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HomeMy WebLinkAboutChargePoint Inc; 2021-05-19; PSA21-1469FACPSA21-1469FAC AGREEMENT FOR CITY WIDE CHARGEPOINT ELECTRIC VEHICLE CHARGING STATION WARRANTY AND MAINTENANCE SERVICES CHARGEPOINT, INC. THIS AGREEMENT is made and entered into as of the __________ day of _____________________ 2021, but effective May 15, 2021 by and between the City of Carlsbad, a municipal corporation, ("City"), and ChargePoint, Inc., a Delaware corporation, ("Contractor"). RECITALS A. City requires the professional services of a consultant that is experienced in electric vehicle charging station warranty and maintenance services. B. Contractor has the necessary experience in providing professional services and advice related to electric vehicle charging station warranty and maintenance. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in ChargePoint Assure Terms and Conditions of Service (Exhibit "A") and the ChargePoint Electric Vehicle Charging Station Warranty and Maintenance Services Proposed Cost of Service Chart (Exhibit “B”), which is incorporated by this reference in accordance with this Agreement’s terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of two (2) years beginning May 14, 2021. The City Manager may amend the Agreement to extend it for two (2) additional two (2) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be seven thousand fifty dollars ($7,050). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall be based on the number of charging stations receiving warranty Services to be managed in that Agreement year, subject to pricing outlined in Exhibit B. Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". City Attorney Approved Version 6/12/18 1 LEGAL APPROVED DocuSign Envelope ID: 0DB6E25C-1D64-4B73-B7A8-8CD4B4E468D2 May 19th PSA21-1469FAC 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City’s election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING If Contractor uses any subcontractor, Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney’s fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self-administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor’s agents, representatives, employees or subcontractors. The insurance will be obtained from an City Attorney Approved Version 6/12/18 2 LEGAL APPROVED DocuSign Envelope ID: 0DB6E25C-1D64-4B73-B7A8-8CD4B4E468D2 City Attorney Approved Version 6/12/18 3 PSA21-1469FAC insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an “occurrence” basis, including 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 or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor’s profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. DocuSign Envelope ID: 0DB6E25C-1D64-4B73-B7A8-8CD4B4E468D2 City Attorney Approved Version 6/12/18 4 PSA21-1469FAC 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11.BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of theAgreement, as may be amended from time-to-time. 12.ACCOUNTING RECORDSContractor will maintain complete and accurate records with respect to costs incurred under thisAgreement. All records will be clearly identifiable. Contractor will allow a representative of Cityduring normal business hours to examine, audit, and make transcripts or copies of records andany other documents created pursuant to this Agreement. Contractor will allow inspection of allwork, data, documents, proceedings, and activities related to the Agreement for a period of three(3) years from the date of final payment under this Agreement. 13.NOTICESThe name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City For Contractor Name Charles Balteria Name Brendan O'Donnell Title Program Manager Title Project Manager Department Public Works Address 254 E. Hacienda Ave. City of Carlsbad Campbell, CA 95008 Address 405 Oak Ave Phone No. 949-521-3386 Carlsbad, CA 92008 Email brendan.odonnell@chargepoint.c om Phone No. 760-434-2949 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 14.CONFLICT OF INTERESTContractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. Yes ☐ No ☐ x DocuSign Envelope ID: 0DB6E25C-1D64-4B73-B7A8-8CD4B4E468D2 City Attorney Approved Version 6/12/18 5 PSA21-1469FAC 15. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 16. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 17. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 18. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will decide of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 19. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that DocuSign Envelope ID: 0DB6E25C-1D64-4B73-B7A8-8CD4B4E468D2 City Attorney Approved Version 6/12/18 6 PSA21-1469FAC Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 20. