HomeMy WebLinkAboutC33700A-C and D- Electric Vehicle Charging Stations CITY OF PALM DESERT
SPECIAL PROGRAMS DEPARTMENT
STAFF REPORT
REQUEST: Award of Construction and Installation Contract for the Electric
Vehicle Charging Stations and Authorize the Mayor to Enter into
Agreements with Property Owners at Designated Sites
SUBMITTED BY: Frankie Riddle, Director of Special Programs
DATE: June 12, 2014
CONTENT: Agreements
Contract No. C33700 A-D
Recommendation
By Minute Motion,
1. Authorize the Mayor to enter into public/private agreements with the
following property owners for the installation and use of electric vehicle
charging stations: a) Desert Community College District (College of the
Desert); b) PRU/Desert Crossing, LLC; and c) WestField, LLC;
2. Authorize the construction and installation of electric vehicle charging
stations through the utility easement agreement at Presidents Plaza East,
West, and III; and
3. Award construction and installation contract for electric vehicle charging
stations to Native Electrical Construction, Inc. in the amount of $105,000.
Discussion
The installation of electric vehicle charging stations commenced with the upgrade of the
Civic Center Electric Vehicle Charging Station Facility, through the Reconnect California
Grant Program offered through the California Energy Commission, Department of
Energy (DOE). However, prior to this, the City was awarded grant funds through the
Mobile Source Air Pollution Reduction Review Committee (MSRC)/South Coast Air
Quality Management District (SCAQMD) to upgrade the Civic Center facility. Since the
City participated in the Reconnect California Program, staff requested from City Council
and MSRC that awarded grant funds be redirected to focus on expanding the electric
vehicle charging station infrastructure throughout the City as a community program.
Approval of redirecting the funds allowed staff to undertake a two phased project (e.g.,
public facilities and private facilities). Once the City's Civic Center Facility project was
completed, staff commenced working with targeted sites that were major shopping
complexes/areas (i.e., Desert Crossing, Westfield, Wal-Mart and Sam's Club, Costco,
Contract No. C33700 A-D
STAFF REPORT
ELECTRIC VEHCLE CHARGING STATION COMMUNITY PROJECT
JUNE 12, 2014
PAGE 2
UCR, COD, CSUSB, EI Paseo, etc.) for potential community partners. Staff now has
several agreements in place to move forward with installing additional electric vehicle
(EV) charging stations at strategic locations throughout the City as identified above.
There are a total of six sites with seven EV charging stations proposed at the following
sites:
• Desert Crossing (by DSW Shoe Store): 1 Station
• College of the Desert (by communication's building at Monterey entrance): 1
Station
• Westfield Mall (first floor of each parking garage): 2 Stations
• Presidents Plaza East (behind Elephant Bar): 1 Station
• Presidents Plaza West (behind Casuelas Cafe/Jaime's Barber Shop): 1 Station
• Presidents Plaza III (behind Creative Hair or general area of Wolfgang Pucks): 1
Station
The MSRC grant award in the amount of$77,385 is a 50/50 match grant. Currently, the
City has $258,000 in AB2766 funds available which will be used for the City's 50%
match. The total grant including 50% match is $154,770. Since there is a total of
$258,000 in AB2766 funds available, sufficient funds exist not only to undertake this
phase of the project, but potentially to complete an additional phase as well which will
include other sites that the City is currently negotiating contracts with. Since negotiation
of contracts has taken some time, staff felt it prudent, at this stage, to move forward with
property owners/sites with finalized agreements.
