Agreement AGREEMENT FOR A PHASE I PILOT PROGRAM TO PROVIDE ELECTRIC VEHICLE
CHARGING STATIONS FOR THE CITY'S PARKING FACILITIES, PURSUANT TO CITY
OF MIAMI BEACH REQUEST FOR PROPOSALS NO. 18 -10 /11
JL-7
e 2012 (
THIS AGREEMENT is entered into on this day of the Effective
Date "), by and between the City of Miami Beach, Florida, a municipal corporation located at
1700 Convention Center Drive, Miami Beach, Florida, 33139 (hereinafter "Client "), and Car
Charging Group, Inc., a Nevada Corporation with offices at 1691 Michigan Avenue, Suite 601,
Miami Beach, Florida, 33139 (hereinafter "Provider ").
PREAMBLE
WHEREAS, Provider desires to be engaged by Client for the term of this Agreement for
a Phase I Pilot Program (also referred to hereinafter as the "Contract ") to provide Electric
Vehicle Charging Stations pursuant to the RFP (as hereinafter defined), to make available,
provide, install, maintain, service and operate an electric car charging station or stations (the
"Equipment ") wheresoever located within the real property owned by Client with the property
address set forth in the attached Exhibit A, which is incorporated by reference herein (the
"Property "); and
WHEREAS, the purpose of this Contract is for Provider, as the successful proposer
pursuant to City of Miami Beach Request for Proposals No. 18- 10 /11, to Provide Electric
Vehicle Charging Stations for the City's Parking Facilities (the "RFP "), to enable Client to offer
a Phase I Pilot Program for electric car charging services on the Property, for the use of Client,
its guests, employees, licensees, or invitees; and
WHEREAS, the Equipment shall be installed and maintained by Provider or its
approved subcontractors in an area or areas specifically designated for electric car charging by
Client at the location(s) within the Property specifically set forth and /or depicted by diagrams on
the attached Exhibit B (as same may be updated from time to time throughout the term of this
Contract) (hereinafter the "Designated Area" or "Designated Areas "); and
WHEREAS Client desires to so contract with Provider to rovide the Equipment and its
p
related services upon the terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the covenants, conditions and
agreements contained in this Contract, the parties mutually agree and covenant as follows:
1. Preamble Made Part f Contr T he preamble described art
a t o Co t act e eamb e d s abed above is made a
p p
of this Contract and expressly incorporated by reference herein.
2. Term of Contract/Removal of Equipment
2.1 Phase I Pilot Program Ter m. The term of this Contract (the "Term ") shall
be for a period of one (1) year, commencing on the Commencement Date (which shall be
defined as the date of acceptance by Client of installation of the Equipment'), and ending
at 11:59 p.m. on the one (1) year anniversary of such Commencement Date.
See Exhibit D for form for acceptance of installation of Equipment for the Pilot Program .
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2.2 Client hereby grants Provider the right, upon the termination or earlier
expiration of this Contract, to enter upon the Property within thirty (30) days after such
termination or expiration, to remove any and all Equipment (which right, title and
interest in said Equipment shall at all times during the Term of this Contract be deemed
property of Provider), as well as any other ancillary property of Provider relating
thereto. Provider shall coordinate removal of Equipment (and any ancillary property)
with Client and shall also, in conjunction with such removal, restore the Property to
its original (or better) condition prior to the Effective Date of this Contract (as same is
set forth in page 1 of the Contract), and shall repair any damage caused from such
removal, at its sole cost and expense.
2.3 Thirty (30) Day Convenience Termination Notwithstanding anything
herein to the contrary, Client may cancel this Contract, without cause and without
liability to Client, at any time during the Term, upon thirty (30) days written notice to
Provider. Upon receipt of Client's notice, Provider shall promptly commence removal of
any and all Equipment, as well as any other ancillary property of Provider relating
thereto, in accordance with subsection 2.2 hereof.
3. Installation and Maintenance of Equipment and the Surrounding Property
3.1 It is expressly agreed that, for this Phase I Pilot Program, Client will
designate at least four (4) parking spaces, at the Client's discretion, in the Property to
Provider exclusively for use for electric car charging. Provider agrees to supply and
install, at Provider's sole expense, the Equipment at the Designated Area(s) set forth in
Exhibit `B" hereto, after Client's completion of construction of the groundwork and
infrastructure necessary for the installation and operation of such Equipment. Provider
shall perform all installations and work in such a way as to minimize interference with
operation of the Property.
