INCENTIVE PROGRAM IMPLEMENTATION SERVICES AGREEMENT
This Incentive Program Implementation Servic~tgreement (including Appendix I (Scape of Work), this "Agreement") is entered into as of ( fj { d--... ], 2020 ("Effective Date") by and between Center for Sustainable Energy, a lifomia nonprofit public benefit corporation recognized as a tax exempt organization under Section 50l(c)(3) of the Internal Revenue Code of the United States ("CSE") and the City of Santa Clara, a chartered California municipal corporation, doing business as Silicon Valley Power ("Client" or "Entity").
RECITALS
WHEREAS the California Energy Commission ("CEC") approved funding • for and designated CSE to design and implement up to $200 million in electric vehicle charger incentive projects throughout California ("CALe VIP Funding") and CSE has accepted the CALe VIP Funding under the terms and conditions of that certain Grant Agreement (EPC-14-077) dated as of July 9, 2015 (the "Grant Agreement").
WHEREAS CEC has authorized CSE to deploy a portion of CALe VIP Funding (the "CEC Funds"), of $4,000,000, towards an incentive program in Santa Clara County (the "Peninsula Silicon Valley Incentive Project").
WHEREAS Client provides locally-controlled, carbon-free electricity to residents and businesses in its service territory in Santa Clara County.
WHEREAS Client desires to promote more rapid deployment of public and private infrastructure that will accelerate adoption of electric vehicles in its service territory, Client will dedicate $4,000,000 to the Peninsula-Silicon Valley Incentive Project ("Client Funds"). Annual Client funding will be identified, through the annual budget cycle. Monies are intended to be used to fund incentive payments that will be paid to public and private property owners and business owners that install electric vehicle chargers that meet specific standards in its service territory, all in connection with the incentive payment project to be developed and administered under this Agreement. Client Funding is contingent on Peninsula-Silicon Valley Incentive Project receipt of CEC Funding no later than at that start of the Project launch, estimated to be October, 2020.
WHEREAS Client desires to hire CSE to develop and administer the Peninsula-Silicon Valley Incentive Project in consideration of payment of a fee in accordance with the terms and conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual terms, conditions, promises, covenants, and payments contained in this Agreement, together with all exhibits, CSE and Client ( each a "Party" and together, the "Parties") agree as follows:
1 Sl\.1RH:487865848.4
1. FUNDING COMMITMENT
Client acknowledges and agrees that CSE is relying on funding commitments from Client.
Subject to the terms and conditions of this Agreement Client Funds will be identified, through the annual budget cycle. Monies are intended to be used to fund incentive payments that will be paid to public and private property owners and business owners that install electric vehicle chargers that meet specific standards in Client's service territory, all in connection with the incentive payment project to be developed and administered under this Agreement. Client Funding is contingent on the Peninsula-Silicon Valley Incentive Project's receipt of CEC Funding no later than at the start of the Project.
2. SERVICES.
2.1. General. Subject to the terms and conditions of this Agreement and in consideration of the proper payment by Client of the Implementation Fee (as defined herein) and any other amounts required to be paid by Client hereunder, including without limitation the payment of Client Funds to fund incentive payments, CSE shall provide Client with certain program development, marketing, digital media, branding, software, management, incentive payment application review and administration, disbursement of incentive payments, data collection and reporting and other services, including modifications thereto ( collectively, the "Services") as described in Appendix I (the "Scope of Work") and CSE shall provide works created for Client, and all materials, information and deliverables prepared or developed as a result of or in connection with the Services, including any trademarks, information, content, processes, methodologies, products, goods, services, software, materials, rights, and/or data, including all intellectual property rights therein, provided to Client ( other than the Client Materials and Client Data, each as defined below) and any modifications thereto ( collectively, "Deliverables").
2.2. Standard of Performance. CSE shall use commercially reasonable efforts to provide the Services in accordance with the standards, practices and procedures established by CSE for its own operations, unless otherwise expressly provided in this Agreement. CSE shall comply with all laws, regulations, rules and orders applicable to CSE regarding the Services provided hereunder.
