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HomeMy WebLinkAboutMidAmerican Energy - Electric Vehicle Site Host - 12/9/2019IDA ERICAN ENERGY COMPANY ELECTRIC VEHICLE SITE HOST AGREEMENT This Electric Vehicle Site Host Agreement ("Agreement") s entered 'nto this 9th day of December, 2019 ("Effective Date"), between MidAmerican Energy Company ("MidAmerican") and the City of Waterloo ("Host"). MidAmerican and Host may be referred to individually as a "Party" or collectively as the "Parties." RECITALS MidAmerican is offering its Iowa electric customers installation and maintenance of electric vehicle supply equipment ("EVSE") at designated locations throughout MidAmerican's service territory including a number of direct -current fast -chargers to enable long-distance electric vehicle travel. Host is the owner or lessor of the property with an address of 194 W 2nd Street, Waterloo, Iowa. (the "Property"). Host desires to have MidAmerican install EVSE and associated wires, cables, and equipment (collectively, the "Equipment") at the Property. MidAmerican is willing to install the Equipment at the Property, subject to the following terms and conditions. In consideration of the mutual covenants and obligations contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: 1. This Agreement shall remain in effect for a period of one year from the Effective Date, at which time this Agreement shall be automatically renewed for an additional one-year period, and from year to year for additional one-year periods thereafter ("Term"). However, either Party may terminate this Agreement at any time upon not less than thirty (30) days advance written notice to the other Party. 2. MidAmerican shall be responsible for installing, operating, maintaining, and repairing all Equipment at the Property, and shall do so at MidAmerican's expense, except as otherwise provided herein. At MidAmerican's option, all Equipment may display the MidAmerican name and logo prominently. 3. At all times during the Term of this Agreement, MidAmerican shall retain all right, title, and interest in and to the Equipment. The Parties agree that Host shall have no right, title, or interest in or to the Equipment, or any part thereof, during the term of this Agre ment. The Parties further agree that the Equipment shall not be considered a "fixture" of the Property, nor shall Host take any actions that would lead to that conclusion. Notwithstanding the foregoing, at the termination of this Agreement, or at any point during the Term or during any extension thereof, MidAmerican may, in its sole discretion, choose to transfer its right, title, and interest in and to the Equipment to Host. Upon transferring its right, title, and interest in and to the Equipment to Host, Host (a) shall release MidAmerican from any and all liabilities, including without limitation, any claim or action for bodily injury or property damage resulting from or related to the Equipment or the use thereof, whether arising before or after such transfer, and (b) shall assume responsibility for all costs and expenses associated with the Equipment, including without limitation all electrical consumption costs, network access fees, maintenance costs, and repair costs. 4. MidAmerican shall own any and all data gathered or generated by, or associated with, the Equipment for use in regulatory reporting, ordinary business use, industry forums, case studies, or other business or planning activities of MidAmerican or its affiliates. Host shall have no right, title, or interest in or to such data. 5. Under no circumstances shall Host receive monetary or in -kind compensation for its performance of any duties or obligations under this Agreement. 6. Host shall use commercially -reasonable efforts to maintain the Property surrounding the Equipment in a clean, safe, and orderly condition, to at least the same standard as Host customarily maintains the common areas at the Property, or at a minimum to a standard consistent with prudent business practices. 7. Host shall promptly notify MidAmerican if and when Host becomes aware of any unsafe, inoperable, or damaged Equipment. Host shall promptly report all claims or incidents to MidAmerican that occur with respect to the Equipment and shall thereafter promptly confirm in writing any loss, injury, or damage incurred by Host. Host shall not damage, disable, modify, or tamper with the Equipment, except to the extent required by a legitimate emergency situation. If Host damages, disables, modifies, or tampers with the Equipment, except in a legitimate emergency situation, MidAmerican shall repair or replace the Equipment at Host's sole cost and expense. 8. Host agrees to grant MidAmerican an easement, in the form provided in Exhibit A hereto, for the installation of the Equipment (the "Easement"). Host shall execute and deliver the Easement to MidAmerican within thirty (30) days of receipt from MidAmerican. Host's failure to execute and deliver the Easement within thirty (30) days of receipt from MidAmerican constitutes just cause for MidAmerican to terminate this Agreement without recourse. Promptly following termination of this Agreement, MidAmerican shall execute and deliver to Host a quitclaim deed, relinquishing and abandoning MidAmerican's rights under the Easement. 