Loading...
HomeMy WebLinkAbout05-15-2018 Item 13 - Resolution to License Parking Stalls to Recargo for Electric Vehicle ChargersMeeting Date: 5/15/2018 FROM: Robert Hill, Interim Deputy Director, Office of Sustainability Prepared By: Chris Read, Sustainability Manager SUBJECT: ADOPT A RESOLUTION TO LICENSE PARKING STALLS TO RECARGO, INC., FOR THE PURPOSE OF INSTALLING, OPERATING, AND MAINTAINING ELECTRIC VEHICLE CHARGERS. RECOMMENDATION Adopt a Resolution (Attachment A) to license parking stalls at the Calle Joaquin Park and Ride Lot to Recargo, Inc. for publicly accessible electric vehicle charger installation, operation, and maintenance in a form subject to the approval of the City Attorney. DISCUSSION Background In June of 2017, the City made Climate Action a Major City Goal in the 2017-19 Financial Plan with an overall goal of reducing citywide greenhouse gas (GHG) emissions . As noted in the City’s Climate Action Plan, GHG emissions from fossil fuel combustion in on-road vehicles account for approximately 50 percent of the City’s 2006 baseline emissions inventory. The City of San Luis Obispo’s Climate Action Plan provides a roadmap for achieving the City’s adopted 2020 GHG reduction target and provides strategies for reduc ing transportation related GHG emissions through decreasing vehicle miles travelled (e.g., encouraging walking, bicycling, transit, carpooling, etc.) and through switching fossil fuel consuming vehicles with alternative fueled vehicles (e.g., electric vehicles, hydrogen fuel cell vehicles, etc.). The City of San Luis Obispo Climate Action Plan Measure Transportation and Land Use 2 directs the City to promote clean air vehicles and expand the network of electric car chagrining stations. Statewide Support for Zero Emission Vehicles In 2016, Governor Brown signed Executive Order B-16-12, which calls for 1.5 million zero- emission vehicles on California roads by 2025. The California Energy Commission (CEC) seeks to support local GHG emissions reductions and achieve goals identified in Executive Order B - 16-12 through various grant programs. In 2015, Recargo, Inc. (Recargo) was the selected vendor for CEC grant GFO-15-601, which provided $1.6 million toward the equipment and installation of Direct Current (DC) Fast Chargers and Type 2 Electric Vehicle Chargers at locations on the US-101 corridor between the City of Buellton and the City of Gilroy. Recargo has identified all other sites on the US-101 corridor and is looking for a location in or around the City of San Luis Obispo as their final site. Should the City Council adopt the draft Resolution, Recargo will be able to move into the next phase of the grant funded project, which is engineering, site design, and utility and permitting coordination. As part of the GFO-15-601 grant, Recargo must have all awarded locations operational by March of 2020, although Recargo intends to have all sites constructed in 2019. Packet Page 265 Item 13 Subsequently, Recargo has since won additional corridors as part of the CEC’s second grant round (GFO-15-603). These awarded corridors provide funding for the northern portion of US- 101 from Santa Rosa to the Oregon border and for a key cross-state corridor along the CA-152 from Gilroy to Chowchilla connecting US-101, I-5 and US-99. Site Identification, Preliminary Design, and Agreement Recargo and staff have identified the new Park and Ride Lot at 1545 Calle Joaquin (APN# 053- 171-028) as an ideal site due to its proximity to and visibility from Highway 101. The Calle Joaquin Park and Ride Lot opened in February of 2018 and has 31 parking stalls and a bus turnout. The preliminary design (Attachment B) would replace the bank of six parking stalls most adjacent to the southern entrance of the lot with five electric vehicle charging stalls (four “Direct Current Fast Chargers” and one “Type 2 Charger”). The stalls would be open to the public for charging electric vehicles. Drivers charging their electric vehicles would be charged a cost per kilowatt hour (kWh), to be determined by Recargo. The license agreement for the parking stalls would require that Recargo pay a license fee and be entirely responsible for the installation, maintenance, and operation of the chargers and associated facilities for an initial ten-year term. Attachment B provides the standard Recargo license agreement , which is currently under negotiation. Staff will continue negotiations with Recargo to arrive at an agreement in a form approved by the City Attorney’s O ffice. CONCURRENCES Tim Bochum (Deputy Director of Public Works), Scott Lee (Parking Manager), and San Luis Obispo Council of Governments (SLOCOG) staff concur with the intent of this report and the attached resolution. ENVIRONMENTAL REVIEW The resolution to grant the license is not considered a project as it does not directly result in a physical improvement. Future physical improvements to the property will be subject to environmental review through the City’s standard planning and building permit processes. FISCAL IMPACT There is no direct cost to the City; Recargo and the CEC grant that supports their work will pay for the entirety of installing, operating, and maintaining the electric vehicle charge rs and related facilities. Pending negotiations, the license agreement is expected to generate approximately $10,000 in revenue per year through the life of the agreement. Packet Page 266 Item 13 ALTERNATIVE Do not adopt the resolution and keep the six parking stalls at the Calle Joaquin Park and Ride Lot open for all vehic le types. This alternative still contributes to GHG reductions by supporting the regional Park and Ride network. However, this alternative would fail to take advantage of the opportunity to install EV chargers at no cost to the City. Attachments: a - Draft Resolution b - Recargo Standard Agreement and Preliminary Site Proposal Packet Page 267 Item 13 R ______ RESOLUTION NO. _____ (2018 SERIES) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA, TO LICENSE PARKING STALLS TO RECARGO, INC. FOR THE PURPOSE OF INSTALLING, OPERATING, AND MAINTAINING ELECTRIC VEHICLE CHARGERS. WHEREAS, in January 2017 the City made Climate Action a Major City Goal in the 2017/2019 Financial Plan with an overall goal of reducing citywide greenhouse gas (GHG) emissions; and WHEREAS, The City of San Luis Obispo Climate Action Plan measure “Transportation and Land Use 2 (Alternative Vehicles)” direct the City to promote clean air vehicles and expand the network of electric car chagrining stations ; and WHEREAS, GHG emissions from fossil fuel combustion in on-road vehicles account for approximately 50 percent of the City’s 2006 baseline emissions inventory; and WHEREAS, Executive Order B-16-12 calls for 1.5 million zero-emission vehicles on California roads by 2025; and WHEREAS, the California Energy Commission (CEC) seeks to support local GHG emissions reductions and achieve goals identified in Executive Order B-16-12 through Alternative and Renewable Fuel and Vehicle Technology Program grant funding opportunit ies; and WHEREAS, RECARGO, INC., was the selected vendor for CEC grant GFO-15-601, which provided $1.6 million toward the equipment and installation of Direct Current Fast Chargers and Type 2 Electric Vehicle Chargers at locations on the US-101 between the City of Buellton and the City of Gilroy; and