2.3. Project Representatives. Each Party designates the individual identified in the Scope of Work as its designated representative for coordination and cooperation in connection with the Services, who shall confer regarding the status of the Services at a mutually agreed-upon minimum frequency, and have such other responsibilities as set forth in the Scope of Work.
2.4. Client's Obligations. Client acknowledges that Client's timely provision of (and CSE' s access to) Client facilities, equipment, assistance, cooperation, and complete and accurate information and data from Client's officers, agents and employees ("Cooperation") is essential to the performance of the Services, and that CSE shall not be liable for any deficiency in performing the Services if such deficiency results from Client's failure to provide full cooperation as required hereunder. Cooperation includes, but is not limited to, designating a Project Representative to interface with CSE during the course of the Services, allocating and engaging additional resources as required to assist CSE in performing the Services, and providing all other necessary assistance as required hereunder.
2 SMRH:487865848.4
2.5. Relationship of the Parties. Each Party is an independent contractor under this Agreement and nothing herein shall be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the Parties. Except as expressly agreed by the Parties in writing, neither Party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other Party or to bind the other Party.
2.6. Territory. The Services and Deliverables will be provided and accessible solely within the Entities territory in the State of California and other areas in the State of California where Client has legal authorization to serve its customers (the "Territory").
3. INTELLECTUAL PROPERTY RIGHTS.
A. Licensed Services and Deliverables. Entity shall have a limited, non-exclusive, non-sublicensable and non-transferable right during the Term to access and use the Services and Deliverables within the Territory, subject to the terms and conditions of this Agreement. The Services and Deliverables may be used by the Entity only in connection with the Peninsula-Silicon Valley Incentive Project. Entity shall have no right to copy, in whole or in part, the Services and Entity shall not, and shall permit no third party to, modify, adapt, translate, reverse engineer, decompile, disassemble, sublicense, redistribute, resell, rent, lease, remove any copyright or other proprietary notice from, or create derivative works based on the Services, or extract any component thereof for use with any other systems, applications, data or materials, or use or reproduce any part of the Services in source-code format. Further, Entity shall not access, use or exploit the Services or Deliverables (in whole or in part) in order to build, develop (or commission the development of), or consult upon any product or service which competes (directly or indirectly) with the Services. Entity agrees that its access to and use of any software components, data, applications and/or related materials owned and controlled by third parties that interoperate with or are otherwise made available in connection with the Services ( collectively, "Third Party Materials") may be subject to separate terms and conditions as may be imposed from time to time by the third party involved. Entity shall be solely responsible for obtaining and maintaining all necessary licenses, consents and permissions to access and use Third Party Materials and complying with all terms and conditions relating thereto.
B. Ownership of Services and Deliverables. Except for the license to access and use the Services and Deliverables expressly granted to Entity under this Agreement, Contractor retains all right, title and interest in the Services and Deliverables, whether as individual items or a combination of components and whether or not the Services are completed, regardless of any participation or collaboration by Entity in their design, development or implementation.
Contractor has the sole right to obtain, hold and renew in its own name and for its own benefit, any patents, copyrights, registrations and other similar intellectual property and proprietary rights protections regarding any Services and Deliverables. Entity shall reasonably cooperate with Contractor and execute all documents necessary to enable Contractor to perfect, preserve, register and record its rights in the Services and Deliverables. Except for the limited rights and licenses granted to Entity under this Agreement, nothing shall be construed to restrict, impair, encumber, alter, deprive or adversely affect the Services and Deliverables or any of Contractor's rights or interests therein. All rights not expressly granted to Entity hereunder are reserved by Contractor. 3 SMRH:487865848.4
C. Client Materials. Client shall reasonably cooperate with CSE in the performance of the Services, including by promptly providing CSE with all Client and third paity trademarks, trade names, service mai'k:s, logos, names, and distinctive identification ( collectively, "Client Trademarks"), infonnation, materials, data, images and content required to perform the Services (collectively, "Client Materials"). Client hereby grants to CSE a non-exclusive, non sublicensable, and non-transferable right and license to use the Client Materials and Client Trademarks as provided by Client to CSE hereunder solely in connection with the development and creation of the Deliverables and performance of the Services. All goodwill resulting from CSE's use of the Client Trademarks shall inure to the benefit of Client. Without limiting the foregoing, Client hereby grants to CSE a non-exclusive, non-sublicensable, non-transferable right and license to use any data inputted or uploaded by Client in connection with the Services and any data generated from Client's use of the Services, including infonnation and data regarding Client's customers ( collectively, the "Client Data") in connection with the performance of the Services.