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 21. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 22. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 23. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, including the ChargePoint Assure Terms and Conditions of Service attached hereto and incorporated under Exhibit A, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the ChargePoint Assure Terms and Conditions of Service, and the ChargePoint Assure Terms and Conditions of Service supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. DocuSign Envelope ID: 0DB6E25C-1D64-4B73-B7A8-8CD4B4E468D2 7 PSA21-1469FAC 24.AUTHORITYThe individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authorityto bind Contractor to the terms and conditions of this Agreement. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California CHARGEPOINT, INC., a Delaware corporation By: By: (sign here) Paz Gomez, Deputy City Manager, Public Works, as authorized by the City Manager Rex S. Jackson, CFO (print name/title) By: (sign here) Henrik Gerdes, Chief Accounting Officer (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: Assistant City Attorney City Attorney Approved Version 6/12/18 LEGAL APPROVED DocuSign Envelope ID: 0DB6E25C-1D64-4B73-B7A8-8CD4B4E468D2 Revised 8.17.2019 ChargePoint, Inc. | 254 East Hacienda Ave | Campbell, CA 95008-6901 USA 408.841.4500 or toll-free 877.370.3802 | info@chargepoint.com | www.chargepoint.com Copyright © 2018 ChargePoint, Inc. – All rights reserved. CHARGEPOINT 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 their respective owners. PSA21-1469FAC EXHIBIT A 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. 1. 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 thematerials 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 purchase ChargePoint Assure and 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. DocuSign Envelope ID: 0DB6E25C-1D64-4B73-B7A8-8CD4B4E468D2 Revised 8.17.2019 ChargePoint, Inc. | 254 East Hacienda Ave | Campbell, CA 95008-6901 USA 408.841.4500 or toll-free 877.370.3802 | info@chargepoint.com | www.chargepoint.com Copyright © 2018 ChargePoint, Inc. – All rights reserved. CHARGEPOINT 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 their respective owners. PSA21-1469FAC 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. 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 1(j) 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@chargepoint.com. 7. SERVICE TERM: If you comply with the installation requirements described in Section 4, and purchase ChargePoint Assure, you will receive, 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 the ChargePoint Assure coverage that you order. Payment is due within thirty (30) days of the invoice date. If you have purchased extended ChargePoint Assure coverage 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. 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. 10. REPLACEMENT PARTS AND STATIONS: Replacement parts or charging stations provided by ChargePoint under DocuSign Envelope ID: 0DB6E25C-1D64-4B73-B7A8-8CD4B4E468D2 Revised 8.17.2019 ChargePoint, Inc. | 254 East Hacienda Ave | Campbell, CA 95008-6901 USA 408.841.4500 or toll-free 877.370.3802 | info@chargepoint.com | www.chargepoint.com Copyright © 2018 ChargePoint, Inc. – All rights reserved. CHARGEPOINT 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 their respective owners. PSA21-1469FAC 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 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. 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, DocuSign Envelope ID: 0DB6E25C-1D64-4B73-B7A8-8CD4B4E468D2 Revised 8.17.2019 ChargePoint, Inc. | 254 East Hacienda Ave | Campbell, CA 95008-6901 USA 408.841.4500 or toll-free 877.370.3802 | info@chargepoint.com | www.chargepoint.com Copyright © 2018 ChargePoint, Inc. – All rights reserved. CHARGEPOINT 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 their respective owners. PSA21-1469FAC 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 applicationof 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 thisSection 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 inureto the benefit of the parties, their respective successors and permitted assigns. ChargePoint may assign its rights and obligations under this Agreement. 18. 