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HomeMy WebLinkAboutAgenda Report - July 21, 2021 C-13AGENDA ITEM C01/3 CITY OF LODI COUNCIL COMMUNICATION TM AGENDA TITLE: Adopt Resolution 1) Authorizing City Manager to Execute Professional Services Agreement with National Car Charging, LLC of Denver, CO ($271,000) and Execute Amendments if Needed ($27,100); 2) Authorizing City Manager to Execute Master Services and Subscription Agreement with ChargePoint, Inc. of Campbell, CA; and 3) Authorizing Transfer and Appropriation of Funds MEETING DATE: July 21, 2021 PREPARED BY: Electric Utility Director RECOMMENDED ACTION. Adopt a resolution 1) authorizing the City Manager to execute a Professional Services Agreement with National Car Charging, LLC of Denver, CO in an amount not -to -exceed $271,000 and execute amendments if needed in an amount not -to -exceed $27,100; 2) authorizing the City Manager to execute a Master Services and Subscription Agreement with ChargePoint, Inc. of Campbell, CA; and 3) authorizing the transfer and appropriation of funds. BACKGROUND INFORMATION: On April 1, 2021, Lodi Electric Utility (LEU) issued a Request for Proposals (RFP) for a turnkey project to furnish, install, operate and maintain Level II electric vehicle (EV) public charging stations. LEU currently owns, operates and maintains 7 public Level 2 EV charging stations in 6 separate locations that have been in service for approximately 10 years and available to the public free of charge. The proposed project includes not only the replacement of existing equipment which has reached the end of its useful life but also the installation of new charging stations throughout the City — all with dual ports. Below is a summary of the proposed project: 1) Hutchins Street Square: One replacement and two new chargers 2) Downtown Parking Garage: One replacement and one new charger 3) City Hall: Two replacement chargers 4) Finance Department: One replacement charger 5) Library: One replacement charger 6) Kofu Park: One new charger* 'Existing equipment at Animal Services will be removed to accommodate parking needs. The installation proposed at Kofu Park will serve as the ..replacement' for this facility. In response to the RFP, LEU received three proposals. Proponents were asked to provide not just a proposal for the upfront, one-time costs to replace and/or install the equipment, but ongoing maintenance and networking costs as well to ensure the new facilities are maintained and are able to meet all grant funding requirements. As part of the RFP, proposers were encouraged to provide long-term options that would benefit LEU. APPROVED: Stephen Schwabauer, City Manager Adopt Resolution 1) Authorizing City Manager to Execute Professional Services Agreement with National Car Charging, LLC or Denver, CO ($271,000) and Execute Amendments if Needed ($27,100); 2) Authorizing City Manager to Execute Master Services and Subscription Agreement with ChargePoint, Inc. of Campbell, CA; and 3) Authorizing Appropriation of Funds ($298,100) July 21, 2021 Page 2 A review of all three proposals by LEU staff resulted in the selection of National Car Charging, LLC (NCC) based on their qualifications and experience, proposed equipment as well as their proposed long- term maintenance, warranty and networking services offered by the equipment supplier. NCC will serve as the prime contractor for the work and will use their approved subcontractor to install Level II ChargePoint EV equipment. As ChargePoint's largest value-added reseller over the last half decade, NCC was able to negotiate a networking plan and warranty terms to 10 years — double the typical maximum term length of 5 years. The Agreement with NCC includes all costs for the equipment, installation, project management as well as the costs associated with the 10 -year ChargePoint Assure warranty and networking subscription. NCC is one of the largest independent specialty distributors of EV charging equipment in the country, having sold/installed approximately 6,000 ports across 43 states for about 770 clients. ChargePoint's Assure warranty includes parts and labor, active monitoring and dispatch, a 98 percent uptime guarantee, a one - business -day response time, vandalism and accident labor coverage, unlimited programming assistance as well as pro -active reports sent monthly, quarterly, and annually. ChargePoint is the dominant industry leader with approximately 70 percent commercial market share. LEU will be required to enter into a separate Master Services and Subscription Agreement (MSSA) with ChargePoint for the networking services. There are no additional ongoing costs associated with the MSSA; rather ChargePoint remits all payments/revenues to the City less a 10 percent administrative charge. The new stations will continue to be free of charge to use for approximately one year from the date of install as LEU staff collect data regarding usage, charging session frequency, duration, etc. in an effort to develop a new charging structure for use of the stations which will be presented to Council at a later date for consideration. On May 5, 2021, City Council authorized the City Manager to accept California EV Infrastructure Project (CALeVIP) grant funding in the amount of $70,000 for the proposed project. Remaining funds for the project will come from Low Carbon Fuel Standard credits recently monetized as well as capital improvement funds. Work on this project is anticipated to be completed by Fall 2021. FISCAL IMPACT: Not -to -exceed cost of $298,100, including a contingency for amendments. FUNDING AVAILABLE: Funding for this project will come from CALeVIP grant funds, Low Carbon Fuel Standard funds, as well as LEU CIP funds to be transferred and appropriated as follows: CALeVIP Grant Fund Revenue 50100000.56005: $ 70,000 Transfer from 503 Fund to 501 Fund: $193,000 Budget Appropriation Adjustment 50362500.72990. ($193,000) CALeVIP Grant Funds to 50199000.77030: $ 70,000 From 501 Fund Balance to 50199000.77030: $228,100 Andrew Keys Andrew Keys Deputy City Manager/Internal Services Director r���� Jeff Berkheimer Electric Utility Director AGREEMENT FOR PROFESSIONAL SERVICES ARTICLE 1 PARTIES AND PURPOSE Section 1.1 Parties THIS AGREEMENT is entered into on 2021, by and between the CITY OF LODI, a municipal corporation (hereinafter "CITY"), and National Car Charging, LLC, a Colorado Limited Liability Company authorized to do business in California (hereinafter "CONTRACTOR"). Section 1.2 Purpose CITY selected the CONTRACTOR to provide the services required in accordance with attached Scope of Services, Exhibit A, attached and incorporated by this reference. CITY wishes to enter into an agreement with CONTRACTOR for furnishing, installing, and maintaining electric vehicle charging stations (hereinafter "Project") as set forth in the Scope of Services attached here as Exhibit A. CONTRACTOR acknowledges that it is qualified to provide such services to CITY. ARTICLE 2 SCOPE OF SERVICES Section 2.1 Scope of Services CONTRACTOR, for the benefit and at the direction of CITY, shall perform the Scope of Services as set forth in Exhibit A. Section 2.2 Time For Commencement and Completion of Work CONTRACTOR shall commence work pursuant to this Agreement, upon receipt of a written notice to proceed from CITY or on the date set forth in Section 2.6, whichever occurs first, and shall perform all services diligently and complete work under this Agreement based on a mutually agreed upon timeline or as otherwise designated in the Scope of Services. CONTRACTOR shall submit to CITY such reports, diagrams, drawings and other work products as may be designated in the Scope of Services. CONTRACTOR shall not be responsible for delays caused by the failure of CITY staff to provide required data or review documents within the appropriate time frames. The review time by CITY and any other agencies involved in the project shall not be counted against CONTRACTOR's contract performance period. Also, any delays due to weather, vandalism, acts of God, etc., shall not be counted. CONTRACTOR shall 1 remain in contact with reviewing agencies and make all efforts to review and return all comments. Section 2.3 Meetings CONTRACTOR shall attend meetings as may be set forth in the Scope of Services. Section 2.4 Staffing CONTRACTOR acknowledges that CITY has relied on CONTRACTOR's capabilities and on the qualifications of CONTRACTOR's principals and staff as identified in its proposal to CITY. The Scope of Services shall be performed by CONTRACTOR, unless agreed to otherwise by CITY in writing. CITY shall be notified by CONTRACTOR of any change of Project Manager and CITY is granted the right of approval of all original, additional and replacement personnel at CITY's sole discretion and shall be notified by CONTRACTOR of any changes of CONTRACTOR's project staff prior to any change. CONTRACTOR represents it is prepared to and can perform all services within the Scope of Services (Exhibit A) and is prepared to and can perform all services specified therein. CONTRACTOR represents that it has, or will have at the time this Agreement is executed, all licenses, permits, qualifications, insurance and approvals of whatsoever nature are legally required for CONTRACTOR to practice its profession, and that CONTRACTOR shall, at its own cost and expense, keep in effect during the life of this Agreement all such licenses, permits, qualifications, insurance and approvals, and shall indemnify, defend and hold harmless CITY against any costs associated with such licenses, permits, qualifications, insurance and approvals which may be imposed against CITY under this Agreement. Section 2.6 Subcontracts Unless prior written approval of CITY is obtained, CONTRACTOR shall not enter into any subcontract with any other party for purposes of providing any work or services covered by this Agreement. Section 2.6 Term The term of this Agreement commences on July 21, 2021 and terminates upon the completion of the Scope of Services or on June 30, 2022, whichever occurs first. 2 ARTICLE 3 COMPENSATION Section 3.1 Compensation CONTRACTOR's compensation for all work under this Agreement shall conform to the provisions of the Fee Proposal, attached hereto as Exhibit B and incorporated by this reference. CONTRACTOR shall not undertake any work beyond the scope of this Agreement unless such additional work is approved in advance and in writing by CITY. Section 3.2 Prevailing Wage The Contractor agrees to conform to the provisions of Chapter 1, Part 7, Division 2 of the Labor Code. The Contractor and any Subcontractor will pay the general prevailing wage rate and other employer payments for health and welfare, pension, vacation, travel time, and subsistence pay, apprenticeship or other training programs. The responsibility for compliance with these Labor Code requirements is on the prime contractor. Section 3.3 Contractor Registration — Labor Code 1725.5 No contractor or subcontractor may be awarded a contract for public work on a public works project (awarded on or after April 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. Section 3.4 Method of Pavment CONTRACTOR shall submit invoices for completed work on a monthly basis, or as otherwise agreed, providing, without limitation, details as to amount of hours, individual performing said work, hourly rate, and indicating to what aspect of the Scope of. Services said work is attributable. CONTRACTOR's compensation for all work under this Agreement shall not exceed the amount of the Fee Proposal. Section 3.5 Costs The Fee Proposal shall include all reimbursable costs required for the performance of the Scope of Services. Payment of additional reimbursable costs considered to be over and above those inherent in the original Scope of Services shall be approved in advanced and in writing, by CITY. Section 3.6 AB 626 Public Contract Code Section 9204 — Public Works Prolect Contract Dispute Resolution Procedure 3 Section 9204 of the California Public Contract Code (the "Code") provides a claim resolution process for "Public Works Project" contracts, as defined, which is hereby incorporated by this reference, and summarized in the following: Definitions: "Claim" means a separate demand by a contractor sent by registered mail or certified mail with return receipt requested, for one or more of the following: (A) A time extension, including, without limitation, for relief from damages or penalties for delay assessed by the City under a contract for a Public Works Project. (B) Payment of money or damages arising from work done by, or on behalf of, a contractor pursuant to a contract for a Public Works Project and payment for which is not otherwise expressly provided or to which a claimant is not otherwise entitled. (C) Payment of an amount that is disputed by the City. "Public Works Project" means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind. Claim Resolution Process: (1) All Claims must be properly submitted pursuant to the Code and include reasonable documentation supporting the Claim. Upon receipt of a Claim, the City will conduct a reasonable review, and within a period not to exceed 45 days, will provide the claimant a written statement identifying the disputed and undisputed portions of the Claim. The City and contractor may, by mutual agreement, extend the time periods in which to review and respond to a Claim. If the City fails to issue a written statement, paragraph (3) applies. Any payment due on a portion of the Claim deemed not in dispute by the City will be processed and made within 60 days',after the City issues its written statement. (2) If the claimant disputes t'Ihe City's response, or if the City fails to respond to a Claim within the time prescribed in the Code, the claimant may demand in writing, by registered mail or certified mail, return receipt requested, an informal conference to meet and confer for settlement of the issues in dispute, which will be conducted within 30 days of receipt. If the Claim or any portion thereof remains in dispute after the meet and confer conference, the City will provide the claimant a written statement, within 10 business days, identifying the remaining disputed and undisputed portions of the Claim. Any payment due on an undisputed portion, of the Claim will be processed and made within 60 days after the City issues its written, statement. Any disputed portion of the Claim, as identified by the contractor in writing, shall be submitted to nonbinding mediation, as set 4 forth in the Code, unless mutually waived and agreed, in writing, to proceed directly to a civil action or binding arbitration, as applicable. (3) A Claim that is not responded to within the time requirements set forth in the Code is deemed rejected in its entirety. A Claim that is denied by reason of such failure does not constitute an adverse finding with regard to the merits of the Claim or the responsibility or qualifications of the claimant. (4) Amounts not paid in a timely manner as required by the Code will bear interest at 7 percent per annum. (5) Subcontractors or lower tier subcontractors that lack legal standing or privity of contract to assert a Claim directly against the City, may request in writing, on their behalf or the behalf of a lower tier subcontractor, that the contractor present a Claim to the City for work performed by the subcontractor or lower tier subcontractor. The request shall be accompanied by reasonable documentation to support the Claim. Within 45 days of receipt of such written request, the contractor shall notify the subcontractor in writing as to whether the contractor presented the Claim to the City and, if the original contractor did not present the Claim, provide the subcontractor with a statement of the reasons for not having done so. The Claim resolution procedures and timelines set forth in the Code are in addition to any other change order, claim, and dispute resolution procedures and requirements set forth in the City contract documents, to the extent that they are not in conflict with the timeframes and procedures the Code. Section 3.7 Auditing CITY reserves the right to periodically audit all charges made by CONTRACTOR to CITY for services under this Agreement. Upon request, CONTRACTOR agrees to furnish CITY, or a designated representative, with necessary information and assistance needed to conduct such an audit. CONTRACTOR agrees that CITY or its delegate will have the right to review, obtain and copy all records pertaining to performance of this Agreement. CONTRACTOR agrees to provide CITY or its delegate with any relevant information requested and shall permit CITY or its delegate access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with this requirement. CONTRACTOR further agrees to maintain such records for a period of three (3) years after final payment under this Agreement. 