As between Client and CSE, Client retains all right, title and interest in the Client Materials, Client Trademarks and Client Data, except for the limited rights and licenses granted to CSE under this Agreement.
D. • Use of Data. Client hereby grants to CSE a non-exclusive, inevocable, perpetual, royalty-free, worldwide right and license to use the Client Data (i) for data analysis and market research purposes, (ii) to improve and enhance the Services and for other development, diagnostic and conective purposes, (iii) to disclose such data to CEC as required under the Grant Agreement, and (iv) to disclose such data solely in aggregate or other de-identified form in connection with its business, including for benchmarking purposes and providing market reports and studies to third paities.
2. DATA SECURITY. CSE shall implement appropriate technological, physical and administrative safeguards designed to protect the Client Data from unauthorized access, transfer, use or disclosure. Such safeguards shall include measures designed to prevent access, use, modification or disclosure of Client Data by CSE personnel except (a) to provide the Services, (b) as authorized by this Agreement, including, without limitation, as required by applicable law, or ( c) as otherwise authorized by Client in writing. CSE shall also serve notice, and receive and process aiw responses, of any use or transfer of Client Data as required by the California Consumer Privacy Act.
3. IMPLEMENTATION FEE
The "Implementation Fee" the Client shall remit to CSE, to the account specified by CSE, in immediately available funds is 7% of the Client funds to be used for incentive payments that will be paid to public and private prope1ty owners and business owners that install electric vehicle chargers that meet specific standards in its service territory, all in connection with the incentive payment project to be developed and administered under this Agreement. Client funds are contingent upon annual funding identified, through the annual budget cycle to be approved by the Policy Board. The Client shall remit the Implementation Fee payment to CSE in accordance with the following annual schedule. 1
Invoicing procedure to be discussed.
4 SMRH:487865848.4
A.
i. 95% of the administration funds ($:XX) be paid to CSE three months before the time of Peninsula-Silicon Valley Incentive Project launch, expected July 2019. ii. 25% of the Entity's incentive funds on the first business day to occur on or after 35% of CEC Funding ($:XX) has been reserved by CALeVIP applicants that meet specific standards in its service territory, all in connection with the incentive payment project to be developed and administered under this Agreement. 111. 25% of the Entity's incentive funds on the first business day to occur on or after 70% of CEC Funding ($:XX) has been reserved by CALeVIP applicants that meet specific standards in its service territory, all in connection with the incentive payment project to be developed and administered under this Agreement. iv. 50% of the Entity's incentive funds on the first business day to occur on or after 100% of CEC Funding ($:XX) has been reserved by CALe VIP applicants that meet specific standards in its service territory, all in connection with the incentive payment project to be developed and administered under this Agreement. v. 5% of the administration funds ($:XX) on the first business day following program completion, to be defined as exhaustion of all CEC and Client Funding and delivery of the Final Report.
B. If Client fails to pay any such amounts when due, Client shall pay CSE an additional late fee of 1.5% (or the maximum amount permitted by law, ifless).
C. Taxes. The Implementation Fee and other amounts required to be paid by Client hereunder do not include, and Client agrees to pay, or reimburse CSE for all federal, state, local or other taxes, including, without limitation, sales, use, excise and property taxes, or amounts levied in lieu thereof, based on charges required under this Agreement; provided that Client shall have no responsibility for taxes imposed on CSE's net income by any taxing authority.