WHEREAS, RECARGO, INC., identified the City of San Luis Obispo as a critical location for the US-101 electric vehicle charger network; and WHEREAS, the Calle Joaquin Park and Ride lot provides a suitable location for electric vehicle chargers. Packet Page 268 Item 13 Resolution No. _____ (2018 Series) Page 2 R ______ NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo that : SECTION 1. The Mayor is hereby authorized to execute a license agreement with RECARGO, INC. in a form subject to the approval of the City Attorney to install, operate, and maintain electric vehicle chargers at the Calle Joaquin Park and Ride Lot. Upon motion of _______________________, seconded by _______________________, and on the following roll call vote: AYES: NOES: ABSENT: The foregoing resolution was adopted this _____ day of _____________________ 2018. ____________________________________ Mayor Heidi Harmon ATTEST: ____________________________________ Teresa Purrington City Clerk APPROVED AS TO FORM: _____________________________________ J. Christine Dietrick City Attorney IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Luis Obispo , California, this ______ day of ______________, _________. ____________________________________ Teresa Purrington City Clerk Packet Page 269 Item 13 Page 1 MASTER CHARGING STATION LICENSE AGREEMENT This MASTER CHARGING STATION LICENSE AGREEMENT (this “Agreement”), dated as of ________________, 2018 (the “Effective Date”), is between Recargo, Inc., a California corporation (“Recargo”), and _________________, a(n) ___________________ (“Host”). Recargo and Host may be referred to herein individually as a “Party,” and together as the “Parties”. RECITALS WHEREAS, Host is the fee simple owner or lessee of one or more real property sites described on Exhibit A attached hereto and incorporated herein (collectively, the “Host Property”); WHEREAS, Recargo provides a variety of vehicle charging and support services to owners of electric plug-in vehicles (each an “EV”); WHEREAS, Host and the Host Property may benefit from the presence of EV charging stations, by differentiating its location, attracting high-value customers, and promoting sustainable and environmentally- sound transportation; and WHEREAS, Host desires to participate in Recargo’s network of charging stations and to grant a license to Recargo to install charging stations and ancillary items on the Host Property. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and in consideration of other valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: ARTICLE 1 LICENSE; USE; EXCLUSIVITY 1.1 Grant of License. For the Term of this Agreement, Host hereby grants to Recargo (i) an irrevocable, exclusive license running with the Host Property (the “License”) to use a portion of the Host Property as more particularly described on Exhibit B (the “Premises”) and (ii) any necessary easements for access and utilities, each consistent with the Purpose (as defined below). 1.2 Access. Access to the Host Property and the Premises is depicted on Exhibit B. Recargo shall have access to the Premises twenty-four (24) hours per day, seven (7) days per week and on every day of the year. 1.3 Use of Premises. The Premises may be used by Recargo for any lawful activity in connection with the construction, installation, maintenance and operation of charging stations and ancillary items, including, without limitation, electrical equipment, hardware, software, signage and all supporting equipment and structures (which may include concrete pads and protective bollards) (collectively, the “Charging Stations”), together with any other uses permitted herein, on the terms and conditions set forth in this Agreement (the “Purpose”). The Premises may be accessed and used by Recargo and its agents, employees, contractors, vendors, customers, guests and invitees. 1.4 Exclusivity. Host hereby grants Recargo an exclusive right to construct, install, maintain and operate charging stations and related services at the Host Property during the Term (as defined below) of this Agreement. 1.5 Quiet Enjoyment. Recargo shall have quiet enjoyment of the Premises during the Term of this Agreement. 1.6 Additional Host Property. The Parties may from time to time add or remove additional properties owned or leased by Host by executing an Addendum to Master License Agreement in the form attached Packet Page 270 Item 13 Page 2 hereto as Exhibit C attached hereto (the “Addendum) and the executed version of the Addendum shall be incorporated herein. ARTICLE 2 TERM; LICENSE FEE; TERMINATION 2.1 License Term. (a) Initial Term. This Agreement shall be effective on the Effective Date. Upon Recargo’s receipt of all necessary governmental authorizations (“Governmental Authorizations”), Recargo shall provide to Host notice of such receipt within a reasonable period thereafter, and five (5) days after the delivery of such notice, subject to Section 3.3, Recargo may enter upon the Premises to install the Charging Stations. The term of the License shall commence upon the date on which the Charging Stations are first operational (the “Commencement Date”) and, subject to the provisions of Section 2.2 below, end on the date that is ten (10) years from the Commencement Date (the “Initial Term”). Recargo shall provide to Host notice of the Commencement Date within a reasonable period following the occurrence of such date. (b) Extended Term. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive five (5) year periods (each, an “Extended Term”, and together with the “Initial Term”, the “Term”), unless Recargo provides to Host written notice of termination of this Agreement no later than thirty (30) days prior to the expiration of the Initial Term or the Extended Term, as applicable. 2.2 License Fee. Within five (5) business days of the execution of this Agreement, Recargo shall make a one-time payment to Host in the amount of One Thousand and No/100 Dollars ($1,000.00). Commencing upon the Commencement Date, Recargo shall pay to Host, at such address as Host may from time to time designate in writing, a monthly license fee in the amount of One Hundred and No/100 Dollars ($100.00) per installed Charging Station as set forth on Exhibit B (the “License Fee”). The Parties acknowledge that in most instances one (1) Charging Station requires one (1) parking space, however, in order to comply with applicable laws, there may be instances where one (1) Charging Station requires more than one (1) parking space. Recargo shall pay the License Fee by the 10th of each month. The License Fee for the first month of the Term or any other partial month shall be prorated. 