HomeMy WebLinkAbout2016-07-26; City Council; Resolution 2016-1611
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RESOLUTION NO. 2016-161
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, FOR THE APPROVAL OF A CONTRACT WITH EVGO
SERVICES LLC FOR A SUM OF $0 DOLLARS TO INSTALL ELECTRICAL
INFRASTRUCTURE AT TWO CITY SITES FOR FUTURE ELECTRICAL
VEHICLE CHARGING STATIONS.
WHEREAS, the City Council of the City of Carlsbad, California has determined that it is
necessary, desirable, and in the public's best interest to install electrical infrastructure for
electrical vehicle (EV) charging in the city where feasible; and
WHEREAS, city staff has engaged an independent consultant to evaluate and prioritize
potential city sites that would be best suited for EV charging; and
WHEREAS, city staff and EVGO Services LLC have further evaluated these prioritized sites
to determine the electrical capacity that currently exists in these locations for the installation of
such infrastructure, and has selected two sites for this installation; and
WHEREAS, city staff has completed an evaluation of electrical vehicle charging service
providers and available technologies in the marketplace; and
WHEREAS, EVGO Services LLC is under a legal mandate to build out California's electrical
vehicle charging system infrastructure in workplace and public facilities statewide, at no cost to
the owners thereof; and
WHEREAS, the City Attorney's office has reviewed and approved ofthe Contract
proposed by EVGO Services LLC.
NOW, THEREFORE, BE IT RESOLVED by the City Council ofthe City of Carlsbad,
California, as follows:
1. That the above recitations are true and correct.
2. That EVGO Services LLC is accepted as the entity to coordinate and execute the
work of this project.
3. That the Contract with EVGO Services LLC meets the requirements of the city,
and the Mayor is hereby authorized to execute a Contract with EVGO Services LLC for this
project, and the Contract is attached hereto as Attachment A.
4. That the award of this Contract is based on EVGO Services LLC submitting the
required construction schedule and installation plan for approval, as described in the Contract.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City
of Carlsbad on the 26th day of l.!!!Y, 2016, by the following vote to wit:
AYES: Hall, Wood, Schumacher, Blackburn, Packard.
NOES: None.
ABSENT: None.
ATTEST:
(SEAL)
CONSTRUCTION SERVICES AGREEMENT
Host:
CITY OF CARLSBAD,
a municipal corporation of the state of California
r I \ Agreement Date:
vV. '1 Z6 · , 2016
This Construction Services Agreement ("Agreement") is entered into as of the Agreement Date by Host
and EVGO SERVICES LLC, a Delaware limited liability company ("EVgo").
A. Host Property & Premises
Host Property:
See Exhibit A for a list of Host Properties. This Agreement shall be construed as a separate agreement as
to each Host Property.
The location where the Installation Activities (defined below) shall take place at the Host Property (the
"Premises") is shown on the attached Exhibit A. Once EVgo obtains a right of way permit from Host,
Host grants to EVgo a non-exclusive license to use and occupy the Premises for, as applicable, the
design, development, construction, installation, and other activities set forth in the Agreement.
B. Scope of Work
1) EVgo shall be responsible for performing the Scope of Work identified on Exhibit B
attached hereto (the {/Installation Activities") for the installation of:
The number of Make-Ready Stubs at such Host Property set forth on Exhibit A. A "Make-Ready
Stub" consists of electric infrastructure, including without limitation conduit, wire, circuit breakers, and
junction boxes, as applicable, to support one circuit capable of supporting electric vehicle service
equipment, all as set forth in more detail on Exhibit B.
2) Unless otherwise specified on Exhibit A, Host shall be responsible for a total of:
$--0--towards the costs of such Installation Activities at each Host Property, payable upon
completion of the Installation Activities at such Host Property.
3) The term of this Agreement shall commence on the Agreement Date. Either party may
terminate this Agreement upon thirty (30) days' prior written notice to the other party, provided that
EVgo shall not terminate following commencement of the Installation Activities and prior to completion.
In addition, if Host terminates the Agreement (other than for cause) prior to completion of Installation
Activities, Host shall reimburse EVgo for all costs incurred by EVgo relating to the Installation Activities
within thirty (30) days of EVgo's presentation of an invoice and supporting documentation.
4) Before beginning the Installation Activities, EVgo shall provide a copy of the
construction schedule and installation plans to Host for its approval, which approval shall not be
unreasonably delayed or withheld. No work will begin until plans have been approved by Host and all
applicable permits and certifications have been obtained.