9. Host represents and warrants that it is the owner or lessor of the Property and that it has the power, authority, and capacity to bind itself to discharge the duties under this Agreement, for the term of the Agreement, and to execute this Agreement. 10. Owner or Lessor shall provide MidAmerican with written notice at least thirty (30) days prior to any sale of the Property. Within thirty (30) days following receipt of such notice, MidAmerican may, in its sole discretion, consent to Host's delegation of its duties to the purchaser of the Property; alternatively, MidAmerican may, in its sole discretion, remove the Equipment at its sole cost If MidAmerican elects to remove the Equipment, this Agreement shall be deemed terminated as of the earlier of (a) the date on which the sale of the Property is consummated, or (b) the date the Equipment is removed. 11. The Parties acknowledge and agree that MidAmerican does not guarantee continuity of service to or from the Equipment and is not responsible or for interruption, curtailment, failure, or defect in the supply or character of electricity furnished to the Equipment. 12. The Parties expressly agree that this Agreement was jointly drafted and that each had the opportunity to negotiate its terms and to obtain the assistance of counsel in reviewing its terms prior to execution. The language in all parts of this Agre ment will be in all cases construed according to its fair meaning and not strictly for or against either of the Parties. If a claim is made by any Party relating to any conflict, omission, or ambiguity in this Agreement, no presumption or burden of proof or persuasion will be implied by virtue of the fact that this Agreement was prepared by or at the request of a particular Party or counsel for any particular Party. 13. In no event shall either Party be liable to the other Party for indirect, consequential, incidental, special, punitive, or exemplary damages of any nature, arising at any time, and regardless of the form of the action or theory of the claim. The foregoing waiver does not apply to an indemnity obligation with respect to a third -party claim. 14. Each Party shall indemnify, defend, and hold harmless the other Party against from all losses or liability resulting from or arising out of the negligence or willful misconduct of such Party, or that of its officer, directors, or employees. Neither Party shall be liable for loss or liability to the extent caused by the negligence or willful misconduct of the other Party, its officers, directors, employees or agents. 15. As of the date of this Agreement, each Party shall procure and maintain in good standing insurance limits as set forth below for claims against either Party involving bodily injury or property damage which may arise from or in connection with the exercise of the rights or privileges granted under this Agreement: a. Commercial general liability insurance or comprehensive general liability insurance with a minimum limit of $1,000,000 per occurrence for bodily injury and damage to property, including contractual liability, premises and operations, products/completed operations, independent contractors, broad form property damage, and personal injury coverage, and a minimum aggregate amount of $2,000,000; or b. Umbrella Liability Insurance with a minimum limit of $5,000,000 each occurrence/ aggregate where applicable to be excess of the coverages and limits required in paragraph 15(a) above. Host shall notify MidAmerican, if at any time their full umbrella limit is not available during the term of this Contract, and will purchase additional limits, if requested by MidAmerican. 16. Each Party will act in good faith in the performance of its obligations under this Agreement and each Party will cooperate with the reasonable requests of the other Party and otherwise use commercially reasonable efforts to implement the provisions of and to administer this Agreement in accordance with its terms. 17. This Agre ment may be executed in one or more counterparts, each of which will be an original, but all of which taken together will constitute only one legal instrument. Provided that both Parties have signed this Agreement in counterparts and the counterparts have been delivered to both Parties, it will not be necessary in making proof of this Agreement to produce or account for more than one (1) counterpart. 18. Notwithstanding any other provision in this Agreement, if any Applicable Law is changed, amended, or revoked, or any statutes, rules, regulations, permits, or authorizations are enacted or granted, such that: (i) the continued implementation of this Agreement would have a material adverse effect on either Party; or (ii) this Agreement or any part of this Agreement would be rendered unenforceable, then the Parties agree to negotiate in good faith to amend this Agreement to conform with such Applicable Law or new statutes, rules, regulations, permits, or authorizations (as applicable) in order to maintain the original intent of the Parties under this Agreement. 