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S-1327 - 12/27/2011 - LICENSE AGREEMENT - Ordinances Supporting DocumentsS�'i�liilY Y'i� AGENDA ITEM Special Board of Trustees Meeting of December 27, 2011 SUBJECT: Electric Charging Station Agreement with 350Green FROM: David Niemeyer, Village Manager BUDGET SOURCE/BUDGET IMPACT: N/A RECOMMENDED MOTION: Motion to Approve Ordinance 2011- AG -EX1 -S -1327, an Ordinance Approving and Authorizing a License Agreement for the Installation of Electric Vehicle Charging Stations Between the Village of Oak Brook and 350 Green. Background/History. Attached is an agreement between the Village and 350Green to install 2 electric car charging stations at the Oak Brook Library and Oak Brook Golf Club. The stations will cost the Village nothing courtesy of a federal grant. Normally, they would cost about $50- 70,000. In addition, the Village will receive 15% of the net revenue from the charging stations. (Blaine was able to negotiate an additional 10% from the previous draft of the agreement the Board saw last week.) Oak Brook will be one of the first and only suburbs to take advantage of this grant which expires on December 31, 2011. Chicago will also be installing these stations at some city facilities. The agreement term is 7 years because of the financing of the facilities. We can terminate this agreement with 90 days notice by paying 350Green the amortized costs of installing the stations. Recommendation: That the Village Board approve Ordinance S -1327 approving and authorizing the execution of an agreement between the Village of Oak Brook and 350 Green Last saved by DEFAULT C:\Documents and Settings\revenson\Local Settings \Temporary Internet Files\Content.Outlook\31QH7UU7\AG- 350green Agmt 12 -27 -1 Ldoc Last printed 1/52012 12:25 PM ORDINANCE 2011- AG -EXI -S -1327 AN ORDINANCE APPROVING AND AUTHORIZING A LICENSE AGREEMENT FOR THE INSTALLATION OF ELECTRIC VEHICLE CHARGING STATIONS BETWEEN THE VILLAGE OF OAK BROOK AND 350 GREEN, LLC WHEREAS, the Village and 350 Green LLC ( "Company') desire to execute a license agreement for the purpose of installing electric vehicle charging stations in certain designated locations on Village property ( "Agreement'); and WHEREAS, the President and Board of Trustees have determined that it is in the best interests of the Village to enter into the Agreement in a final form approved by the Village Manager and the Village Attorney; NOW THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of, this Ordinance as the findings of the President and Board of Trustees of the Village of Oak Brook. Section 2: Approval of the Agreement. The President and Board of Trustees hereby approve the Agreement by and between the Village and Company in a form acceptable to the Village Manager and the Village Attorney. Section 3: Authorization and Execution of the Agreement. The Village President and Village Clerk shall be, and hereby are, authorized to execute the final Agreement on behalf of the Village after review and approval of the final form of the Agreement by the Village Manager and the Village Attorney. Section 4: Effective Date. This Ordinance shall be in full force and effect upon passage and approval in the manner provided by law. APPROVED THIS 27th day of December, 2011 Gopal G. Lalmalani Village President PASSED THIS 27th day of December, 2011 Ayes: Nays:_ Absent: Abstain: Trustees Manzo, Moy, Wolin, Yusuf and Zannis None None 3� The parties listed below as "Owner" and "Company" enter into this Charging Station Agreement (the "Agreement ") upon the terms and conditions set forth herein. OWNER: VILLAGE OF OAK BROOK COMPANY: [350 Green] DATE OF AGREEMENT: December 28, 2011 COMMENCEMENT DATE: December 28, 2011 TERMINATION DATE: December 28, 2018, unless terminated earlier by either party (subject to provisions of Exhibit A) MONTHLY USE FEE: Fifteen (15) percent of net revenue from charging services. Individual sessions are allocated at $6 for a Fast Charge Session and $3 for a Level 2 Charge Session. Shared revenue percentage is calculated based on the 15% of net revenue which is defined as gross revenue minus energy consumed during the charge sessions. SITE ADDRESSES: 600 Oak Brook Rd. and 2606 York Rd., Oak Brook, IL 60523 ELECTRICITY: Electricity service to the Systems shall be provided by Owner Electricity usage will be: reimbursed to Owner TOTAL NUMBER OF SYSTEMS TO BE INSTALLED One Level 3 and Four Level 2 Charging Stations INCORPORATION: The terms and provisions of the attached Exhibit A are incorporated into this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first above written. O�R: Vi age of Oak Brook n By: � Name: elf- Title: �!i �(trxa_ �0.t�ctq �✓ Address: iadt7 oat �volr t2c� AIL Le0SZ3 COMPANY: 350Green, LLC By: Name: "/rl )W101m1Q lT lil 4 C 0� Title: C /'�i 0 �J 7' /� Address: 7 1I 3 /6 e Wt J — 14 h"��ra I "/fl EXREBIT A - General Terms and Conditions 1. License. Owner hereby grants to Company an exclusive license to install, operate, maintain, repair, improve, and replace vehicle charging stations and other related installations and equipment (the "Systems ") at the real property described in Schedule I attached hereto (the "Premises "), upon the terms and conditions set forth herein (the "Use License "), and in the general locations set