5 ARTICLE 4 MISCELLANEOUS PROVISIONS Section 4.1 Nondiscrimination In performing services under this Agreement, CONTRACTOR shall not discriminate in the employment of its employees or in the engagement of any sub CONTRACTOR on the basis of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, age, or any other criteria prohibited by law. Section 4.2 ADA Compliance In performing services under this Agreement, CONTRACTOR shall comply with the Americans with Disabilities Act (ADA) of 1990, and all amendments thereto, as well as all applicable regulations and guidelines issued pursuant to the ADA. Section 4.3 Indemnification and Responsibility for Damage CONTRACTOR to the fullest extent permitted by law, shall indemnify and hold harmless CITY, its elected and appointed officials, directors, officers, employees and volunteers from and against any claims, damages, losses, and expenses (including reasonable attorney's fees and costs), arising out of performance of the services to be performed under this Agreement, provided that any such claim, damage, loss, or expense is caused by the negligent acts, errors or omissions of CONTRACTOR, any subcontractor employed directly by CONTRACTOR, anyone directly or indirectly employed by any of them, or anyone for whose acts they may be liable, except those injuries or damages arising out of the active negligence, sole negligence, or sole willful misconduct of the City of Lodi, its elected and appointed officials, directors, officers, employees and volunteers. CITY may, at its election, conduct the defense or participate in the defense of any claim related in any way to this indemnification. If CITY chooses at its own election to conduct its own defense, participate in its own defense, or obtain independent legal counsel in defense of any claim related to this indemnification, CONTRACTOR shall pay all of the costs related thereto, including without limitation reasonable attorney fees and costs. The defense and indemnification obligations required by this Agreement are undertaken in addition to, and shall not in any way be limited by the insurance obligations set forth herein. Section 4.4 No Personal Liability Neither the City Council, nor any other officer or authorized assistant or agent or City employee shall be personally responsible for any liability arising under this Agreement. 6 Section 4.5 Responsibility of CITY CITY shall not be held responsible for the care or protection of any material or parts of the work described in the Scope of Services prior to final acceptance by CITY, except as expressly provided herein. Section 4.6 Insurance Requirements for CONTRACTOR CONTRACTOR shall take out and maintain during the life of this Agreement, insurance coverage as set forth in Exhibit C attached hereto and incorporated by this reference. Section 4.7 Successors and Assigns CITY and CONTRACTOR each bind themselves, their partners, successors, assigns, and legal representatives to this Agreement without the written consent of the others. CONTRACTOR shall not assign or transfer any interest in this Agreement without the prior written consent of CITY. Consent to any such transfer shall be at the sole discretion of CITY. Section 4.8 Notices Any notice required to be given by the terms of this Agreement shall be in writing signed by an authorized representative of the sender and shall be deemed to have been given when the same is personally served or upon receipt by express or overnight delivery, postage prepaid, or three (3) days from the time of mailing if sent by first class or certified mail, postage prepaid, addressed to the respective parties as follows: To CITY: City of Lodi 221 West Pine Street P.O. Box 3006 Lodi, CA 95241-1910 Attn: Jeff Berkheimer To CONTRACTOR: National Car Charging, LLC 209 Kalamath Street, Suite 3 Denver, CO 80223 Attn: Jim Burness, CEO/GM Section 4.9 Cooperation of CITY CITY shall cooperate fully and in a timely manner in providing relevant information it has at its disposal relevant to the Scope of Services. Section 4.10 CONTRACTOR is Not an Employee of CITY CONTRACTOR agrees that in undertaking the duties to be performed under this Agreement, it shall act as an independent contractor for and on behalf of CITY and not an employee of CITY. CITY shall not direct the work and means for accomplishment of the services and work to be performed hereunder. CITY, however, retains the right to 7 require that work performed by CONTRACTOR meet specific standards without regard to the manner and means of accomplishment thereof. Section 4.11 Termination CITY may terminate this Agreement, with or without cause, by giving CONTRACTOR at least ten (10) days written notice. Where phases are anticipated within the Scope of Services, at which an intermediate decision is required concerning whether to proceed further, CITY may terminate at the conclusion of any such phase. Upon termination, CONTRACTOR shall be entitled to payment as set forth in the attached Exhibit B to the extent that the work has been performed. Upon termination, CONTRACTOR shall immediately suspend all work on the Project and deliver any documents or work in progress to CITY. However, CITY shall assume no liability for costs, expenses or lost profits resulting from services not completed or for contracts entered into by CONTRACTOR with third parties in reliance upon this Agreement. Section 4.12 Confidentiality CONTRACTOR agrees to maintain confidentiality of all work and work products produced under this Agreement, except to the extent otherwise required by law or permitted in writing by CITY. CITY agrees to maintain confidentiality of any documents owned by CONTRACTOR and clearly marked by CONTRACTOR as "Confidential" or "Proprietary", except to the extent otherwise required by law or permitted in writing by CONTRACTOR. CONTRACTOR acknowledges that CITY is subject to the California Public Records Act. Section 4.13 Applicable Law, Jurisdiction, Severability, and Attorney's Fees This Agreement shall be governed by the laws of the State of California. Jurisdiction of litigation arising from this Agreement shall be venued with the San Joaquin County Superior Court. If any part of this Agreement is found to conflict with applicable laws, such part shall be inoperative, null, and void insofar as it is in conflict with said laws, but the remainder of this Agreement shall be in force and effect. In the event any dispute between the parties arises under or regarding this Agreement, the prevailing party in any litigation of the dispute shall be entitled to reasonable attorney's fees from the party who does not prevail as determined by the San Joaquin County Superior Court. Section 4.14 City Business License Requirement CONTRACTOR acknowledges that Lodi Municipal Code Section 3.01.020 requires CONTRACTOR to have a city business license and CONTRACTOR agrees to secure such license and pay the appropriate fees prior to performing any work hereunder. 8 Section 4.15 Captions The captions of the sections and subsections of this Agreement are for convenience only and shall not be deemed to be relevant in resolving any question or interpretation or intent hereunder. Section 4.16 Integration and Modification This Agreement represents the entire understanding of CITY and CONTRACTOR as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder, This Agreement may not be modified or altered except in writing, signed by both parties. Section 4.17 Contract Terms Prevail All exhibits and this Agreement are intended to be construed as a single document. Should any inconsistency occur between the specific terms of this Agreement and the attached exhibits, the terms of this Agreement shall prevail. Section 4.18 Severability The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. Section 4.19 Ownership of Documents All documents, photographs, reports, analyses, audits, computer media, or other material documents or data, and working papers, whether or not in final form, which have been obtained or prepared under this Agreement, shall be deemed the property of CITY. Upon CITY's request, CONTRACTOR shall allow CITY to inspect all such documents during CONTRACTOR's regular business hours. Upon termination or completion of services under this Agreement, all information collected, work product and documents shall be delivered by CONTRACTOR to CITY within ten (10) calendar days. CITY agrees to indemnify, defend and hold CONTRACTOR harmless from any liability resulting from CITY's use of such documents for any purpose other than the purpose for which they were intended. Section 4.20 Authority The undersigned hereby represent and warrant that they are authorized by the parties to execute this Agreement. Section 4.21 Federal Transit Funding Conditions ❑ If the box at left is checked, the Federal Transit Funding conditions attached as Exhibit D apply to this Agreement. In the event of a conflict between the terms of this Agreement or any of its other exhibits, and the Federal Transit Funding Conditions, the Federal Transit Funding Conditions will control. 9 Section 4.22 Counterparts and Electronic Signatures This Agreement and other documents to be delivered pursuant to this Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, will be deemed to constitute one and the same agreement or document, and will be effective when counterparts have been signed by each of the parties and delivered to the other parties. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Delivery of a copy of this Agreement or any other document contemplated hereby, bearing an original manual or electronic signature by facsimile transmission (including a facsimile delivered via the Internet), by electronic mail in "portable document format" (".pdf') or similar format intended to preserve the original graphic and pictorial appearance of a document, or through the use of electronic signature software will have the same effect as physical delivery of the paper document bearing an original signature. IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this Agreement as of the date first above written. ATTEST: JENNIFER CUSMIR City Clerk APPROVED AS TO FORM: JANICE D. MAGDICH, City Attorney By: C CITY OF LODI, a municipal corporation STEPHEN SCHWABAUER City Manager NATIONAL CAR CHARGING, LLC a Colorado Limited Liability Company By: Name Title: JIM BURNESS CEO/GM Attachments: Exhibit A — Scope of Services Exhibit B — Fee Proposal Exhibit C — Insurance Requirements Exhibit D — Federal Transit Funding Conditions (if applicable) Funding Source: 50199000.77030 (Buslness Unit & Account No.) Doc ID: 10 Exhibit A City of Lodi Electric Utility Public Electric Vehicle (EV) Charging Stations Project June 2021 National Car Charging Qualifications and Experience • National Car Charging LLC Main office: 209 Kalamath St., Ste. 3, Denver, CO 80223 Toll free: (866) 996-6387 Website: www.nationalcarchargin_q.com • For this project the main contact will be our CEO, Jim Burness, jburness@nationalcarcharging.com, cell: (303) 437-4947, assisted by Brian Bilbo, Project Manager, bbilbo@nationalcarcharging, (615) 308-1546 • National Car Charging LLC is a Colorado -registered limited liability company registered in the State of California as a foreign LLC and licensed to operate. We are also registered with the CA Department of Industrial Relations. We will obtain a City of Lodi Business License should we be selected for this project. • The company was founded in 2011 and has grown every year since our founding, reaching over $5,000,000 in sales in 2020. In that time, we have done approximately 60% of our volume with public entities. • Our DUNS number is 023277615 and Experian gives National Car Charging good scores (accessed 4/27/21): Financial Stability Business Credit i ow -Medium risk Risk Rating Score • NCC is one of the largest independent specialty distributors of EV charging equipment in the United States, having sold/installed approximately 6,000 ports across 43 states for about 770 clients. We attribute our success to a number of factors. First is customer service. NCC enjoys a high repeat customer and referral rate due to the personal touch we take with each and every sale and installation. Second is our approach to pricing, in which we try to offer our customers the best value possible and grow through the resulting increased volume. Third is our product choice. Almost every charging station hardware manufacturer in the market has asked National Car Charging to carry their products, but so far only 6 product lines have met our high standards. NCC has four criteria for representation and if a manufacturer cannot meet all four, we will not add them to our portfolio. These four criteria are: Safety, Reliability, Financial Stability, and Value/Unique Features. For this project we have proposed ChargePoint hardware and software (networking plan). Not only does ChargePoint meet or exceed all of the specifications in the RFP, but they also are the dominant industry leader with approximately 70% commercial market share. LEU will own and control the charging assets; however, our proposal includes the industry's most robust "total station care" plan, ChargePoint's Assure program, which allows LEU to not have to worry about maintenance. Assure is a parts and labor warranty, but it also includes active monitoring and active dispatch, a 98% uptime guarantee, a one -business -day response time once the problem has been diagnosed and parts are on site, vandalism and accident labor coverage, unlimited programming assistance, and pro -active reports sent monthly, quarterly, and annually. ChargePoint contracts with a number of local electricians in order to keep response times short. Assure guarantees that there will be ZERO additional costs to LEU throughout the term of the program. As ChargePoint's largest value-added reseller over the last half decade, we were able to negotiate networking plan and warranty terms to 10 years for LEU, double the typical maximum term length of 5 years. Additionally, the RFP has requested that LEU retain ownership of the Low Carbon Fuel Standard credits. NCC would be happy to ensure these rights are secured and can even connect LEU with an LCFS broker who can pair the credits with other renewable energy credits to maximize value, should LEU choose to do so. Because of our team's extensive experience, our installation quote includes ensuring that each site either meets current California ADA standards, or sets up each site so that no significant alterations will need to be made when additional charging assets are added. This is designed to save the City and LEU substantial accommodation costs in the future. Team Structure One of the key strengths of this proposal is the overall team. Individually each team member would be worth engaging, however as a unit, no other applicant can beat our combined level of experience. National Car Charging will serve as Prime, with over 6,000 ports sold and installed nationwide. The system will be procured from ChargePoint, the market leader by far. Installation services will be provided by EI Camino Electrical Services, perhaps the most experienced EV charging installer in Northern California, and supported by QuEST. LEU hereby agrees to the subcontractors identified above. CALeVIP/Other Incentives With regards to CALeVIP experience, a number of our public clients have taken advantage of this program. Our proposed system, ChargePoint, meets all of CALeVIP's requirements, and, in fact, has put in the majority of the systems funded by CALeVIP. In addition to CALeVIP funding, it is likely LEU could qualify for the San Joaquin Valley Air Pollution Control District voucher program. Thankfully, LEU should be able to layer the two programs together to maximize savings. Like CALeVIP, the voucher must be applied for prior to purchasing any equipment or services. Unlike CALeVIP, SJVAPCD vouchers do not cover networking plans, and it is unclear whether they will fund replacement of current stations. As a result, it would make sense to have SJVAPCD cover the hardware, especially for the new locations, and let CALeVIP pick up any remain hardware costs and the networking costs, and potentially the replacement locations. We have attached a Guidelines document about the SJVAPCD program to this packet. ChargePoint has a team specifically tasked with taking advantage of these programs and National Car Charging and QuEST would work in concert with ChargePoint to maximize funding opportunities for LEU, including application management should LEU request us to do so (CALeVIP allows for either the station owner or their "agent" to apply). Additionally, National Car Charging would be happy to receive assignment of the CALeVIP rebates should either program allow it, and if doing so benefits LEU. Deliverables LEU can expect the following deliverables upon conclusion of the project: • ChargePoint EV charging hardware • Supporting hardware (outlined in the ECES Work Plan section below) • Access to the ChargePoint Administration portal (any number of users can be added) • Training via webinar on the ChargePoint Administration portal • Electronic copies of the specification sheets for the hardware, the cloud (networking) plan, and the Assure extended warranty • Electronic copy of the ChargePoint CT4000 Operations and Maintenance guide Work Plan Our installation subcontractor for this project will be EI Camino Electrical Services. National Car Charging has installed over 100 ChargePoint units with ECES over the years, including most recently the City of Santa Clara, and they are one of the most experienced EV charging installers in the State of California. EI Camino Electrical Services' California License is #953204. The NCC/ECES team has performed hundreds of installations of this system. While no two projects are identical, there is not a lot of variability in the types of tasks and the timelines for installation of electric vehicle charging stations. The ECES work plan is identified below: Introduction EI Camino Electrical Services (ECES) has been a leader in EV charging station installation and in paving the way for increased adoption of EVs. Project Approach ECES proposes a similar approach to our more than 800 EV charging station installations and 1,200 plus infrastructure projects throughout California: use the most reliable equipment and networks paired with high visibility locations to ensure utilization, while building awareness. While it may be relatively