19. Each party, upon the reasonable request of the other Party, will perform any further acts which are consistent with this Agreement and that do not materially increase the duties or financial obligations of the Parties or reduce any rights of the Parties. 20. This Agreement will continue in effect after its termination to the extent necessary to allow or require either Party to fulfill rights or obligations that arose under this Agreement. 21. There are no third -party beneficiaries of this Agreement, and this Agreement should not be construed to create or confer any right or interest in or to, or to grant any remedies to, any third party as a beneficiary of this Agreement, or any duty, obligation, or undertaking established in this Agreement. 22. This Agreement does not constitute a joint venture, association, or partnership between the Parties. No express or implied term, provision, or condition of this Agreement will create, or will be deemed to create, an agency, joint venture, partnership, or any fiduciary relationship between the Parties. 23. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any prior oral or written agreements and all contemporaneous oral communications with respect thereto. All additions, amendments or modifications to this Agreement must be made in writing and must be signed by the Parties. This Agreement shall be effective upon execution. 24. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their permitted successors and assigns. 25. Any applicable terms and conditions included in MidAmerican's Iowa Electric Tariff, approved by the Iowa Utilities Board ("lUB"), or in the IUB rules, or tariffs approved by the Federal Energy Regulatory Commission ("FERC"), shall apply. If the terms and conditions of this Agreement are inconsistent with MidAmerican's Iowa Electric Tariff approved by the IUB, or in Part 199 of the Iowa Administrative Code, or the tariff approved by FERC, the terms and conditions of the applicable tariff shall apply. If the terms and conditions of this Agreement are not addressed in MidAmerican's Iowa Electric Tariff approved by the IUB, or in Part 199 of the Iowa Administrative Code, or the tariff approved by FERC, the terms and conditions of this Agreement shall apply. The provisions of MidAmerican's Iowa Electric Tariff and tariffs approved by FERC are subject to change upon order or approval of any regulatory authority having jurisdiction. If there is a regulatory change requiring an amendment to this Agreement, the Parties will work in good faith to negotiate amendments to this Agreement affected by an order or approval of a jurisdictional regulatory authority. 26. Each provision of this Agreement is severable and if any provision shall be finally determined to be invalid, illegal, or unenforceable in any jurisdiction, the remaining provisions shall not be affected thereby nor shall said provision be invalid in any other jurisdiction. Without limiting the foregoing, if a provision obligating a Party is found to be invalid, illegal or unenforceable, the other Party shall not be required to perform or resume performance of its corresponding obligations. 27. Each of the provisions of this Agreement shall be enforceable independently of any other provision of this Agreement and independent of any other claim or cause of action. In the event of any dispute arising under this Agreement, it is agreed between the Parties that the law of the State of Iowa will govern, without regard to Iowa's conflict of laws provisions the interpretation, validity and effect of this Agreement without regard to the place of execution or place of performance thereof. 28. The Parties agree that any dispute regarding the interpretation of Chapter 20 or Chapter 25 of the IUB's rules, or MidAmerican's Iowa Electric Tariff falls under the IUB's jurisdiction and the Parties shall first attempt to resolve any disputes through the IUB s informal complaint process. The Parties retain the right to request reconsideration of an 1UB decision and the right to appeal the IUB decision. The Parties retain the right to appeal any IUB decision or enforce any other provisions of this Agreement in either Iowa state or federal courts. In the event of a dispute, the Parties shall promptly meet and confer in good faith to attempt to resolve the dispute. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS CONTRACT. EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. 29. The rights of the Parties may not be waived except in writing signed by the waiving Party. A waiver by either Party of any of its rights under this Agreement or any breach of this Agreement shall not be construed as a waiver of any other or future rights or breaches. No waiver by either Party of any one or more defaults by the other Party in the performance of any provision of this Agreement shall operate or be construed as a waiver of any future default or defaults, whether of a like or a different character. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed as of the day and year last written below. City of Waterloo By: Name: Title: Date: MIDAMERICAN ENERGY'GOMPANY By: Name: Title: Vice President, Business Optimization and Innovation Date: January 20, 2020