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HomeMy WebLinkAboutSLO_Charge Point_Professional Services Agreement_9.20._ clean CP 0921.docx (2)City of San Luis Obispo Professional Services Agreement Page 1 CITY OF SAN LUIS OBISPO PROFESSIONAL SERVICES AGREEMENT This Professional Services Agreement (“Agreement”) is made and entered into on ____September 22, 2022__, by and between the City of San Luis Obispo, a municipal corporation and charter city (“City”) and ChargePoint, Inc. (“Consultant”) (individually and collectively referred to as the “Party” or “Parties,” respectively). WITNESSETH: WHEREAS, on May 6, 2022, the City issued a Notice Requesting Proposals for Community Electric Vehicle Charging Infrastructure Deployment (#225-001) (RFP); and WHEREAS, Consultant is a provider of Electric Vehicle Charging stations and related services, is qualified to perform the services sought by the City and has submitted a written proposal to do so, which has been accepted by the City. NOW, THEREFORE, in consideration of their mutual promises, obligations, and covenants hereinafter contained, the Parties hereto agree as follows: 1. TERM. The term of this Agreement shall be from the date this Agreement is made and entered, as first written above ("Effective Date”), until July 31, 2023, or upon acceptance and completion of said Services, whichever occurs sooner. 2. INCORPORATION BY REFERENCE. With respect to the Consultant’s final proposal to City’s Notice Requesting Proposals for Community Electric Vehicle Charging Infrastructure dated June 14, 2022, the terms therein that are applicable to Consultant’s obligations set forth in Section 4 in this Agreement (“Final Proposal Terms”), which are set forth in Exhibit A attached hereto, are hereby incorporated in and made a part of this Agreement; provided, however, that in the event of any conflict or inconsistency between this Agreement and the Final Proposal Terms, this Agreement shall prevail. The City’s insurance requirements are hereby incorporated in and made part of this Agreement, attached as Exhibit B. 3. CITY’S OBLIGATIONS. City shall reasonably cooperate with Consultant in its provision of the Services as specified in this Agreement. In particular, City shall make the necessary personnel available to Consultant, make decisions within a reasonable time, and carry out its other responsibilities in a timely manner so as not to delay the work of Consultant. City shall give prompt written notice to Consultant whenever (a) City observes or otherwise becomes aware of any development that may affect scope or timing of Consultant's Services, or (b) City has any material dissatisfaction with Consultant’s performance. For the Services provided under City of San Luis Obispo Professional Services Agreement Page 2 this Agreement, the City will pay and the Consultant shall receive therefore compensation in a total sum not to exceed $0.00. 4. CONSULTANT’S OBLIGATIONS. For and in consideration of the payments and agreements herein before mentioned to be made and performed by City, Consultant agrees to provide the following to the City (collectively, the “Services”): a. Develop the project scope of no-cost deployment plan of public electric vehicle chargers and related infrastructure on City property; b. Conduct at least three site assessments in partnership with a construction contractor; which includes visiting at minimum three of the City of San Luis Obispo municipal properties to confirm sites to be buildable. This includes confirming three-phase power availability with Pacific Gas & Electric (PG&E), ensuring there to be sufficient space to accommodate EV charging stations and all necessary electrical infrastructure, and performing site walks with a qualified contractor to gather installation quotes to confirm site builds to be financially feasible. c. Prepare preliminary design packages; d. Introduce potential third-party partners that will own and operate ChargePoint’s electric vehicle chargers to the City; City then has discretion to select a third-party partner for ChargePoint’s electric vehicle chargers if such party meets the selection criteria set forth in the RFP. e. The Services will be terminated at the sooner of one year, or upon the City’s executing an agreement with the qualified third-party partner. The City and the Consultant may elect to continue Consultant’s Obligations under this paragraph by mutual agreement in writing should the period of one year pass and a qualified third party not be selected. 5. PAYMENT OF TAXES. The Consultant shall be required to pay all taxes required by applicable law. 6. LICENSES AND PERMITS. At all times during the term of this Agreement, Consultant shall have in full force and effect, all licenses required of it by law for the performance of the Services described in this Agreement. The Consultant shall procure all permits and licenses, pay all charges and fees, and give all notices required under this Agreement or as required by applicable law. 7. COMPLIANCE WITH LAW. Each Party shall keep itself informed of and shall observe and comply with all applicable State and Federal laws and regulations, and county and City of San Luis Obispo ordinances, regulations and adopted codes, which in any manner affect those employed by such Party or in any way affect the performance of the Services pursuant to this Agreement. Each Party, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the other Party to comply with this Section. Failure to comply with local ordinances may result in monetary fines and cancellation of this Agreement. City of San Luis Obispo Professional Services Agreement Page 3 8. COMPLIANCE WITH INDUSTRY STANDARDS. Consultant shall provide services in conformance with the Agreement. Consultant shall provide the Services in a professional manner, in accordance with the generally accepted industry standards and practices, and in compliance with any specifications set forth in this Agreement. Where approval by the City, the City Manager, the Mayor, or other representative of the City is required, it is understood to be general approval only and does not relieve Consultant of responsibility for complying with all applicable laws, codes, policies, regulations, and good business practices. 