Staff published a Notice Inviting Bids in the Desert Sun and received bid proposals from
seven (7) companies interested in undertaking the project. The table below outlines the
company name and bid amount in order of lowest to highest bidder:
Bidder Name Bid Amount:
1 Native Electric Construction — Ramona, California $105,000.00
2 Clean Fuel Connection, Inc. — Arcadia, California $119,806.20
3 ABM Electrical and Li htin Solutions, Inc. — Irvine, California $157,963.55
4 Saturn Electric, Inc. — San Die o, California $199,188.00
5 Pacific Li htin Mana ement— Sana Ana, California $207,772.00
6 Gold Coast Construction Grou — Westminster, California $219,820.00
7 Global Power Grou , Inc. —Anaheim, California $568,513.03
As reflected in the above table, the proposals received were wide ranging with a low bid
of $105,000. As a result, staff verified references listed within the bid proposal of the
lowest bidder. References noted that contractor performed as per contract and there
were no issues relative to their perFormance.
Contract No. C33700 A-D
STAFF REPORT
ELECTRIC VEHCLE CHARGING STATION COMMUNITY PROJECT
JUNE 12, 2014
PAGE 3
Fiscal Analvsis
Funding for these projects are through the MSRC Grant and the City's AB2766 funds.
Therefore, there will be no impact to the City's General Fund.
Submitted By:
CIT�'�"'t��'�iCILAQ'TION � �
A��t����,�r�;..;�_ � DEIVIED
Frankie le ���'-���'�����'���- OTHER
Director of Special Programs ��
1V�F.I�,'T��� '(X �:�[� ���
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Reviewed: NU�,�,
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�' AI3STAIN: ��
VERIF(ED I3Y:
Paul Gibson Original on File with Ci lerk's Office
Director of Finance
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Rudy costa
Assistant City Manager
�oval:
� �,
n M. Wohlmuth
ity Manager
Contract No. C33700A
CITY OF PALM DESERT
ELECTRIC VEHICLE PROGRAM MASTER AGREEMENT
This Electric Vehicle Progam Master Ageement(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."
RECTTALS
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
E�ibit"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).
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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, ar 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 accardance 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 E�chibit"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
properiy 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.
23 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 far 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,
Initial Inrtial Palm Desert agrees to repair and maintain the Charger(s) in good warking order
and condition,properly serviced and repaired during the Term of this Agreement.
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Contract No. C33700A
2.5 Participant is not responsible for any third party's negligence or mistreatment (gross,
criminal ar 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
(fl 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
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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 related to 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) far 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:
41 If Participant is imposing a fee far 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 far 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
43 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.
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Contract 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.
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 Pariy 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 ar 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 ar 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
(� 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 ar approval under any judgment, order, writ, decree, permit or license to which it is a party or by
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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 Liability Insurance. Participant shall maintain commercial general
liability insurance with coverage at least as broad as Insurance Services Office form CG 00 O1, 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. Participant shall maintain automobile insurance at
least as broad as Insurance Services Office form CA 00 O1 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
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.
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Contract N0. C3370A
8.3 Duration of Covera�e. Participant shall procure and maintain for the duration of this
Agreement, insurance against claims far 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 Ri�hts of Enfarcement. 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 Subro a,�tion. 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 esto�el�. Participant acknowledges and agees
that any actual ar 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 �ecifications Not Limiting. Requirements of specific coverage features or limits
contained in this Section are not intended as a limitation on coverage, limits or other reyuirements, or a
waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature
is far 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, ar 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,
or replaced by a deductible. Self-insurance will not be considered to comply with these specifications
unless approved by Palm Desert.
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Contract No. C33700A
8.13 Timely 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 ar 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
Contract 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.
ll. 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
far any purpose and neither Party will transact any business or make any promise ar 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 Parly and any attempted assignment is void, unless upon the priar 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
Parly shall be entitled to recover, in addition to any other remedy, reimbursement far reasonable attorneys'
fees and court costs as awarded by the court or arbitrator.