4. LIMITED WARRANTY. CSE warrants to Client that the Services will be performed in a professional and workmanlike manner and in accordance with the specifications provided in the Scope of Work in all material respects. In the event of a breach of the warranty set forth in this Section 4, CSE agrees, as CSE's sole and exclusive obligation and Client's sole and exclusive remedy, to use commercially reasonable efforts to re-perform the defective Services or to modify or correct the defective Deliverable, as applicable, at its sole costs and expense.
5. REPRESENTATIONS AND WARRANTIES.
A. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) it has the right, power and authority to enter into this Agreement and to perform the acts and grant such rights required of it under this Agreement, (b) the execution, delivery and performance of this Agreement by such Party has been duly authorized by all necessary organizational governance action and violates no applicable law to which it is subject; (c) the execution of this Agreement and performance of its obligations under this Agreement do 5 SMRH:487865848.4
not and shall violate no other agreement to which it is a party and ( d) this Agreement constitutes the legal, valid and binding obligation of such Party when executed and delivered by each Party.
B. Client Materials and Trademarks. Client represents and warrants that (a) it owns the Client Materials and Client Trademarks and/or controls all necessary rights and licenses required for CSE' s use of the Client Materials and Client Trademarks as set forth in this Agreement, (b) the Client Materials and Client Trademarks, and CSE's use thereof as contemplated hereunder, shall violate no applicable laws or misappropriate, violate or infringe upon the intellectual property, privacy, publicity or other proprietary rights of any third party, and ( c) the Client Materials shall not contain any content that is false, misleading, defamatory or obscene.
C. No Other Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES AND THE PARTIES HEREBY DISCLAIM ANY
REPRESENTATIONS, WARRANTIES OR GUARANTEES REGARDING ANY SERVICES (INCLUDING THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR
THAT ANY PARTICULAR RESULT WILL BE OBTAIN BY USE OF THE SERVICES),
DELIVERABLES, INFORMATION, CONTENT, PRODUCTS OR MATERIALS FURNISHED
HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND/OR FITNESS FOR AP ARTICULAR PURPOSE.
6. INDEMNIFICATION; LIMITATION OF LIABILITY.
A. Mutual Indemnification. Each Party (the "Indemnifying Party") agrees to indemnify, defend and hold the other Party (the "Indemnified Party"), harmless, at the Indemnifying Party's own cost and expense, from and against any and all liabilities, losses, damages, injuries, judgments, amounts paid in settlement, costs and expenses, including reasonable attorneys' fees and costs, arising out of or related to any third party claim resulting from any material breach of any of the Indemnifying Party's representations or warranties specifically set forth in Article 5 of this Agreement. The Indemnifying Party shall solely conduct the defense of any such claim and all negotiations for its settlement; provided that ( a) no settlement shall be agreed to without the Indemnified Party's prior written approval, and (b) the Indemnified Party may participate, at its own expense, in the defense and/or settlement of any such claim to protect its own interests.
B. Infringement Indemnification. CSE shall hold Client harmless from liability to third parties resulting from any claim that the Services infringe the United States patent or copyright of any third party, and will indemnify Client from any damages, reasonable attorney fees and costs finally awarded against Client as a result of such claim provided CSE is promptly . notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Any settlement of such claim must be preapproved in writing by CSE. The foregoing obligations do not apply regarding pmtions or components of the Service (i) not supplied by CSE, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by CSE, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified 6 SMRH:487865848.4
thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client's use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by CSE to be infringing, CSE may, at its option and expense (a) replace or modify the Service to be non-infringing; provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Service, or ( c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client's rights hereunder and provide Client a refund of any prepaid, unused fees for the applicable Services.
