proceedings, or has proceedings filed against it, under federal bankruptcy or state insolvency statutes, and a proceeding instituted against the Noticed Party is not dismissed within 30 days; or (d) has a receiver or trustee appointed for the property and assets of the Party related to this Agreement and the receivership is not discharged within 30 days of such appointment. 3.3 Termination for Convenience of Either Party. In the event either Party wishes to terminate this Agreement in whole prior to the expiration of the Term without cause and for the convenience of that Party, such Party shall provide the other Party with a thirty (30) days prior written notice of its intent to terminate, specifying with particularity the reasons for early termination (the "Termination Notice'), and shall confer in good faith to resolve any issues (if any) that caused the Termination Notice. 3.4 Effect of Termination. (a) Upon the termination of this Agreement for cause by either Party, or for convenience of Palm Desert, Palm Desert is authorized to enter upon the Site, and take possession of and remove the Charger(s) at its own expense and perform any work required to return the Site to a safe condition, with the electricity to the Charger(s) installation location capped, the breakers turned off, and the Charger(s) anchor/mounting bolts cut flush/removed and otherwise restore the Site to the condition as existed immediately prior to installation, normal wear and tear excepted. All such work shall be coordinated with Participant to minimize any interference with the operation of the Shopping Center. (b) Upon the termination of this Agreement by Participant for the convenience of Participant, Palm Desert is authorized to enter upon the Site, and take possession of and remove the Charger(s) and perform any work required to return the Site to a safe condition, with the electricity to the Charger(s) installation location capped, the breakers turned off, and the Charger(s) anchor/mounting bolts cut flush/removed and otherwise restore the Site to the condition as existed immediately prior to installation, normal wear and tear excepted, all at Participant's sole expense payable within thirty (30) days after termination ("Removal Cost"). In addition, Participant shall reimburse City within thirty (30) days after termination for all actual costs incurred by City in acquiring and installing the Charger(s) ("Installation Cost"). Notwithstanding the foregoing, Participant's liability for the combined Removal Cost and Installation Cost shall be prorated by the number of months remaining in the initial term of the Agreement at the date of termination, divided by the total sixty (60) months in the initial term of the Agreement. The Parties acknowledge that Participant's liability for the combined Removal Cost and Installation Cost is estimated not to exceed Twenty -Five Thousand Dollars ($25,000) ("Cap"). In the 4 CONTRACT NO. C33700C event Participant's liability for the combined Removal Cost and Installation Cost exceeds the Cap, the Parties shall review the actual combined Removal Cost and Installation Cost and consider an adjustment to the proration of Participant's liability. All such work shall be coordinated with Participant to minimize any interference with the operation of the Shopping Center. 3.5 NEITHER PARTY SHALL, BY REASON OF THE EXPIRATION OR TERMINATION OF THIS AGREEMENT, BE LIABLE TO THE OTHER PARTY FOR COMPENSATION, INDEMNIFICATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF ANY LOSS OF PROSPECTIVE PROFITS, ANTICIPATED SALES OR GOODWILL. 4. EXPIRATION Upon the expiration of the Term of this Agreement: 4.1 If Participant is imposing a fee for use of the Charger(s), Participant shall have the option to acquire ownership of the Charger(s) installed at the Site at no cost to Participant by providing Palm Desert thirty (30) days prior written notice of intent to acquire ownership of the Charger(s). Upon timely receipt of Participant's written notice of intent to acquire the Charger(s) and upon the expiration of this Agreement, Palm Desert shall execute and deliver a bill of sale evidencing transfer of ownership of the Charger(s) to Participant; 4.2 If Participant is not imposing a fee for use of the Charger(s), and if the Charger(s) are maintained by Palm Desert pursuant to the a license granted by Participant herein, Participant shall have the option to allow the Charger(s) to remain as then installed, owned and maintained by Palm Desert; or 4.3 Participant shall have the option to request that Palm Desert enter upon the Site and take possession of and remove the Charger(s) at Palm Desert's own expense and perform any work required to return the Site to a safe condition, with the electricity to the Charger(s) installation location capped, the breakers turned off, and the Charger(s) anchor/mounting bolts cut flush/removed and otherwise restored to the condition as existed immediately prior to installation, normal wear and tear excepted. 5. FEEDBACK FROM OPERATION OF CHARGER(S) 5.1 "Feedback" means all information and data (whether provided in oral, written, electronic or other format) related to or generated by the installation, operation and use of the Charger(s) at the Site, received by Participant, during the Term of this Agreement. Feedback does not include any personal identification information of customers, customer credit card numbers or financial institution information, or any other information protected under the applicable privacy policies of either Party or any consumer privacy laws. 5.2 Participant agrees to endeavor (but shall not be obligated) to collect and record Feedback from customers and users of the Charger(s), their employees, their vendors, and their agents and deliver the Feedback to Palm Desert at least quarterly following Site installation. 6. PRESS RELEASE 6.1 The Parties will cooperate with each other in the preparation of a joint press release concerning the subject matter of this Agreement. The Parties must each approve the substance of the press release in advance of publication or distribution, such consent not to be unreasonably withheld or delayed. 6.2 Neither Party will publish any official statement or undertake any activity which would demean, tarnish, or negatively affect or impact in any way the services, products, marks, and/or image of 5 0 a CONTRACT NO. 03700C the other Party. Neither Party will engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to the other Party or the EV Program. 