12.5 Entire A�reement; 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.
9
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 enfarceability 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 [Participant]
By: By:
Van G. Tanner,Mayor
Name: Lisa Howell
Title: Vice President,Administrative Services
Address: Address: 43-500 Monterey Avenue
Palm Desert, CA 92260
(760)674-7625
Approved As To Form: Attest:
By: By:
Its: Secretary
Counsel for City of Palm Desert
10
Contract No. C33700A
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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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. C3�700B
CITY OF PALM DESERT
ELECTRIC VEHICLE PROGRAM MASTER AGREEMENT
This Electric Vehicle Program Master Agreement (this "Agreement"), effective as of_A.pril
24, 2014_(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 A�ent Four Partners LLC d/b/a/UCR Asset Services
("Participant") having an address c/o UCR Asset Services 8080 Park Lane Suite 800, Dallas, Texas 75231.
Palm Desert and Participant are at times referred to individually as a"Part�'and collectively as the"Parties."
RECTTALS
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`BV 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 Desert Crossing Shopping Center located at
Highway 111 and Fred Waring Drive in Palm Desert, California 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
(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,
goveniment permitting, UL certification, electric box ar 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).
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
72500.00001\8497816.2 1
Contract No. C33700B
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 or 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 accardance 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, ar 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, ar 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,
Initial 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.
nsoo.0000��sa9�a�6.2 2
Contract No. C33700B
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 autharized 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 ar maintenance issues with the Charger(s);
and
(fl 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.
Palm Desert agrees that it 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 ar 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 perfarmance 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; (d) has a receiver or
72500.00001\8497816.2 3
Contract No. C33700B
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 or(e) if, due to no fault of either party, the Charger(s)
become inoperable such that they no longer serve the purpose for which they were intended under this
Agreement.
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 ar 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 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; 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 or 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 PROFTTS, ANTICIPATED SALES OR GOODWILL OR ON ACCOUNT OF
EXPENDITURES, INVESTMENTS OR COMMITMENTS MADE 1N 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
72500.00001\8497816.2 4
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.
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.
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 Ageement. 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 ar unethical practices that
may be detrimental to the other Party or the EV Program.
7. REPRESENTATIONS AND WAR.RANTIES
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 farce 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
(fl The execution, delivery, and performance of this Agreement shall not: (a) conflict
with, result in the breach of, ar 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
72500.00001\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 ar 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 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 O1, 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 Liabilit�Insurance. Participant shall maintain automobile insurance at
least as broad as Insurance Services Office form CA 00 O1 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 far 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
72500.00001\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 ar damages to property, which may arise from
or in connection with the performance of the work hereunder by Participant, his/her agents,
representatives, employees ar 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 ar 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 accardance with the latest edition of Best's Key Rating Guide, unless otherwise approved by
Palm Desert's Risk Manager.
8.6 Waiver of Subro a�. 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 ar 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 �ecifications Not Limitin�. 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 far 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 Ri�ht 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,
�zsoo.0000i�aa9�ai6.z 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 TimelyNotice 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 ar 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 ar indirectly out of or in connection with a breach of
any representation, warranty or covenant of Palm Desert hereunder ar 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, 1NCLUDING,
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,
1NCLUDING 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, CONSEQLJENTIAL,
1NCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, 1NCLUDING WITHOUT
LIMITATION, LITIGATION COSTS, LOSS OF DATA, PRODUCTION OR PROFIT ARISING FROM
72500.00001\8497816.2 g
Contract No. C33700B
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 1N 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 far 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 ar 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 ar 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
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]
�Zsoo.0000i�sa9�sib.z 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 UCR Asset Services
As Agent for PRU/Desert Crossing, C
^
By: By:
Van G.Tanner, Mayar J. Scot eaver,President
Address: Address: 8080 Park Lane, Suite 800
Dallas,Texas 75231
Approved As To Form: Attest:
By: By: ���'"".,�"'" ��/M.d'�—�{���i _ 1
Its: Secretary �nU%W"`�
// �
Counsel for City of Palm Desert ������ �.J '�
_�_.:..._— — — ———�
�,`""
DEBAA CMtOI CAN1101►
M�r Comrni=tiDn E�Mr�
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Aptil Z0.20f 7
72500.00001\8497816.2 11
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"
72500.00001\84978 l 6.2
Contract No. C33700C
CITY OF PALM DESERT
ELECTRIC VEHICLE PROGRAM MASTER AGREEMENT
This Electric Vehicle Program Master Ag�+eement(this"Ageement"),effective as of June 12,
2014 (the "Ef�ective Date'�, is ente�ed into by and between the City of Patm Dese�t ("Palm Desert"), and
West6eld,LLC,a Delaware limite�liability company, in its capacity as agerrt for the owner of Westfield Palm
Desert ("Participant'�. Palm Desed and participant are at times referred to individually as a "Party" and
collectively as the"Parties."