2.3 Termination. (a) For Cause. Either Party may terminate this Agreement upon the occurrence of any of the following: i. Breach. The other Party breaches or fails to perform any of its obligations in any material respect, and such breach or failure continues uncured for ten (10) business days after receipt of written notice; provided, however, that if such breach is not capable of being cured within such ten (10) day period, then so long as the breaching Party commences and diligently pursues such cure without such ten (10) day period and continues such cure until completion, then such period shall be deemed extended up to an additional sixty (60) days. ii. Insolvency. The other Party becomes insolvent or proceedings are instituted by or against it under any provision of any federal or state bankruptcy or insolvency laws. (b) For Convenience by Recargo. Recargo may elect to terminate this Agreement at any time by providing at least thirty (30) days prior written notice to Host. Packet Page 271 Item 13 Page 3 (c) Restoration of Premises upon Termination. Promptly following the expiration or termination of this Agreement, Recargo shall remove the Charging Stations from the Premises and restore the affected area to its former condition, excluding ordinary wear and tear. Recargo shall only be required to cap off, not remove, any underground electrical wiring. (d) No Further Obligations. Upon the expiration or termination of this Agreement, both Parties will be relieved of any further obligations under Agreement, except for those that by their nature survive an expiration or termination. ARTICLE 3 CHARGING STATIONS 3.1 General. (a) Charging Stations. The number of Charging Stations allowed (the “Allowed Number of Charging Stations”) and their approximate locations are specified in Exhibit B. The Parties may increase or decrease the number of Charging Stations and/or their approximate locations by executing an Amendment of Master License Agreement in the form attached hereto as Exhibit D attached hereto (the “Amendment”) and the executed version of the Amendment shall be incorporated herein. The License Fee shall automatically adjust, if necessary, to reflect the final number of installed Charging Stations. (b) Modifications. Exhibit B is intended to provide only a general description of the Charging Stations for informational purposes. Recargo may, in its sole and absolute discretion, at any time and for any reason during the License Term, without the need to obtain Host’s consent or approval, (i) modify, including, without limitation, upgrade or replace any portion of the Charging Stations, or (ii) install Charging Stations up to the Allowed Number of Charging Stations (subject to payment of the License Fee pursuant to Section 2.2), and Recargo shall not be required to pay any other charges or fees on account of (i) or (ii). (c) Ancillary Facilities. Recargo may, with Host’s prior approval, include at the Premises other additional services, equipment or facilities for automobile upkeep that Recargo may elect to offer its customers from time to time during the Term. 3.2 Signage. Recargo may paint, place, erect, or project signs, marks, or advertising devices in, on, or about the Premises or with Host’s prior consent, elsewhere on the Host Property (which consent shall not be unreasonably delayed or withheld). Recargo shall indemnify Host and save Host harmless from all claims and damages resulting from any sign, mark or advertising device erected by Recargo at the Host Property. Recargo shall, at its own cost and expense, obtain any and all permits necessary for the installation of its signs, and Recargo shall be solely responsible for all costs and expenses associated with such permitting, the erection of such sign(s), and the maintenance and operation thereof. Further, Recargo and Host also agree to place signage on or around the Charging Stations, designating the area as “Electric Vehicle Charging Only,” and Host will take reasonable measures to prevent non-EV vehicles from parking in the Premises. Host agrees that it shall not place any signs, marks or advertising devices on any portion of the Premises without Recargo’s prior written consent (which may be granted or denied in Recargo’s discretion). 3.3 Installation. (a) General. Recargo is solely responsible for the construction and installation of the Charging Stations, and has sole control over design, construction and installation, including, without limitation, scheduling, means, methods, techniques, sequences, and procedures, including the coordination of all work. (b) Construction. Before beginning activities to install the Charging Stations, Recargo shall give a copy of the tentative construction schedule and installation plans to Host for its approval, which approval shall not be unreasonably delayed or withheld. Recargo shall not begin work until (i) Host has provided its approval and (ii) Recargo has obtained all applicable Governmental Authorizations. Once approved, and on Packet Page 272 Item 13 Page 4 the Parties’ respective demonstration that all insurance coverages required by this Agreement are in place, Recargo will, at its sole expense, oversee and manage the installation of the Charging Stations, including, without limitation, the hiring and coordination of all vendors and contractors; the installation of electrical equipment, utility lines, hardware, and software; site prepa ration, trenching, repaving, and landscaping; and installation of all Recargo-branded signage. (c) Governmental Authorizations. Recargo will, at its sole cost and expense, obtain from applicable governmental authorities all Governmental Authorizations required to install the Charging Stations, and Host will reasonably cooperate upon request with Recargo’s efforts to do so. (d) Right to Construct. Host grants to Recargo and its employees and vendors the non-exclusive right to use and occupy the Premises and Host’s adjacent property for the construction and installation of the Charging Stations. Recargo may only bring onto such property materials and equipment that will be used directly in the construction and installation of the Charging Stations. Recargo shall ensure that, subject to reasonable and unavoidable interruptions, all work is performed in a manner that affords continuous, reasonable access to the Host Property. (e) Liens. Recargo will not permit or suffer any mechanic’s or materialmen’s liens to attach to the Host Property as a result of the installation of the Charging Stations. If as a result of Recargo’s activities, a lien attaches to the Host Property, Recargo shall remove or bond over such lien at Recargo’s sole cost and expense, within twenty (20) days of Recargo receiving written notice thereof from Host. (f) No Fixtures. In no event shall the Charging Stations or any of Recargo’s property be deemed a fixture, nor shall Host, nor anyone claiming by, through or under Host (including but not limited to any present or future mortgagee of the Host Property) have any rights in or to Recargo’s property at any time. Host shall have no interest in the Charging Stations or other equipment or personal property of Recargo installed or located on the Host Property, and Recargo may remove all or any portion of the Charging Stations or any other equipment or personal property of Recargo at any time. Without limiting the generality of the foregoing, Landlord hereby waives any statutory or common law lien right that it might otherwise have in or to the Charging Stations and other equipment or personal property of Recargo. 3.4 Operation and Maintenance. Except as otherwise provided in this Agreement, Recargo will, at its sole cost and expense, maintain and operate the Charging Stations, including making all necessary repairs, arrange for appropriate remote monitoring, and obtaining and installing appropriate software and hardware upgrades. Recargo shall not be required to make any repairs to the Premises except for damage caused by Recargo. Additionally, Recargo may perform security assessments and install reasonable security features on the Premises, including, without limitation, lighting and cameras. 