It is expressly agreed that (i) Client shall be solely responsible for any and all
costs and expenses associated with the preparation of the Designated Area for the
installation of the Equipment including, without limitation, the installation of circuit
breakers, wires, and conduits on the Property, and (ii) such preparation shall be subject to
the reasonable prior written approval of Provider.
Notwithstanding any provisions to the contrary herein, and subject further to
approval by Provider, which approval shall not be unreasonably withheld, Client shall be
solely responsible for determining the need (if at all) for installation of additional
Equipment on the Property, based on usage and operational load. In the event that Client
determines, and Provider agrees, that there is a need for installation of additional
Equipment on the Property, Client, in its sole discretion, shall determine the area (or
areas) designated for such Equipment (and Exhibit "B" hereto shall be amended
accordingly to identify any such additional designated area(s) after Client's completion of
construction of the groundwork and infrastructure necessary for the installation and
operation of such Equipment at Client's sole cost and expense. In the event additional
Equipment is installed on the Property, the parties shall execute an Installation Date
Acceptance, establishing the Commencement Date of the Contract for such Equipment.
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3.2 Provider further agrees that it shall maintain and replace the Equipment, as
necessary, to keep the Equipment in good condition and proper working order. During
the Term, Provider, its employees, agents, contracts and vendors may enter upon the
Property at any time, subject to providing Client or its designated property manager with
reasonable prior written or verbal notice, for purposes of installing, inspecting, servicing,
and maintaining the Equipment.
3.3 Provider agrees to make available technical service support personnel to
promptly service the Equipment in a commercially reasonable manner. In the event
Client knows of, or becomes aware of, any actual or potential claim against the Provider
by any person or entity, or any actual or potential malfunction with the Equipment, Client
shall notify Provider promptly upon notification of such claim or malfunction; provided,
however that Client's failure to notify Provider pursuant to this subsection 3.3 shall not
relieve Provider of any obligations herein including, without limitation, its sole obligation
to service, maintain, repair, and replace the Equipment, as necessary.
Provider shall ensure the Equipment is clearly marked with the following
information for users: (i) Provider's or a designated contact party's information for
complaints, notification and service issues; (ii) a statement that Provider is fully
responsible for all service issues, including damage or loss to vehicles or improper
charging; and (iii) a disclaimer stating Client is not responsible for any service issues or
loss connected with use of the Equipment.
3.4 Client agrees, at its own expense and at all times during the Term, to keep
the public areas immediately appurtenant to any Designated Area or Areas, reasonably
free of debris and rubbish and in good repair and condition; provided, however, that
Client will not be required to incur any additional and/or special expenses, nor adopt or
initiate any additional standards and /or operating procedures, other than Client's
customary maintenance standards for the Property existing as of the Effective Date (and,
provided further, that any such standards for "customary maintenance," whether as
existing now or as may be developed in the future, shall be determined by Client, in its
sole and reasonable discretion). In addition, Client shall provide and maintain, in
accordance with the aforestated "customary maintenance" standards, such outdoor lights
and lighting as Client deems necessary to illuminate the Designated Area or Areas and
Equipment.
3.5 Upon installation of the Equipment, Provider shall have the right to install
signage in the Designated Area or Areas and on the Property identifying the Equipment
as an "EV Charging Station;" with such signage to be substantially in the form attached
hereto as Exhibit E . Notwithstanding Exhibit E, any and all such signage shall be
subject to Client's prior written approval, and shall comply with applicable City Code
provisions. Provider shall pay all costs and expenses associated with the approvals,
creation, installation, maintenance and removal of all signage.
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4. Revenue
4.1 Revenue Payment Provider shall remit to Client fifteen percent (15 %) of
the annual gross revenue generated by the Equipment, which shall include, but may not
be limited to, all revenue generated by electric car charging fees (the " Revenue
Payment "). The Revenue Payment made to Client under this Section 4 shall be
calculated monthly and shall expressly exclude any portion of the gross revenue used to
offset any and all electricity charges of Provider related to the Equipment.
The Revenue Payment shall be issued by Provider to Client on or before the
fifteenth (15 day of each subsequent month to the applicable monthly revenue period.