RECITALS
A. WHEREAS, Patm Desert has received a grant from the Mobile Source Air Potlution
Reduction Review Committee ("MSRC") (the "Grant'� to undertake the deployment of
elecUic vehicle charging infrastructure(the"EV Project")and
B. WHEREAS, Paim Desert desires to deploy electric vehicle Chargers at strategic locations as
part of the EV Projeat, including commercial and university locations;and
C. WHEREAS, Participant owns and operates Westfield Palm Desert located at 72-840 Highway
l 1 l, 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) Leve12 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 feirther 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 instatlation
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, 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). The design and location
of the Charger(s) within the Shopping Center shall be mutually agreed to by the parties and shall be
1
I
completed pursuant to plans and speci.fications previously approved by Participant, such approval not to be
unreasonably withheld. All work shaN 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 Chazger(s)
are first operationa( and available to the public ("Operational Date"), not to uninstatl, disable, turn off,
remove, or relocate the Charger(s) without prior written approval by Paim 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, shatl 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 Chazger(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 appticable 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 5ite 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 accesa to the
Charger(s)at the Site to accommodate customer use of the electric chazging 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 Chazger(s), including all associated hatdware,
soflware 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 Chazger(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 Chazger(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
Contract No. C33700C
2.3 Participant shall be, and hereby agrees to be, solely responsible for alt 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 electrieity 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 wip not impose any
fee on customers for use of the Charger(s)during the period begutning on the Operational Date and ending
on the one(l)yeaz 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 sueh 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 party'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 removat 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 Pafm 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 awaze;
(e) report in writing or verbally and within seventy-two (72) hours to Palm Desert
under Section 2.4, any observed or reported tampering, operational or maintenance issues with the
Charger(s);and
(fl 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 Soflware 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.
3
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 responsibte for the costs and expenses of any such softwaze.
Participant agrees that Palm Desert does not require such soRware to be obtained and the Parties agree that
Participant is not obtigated to utilize any such software. Notwithstanding the foregoing, in the event that
Participant elects in its discretion to obtain such softwaze, 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 cnre within thirty (30) days after notice of such breach; (b) has a material �dverse 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 disrtiissed within 30 days; or(d)has a receiver or
trustee appointed for the properly 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 Partv. 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 witlt 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 retum the Site to a safe
condition, with the electricity to the Chazger(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
Chazger(s) instaliation location capped,the breakers tumed 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, ParticipanYs 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 shail review the actual combined Removat Cost and Instaltation Cost and consider an adjustment to
the proration of ParticipanYs liability. AII such work shall be coordinated with Participant to minimize any
interference with the operation of the Shopping Center.
3.5 NEITI-IER 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 Charget(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 instaUed,owned and maintained by Palm Dese�t;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 dces 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 Chazger(s), their employees, their vendors, and their agents and deliver
the Feedback to Palm Desert at least quarterty 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 publicarion 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
the other Party. Neither Party will engage in any deceptive, misleading, iltegal or unethical practices that
may be detrimental to the other Party or the EV Program.