7. REPRESENTATIONS AND WARRANTIES 7.1 Each Party represents and warrants to the other that: (a) It is a duly incorporated or organized, validly existing and in good standing under Applicable Laws; (b) It has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; - (c) It will comply with all Applicable Laws and has obtained and will continue to obtain all licenses, authorizations, approvals, consents or permits required to carry on and conduct its business as now conducted and as contemplated by this Agreement, and to perform all of its obligations contained herein, except where the failure to do so would not have a material adverse effect on its ability to perform its obligations hereunder, and all of such licenses, authorizations, approvals, consent and permits are in full force and effect in all material respects; (d) It will not, and shall not authorize 'any third party to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to other Party or the EV Program; (e) The execution, delivery and performance of this Agreement and the consummation of the rights and obligations contemplated by this Agreement have been duly authorized by the requisite corporate action on the part of such Party; and (f) The execution, delivery, and performance of this Agreement shall not: (a) conflict with, result in the breach of, or constitute an event which would, either immediately or with the lapse of time or giving of notice or both, result in a default under, or accelerate the performance required by, the terms of any agreement, document, contract, instrument or commitment to which it is a party or by which it is bound; (b) violate its articles of incorporation or bylaws; (c) conflict with or require any written consent or approval under any judgment, order, writ, decree, permit or license to which it is a party or by which it is bound; or (d) require the written consent or approval of any other party to any agreement, document, contract, instrument or commitment to which it is a party or by which it is bound. 8. INSURANCE 8.1 Without limiting each Party's indemnification of the other, and prior to commencement of any work, each Party 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 that is satisfactory to the other Party: (a) General Liability Insurance. Each Party shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. (b) Automobile Liabilitv Insurance. Each Party 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 the each Party arising out of or in connection with work to be performed under this 6 CONTRACT NO. C33700C Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. (c) Workers' Compensation Insurance. Each Party shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000). Each Party shall submit to the other, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the other Party, its officers, agents, employees and volunteers. (d) Each Party may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. 8.2 Proof of Insurance. Each Party shall provide certificates of insurance to the other as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by the other Party's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with each Party at all times during the term of this contract. Each Party reserves the right to require complete, certified copies of all required insurance policies, at any time. 8.3 Intentionally Omitted. 8.4 Rishts of Enforcement. In the event any policy of insurance required of a Party under this Agreement does not comply with these specifications or is canceled and not replaced, the other Party has the right to cancel this Agreement. 8.5 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. 8.6 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed'to waive subrogation against Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Participant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Participant hereby waives its own right of recovery against Palm Desert and shall require similar written express waivers and insurance clauses from each of its sub -consultants. 8.7 Enforcement of Contract Provisions (non estoppel). Each Party acknowledges and agrees that any actual or alleged failure on the part of the other Party to inform the other Party of noncompliance with any requirement imposes no additional obligations on the informing Party nor does it waive any rights hereunder. 8.8 Specifications 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. 8.9 Notice of Cancellation. Each Party agrees to provide to the other Party with a thirty (30) day notice of cancellation (except for nonpayment for which a ten [10] day notice is required) or nonrenewal of coverage for each required coverage. 7 IM CONTRACT NO. C33700C 8.10 Additional Insured Status. General liability policies of Palm Desert shall provide, or be endorsed to provide, that the below entities and its officers, officials, employees, and agents shall be additional insureds under such policies. This provision shall also apply to any excess liability policies. Palm Desert's insurance shall be primary and any policies carried by any of the additional insured parties below shall be excess and non-contributing. (a) WEA Palm Desert LP, Westfield America, Inc., Westfield America Limited Partnership, Westfield, LLC, and any and all of their respective parents, partners, subsidiaries and affiliates, successors, assigns, employees, agents, officers and representatives, together with any mortgagee from time to time of the Landlord's interest, are named as additional insured, as their interests may appear. Intentionally Omitted. Intentionally Omitted. 8.11 Intentionally Omitted. 8.12 Intentionally Omitted. 8.13 Timelv Notice of Claims. Each Party shall give the other prompt and timely notice of claims made or suits instituted that arise out of or result from the notifying Party's performance under this Agreement and that involve or may involve coverage under any of the required liability policies. 9. INDEMNIFICATION 9.1 This Section 9 shall survive the expiration or termination of this Agreement. 9.2 Participant shall defend, indemnify and hold MSRC and Palm Desert and its affiliates, and any and all of its and their respective officers, directors, shareholders, employees, agents and representatives, and any and all of its and their assigns, successors, heirs and legal representatives, harmless from and against any and all claims, demands, litigation, settlements, judgments, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees) arising directly or indirectly out of or in connection with a breach of any representation, warranty or covenant of Participant hereunder or the negligent and/or willfully wrongful act or omission of Participant in performance of its obligations hereunder. Palm Desert agrees to promptly notify Participant of any written claim or demand for which Participant is responsible hereunder. 9.3 Palm Desert shall defend, indemnify and hold Participant and its affiliates, and any and all of its respective officers, directors, shareholders, employees, agents and representatives, and any and all of its assigns, successors, heirs and legal representatives, harmless from and against any and all claims, demands, litigation, settlements, judgments, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees) arising directly or indirectly out of or in connection with a breach of any representation, warranty or covenant of Palm Desert hereunder or the negligent and/or willfully wrongful act or omission of Palm Desert in performance of its obligations hereunder or in connection with any work conducted by Palm Desert upon the Shopping Center. Participant agrees to promptly notify Palm Desert of any written claim or demand for which Palm Desert is responsible hereunder. 