3.5 Host Obligations. Host shall, at its sole cost and expense, take all actions necessary to maintain the Premises in a clean, safe, and orderly condition, to at least the same standard as it cu stomarily maintains the common areas at the Host Property, including, without limitation, parking lot sweeping, parking lot snow removal, parking lot repaving and restriping, and maintenance and repair of curbs, gutters and landscaping features within the Premises. Host shall be under no obligation to maintain the Charging Stations, signage or any other equipment installed by Recargo within the Premises; provided, however, that Host shall be responsible for any damage to the Charging Stations caused by Host or Host’s employees, agents, representatives or invitees. Any such damage may be repaired by Recargo at Host’s cost, and Recargo shall invoice Host for such amount. To the extent Host has actual knowledge of the same, Host shall promptly notify Recargo and, as appropriate, emergency response personnel regarding any malfunction of the Charging Stations. Host shall not store any items in the Premises and it shall not allow its employees, agents, representatives, invitees or visitors to park in the Premises. 3.6 Utilities. Packet Page 273 Item 13 Page 5 (a) Utility Costs. Recargo shall be responsible for all electricity costs of the Charging Stations. Recargo shall, at its sole expense, either (i) ensure that the Charging Stations contains separately-metered electricity with Recargo as the customer of record for such meter, or (ii) measure in kWh the electricity used by the Charging Stations, in which case Recargo will pay Host for the electricity used by the Charging Stations at the applicable per kWh rate, or as otherwise mutually agreed by the Parties. (b) Host Cooperation. Host shall cooperate with Recargo to obtain electricity and any other utilities necessary to operate the Charging Stations, including by granting appropriate easements to local utility providers; provided, however, that Host is not required to pay money to satisfy the requirements of the utility or Recargo associated with the provision of such utilities. 3.7 Training and Reporting. To better facilitate the use of the Premises by the target customers, Recargo will provide initial training to Host and its designated employees on the basic operation and maintenance of the Charging Stations at no cost to Host. As appropriate thereafter, Host may periodically train and retrain its employees on the use and maintenance of the Charging Stations, so that Host employees who might provide any such support services have the requisite training to assist and answer questions from customers. 3.8 Taxes. Recargo is solely responsible for taxes imposed on the Charging Stations, and any other equipment installed by it, that is located in the Premises. All other real or personal property taxes related to the Premises, including any increase in real estate taxes on the real property on which the Premises is located which arise from Recargo’s improvements and/or Recargo’s use of the Premises, are the sole obligation of Host. Each Party is responsible for its own income, franchise and similar taxes. 3.9 Relocation of Premises. During the first five (5) years of the Term, Host may not relocate the Premises without Recargo’s prior written consent, which may be withheld in Recargo’s discretion. At any time thereafter, upon the reasonable request of Host in connection with a leg itimate business purpose, the Parties may agree to relocate the Premises to a mutually agreeable location (i) that includes at least the same number of parking spots, and (ii) with accessibility (by Recargo and it’s invitees and customers) and visibility that is similar to the original Premises, provided that the new location is open to the public before Recargo is required to decommission the original location and Host shall not be entitled to any increase in the License Fee as a result of such relocation. Host shall pay all of Recargo’s costs and expenses incurred as a result of such relocation, including, without limitation, loss of revenue at the Premises during any period of time when the Charging Stations are not accessible by Recargo’s customers; the cost of moving the Charging Stations (including replacing any portion of the Charging Stations that cannot be moved without resulting in damage to such portion); the costs of any required revisions or modifications to any Governmental Authorizations, if any; utility relocation or reconnection costs; installation costs, including, without limitation, costs of vendors and contractors, the installation of electrical equipment, utility lines, hardware, and software, site preparation, trenching, repaving, and landscaping; the cost of relocating and installing Recargo’s signage; and restoration costs related to the restoration of the original Premises. ARTICLE 4 INTELLECTUAL PROPERTY; PUBLICITY 4.1 Intellectual Property. As used in this Agreement, “Intellectual Property” means all copyrights, patents, trademarks and service marks, names, logos, designs, domain names, generic Top -Level Domain names, all registrations for copyrights, patents, trademarks and service marks/names, domain names, generic Top-Level Domain names, trade secrets, know-how, and all unique concepts, information, data and knowledge that is eligible for legal protection under applicable laws as intellectual property, whether protected through confidentiality, registration or pending registration, regardless of form, whether disclosed in writing, electronically, orally or through visual means, whether learned or obtained orally, through observation, through the discharge of responsibilities under this Agreement, or through analysis of that information, data or knowledge. Packet Page 274 Item 13 Page 6 (a) Host Intellectual Property. The Parties agree that, as between them, Host has and retains ownership of all of Host’s Intellectual Property, and except as set forth in Section 4.3(b), Recargo has no right, and shall not obtain any right, in any Host Intellectual Property. (b) Recargo Intellectual Property. The Parties agree that, as between them, Recargo has and retains ownership of all of Recargo’s Intellectual Property, and Host has no right, and shall not obtain any right, in any Recargo Intellectual Property. 4.2 Ownership of Drawings and Other Documents. All documents and records prepared by or under the direction of Recargo pursuant to this Agreement, including, without limitation, drawings, specifications, and other documents, including those in electronic format, are solely and exclusively Recargo Intellectual Property, and Recargo retains all common law, statutory and other reserved rights, including the copyright. 