9. INDEPENDENT CONTRACTOR. a. Each Party is and shall at all times remain as to the other Party a wholly independent contractor. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither Party nor any of its officers, employees, or agents shall have control over the conduct of the other Party or any of its officers, employees, or agents. Except as set forth in this Agreement, Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatsoever against City, or bind City in any manner. b. The Consultant may engage in dialogue with Pacific Gas & Electric (PG&E) on behalf of the City for issues related to grid capacity inquiries, interconnection applications, and related topics. The Consultant shall make the City aware of these meetings in advance and when City staff cannot attend, the Consultant shall provide a written summary of the meetings within one week of their occurrence. c. No employee benefits shall be available to Consultant in connection with the performance of this Agreement. City shall not be liable for compensation to Consultant for injury or sickness arising out of performing the Services hereunder. 10. PRESERVATION OF CITY PROPERTY. To the extent applicable, the Consultant shall provide and install suitable safeguards, approved by the City, to protect City property from injury or damage. If City property is injured or damaged resulting from Consultant’s operations, it shall be replaced or restored at Consultant’s expense. The City’s facilities shall be replaced or restored to a condition as good as when the Consultant began the work 11. IMMIGRATION ACT OF 1986. The Consultant warrants on behalf of itself and all subconsultants engaged for the performance of the Services that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the Services hereunder. 12. NON-DISCRIMINATION. In the performance of the Services, the Consultant agrees that it will not engage in, nor permit such subconsultants as it may employ, to engage in City of San Luis Obispo Professional Services Agreement Page 4 discrimination in employment of persons because of age, race, color, sex, national origin or ancestry, sexual orientation, or religion of such persons. 13. WORK SCHEDULED/TIME OF COMPLETION. The work schedule is identified in Exhibit B and work under this Agreement (tasks 2 through 20) has been presented by ChargePoint as concluding within 180 days from the date of the Effective Date of this Agreement. Any expected delays to this schedule shall be communicated in writing to the City. 14. [Intentionally Omitted]. 15. INSPECTION. City shall at all times have the right to inspect the work being done under this Agreement and Consultant shall furnish City with every reasonable opportunity and assistance required for City to ascertain that the Services of the Consultant are being performed in accordance with the requirements and intentions of this Agreement. All work done, and all materials furnished, if any, shall be subject to the City’s inspection and approval. The inspection of such work shall not relieve Consultant of any of its obligations under the Agreement. 16. RELEASE OF INFORMATION. a. All information gained by either Party (“Receiving Party”) in performance of this Agreement shall be considered confidential and shall not be released without the other Party's (“Disclosing Party”) prior written authorization. The Receiving Party, its officers, employees, agents, or subconsultants, shall not, without written authorization from the Disclosing Party, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the Services performed under this Agreement. Response to a subpoena or court order or as otherwise required by law, including but not limited to the California Public Records Act, shall not be considered "voluntary" provided the Receiving Party gives the Disclosing Party notice of such court order or subpoena. b. The Receiving Party shall promptly notify the Disclosing Party should the Receiving Party, its officers, employees, agents, or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request (“Discovery”), court order, or subpoena from any person or party regarding this Agreement, unless the Disclosing Party is a party to any lawsuit, arbitration, or administrative proceeding connected to such Discovery, or unless the Receiving Party is prohibited by law from informing the Disclosing Party of such Discovery. Unless the Disclosing Party is a party to the lawsuit, arbitration, or administrative proceeding and is averse to the Receiving Party in such proceeding, the Receiving Party agrees to reasonably cooperate with the Disclosing Party and to provide the opportunity to review any response to Discovery requests provided by the Receiving Party. 