10. LIMITATION OF LIABILITY 10.1 EXCEPT FOR THE WARRANTIES STATED HEREIN FOR PARTICIPANT, NO WARRANTY, CONDITION OR REPRESENTATION, EXPRESSED, IMPLIED, ORAL OR STATUTORY, IS PROVIDED TO PARTICIPANT OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY, CONDITION OR REPRESENTATION: (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) THAT THE . 0 Q CONTRACT NO. C33700C CHARGER(S) 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. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. EACH PARTY'S SOLE AND EXCLUSIVE REMEDIES HEREUNDER AND THE ONLY LIABILITY OF EACH PARTY IS EXPRESSLY LIMITED TO THE TERMS OF THE AGREEMENT. EACH PARTY SHALL NOT BE LIABLE TO THE OTHER, FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, INCLUDING WITHOUT LIMITATION, LITIGATION COSTS, LOSS OF DATA, PRODUCTION OR PROFIT ARISING FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. 11. GOVERNING LAW 11.1 Any claim or controversy arising out of or related to this Agreement, including without limitation warranty claims, shall be governed by the internal laws of the State of California, without regard to conflicts of law principles. Venue for any cause of action relating to this Agreement shall be the state and federal courts located in Riverside County, California. 12. MISCELLANEOUS PROVISIONS 12.1 This Agreement does not make either Party the agent or legal representative of the other for any purpose and neither Party will transact any business or make any promise or representations in the name of, or on behalf of, the other without prior written approval. 12.2 Grant. Any and all terms of the Grant received by Palm Desert from MSRC which impact the relationship between Palm Desert and Participant, but not otherwise incorporated in this Agreement, are hereby incorporated herein by this reference. Participant hereby agrees to abide by any and all such terms of the Grant, if any. 12.3 Assignment and Enforcement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Agreement may not be assigned by either Party and any attempted assignment is void, unless upon the prior written consent of the non -assigning Party. In the event of a breach or threatened breach by any Party hereunder, the other Party shall be entitled to all remedies provided by law or in equity, including without limitation the right to specific performance and damages. 12.4 Attornevs' Fees. In the event of litigation, arbitration or if an attorney is retained by either Party to this Agreement to enforce the terms hereof or to collect any monies due hereunder, the prevailing Party shall be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorneys' fees and court costs as awarded by the court or arbitrator. 12.5 Entire Agreement: Amendment. This instrument contains the entire agreement of the Parties with respect to the subject matter hereof and no representations, warranties or inducements have been made by either of the Parties except as expressly set forth herein. This Agreement may only be amended (a) in writing executed by both Parties or (b) as required for the Agreement to conform to any local, state or federal government or regulatory agency or granting requirements applicable to Palm Desert. 12.6 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given on the earlier of 9 CONTRACT NO. C33700C actual receipt or two (2) days after deposit thereof in the United States mail in a sealed envelope, postage prepaid, registered or certified mail, and addressed to the address specified in this Agreement. 12.7 Counteroarts. This Agreement may be executed by the Parties in separate counterparts, each of which when executed and delivered shall be an original, but all of which together shall constitute one and the same instrument. Facsimiles and email transmissions of ".pdf' or similar format shall be considered originals for purposes of this Agreement. 12.8 Severabilitv. If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be in any way impaired. 12.9 Waiver. A provision of this Agreement may be waived only by a written instrument executed by the Party waiving compliance. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision. IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first above written. City of Palm Desert Westfield, LLC, a Delaware limited liability company, As agent for the owner of Westfield Palm Desert By: By: Van G. Tar6q, . yor ATTEST:. Name: Title: chel "e D-r,Klassen_, City Clerk J Address: = 73-510 Fred Waring Drive_ Address:. _Palm Desert; California 92260, _(760) 346-0611 Approved As To Form: Attest: By: exk By: D viins Its: Secretary Counsel for City of Palm Desert 10 CALIFORNIAeACKNOWLEDGMENT State of California 1 County of k; lJ e r S I,d e On 14,10P 30 2 O/V Date personally appeared before me, Li ndn S. 2)9 t) S /�%4q'rt 4 � (%C Here Insert Name and Title of the Officer lglric LINDA S. DAVIS �� Commission # 1995455 i ;�_ Notary Public- California z J %. � Riverside County IMy Comm. Expires Oct 26. 20,16 K (C % ri Names) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name is/aXsubscribed to the within instrument and acknowledged to me that he/sWXY executed the same in his/pgr/tKir authorized capacity(iesf, and that by his/I} AWIr signatureWon the instrument the person or the entity upon behalf of which the personKacted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official all seal. ' Signature Dc��� Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying. on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document r / ,/ Title or Type of Docuiment: C4v a P. (^�' `�� Se I Gr:�tr`C U��►ic l �fo9 t'an1 lq,, S�e A �c? ryra-f r Document Date: .Jur,1P / Z 20/1 Number of Pages: 1 Z J Signer(s) Other Than Named Above: N IA- Capacity(les) Claimed by Signer(s) Signer's Name: I G 1T i C_ fe ndividual Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact • ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Top of thumb here 02007 National Notary Association • 9350 De Soto Ave.. P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NagonWNotaryorg Hem ff5907 Reorder. Call Toll -Free 1.800-876-6827 CONTRACT NO. C33700C Exhibit "A" Description and Depiction of Site Westfield Palm Desert Mall located at 72-840 Hwy 111, Palm Desert, CA 92260 Westfield to have two (2) electric charging stations: Project Site One: More generally described as being located on the first floor, east side of parldng garage located adjacent to Monterey Ave. or northeast side of mall parldng lot Project Site Two: More generally described as being located on fast floor, west side ofparldng garage located adjacent to Town Center Way or northwest side of mall parldng lot Exhibit "A" Contract No. C33701 C FIRST AMENDMENT TO CITY OF PALM DESERT ELECTRIC VEHICLE PROGRAM MASTER AGREEMENT This First Amendment to City of Palm Desert Electric Vehicle Program Master Agreement ("First Amendment"), effective as of October 2, 2019 (the "Effective Date") is entered into by and between the City of Palm Desert ("Palm Desert") and Westfield, LLC, a Delaware limited liability company, in its capacity as agent for the owner of Westfield Palm