5) With respect to the Installation Activities, EVgo shall:
a. designate the contractors or other service providers and be solely responsible
for supervising such Installation Activities;
b. cause its designated contractors and service providers to obtain from
governmental authorities all licenses, permits, or other approvals (collectively, "Approvals11
) required to
conduct such installations. Host will reasonably cooperate with EVgds designated contractors and
service providers as required to obtain such Approvals;
c. bring on the Premises and permitted adjacent areas of the Host Property only
those materials and equipment that are being used directly in the Installation Activities;
d. perform Installation Activities only during times and days acceptable to Host
and in a manner so as to not unreasonably interfere with Host's business operations;
e. not permit or suffer any mechanic's or materialmen's liens to attach to the
Premises. If such a lien attaches to the Premises, EVgo shall remove or bond over such lien at EVgo's
sole cost and expense, within twenty (20) days of EVgo receiving written notice thereof from Host.
6) Host shall reasonably cooperate with EVgo to facilitate EVgo's Installation Activities,
including the provision of electricity to the Make-Ready Stub.
7) All electric infrastructure installed as part of the Installation Activities shall become
fixtures of the Host Property (and not the property of EVgo) upon completion of such installation and
the full payment of any applicable costs described above.
8) EVgo shall pass on to Host the warranties of its subcontractors, which shall be no less
than twelve (12) months.
C. INTENTIONALLY OMITTED.
D. Public Statements. EVgo may publicly disclose the name of Host, the address of the Host
Property, the number of Make-Ready Stubs at the Host Property, and brief status information about the
progress of construction at the Host Property.
E. Representations, Warranties & Covenants
1) Each of Host and EVgo hereby represents and warrants to the other that, as of the
Agreement Date: (a) it has all necessary power and authority to execute, deliver, and perform its
obligations hereunder; (b) the_ execution1 delivery, and performance of the Agreement have been duly
authorized by all necessary action and do not violate any of its governing documents, any contract to
which it is a party, or any law or regulation applicable to it; (c) there is no pending or, to its knowledge,
threatened litigation or proceeding that may adversely affect its ability to perform the Agreement; (d) it
is duly organized and validly existing under the laws of the jurisdiction of its organization; (e) the
Agreement constitutes a legal, valid and binding obligation of such party, except as enforceability may
be limited by applicable bankruptcy or similar laws and by general principles of equity; and (f) at all
times during the Term, it will comply with applicable federal, state, and local laws, rules, regulations in
performing its obligations under the Agreement.
2) Host further represents, warrants and covenants that it has obtained or shall obtain
prior to the commencement of EVgo's Installation Activities any and all consents or approvals required
in order for Host to grant the rights and perform its obligations under the Agreement, and for EVgo to
take the actions contemplated in the Agreement.
F. EVgo Insurance.
1) During the Term, EVgo shall maintain in full force and effect, at its cost and expense, the
following coverages and amounts of insurance: (i) Statutory Worker's Compensation Insurance, and
Employer's Liability limits of $1,000,000 per accident per employee; (ii) Commercial General Liability
Insurance, written on an occurrence basis, covering bodily injury (including death), personal injury, and
property damage, with limits of not less than $1,000,000 per occurrence, $2,000,000 aggregate;
(iii) Automobile Liability with a combined single limit of $1,000,000; and (iv) $1,000,000 in excess liability
coverage per occurrence, which coverage shall sit excess of the scheduled underlying General Liability,
and Automobile Liability and Employer's Liability Insurance policies with exclusions that are no more
broad that those contained in the underlying policies.
2) With respect EVgo's Commercial General Liability Insurance, Automobile Liability
Insurance and Excess Liability Insurance, include Host as an additional insured with respect to liability
arising out of EVgo's performance under the Agreement. EVgo shall consider its own insurance primary,
and shall not seek contribution from similar insurance being maintained by the Host as to the acts or
omissions of EVgo.
G. Indemnity
1) Indemnification. Subject to Sections G(2), and G(3) hereof, each party shall indemnify
and hold harmless the other party and its Related Parties from and against all claims, demands, causes
of action, liabilities, costs, damages, losses, penalties, fines, judgments or expenses, including
reasonable attorneys' fees and costs of collection (collectively, "Losses") that arise out of or result from
(i) any willful misconduct or negligence of such party or its Related Parties, (ii) any breach by such party
of its obligations, representations or warranties under the Agreement.
2) Waiver. Anything in the Agreement to the contrary notwithstanding, each party hereby
waives every right or cause of action for any and all loss of, or damage to (whether or not such loss or
damage is caused by the fault or negligence of the other party or anyone for whom said other party may
be responsible) the Host Property and any improvements thereon, or to the personal property of either
party, or its respective affiliates, representatives, agents, officers, directors, managers, members,
shareholders, partners, contractors, or employees ("Related Parties"), regardless of cause or origin.