C. Limitations of Liability. EXCEPT IN CONNECTION WITH A PARTY'S INDEMNIFICATION OBLIGATIONS IN ARTICLE 6, OR A PARTY'S GROSS
NEGLIGENCE OR FRAUD, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, OR LOSS OF DATA,
IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF
THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT THE APPLICABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL CSE'S TOTAL, AGGREGATE LIABILITY ARISING OUT OF OR
RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, WARRANTY, TORT OR
OTHERWISE) EXCEED THE TOTAL FEES PAID BY CLIENT HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE INCIDENT GIVING RISE TO SUCH
CLAIM, EXCLUDING AMOUNTS PAID BY CLIENT TO CSE FOR PRODUCTS AND
SERVICES PROVIDED BY THIRD PARTY SERVICE PROVIDERS UNDER THE SCOPE OF
WORK FOR PRODUCTS, WHICH AMOUNTS ARE PAID OR PAYABLE BY CSE TO SUCH THIRD PARTY SERVICE PROVIDERS FOR SUCH PRODUCTS OR SERVICES.
7. CONFIDENTIAL INFORMATION.
A. Handling of Confidential Information. Subject to Section 9.1, each Party (each a "Receiving Party") agrees not to disclose to third parties Confidential Information received from the other Party ("Disclosing Party") and to not use such Confidential Information for its own benefit or the benefit of any other party, except in furtherance of the Peninsula-Silicon Valley Incentive Project. "Confidential Information" means information related to the business of the other Paity, including without limitation, the terms and conditions of this Agreement, all business plans, technical information or data, product ideas, methodologies, algorithms and analytical routines, software, and all personnel, customer, suppliers, contracts and sale, financial and other information, ideas, materials or other subject matter of such Party, whether disclosed orally, in writing or otherwise, that is provided by Disclosing Party to the Receiving Party clearly marked as confidential or that would reasonably be understood to be considered confidential under the circumstances.
B. Non-Disclosure. Neither Party shall disclose Confidential Information of the other Party to any person, firm or enterprise, unless authorized by the other Party in writing, except that each Party may disclose such Confidential Information (a) to its employees, agents, sub contractors, advisors and consultants with a legitimate need to know the same, (b) to CEC and Entity who may be under no obligation to maintain confidentiality of Confidential Information and 7 SMRH:487865848.4
( c) pursuant to applicable law, rule or regulation or compulsion of proper judicial or other legal process. Each Party also agrees not to publish or otherwise divulge such information, in whole or in part, in any manner or form, nor to authorize or permit others to do so, and shall take reasonable measures to restrict access to such information while in such Party's possession, to those employees needing such information to perform the work described herein, i.e., on a "need to know" basis. Each Party agrees to immediately notify the other Party in writing if such Party determines or has reason to suspect a breach of this requirement has occurred.
C. Grant Agreement. Nothing in this Article 7 shall prohibit CSE from complying with its obligations under the Grant Agreement.
D. Return or Destruction of Confidential Information. Upon termination or expiration of this Agreement, upon request of the Disclosing Party to such effect, the Receiving Party shall return to the Disclosing Party or confidentially destroy (and ce1iify such confidential destruction in a form reasonably acceptable to the Disclosing Party) all Confidential Information of such Disclosing Party, all documents and media containing such Confidential Information and any copies or extracts thereof. Upon written request by the Disclosing Party, the Receiving Party shall promptly cease, and shall cause its recipients to cease, use of such Confidential Information and any information or materials that contain, incorporate or are derived from such Confidential Information.
E. Exceptions. Information shall not be Confidential Information if it is: (w) already known free of restriction at the time it is obtained by the Receiving Party, (x) subsequently learned by the Receiving Party from a third party without breach of this Agreement, (y) is or becomes publicly available through no fault, default or breach of or by the Receiving Party or (z) is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.