Desert ("Participant"). Palm Desert and Participant are at times referred to individually as a "Party" and collectively as the "Parties". RECITALS A. WHEREAS, on or about June 12, 2014, the Parties entered into the City of Palm Desert Electric Vehicle Program Master Agreement ("Agreement") for an initial term of five (5) years, which will expire on or about October 2, 2019; and B. WHEREAS, the Parties wish to extend the Agreement on the same terms for an additional term of five (5) years. AGREEMENT NOW, THEREFORE, the Parties hereby agree as follows: 1. Extension. The Agreement is extended for an additional term of five (5) years, on the same terms and conditions, except to the extent the provisions of the Agreement have already been completed, and expiring on October 2, 2024, unless extended by further agreement of the Parties. IN WITNESS WHEREOF, The Parties have executed this Agreement effective as of the date first above written. City of Palm Desert M. Susan Marie Weber, Mayor Address: 73 -5 10 Fred Waring Dr, Palm Desert, CA 92260 (760) 346-0611 Participant By: Name: Jennifer Gordon Title: General Manner Address: 72-840 Highway 111, Ste. 166 Palm Desert, CA 92260 (760) 346-2121 77365.00000\31924732.1 1 APPROVED AS TO FORM: ATTEST: By By: Robert W. Hargreaves Its: Secretary Counsel for City of Palm Desert ATTEST: Rachelle D. Klassen, City Clerk City of Palm Desert, CA 77365.00000\31924732.1 2 EXHIBIT `A' Description and Depiction of Site Westfield Palm Desert Mall located at 72-840 Highway 111, Palm Desert, CA 92260 Westfield has two (2) electric charging stations: Site One: More generally described as being located on the first floor, east side of parking garage located adjacent to Monterey Avenue, or northeast side of mall parking lot Site Two: More generally described as being located on first floor, west side of parking garage located adjacent to Town Center Way, or northwest side of mall parking lot A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfiLess, accuracy, or validity of that document. 77365.00000\31924732.1 3 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the trutliffilness, accuracy, or validity of that document. 77365.00000\31924732.1 4 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfikiess, accuracy, or validity of that document. 77365.00000\31924732.1 5 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfiAness, accuracy, or validity of that document. 77365.00000\31924732.1 6 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) 77365.00000\31924732.1 7 CONTRACT NO. C33700E CITY OF PALM DESERT ELECTRIC VEHICLE PROGRAM MASTER AGREEMENT This Electric Vehicle Program Master Agreement (this "Agreement"), effective as of June 12, 20i4 (the "Effective Date"), is entered into by and between the City of Palm Desert ("Palm Desert"), and The Regents of the University of California, on behalf of the University of California, Riverside (UCR and The Palm Desert Center), a California corporation ("Participant"). Palm Desert and Participant are at times referred to individually as a "Party" and collectively as the "Parties." RECITALS A. WHEREAS, Palm Desert has received a grant from the Mobile Source Air Pollution Reduction Review Committee ("MSRC") (the "Grant") to undertake the deployment of electric vehicle charging infrastructure (the "EV Project") and B. WHEREAS, Palm Desert desires to deploy electric vehicle Chargers at strategic locations as part of the EV Project, including commercial and university locations; and C. WHEREAS, Participant owns and operates the University of California, Riverside Palrn Desert Center located at 75080 Frank Sinatra Drive, Palm Desert 92211, and desires to participate in the EV Project upon the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the mutual undertakings and covenants herein, and for such other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree and covenant as follows: INSTALLATION 1.1 Expressly contingent upon Palm Desert's sole discretion in determining that it has sufficient funds through the Grant and other Palm Desert sources of funding and upon- the terms and conditions set forth herein, Palm Desert agrees to provide to Participant one (1) Level 2 Electric Vehicle Supply Equipment Charger ("Charger(s)") and to install such Charger(s) at Participants property located at 75-080 Frank SinatraDr., Palm Desert, CA 92211 (the "Site"), as further described and depicted on Exhibit "A" attached hereto and incorporated by this reference. Palm Desert grants Participant the right to use, and authorize its customers to use, the Charger(s) pursuant to the terms of this Agreement. 1.2 Palm Desert shall work with Participant and contractors to schedule and complete the installation of the Charger(s). Palm Desert shall not be liable for any failure to install the Charger(s) within any specific time frame due to any circumstances, including but not limited to funding, manufacturing, government permitting, UL certification, electric box or transformer upgrades, unusual installation conditions, inspection delays or other obstacles. 1.3 Palm Desert will bear all direct costs associated with the design, construction, purchase, delivery, signage, installation and initial setup of the Charger(s) at the Site, based on available funding to perform necessary work to install the Charger(gs J 'wl bw : 72500.0000118548145.5 3 Q CONTRACT NO. C33700E 1.4 Except as otherwise required pursuant to Sections 2.6 under this Agreement, Participant agrees during the Term of this Agreement and any renewal thereof, and in no event less than five (5) years from the date the Charger(s) are first operational and available to the public ("Operational Date"), not to uninstall, disable, turn off, remove, or relocate the Charger(s) without prior written approval by Palm Desert unless in the case of an emergency and at the direction of Palm Desert. 1.5 Participant hereby grants Palm Desert a limited license to use and occupy the areas at the Sites where the Charger(s) are located, including but not limited access and use of its electrical panels, for the sole purpose of installing, operating and maintaining the Charger(s) in accordance with this Agreement. Palm Desert shall obtain any necessary approvals for the Charger(s) installation and electrical hook-up from third party Site owners and landlords prior to the installation of the Charger(s) and as may be required under any contract or any federal, state or local law, rule, regulation, or MSRC grant requirement applicable to the rights and obligations under this Agreement ("Applicable Law") to which Palm Desert is bound. Participant agrees to cooperate with Palm Desert in obtaining any such approval. 