4.3 Publicity. (a) Host must obtain Recargo’s prior written approval of any announcements, publications, photographs, or other type of communication concerning the Work which it wishes to release for publication, which approval may be withheld in the other Party’s sole discretion. (b) Recargo may (i) make or publish announcements, press releases and statements and hold press conferences, both through traditional and electronic media, including websites created by Recargo or other third parties, regarding the subject matter of this Agreement, including, without limitation, the execution of this Agreement, the status of the activities contemplated herein and the location of the Charging Stations, (ii) advise mapping or other services of the existence of the Charging Stations at the Premises so that such services may include such infor mation in connection with their mapping or other services; and (iii) make any disclosures regarding the subject matter of this Agreement or provide copies of this Agreement or portions hereof to utility providers, governmental authorities, affiliates and/or third parties referenced in Section 5.2(a) as reasonably necessary or desirable to facilitate or effectuate the intents and purposes of this Agreement. Host hereby grants to Recargo a n irrevocable, perpetual, royalty-free and transferable (to a permitted assignee subject to Section 8.4 of this Agreement) license to use Host’s Intellectual Property in connection with Recargo’s business development activities for the limited purpose of indicating the existence of a business relationship between the Parties. ARTICLE 5 REPRESENTATIONS AND WARRANTIES; COVENANTS 5.1 Mutual Representations and Warranties. Each of Host and Recargo hereby represents and warrants to the other as of the Effective Date that: (a) it has all necessary power and authority to execute, deliver, and perform its obligations hereunder; (b) the execution, delivery, and performance of this Agreement have been du ly authorized by all necessary action and do not violate any of the terms or conditions of its governing documents, any contract to which it is a party, or any law, rule, regulation, order, judgment, or other legal or regulatory determination applicable to it; (c) there is no pending or, to its knowledge, threatened litigation or administrative proceeding that may materially adversely affect its ability to perform this Agreement; (d) it is duly organized and validly existing under the laws of the jurisdicti on of its organization or incorporation and, if relevant under such laws, in good standing; (e) this Agreement constitutes a legal, valid and binding obligation of such Party, except as the enforceability of this Agreement may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity; and (f) at all times during the Term, it will comply with all federal, state, and local laws, rules, regulations (including, without limitation, all zoning ordinances and building codes) in performing its obligations under this Agreement. Packet Page 275 Item 13 Page 7 5.2 Host Representations and Warranties. (a) Consents/Approvals. Host further represents, warrants and covenants that it has obtained or it shall obtain any and all consents or approvals required in order for Host to grant the License and other rights and perform its obligations under this Agreement, and for Recargo to take the actions with respect to the Premises contemplated in this Agreement, from any third parties: (i) with an interest in the Host Property (including, without limitation, any owner, lender, lessee, ground lessor, party with a right of first refusal (or right of first offer) or any party to any reciprocal easement agreement) or (ii) whose consent is otherwise required under conditions, covenants and restrictions documents, declarations or similar agreements affecting the Host Property. When consent of a third party is required, upon the reasonable request of Host, Recargo shall provide reasonable assistance to Host to educate the applicable third parties of the terms, conditions, and benefits of the activities proposed to be taken pursuant to this Agreement. (b) Title. Host further represents and warrants that there are no liens, judgments, encumbrances or other impediments of title on the Host Property that would adversely affect the use or occupancy of the Premises by Recargo pursuant to this Agreement, and during the Term of this Agreement covenants to maintain the Host Property free of any such liens, judgments, encumbrances or other impediments. (c) Hazardous Substances. Host further represents and warrants that the Host Property is and has at all times been in compliance with all applicable laws relating to the Host Property, including, without limitation, laws relating to Hazardous Substances and to the knowledge of Host, no fact or circumstance exists that reasonably could be expected to involve the Host Property in any environmental litigation, proceeding, investigation or claim or impose any environmental liability upon Host. “Hazardous Substances” means any and all chemicals, constituents, contaminants, pollutants, materials, and wastes and any other carcinogenic, corrosive, ignitable, radioactive, reactive, toxic or otherwise hazardous substances or mixtures (whether solids, liquids, gases), or any substances which are now or at any time after the Effective Date subject to regulation, control, remediation or otherwise addressed as a hazardous substance under applicable laws, including those laws, regulations and policies relating to the discharge, emission, spill, release, or threatened release into the environment or relating to the disposal, distribution, manufacture, processing, storage, transport, treatment, transport, or other use of such substances . ARTICLE 6 INSURANCE; CASUALTY AND CONDEMNATION 6.1 Recargo Insurance. (a) Coverage. During the License Term, Recargo shall maintain in full force and effect, at its cost and expense, the following coverages and amounts of insurance: i. Full replacement cost Property Insurance (written on a “special perils” basis) for the Charging Stations and all other personal property, machinery, equipment and trade fixtures owned by Recargo; ii. Statutory Worker’s Compensation Insurance, and Employer’s Liability limits of $1,000,000.00 per accident/per employee; iii. 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 $1,000,000.00 per occurrence, that includes coverage for contractual liability, independent contractors, premises/operations, products/completed operations, and cross liabilities/separation of insureds; Recargo shall consider its own insurance primary, and shall not seek contribution from similar insurance being maintained by the Host, but only as to the negligent acts or omissions of Recargo or the Recargo Parties. Packet Page 276 Item 13 Page 8 (b) Certificates. From time to time upon request, Recargo shall provide Host with a certificate of insurance, evidencing the required coverages. 6.2 Host Insurance. (a) Coverage. During the License Term, Host shall maintain in full force and effect, at its cost and expense: i. Full replacement cost Property Insurance (written on an “special perils” basis) for (1) the Host Property and all improvements thereon (including without limitation the Premises and all electrical infrastructure for the Charging Stations); and (2) all personal property, machinery, equipment and trade fixtures located at the Host Property or owned by Host; and ii. From time to time upon request, Host shall provide Recargo with a certificate of insurance, evidencing the required coverages iii. 