cheaper to install EV stations closer to electrical services in the basement, this will not help utilization, which is key for some program rebates/funding. In addition, hidden EV stations will not drive awareness, which may be the most important issue for fighting climate change. Proposed Scope of Services ECSE will comply with all aspects of the RFP presented below: • High quality and visually attractive materials that are weatherproof, including resistance to rain and wind; • Security design such as tamper-resistant screws, anti -vandalism hardware, locked enclosures, and graffiti -resistant coating; • Equipment shall be certified and compliant with all local, State and Federal regulations/requirements; • ADA compliant; • Fully networked to allow for the management of charging operations including operational status, pricing, power distribution, and charging notifications; • Accessible to all members of the public, with no membership to a specific network required for access; • Capable of accepting and processing point of sale transaction payments of all major credit cards and ATM cards through a secure system; • Web -based station location and real-time availability; • Screen display shall be user-friendly and easy to operate. Displays shall be LCD,LED or equivalent, and shall be readable in direct sunlight and at night; • 24/7 customer support availability for drivers; Level 2 Chargers must be new charging equipment; • Energy Star Certified; • Be capable of "remote start;" • Must be capable of usage data collection; • Capable of 6.2 kW or greater. Task 1 Design of EV Charging Infrastructure Installed stations will comply with CALeVIP rebates. ECES will design and prepare specifications and plans for each proposed location per City code and LEU guidance as identified in the RFP. ECSE will gain all required permits and ensure compliance with City encroachment including but not limited to protection and restoration of existing improvements as identified in the RFP as well as traffic and access coordination as identified in the RFP. Deliverables: 1. Drawings and Design Documents for Permitting (Completion Date - Contract Sign Date + 1 Month) 2. Permit approval and notice proceed (TBD) Task 2 Installation of EV Charging Infrastructure Once ECSE has been approved to break ground the project will move quickly. As part of the project, ECSE will remove 1 existing station and install a total of 10 dual port stations. In addition to the charging station's installation, ECES will provide all of the materials, equipment and labor required to install the charging stations. This includes but is not limited to: Electric Panel Bollards Conductors Signage Painting and Striping Concrete Signage Conduit Wheel Stops Network Cable ECES will furnish and install signage for the EV charging stations, as approved by the City and install EV parking stall pavement striping and markings per approved plans. The pavement striping and markings for the handicapped stall will meet the required ADA standard. ECES will remove any existing signage as needed to avoid confusion. The signage will be consistent with industry standards for EV charging stations, City requirements, and State and Federal guidelines. EV charging stations will be activated and tested as part of the project cost. Deliverables: 1. Remove Animal Shelter Level II charging station and return to LEU staff - (Completion Date = Contract + 4 days) 2. Kofu Park installation, activation and testing of One NEW Dual Port Level II charging station - (Completion Date = Permit Approval + 15 workdays + Inspection) 3. Finance Department REPLACEMENT of One existing Level II charging station with One NEW Dual Port Level II installation, activation and testing of charging station - (Completion Date = Permit Approval + 15 workdays + Inspection) 4. City Hall REPLACEMENT of Two existing Level II charging stations with Two NEW Dual Port Level II installation, activation and testing of charging stations - (Completion Date = Permit Approval + 15 workdays + Inspection) 5. Downtown Parking Garage REPLACEMENT of One existing Level II charging station with One NEW Dual Port Level 11 installation, activation and testing of charging station AND installation, activation and testing of One NEW Dual Port Level II charging station (Completion Date = Permit Approval + 15 workdays + Inspection) 6. Library REPLACEMENT of One existing Level II charging station with One NEW Dual Port Level 11 installation, activation and testing of charging station - (Completion Date = Permit Approval + 15 workdays + Inspection) 7. Hutchins Street Square REPLACEMENT of One existing Level 11 charging station with One NEW Dual Port Level 11 installation, activation and testing of charging station AND installation, activation and testing of Two NEW Dual Port Level II charging stations - (Completion Date = Permit Approval + 15 workdays + Inspection) Experience and Qualifications EI Camino Electrical Services - Electrical Contractor (License C-10) — California 953204 ECES has been installing EV charging stations and infrastructure since 2011. To date ECSE has installed more than 800 stations using equipment from, ChargePoint, EVBox, Blink and BTC. In addition, ECSE has installed electrical infrastructure including parking striping, bollards, signage and wheel stops for more than 1,200 drop projects where the stations installed by another party. Team Orqanizational Structure EI Camino Electrical Services Responsibilities: ECES is responsible for successful delivery of all aspects of this project. In addition, ECES is directly responsible for all of the electrical infrastructure, EV charging station installation and connectivity of the network communication system. ECESE will also install EV parking stall striping, wheel stops, signage, pavement markings and concrete paving. QUEST Inc Responsibilities: QuEST is responsible for gaining permits and related approvals from City and LEU, as well as other project management related activities. ECES will install 10 Dual Port charging stations on Lodi city property, including: • Design and preparation of specifications and plans for each of the proposed locations, including installation layout, electrical plans, signage, and pavement markings; • Coordination with LEU and other regulatory agencies to obtain permit(s), electrical service agreement, and meter installation; • Securing and complying with City Encroachment and building permits and obtaining and renewing annually, a City business license; • Installation of electrical conduits, and electric connection to supply power for the complete installation and operation of the EV chargers; • Installation of signa0e and pavement markings; • Testing, activation, and commissioning of the EV chargers; ECES will provide all design, permits, labor and materials as identified above. NCC will provide all charging stations in working condition, free of damage. National Car Charging LLC 209 Kalamath St., Ste. 3 Denver, CO 80223 (866) 996-6387 info@nationalcarcharging.com www.nationalcarcharging.com ADDRESS City of Lodi Electric Utilities 1331 S. Ham Lane Lodi, CA 95242 US Exhibit B SHIP TO City of Lodi Electric Utilities 1331 S, Ham Lane Lodi, CA 95242 US O NA-1-10NAL ci iAeIw(3 ESTIMATE # 4168 DATE 04/29/2021 SHIP VIA SALES REP Coyote Freight JDB ACTIVITY QTY RATE AMOUNT CT4021-GW1 6 7,210.00 43,260.00 Dual Output, Gateway Option, Bollard Unit - 208/240V @30A with Cord Management Discount 6 -3,210.00 -19,260.00 Trade-in Discount for Clipper Creek units CT4025-GW1 1 8,210.00 8,210.00 Dual Output, Gateway Option, Bollard Unit - 208/240V @30A with Cord Management, 23' Cords, 8' CMK Discount 1 -3,210.00 -3,210.00 Trade-in Discount for Clipper Creek units CT4021-GW1 3 7,210.00 21,630.00 Dual Output, Gateway Option, Bollard Unit - 208/240V @30A with Cord Management Discount 3 -1,586.00 -4,758.00 Standard hardware discount OPCLD-COMMERCIAL-10 20 2,638.00 52,760.00 10 Year Commercial Cloud Plan CPSUPPORT-ACTIVE 10 0.00 0.00 Initial Station Activation & Configuration Service includes activation of cloud services and configuration of radio groups, custom groups, connections, access control, visibility control, pricing, reports and alerts. One time initial service per station. CPSUPPORT-SITEVALID 8 0.00 0.00 On-site validation for a customer not using an O&M Partner or self -validating Channel Partner to perform the construction and station installation: used to validate the installation has been performed per ChargePoint published requirements. The on-site validation consists of checking electrical capacity, transformers, panels, breakers, wiring, cellular coverage, and that the station installation meets all ChargePoint published requirements and local codes. A site is defined as a group of stations that are installed within 150 feet of each other. A successful Site Validation is a ACTIVITY QTY RATE AMOUNT prerequisite to purchase ChargePoint Assure. CPSUPPORT-SITEVALID is priced for up to 5 stations that exist within the same 150 feet group of stations. Normally $599, FREE with Assure5. OT4000-ASSURE10 10 prepaid years of ChargePoint Assure Discount Assure discount Installation Labor Includes completion of all electrical connections, mounting of station, reconfiguring service panel as necessary, wires, conduit, wheelstops; signage Sales Tax Sales Tax calculated by AvaTax on Tue 15 Jun 04:22:38 UTC 2021 1) Actual sales tax to be determined at time of invoicing. Any amount quoted is an estimate and can change before invoicing. 2) Additional 2% discount if order is paid for prior to shipping. 3) Other warranty and software terms available. 4) Client responsible for ensuring adequate cellular coverage at install site for networked stations. 5) Buyer is responsible for incentive applications. SUBTOTAL SHIPPING TOTAL Accepted By Accepted Date 10 10 1 1 4,990.00 49,900.00 -499.00 -4,990.00 122,000.00 122,000.00 3,784.44 3,784.44 269,326.44 900.00 $270,226.44 OF n�4D d �rFORt EXHIBIT C NOTE: The City of Lodi is now using the online insurance program PINS Advantage. Once you have been awarded a contract you will receive an email from the City's online insurance program requesting you to forward the email to your insurance provider(s) to submit the required insurance documentation electronically Insurance Requirements Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: ISO Form Number CA 00 01 covering any auto or if Contractor has no owned autos, then hired, and non - owned autos with limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. Other Insurance Provisions: (a) Additional Named Insured Status The City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers are to be covered as additional insureds on the CGL and auto policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor's insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used (b) Primate and Non -Contributory Insurance Endorsement The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. For any claims related to this contract, the Contractor's insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. (c) Waiver of Subrociation Contractor hereby grants to City of Lodi a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City of Lodi by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Lodi has received a waiver of subrogation endorsement from the insurer NOTE: (1) The street address of the CITY OF LODI must be shown along with (a) and (b) and (c) above: 221 West Pine Street, Lodi, California, 95240; (2) The insurance certificate must state, on its face or as an endorsement, a description of therp olect that it is insuring. (d) Severability of Interest Clause The term "insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to increase the limit of the company's liability under the Contractors commercial general liability and automobile liability policies. (e) Nance of Cancellation or Change in Coverage Endorsement This policy may not be canceled nor the coverage reduced by .the company without 30 days' prior written notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine St., Lodi, CA 95240. Page 11 of 2 pages I Risk: rev, 3/1/2018 (f) Continuity of Coverage All policies shall be in effect on or before the first day of the Term of this Agreement. At least thirty (30) days prior to the expiration of each insurance policy, Contractor shall furnish a certificate(s) showing that a new or extended policy has been obtained which meets the minimum requirements of this Agreement. Contractor shall provide proof of continuing insurance on at least an annual basis during the Term. If Contractor's insurance lapses or is discontinued for any reason, Contractor shall immediately notify the City and immediately obtain replacement insurance. Contractor agrees and stipulates that any insurance coverage provided to the City of Lodi shall provide for a claims period following termination of coverage which is at least consistent with the claims period or statutes of limitations found in the California Tort Claims Act (California Government Code Section 810 et seq.). (g) Failure to Comply If Contractor fails or refuses to obtain and maintain the required insurance, or fails to provide proof of coverage, the City may obtain the insurance. Contractor shall reimburse the City for premiums paid, with interest on the premium paid by the City at the maximum allowable legal rate then in effect in California. The City shall notify Contractor of such payment of premiums within thirty (30) days of payment stating the amount paid, the name(s) of the insurer(s), and rate of interest. Contractor shall pay such reimbursement and interest on the first (1 st) day of the month following the City's notice. Notwithstanding any other provision of this Agreement, if Contractor fails or refuses to obtain or maintain insurance as required by this agreement, or fails to provide proof of insurance, the City may terminate this Agreement upon such breach. Upon such termination, Contractor shall immediately cease use of the Site or facilities and commence and diligently pursue the removal of any and all of its personal property from the site or facilities. (h) Verification of Coverage Consultant shall furnish the City with a copy of the policy declaration and endorsement page(s), original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Failure to exercise this right shall not constitute a waiver of the City's right to exercise after the effective date. (i) Self -Insured Retentions Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. Q) Insurance Limits The limits of insurance described herein shall not limit the liability of the Contractor and Contractor's officers, employees, agents, representatives or subcontractors. Contractor's obligation to defend, indemnify and hold the City and its officers, officials, employees, agents and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement in the Agreement for Contractor to procure and maintain a policy of insurance. (k) Subcontractors Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors (1) qualified Insurer(s) All insurance required by the terms of this Agreement must be provided by insurers licensed to do business in the State of California which are rated at least "A-, VI" by the AM Best Ratings Guide, and which are acceptable to the City. Non -admitted surplus lines carriers may be accepted provided they are included on the most recent list of California eligible surplus lines insurers (LESLI list) and otherwise meet City requirements. Page 2 1 of 2 pages I Risk: rev. 3/1/2018 CHARGEPOINT® MASTER SERVICES AND SUBSCRIPTION AGREEMENT IMPORTANT: THIS MASTER SERVICES AND SUBSCRIPTION AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU OR THE CORPORATION, PARTNERSHIP OR OTHER LEGAL ENTITY YOU REPRESENT ("SUBSCRIBER") AND CHARGEPOINT, INC., A DELAWARE CORPORATION ("CPI"). PLEASE READ IT CAREFULLY. BY USING ANY OF THE CHARGEPOINT SERVICES, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AND CONDITIONS, DO NOT USE ANY CHARGEPOINT SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION, PARTNERSHIP OR OTHER LEGAL ENTITY, THAT ENTITY REPRESENTS THAT YOU HAVE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, YOU MAY NOT ENTER INTO THIS AGREEMENT AND SUCH ENTITY MAY NOT USE THE CHARGEPOINT SERVICES. 1. AGREEMENT. 1.1 SCOPE OF AGREEMENT. This Agreement governs the following activities: (a) Provisioning of Subscriber's Charging Station(s), if any, on ChargePoint; any; (b) Activation and use of the ChargePoint Services on Subscriber's Charging Station(s), if (c) Subscriber's use of the APIs as part of the ChargePoint Services; (d) Each grant of Rights by Subscriber; and (e) Each grant of Rights by a third party to Subscriber. 1.2 EXHIBITS AND PRIVACY POLICY. This Agreement includes the CPI Rrivat Pol c , as amended from time to time, and the following Exhibits, which are made a part of, and are hereby incorporated into, this Agreement by reference. Exhibit 1: Flex Billing Terms Exhibit 2: API Terms Exhibit 3: Terms Regarding Granting and Receipt of Rights Exhibit 4: h,seu.incc R[Lginremrnts In the event of any conflict between the terms of this Agreement on the one hand, and the Privacy Policy or any Exhibit on the other hand, this Agreement shall govern. Capitalized terms not otherwise defined in any Exhibit or the Privacy Policy shall have the same meaning as in this Agreement. 2. DEFINITIONS. The following terms shall have the definitions set forth below when used in this Agreement: 2.1 "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control", for purposes of this definition, means direct or Indirect ownership or control of fifty percent (50%) or more of the voting interests of the subjectentity. 