17. OWNERSHIP OF DOCUMENTS. City of San Luis Obispo Professional Services Agreement Page 5 a. If applicable, Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by City that relate to the performance of the Services under this Agreement. Consultant shall maintain reasonable records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to the representatives of City or its designees at reasonable times to such books and records during normal business hours and providing reasonable advance notice to Consultant; shall give City the right to examine and audit said books and records; shall permit City to make transcripts or copies therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. City will not conduct more than one audit during the term of this Agreement. b. Upon completion of, or in the event of termination or suspension of this Agreement, City may use or reuse the deployment plan of public electric vehicle chargers and related infrastructure on City property and preliminary design packages prepared in the course of providing the Services under this Agreement. 18. INDEMNIFICATION AND DEFENSE. To the fullest extent permitted by law (including, but not limited to California Civil Code Sections 2782 and 2782.8), Consultant shall indemnify, defend, and hold harmless the City, and its elected officials, officers, employees, volunteers, and agents (“City Indemnitees”), from and against any and all causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable legal counsels’ fees and costs of litigation (“Claims”), related to personal injury and death arising out of the Consultant’s performance under this Agreement or Consultant’s failure to perform, including the performance and nonperformance of Consultant’s employees, agents, or subcontractors performing work on behalf of Consultant under this Agreement, its obligations under this Agreement or out of the operations conducted by Consultant , except for such loss or damage arising from the sole or active or passive negligence or willful misconduct of the City. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from Consultant’s willful misconduct during its performance of this Agreement, the Consultant shall provide a defense to the City Indemnitees or upon mutual written agreement between City and Consultant, reimburse the City Indemnitees their reasonable costs of defense, including reasonable legal fees, incurred in defense of such claims. Indemnity procedure. City shall promptly notify Consultant in writing of any Claim in respect of which the defense and indemnity may apply; provided, however, the failure to City of San Luis Obispo Professional Services Agreement Page 6 give such notice shall only relieve Consultant of its indemnity and defense obligations hereunder to the extent Consultant is prejudiced thereby. Consultant shall have control of the defense and negotiation for any settlement or compromise, provided, however that no Claim may be settled, compromised, or otherwise disposed of by Consultant, without the express written consent of City unless such settlement or compromise or disposition includes a release of all claims against City by the party bringing in such claim or action. 19. LIMITATION OF LIABILITY a. IN NO EVENT WILL CONSULTANT BE LIABLE FOR ANY LOST REVENUE OR PROFIT, LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL DAMAGESTHAT ARE NOT DIRECTLY RELATED TO THE ACTIONS OR FAILED ACTIONS OF THE CONSULTANT. b. NOTWITHSTANDING ANYTHING TO THE CONTRARY, OTHER THAN PUNITIVE DAMAGES, IN NO EVENT SHALL CONSULTANT’S AGGREGATE LIABLITY UNDER OR IN CONNECTION WITH THIS AGREEMENT CUMULATIVELY EXCEED TWO MILLION DOLLARS ($2,000,000 USD) IN TOTAL. 20. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE. Either Party may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof, by serving upon the other Party at least thirty (30) days prior written notice. Upon receipt of said notice, the Parties shall immediately cease all work under this Agreement, unless otherwise agreed upon in writing. If either Party suspends or terminates only a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement. 21. TERMINATION FOR CAUSE. Either Party may terminate this Agreement at any time if the other Party breaches any of its obligations hereunder and such breach has not been cured within ten (10) calendar days of written notice specifying the nature of the breach (“Notice of Termination”). a. If the breaching Party has not performed the work or cured the deficiency within the ten (10) days specified in the notice, such shall constitute a breach of the Agreement and the non-breaching Party may terminate the Agreement immediately by written notice to the breaching Party to said effect (“Notice of Termination”). Thereafter, neither Party shall have any further duties, obligations, responsibilities, or rights under the Agreement except to comply with the obligations upon termination. b. In said event, the Consultant shall be entitled to the reasonable value of its services performed from the date on which the breach occurs up to the day it received the City’s Notice of Termination, minus any offset from such payment representing the City’s damages from such breach. “Reasonable value” includes City of San Luis Obispo Professional Services Agreement Page 7 fees or charges for goods or services at market rate as of the last milestone or task satisfactorily delivered or completed by the Consultant as may be set forth in the Agreement payment schedule; compensation for any other work or serv ices performed or provided by the Consultant shall be based solely on the City’s assessment of the value of the work-in-progress in completing the overall scope. 22. INSURANCE. During the Term of this Agreement, Consultant shall maintain commercially reasonable insurance coverage. Upon reasonable written request by the City, Consultant will provide evidence of its insurance coverage. 23. BUSINESS LICENSE & TAX. To the extent applicable, The Consultant must have a valid City of San Luis Obispo business license & tax certificate before execution of the contract. Additional information regarding the City’s business tax program may be obtained by calling (805) 781-7134. 