Each payment will be accompanied by a written report which will detail the number of
transactions and gross revenue received by Provider for the prior month from charging
services.
4.2 Session Limits/User Fees
(a) Session Limits Client agrees that Provider shall be solely
responsible for issues relating to session time limits or other charges relating to
use of the Equipment by any party.
(b) User Fees As of the Effective Date hereof, Provider charges $2.49
per hour for use of the Equipment. Provider intends to continue charging this rate
until the State of Florida, by bill pending in the Florida House of Representatives
(CS /HB 7117(2012)) and Florida Senate (575- 03312 -12; 20122094c2) by the
Committees on Agriculture, Communications, Energy and Public Utilities, allows
charging of electricity to the consumer on a per kilowatt hour basis. Provider
shall provide Client with written notice of any change in fee structure for use of
Equipment under this Section 4.2(b); however, Client may not unreasonably
withhold its consent to any such fee change request. This fee arrangement does
not cover Hertz "' based on the fact that a separate fee agreement may be
negotiated for bulk service user rates with Provider.
4.3 Collection of Revenue Provider will arrange for and supervise all revenue
collection generated by the Equipment.
4.4 Electricity Charges Provider shall be responsible for all electric charges
applicable to the Equipment (the "Electricity Charges ") and shall reimburse Client for the
Electricity Charges based upon Provider's consumption of electricity determined by a
report generated by the Equipment indicating the exact amount of kilowatt hours used for
its operation at the billable kilowatt rate to Client under its electric bill (the "Electricity
Reimbursement "). Provider shall be charged the same cost as would be charged to
z Client shall tender to Provider an electric bill (copy to be attached as Exhibit C inclusive of the Designated Areas
and Provider shall calculate and provide, in writing, to Client the dollar value of the billable kilowatt rate to Client
under its electric bill. Provider shall recalculate the billable rate each fiscal quarter upon receipt of a bill by Client.
Client acknowledges that the rate calculation for this Paragraph 4 may not be completed and delivered by Company
until after Client has delivered its first electric bill to Provider to determine calculation.
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Provider by the utility company if such Electricity Charges were billed directly to
Provider. Provider will make the Electricity Reimbursement payment to Client within
thirty (30) days following receipt of the monthly electricity invoice, provided, however,
that any credit received from a disputed utility company invoice shall appear as a credit
to Provider on the next invoice following receipt of such credit by Client.
4.5 Notwithstanding the foregoing, to the extent Provider installs Equipment
which includes an internal "revenue grade" smart meter, Client acknowledges that such
"smart meter" will directly calculate the Electricity Charges to Provider, and such
charges will be billed and paid directly by Provider to the local electricity utility company
thereby removing any obligation of Provider to reimburse Client for electricity usage
hereunder. Client further acknowledges that Provider may establish its own account and
have its own meter installed at the Property through which the utility company shall bill
Provider directly for any electricity used in conjunction with the Equipment.
4.6 Payment Remittance All payments due to Client hereunder shall be sent to
the following address:
City of Miami Beach Parking Department
c/o Finance Manager
1755 Meridian Avenue, Suite 100
Miami Beach, Florida 33139
5. Equipment Upgrade Client hereby acknowledges that notwithstanding
anything to the contrary herein, at any time during the Term, Provider may, without notice to
Client, upgrade any Equipment within the Designated Area or Areas. Provider shall be solely
responsible for any costs involved with such upgrade.
6. Relocation Client hereby acknowledges that notwithstanding anything to the
contrary herein, at any time during the Term, Provider may, upon written notice to Client, and
subject further to Client's prior written consent, which consent shall not be unreasonably
withheld, relocate Equipment within the Property to the extent that a specific location within a
Designated Area or Areas is not performing to Provider's specifications. Provider shall be solely
responsible for any costs involved in the relocation of any Equipment (including, without
limitation, repair and restoration of the former Designated Area(s).
7. Indemnification
7.1 For purposes of this Section, the term "Provider" shall include Car Charging
Group, Inc., and its officers, employees, contractors, vendors, agents, and /or servants, AND
CCGI /CMB,LLC, and its officers, employees, contractors, vendors, agents, and /or servants.