2.2 'APIs" means, individually or collectively, the application programming interfaces which are made available to Subscriber from time to time, as and when updated by CPI. 2.3 "ChargePoint Connections" shall have the meaning ascribed to It In the applicable data sheet. The term ChargePoint Connections shall also mean any successor service provided by CPI. Revised 8.519 2.4 "ChargePoint®" means the open -platform network of electric vehicle charging stations and the vehicle charging applications the network delivers, that is operated and maintained by CPI (as defined below) in order to provide various services to, among others, Subscriber and itsemployees. 2.5 "ChargePoint Services" means, collectively, the various cloud services offerings (including, without limitation, APIs and application Cloud Plans) made available for subscription byCPI. 2.6 "ChargePoint Application- means any of the applications established and maintained by CPI which will allow Subscriber to access ChargePoint Services. 2.7 "Charging Station" means the electric vehicle charging station(s) purchased by Subscriber, whether manufactured by CPI or by a CPI authorized entity, which are registered and activated on ChargePoint. 2.8 "Content" means all data collected or maintained by CPI in connection with the operation of ChargePoint. 2.9 "CPI Marks" means the various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used in connection with ChargePoint and/or CPI manufactured Charging Stations, including without limitation, ChargePoint. 2.10 "CPIProperty" means (1) ChargePoint, (!I) the ChargePoint Services (including all Content), (iii) all data generated or collected by CPI in connection with the operation of ChargePoint and ChargePoint Services, (iv) the CPI Marks, (v) the ChargePoint Cards, and (vi) all other CPI -supplied material developed or provided by CPI for Subscriber use in connection with the ChargePoint Services. 2.11 "Documentation" means written information (whether contained in user or technical manuals, product materials, specifications or otherwise) pertaining to ChargePoint Services and/or ChargePoint and made available from time to time by CPI to Subscriber In any manner (including on-line). 2.12 "Effective Date" means the earlier of (a) the date that Subscriber electronically accepts this Agreement, or (b) the date of Subscriber's first use of the ChargePoint Services. 2.13 "Intellectual Property Rights" means all intellectual property rights, including, without limitation, patents, patent applications, patent rights, trademarks, trademark applications, trade names, service marks, service mark applications, copyrights, copyright applications, franchises, licenses, inventories, know-how, trade secrets, Subscriber lists, proprietary processes and formulae, all source and object code, algorithms, architecture, structure, display screens, layouts, inventions, development tools and all documentation and media constituting, describing or relating to the above, including, without limitation, manuals, memoranda and records. 2.14 Malicious Code" means viruses, worms, time bombs, Trojan horses and all other forms of malicious code, including without limitation, malware, spyware, files, scripts, agents orprograms. 2.15 "Party" means each of CPI and Subscriber. 2.16 "PII" means personally identifiable information regarding Subscriber or a User (e.g., name, address, email address, phone number or credit card number) that can be used to uniquely Identify, contact or locate Subscriber or such User. 2.17 "Provisioning" means activating Charging Stations, warrantees and Cloud Plans on ChargePoint 2.18 'Rights" means the rights, authorizations, privileges, actions, information and settings within the ChargePoint Services which a Rights Grantor grants to an Rights Grantee, to enable such Rights Grantee to access, obtain and use certain portions of the ChargePoint Services and certain information available therein in the course of providing services to or on behalf of such Rights Grantor in connection Page 2 of 19 Revised 8,519 with one or more of the Rights Grantor's Charging Stations. A Rights Grantor shall be deemed to have granted Rights to the entity that will be responsible for creating Subscribers account and Provisioning Subscriber's Charging Stations. Such deemed grant may be terminated by Subscriber at any time. 2.19 "Cloud Plan(s)" means subscription plans to the ChargePoint Services which are offered and sold by CPI from time to time, which vary according to their features, privileges and pricing. 2.20 'Subscriber" means 2.21 'Subscriber Content and Services" means any content and/or services that a Subscriber provides or makes available to Users and/or the general public in connection with the ChargePoint Services, other than Content, ChargePoint Services and CPI Property. 2.22 "Subscriber Marks" means the various trademarks, service marks, trade names, logos, domain names, and other distinctive brand features and designations used by Subscriber in connection with its business and/or Charging Stations. 2.23 'Subscription Fees" means the fees payable by Subscriber for subscribing to any ChargePoint Services. 2.24 "Taxes" shall mean all present and future taxes, imposts, levies, assessments, duties or charges of whatsoever nature including without limitation any withholding taxes, sales taxes, use taxes, service taxes, value added or similar taxes at the rate applicable for the time being imposed by any national or local government, taxing authority, regulatory agency orother entity together with any penalty payable in connection with any failure to pay or any delay in paying any of the same and any interest thereon. 2.25 "Token(s)" means the serialized proof of purchase of a Cloud Plan that is used by CPI in connection with enabling Services and/or provisioning Charging Stations. 2.26 "User' means any person using a Charging Station. 3. AVAILABLE CHARGEPOINT SERVICES & CLOUD PLANS. A description of the various ChargePoint Services and Cloud Plans currently available for subscription is located on the CPI website. CPI may make other ChargePoint Services and/or Cloud Plans available from time to time, and may amend the features or benefits offered with respect to any ChargePoint Service or Cloud Plan at any time and from time to time. Subscription Fees are based on Subscriber's choice of Cloud Plan and not on actual usage of the Subscription. 4.CPI'SRESPONSIBILITIES AND AGREEMENTS. 4.1 OPERATION OF CHARGEPOINT. CPI agrees to provide and shall be solely responsiblefor: (i) provisioning and operating, maintaining, administering and supporting ChargePoint and related infrastructure (other than Subscriber's Charging Stations and infrastructure for transmitting data from Charging Stations to any ChargePoint operations center); (ii) provisioning and operating, maintaining, administering and supporting the ChargePoint Applications; and (iii) operating ChargePoint in compliance with all applicable laws. CPI will protect the confidentiality and security of PH in accordance with all applicable laws and regulations and the CPI Privacy Policy and acknowledges that it is responsible for the security of "cardholder data" (as that term is defined for purposes of the Payment Card Industry — Data Security Standards), if any, that CPI possesses, otherwise stores, processes or transmits on behalf of Subscriber or for any impact, if any, on the security of Subscribers cardholder data environment. 4.2 LIMITATIONS ON RESPONSIBILITY. CPI shall not be responsible for, and makes no representation or warranty with respect to the following: (i) specific location(s) or number of Charging Stations now, or in the future, owned, operated and/or installed by persons other than Subscriber, or the total number of Charging Stations that comprise ChargePoint; (ii) continuous availability of electrical service to any of Subscriber's Charging Stations; (Ili) continuous availability of any wireless or cellular Page 3 of 19 Revised 8 5.19 communications network or Internet service provider network necessary for the continued operation by CPI of ChargePoint; (iv) availability of or interruption of the ChargePoint Network attributable to unauthorized intrusions; and/or (v) charging stations that are not registered with and activated on the ChargePoint Network. 5. SUBSCRIBER'S RESNAlBIL17 ES ANgAgREEMENTS. 5.1 GENERAL. (a) All use of ChargePoint and ChargePoint Services by Subscriber, its employees and agents and its grantees of Rights shall comply with this Agreement and all of the rules, limitations and policies of CPI set forth in the Documentation. All ChargePoint Services account details, passwords, keys, etc. are granted to Subscriber solely for Subscriber's own use (and the use of its grantees of Rights), and Subscriber shall keep all such items secure and confidential. Subscriber shall prevent, and shall be fully liable to CPI for, any unauthorized access to or use of ChargePoint or ChargePoint Services via Subscriber's Charging Stations, ChargePoint Services account(s) or other equipment. Subscriber shall immediately notify CPI upon becoming aware of any such unauthorized use. (b) Subscriber shall be solely responsible for: (i) Provisioning of its Charging Stations, if any; (ii) keeping Subscriber's contact information, email address for the receipt of notices hereunder, and billing address for invoices both accurate and up to date; (iii) updating on the applicable ChargePoint Application, within five (5) business days, the location to which any of Subscriber's Charging Stations are moved; (iv) the maintenance, service, repair and/or replacement of Subscriber's Charging Stations as needed, including informing CPI of the existence of any Charging Stations that are non -operational and not intended to be replaced or repaired by Subscriber; and (v) compliance with all applicable laws. (c) Subscriber shall deliver in full all benefits promised to Users by Subscriber in exchange for such Users connecting with Subscriber using ChargePoint Connections. 5.2 REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER. Subscriber represents and warrants to CPI that: (i) it has the power and authority to enter into and be bound by this Agreement and shall have the power and authority to install the Charging Stations and any other electrical vehicle charging products which are registered and activated on the ChargePoint Network); (ii) the electrical usage to be consumed by Subscriber's Charging Stations will not violate or otherwise conflict with the terms and conditions of any applicable electrical purchase or other agreement including, without limitation, any lease, to which Subscriber is a party; and (Ili) it has not installed or attached and will not install or attach Charging Stations on or to infrastructure not owned by Subscriber without proper authority, or in a manner that will block any easement or right of way. 5.3 CHARGEPOINT CARDS. Subscriber may be permitted by CPI, in CPI's sole discretion, to obtain CPI -provisioned radio-frequency identification cards ("ChargePoint Cards") which enable the individual card recipients to access and use ChargePoint. Subscriber may distribute such ChargePoint Cards to individuals, and each individual ChargePoint Card recipient is responsible for activating his or her ChargePoint Card on ChargePoint directly with CPI on the CPI web site. In no event will Subscriber create any separate ChargePoint accounts for any ChargePoint Card recipients or other third parties, nor will Subscriber create anonymous ChargePoint accounts associated with any ChargePoint Card. 5.4 USE RESTRICTIONS AND LIMITATIONS. Subscriber shall not: (a) sell, resell, license, rent, lease or otherwise transfer the ChargePoint Services or any Content therein to any third party; Page 4 of 19 Revised 8,5.19 (b) interfere with or disrupt the ChargePoint Services, servers, or networks connected to the ChargePoint Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the ChargePoint Services; (c) restrict or inhibit any other user from using and enjoying the ChargePoint Services or any other CPI services; (d) attempt to gain unauthorized access to the ChargePoint Network or the ChargePoint Services or related systems or networks or any data contained therein, or access or use ChargePolnt or ChargePoint Services through any technology or means other than those provided or expressly authorized by CPI; (e) create any ChargePoint Services user account by automated means or under false or fraudulent pretenses, or impersonate another person or entity on ChargePolnt, or obtain or attempt to obtain multiple keys for the same URL; (f) reverse engineer, decompile or otherwise attempt to extract the source code of the ChargePoint Services or any part thereof, or any Charging Station, except to the extent expressly permitted or required by applicable law; (g) create derivative works based on any CPI Property; (h) remove, conceal or cover the CPI Marks or any other markings, labels, legends, trademarks, or trade names installed or placed on the Charging Stations or any peripheral equipment for use in connection with Subscriber's Charging Stations; (i) except as otherwise expressly permitted by this Agreement or in any applicable data sheet relating to a ChargePoint Service, copy, frame or mirror any part of the ChargePoint Services or ChargePoint Content, otherthan copying or framing on Subscriber's own Intranets or otherwise solely for Subscriber's own internal business use and purposes; (j) access ChargePoint, any ChargePoint Application or the ChargePoint Services for the purpose of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose, or for any improper purpose whatsoever, including, without limitation, in order to build a competitive product or service or copy any features, functions, interface, graphics or "look and feel;" (k) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the ChargePolnt Services or Content or collect information about ChargePoint users for any unauthorized purpose; (1) upload, transmit or introduce any Malicious Code to ChargePoint or ChargePoint Services; (m) use any of the ChargePoint Services if Subscriber is a person barred from such use under the laws of the United States or of any other jurisdiction; or (n) use the ChargePoint Services to upload, post, display, transmit or otherwise make available (A) any inappropriate, defamatory, obscene, or unlawful content; (B) any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party; (C) any messages, communication or other content that promotes pyramid schemes, chain letters, constitutes disruptive commercial messages or advertisements, or is prohibited by applicable law, the Agreement or the Documentation. Page 5 of 19 Revised 8.5.19 5.5 CONTENT. (a) ChargePoint Content (including but not limited to Charging Station data and status) is provided for planning purposes only. Subscriber may find that various events may mean actual Charging Station conditions (such as availability or pricing) differ from what is set forth in the Content. In addition, certain Charging Station -related Content, including Charging Station name and use restrictions, is set by the Charging Station owner and is not verified by CPI. Subscriber should exercise judgment in Subscriber's use of the Content. (b) Certain Content may be provided under license from third parties and is subject to copyright and other intellectual property rights of such third parties. Subscriber may be held liable for any unauthorized copying or disclosure of such third party -supplied Content. Subscriber's use of such Content may be subject to additional restrictions set forth in the Documentation, (c) Subscriber shall not copy, modify, alter, translate, amend, or publicly display any of the Content except as expressly permitted by the Documentation. Subscriber shall not present any portion of the Content in any manner, that would (i) make such Content false, inaccurate or misleading, (ii) falsify or delete any author attributions or labels of the origin or source of Content, or (iii) indicate or suggest that the Charging Station locations provided as part of the Content are anything other than ChargePoint" Network Charging Stations. (d) Subscriber shall not remove, obscure, or alter in any manner any proprietary rights notices (including copyright and trademark notices), warnings, links or other notifications that appear in the ChargePoint Service, SUBSCRIPTION FEES AND PAYMENT TERMS. 6.1 SUBSCRIPTION FEES. Subscriber shall pay all Subscription Fees within thirty (30) days of its receipt of CPI's invoice. All payments shall be made in U.S. Dollars by check, wire transfer, ACH payment system or other means approved by CPI. Customer may not offset any amounts due to CPI hereunder against amounts due to Customer under this Agreement or any other agreement. Subscription fees payable to CPI do not include any Taxes imposed thereon, and Subscriber is responsible for any and all such Taxes. All such Taxes shall be set forth on the invoice provided by CPI to Subscriber; provided that, CPI's failure to include any such Tax on an invoice shall not relieve Subscriber's liability therefor. Except as otherwise set forth in this Agreement, all payment obligations under this Agreement are non- cancelable and non-refundable. 