1.6 Participant hereby agrees to provide parking space(s), electricity, and access to the Charger(s) at the Site to accommodate customer use of the electric charging units during scheduled hours, as further described and depicted on Exhibit "A." 2. CHARGER(S) OWNERSHIP, USE AND MAINTENANCE 2.1 All right, title and interest in and to the Charger(s), including all associated hardware, software and intellectual property rights (including, but not limited to, copyrights, patent rights, trademarks, trade secrets and trade names), as between the Parties shall at all times remain the sole property of Palm Desert. The Charger(s) shall not be transferred, delivered, or sublet by Participant to any person or corporation, shall remain free of all levies, liens, and encumbrances, shall not be collateralized, and no, security interest shall be granted therein. 2.2 Participant agrees that the Charger(s) shall be used and operated only for their intended use and only pursuant to this Agreement, and in a careful manner and in compliance with all governmental requirements. In no event shall the Charger(s) be misused or subjected to depreciation above the normal depreciation associated with the intended use thereof, or be used or operated for any illegal purpose. 2.3 Participant shall be, and hereby agrees to be, solely responsible for all costs and expenses related to and associated with operating the Charger(s), including but not limited to, all costs and expenses for electricity used and/or distributed by the Charger(s). Participant may impose a fee on customers for use of the Charger(s), including but not limited to all costs of electricity, however. Participant hereby agrees and covenants it will not impose any fee on customers for use of the Charger(s) during the period beginning on the Operational Date and ending on the one (1) year anniversary of the Operational Date. 2.4 Palm Desert shall repair, inspect and maintain the Charger(s) in good working order and condition and Participant hereby grants Palm Desert a limited and non-exclusive license to enter the Site for such purposes. In the event Participant revokes or materially alters such license prior to the expiration or termination of this Agreement in accordance with the terms herein, Participant, at its sole cost and expense, agrees to repair, inspect and maintain the Charger(s) in good working order and condition for the remaining term of this Agreement. 2.5 Participant is not responsible for any third parry's negligence or mistreatment (gross, criminal or otherwise) of the Charger(s) at the Site unless (a) Participant authorized such mistreatment, (b) the damages to the Charger(s) are caused by the negligence of Participant, or (c) the damages to the Charger(s) are the result of Participant failure to comply with the terms of this Agreement, including but not limited to Sections 1.4, 2.2, 2.4, and 2.6. 72so0.00001 \8548145.5 2 QCONTRACT NO. C33700E 2.6 Participant shall: (a) regularly inspect and clean the Charger(s) and the area around the Charger(s) on the same schedule and using the same degree of care that Participant uses for its own property, fixtures and equipment, but at least daily when open for business, including removal of graffiti, posted bills, stickers or other debris, ensuring the screen and user interface is clean for customer use; (b) maintain appropriate signage after initial installation by Palm Desert that clearly and prominently identifies and, where appropriate, provides directions to the Charger(s) so that they may be easily located by drivers of electric vehicles; (c) take reasonable efforts to ensure that the Charger(s) are readily accessible for use by customers and access is not blocked by vehicles not using the Charger(s); (d) promptly repair (or report to Palm Desert under Section 2.4) any evidence of damage, defects, hazards (for example, cut or worn cables, exposed wiring, cracked connectors, damage to connector pumps), or vandalism to the Charger(s); (e) promptly repair, or report in writing and within 24 hours to Palm Desert under Section 2.4, any observed or reported tampering, operational or maintenance issues with the Charger(s); and (f) disable access to and place "Out of Service" signs on any Charger(s) with safety or operational problems that are noticed by or brought to the attention of Participant until such Charger(s) can be promptly repaired. 2.7 Software to monitor use of the Charger(s) and the amount of electricity distributed by the Charger(s) may be available through the manufacturer or a third party vendor, from time to time. Participant agrees that it is solely responsible, for the determination whether or not to obtain such software for the Charger(s) and is and will be solely responsible for the costs and expenses of any such software. Participant agrees that Palm Desert does not require such software to be obtained. Notwithstanding the foregoing, in the event that Participant elects in its discretion to obtain such software, Participant hereby agrees that any information obtained by Participant related to the Charger(s) through such software which meets the definition of "Feedback" below, shall be considered Feedback subject to the terms of this Agreement. TERM; TERMINATION 3.1 The term of this Agreement shall commence on the Effective Date of this Agreement and shall end on the five (5) year anniversary of the Operational Date (the "Term"). 3.2 Termination for Cause by Either Partv. Either Party may terminate this Agreement in its entirety for cause if the other Party or its authorized personnel (a) commit a material breach or numerous breaches which collectively constitute a material breach of this Agreement, which is not cured or capable of cure within thirty (30) days after notice of such breach; (b) has a material adverse change in the financial condition which affects or will affect the Party's performance under this Agreement; (c) files proceedings, or has proceedings filed against it, under federal bankruptcy or state insolvency statutes, and a proceeding instituted against the Noticed Party is not dismissed within 30 days; or (d) has a receiver or trustee appointed for the property and assets of the Party related to this Agreement and the receivership is not discharged within 30 days of such appointment. 72500,00001\8548145.5 3 QCONTRACT NO. C33700E 3.3 Termination in Whole or In Part for Convenience Palm Desert. In the event Palm Desert wishes to terminate this Agreement, either in whole or in part, prior to the expiration of the Term without cause and for the convenience of Palm Desert, Palm Desert shall provide Participant with a thirty (30) days prior written notice of its intent to terminate, specifying with particularity the reasons for early termination (the "Termination Notice"), and shall confer in good faith to resolve any issues that caused the Termination Notice. 3.4 Effect of Termination. (a) Upon the termination of this Agreement for cause by either Party, or for convenience of Palm Desert, Palm Desert is authorized, at its sole discretion, either (i) to enter upon the Site, with or without legal process, and take possession of and remove the Charger(s) at its own expense and perform any work required to return the Site to a safe condition, with the electricity to the Charger(s) installation location capped, the breakers turned off, and the Charger(s) anchor/mounting bolts cut flush/removed; or (ii) to provide Participant a Bill of Sale for the Charger(s) which Participant shall accept. (b) Upon the termination of this Agreement and election of Palm Desert to provide Participant with a Bill of Sale for the Charger(s), Participant hereby expressly agrees not to uninstall, disable, turn off, remove, or relocate the Charger(s) for five (5) years from the Operational Date without prior written approval by Palm Desert unless in the case of an emergency and at the direction of Palm Desert. This Section 3.4(b) shall survive termination of this Agreement. 