7. REPRESENTAT[ONS AND WARRANTIES
7.1 Each Party represents and warrants to the other that:
(a) [t is a duly incorporated or organized, validiy 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 Ageement;
(c) It will comply with all Applicable Laws and has obtained and wili 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 detrimentai 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
(fl 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 tapse 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 gene�al
liability insurance with coverage at(east as broad as Insurance Services Office form CG 00 Ol, 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.Each Party shall maintain automobile insurance
at least as broad as Insurance Services Office form CA 00 O1 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 Insurar�e. Each Party shall maintain Workers'
Compensation Insur�ce(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 of�'icers,agents,em plo yees and volurrteers.
(d) Each Party may opt to u6lize umbreila 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 shatl 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 polieies,at any time.
83 Intentionally Omitted.
8.4 Ri�hts of Enforcement Ia the event any policy of insurance required of a Party under this
Agreement does nat 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 Vll
(or larger)in accordance with the latest edition of Best's Key Rating Guide.
8.6 Waiver of Subro ation. Atl insurance coverage maintained or procured pursuant to this
agreement shalt 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 estonpel). Each Party acknowledges and agrees
that any actual or alleged failure on the part of the other Pazty to inform the other Party of noncomptiance
with any requ'vement imposes no additional obligations on the informing Party nor does it waive any rights
hereunder.
8.8 Specifications Not Limitin¢.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 ins�ance. Specific reference to a given coverage feature
is for purposes of clazification orrly 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[l OJ day notice is required)or
nonrenewal of coverage for each required coverage.
7
8.10 Additional Insured Status. General liability poticies of Palm Desert shall provide,or be
endorsed to provide,that the below entities and its officers,officials,employees,and agents shall be
additionai 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.,Wes�eld America Limited
Partnership, Westfield,LL,C,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 intarests may appear.
Intentionally Omitted. Intentionally Omitted.
8.11 Intentionally Omitted.
8.12 Intentionally Omitted.
8.13 Time�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 perforrr►ance under this
Agreement and that involve or may involve coverage underany 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�liates,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 (inciuding, but not limited to, reasonabte 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 negtigent 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�liates, and any and al(
of its respective o�cers, d'trectors, 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, titigation, 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 connecrion 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
8
Contract No. C33700C
CHARGER(S) WILL BE FREE FROM [NFRINGEMENT OR VIOLATION OF ANY RIGHTS,
iNCLUDING INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES; OR (C) THAT THE
OPERATION OF ANY SOFTWARE SUPPLIED WII.,L BE UNIN'I�RRiJpTED OR ERROR FREE.
THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY
EIEREIN FAILS OF ITS ESSENTIAL PURPOSE. EACH PARTY'S SOLE AND EXCLUSIVE
REMEDIES HEREUNDER AND THE ONLY LIABILITY OF EACH PARTY [S EXPRESSLY
L[MITED TO THE TERN[S OF THE AGREEMENT. EACH PARTY SHALL NOT BE LIABLE TO
THE OTI-iER, FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR
[NDIRECT COSTS OR DAMAGES, INCLUDING WITHOUT L[MITATION, LIT[GATION COSTS,
LOSS OF DATA, PRODUCTION OR PROFIT ARISING FROM ANY CAUSE WHATSOEVER,
REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CON�'RACT, TORT(INCLUDING
NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH COSTS OR DAMAGES.
1 l. GOVERNING LAW
1 l.l Any claim or controversy azising out of or related to this Ageement, including without
limitation warranty claims, shall be governed by the internal laws of the State of California,without regazd
to conflicts of law principies. 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 wi11 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 tetms of the Grant received by Palm Desert from MSRC which impact
the relationship between Palm Desert and Participant, but not otherwise incorporated in this Agrcemen�
are hereby incorporated herein by this reference. Participant hereby agrees to abide by any and all such
terms of the Grant, if any.