forth in Schedule 1 (collectively, the "Services " 1. In addition, Owner hereby grants to Company and its successors, assigns, agents, employees, contractors, invitees and customers (i) a non- exclusive license in, on and across the Premises, including, without limitation, all parking areas, common areas, entries, exits, and driveways serving the Premises (the "Licensed Access Areas ") for the purpose of ingress and egress to the Systems during the period of this Agreement and the Surrender Period (defined below) (the "Access License "), and (ii) a non - exclusive license on, over, under and across the Premises in locations from time to time reasonably agreed to and identified by Owner and Company (the "Licensed Utility Areas" and collectively with the Licensed Access Areas, the "Licensed Areas ") to the extent reasonably required by Company to install, connect and operate the electric, telecommunication, or other utilities required for the operation of the Systems during the Term and the Surrender Period (the "Utility License ", and, together with the Access License, the "Ancillary Licenses "). In addition, upon Owner's consent, Company may add additional Systems to the Premises or change the location of existing Systems. Upon the installation of additional Systems or a change to the location of existing Systems, the parties shall amend this Agreement to reflect the actual number and location of the Systems within the Premises. 2. Fees. The term "Revenue ", as it is used herein, shall mean income derived from charging customers. Such amounts shall be due and payable in arrears within thirty (30) days following the end of each calendar month, at the address indicated by Owner from time to time. The Fees shall be paid to Owner at the address set forth herein. 3. Term and Termination. This Agreement shall expire as of December 28, 2018, provided that Owner shall have the right at any time during the License Tenn to terminate this License without cause upon ninety (90) days' prior written notice to Company. Upon such termination Company shall remove the Systems and restore the Premises to their original condition at the Company's sole cost and expense. In the event Owner exercises such right with-in the first 36 months of the license, Owner shall pay to Company an amount equal to the product of (a) one thirty sixth (1/36) of Company's Installation Costs (as defined below), and (b) the number of full calendar months of the License Term expired as of the date such termination is effective minus 36. The term "Installation Costs" means the total amount of Company's actual costs of (i) transporting the Equipment to the Premises; (ii) obtaining local permits and approvals to carry on the Permitted Use at the Premises; (iii) arranging electrical and communications service to the Premises; and (iv) installing the Equipment at the Premises. Installation Costs shall not include the cost of the Equipment itself. 4. Takes. Company shall pay, before delinquency, any and all taxes or assessments against, or incurred as a result of, the Systems, or other personal property of the Company located at the Premises. 5. Use. Comoliance with Laws; Rules. Company may use the Premises for the installation, operation, repair, maintenance, replacement and removal of electric vehicle charging stations and other legal related uses in compliance with this Agreement and with all applicable federal, state, and local laws, rules, and regulations. 6. Parkin e. Parking stalls shall be designated by Owner for use by customers of Company only (the "Company Customer Parking Area ", as further described in Schedule 2). Owner shall use commercially reasonable efforts to avoid interfering with the operation of Company's business in the Company Customer Parking Area and the Premises. In addition, Owner shall use commercially reasonable efforts to prevent third parties (other than the Company's customers) from using the Company Customer Parking Area, which shall include, but not be limited to, posting signs or marking parking stalls with the message "Electric Vehicle Parking Only" (or a similar designation elected by Company and approved by Owner). 7. Insurance. Company shall obtain and keep in full force and effect, at Company's sole cost, a commercial general liability policy of insurance protecting Company against claims for bodily injury, personal injury and property damage based upon, involving or arising out of Company's use or occupancy of the Premises. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence with an annual aggregate of not less than $2,000,000. Worker's Compensation — statutory limitations, Employer's Liability - $1,000,000, Umbrella Liability - $4,000,000 and Business Auto of $1,000,000 per occurrence. Company shall deliver certificates evidencing such insurance to Owner upon request, which certificates shall name Owner as an additional insured. 8. Indemnity. The Company shalt, without regard to the availability or unavailability of any insurance, either of the Owner or the Company, indemnify, save harmless, and defend the Owner, and its officials, employees, agents, and attorneys against any and all lawsuits, claims, demands, damages, liabilities, losses, and expenses, including attorneys' fees and administrative expenses, that arise, or may be alleged to have arisen, out of or in connection with, the Services, the Systems and this Agreement, whether or not due or claimed to be due in whole or in part to the active, passive, or concurrent negligence or fault of the Company, except to the extent caused by the sole negligence of the Owner. This indemnification shall survive the termination of this Agreement. 