24. SAFETY PROVISIONS. The Consultant shall conform to the rules and regulations pertaining to safety established by OSHA and the California Division of Industrial Safety. 25. PUBLIC AND EMPLOYEE SAFETY. Whenever the Consultant operations create a condition hazardous to the public or City employees, it shall, at its expense and without cost to the City, furnish, erect and maintain such fences, temporary railings, barricades, lights, signs and other devices and take such other protective measures as are necessary to prevent accidents or damage or injury to the public and employees. 26. UNDUE INFLUENCE. Consultant declares and warrants that no undue influence or pressure was used against or in concert with any officer or employee of the City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of the City has or will receive compensation, directly or indirectly, from Consultant, or from any officer, employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling the City to any and all remedies at law or in equity. 27. ASSIGNMENT. Neither Party shall assign, transfer, convey or otherwise dispose of the contract, or its right, title or interest, or its power to execute such a contract to any individual or business entity of any kind without the previous written consent of the other Party. 28. As required herein, before retaining or contracting with any subconsultant for any services under this Agreement, City must consent to such assignment of performance in writing. For City to evaluate such proposed assignment, Consultant shall provide City with the identity of the proposed subconsultant, a copy of the proposed written contract between Consultant and such subconsultant, which shall include an indemnity provision substantially similar to the one provided herein and identifying City as an indemnified party, or an incorporation of the City of San Luis Obispo Professional Services Agreement Page 8 indemnity provision provided herein, and proof that such proposed subconsultant carries insurance at least equal to that required by this Agreement or obtain a written waiver from City for such insurance. 29. AMENDMENT. Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon the authorized signature of both Parties. Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized by the City in advance and in writing. 30. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete Agreement between the Parties hereto. No oral agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral Agreement, understanding, or representation be binding upon the Parties hereto. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 31. NOTICE. All notices to the Parties hereto under this Agreement shall be in writing and shall be sent either by (i) personal service, (ii) delivery by a reputable document delivery service, such as, but not limited to, Federal Express, which provides a receipt showing date and time of delivery, or (iii) United States Mail, certified, postage prepaid, return receipt requested. All such notices shall be delivered to the addressee or addressed as set forth below: To City: Administration City of San Luis Obispo 990 Palm St. San Luis Obispo, CA 93401 Attention: Lucia Pohlman, Office of Sustainability To Consultant: Legal Department ChargePoint, Inc. 240 E. Hacienda Avenue Campbell, CA 95008 32. GOVERNING LAW. Any action arising out of this Agreement shall be brought in the Superior Court of San Luis Obispo County, California, regardless of where else venue may lie. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto City of San Luis Obispo Professional Services Agreement Page 9 shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. 33. AUTHORITY TO EXECUTE AGREEMENT. Both City and Consultant do covenant that each individual executing this Agreement on behalf of each party is a person duly authorized and empowered to execute Agreements for such party. IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be executed the day and year first above written. CITY CONSULTANT _______________________________ By: Greg Hermann Its: Assistant City Manager. _______________________________ By: Its: APPROVED AS TO FORM: _______________________________ By: J. Christine Dietrick, City Attorney City of San Luis Obispo Professional Services Agreement Page 10 EXHIBIT A Consultant’s Proposal Task 1. Site Identification The City is interested in deploying the maximum number of DCFC and Level 2 chargers as rapidly as possible. Respondents will identify and propose strategic locations at which to deploy charging stations. In the interest of supporting the assessment, the City has identified three locations as potential sites for new DCFC charging station deployment and defers to proposers on these sites’ viability and the inclusion of additional sites: Lot 9: 680 Monterey St., San Luis Obispo, CA 93401 Calle Joaquin Park & Ride Lot: 1530 Calle Joaquin, San Luis Obispo, CA 93405 Santa Rosa Park Lot: 1050 Oak St., San Luis Obispo, CA 93405 Please note that these sites are only provided to support the assessment and any public parking lot, parking space or garage is eligible for consideration. Task 1 will include the submittal of a concept-level map identifying initial proposed locations, or priority areas, for proposed installations. This map should be accompanied by a brief summary of methods and/or key criteria that informed site selection, such as adjacent uses, land use densities, or considerations based on the proposed service model. Overall, the City wishes to maximize the number of new charging stations installed at strategic locations. Final site selection for charging infrastructure deployment is subject to approval by the City. City of San Luis Obispo Professional Services Agreement Page 11 EXHIBIT B INSURANCE REQUIREMENTS