7.2. Provider shall indemnify Client, and its officers, employees, contractors, and,
agents (collectively, the "Indemnified Parties "), and hold the Indemnified Parties harmless from
and against any and all claims, actions, damages, liabilities, and expenses incurred in connection
with loss of life, personal injury, and /or damage to property arising out of this Contract and
including, without limitations, the services to be provided by Provider, the Equipment or any part
t00009910.DOC:2 }
thereof, (further including, without limitation, the use of the Equipment and /or electric car
charging stations by Client, its employees, guests, (licensees or invitees), or otherwise
occasioned wholly or in part by any act or omission of Provider, its officers, employees,
contractors, vendors, agents, and/or servants.
8. Intentionally Deleted
9. Licenses/Permits/Taxes/Liens Provider agrees that it shall be solely responsible
for obtaining any and all necessary licenses and /or permits for the installation and operation of the
Equipment, and shall be solely and exclusively responsible for any citations as a result of any
default hereunder. Provider shall also be solely responsible for payment of any and all sales,
taxes, excises, licensed fees and permit fees of whatever nature arising from its operations and
this Contract. Provider shall not permit any mechanic's materialman's or any other lien to
become attached to the Property or the Equipment, or any part or parcel thereof by reason of any
work or labor performed or materials furnished pursuant to this Contract.
10. Default No party shall commit or allow to continue any breach of this
Contract, which shall not have been cured within thirty (30) days after receipt of written notice
from the non - breaching party specifying the breach; provided, however that if the breach cannot
be cured within thirty (30) days, the breaching party shall not be in default if, within such thirty
(30) day period, it shall have commenced to cure said breach and shall continue its efforts with
due diligence. Upon the occurrence of a default and a failure to cure within the allotted cure
period, the non - breaching party shall have the right, at the option of the non - breaching party, to (i)
terminate this Contract, whereupon, neither party shall have any further rights, obligations or
liabilities hereunder, except as otherwise expressly provided herein; or (ii) continue this Contract
in full force and effect, notwithstanding the occurrence of such default. Except as otherwise
provided in this Contract, the rights and remedies granted in this Contract are cumulative and are
in addition to any given by any statutes, rule at law or otherwise, and the use of one remedy shall
not be taken to exclude or waive the right to use another.
11. Intentionally Deleted
12. Binding This Contract shall be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns. Nothing contained in it, whether expressed or
implied, is intended to give or shall be construed as giving anyone other than the parties and the
named Client and their successors or assigns any rights under this Contract. This Contract shall
not be binding or enforceable against Provider unless and until it is countersigned by Provider
after receipt of an executed copy from Client.
13. Governing Law, Jurisdiction, Venue and Waiver of Jury Trial This Contract
shall be governed by the laws of the State of Florida, without regard to conflict of laws. Any suit
involving any dispute or matter arising under this Contract may only be brought in State or
Federal Court of Miami -Dade County, Florida which shall have jurisdiction over the subject
matter of the dispute or matter. Provider and Client irrevocably waive any objection that they
now have or hereafter may have to the laying of venue of any suit, action or proceeding brought
in any such court and further irrevocably waive any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum. EACH OF
THE PARTIES TO THIS CONTRACT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
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TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS CONTRACT, ANY OTHER CONTRACT OR INSTRUMENT
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
14. Ownership of Equipment. The parties expressly acknowledge that some of the
Equipment may have been financed through the ChargePoint America program or another grant -
based program. The parties further expressly acknowledge and understand that, as between Client
and Provider and regardless of whether or not such Equipment was sponsored through a grant
program or otherwise financed, all right, title and interest in and to the Equipment shall at all times
be and remain the property of Provider.
15. Notices
15.1 Any notice required to be given or otherwise given pursuant to this
Contract shall be in writing and shall be hand delivered, mailed by certified mail, return
receipt requested or sent recognized overnight courier service as follows:
If to PROVIDER Car Charging Group, Inc.