9. Repairs and Maintenance. Company accepts the Premises in "as is" condition. Company shall be responsible for the general repair and maintenance of the Systems and any related equipment. Except for obligations which are Company's responsibility pursuant to the preceding sentence, Owner shall be solely responsible for maintaining the Premises, including the Licensed Areas. 10. Alterations. Owner consents to the installation, repair, maintenance, upgrade, removal and/or replacement of the above -ground portion of the Systems by the Company. All such work shall comply with applicable laws and shall be performed in a good and workmanlike Li manner. Company shall keep the Premises free of any liens arising out of work performed by or for Company. The Systems and any other equipment installed in the Premises by or for Company, except for public utility systems and other public property, are and shall at all times be Company's personal property, and Owner shall have no lien or other interest therein. 11. Damaee. If the premises are damaged by the Owner in a manner which prevents both the operation of the Systems and the use of the Systems by Company's customers, Owner shall use reasonable diligence to restore the portion of the Premises affecting the Systems within a period of thirty (30) days. Notwithstanding the foregoing, Company shall be responsible for any repair, restoration or replacement of the Systems caused by any peril. 12. Assignment. Company may not assign this Agreement without the prior written consent of Owner, which consent may not be unreasonably withheld. Notwithstanding the foregoing, Company may, without Owner's prior written consent and without constituting an assignment hereunder, assign its interest in this Agreement to: (a) an entity controlling, controlled by or under common control with Company; (b) an entity related to Company by merger, consolidation, non - bankruptcy reorganization, or government action; or (c) a purchaser of a substantial portion of Company's stock or of the Systems. In addition, Owner's consent shall not be required in connection with any pledge, mortgage, deed of trust, hypothecation, or collateral assignment of this Agreement, the Company's rights hereunder and/or the Systems (a "Lender's Lien ") to any person or entity providing financing to Company or the Systems (each a "Lender "). A sale or transfer of Company's stock or other equity interests shall not be deemed an assignment or any other transfer of this Agreement. 13. Provisions Benefiting Lend ender. Any Lender shall have the absolute right to do one, some or all of the following things: (a) assign its Lender's Lien; (b) enforce its Lender's Lien (defined below); (c) access and operate the Systems and perform any obligations to be performed by Company hereunder, or cause a receiver to be appointed to do so; (d) assign or transfer Company's interest in this Agreement to a third party; or (e) exercise any rights of Company hereunder. Owner's consent shall not be required for any of the foregoing; and, upon acquisition of Company's interest in this Agreement by the Lender or any other third party who acquires the same from or on behalf of the Lender, Owner shall recognize the Leader or such other party (as the case may be) as Company's proper successor, and this Agreement shall remain in full force and effect. As a precondition to exercising any rights or remedies as a result of any default or alleged default by Company, Owner shall deliver a duplicate copy of the applicable notice of default to each Lender concurrently with delivery of such notice to Company, specifying in detail the alleged event of default and the required remedy, provided Owner was given notice of such Lender as provided hereunder. A Lender shall have the same period after receipt of a notice of default to remedy any event of default of Company, or cause the same to be remedied, as is given to Company after Company's receipt of a notice of default hereunder plus an additional sixty (60) days or such longer period required to complete such cure, including the time required for the Lender to foreclose its Lender's Lien and gain possession of the Systems. At Company's request, Owner shall execute such consents, estoppel certificates and additional documents as may reasonably be required by such Lender in connection with its Lender's Lien. 14. Surrender. Within ninety (90) days following the termination of this Agreement, Company shall remove all aboveground components of the Systems and all of its personal property from the Premises; provided, however, Company shall not be required to remove any underground utility facilities. The Use License and Ancillary Licenses shall apply during this period to the extent they relate to such removal of Systems and personal property. 