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 betweenthese 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 deemedan original, but all of which, taken together, shall constitute but one and the same document. DocuSign Envelope ID: 0DB6E25C-1D64-4B73-B7A8-8CD4B4E468D2 PSA21-1469FAC EXHIBIT B ChargePoint Electric Vehicle Charging Station Warranty and Maintenance Services Proposed Cost of Service Chart ChargePoint Electric Vehicle Charging Station Warranty and Maintenance Services per Exhibit “A” ChargePoint Assure Terms and Conditions of Service shall be charged at the fee of $1,410.00 per ChargePoint CT4000 pedestal receiving services under this agreement, per two year agreement term. Some of these service rates may not be billable during the Agreement Term due to standing contractual agreements in place. As rates change and/or additional ChargePoint pedestals are installed, these values may be adjusted by future amendments to this agreement. Propose Cost of Service Fee Location Station Type Pedestals Fee Total Alga Norte Community Park 6565 Alicante Road ChargePoint CT4000 1 $1,410.00 $1,410.00 Pine Avenue Community Park 3209 Harding Street ChargePoint CT4000 1 $1,410.00 $1,410.00 Poinsettia Community Park 6600 Hidden Valley Road ChargePoint CT4000 2 $1,410.00 $2,820.00 State Street Parking Lot 3021 State Street ChargePoint CT4000 1 $1,410.00 $1,410.00 Total Per Agreement Term $7,050 City Attorney Approved Version 6/12/18 2 DocuSign Envelope ID: 0DB6E25C-1D64-4B73-B7A8-8CD4B4E468D2 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THISCERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?(Mandatory in NH) DESCRIPTION OF OPERATIONS belowIf yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIREDAUTOS ONLY 5/12/2021 Woodruff-Sawyer & Co.50 California Street, Floor 12San Francisco CA 94111 415-391-2141 415-989-9923 Travelers Prop Casualty Co of America 25674 COULTEC-01 Lloyds of LondonChargePoint Holdings, Inc.254 E. Hacienda AvenueCampbell CA 95008 Travelers Indemnity Company of CT 25682 1240314319 A X 1,000,000 X 1,000,000 10,000 1,000,000 2,000,000 X Y 6300S769282 5/1/2021 5/1/2022 2,000,000 C 1,000,000 X BA0S767319 5/1/2021 5/1/2022 50,000 A X X 10,000,000CUP9R5790135/1/2021 5/1/2022 A XYUB009J7835742/1/2021 2/1/2022 1,000,000 1,000,000 1,000,000 B Errors & Omissions/Cyber(Professional Liability)W252B9210301 5/1/2021 5/1/2022 Per Claim/ Aggregate 5,000,000 Re: All Projects City of Carlsbad/CMWD, the City of Carlsbad are included as additional insured to the extent provided in the attached form. Waiver of Subrogation applies to the extent of the attached form and as permitted by law. City of Carlsbad/CMWDc/o EXIGIS Insurance Compliance ServicesP.O Box 947Murrieta, CA 92564 TRAVELERs'f'· ONE TOWER SQUARE HARTFORD CT 06183 WORKERS COMPENSATION AND EMPLOYERS LIABILITY POLICY ENDORSEMENT WC 00 0313 (00) -001 POLICY NUMBER: UB-9J783574 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit any one not named in the Schedule. SCHEDULE DESIGNATED PERSON: .,_ DESIGNATED ORGANIZATION: ANY PERSON OR ORGANIZATION FOR WHICH THE INSURED HAS AGREED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER. PAGE 1 OFl SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THISCERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?(Mandatory in NH) DESCRIPTION OF OPERATIONS belowIf yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIREDAUTOS ONLY 4/29/2021 Woodruff-Sawyer & Co.50 California Street, Floor 12San Francisco CA 94111 415-391-2141 415-989-9923 Travelers Prop Casualty Co of America 25674 COULTEC-01 Lloyds of LondonChargePoint Holdings, Inc.254 E. Hacienda AvenueCampbell CA 95008 Travelers Indemnity Company of CT 25682 1906369502 A X 1,000,000 X 1,000,000 10,000 1,000,000 2,000,000 X Y 6300S769282 5/1/2021 5/1/2022 2,000,000 C 1,000,000 X BA0S767319 5/1/2021 5/1/2022 50,000 A X X 10,000,000CUP9R5790135/1/2021 5/1/2022 A XYUB009J7835742/1/2021 2/1/2022 1,000,000 1,000,000 1,000,000 B Errors & Omissions/Cyber(Professional Liability)W252B9210301 5/1/2021 5/1/2022 Per Claim/ Aggregate 5,000,000 The City of Carlsbad is included as additional insured with respect to General Liability per attached form. A Waiver of Subrogation applies in favor of Workers'Compensation per attached form. City of Carlsbad/CMWDc/o EXIGIS Insurance Compliance ServicesP.O Box 947Murrieta CA 92564 TRAVELERs'f'· ONE TOWER SQUARE HARTFORD CT 06183 WORKERS COMPENSATION AND EMPLOYERS LIABILITY POLICY ENDORSEMENT WC 00 0313 (00) -001 POLICY NUMBER: UB-9J783574 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) This agreement shall not operate directly or indirectly to benefit any one not named in the Schedule. SCHEDULE DESIGNATED PERSON: .,_ DESIGNATED ORGANIZATION: ANY PERSON OR ORGANIZATION FOR WHICH THE INSURED HAS AGREED BY WRITTEN CONTRACT EXECUTED PRIOR TO LOSS TO FURNISH THIS WAIVER. PAGE 1 OFl