1691 Michigan Avenue, Suite #601
Miami Beach, FL 33139
Attn: Michael D. Farkas, CEO
With copies to: CCGI /CMB, LLC
c/o Car Charging Holdings, LLC
1691 Michigan Avenue, Suite #601
Miami Beach, FL 33139
and
The Bernstein Law Firm
1688 Meridian Avenue, Suite 418
Miami Beach, Florida 33139
E -mail: Michael(& Bernstein- Lawfirm.com
If to CLIENT City of Miami Beach Parking Department
c/o Parking Director
1755 Meridian Avenue, Suite 200
Miami Beach, Florida 33139
15.2 Notwithstanding the foregoing, Client expressly authorizes Provider to
notice its designated Contract Manager, City of Miami Beach Parking Director, with a
mailing address of 1755 Meridian Avenue, Suite 200, Miami Beach, Florida 33139,
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(hereinafter "Manager ") with regard to all matters pertinent to this Contract. Notice to
Manager shall be deemed valid and sufficient service upon Client without the necessity
for Provider to send separate notice to Client unless so specified in writing by Client. (If
this Section 15.2 is not completed by Client, Provider shall notice Client as at the address
set forth in Section 15.1 hereunder).
16. Provider's Insurance Coverages
(a) Provider shall not commence any work and /or services under this
Agreement until all insurance required under this Section has been
obtained and such insurance has been approved by the City's Risk
Manager. Provider shall carry and maintain the following insurance
coverages during the Term of this Agreement:
(1) Worker's Compensation insurance in compliance with the Worker's
Compensation Act of the State of Florida.
(2) Employer's liability insurance on all employees for the Premises
not covered by the Worker's Compensation Act, for occupational
accidents or disease, in limits of not less than $1,000,000 for any
one occurrence, or whatever is necessary to satisfy the
requirements of the umbrella liability insurance specified in
Subsection (a)(6) below.
(3) Comprehensive General Liability insurance on an occurrence form
basis with limits of not less than $1,000,000 per occurrence for
bodily injury property damage to include Premises /Operations;
Products; Completed Operations and Contractual Liability.
Contractual Liability and Contractual Indemnity, with Hold
Harmless /Indemnity provision, with a general annual aggregate
limit of $2,000,000.
(4) Automobile liability insurance including comprehensive and
collision coverage with a limit of not less than $1,000,000 per
occurrence (owned/non -owned /hired automobiles includes).
(5) Comprehensive crime insurance including employee theft,
premise, transit and depositor's forgery coverage with limits as to
any given occurrence of $1,000,000.
(6) Umbrella liability insurance with an annual aggregate limit of not
less than $5,000,000.
(b) The liability policies affording the coverages described in subsections
(a)(3), (a)(4) and (a)(6) above shall be endorsed to cover Client and its
employees, agents, directors and officers as additional insureds.
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(c) Provider shall deliver certificates of insurance to Client's Contract
Manager and renewal policies shall be obtained, and certificates delivered
to the Contract Manager, at least fifteen (15) days prior to expiration. The
certificates of insurance shall state that the issuing company shall provide
thirty (30) days' prior written notice to the certificate holder should any of
the policies be cancelled prior to the expiration date.
(d) All of Provider's certificates, above, shall contain endorsements providing
that written notice shall be given to the City at least thirty (30) days prior
to termination, cancellation or reduction in coverage in the policy. The
insurance must be furnished by insurance companies authorized to do
business in the State of Florida and approved by the City's Risk Manager.
Original certificates of insurance for the above coverage must be
submitted to the City's Risk Manager. These certificates will be kept on
file in the office of the Risk Manager, City Hall, 1700 Convention Center
Drive, 3rd Floor, Miami Beach, Florida 33139. The Provider shall also be
solely responsible for obtaining, submitting, and maintaining current and
in full force, all insurance for its subcontractors.
(e) All insurance policies must be issued by companies authorized to do
business under the laws of the State of Florida. The companies must be
rated no less than "B +" as to management and not less than "Class VI" as
to strength by the latest edition of Best's Insurance Guide, published by
A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to
the approval of the City's Risk Manager.
(f) Compliance with the insurance requirements in this Section, shall not
relieve the Provider of the liabilities and obligations under this Section or
under any other portion of this Agreement, and the Client shall have the
right to obtain from the Provider specimen copies of the insurance policies
in the event that submitted certificates of insurance are inadequate to
ascertain compliance with required coverage. The Provider represents and
warrants that any insurance protection required by this Agreement or
otherwise provided by its contractors and subcontractors shall in no way
limit the responsibility to indemnify, keep and save harmless and defend
the Client or its officers, employees, contractors, consultants, agents, and
instrumentalities as herein provided.