15. Notices. Any notice given under this Agreement shall be in writing and shall be hand delivered, sent by reputable overnight courier, or mailed (by certified mail, return receipt requested, postage prepaid) to the party's address set forth herein. Any notice shall be deemed to have been given when received or refused. Each party shall have the right to change its notice address upon not less than five (5) days notice to the other party. 16. Effect of Conveyance. The terms, covenants, conditions and provisions hereof shall inure to the benefit of and extend to and be binding upon the heirs, executors, administrators, personal representatives, successors in interest, and assigns the successors in interest and assigns of the respective parties hereto. Owner shall require any purchaser of the Premises to assume Owner's rights and obligations hereunder. 17. Signaee. Company shall be permitted to install, at its sole cost and expense, its standard signage adjacent to or on the Systems. All such signage shall be in compliance with applicable law. 19. Relocation. Owner shall have the right to require the Company to relocate the Systems to another location within the Premises (the "Relocation Area ") upon not less than ninety (90) days prior written notice. The Relocation Area shall be capable of supporting Systems of equal or greater utility as the existing Systems. Owner shall pay all of Company's out -of- pocket costs of relocation, including, but not limited to, any costs relating to: (i) the installation of new Systems; (ii) installation of additional electrical, telecommunications, or other utility lines, as well as the removal of such existing lines and any required restoration of the Premises; (iii) any related permitting requirements of governmental entities; and (iv) lost revenues during any reasonably necessary period of non-operation, as evidenced by revenues generated during the prior twelve (12) month period. 19. Miscellaneous. This Agreement shall in all respects be governed by and construed in accordance with the laws of the state or commonwealth in which the Premises are located. If any term of this Agreement is held to be invalid or unenforceable by any court of competent jurisdiction, then the remainder of this Agreement shall remain in full force and effect to the fullest extent possible under the law, and shall not be 1, z affected or impaired. Time is of the essence with respect to the performance of every provision of this Agreement in which time of performance is a factor. Any executed copy of this Agreement shall be deemed an original for all purposes. This Agreement shall, subject to the provisions regarding assignment and subletting, apply to and bind the respective heirs, successors, executors, administrators and assigns of Owner and Company. The language in all parts of this Agreement shall in all cases be construed as a whole according to its fair meaning, and not strictly for or against either Owner or Company. The captions used in this Agreement are for convenience only and shall not be considered in the construction or interpretation of any provision hereof. When a party is required to do something by this Agreement, it shall do so at its sole cost and expense without right of reimbursement from the other party unless specific provision is made therefore. If either party brings any action or legal proceeding with respect to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' and experts' fees and court costs. Whenever one party's consent or approval is required to be given as a condition to the other party's right to take any action pursuant to this Agreement, unless another standard is expressly set forth, such consent or approval shall not be unreasonably withheld or delayed. This Agreement may be executed in counterparts. No amendment hereto shall be effective unless in writing and signed by both parties. 19. Relationship of the Parties. The Company shall act as an independent contractor in providing and performing the Services. Nothing in, nor done pursuant to, this Agreement shall be construed (i) to create the relationship of principal and agent, employer and employee, partners, or joint venturers between the Owner and Company; or (ii) to create any relationship between the Owner and any subcontractor of the Company. 20. Conflict of Interest. The Company represents and certifies that, to the best of its knowledge, (i) no Owner employee or agent is interested in the business of the Company or this Agreement; (ii) as of the date of this Agreement neither the Company nor any person employed or associated with the Company has any interest that would conflict in any manner or degree with the performance of the obligations under this Agreement; and (iii) neither the Company nor any person employed by or associated with the Company will at any time during the term of this Agreement obtain or acquire any interest that would conflict in any manner or degree with the performance of the obligations under this Agreement. 