6.2 LATE PAYMENTS. Late payments shall be subject to a charge equal to the lesser of (i) one and one-half percent (1.5%) per month or (ii) the maximum rate permitted by law. Subscriber will reimburse CPI for attorneys' fees and other expenses reasonably incurred by CPI in the collection of any late payments. If any amount owing by Subscriber under this Agreement is more than thirty (30) days overdue, CPI may, without otherwise limiting CPI's rights or remedies, (a) terminate this Agreement, (b) suspend the use by Subscriber of the ChargePoint Services until such amounts are paid in full, and/or (c) condition future ChargePoint Service renewals and other Subscriber purchases on payment terms other than those set forth herein; provided that CPI shall not exercise any such rights if Subscriber has reasonably disputed such charges and is cooperating diligently in good faith to resolve the dispute. 7. INTELLECTUAL PRQPERTY RIGHTS AND LICENSES. 7.1 CPI PROPERTY. As between CPI and Subscriber, CPI retains and reserves all right, title and interest (including all related Intellectual Property Rights) in and to the CPI Property and any Page 6 of 19 Revised 8.5.19 improvements thereto. No rights are granted to Subscriber in the CPI Property hereunder except as expressly set forth in this Agreement. 7.2 SUBSCRIBER PROPERTY. As between CPI and Subscriber, Subscriber retains and reserves all right, title and interest (including all related Intellectual Property Rights) in and to (i) all Subscriber Marks and (ii) all Subscriber Content and Services (collectively, the "Subscriber Property"). No rights are granted to CPI in the Subscriber Property hereunder except as expressly setforth in this Agreement. 7.3 LIMITED LICENSE TO SUBSCRIBER. CPI hereby grants to Subscriber a royalty -free, non - assignable, non -transferable, and non-exclusive license to use the CPI Property solely in accordance with the terms of this Agreement (including without limitation all limitations and restrictions on such use) to the extent necessary for Subscriber to access, use and receive the ChargePoint Services as permitted herein. 7.4 LIMITED LICENSE TO CPI. Subscriber hereby grants to CPI a non -assignable, non- transferable, and non-exclusive license to use the Subscriber Property solely in accordance with the terms of this Agreement (including without limitation all limitations and restrictions on such use) to the extent necessary for CPI to provide the ChargePoint Services. CPI may utilize the Subscriber Marks to advertise that Subscriber is using the ChargePoint Services. The foregoing license includes a perpetual and Irrevocable right of CPI to reproduce, adapt, modify, translate, publicly perform, publicly display and distribute all Subscriber Content and Services submitted, posted or displayed by Subscriber In the ChargePoint Services, solely for the purpose of enabling CPI to operate, market and promote the ChargePoint Services, and to index and serve such Subscriber Content and Services as search results through ChargePoint Services. CPI shall have a royalty -free, worldwide, transferable, sublicensable, irrevocable perpetual license to use or incorporate in the ChargePoint Services any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber or Subscriber Rights Grantees relating to the ChargePoint Services. 7.5 ADDITIONAL TERMS REGARDING CPI MARKS. (a) USE LIMITATIONS. Subscriber shall display the CPI Marks in connection with Subscriber Charging Stations as required in this Agreement during the term of Subscriber's Cloud Plan. Subscriber shall not use any of the CPI Marks for or with any products other than its Charging Stations. From time to time, CPI may provide updated CPI Mark usage guidelines on the ChargePoint Application or elsewhere in the Documentation, and Subscribershall thereafter complywith such updated guidelines. For any use of the CPI Mark not authorized by such guidelines, or if no such guidelines are provided, then for each initial use of the CPI Mark, Subscriber must obtain CPI's prior written consent, which shall not be unreasonably withheld or delayed, and after such consent is obtained, Subscriber may use the CPI Mark in the approved manner. All use by Subscriber of CPI's Marks (including anygoodwill associated therewith) will inure to the benefit of CPI. (b) PROHIBITIONS. Subscriber shall not use or display any CPI Mark (or any likeness of a CPI Mark): (i) as a part of the name under which Subscriber's business is conducted or in connection with the name of a business of Subscriber or its Affiliates; (ii) in any manner that (x) implies a relationship or affiliation with CPI other than as described under the Agreement, (y) implies any sponsorship or endorsement by CPI, or (z) can be reasonably interpreted to suggest that any Subscriber Content and Services has been authored by, or represents the views or opinions of CPI or GPI personnel; Page 7 of 19 Revised 8.5.19 (iii) in any manner intended to disparage CPI, ChargePoint, or the ChargePoint Services, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to CPI; (Iv) in any manner that violates any law or regulation; or (v) that is distorted or altered in any way (including squeezing, stretching, inverting, discoloring, etc.) from the original form provided by CPI. (c) NO REGISTRATION OF CPL MARKS. Subscriber shall mot, directly or indirectly, register or apply for, Or cause to be registered or applied for, any CPI Marks or any patent, trademark, service mark, copyright, trade name, domain name or registered design that Is substantialIVor confusingly similar to a CPI Mark, patent, trademark, service mark, copyright, trade name, domain name or registered design of CPI, Or Lhat Is licensed to, connected with or derived rrom cflnfidanti al, material a proprietary informatlon }m parted to or licensed to Subscriber by CPI. At no time will Subscriber challenge or assist others to challenge the CPI Marks (except to the extent such restriction Is prohibited by lawl or the registration thereof by CPI. (d) TERMINATION AND CESSATION OF USE OF CPI MARKS. Upun termination of this Agreement, Subscriber will immediately discontinue all use and display of all CPI Marks. B. LIMITA710N50FLI�eILITY. 8.1 DISCLAIMER OF WARRANTIES. CHARGEPOINT AND THE CHARGEPOINT SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR SUBSCRIBER'S USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPUkD, INCLU01NG ALL IMPLIED WARRANTIES OF ME R CH ANTAR I LITY, FITNESS FOR A PARTICULAR P U R POS E. TITLE AND NON INFFIT NGEMENT. WITHOUT LIMITING THE FOREGOING, CPI DOES NOT WARRANT THAT (A) SUBSCRIBER'S USE OF THE CHARGEPOINT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE FROM ERROR, OR MEET SUBSCRIBER'S REQUIREMENTS; (B) ALL CONTENT AND OTHER INFORMATION OBTAINED BY SUBSCRIBER FROM OR IN CONNECTION WITH THE CHARGEPOINT 5ERV ICES WILL BE ACCURATE AND RELIABLE; (C) ALL DEFECTS IN THE OPERATION OR FUNCTLONALITY OF THE CHARGEPOINT SERVICES WILL BE CORRECTED. ALL CONTENT OBTAINED THROUGH THE CHARGE POINT SERVICES IS OBTAINED AT SUBSCRIBER'S OWN DISCRETION AND RISK, AND SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER'S COMPUTER SYSTEM OR OTHER DEVICE, LOSS OF DATA, OR ANY OTHER DAMAGE OR INJURY THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT. 8.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, 1N NO EVENT W1 LL CP19E LIABLE FOR ANY LOST REVENUE OR PROFIT, LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE CHARGEPOINT NETWORK, ANY CHARGEPOINT SERVICES, THIS AGREEMENT, A GRANT OR RECEIPT OF RIGHTS OR OTHERWISE OR BASED ON ANY EXPRESSED, IMPLIED OR CLAIMED WARRANTIES BY SUBSCRIBER NOT SPECIFICALLY SET FORTH IN THISAGREEMENT. 8.3 ELECTRICAL, CELLULAR AND INTERNET SERVICE INTERRUPTIONS. Neither CPI nor 5ubscribar shall have any Ilability whatsoever to the other with respect todamages caused by: (1) electrical outages, power surges, brown -outs, utility load management or any other similar electrical service Interruptions, whatever the cause; (I1)1nterruptlons In wirelessorcel Iular service linking Charging Stations to ChargePoint; Jill) interruptions attributable to unauthorized ChargePoint Network intrusions; (10 Interruptions in services provided by any Internet service provider not affiliated with LPI; or (v) the Page 8 of 19 Revised 6.5 19 inability of a Charging Station to access ChargePoint as a result of any change in product offerings (including, without limitation, the any network upgrade or introduction of any "next generation" services) by any wireless or cellular carrier. This includes the loss of data resulting from such electrical, wireless, cellular or Internet service interruptions. 8.4 LIMITATION OF LIABILITY. CPI's aggregate liability under this Agreement shall not exceed aggregate Subscription Fees paid by Subscriber to CPI in the twelve (12) calendar months prior to the event giving rise to the liability. 8.5 CELLULAR CARRIER LIABILITY. IN ORDER TO DELIVER THE CHARGEPONT SERVICES, CPI HAS ENTERED INTO CONTRACTS WITH ONE OR MORE UNDERLYING WIRELESS SERVICE CARRIERS (THE "UNDERLYING CARRIER"). SUBSCRIBER HAS NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING CARRIER AND SUBSCRIBER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN CPI AND THE UNDERLYING CARRIER. SUBSCRIBER UNDERSTANDS AND AGREES THAT THE UNDERLYING CARRIER HAS NO LIABILITY OF ANY KIND TO SUBSCRIBER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. SUBSCRIBER AGREES TO INDEMNIFY AND HOLD HARMLESS THE UNDERLYING CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH USE, FAILURE TO USE, OR INABILITY TO USE THE WIRELESS SERVICES EXCEPT WHERE THE CLAIMS RESULT FROM THE UNDERLYING CARRIER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS INDEMNITY WILL SURVIVE THE TERMINATION OF THE AGREEMENT. SUBSCRIBER HAS NO PROPERTY RIGHT IN ANY NUMBER ASSIGNED TO IT, AND UNDERSTANDS THAT ANY SUCH NUMBER CAN BE CHANGED. SUBSCRIBER UNDERSTANDS THAT CPI AND THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE CHARGEPOINT SERVICES. 8.6 ADDITIONAL RIGHTS. BECAUSE SOME STATES OR JURISDICITONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES AND/OR THE DISCLAIMER OF IMPLIED WARRANTIES AS SET FORTH IN THIS SECTION 8, ONE OR MORE OFTHE ABOVE LIMITATIONS MAY NOT APPLY; PROVIDED THAT, IN SUCH INSTANCES, CPI'S LIABILTY AND/OR IMPLIED WARRANTIES GRANTED IN SUCH CASES SHALL BE LIMITEDTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 9. TERM. RENEWAL AND TERMINATION. 9.1 TERM OF AGREEMENT. This Agreement shall become effective on the Effective Date and shall continue until the expiration of all of Subscriber's Cloud Plans. 9.2 CLOUD PLAN TERM. Each Cloud Plan acquired by Subscriber shall commence as follows: Each Cloud Plan acquired for use with a new Charging Station will commence on the earlier to occur of (i) the date of Provisioning such new Charging Station, or (ii) one year from the date the Token(s) necessary for Provisioning such new Charging Station is made available to Subscriber or its installer. Upon expiration of the original term, this Agreement will renew automatically for successive one-year terms at the list price applicable thereto, subject to increases (not to exceed 5% annually) and Subscriber's right to terminate below. Should the renewal be cancelled and subsequently be requested to be reinstated by Subscriber, reinstatement will be subject to the payment of Subscription Fees for any lapse period plus reasonable reinstatement fee. If, however, at any time after the original term Subscriber wishes to terminate a Cloud Plan that has been automatically renewed, Subscriber may do so by providing CPI thirty (30) days' written notice of cancellation and CPI will issue Subscriber a pro -rata refund of any funds paid for periods from the effective date of cancellation to the end of the auto -renewed term. Renewals of Cloud Plans will commence on the date of the expiration of the Subscription being renewed. All other Cloud Plans will commence on the date of activation of such Cloud Plans, but in no event more than one Page 9 of 19 Revised 8.5.19 year after the date the Token(s) necessary for such activation is made available to Subscriber. Each Subscriber Cloud Plan shall continue for the applicable duration thereof, unless this Agreement is terminated earlier in accordance with its terms. 9.3 TERMINATION BY CPI. (a) This Agreement may be immediately terminated by CPI: (i) if Subscriber is in material breach of any of Its obligations under this Agreement, and has not cured such breach within thirty (30) days (or within five (5) days in the case of any payment default) of Subscriber's receipt of written notice thereof; (ii) Subscriber becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors; (iii) upon the determination by any regulatory body that the subject matter of this Agreement is subject to any governmental regulatory authorization or review that imposes additional costs of doing business upon CPI; or (iv) as otherwise explicitly provided in this Agreement. Regardless of whether Subscriber is then in breach, CPI may, in its reasonable discretion, determine that it will not accept any renewal by Subscriber of its subscription to ChargePoint Services. In such case, this Agreement shall terminate upon the later of the expiration of all of Subscriber's subscriptions to ChargePoint Services. (b) CPI may in its discretion suspend Subscriber's continuing access to the ChargePoint Services or any portion thereof if (A) Subscriber has breached any provision of this Agreement, or has acted in manner that indicates that Subscriber does not intend to, or is unable to, comply with any provision of this Agreement; (B) such suspension is required by law (for example, due to a change to the law governing the provision of the ChargePoint Services); or (c) providing the ChargePoint Services to Subscriber could create a security risk or material technical burden as reasonably determined by CPI. 9.4 TERMINATION BY SUBSCRIBER. This Agreement may be immediately terminated by Subscriber without prejudice to any other remedy of Subscriber at law or equity: (i) if CPI is in material breach of any of its obligations under this Agreement, and has not cured such breach within thirty (30) days of the date of its receipt of written notice thereof, (ii) CPI becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation or an assignment for the benefit of creditors, or (iii) upon providing thirty (30) days prior written notice. 9.5 REFUND OR PAYMENT UPON TERMINATION. Upon any termination of this Agreement for cause by Subscriber pursuant to Section 9.4(i)or by CPI pursuant to Section 9.3(a)(iii), CPI shall refund to Subscriber a pro -rata portion of any pre -paid Subscription Fees based upon the remaining Cloud Plan term. Upon any termination for any other reason, Subscriber shall not be entitled to any refund of any Subscription Fees as a result of such termination. Except as otherwise set forth in this Agreement, in no event shall any termination relieve Subscriber of any unpaid Subscription Fees due CPI for the Cloud Plan term in which the termination occurs or any prior Cloud Plan term. 9.6 SURVIVAL. Those provisions dealing with the Intellectual Property Rights of CPI, limitations of liability and disclaimers, restrictions of warranty, Applicable Law and those other provisions which by their nature or terms are intended to survive the termination of this Agreement will remain in full force and effect as between the Parties hereto regardless of the termination of thlsAgreement. 10. INDEMNIFICATION. Subscriber hereby agrees to indemnify, defend and hold CPI, its officers, directors, agents, affiliates, distribution partners, licensors and suppliers harmless from and against any and all claims, actions, proceedings, costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Claims") suffered or incurred by such indemnified parties Page 10 of 19 Revised 8,5 19 resulting from or arising out of Subscriber's actual or alleged use (directly, or through a grantee of Rights by Subscriber) of the Charge Point Services, ChargePoInt or Subscriber Content and Services. Subscriber will coq pera te as fully as reasonably required in the defense of any claim. CPI reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to Indemnification by Subscriber. 11. GENERAL. 11.1 AMENDMENT OR MODIFICATION. CPI reserves the right to modify this Agreement from time to time. CPI will provide notirc of each such modification to Subscriber. Subscribers continued use of the ChargePolnt ServELP-; following such notice will constitute an acceptance of the modified Agreement. 11.2 WAIVER. The failure of either Party at any time to enforce any provision of this Agreement shall not be construed to be a waiver of the right of such Party to thereafter enforce that provision or any other provision or right. 11.3 FORCE MAJEURE. Except with respect to payment obligations, neither CPI nor Subscriber will be liable for failure to perform any of Its obligations hereunder due to causes beyond such party's reasonable control and occurring without its fault or negligence, including but not limited to fire, flood, earthquake or other natural disaster (irrespective of such Party's condition of any preparedness therefore); war, embargo; riot; strike; labor action; any lawful order, decree, or other directive of any government authority that prohibits a Party from performing its obligations under this Agreement; mater w shortages; shortage of transport; and failures of suppliers to deliver material or components in accordance with the terms of their contracts. 