These waivers and releases shall apply between the parties and they shall also apply to any claims under
or through either party as a result of any asserted right of subrogation.
3) Limitation of Liability. In no event shall either party be liable (in contract or in tort,
including negligence and strict liability) to such other party or its Related Parties for any special,
indirect or consequential damages relating to the Agreement. The entire liability of each party for any
and all claims of any kind arising from or relating to the Agreement will be subject in all cases to an
affirmative obligation on the part of the other party to mitigate its damages. Each party's total liability
to the other party and its Related Parties on an aggregate basis arising out of or in connection with
the Agreement, whether in contract or in tort, shall not exceed the total amount expended by the
other party directly in connection with the Agreement, except that this limitation of liability does not
apply to any damages covered by EVgo's insurance policies set forth in Section F [INSURANCE].
H. Miscellaneous
1) Notice. Any notice provided or permitted to be given under the Agreement must be in
writing and be served either by (i) deposit in the mail, addressed to the party to be notified, postage
prepaid, and registered or certified, with a return receipt requested, or (ii) deposit with an
internationally-recognized overnight delivery carrier, with notice of delivery to the recipient party.
Notice given by registered or certified mail or overnight carrier shall be deemed delivered and effective
on the date of delivery shown on the return receipt or proof of receipt. For purposes of notice the
addresses of the parties shall be as set forth in the Agreement. Each party. may change its address for
notice by giving notice thereof to the other party.
2) Assignment. The Agreement may not be assigned without the express written consent
of the other party; provided, however, that EVgo may assign its rights and obligations in and under this
Agreement to a successor by merger or acquisition or successor to all or substantially all of its assets at
any time and without consent. The Agreement is binding on and inures to the benefit of the parties and
their respective heirs, successors, assigns, and personal representatives.
3) Severability. If any term of the Agreement is held by any court of competent jurisdiction
to be invalid, such invalidity shall not invalidate the remainder of the Agreement and the Agreement
shall be construed and deemed reformed to the extent necessary to render valid such term and the
rights and obligations of the parties shall be enforced accordingly.
4) Governing Law; Waiver of Jurv Trial. The Agreement shall be governed by and
interpreted in accordance with the internal laws ofthe state where the Host Property is located without
giving effect to conflict of law rules. The parties hereby waive any and all rights to request or require
that a jury determine any fact, matter, dispute or litigation between them, or render any judgment or
decision, in any way concerning the Agreement, and agree that any and all litigation between them
arising from or in connection with the Agreement shall be determined by a judge sitting without a jury.
5) Remedies. The rights and remedies provided by the Agreement are cumulative, and the
use of any right or remedy by any party does not preclude or waive its right to use any or all other
remedies. These rights and remedies are given in addition to any other rights a party may have under
any applicable law, in equity or otherwise.
6) Force Majeure; Change in Law. Neither party is responsible for any delay or failure in
performance of any part of the Agreement to the extent that delay or failure is caused by fire, flood,
explosion, war, embargo, government requirement, civil or military authority, act of God, act or
omission of carriers or other similar causes beyond the party's control. If any rule, directive, order,
decision or law adversely impacts the ability for EVgo to perform its obligations under the Agreement
without becoming licensed or otherwise regulated by a public utility commission or analogous agency in
the relevant jurisdiction, EVgo may, at its option, immediately suspend performance under the
Agreement and/or terminate the Agreement upon notice to Host and without penalty.
7) Attorneys' Fees. If either party institutes a suit against the other for violation of or to
enforce any covenant, term or condition of the Agreement, the prevailing party shall be entitled to
reimbursement of all of its costs and expenses, including, without limitation, reasonable attorneys' fees.
8) No Third Party Beneficiaries. The Agreement does not confer any rights or remedies on
any person other than the parties and their respective successors and permitted assigns.
9) Integration; Amendments. The Agreement contains all Agreements, promises and
understandings between the parties, and that there are no verbal or oral Agreements, promises or
understandings between the parties. Any amendment, modification or other change to the Agreement
shall be ineffective unless made in a writing signed by the parties hereto.
10) Counterparts. The Agreement may be executed in any number of counterparts with the
same effect as if all the parties had signed the same document.
11) Construction. All documents or items attached to, or referred to in, the Agreement are
incorporated into the Agreement as fully as if stated within the body of the Agreement. Each party has
cooperated in the drafting, negotiation and preparation of the Agreement and nothing herein shall be
construed against either party on the basis of that party being the drafter of such language.