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 $2,000,000.00 per occurrence, that includes coverage for contractual liability, independent cont ractors, premises/operations, products/completed operations, and cross liabilities/separation of insureds; Host shall consider its own insurance primary, and shall not seek contribution from similar insurance being maintained by Recargo, but only as to the negligent acts or omissions of Host or the Host Parties . (b) Certificates. From time to time upon request, Host shall provide Recargo with a certificate of insurance, evidencing the required coverages. (c) Additional Insured. All of Host’s coverages shall name Recargo as an additional insured. 6.3 Policy Requirements. The insurance policies required under Sections 6.1 and 6.2 shall: (a) Issuers. be issued by insurance companies licensed to do business in the state in which the Host Property is located, with a general policyholder’s ratings of at least “A-” and a financial rating of at least “Class VIII,” in the most current Best’s Insurance Reports available on the Commencement Date; if the Best’s ratings are changed or discontinued, the Parties shall agree to a comparable method of rating insurance companies; (b) Waiver of Subrogation. contain provisions whereby each Party’s insurers waive all rights of subrogation against the other party on each of the coverages required herein. 6.4 Waiver. Anything in this Agreement to the contrary notwithstanding, to the extent covered by any property insurance maintained (or required to be maintained) hereunder, 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, the Premises, the Charging Stations (including without limitation the Charging Stations), or any improvements on any of the foregoing, or to the personal property of either Party, or their respective affiliates, representatives, agents, officers, directors, managers, members, shareholders, partners, contractors, or employees, 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. 6.5 Casualty and Condemnation. Packet Page 277 Item 13 Page 9 (a) Damage. If any portion of the Premises, the Charging Stations or the Host Property is damaged by fire or other casualty, then Recargo may, within thirty (30) days of the date of such fire or other casualty elect to terminate this Agreement on written notice to Host. If Recargo elects to repair its property, it shall restore, rebuild, or replace those portions of the Charging Stations in the Premises and any other property damaged as a result of such fire or other casualty to its prior or better condition as necessary, and all property insurance proceeds of Host applicable to the Premises shall be made available to Recargo in connection with such repair and restoration. If Recargo elects to terminate this Agreement, it shall remove all of Recargo’s property from the Premises in accordance with Section 2.2(b) of this Agreement. Any repair and restoration required by Recargo under this Section 6.5(a) shall commence within sixty (60) days of the date Recargo elects to repair and restore the Premises and shall be completed no later than 120 days thereafter. (b) Condemnation/Taking. If any portion of the Premises or Host Property is condemned or taken in any manner for a public or quasi-public use that could adversely affect the use of the Charging Stations, then Recargo may elect to terminate this Agreement effective as of the date title to the condemned portion of the Host Property is transferred to the condemning authority. If Recargo does not elect to terminate, the Parties will use commercially reasonable efforts to find an alternate location for the Charging Stations elsewhere on Host Property. The costs of the relocation of the Charging Stations shall be paid by Recargo. Recargo may file a separate claim to the condemning authority for any relocation award made as a result of such condemnation; provided, however, in no event shall such claim reduce the Host’s award related to the condemnation or taking. (c) Suspension of Term. During any time that the Charging Stations or any portion of the Premises is under repair or being relocated pursuant to this Section 6.5, the Term shall be temporarily suspended on a day-for-day basis. ARTICLE 7 INDEMNITY; LIMITATION OF LIABILITY 7.1 Recargo. Recargo shall defend, indemnify and hold harmless Host, its affiliates, and their respective representatives, agents, officers, directors, shareholders, partners a nd employees (individually, “Host Party” and, collectively, the “Host Parties”) from and against all third party claims, demands, causes of action, liabilities, costs, damages, loss es , 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 Recargo, its affiliates, and their respective representatives, agents, officers, directors, shareholders, partners and employees (individually, “Recargo Party” and, collectively, the “Recargo Parties”) in connection with this Agreement, (ii) any breach by Recargo of its obligations, representations or warranties under this Agreement, or (iii) the operation of the Charging Stations during the Term, except to the extent arising out of or resulting from any willful misconduct or negligence of any Host Party or any installation activities conducted by a contractor or other service provider designated by Host . The obligations of Recargo under this Section shall survive the expiration, cancellation, or termination of this Agreement and Term. 7.2 Host. Host shall defend, indemnify and hold harmless the Recargo Parties from and against all Losses that arise out of or result from (i) any willful misconduct or negligence of any Host Party in connection with this Agreement, (ii) any breach by Host of its obligations, representations or warranties under this Agreement, (iii) an event occurring in any area of the Host Property, except to the extent arising out of or resulting from any willful misconduct or negligence of any Recargo Party, (iv) the presence, generation or release of Hazardous Substances on the Host Property (other than to the extent Hazardous Substances were brought onto the Host Property and generated or released by Recargo). The obligations of Host under this Section shall survive the expiration, cancellation, or termination of this Agreement and the Term. 7.3 Limitation of Liability. IN NO EVENT SHALL RECARGO BE LIABLE (IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY) TO THE HOST PARTIES FOR ANY SPECIAL, INDIRECT , CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES Packet Page 278 Item 13 Page 10 RELATING TO THIS AGREEMENT. THE ENTIRE LIABILITY OF EACH PARTY FOR ANY AND ALL CLAIMS OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT WILL BE SUBJECT IN ALL CASES TO AN AFFIRMATIVE OBLIGATION ON THE PART OF THE OTHER PARTY TO MITIGATE ITS DAMAGES. RECARGO’S TOTAL LIABILITY FOR ANY AND ALL LIABILITY TO THE HOST PARTIES (ON AN AGGREGATE BASIS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) SHALL NOT EXCEED FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00). THE FOREGOING LIMITATION SHALL NOT LIMIT RECARGO’S LIABILITY TO THE EXTENT OF RECARGO’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT. THE PROVISIONS OF THIS SECTION 7.3 SHALL APPLY TO THE FULL EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT. 7.4 Procedure. Any Party seeking indemnification hereunder (the “Indemnified Party”) shall deliver to the other Party (the “Indemnifying Party”) a notice describing the facts underlying its indemnification claim and the amount of such claim (each such notice a “Claim Notice”). Such Claim Notice shall be delivered promptly to the Indemnifying Party after the Indemnified Party receives notice that an action at law or a suit in equity has commenced; provided, however, that failure to deliver the Claim Notice as aforesaid shall not relieve the Indemnifying Party of its obligations under this Section, except to the extent that such Indemnifying Party has been prejudiced by such failure. An Indemnified Party shall have the right to participate in the Indemnifying Party’s defense of a claim and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying Party, it being understood that the indemnifying Party shall control such defense. ARTICLE 8 MISCELLANEOUS 8.1 Brokers. Each Party hereby represents to the other Party that it has not dealt with any broker in connection with this Agreement. Each Party agrees to indemnify and hold the other Party, its members, principals, beneficiaries, partners, officers, directors, employees, and agents, and the respective principals and members of any such agents harmless from all claims of any brokers cla iming to have represented such Party in connection with this Agreement. 