17. Promotional Assistance Client agrees to place a link on any website maintained
by it to www.carcharging.com for users to reach Provider and/or learn more information about
Provider's electric car chargers. Provider agrees to place a link for the City of Miami Beach on
its website to inform users of Client's location. Both Client and Provider agree to make good
faith efforts to promote the Pilot Program within the City of Miami Beach under the terms of this
Contract.
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18. Attorney's Fees In the event of any dispute hereunder, the prevailing party
shall be entitled to recover all costs and expenses incurred by it in connection with the
enforcement of this Contract, including all attorneys' fees on both trial and appellate levels.
19. Relationship of the Parties Provider acknowledges that it has its own
independently established business that is separate and apart from Client's business. Nothing in
this Contract shall constitute or be deemed to constitute a partnership or joint venture between
the parties hereto or constitute or be deemed to constitute any party the agent or employee of the
other party for any purpose whatsoever and neither party shall have authority or power to bind
the other or to contract in the name of, or create a liability against, the other in any way or for
any purpose.
20. Force Maieure If Provider shall be delayed or hindered in or prevented from the
performance of any act required under this Contract by reason of any strike, lockout, labor
trouble, inability to procure materials or energy, failure of power, hurricane, restrictive
governmental laws or regulations, riot, insurrection, picketing, sit -ins, war or other unavoidable
reason of a like nature not attributable to the negligence or fault of Provider, then the
performance of such work or action will be excused for the period of the unavoidable delay and
the period for the performance of any such work or action will be extended for an equivalent
period.
21. Condemnation If any Designated Area or Areas shall be taken for public or
quasi - public use by any public or quasi - public authority under the power of eminent domain,
then, at the sole option and discretion of Client, (i) Client may provide another Designated Area
for the Equipment and (ii) Exhibit B of this Contract shall be amended accordingly to reflect the
removal and replacement of such Designated Area.
22. Estoppel Certificate At any time and from time to time, Client agrees upon
request in writing from Provider to execute, acknowledge and deliver to Provider a statement in
writing certifying that this Contract is unmodified and in full force and effect (or if there have
been modifications that the same is in full force and effect as modified) and the dates to which
the Revenue Payment has been paid.
23. Exhibits All exhibits attached to this Contract and referred to herein are
hereby incorporated by reference as if fully set forth herein. Any exhibit not annexed hereto
may be attached subsequent to the Effective Date hereof and which shall thereafter be
incorporated by reference herein. Client shall deliver to Provider documents necessary to
satisfy Exhibits B and C.
24. Car Charging Station Data Client, by executing this Contract, specifically
acknowledges and agrees that Provider owns all right, title and interest in any records, files
and /or data (the " ProprietM Data collected by or produced by the Equipment and same shall
be deemed the proprietary and exclusive property of Provider. Provider shall allow Client access
to such Proprietary Data during the term of this Contract solely for its own internal purposes,
subject to the aforesaid ownership interests of Provider with such access by Client concluded
immediately upon termination or expiration of this Contract. Client may not disclose any such
Proprietary Data to any person, firm, corporation, association or other third party entity for any
reason or purpose whatsoever without the prior written consent of an authorized representative of
Provider, provided however, that nothing herein shall be interpreted as preventing Client from,
100009910.DoC:2 )
nor shall Client have any liability to Provider and /or to third parties for /from, (i) using reports or
other financial data for use in verifying the accuracy of the Revenue Payment made by Provider
hereunder; (ii) from disclosing any records, files, and /or date, which may or may not be deemed
by Provider to be Proprietary, but which are required to be provided pursuant to the order of a
court or administrative body having jurisdiction over the subject matter herein, or which is
subject to disclosure, inspection, and /or copying pursuant to Florida Public Records Law
including, without limitation, Chapter 119, Florida Statutes, as same may be amended from time
to time.
25. No Third -Party Rights The provisions of this Contract are for the
exclusive benefit of Provider and Client only, and no other shall have any right or claim
against either party or be entitled to enforce any provisions hereunder against any party
hereto.
26. Headings The headings in this Contract are used for convenience only and shall
not be used to define, limit or describe the scope of this Contract or any of the obligations herein.
27. Final Agreement This Contract constitutes the final understanding and
agreement between the parties with respect to the subject matter hereof and supersedes all prior
negotiations, understandings and agreements between the parties, whether written or oral. This
Contract may be amended, supplemented or changed only by an agreement in writing signed by
both of the parties.