123 Assisnment 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 Ageement
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 Attorne s'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 entitted 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 A�reement• 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 regulaxory agency or granting requirements applicable to Pa1m 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
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 Agree,�nent 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 ".pdfl' 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 shal! 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 We�eld Palm Desert
By: BY�
Van G.Tanner,Mayor
Name:
Title:
Address: Address:
Approved As To Form: Attest:
By: BY�
Counsel for City of Palm Desert Its: Secretary
10
Contract No. C33700C
Ez6ibit KA"
Description and Depiction of Site ,
Westfield Patm Dese�t Mall located at 72-840 Hwy 11 l,Palm Desert,CA 92260
W�'ield to have two(2)elech�ic charging s�ations:
Projed Site One: More generally descnbe�as being Ivcated on the fust floor,e�ast side of parking�rage
� located adjac,ent to Monterey Ave.or northeast side of mall�rking lot
Projed Site Two: More generally described as being locatetl on first floor,vvest side of parking garage located
adjacent to Town Center Way or northwest side of mall padang lo�
Exhibit"A"
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CALIFORNIA ALL-PURPOSB ACKNOWLEDdMENT
CNIL CODE§1189
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State of Colifornia 1
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Name(sj of Signer(s)
who proved to me on the basis of satlstactory
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to me th�t he/she/they executed the same in
hisJherRhek authorized capacity{ies), and that by
his/hedtheir signature{s) on the instn�ment the
person(s), or the entity upon behaH of which the
person(s)acted,executed the instrument
I certffy under PENALTY OF PERJURY under the laws
of the 5tate of Califomia that the foregoing paragraph
is true and correct.
WITNESS my hand and o�cial seal.
Place Notary Seal Above Slgnature:__.__.,,,._
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5ignsture of Notary Public
OPTIONAL
Though this section is npfionef,campleting thrs information can deter alteration of the document or
treudulent re+�itachmeni of this form to an unintended document.
Descripdon oi Attached Doc�ment
Title or Type of Document: ............ ._ ,________._ Documerrt Date: ..___
IJumber of Pages: __. Signer(s) Other Than Named Above: ___. _.,�___._,^_...____..,��y„
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c�2013 National Notary Association•www.NationalNotary,org•1-800-US NOTARY(1-800-876-8827� Item 1k5�7
CONTRACT N0. C33700D
G - AGREEMENT
THIS AGREEMENT is made and entered into this 1st day of July ,
20 14 , by and befinreen City of Palm Desert, California, hereafter called "CITY" and
Native Electrical Construction, Inc. hereinafter called "CONTRACTOR".
WITNESSETH
RECITALS:
CONTRACTOR has submitted to CITY its Contractor's Bid for the construction of CITY
Project,
1. CITY OF PALM DESERT COMMUNITY ELECTRIC VEHICLE CHARGING
STATIONS PROJECT, CONTRACT NO. , in strict
accordance with the Contract Documents identified below, CITY has accepted
said Bid.
2. CONTRACTOR states that it has re-examined its CONTRACTOR'S Bid and
found it to be correct, has ascertained that its Subcontractors are properly
licensed and possess the requisite skill and forces, has examined the site and
Contract in accordance with the Contract Documents for the money set forth in
its Bid to be paid as provided in the Contract Documents.
AGREEMENT:
IT IS AGREED BY THE PARTIES AS FOLLOWS:
1. Contract Documents: The entire contract consists of the following: (a) The
Agreement; (b) The Notice Inviting Bids; (c) The Instruction to Bidders; (d) The
Contractor's Bid; (e) The Bidder's Bond; (fl The Performance Bond; (g) The
Payment Bond; (h) The General Specifications; (i) The Special Provisions; (j)
The Standard Specifications as modified in other portions of the Contract
Documents; (k) The Plans; (I) Addenda Nos. 2 ; (m) The Determination of
Prevailing Wage Rates for Public Work; (n) Any Change Orders issued; (o) Any
additional or supplemental specifications, notices, instructions and drawings
issued in accordance with the provisions of the Contract Documents. All of said
Documents presently in existence are by this reference incorporated herein as if
here set forth in full and upon the proper issuance of their documents they shall
likewise be deemed incorporated.