8.2 Survival. The obligations hereunder that, by their sense and context, are intended to survive termination of this Agreement shall survive the expiration or termination of this Agreement to the extent necessary to give them full effect. 8.3 Notice. Any notice to be given under this Agreement will be in writing and addressed to the Party at the address stated below. Notices will be deemed given and effective (i) if personally delivered, upon delivery, or (ii) if sent by an overnight service with tracking capabilities, upon receipt. Any such notice sha ll be delivered or addressed to the Parties at the addresses set forth below or at the most recent address specified by the addressee through written notice under this Section 8.3. Failure to give notice in accordance with any of the foregoing methods shall not defeat the effectiveness of notice actually received by the addressee: If to Recargo: Recargo, Inc. 1015 Abbot Kinney Blvd. Venice, CA 90291 Attn: Legal Department If to Host: Packet Page 279 Item 13 Page 11 _______________________ _______________________ _______________________ Attn: ___________________ Each Party may change its address for notice by giving notice thereof to the other Party. 8.4 Assignment. This Agreement is binding on and inures to the benefit of the Parties and their respective heirs, successors, assigns, and personal representatives. Neither Party may assign its rights and obligations in and under this License without first obtaining prior written cons ent of the other Party, which shall not be unreasonably withheld; provided, however, that (i) Recargo may assign this Agreement without Host’s consent or approval so long as any assignee agrees in writing to be bound by the terms of this Agreement and (ii) Host may assign this Agreement without Recargo’s consent to (a) an affiliate (including a parent or subsidiary), (b) a successor by merger or acquisition, (c) a successor to all or substantially all of the assets of Host, or (d) a purchaser of the Host Property; provided that any such assignment shall be made subject to this Agreement and the assignee shall agree in writing to assume all of Host’s obligations under this Agreement (Host shall provide reasonable evidence of such assumption to Recargo). 8.5 Independent Contractors. The Parties shall act as and be independent contractors in the performance of this Agreement. Nothing in the Agreement shall be deemed or construed to create a joint venture, partnership, fiduciary, or agency relationship between the Parties for any purpose, and the employees of one Party shall not be deemed to be the employees of the other Party. Except as otherwise stated in this Agreement, neither Party has any right to act on behalf of the other, nor represent that it has such right or authority. 8.6 Governing Law. This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of California, without regard to the conflicts of law principles that would result in the application of any law other than the law of the State of California . 8.7 Consent to Jurisdiction. Each of the Parties hereby irrevocably consents and agrees that any legal action or proceedings brought with respect to any dispute arising out of this Agreement shall be brought in, and each Party submits to the jurisdiction and venue of the state and f ederal courts located in the County of Los Angeles, State of California, and by execution and delivery of this Agreement, each of the Parties hereby (i) accepts the non-exclusive jurisdiction of the foregoing courts, (ii) irrevocably agrees to be bound by any final judgment (subject to any appeal) of any such court with respect thereto, and (iii) irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venues of any suit, action or proceedings with respect hereto brought in any such court, and further irrevocably waives to the fullest extent permitted by law any claim that any such suit, action or proceedings brought in any such court has been brought in an inconvenient forum. Each of the Parties agrees that a final judgment in any such action or proceeding shall be conclusive (subject to any appeal) and may be enforced in other jurisdictions by suit on the judgment or in any other manner to the extent provided by law. 8.8 Remedies. The rights and remedies provided by this 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 applicable law, in equity or otherwise. 8.9 Attorneys’ Fees; Waiver of Jury Trial. If either Party institutes a suit against the other for violation of or to enforce any covenant, term or condition of this Agreement, the prevailing Party shall be entitled to reimbursement of all of its costs and expenses, including, without limitation, reasonable attorneys’ fees. The Parties hereby waive any and all rights which either Party may have to request or require that a jury determine any fact, matter, controversy, dispute or litigation between them, or render any judgment or decision, in any way concerning this Agreement, and agree that any and all litigation between them arising from or in Packet Page 280 Item 13 Page 12 connection with this Agreement shall be determined by a judge sitting without a jury. Any legal action or proceeding with respect to or arising out of this Agreement shall be tried and litigated exclusively in the State and Federal courts located in the County of Los Angeles, State of California. 8.10 Specific Performance. Notwithstanding anything to the contrary set forth herein or elsewhere, the Parties agree that irreparable damage could occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were other wise breached. It is accordingly agreed that the Parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement, without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any bond or other security, and to enforce specifically the terms and provisions of this Agreement in any state court or federal court of the United States of America sitting in State of California and located in the city of Los Angeles, this being in addition to any other remedy to which they are entitled at law or in equity. 8.11 Further Assurances. Each Party agrees to execute (and acknowledge, if requested) and deliver additional documents and instruments and to perform additional acts as may be reasonably necessary or appropriate to effectuate, carry out, and perform all of the terms, provisions and conditions of this Agreement. 