11.4 ARBITRATION. This Agreement is to be construed according to the laws of the State of California, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any conflict of law provisions that would require application of another choice of law. Except with respect to any matter relating to Subscribers violation of the intellectual property rights of CPI, any dispute arising h om or relating to this Agreement shall be arbitrated in Santa Clara, California. The arbitration shall he administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on any award may be entered in any court of competent jurisdiction. If the Parties agree, a mediator may be consulted prior to arbitration. All claims shall be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. With respect to any matter relating to the intellectual property rights of CPI, such claim may be litigated in a c000 of competent jurisdiction. The prevailing party in any dispute arising out of this Agreement shall be entitled to reasonable attorneys' fees and costs. 11.5 NOTICE TO CALIFORNIA CUSTOMERS. (a) California's Low Carbon Fuel Standard ("LCFS") was enacted to ensure that the mix of fuels sold by California oil refiners and distributers meets applicable greenhouse gas emissions targets. California has a statewide goal to reduce carbon intensity of transportation fuels by at least 104 by 2020. (b) The ChargePoint Network can track the fueling of electric vehicles, which positively contributes to reducing California's carbon intensity. If applicable reporting requirements are met, LCFS credits are issued by the California Air Resources Board. An available LCFS credit may beclaimed by certain owners and operators of electric vehicle charging stations, including both Subscriber and CPI. However, the LCFS credits are only available to one party, meaning any available credits may be claimed by either Subscriber or CPI, but not by both. CPI intends to claim available LCFS credits generated from use of the Charging Stations, but will not claim any available LCFS credits that Subscriber intends to claim. Page 11 of 19 Revised 8.5.19 If Subscriber intends to claim the LCFS credits, it must engage in the reporting and other administrative obligations necessary to generate such credits. (c) Subscriber agrees that it will provide CPI with written notice of its intent toclaim LCFS credits within ten (10) days of the date of the Effective Date. If Subscriber does not currently intend to claim the LCFS credits, but desires to do so at any time in the future, Subscriber may, by providing written notice to CPI, electto claim LCFS credits generated thirty (30) days or more after the date of such notice. Subscriber represents and warrants to CPI that, in the absence of providing written notice, Subscriber will not claim any LCFS credits. All notices shall be provided by email to CPI at IcFsnotlficatlon fv7tharrtes�rnnl.cani. 11.6 NOTICE TO OREGON CUSTOMERS (a) Oregon's Clean Fuel Program ("OCFP") was created with the purpose of reducing greenhouse gas emissions in the transportation sector. (b) The fueling of electric vehicles, and the operation of the ChargePoint Network, contributes to reducing Oregon's greenhouse gas emissions and is eligible for OCFP credits, which are issued by the Oregon Department of Environmental quality. By reporting the amount of electric vehicle fueling, ChargePoint is able to help Oregon track the growing use of electric vehicles in the state, for which ChargePoint will recelve OCFP credits. (c) An available OCFP credit may be claimed by certain owners and operators of electric vehicle charging stations, including both Subscriber and CPI. However, the OCFP credits are only available to one party. This means any available credits may be claimed by either Subscriber or CPI, but not by both. CPI intends to claim available OCFP credits generated from use ofthe Charging Stations, but will not claim any available OCFP credits that Subscriber intends to claim. (d) Subscriber agrees that it will provide CPI with written notice of its intent to claim OCFP credits within ten (10) days of the date of the Effective Date. If Subscriber does not currently intend to claim the OCFP credits, but desires to do so at any time in the future, Subscriber may, by providing written notice to CPI, elect to claim OCFP credits generated thirty (30) days or more after the date of such notice. Subscriber represents and warrants to CPI that, in the absence of providing written notice, Subscriber will not claim any OCFP credits. All notices shall be provided by email to CPI aticfsnotification@chargepolnt.com. 11.7 NOTICE REGARDING RIN DATA. For Subscriber's located in the United States, CPI will participate in an application to the U.S. Environmental Protection Agency ("EPA") to permit vehicle charging data ("Charging Data") collected by CPI from centrally networked charging stations to be utilized in a process to generate an environmental credit called a Renewable Identification Number ("RIN)" under the Renewable Fuel Standard program. CPI must establish its exclusive right to utilize the Charging Data and the associated environmental attributes underlying the charging events represented by the Charging Data (Charging Data and such environmental attributes referred to collectively as, the "RIN Data") for the purposes of RIN generation. Subscriber confirmsthat it will not pursue utilizing RIN Data for the purposes of RIN generation and that, as between Subscriber and CPI, CPI has the exclusive right to use the RIN Data for the purpose of RIN generation. 11.8 NOTICES. Other than the notices required in Sections 11.5 and 11.6, any notice required or permitted by this Agreement shall be sent (a) if by CPI, via electronic mail to the address indicated by Subscriber in Subscriber's ChargePoint Services account; or (b) if by Subscriber, via electronic mail to ms sagRc h a r eego I n t,coln. Page 12 of 19 RevNed 9.5,19 11.9 INJUNCTIVE RELIEF. Subscriber acknowledges that damages for improper use of the ChargePoint Services may be Irreparable; therefore, CPI Is entitled to seek equitable relief, including but not limited to preliminary injunction and injunction, in addition to all other remedies. 11.10 SEVERABILITY. Except as otherwise specifically provided herein, if any term or condition ofthis Agreement or the application thereof to either Party will to any extent be determined jointly bythe Parties or by anyjudicial, governmental or similar authority, to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to this Agreement, the Parties or circumstances other than those as to which it is determined to be invalid or unenforceable, will not be affected thereby. 11.11 ASSIGNMENT. Subscriber may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of CPI (not to be unreasonably withheld). In the event of any purported assignment in breach of this Section, CPI shall be entitled, at its sole discretion, to terminate this Agreement upon written notice given to Subscriber. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. CPI may assign its rights and obligations under this Agreement. 11.12 NO AGENCY OR PARTNERSHIP. CPI, in the performance of this Agreement, is an independent contractor. In performing its obligations under this Agreement, CPI shall maintain complete control over its employees, its subcontractors and its operations, No partnership, joint venture or agency relationship is intended by CPI and Subscriber to be created by this Agreement. Neither Party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other Party, whether express or implied, or to bind the other Party in any respect whatsoever. 11.13 ENTIRE AGREEMENT. This Agreement (including the attached Exhibits) contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes and cancels all previous and contemporaneous agreements, negotiations, commitments, understandings, representations and writings. All purchase orders issued by Subscriber shall state that such purchase orders are subject to all of the terms and conditions of this Agreement, and contain no other term other than the type of Cloud Plan, the number of Charging Stations for which such Cloud Plan is ordered, the term of such Cloud Plans and applicable Subscription Fees. To the extent of any conflict or inconsistency between the terms and conditions of this Agreement and any purchase order, the Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any other documentation shall be incorporated into or form any part of this Agreement, and all such purported terms and conditions shall be null and void. 11.14 COPYRIGHT POLICIES. It is CPI's policy to respond to notices of alleged copyright Infringement that comply with applicable International intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers. 11,15 THIRD PARTY RESOURCES. The ChargePoint Services may include hyperlinks to other websites or resources, CPI has no control over any web sites or resources that are provided by companies or persons other than CPI. Subscriber acknowledges and agrees that CPI is not responsible for the availability of any such web sites or resources, CPI does not endorse any advertising, products or other materials on or available from such web sites or resources, and CPI is not liable for any loss or damage that may be incurred by Subscriber as a result of any reliance placed by Subscriber on the completeness, accuracy or existence of any advertising, products, or other materials on, or available from, such websites or resources. Page 13 of 19 Revised 85.19 11.16 COUNTERPARTS. This Agreement maybe executed In one or more counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute but one and the same document. 11.17 ENGLISH LANGUAGE AGREEMENT GOVERNS. Where CPI has provided Subscriber with a translation of the English language version of this Agreement, Subscriber agrees that the translation is provided for Subscriber's convenience only and that the English language version of this Agreement governs Subscriber's relationship with CPI. If there is any conflict between the English language version of this Agreement and such translation, the English language version will prevail. 13.S311.18 BUS.INE"a-5-UKl SE AND INSUME,_�PJ�h jj �zta )Lrlil {�ilpliy�jtpl��l .thy 4 !.!]! oi. 1,� [+ ym�LtE, Ji}��lll� rx€grief L� r ; lnsuran�e � t+�ri pjj jdeRlified In�ythlbit +I. CF't agrees to secure P. C�ry_R[}gtlj�srns Ilse rsyj payG ite i _fru ria f�gsrlor loan work gingpe�fpr r�tetl under lhif Agreement. UA"PibNicl rY OF ko", a uluryirlpai carporatwon Signature: Name: STEPHEN �-C H WABAIJER-1-- Title: City Manager Date; Address: Loth, CA_ AEPROCO M TO FORM: IANI;�E I3. MA�IC,fj,_rriSy,Ast6f�y ATTEST: JENNIFER CQ�MR City Clerk Page 14 of 19 Revised 8.5.19 ChargePolnt, Inc. Slgnature7 Name: Rex S. Jackson Title: Chief Financial Officer Date Address: 254 E. Hacienda Ave Campbell, CA 95008 1 Formatted: Font: Not Italic Formatted: Font: Not Italic Formatted: Font: Not Italic Formatted_ Font: 9 pt Formatted: Underline EXHIBIT 1 FLEX BILLING TERMS This Exhibit sets forth certain additional terms and conditions ("Flex Billing Terms") pursuant to which Subscriber may charge Users fees for the use of Subscriber's Charging Stations. In order to charge such fees, Subscriber must subscribe to a Cloud Plan that Includes CPI's management, collection and/or processing services related to such fees ("Flex Billing"). 1. DEFINITIONS. The following additional defined terms shall apply to these Flex BIIIingTerms: 1.1 "CPI Fees" means a fee, currently equal to ten percent (10%) of Session Fees, charged for a particular Session. CPI Fees are charged by CPI in exchange for its collection and processing of Session Fees on behalf of Subscriber. CPI will provide Subscriber with thirty (30) days prior written notice (which may include, without limitation, notice provided by CPI through its regular newsletter to Subscriber) of any increase in CPI Fees. 1.2 "Net Session Fees" means the total amount of Session Fees collected on behalf of the Subscriber by CPI, less CPI Fees and Taxes, if any, required by law to be collected by CPI from Users in connection with the use of Charging Stations. Except as required by law, Subscriber shall be responsible for the payment of all Taxes incurred in connection with use of Subscriber's ChargingStatlons. 1.3 'Session" or "Charging Session" means the period of time during which a User uses Subscriber's Charging Station to charge his or her electric vehicle for a continuous period of time not less than two (2) minutes commencing when a User has accessed such Charging Station and ending when such User has terminated such access. 1.4 'Session Fees" means the fees set by the Subscriber for a Charging Session, inclusive of any applicable Taxes. 2. ELE&FjiLLINGSERViCE FOR CHARGINGSTATI0NS. 2.1. SESSION FEES. Subscriber shall have sole authority to determine and set Session Fees. Subscriber shall be solely responsible for determining and charging Session Fees in compliance with all applicable laws and regulations (including without limitation any restriction on Subscriber's use of per - kWh pricing). Subscriber acknowledges that CPI is not responsible for informing Subscriber of applicable laws or changes thereto, and CPI will not be liable to Subscriber or any third party for any alleged or actual failure of Subscriber to comply with such applicable laws and regulations. 2.2 DEDUCTIONS FROM SESSION FEES. In exchange for CPI collecting Session Fees on behalf of the Subscriber, the Subscriber hereby authorizes CPI to deduct from all Session Fees collected: (i) CPI Fees and (ii) to the extent required by Section 3, applicable Taxes. 2.3 PAYMENT TO SUBSCRIBER OF NET SESSION FEES. CPI will remit Net Session Fees to Subscriber, not less than quarterly, provided that the amount due to Subscriber hereunder is at least two hundred and fifty U.S. Dollars ($250) (or, if5ubscriber is located in Canada, two hundred and fifty Canadian dollars) or more. Notwithstanding, the foregoing, CPI shall remit any unpaid Net Session Fees, regardless of the amount, to Subscriber at least annually and within thirty (30) days of the expiration or termination Page 15 of 19 Revised 85.19 of this Agreement. All payments shall be made by ACH. In order to facilitate such payments, Subscriber agrees to provide to CPI, or its payment provider, Subscriber's bank information to enable electronic remittance of the Net Session Fees. If the Subscriber requests payment in a manner other than ACH (e.g., check or wire transfer), Subscriber agrees to bear the reasonable costs related to such request. 3. TAXES. If applicable, Subscriber is responsible for setting pricing on a Tax inclusive basis. CPI is not responsible for remittance of any Taxes on behalf of Subscriber and Subscriber shall be responsible to report and remit any and all applicable taxes whether state, federal, provincial or otherwise; provided that CPI is solely responsible for all Taxes assessable based on CPI's income, property and employees. Where CPI is required by law to collect and/or remit the Taxes for which Subscriber is responsible, the appropriate amount shall be invoiced to Subscriber and deducted by CPI from Session Fees, unless Subscriber has otherwise provided CPI with a valid tax or regulatory exemption certificate or authorization from the appropriate taxing or regulatory authority. Page 16 of 19 Revised 8.5.19 EXHIBIT 2 API TERMS This Exhibit sets forth certain additional terms and conditions ("API Terms") governing Subscriber's use of the APIs in connection with Subscriber's use of the ChargePoint Services. The API Terms are part of the Agreement, and all such use of the APIs remains subject to the Agreement terms. 1. ADDITIONAL DENNITIONS. The following additional definitions shall apply to the APITerms. 1.1 "API Implementation" means a Subscriber software application or website that uses any of the APIs to obtain and display Content in conjunction with Subscriber Content and Services. 1.2 'API Documentation" means all Documentation containing instructions, restrictions or guidelines regarding the APIs or the use thereof, as amended and/or supplemented by CPI from time to time. 1.3 "M Site Terms" means the Terms and Conditions displayed on CPI's website, governing use of CPI's website and the ChargePoint Services by visitors who are not Cloud Plan subscribers. 2. API USE. Subscriber may use the APIs as and to the extent permitted by Subscriber's Cloud Plan and the API Documentation, subject to the terms and conditions of theAgreement, 2.1 AVAILABLE APIs AND FUNCTION CALLS. The APIs give Subscriber access to information through a set of function calls. The particular APIs and API function calls made available by CPI from time to time (and the Content available through such APIs and function calls) will be limited by Subscriber's Cloud Plan, and Subscriber's particular Cloud Plan may not include all APIs and function calls then available from CPI. 2.2 USE AND DISPLAY OF CONTENT. Subscriber is permitted to access, use and publicly display the Content with Subscriber Content and Services in Subscriber's API Implementation, subject to the following requirements and limitations. (a) All Charging Station locations provided to Subscriber as part of the Content shall be clearly identified by Subscriber in Subscriber's API Implementation as ChargePoint Network Charging Stations and shall contain the Brand Identifiers required by the API Documentation. In no event shall Subscriber's API Implementation identify or imply that any Charging Station is a part of any network of charging stations other than ChargePoint. (b) Subscriber shall keep the Content used by Subscriber's API Implementation current with Content obtained with the APIs to within every forty eight (48) hours. (c) Content provided to Subscriber through the APIA may contain the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of CPI's business partners and/or other third party rights holders of Content indexed by CPI, which may not be deleted or altered In any manner. (d) Subscriber shall not: Page 17 of 19 Revised 8.5.19 (1) pre -fetch, cache, or store any Content, except that Subscriber may store limited amounts of Content for the purpose of improving the performance of Subscriber's API Implementatlon if Subscriber does so temporarily, securely, and in a manner that does not permit use of the Content outside of the ChargePoint Service; (ii) hide or mask from CPI the identity of Subscriber's service utilizing the APIs, including by failing to follow the identification conventions listed in the API Documentation; or (iii) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others. 