2. Contractor shall commence the work within ten calendar days after the date of
the Notice to Proceed and will do all things necessary to construct the work
generally described in Recital No. 1 in accordance with the Contract Documents
and will complete said work within 60 Calendar Days from the Notice to Proceed
date to the satisfaction of the Director of Special Programs.
CONTRACT N0. C33700D
3. Contractor agrees to indemnify, defend and save CITY and its officers, agents
and employees, and the Director of Special Programs harmless from:
a. Any and all liability, claims, damages, losses or injuries to any person or
other entity, including injury to Contractor's employees, and all claims
which arise from or are connected with the negligent perFormance of or
failure to perform the work or other obligations of this Agreement, or which
are caused or which are claimed to be caused by the negligent or
intentional acts or omissions of Contractor, its subcontractors, its agents
or employees, and, all expenses of investigating and defending against
same,
b. Any and all liability, claims, damages, losses or injuries to any and all
contractors, subcontractors, material-men, laborers, or any other person,
firm or corporation furnishing or supplying work, services, materials or
supplies in connection with the performance of the Agreement.
c. Attention is directed to the General Specifications - Claims, Liability, and
Indemnity Agreement/Hold Harmless sections, which specifications are
made part of this Agreement as set forth in Agreement paragraph 1,
above.
d. Attention is directed to Section 6-9, "Liquidated Damages" of the
Standard Specifications and is hereby amended to substitute the "City of
Palm Desert" in place of"Agency." Liquidated damages shall be $ 500
dollars per calendar day of delay.
4. Should any litigation or arbitration be commenced between the parties
concerning the works of improvements as referenced herein, the prevailing party
in any such litigation, being the CITY or the Contractor, should be entitled to a
reasonable sum for attorney's fees incurred in any such litigation relating to this
Contract.
5. This Agreement shall be binding upon all parties hereto and their respective
heirs, executors, administrators, successors, and assigns.
6. Contractor shall be paid in the manner set forth in the Contract Documents the
amount of its Bid as accepted by CITY, subject to such additions and deductions
as may be made pursuant to the Contact Documents and applicable law.
Satisfactory Performance: The prime Contractor agrees to pay each
Subcontractor under this prime contract for satisfactory perFormance of its
contract no later than 10 days from the receipt of each payment the prime
Contractor receives from City of Palm Desert. Any delay or postponement of
payment from the above referenced time frame may occur only for good cause
following written approval of the City of Palm Desert.
CONTRACT N0. C33700D
Release of Retention: The prime Contractor agrees further to release retention
payments to each Subcontractor within 30 days after the Subcontractor's work is
satisfactorily completed. Any delay or postponement of payment from the above
referenced time frame may occur only for good cause following written approval
of the City of Palm Desert.
7. Execution of the Agreement by the parties constitutes their agreement to abide
by all applicable provisions of the California Labor Code; constitutes contractor's
certification that he is aware of the provisions of said Code and will comply with
them; and further constitutes Contractor's certification as follows:
"I am aware of the provisions of Section 3700 of the California Labor Code which
requires every employer to be insured against liability for worker's compensation
or to undertake self-insurance in accordance with the provisions of that Code,
and I will comply with such provisions before commencing the performance of the
work of this contract."
IN WITNESS WHEREOF the parties hereto have executed or caused to be
executed by their duly authorized officials, this Agreement which shall be deemed an
original on the date first above written.
(Remainder of this page has intentionally been left blank.
Signature blocks are contained on the next page]
CONTRACT N0. C33700D
CONTRACTOR:
gy: ATTEST BY:
Signature to be notarized
Print Name
TITLE: TITLE:
CITY:
gY: ATTEST BY:
Signature to be notarized
TITLE: Mayor of Palm Desert, CA TITLE: City Clerk of Palm Desert, CA
APPROVED AS TO CONTENT: APPROVED AS TO FORM:
FRANKIE RIDDLE DAVID J. ERWIN
DIRECTOR OF SPECIAL PRORAMS CITY ATTORNEY