3.5 NEITHER PARTY SHALL, BY REASON OF THE EXPIRATION OR TERMINATION OF THIS AGREEMENT, BE LIABLE TO THE OTHER PARTY FOR COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF ANY LOSS OF PROSPECTIVE PROFITS, ANTICIPATED SALES OR GOODWILL OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS OR COMMITMENTS MADE IN . CONNECTION WITH THIS AGREEMENT OR THE ANTICIPATION OF EXTENDED PERFORMANCE HEREUNDER. 4. EXPIRATION Upon the expiration of the Term of this Agreement: 4.1 If Participant is imposing a fee for use of the Charger(s), Participant shall have the option to acquire ownership of the Charger(s) installed at the Site at no cost to Participant by providing Palm Desert thirty (30) days prior written notice of intent to acquire ownership of the Charger(s). Upon timely receipt of Participant's written notice of intent to acquire the Chargers) and upon the expiration of this Agreement, Palm Desert shall execute and deliver a bill of sale evidencing transfer of ownership of the Charger(s) to Participant; 4.2 If Participant is not imposing a fee for use of the Charger(s), and if the Charger(s) are maintained by Palm Desert pursuant to a license granted by Participant, Participant shall have the option to allow the Charger(s) to remain as then installed, owned and maintained by Palm Desert upon execution of a separate lease, maintenance, and service agreement with Palm Desert; or 4.3 Participant shall have the option to request that Palm Desert enter upon the Site and take possession of and remove the Charger(s) at Palm Desert's own expense and perform any work required to return the Site to a safe condition, with the electricity to the Charger(s) installation location capped, the breakers turned off, and the Charger(s) anchor/mounting bolts cut flush/removed. 72500.00001\8548145.5 4 QCONTRACT NO. C33700E FEEDBACK FROM OPERATION OF CHARGER(S) 5.1 "Feedback" means all information and data (whether provided in oral, written, electronic or other format) related to or generated by the installation, operation and use of the Charger(s) at the Site, received by Participant, during the Term of this Agreement. Feedback does not include any personal identification infonnation of customers, customer credit card numbers or financial institution information, or any other infonnation protected under the applicable privacy policies of either Party or any consumer privacy laws. 5.2 Participant agrees to use its best efforts to collect and record Feedback from customers and users of the Charger(s), their employees, their vendors, and their agents and deliver the'Feedback to Palm Desert at least quarterly following Site installation. PRESS RELEASE 6.1 The Parties will cooperate with each other in the preparation of a joint press release concerning the subject matter of this Agreement. The Parties must each approve the substance of the press release in advance of publication or distribution, such consent not to be unreasonably withheld or delayed. 6.2 Neither Party will publish any official statement or undertake any activity which would demean, tarnish, or negatively affect or impact in any way the services, products, marks, and/or image of the other Party. Neither Party will engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to the other Party or the EV Program. 7. REPRESENTATIONS AND WARRANTIES 7.1 Each Party represents and warrants to the other that: (a) It is a duly incorporated or organized, validly existing and in good standing under Applicable Laws; (b) It has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) It will comply with all Applicable Laws and has obtained and will continue to obtain all licenses, authorizations, approvals, consents or permits required to carry on and conduct its business as now conducted and as contemplated by this Agreement, except where the failure to do so would not have a material adverse effect on its ability to perform its obligations hereunder, and all of such licenses, authorizations, approvals, consent and permits are in full force and effect in all material respects; (d) It will not, and shall not authorize any third party to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to other Party or the EV Program; (e) The execution, delivery and performance of this Agreement and the consummation of the rights and obligations contemplated by this Agreement have been duly authorized by the requisite corporate action on the part of such Parry; and (f) The execution, delivery, and performance of this Agreement shall not: (a) conflict with, result in the breach of, or constitute an event which would, either immediately or with the lapse of time or giving of notice or both, result in a default under, or accelerate the performance required by, the terms of any agreement, document, contract, instrument or commitment to which it is a party or by which it is bound; (b) violate its articles of incorporation or bylaws; (c) conflict with or require any written consent or approval under any judgment, order, writ, decree, permit or license to which it is a party or by 72500.00001\8548145.5 5 CONTRACT NO. C33700E which it is bound; or (d) require the written consent or approval of any other party to any agreement, document, contract, instrument or commitment to which it is a party or by which it is bound. INSURANCE 8.1 Participant shall obtain, provide and maintain at its own expense during the Term of this Agreement, policies of insurance or self-insurance of the type and amounts described below and in a form that is satisfactory to Palm Desert: (a) General Liability Insurance. Participant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. (b) Automobile Liability Insurance. Participant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for activities of the Participant 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 $1,000,000 combined single limit for each accident. (c) Workers' Compensation Insurance. Participant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000). (d) Umbrella or Excess Liability Insurance. Participant may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Participant shall obtain and maintain an umbrella or excess liability insurance policy with limits of not less than $4,000,000 that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer's liability. Such policy or policies shall include the following terms and conditions: (i) A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; (ii) Pay on behalf of wording as opposed to reimbursement; (iii) Concurrency of effective dates with primary policies; and (iv) Policies shall "follow form" to the underlying primary policies. (v) Insureds under primary policies shall also be insureds under the umbrella or excess policies 8.2 Proof of Insurance. Participant shall provide certificates of insurance to Palm Desert as evidence of the insurance coverage required herein. Insurance certificates and endorsement must be approved by Palm Desert's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with Palm Desert at all times during the term of this contract. Palm Desert reserves the right to require complete, certified copies of all required insurance policies, at any time. 8.3 Duration of Coverage. Participant shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by Participant, his/her agents, representatives, employees or sub -consultants. 