2.3 REQUIRED INFORMATION. Subscriber must: (a) display to all viewers and users of Subscriber's API Implementation the link to the CPI Site Terms and Conditions as presented through the ChargePoint Services or described in the Documentation; (b) explicitly state in the use terms governing Subscriber's API Implementation that, by using Subscriber's API Implementation, such viewers and users are agreeing to be bound by the CPI Site Terms; and (c) include in Subscriber's API Implementation, and abide by, a privacy policy complying will all applicable laws; and (d) comply with all applicable laws designed to protect the privacy and legal rights of users of Subscriber's API Implementation, 2.4 REPORTING. Subscriber must implement reporting mechanisms, If any, that CPI requires in the API Documentation. 3. CPI BRANDING REQUIREMENTS A N 0 RESTRICTION5• 3.1 MANDATORY CPI BRANDING. Subject to Section 3.2 below and the restrictlons on use of CPI Marks set forth in the Agreement, Subscriber agrees that each page comprising Subscriber's API Implementation will include a ChargePoint logo and will state that Subscriber's application or website is provided, in part, through the ChargePoint Services. 3.2 RESTRICTIONS. Subscriber shall not: (a) display any CPI Mark as the most prominent element on any page in Subscriber's API Implementation or Subscriber's website (except as used in connection with the display of Charging Stations); or (b) display any CPI Mark anywhere in Subscriber's API Implementation or on Subscriber's website if Subscriber's AN Implementation or website contains or displays adult content or promotes illegal activities, gambling, or the sale of tobacco or alcohol to persons under twenty-one (21) years of age. Page 18 of 19 Revised 8.5.19 EXHIBIT 3 7ERM S REGARDING GRANTING OF BIGHTS This Exhibit sets forth certain additional terms and conditions applicable to Rights Grantors and Rights Grantees regarding the granting of Rights ("Rights Terms"). The Rights Terms are part of the Agreement, and all use of the ChargePoint Services permitted pursuant to the Rights Terms remains subject to the Agreement. ADDITIONAL DEFINITIONS. The following additional definitions shall apply. 1.1 "Rights Grantor' means Subscriber. 1.2 "Rights Grantee" means any person to whom Subscriber has granted Rights. For purposes of this Agreement, a Subscriber shall be deemed to have granted Rights to the entity assisting Subscriber with creating its account and initiating Subscriber's access to Services, TERMS. This Section governs Subscribers granting of Rights as a Rights Grantor. 2.1 LIMITED RIGHTS. A Rights Grantee's right to access and use the ChargePoint Services for and on behalf of a Rights Grantor is limited to the specific Rights granted by such Rights Grantor to such Rights Grantee. Such Rights may be limited accordingto the Cloud Plan(s) subscribed to by Subscriber. Subscriber may revoke Rights, or any portion thereof, it has granted to a Rights Grantee at will and such Rights will thereafter by terminated with respect to such Rights Grantee. In no event may Subscriber grant Rights in excess of those provided to it through the Cloud Plan(s) to which It hassubscrlbed. 2.2 RESPONSIBILITY FOR AUTHORIZED USER. All use of the ChargePoint Services by a Rights Grantee exercising Rights granted by Subscriber shall be subject to the terms and conditions of the Agreement (including without [Imitation Subscriber's indemnification obligation pursuant to Section 10 thereof). Subscriber shall be responsible for the actions, omissions, or performance of such Rights Grantee while exercising any such Rights, as If such action, omisslon or performance had been committed by Subscriber directly. 2.3 NO AGREEMENT. Subscriber acknowledges and agrees that the ChargePoint Services merely enable a Rights Grantor to extend Rights to Rights Grantees. The mere extension of such Rights by a Rights Grantor to a Rights Grantee does not constitute an agreement between Rights Grantor and the Rights Grantee with respect to the granted Rights or the exercise of such Rights by the Rights Grantee. CPI does not, either through the terms of the Agreement or the provision of ChargePoint Services undertake to provide any such agreement. It isthe responsibility of the Rights Grantor and the Rights Grantee to enter into such an agreement on terms mutually acceptable to each. CPI expressly undertakes no liability with respect to such an agreement and Rights Grantor fully and unconditionally releases CPI from any liability arising out of such an agreement. Further Rights Grantor agrees to indemnify and hold CPI, its officers, directors, agents, affiliates, distribution partners, licensors and suppliers harmless from and against any and all claims, actions, proceedings, costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Claims") suffered or incurred by such indemnified parties resulting from or arising out of such agreement. Page 19 of 19 Revised 9.5.19 Exhibit 4 NOTE: The City of Lodi is now using the online insurance program PINS Advantage. Once you have been awarded a contract you will receive an email from the City's online insurance program requesting you to forward the email to your insurance provider(s) to submit the required insurance documentation electronically Insurance Reg uIrements for IT Vendor Services Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1 Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: ISO Form Number CA 00 01 covering any auto or if Contractor has no owned autos, then hired, and non - owned autos with limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 4 Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations, Other inagrance Provisions: (a) Additional Named Insurers Siatus The City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers are to be covered as additional insureds on the CGL and auto policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor's insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used (b) Primary and Nan -Contributory Insurance EndgLgpment The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. For any claims related to this contract, the Contractor's insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. (c) Waiver of Subrogation Contractor hereby grants to City of Lodi a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City of Lodi by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Lodi has received a waiver of subrogation endorsement from the insurer NOTE: (1) The street address of the CITY OF LODI must be shown along with (a) and (b) and (c) above: 221 West Pine Street, Lodi, California, 95240; (2) The insurance certificate must state, on its face or as an endorsement, a description of the project that it is insuring. (d) Severa Di li tV, Qf Interest Clause The term "Insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to Encr�,� i comp ny a i y Mn er t5F on rac ors commeraa genera to i y an au of Peva Hh"❑ es. (e) Notioe of Cancellation or Change in Coverage Endorsement This policy may not be canceled nor the coverage reduced by the company without 30 days' prior written notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine St., Lodi, CA 95240. (f) Continuity of Cayerigq All policies shall be in effect on or before the first day of the Term of this Agreement. At least thirty (30) days prior to the expiration of each insurance policy, Contractor shall furnish a certificate(s) showing that a new or extended policy has been obtained which meets the minimum requirements of this Agreement. Contractor shall provide proof of continuing insurance on at least an annual basis during the Term. If Contractor's insurance lapses or is discontinued for any reason, Contractor shall immediately notify the City and immediately obtain replacement insurance. Contractor agrees and stipulates that any insurance coverage provided to the City of Lodi shall provide for a claims period following termination of coverage which is at least consistent with the claims period or statutes of limitations found in the California Tort Claims Act (California Government Code Section 810 et seq.). (g) Failure to Comply If Contractor fails or refuses to obtain and maintain the required insurance, or fails to provide proof of coverage, the City may obtain the insurance. Contractor shall reimburse the City for premiums paid, with interest on the premium paid by the City at the maximum allowable legal rate then in effect in California. The City shall notify Contractor of such payment of premiums within thirty (30) days of payment stating the amount paid, the name(s) of the insurer(s), and rate of interest. Contractor shall pay such reimbursement and interest on the first (1st) day of the month following the City's notice. Notwithstanding any other provision of this Agreement, if Contractor fails or refuses to obtain or maintain insurance as required by this agreement, or fails to provide proof of insurance, the City may terminate this Agreement upon such breach. Upon such termination, Contractor shall immediately cease use of the Site or facilities and commence and diligently pursue the removal of any and all of its personal property from the site or facilities, (h) Verification of Coverage Consultant shall furnish the City with a copy of the policy declaration and endorsement page(s), original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Failure to exercise this right shall not constitute a waiver of the City's right to exercise after the effective date. (i) Self -Insured Retentions Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. 0) LnWrgng L' The limits of insurance described herein shall not limit the liability of the Contractor and Contractor's officers, employees, agents, representatives or subcontractors. Contractor's obligation to defend, indemnify and hold the City and its officers, officials, employees, agents and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement in the Agreement for Contractor to procure and maintain a policy of insurance. (k) Subconlractors Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors (1) Claims Made Pohries If any of the required policies provide coverage on a claims -made basis: 1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. (m) Qualified Insurer(s] All insurance required by the terms of this Agreement must be provided by insurers licensed to do business in the State of California which are rated at least "A-, VI" by the AM Best Ratings Guide, and which are acceptable to the City. Non -admitted surplus lines carriers may be accepted provided they are included on the most recent list of California eligible surplus lines insurers (LESLI list) and otherwise meet City requirements. Page 2 1 of 2 pages 1 Risk: rev. 3/1/2018 -chargepoin+ CHARGEPOINT ASSURE TERMS AND CONDITIONS OF SERVICE Welcome to ChargePoint Assure. ChargePoint Assure is a full service maintenance and support program designed specifically for ChargePoint customers. WHAT IS COVERED: With ChargePoint Assure, ChargePoint agrees to do each of the following: a. Ensure that all parts are provided and labor is performed, on-site if necessary, to correct any defect in the materials or workmanship of electric vehicle charging stations purchased from ChargePoint, Inc., or its representatives ("Charging Stations") in a prompt and professional manner. b. Provide remote, automated monitoring of your Charging Stations. C. Perform triage with respect to any Charging Station that may be defective. d. Coordinate all repairs necessary to have your Charging Station back up and running. e. Ensure that you are provided response no later than one business day from the date ChargePoint becomes aware of an issue. f. Begin onsite repairs within one business day from the delivery of any parts required to fix your Charging Station. g. ChargePoint will provide software moves, adds and changes at no additional cost h. ChargePoint guarantees a 98% annual station uptime with a prorated refund of up to the annual station Assure maintenance fee for outages caused by station hardware or software failures in excess of 2% annually i. ChargePoint will provide standard monthly summary and quarterly detailed station usage and performance metrics. j. ChargePoint will cover the labor portion of non -cosmetic station repairs caused by vandalism, auto accidents or excessive wear and tear, 2. WHAT IS NOT COVERED: ChargePoint undertakes no responsibility with respect to repairing, replacing, monitoring or servicing anything other than your Charging Stations. This means, for example, that ChargePoint is not responsible for the physical mounting and electrical wiring of your Charging Stations or for the performance of any cellular or Wi-Fi repeaters or other devices installed in connection with your Charging Stations. 3. CUSTOMER RESPONSIBILITIES: In order to perform its obligations under ChargePoint Assure, ChargePoint needs your cooperation. Specifically, you agree to: a Provide reasonable access to ChargePoint or its designee as necessary for the performance of ChargePoint's obligations. b. Permit ChargePoint to access the Charging Stations remotely by maintaining a separately purchased Cloud Services subscription necessary for remote access. C. Maintain your premises in accordance with all applicable laws, rules and regulations. d. Keep the areas in which Charging Stations are located in a clean, safe and orderly condition, to at least the same standard as you customarily use to maintain the remainder of your premises. e. Promptly notify ChargePoint of any suspected defect with a Charging Station. 4. WHO IS ELIGIBLE FOR CHARGEPOINT ASSURE?: ChargePoint Assure is only available to purchasers of Charging Stations who either: 1) use a ChargePoint Operations and Maintenance Partner ("O&M Partner') to install their Charging Stations or 2) successfully complete a site validation as described below. a. ChargePoint O&M Partner Installation. For information on how to contact a ChargePoint O&M Partner, please contact your ChargePoint sales representative or authorized ChargePoint reseller for more details. 70.001012-01-3 ChargePoint Inc 1 1692 Dell Ave i Campbell, CA 95008-69D1 USA 408 041 4500 or toll-free 877 370 3802 i info@chargepoint,com i www chargepolnl corn Copyright O 2015 ChargePoint, Inc — All rights reserved GHARGEPOIN r is a U S registered lrademarklservlce mark All other products or services mentioned are the trademarks service marks registered trademarks or regislereo service marks of the, resnectrve owners -chargepoin+ b. Site Validation: If you do not use an O&M Partner to install your Charging Station, you still will be eligible for ChargePoint Assure after your installation has been validated by ChargePoint or an authorized third party. The purpose of the site validation is to ensure that your Charging Stations were installed correctly, in accordance with ChargePoint's recommended specifications and operational requirements. Site validations require the payment of ChargePoint's then current fee, charged on a "per site" basis. For these purposes, a "site" is defined as any group of Charging Stations whose circuits are terminated at the same power panel. 5. EXCLUSIONS FROM COVERAGE: ChargePoint's obligations under ChargePoint Assure shall not apply to defects or service repairs resulting from the following: a. Cosmetic damage such as scratches and dents. b. Normal aging. C. Except as provided in 10) above, abuse, vandalism, damage or other problems caused by accidents or negligence (including but not limited to physical damage from being struck by a vehicle), or use of the Charging Station in a way other than as specified in the applicable Charge Point documentation. d. Installation, alteration, modification or relocation of the Charging Station that was not approved in writing by ChargePoint, performed by an O&M Partner or validated in the manner described above. e. Use of the Charging Station with software, interfacing, parts or supplies not supplied by ChargePoint. f. Damage as a result of extreme power surge, extreme electromagnetic field or any other acts of nature. In addition ChargePoint's obligations under ChargePoint Assure shall not apply to any Charging Station that was not installed by a ChargePoint O&M Partner or a ChargePoint certified installer pursuant to the provisions of Section 4 of these Terms and Conditions. 6. CONTACT INFORMATION: If at any time turning the term of your coverage of ChargePoint Assure you believe you have a defective Charging Station, contact Customer Service at 1-877-850-4562 or support charge oin .cam. 7. SERVICE TERM: If you comply with the installation requirements described in Section 4, you will receive, at no -cost, ChargePoint Assure coverage that will replace your standard ChargePoint Warranty and will last for the remainder of the standard Warranty period, if any. You may purchase extensions to your ChargePoint Assure coverage. The extension period will begin on the date your standard Exchange Warranty expires or, if applicable, the date that any extensions to ChargePoint Assure coverage that you have previously purchased expire. Please contact your ChargePoint sales representative or authorized ChargePoint reseller for more details. 