8.12 Force Majeure. Neither Party is responsible for any delay or failure in performance of any part of this 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 its control. This Agreement may be terminated without any termination fee or other penalty by the Party whose performance has not been affected if non-performance continues for more than sixty (60) days. 8.13 No Waiver. The failure of a Party to insist on strict performance of any provision of the Agreement does not constitute a waiver of, or estoppel against asserting, the right to require performance in the future. A waiver or estoppel given in any one instance does not constitute a waiver or estoppel with respect to a later obligation or breach. 8.14 No Third Party Beneficiaries. This Agreement does not confer any rights or remedies on any person other than the Parties and their respective successors and permitted assigns. 8.15 Integration; Amendments. It is agreed and understood that this 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 this Agreement shall be ineffective unless made in a writing signed by the Parties. 8.16 Severability. If any term of this Agreement is held by any court of competent jurisdiction to contravene, or to be invalid under, the laws of any political body having jurisdiction over this subject matter, that contravention or invalidity shall not invalidate the entire Agreement. Instead, this Agreement shall be construed as reformed to the extent necessary to render valid the particular provision or provisions held to be invalid, consistent with the original intent of that provision and the rights and obligations of the Parties shall be construed and enforced accordingly, and this Agreement shall remain in full force and effect as reformed. 8.17 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all the Parties had signed the same document; all counterparts shall be construed together and shall constitute one and the same instrument. The delivery of an executed counterpart to this Agreement by electronic means (including via email) shall be as effective as the delivery of a manually executed counterpart. Packet Page 281 Item 13 Page 13 8.18 Drafting Presumption. This Agreement has been and shall be construed to have been drafted by all Parties to it so that the rule of construing ambiguities against the drafter shall have no force or effect. 8.19 Construction. The headings in this Agreement are inserted for convenience and identification only. When the context requires, the number of all words shall include the singular and the plural. In this Agreement, words importing any gender include the other genders and the words including, includes and include shall be deemed to be followed by the words without limitation. All documents or items attached to, or referred to in, this Agreement are incorporated into this Agreement as fully as if stated within the body of this Agreement. [Signature Page follows.] Packet Page 282 Item 13 Packet Page 283 Item 13 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date first shown above. HOST: ___________________________________________, a(n) ________________________________________ By: Name: Title: RECARGO: RECARGO, INC, a California corporation By: Name: Title: Packet Page 284 Item 13 Packet Page 285 Item 13 EXHIBIT A DESCRIPTION OF HOST’S PROPERTY Address: 1545 Calle Joaquin, San Luis Obispo, CA 93405 Parcel Number (APN): 053-171-028 Parcel area shown in RED below: Packet Page 286 Item 13 EXHIBIT B PREMISES Packet Page 287 Item 13 EXHIBIT C Addendum to Master License Agreement THIS ADDENDUM TO MASTER LICENSE AGREEMENT (this “Addendum”), dated as of ________________, 201_ (the “Effective Date”), is entered into by and between _______________________________________ ("Host") and Recargo, Inc., a California limited liability company ("Recargo"). Host and Recargo are referred to herein individually as a “Party” and collectively as the “Parties”. Except as otherwise provided for herein, capitalized terms shall have the meanings set forth in the Agreement (as defined below). RECITALS: WHEREAS, Host and Recargo entered into that certain Master License Agreement dated as of _______________, 201_ (the “Agreement”); WHEREAS, Host desires to license additional Host Property to Recargo (“Additional Host Property”). WHEREAS, the Parties desire to amend the Agreement add the Additional Host Property. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and in consideration of other valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: AGREEMENT: 1. Additional Property. In order to add the Additional Host Property, the Parties hereby agree that Exhibits A and B attached to the Agreement are hereby deleted in their entirety and replaced with Exhibits A and B attached hereto. [ATTACH EXHIBITS A and B] 2. License Fee. The annual license fee for the Additional Host Property shall be ______________________ and __/100 Dollars ($_____.00) due and payable in the same manner and upon the same terms as the License Fee set forth in the Agreement. 3. Full Force and Effect. Except as expressly modified herein, the terms and conditions set forth in the Agreement shall remain in full force and effect. The terms of the Agreement shall govern the Additional Host Property. [Signatures are on the following page.] Packet Page 288 Item 13 IN WITNESS WHEREOF, the Parties have duly executed this Addendum as of the Effective Date. HOST: ___________________________________________, a(n) ________________________________________ By: Name: Title: RECARGO: RECARGO, INC, a California corporation By: Name: Title: Packet Page 289 Item 13 EXHIBIT D Amendment of Master License Agreement THIS AMENDMENT OF MASTER LICENSE AGREEMENT (this “Amendment”), dated as of ________________, 201_ (the “Effective Date”), is entered into by and between _______________________________________ ("Host") and Recargo, Inc., a California limited liability company ("Recargo"). Host and Recargo are referred to herein individually as a “Party” and collectively as the “Parties”. Except as otherwise provided for herein, capitalized terms shall have the meanings set forth in the Agreement (as defined below). RECITALS: WHEREAS, Host and Recargo entered into that certain Master License Agreement dated as of _______________, 201_ (the “Agreement”); WHEREAS, the Parties desire to amend the Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and in consideration of other valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows: AGREEMENT: 1. Additional Property. The Parties hereby agree that Exhibits B attached to the Agreement is hereby deleted in its entirety and replaced with Exhibit B attached hereto. [ATTACH EXHIBIT B] 2. Full Force and Effect. Except as expressly modified herein, the terms and conditions set forth in the Agreement shall remain in full force and effect. [Signatures are on the following page.] Packet Page 290 Item 13 IN WITNESS WHEREOF, the Parties have duly executed this Amendment as of the Effective Date. HOST: ___________________________________________, a(n) ________________________________________ By: Name: Title: RECARGO: RECARGO, INC, a California corporation By: Name: Title: Packet Page 291 Item 13 Page intentionally left blank. Packet Page 292 Item 13