72500.00001 \8548145.5 QCONTRACT NO. C33700E 8.4 Palm Desert's Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Palm Desert has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by Palm Desert will be promptly reimbursed by Participant, or Palm Desert will withhold amounts sufficient to pay premium from Participant payments. In the alternative, Palm Desert may cancel this Agreement. 8.5 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 Palm Desert's Risk Manager. 8.6 Enforcement of Contract .Provisions (non estonnel). Participant acknowledges and agrees that any actual or alleged failure on the part of Palm Desert to inform Participant of noncompliance with any requirement imposes no additional obligations on Palm Desert nor does it waive any rights hereunder. 8.7 Snecifications 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. 8.8 Notice of Cancellation. Participant agrees to oblige its insurance agent or broker and insurers to provide to Palm Desert with a thirty (30) day notice of cancellation (except for nonpayment for which a ten [10] day notice is required) or nonrenewal of coverage for each required coverage. 8.9 Additional Insured Status. General liability policies shall provide, or be endorsed to provide, that Palm Desert and its officers, officials, employees, and agents shall be additional insureds under such policies. This provision shall also apply to any excess liability policies. 8.10 Self -Insured Retentions. Any self -insured retentions must be declared to and approved by Palm Desert. Palm Desert 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 specifications unless approved by Palm Desert. . 8.11 Palm Desert's Right to Revise Snecifications. Palm Desert reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Participant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Participant, Palm Desert and Participant may renegotiate Participant's compensation. 8.12 Timelv Notice of Claims. Participant shall give Palm Desert prompt and timely notice of claims made or suits instituted that arise out of or result from Participant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 8.13 Additional Insurance. Participant 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. 72500.00001\8548145.5 7 'CONTRACT NO. C33700E 9. INDEMNIFICATION 9.1 This Section 9 shall survive the expiration or termination of this Agreement. 9.2 Participant shall defend, indemnify and hold MSRC and Palm Desert and its affiliates, and any and all of its and their respective officers, directors, shareholders, employees, agents and representatives, and any and all of its and their assigns, successors, heirs and legal representatives, harmless from and against any and all claims, demands, litigation, settlements, judgments, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees) arising directly or indirectly out of or in connection with a breach of any representation, warranty or covenant of Participant hereunder or the negligent and/or willfully wrongful act or omission of Participant in performance of its obligations hereunder but only in proportion to and to the extent such liability, loss, expense, attorneys' fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions of Participant, its officers, agents, or employees. Palm Desert agrees to promptly notify Participant of any written claim or demand for which Participant is responsible hereunder. 9.3 Palm Desert shall defend, indemnify and hold Participant and its affiliates, and any and all of its respective officers, directors, shareholders, employees, agents and representatives, and any and all of its assigns, successors, heirs and legal representatives, harmless from and against any and all claims, demands, litigation, settlements, judgments, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees) arising directly or indirectly out of or in connection with a breach of any representation, warranty or covenant of Palm Desert hereunder or the grossly negligent and/or willfully wrongful act or omission of Palm Desert in performance of its obligations hereunder. Participant agrees to promptly notify Palm Desert of any written claim or demand for which Participant is responsible hereunder. 10. LIMITATION OF LIABILITY 10.1 EXCEPT FOR THE WARRANTIES STATED HEREIN FOR PARTICIPANT, NO WARRANTY, CONDITION OR REPRESENTATION, EXPRESSED, IMPLIED, ORAL OR STATUTORY, IS PROVIDED TO PARTICIPANT OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY, CONDITION OR REPRESENTATION: (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) THAT THE CHARGER(S) 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. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. PARTICIPANT'S SOLE AND EXCLUSIVE REMEDIES HEREUNDER AND THE ONLY LIABILITY OF PALM DESERT IS EXPRESSLY LIMITED TO THE TERMS OF THE AGREEMENT. PALM DESERT SHALL NOT BE LIABLE TO PARTICIPANT, OR ANY THIRD PARTY, FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, INCLUDING WITHOUT LIMITATION, LITIGATION COSTS, LOSS OF DATA, PRODUCTION OR PROFIT ARISING FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. FOR PURPOSES OF THIS PROVISION, PALM DESERT INCLUDES PALM DESERT'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, SUBCONTRACTORS AND SUPPLIERS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY CLAIMS FOR DAMAGES BY EITHER PARTY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ACTUAL RECOVERIES UNDER SUCH PARTY'S INSURANCE POLICIES. 72500.00001%548145.5 8 ©CONTRACT NO. 63700E 11. GOVERNING LAW 11.1 Any claim or controversy arising out of or related to this Agreement, including without limitation warranty claims, shall be governed by the internal laws of the State of California, without regard to conflicts of law principles. Venue for any cause of action relating to this Agreement shall be the state and federal courts located in Riverside County, California. 12. MISCELLANEOUS PROVISIONS 12.1 This Agreement does not make either Party the agent or legal representative of the other for any purpose and neither Party will transact any business or make any promise or representations in the name of, or on behalf of, the other without prior written approval. 