28. Severability If any term or provision of this Contract is found by a court of
competent jurisdiction to be invalid or unenforceable, then this Contract, including all of the
remaining terms and provisions, shall remain in full force and effect as if such invalid or
unenforceable term had never been included.
29. Press Releases /Public Filings Client acknowledges that Provider and /or its
parent may publish information relating to this Contract in any manner necessary to fulfill any
regulatory responsibilities under the Securities Exchange Act of 1934 or other applicable law.
Client further agrees that information concerning this Contract may be released as a press release
by Provider and/or its parent, but will be released in good faith coordination with Client.
30. No Advertising Provider understands that City of Miami Beach regulations
strictly prohibit Provider from advertising on any part of any Equipment, as well as any ancillary
property of Provider relating thereto, installed on City property under this Contract, and
expressly agrees not to conduct any advertising hereunder unless expressly approved in writing
by Client.
31. Counterparts This Contract may be executed in any number of counterparts
(including facsimile or scanned versions), each of which shall be an original but all of which
together will constitute one instrument, binding upon all parties hereto, and notwithstanding that
all of such parties may not have executed the same counterpart.
32. Authority Each party represents and warrants to the other that it has all
requisite power and authority to enter into this Agreement.
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33. Assignment, Transfer or Subcontracting Provider shall not subcontract,
assign, or transfer any work under this Contract without the prior written consent of the City
Commission which consent, if given at all, shall be at the Commission's sole and reasonable
discretion. Notwithstanding the foregoing, Client expressly agrees that Provider may assign the
management and operation of the work and /or services to be performed under this Agreement to
a wholly owned subsidiary entity, CCGI / CMB, LLC, who shall be directly authorized to act on
behalf of Provider as to all matters relating to this Agreement; provided, however, that the City's
agreement to allow CCGI /CMB, LLC to manage and operate such work and /or services to be
performed under this Agreement shall not release, relieve, or otherwise excuse Provider with
regard to its performance and/or responsibilities as the party in contract with the City under this
Agreement. City and Provider expressly acknowledge, agree, and hereby reaffirm that Provider
is the only party in contract with the City under this Agreement; that the City has no duty,
obligation, or liability to CCGI /CMB, LLC under this Agreement; and that CCGI /CMB, LLL is
not an intended (or unintended) third party beneficiary to /under this Agreement..
34. Audit and Inspections At any time during normal business hours, and as
often as the City Manager may deem necessary during the Term hereof, Provider shall make
available to the City Manager, and /or such representatives as he /she may deem to act on his /her
behalf, to audit, examine, inspect, and /or copy, any and all records and documents of Provider's
related to matters covered by this Contract including, without limitation, all contracts, invoices,
payrolls, records of personnel, conditions of employment, financial records, and such other data,
records, documents, and/or materials as may relate to matters covered by this Contract
(collectively, the Records). Contractor shall maintain any and all such Records throughout the
Term, and for a period of three (3) years after expiration of the Contract.
34.1. Access to Records:
Provider agrees to allow the City Manager, and/or such authorized representatives
as he /she may deem to act on behalf of the City, access during normal business hours to
all Records pertaining to this Contract and the performance of Contractor's services, and
agrees to provide such assistance as may be necessary to facilitate audit (whether
financial or otherwise) and /or inspection by the City Manager or his/her representatives.
34.2. Provider shall bind any of its sub - contractors performing any portion of
work and /or services under this Contract to the provisions of Section 34 and subsection
34.1 hereto.
35. Equal Employment Opportunity In connection with the performance of the
work and services contemplated under this Contract, the Provider shall not discriminate against
any employee or applicant for employment because of race, color, religion, ancestry, sex, age,
national origin, place of birth, marital status, sexual orientation, gender identity or disability.
The Provider shall take such action as may be necessary to ensure that applicants are employed
and that employees are treated during their employment without regard to their race, color,
religion, ancestry, sex, age, national origin, place of birth, marital status, sexual orientation,
gender identity, or disability.
{00009910.DOC:2 }
35.1. Sanctions for Noncompliance with Nondiscrimination Provisions
In the event of Provider's noncompliance with the nondiscrimination provisions
of this Contract, Client shall impose such sanctions as the Client, or the State of Florida,
may determine to be appropriate including, without limitation, withholding of payments
to the Provider under the Contract until the Provider complies, and /or termination of the
Contract. In the event Client terminates the Contract pursuant to this subsection, the
rights and obligations of the parties shall be the same as provided in Section 10.