8. PAYMENTS: ChargePoint will send you an invoice for any extended ChargePoint Assure coverage that you order. Payment is due within thirty (30) days of the invoice date. If you have purchased extended ChargePoint Assure and have chosen the annual payment option, ChargePoint will invoice each annual payment on the anniversary date of your Assure coverage. All payments shall be made in U.S. Dollars and may be made by check, wire transfer, ACH payment system or other means approved by ChargePoint. Customer may not offset any amounts due to ChargePoint hereunder against amounts due to Customer under this Agreement or any other agreement. Fees payable to ChargePoint do not include any Taxes, and Subscriber is responsible for any and all such Taxes. All payment obligations under this Agreement are non -cancelable and non-refundable. Late payments shall be subject to a charge equal to the lesser of (i) one and one-half percent (1.5%) per month or (ii) the maximum rate permitted by law. Customer will reimburse ChargePoint for attorneys' fees and other expenses reasonably incurred by ChargePoint in the collection of any late payments. If any amount owing by you under this Agreement is more than thirty (30) days overdue, ChargePoint may, without otherwise limiting ChargePoint's rights or remedies, (a) terminate this Agreement and (b) refuse to provide ChargePoint Assure coverage until ChargePoint has received payment in full. 9. TRANSFERS: Your ChargePoint Assure coverage applies only to the Charging Stations and installation site for which it was purchased. If you sell or otherwise transfer your Charging Stations, your ChargePoint Assure coverage may not be transferred without ChargePoint's prior written consent. 70-001012-01-3 ChargePoint Inc 1 1692 Dell Ave I Campbell, CA 95008-6901 USA 406 841 4500 or toll-free 877 370 3602 1 info@chargepoint com I www chargepoinl com Copyright D 2015 ChargePoml Inc —All rights reserved Cl IARGEPOINT Is a U S registered trademaNservlce mark All other products or services mentioned are the trademarks service marks registered trademarks or registered service marks of their respective owners -chargepoin+ 10. REPLACEMENT PARTS AND STATIONS: Replacement parts or charging stations provided by ChargePoint under ChargePoint Assure may be remanufactured or reconditioned parts or Charging Stations or, if the exact Charging Station is no longer manufactured by ChargePoint, a Charging Station with substantially similar functionality. All replaced parts and Charging Stations, whether under warranty or not, become the property of ChargePoint. Any replacement parts or Charging Stations so furnished will be covered by ChargePoint Assure for the remainder of your ChargePoint Assure coverage or ninety (90) days from the date of delivery of such replacement parts or Charging Stations, whichever is later. 11. LIMITS ON LIABILITY: This section limits ChargePoint's liability under ChargePoint Assure. Please read it carefully. a. CHARGEPOINT IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS, LOST DATA, LOSS OF USE, OR COST OF COVER INCURRED BY YOU ARISING OUT OF OR RELATED TO YOUR PURCHASE OR USE OF, OR INABILITY TO USE, THE CHARGING STATION, UNDER ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF CHARGEPOINT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE CUMULATIVE LIABILITY OF CHARGEPOINT FOR ALL CLAIMS WHATSOEVER RELATED TO PERFORMANCE BY CHARGEPOINT OF ITS OBLIGATIONS UNDER CHARGEPOINT ASSURE WILL NOT EXCEED THE PRICE YOU PAID FOR CHARGEPOINT ASSURE. THE LIMITATIONS SET FORTH HEREIN ARE INTENDED TO LIMIT THE LIABILITY OF CHARGEPOINT AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. b. Some states or jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you, 12. ARBITRATION: These ChargePoint Assure Terms and Conditions of Service are to be construed according to the laws of the Slate of California, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any conflict of law provisions that would require application of another choice of law. Any dispute arising from or relating to these ChargePoint Assure Terms and Conditions of Service shall be arbitrated in Santa Clara, California. The arbitration shall be administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on any award may be entered in any court of competent jurisdiction, If the parties agree, a mediator may be consulted prior to arbitration. All claims shall be brought in the parties' individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. 13. AMENDMENT OR MOFICIATION: These ChargePoint Assure Terms and Conditions of Service may not be amended or modified except pursuant to a writing executed by each of the parties. 14. WAIVER: The failure of either Party at any time to enforce any provision of this Agreement shall not be construed to be a waiver of the right of such Party to thereafter enforce that provision or any other provision or right, 15. FORCE MAJEURE: ChargePoint will not be liable for failure to perform any of its obligations hereunder due to causes beyond its reasonable control and occurring without its fault or negligence, including but not limited to fire, flood, earthquake or other natural disaster (irrespective of ChargePoint's condition of any preparedness therefore); war, embargo; riot; strike; labor action; any lawful order, decree, or other directive of any government authority that prohibits ChargePoint from performing its obligations under this Agreement; material shortages; shortage of transport; and failures of suppliers to deliver material or components in accordance with the terms of their contracts. 16. SEVERABILITY. Except as otherwise specifically provided herein, if any term or condition of this Agreement or the application thereof to either Party will to any extent be determined jointly by the Parties or by any judicial, governmental or similar authority, to be invalid or unenforceable, the remainder of this Agreement, or the application 70-001012-01-3 ChargePoml, Inc 1 1692 Dell Ave Campbell, CA 95008-6901 USA 408 841 4500 or toll-free 077 370 3602 1 info@&argepoinl com I www chargepoinl corn Copyright ID 2015 ChargePoint Inc -All rights reserved CHARGEPOINT is a U S registered trademark/service mark All olhet products or services mentioned are the trademarks service marks registered trademarks or registered ServlCe marks of their respective owners —chargepoin+ of such term or provision to this Agreement, the Parties or circumstances other than those as to which it is determined to be invalid or unenforceable, will not be affected thereby. 17. ASSIGNMENT. You may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of ChargePoint. In the event of any purported assignment in breach of this Section 17, ChargePoint shall be entitled, at its sole discretion, to terminate these ChargePoint Assure Terms and Conditions of Service by providing written notice to you. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. ChargePoint may assign its rights and obligations under this Agreement. 16. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes and cancels all previous and contemporaneous agreements, negotiations, commitments, understandings, representations and writings. To the extent of any conflict or inconsistency between these ChargePoint Assure Terms and Conditions of Service and any purchase order, the Agreement shall prevail. 19. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute but one and the same document. 70-001012-01-3 ChargePoint, Inc 11697 hall Ave I Campbell CA 95008-5901 USA 408 841 4500 or toll-free 877 370 3802 1 info@chargepoinl com I w'o'w chergepoint corn Copyright © 2015 ChargePoint, Inc —All rights reserved CHARG EPOINT is a U S registered trademark/service mark All other products or services mentioned are the trademarks, service marks registered trademarks or registered service marks of the r respective owners AGENDAITEM C43 CITY OF LODI COUNCIL COMMUNICATION (0 TM AGENDA TITLE: Adopt Resolution 1) Authorizing City Manager to Execute Professional Services Agreement with National Car Charging, LLC of Denver, CO ($271,000) and Execute Amendments if Needed ($27,100); 2) Authorizing City Manager to Execute Master Services and Subscription Agreement with ChargePoint, Inc. of Campbell, CA; and 3) Authorizing Transfer and Appropriation of Funds MEETING DATE: July 21, 2021 PREPARED BY: Electric Utility Director RECOMMENDED ACTION: Adopt a resolution 1) authorizing the City Manager to execute a Professional Services Agreement with National Car Charging, LLC of Denver, CO in an amount not -to -exceed $271,000 and execute amendments if needed in an amount not -to -exceed $27,100; 2) authorizing the City Manager to execute a Master Services and Subscription Agreement with ChargePoint, Inc, of Campbell, CA; and 3) authorizing the transfer and appropriation of funds. BACKGROUND INFORMATION: On April 1, 2021, Lodi Electric Utility (LEU) issued a Request for Proposals (RFP) for a turnkey project to furnish, install, operate and maintain Level II electric vehicle (EV) public charging stations. LEU currently owns, operates and maintains 7 public Level 2 EV charging stations in 6 separate locations that have been in service for approximately 10 years and available to the public free of charge. The proposed project includes not only the replacement of existing equipment which has reached the end of its useful life but also the installation of new charging stations throughout the City — all with dual ports. Below is a summary of the proposed project: 1) Hutchins Street Square: One replacement and two new chargers 2) Downtown Parking Garage: One replacement and one new charger 3) City Hall: Two replacement chargers 4) Finance Department: One replacement charger 5) Library: One replacement charger 6) Kofu Park: One new charger" "Existing equipment at Animal Services Will be removed to accommodate parking needs. The installation proposed at Kofu Park will serve as the "replacement for this facility. In response to the RFP, LEU received three proposals. Proponents were asked to provide not just a proposal for the upfront, one-time costs to replace and/or install the equipment, but ongoing maintenance and networking costs as well to ensure the new facilities are maintained and are able to meet all grant funding requirements. As part of the RFP, proposers were encouraged to provide long-term options that would benefit LEU. APPROVED: Stephen SchwabaueE, City Manager Adapt Resolution 1) Aulhor¢ing City Manager to Execute Professlonal Services Agreement with National Car Charging, LLC of Danvtfr, CO ($271,000) and Execute Amendments Pf heeded ($27,100); 2) Authonzing City Manager to Execute Master Scrvlces and Subwriplion Agreoment wlih ChargePoint, Inc, of CtunpW, CA; and 3) Authorizing Approprlatlon of Funds (3298,100) Jury 21, 2021 Page 2 A review of all three proposals by LEU staff resulted in the selection of National Car Charging, LLC (NCC) based on their qualifications and experience, proposed equipment as well as their proposed long- term maintenance, warranty and networking services offered by the equipment supplier. NCC will serve as the prime contractor for the work and will use their approved subcontractor to install Level II ChargePoint EV equipment. As ChargePoint's largest value-added reseller over the last half decade, NCC was able to negotiate a networking plan and warranty terms to 10 years — double the typical maximum term length of 5 years. The Agreement with NCC includes all costs for the equipment, installation, project management as well as the costs associated with the 10 -year ChargePoint Assure warranty and networking subscription. NCC is one of the largest independent specialty distributors of EV charging equipment in the country, having sold/installed approximately 6,000 ports across 43 states for about 770 clients. ChargePoint's Assure warranty includes parts and labor, active monitoring and dispatch, a 98 percent uptime guarantee, a one - business -day response time, vandalism and accident labor coverage, unlimited programming assistance as well as pro -active reports sent monthly, quarterly, and annually. ChargePoint is the dominant industry leader with approximately 70 percent commercial market share. LEU will be required to enter into a separate Master Services and Subscription Agreement (MSSA) with ChargePoint for the networking services. There are no additional ongoing costs associated with the MSSA; rather ChargePoint remits all payments/revenues to the City less a 10 percent administrative charge. The new stations will continue to be free of charge to use for approximately one year from the date of install as LEU staff collect data regarding usage, charging session frequency, duration, etc. in an effort to develop a new charging structure for use of the stations which will be presented to Council at a later date for consideration. On May 5, 2021, City Council authorized the City Manager to accept California EV Infrastructure Project (CALeVIP) grant funding in the amount of $70,000 for the proposed project. Remaining funds for the project will come from Low Carbon Fuel Standard credits recently monetized as well as capital improvement funds. Work on this project is anticipated to be completed by Fall 2021. FISCAL IMPACT: Not -to -exceed cost of $298,100, including a contingency for amendments. FUNDING AVAILABLE: Funding for this project will come from CALeVIP grant funds, Low Carbon Fuel Standard funds, as well as LEU CIP funds to be transferred and appropriated as follows: CALeVIP Grant Fund Revenue 501.00000.56005: $ 70,000 Transfer Out Fund 503 - 50362500.76220: $193,000 Transfer In Fund 501 — 50100000.50001: $193,000 Expenditure Appropriation 50199000.77030: $298,100 Andrew Keys Andrew Keys Deputy City Manager/Internal Services Director 2��L_ Jeff s . liew for 1.1ut-0. '011 t1J: 1 PDT,' Jeff Berkheimer Electric Utility Director RESOLUTION NO. 2021-197 A RESOLUTION OF THE LODI CITY COUNCIL AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH NATIONAL CAR CHARGING, LLC, OF DENVER, COLORADO, AND EXECUTE AMENDMENTS IF NEEDED; AUTHORIZING THE CITY MANAGER TO EXECUTE A MASTER SERVICES AND SUBSCRIPTION AGREEMENT WITH CHARGEPOINT, INC., OF CAMPBELL; AND FURTHER AUTHORIZING THE TRANSFER AND APPROPRIATION OF FUNDS WHEREAS, on April 1, 2021, Lodi Electric Utility (LEU) issued a Request for Proposals (RFP) for a turnkey project to furnish, install, operate, and maintain Level II electric vehicle (EV) public charging stations; and WHEREAS, LEU currently owns, operates, and maintains seven public Level 2 EV charging stations in six separate locations that have been in service for approximately ten years and available to the public free of charge; and WHEREAS, the proposed project includes not only the replacement of existing equipment which has reached the end of its useful life but also the installation of new charging stations throughout the City; and WHEREAS, in response to the RFP, LEU received three proposals; and WHEREAS, a review of all three proposals by LEU staff resulted in the selection of National Car Charging, LLC (NCC) based on their qualifications, experience, and proposed equipment, as well as their proposed long-term maintenance, warranty, and networking services offered by ChargePoint, the equipment supplier; and WHEREAS, the Agreement with NCC includes all costs for the equipment, installation, and project management, as well as the costs associated with the 10 -year ChargePoint Assure warranty and networking subscription; and WHEREAS, LEU will be required to enter into a separate Master Services and Subscription Agreement (MSSA) with ChargePoint for the networking services; and WHEREAS, on May 5, 2021, City Council authorized the City Manager to accept California EV Infrastructure Project (CALeVIP) grant funding in the amount of $70,000 for the proposed project and remaining funds for the project will come from recently -monetized Low Carbon Fuel Standard credits, as well as capital improvement funds; and WHEREAS, staff recommends the following transfers/appropriations for the proposed project: CaleVIP Grant Fund Revenue 50100000.56005 $70,000 Transfer Out Fund 503 - 50362500.76220: $193,000 Transfer In Fund 501 — 50100000.50001: $193,000 Expenditure Appropriation 50199000.77030: $298,100 NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute a Professional Services Agreement with National Car Charging, LLC, of Denver, Colorado, in an amount not to exceed $271,000 and to execute amendments if needed in an amount not to exceed $27,100; and BE IT FURTHER RESOLVED that the Lodi City Council does hereby authorize the City Manager to execute a Master Services and Subscription Agreement with ChargePoint, Inc., of Campbell, California; and BE IT FURTHER RESOLVED that the Lodi City Council does hereby authorize the transfer and appropriation of funds as set forth above; and BE IT FURTHER RESOLVED, pursuant to Section 6.3q of the City Ccuncil Protocol Manual (adopted 11/6/19, Resolution No. 2019-223), the City Attorney is hereby authorized to make minor revisions to the above -referenced document(s) that do not alter the compensation or term, and to make clerical corrections as necessary. Dated: July 21, 2021 I hereby certify that Resolution No. 2021-197 was passed and adopted by the City Council of the City of Lodi in a regular meeting held July 21, 2021 by the following votes: AYES: COUNCIL MEMBERS — Chandler, Hothi, Khan, Kuehne, and Mayor Nakanishi NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — None ABSTAIN COUNCIL MEMBERS — None ENNIFE USMIR City Clerk 2021-197