[Signature Page Follows
HOST:
CITY OF CARLSBAD,
a municipal corporation of the State of California
By: ~till~
Mayor
ATIEST:
By:~·
BARBARA EN SON
Notice Address:
Steven Stewart, Municipal Project Manager
City of Carlsbad
1635 Faraday Ave.
Carlsbad, CA 92008
EVGO:
EVGO SERVICES LLC,
a Delaware limited liability company
By: ~
Name: ---=G-"-'--~.::......!.~------"'S'--'-"kzlt~N:.__(A:::._.:·-=c,_ __ _
Title: CM-u: 0 ~vtvki Nj Ofl:::1 t.e~
Notice Address:
1000 North Post Oak Road, Suite 240
Houston, Texas 77055
Attn: President
with a copy to:
1000 North Post Oak Road, Suite 240
Houston, Texas 77055
Attn: General Counsel
If required by City, proper notarial acknowledgment of execution by contractor must be attached. !f..£
corporation, Agreement must be signed by one corporate officer from each of the following two
groups.
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary
under corporate seal empowering the officer(s) signing to bind the corporation
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
Exhibit A
Host Property & Premises
Host Property Address #of Make-Ready Stubs
State Street Parking Lot, (south of Carlsbad 2
Village Dr)
3045 State St. Carlsbad Ca. 92008
APN: 203-296-0600
Stagecoach Park 10
3420 Camino De Los Caches, Carlsbad, CA
92009
APN: 223-060-6100
Total Make Ready Stubs 12
See attached drawings showing the Premises.
State5treet Parkh1g
lot, (south of Carlsbad
Villag~ Dr.}
3045 state st. Carlsbad
Ca.92008
APN: 203-296.:0600
Stagecoach Park
3420 Camino De Los
&,q,c\.1~,
Carlsbad, CA 92009
APN: 223-060-6100
EXHIBJT A
Premises
Pagel
EVgo~
Exhibit B
Scope of Work
Caltrans Assessment Summary EVg<
IR£V Total Construction Constrvctbn Cost Portion I*' spect t1t Total tat\III!Utlli!N\ TotaiCoMtn.11 ompany lncatlon Construction ,,...,.. I.Dc:atlon of lt!V Spaeu Scope of Work Cost .......... be paW by cay of CastiDCityof Cortto!V( C..-cl ~.ad
StataStrutParichglot Obtain all applb.b!Qo bUicingpQrmlts. State. Street ParlciQg lot,
(SOWl of ~rlsbad lr.sUIII (2.) 40.ampctcultbr£a~ts inexistl1.: 100-af'l1)meter pedestal
Otyof \lh .. Dr) Rm{2).spaCtiQ'lrl~~as Trenchawoxinatel'/ 25' am ~\stall P'wt: eondJit ~LI'IC£
~lis bad ;tW5StateSt. Carlsbad £>asmg 2 you enta'" northenmi"'Ce to Pourconaeta pe:lestal ~st Mth (4) Qn'l~dd2d pp.;: boUiM"ds. 6f$XJJJO S3f$X!JJO 0.00 0.00 6,000.00
Ca. 92008 lot Install R£V eqtiprnert for 1 dtsl pedestalwith(2l50..art¥~ rQCeptacles
APN: 203-29&-0600 Milke allwtecol'llUtions,mer~Zi indtestfOf propor\'Oitiii
Obtain all iPJ)Ibbte bUidn&pml11ft$
Acus.s ~ampm:~:h swtu;h ~ ard t'lstall {1) l00-a"1)480-volr: dJtlit br~aki:r
Wet core to ol.t5id2ar.!a behi'ld gens-~randinstaljurction box:iS (2) ii.S necessary
imccacl!Parl< Install (1) l(l)-a~480-YoUdiscomectswitch
34io Camino De las Install (lJ 75 WA ~nsformer and 225-.aJt1)120/203-volt ~~
an.· of ~ Ca!l;bad, C.-'\ ~ 10 Jbt {10) stals on souih sJdQ: lrstal{lO) drrUtbrealcers ilel~lpill"'il $27,500.00 S2,7SO.OO 0.00 0.00 $27,210.()! :.nsbad 92009 d parlciflibtfa~stRet Wetcoreo!J:erblock \\-all ilnd ins~ljurction I:Dxes as necesSilry
APN: 223.®-6100 Tre'ICh approx:lnately 160' acrosscreerN!tardinstill ~ condUtand wire:underwound
PoiX (S)ni'W COta~tQ ~tal bilsti
lrtml (5) tanciun \lo'h.aoi:l stops
Furnish <Yid MilliS) lhill charp:r~sY.-ith{2J50-,;;itrftri!C€ptad2s Qach
MakQ allwi"e: cofftctions,mer.;z.e andtestfor proper voltage
I -u SD,!DCI $l,llLOO $0 so sa.wl