36. Conflict of Interest Provider agrees to adhere to and be governed by the
Miami -Dade County Ethics and Conflict of Interest laws, as same may be amended from time to
time, and by the City of Miami Beach Charter and Code, as same may be amended from time to
time, in connection with the performance of the Services.
Provider covenants that it resentl has no interest and shall not acquire an interest
p Y q Y
direct or indirectly, which would conflict in any manner or degree with the performance of the
work and services contemplated in this Contract. The Provider further covenants that in the
performance of this Contract, no person having any such interest shall knowingly be employed
by the Provider.
37. Compliance with All Applicable Laws Provider, its officials, officers,
employees, contractors, and vendors, agents shall comply with all applicable Federal, State and
County laws; the Charter, related laws, Code, and ordinances of the City of Miami Beach; the
Policies and Procedures; and any and all applicable rules and regulations promulgated by local,
State and national boards, bureaus and agencies as they relate to this Contract.
38. Limitation of City's Liability Client desires to enter into this Agreement
only if in so doing Client can place a limit on its liability for any cause of action for money
damages due to an alleged breach by Client of this Contract, so that its liability for any such
breach never exceeds the total amount of $10,000. Provider hereby expresses its willingness to
enter into this Contract with Provider's recovery from Client for any damage action for breach of
contract to be limited to a maximum amount equal to $10,000.
Accordingly, and notwithstanding any other term or condition of this Contract, Provider
hereby agrees that Client shall not be liable to the Provider for damages in an amount in excess
$10,000, for any action or claim for breach of obligations imposed upon Client by this Contract.
Nothing contained in this paragraph or elsewhere in this Contract is in any way intended to be a
waiver of the limitation placed upon Client's liability, as set forth in Section 768.28, Florida
Statutes.
- SIGNATURE PAGE TO FOLLOW -
{00009910.DOC:2 }
IN WITNESS WHEREOF, the parties hereto have executed this Exclusive Electric Car
Charging Services Contract on the last date written below.
CLIENT: PROVIDER:
CITY OF MIAMI BEACH, FLORIDA Car Charging Group, Inc., a Nevada
Corporation
By:
C)-
Name: Michael D. Farkas
Title: Chief Executive Officer
Date: v� l2 Q1'L
� , 2
By: Attest:
Name:
Title:
Date:
FEIN: 1
Pr' --- /Title
Attest: A n, B
1 � 1 ./ �17
Print Name /Title INCORP ORATED'
4
Wr �� Agreed to and Acknowledged by
Vv T,A-1G By CCGI /CMB, LLC as to Sections
7 and 33 of the Agreement:
By: Car Charging Holdings, LLC, Manager
APPROVED AS TO
FORM & LANGUAGE
FO ;rneW UTION By�`
Name: Micha . Farkas
Title: CEO
Date: ��+^� 12 , 2o\ L-
ity
{0 0009910.DOC:2 }
Exhibit A
Property Address(es)
13 Street Garage
Address:
1301 Collins Ave
Miami Beach, FL 33139
Legal Description:
3 54 42 34 53 42
OCEAN BEACH ADD NO 2 PB 2 -56
LOTS 9 THRU 12 BLK 18
LOT SIZE 200.000X140
Exhibit B
Designated Area(s)
13 th Street Gara e
g
3 ' level, near the SE corner and the south elevator bank
Exhibit C
Client Electric Bill
I
i
{00009910.DOC:2 }
Exhibit D
Installation Date Acceptance
For the purposes of determining the Commencement Date of the Contract, pursuant to Paragraph
Two (2) thereof, the following date shall be deemed the acceptance of the initial date of
installation of the Equipment for the Phase I Pilot Program at the following location(s):
Date of Installation:
CLIENT: PROVIDER:
CITY OF MIAMI BEACH, FLORIDA Car Charging Group, Inc., a Nevada
corporation
By:
Name: Michael D. Farkas
Title: Chief Executive Officer
Date:
By:
Name:
Title:
{00009910.DOC:2 }
Exhibit E
Signage
Actual Size: 12" x 18"
L CTRIC
VEHICLE
CHARGING
STATION
Provided • •
t00009910.DOC:2 }