21. No Collusion. The Company represents and certifies that the Company is not barred from contracting with a unit of state or local government as a result of (i) a delinquency in the payment of any tax administered by the Illinois Department of Revenue unless the Company is contesting, in accordance with the procedures established by the appropriate revenue act, its liability for the tax or the amount of the tax, as set forth in Section 11- 42.1 -1 et seq. of the Illinois Municipal Code, 65 ILCS 5/11- 42.1 -1 et seq.; or (ii) a violation of either Section 33E -3 or Section 33E-4 of Article 33E of the Criminal Code of 1961, 720 ILCS 5/33E -1 et seq. The Company represents that the only persons, firms, or corporations interested in this Agreement as principals are those disclosed to the Owner prior to the execution of this Agreement, and that this Agreement is made without collusion with any other person, firm, or corporation. If at any time it is found that the Company has, in procuring this Agreement, colluded with any other person, firm, or corporation, then the Company shall be liable to the Owner for all loss or damage that the Owner may suffer, and this Agreement will, at the Owner's option, be null and void. 22. Sexual Harassment Policv. The Company certifies that is has a written sexual harassment policy in full compliance with Section 2- 105(A)(4) of the Illinois Human Rights Act, 775 ILLS 5/2- 105(A)(4). 23. Compliance with Laws and Grants. Company shall give all notices, pay all fees, and take all other action that may be necessary to ensure that the Services are provided, performed, and completed in accordance with all required governmental permits, licenses, or other approvals and authorizations that may be required in connection with providing, performing, and completing the Services, and with all applicable statutes, ordinances, rules, and regulations, including without limitation: the Fair Labor Standards Act; any statutes regarding qualification to do business; any statutes prohibiting discrimination because of, or requiring affirmative action based on, race, creed, color, national origin, age, sex, or other prohibited classification, including, without limitation, the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., and the Illinois Human Rights Act, 775 ILLS 511 -101 et seq. Company shall also comply with all conditions of any federal, state, or local giant received by Owner or Company with respect to this Agreement or the Services. Company shall be solely liable for any fines or civil penalties that are imposed by any governmental or quasi - governmental agency or body that may arise, or be alleged to have arisen, out of or in connection with Company's, or its subcontractors' , performance of, or failure to perform, the Services or any part thereof. Every provision of law required by law to be inserted into this Agreement shall be deemed to be inserted herein. 24. Default. If it should appear at any time that the Company has failed or refused to prosecute, or has delayed in the prosecution of, the Services with diligence at a rate that assures completion of the Services in full compliance with the requirements of this Agreement, or has otherwise failed, refused, or delayed to perform or satisfy the Services or any other requirement of this Agreement (`Event ojDef=h "), and fails to cure any such Event of Default within ten business days after the Company's receipt of written notice of such Event of Default from the Owner, then the Owner shall have the right, without prejudice to any other remedies provided by law or equity, to pursue any one or more of the following remedies: a) Cure by Compan v. The Owner may require the Company, within a reasonable time, to complete or correct all or any part of the Services that are the subject of the Event of Default; and to take any or all other action necessary to bring the Company and the Services into compliance with this Agreement. s b) Termination of Agreement by Owner. The Owner may terminate this Agreement without liability for further payment of amounts due or to become due under this Agreement. 25. No Additional Oblieation. The Parties acknowledge and agree that the Owner is under no obligation under this Agreement or otherwise to negotiate or enter into any other or additional Agreements or agreements with the Company, or with any vendor solicited or recommended by the Company. SCHEDULEI Village of Oak Brook Library 600 Oak Brook Rd. Oak Brook, IL 60523 Village of Oak Brook Golf Club 2606 York Rd. Oak Brook, IL 60523 w r SCHEDULE 2 Village of Oak Brook Library Electrical room with 208V service is located on south side of building. 480V service available in out building — south side, adjacent to parking lot. Use existing 480V panel (labeled MDP) and service and 208V panel (labeled RP3) and service. Exit electrical room from panel RP3 high and run conduit above dropped ceiling to mechanical room on south end of building, punch out low with LB and bore underground to first 3 parking spaces in south parking lot. Exit out building from panel MDP low and bore underground to first 3 parking spaces in south parking lot. Install one Level 3 Charger and two Level 2 Chargers in first 3 parking spaces on south end of building. Install bollards for protection and restripe three spaces for EV use. Village of Oak Brook Golf Club Electrical room with 208V service is located near front entrance Use existing 208V panel (not labeled) and service. Exit electrical room, punch out low with LB and bore underground to closest island in parking lot. Install Dual Level 2 Charger in first 2 parking spaces adjacent to island. Install bollards for protection and restripe two spaces for EV use.