12.2 'Grant. Any and all terms of the Grant received by Palm Desert from MSRC which impact the relationship between Palm Desert and Participant, but not otherwise incorporated in this Agreement, are hereby incorporated herein by this reference. Participant hereby agrees to abide by any and all such terms of the Grant, if any. 12.3 Assignment and Enforcement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Agreement may not be assigned by either Party and any attempted assignment is void, unless upon the prior written consent of the non -assigning Party. In the event of a breach or threatened breach by any Party hereunder, the other Party shall be entitled to all remedies provided by law or in equity, including without limitation the right to specific performance and damages. 12.4 Attornevs' Fees. In the event of litigation, arbitration or if an attorney is retained by either Party to this Agreement to enforce the terms hereof or to collect any monies due hereunder, the prevailing Party shall be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorneys' fees and court costs as awarded by the court or arbitrator. 12.5 Entire Agreement, Amendment: This instrument contains the entire agreement of the Parties with respect to the subject matter hereof and no representations, warranties or inducements have been made by either of the Parties except as expressly set forth herein. This Agreement may only be amended (a) in writing executed by both Parties or (b) as required for the Agreement to.conform to any local, state or federal government or regulatory agency or granting requirements applicable to Palm Desert. 12.6 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given on the earlier of actual receipt or two (2) days after deposit thereof in the United States mail in a sealed envelope, postage prepaid, registered or certified mail, and addressed to the address specified in this Agreement. 12.7 Counterparts. This Agreement may be executed by the Parties in separate counterparts, each of which when executed and delivered shall be an original, but all of which together shall constitute one and the same instrument. Facsimiles and email transmissions of ".pdf' or similar format shall be considered originals for purposes of this Agreement. 12.8 Severabilitv. If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be in any way impaired. 72500.00001\8548145.5 9 M CONTRACT NO. C33700E 12.9 Waiver. A provision of this Agreement may be waived only by a written instrument executed by the Party waiving compliance. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision. IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first above written. City of Palm Desert The Regents of the University of California, on behalf of the University of California, Riverside By: By: 10 Van G. Tanner, Mayor MWta R. An iano Vice Chancellor Planning and Budget Address: City of Palm Desert 73-510 Fred Waring Dr. Palm Desert, CA 92260 Approved as to Form: Address: University of California, Riverside 900 University Avenue Riverside, California 92521 Attest: By: By: Counsel fd City of Palm Desert ATTEST:- Name: Its: Secretary el a D: �K assen, ty Clerk City of PaTm_Desert, California 72500.00001\8548145.5 10 1101 CALIFORNIA State of California County of �� 1�Q.��v1 C�L On q before me, of the Officer �L(� vl l,P.4na PA Date \ - are nsert NameTitle r personally appeared W atto Name(s) of Signer(s) KA11E M. 8ANCHEZ COMINI a fit► 2025577 ,rg MAO" lYobry Pdltc • CSNfomft los Ar)aNrE - 1 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(&) whose name(s) is/ary subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/tIV& authorized capacity0esy, and that by his/her/their signature(s) on the instrument the person($), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS myhhan&and official seal. l Signature &A&WSe6f Natarykls.bri OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signers Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact - • • ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Individual ❑ Corporate Officer — Titie(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Top of thumb here 02007 National Notary Assodallon • 9350 De Soto Ave., P.O. Sac 2402 • Chatsworth. CA 91313-2402 • www.NabonaiNotary.org Item #5907 Reorder CallToll-Free 1-800-878-6827 0 CONTRACT NO. C33700E Exhibit "A" Description and Depiction of Site and Schedule of Operation University of California, Riverside located at 75-080 Frank Sinatra Dr., Palm Desert, CA 92211 Project site more generally described as UCR Palm Desert Campus parking lot B adjacent to sidewalk Exhibit "A" 72500.00001\8548145.5 Contract No. C33701 E FIRST AMENDMENT TO CITY OF PALM DESERT ELECTRIC VEHICLE PROGRAM MASTER AGREEMENT This First Amendment to City of Palm Desert Electric Vehicle Program Master Agreement ("First Amendment"), effective as of September 24, 2019 (the "Effective Date") is entered into by and between the City of Palm Desert ("Palm Desert") and The Regents of the University of California, on behalf of the University of California, Riverside (UCR and The Palm Desert Center), a California corporation ("Participant"). Palm Desert and Participant are at times referred to individually as a "Party" and collectively as the "Parties". RECITALS A. WHEREAS, on or about June 12, 2014, the Parties entered into the City of Palm Desert Electric Vehicle Program Master Agreement ("Agreement") for an initial term of five (5) years, which will expire on or about September 24, 2019; and B. WHEREAS, the Parties wish to extend the Agreement on the same terms for an additional term of five (5) years. AGREEMENT NOW, THEREFORE, the Parties hereby agree as follows: 1. Extension. The Agreement is extended for an additional term of five (5) years, on the same terms and conditions, except to the extent the provisions of the Agreement have already been completed, and expiring on September 24, 2024, unless extended by further agreement of the Parties. IN WITNESS WHEREOF, The Parties have executed this Agreement effective as of the date first above written. City of Palm Desert go Susan Marie Weber, Mayor Address: 73 -5 10 Fred Waring Dr Palm Desert, CA 92260 (760) 346-0611 Participant By: Name: Lisa Howell Title: Vice President, Administrative Services Address: University of California, Riverside 900 University Avenue Riverside, CA 92521 77365.00000\31924732.1 1 APPROVED AS TO FORM: ATTEST: By By: Robert W. Hargreaves Its: Secretary Counsel for City of Palm Desert ATTEST: Rachelle D. Klassen, City Clerk City of Palm Desert, CA 77365.00000\31924732.1 2 EXHIBIT `A' Description and Depiction of Site University of California, Riverside located at 75-080 Frank Sinatra Drive, Palm Desert, CA 92211 Project site more generally described as UCR Palm Desert Campus Parking Lot B adjacent to sidewalk. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 77365.00000\31924732.1 3 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the documment to which this certificate is attached, and not the trutlifiilness, accuracy, or validity of that document. 77365.00000\31924732.1 4 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 77365.00000\3 t 924732. 15 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 77365.00000\31924732.1 6 STATE OF CALIFORNIA } COUNTY OF RIVERSIDE } On , 2019, before me, , Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Seal) 77365.00000\31924732.1 7