F. Remedies. Each party ( as Receiving Party) acknowledges that the Disclosing Party considers its Confidential Information to contain trade secrets of the Disclosing Party and that any unauthorized use or disclosure of such information would cause the Disclosing Party irreparable harm for which remedies at law would be inadequate. Accordingly, each party (as Receiving Party) agrees that the Disclosing Party will be entitled, in addition to any other remedies available to it at law or in equity, to seek the issuance of injunctive relief, without bond, enjoining any breach or threatened breach of the Receiving Party's obligations hereunder regarding the Confidential Information of the Disclosing Party, and such further relief as any court of competent jurisdiction may deem just and proper. •
8. TERM; TERMINATION RIGHTS.
A. Term. This Agreement shall commence as of the Effective Date and shall continue until all of the Administrative Fee has been paid in full and all remaining Client Funds have been utilized towards funding approved incentive payment applications, unless terminated earlier in accordance with the provisions set forth herein ("Term").
B. Termination for Material Breach. If any material breach of this Agreement by a Party occurs ( excluding a failure to pay), the other Party may terminate this Agreement by giving 8 SMRH:487865848.4
90 days' written notice thereof;provided that such termination shall not be effective if the breach of which the breaching Party has been notified has been cured prior to the expiration of said 90 days.
C. Termination for Breach of Payment Obligations. Notwithstanding anything to the contrary in this Agreement, if Client fails to pay the Implementation Fee ( or portion thereof) when due, CSE may terminate this Agreement by giving ten days' written notice of such non payment; provided that such termination shall not be effective if Client remits all outstanding amounts of the Implementation Fee and accrued late charges to CSE prior to the expiration of said ten-day period.
D. Termination for Insolvency. Either Party may immediately terminate this Agreement upon written notice if the other Party ( a) is adjudicated bankrupt or becomes insolvent, winds up or liquidates its business voluntarily or otherwise, (b) commences a voluntary case under any state or federal bankruptcy laws (as now or hereafter in effect), or (c) acquiesces to, or fails to have dismissed, within 30 days, any petition filed against it in any involuntary case under such bankruptcy laws.
E. Effect of Termination; Survival. If this Agreement terminates or expires, Client shall pay CSE for all Services performed and expenses incurred up through the termination or expiration date. Upon the expiration or termination of this Agreement, except for Sections 1.B, l.C, and l.D, and Articles 3, 6, 7, 9, and 10, which shall survive any termination or expiration of this Agreement, this Agreement shall become wholly void and of no further force and effect, and following such expiration or termination no Party shall have any liability under this Agreement to the other Party, except that each Party shall remain liable for any breaches of this Agreement that occurred prior to its expiration or termination.
9. GOVERNING LAW; DISPUTE RESOLUTION.
A. Governing Law. This Agreement shall be construed and enforced under the substantive laws of the State of California.
B. Disputes. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, the Parties shall use their best efforts to settle such dispute, claim, question, or disagreement. To this effect, the Parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties. If the Parties do not reach such solution within sixty (60) days, upon notice by either Party to the other, such dispute, claim, question, or disagreement shall be submitted to binding arbitration under Section 9.C below
C. Binding Arbitration
SMRH:487865848.4
i. Any dispute, claim, question, or disagreement that the Parties cannot resolve under Section 9 .B above shall be finally settled by arbitration administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules, provided that a demand for arbitration shall not be made after the date when institution of a legal or equitable proceeding based upon such claim, 9 SMRH:487865848.4
dispute or other matter in question would be barred by the applicable statute of limitations.
ii. The arbitration shall be conducted by a single arbitrator with experience in commercial matters. The arbitrator shall be chosen by agreement of the Parties within five (5) days after the request for arbitration is received pursuant to the above. If the Parties cannot agree on an arbitrator within such time, then the arbitrator shall-be chosen under the AAA procedures from its panel of arbitrators with high technology commercial experience. Notwithstanding the process for choosing the arbitrator, an arbitrator shall be chosen within ten (10) days after the request for arbitration is received.
111. The arbitration hearing shall be held in San Diego County, California, or at such other place that mutually agreed by the Parties and the arbitrator. The place of the arbitration hearing will be established within thirty (30) days from the request/demand for arbitration. The arbitration shall commence within twenty (20) days from the date the place of arbitration hearing is established, and the arbitration shall be concluded in not more than three (3) days unless otherwise ordered by the arbitrator.
iv. The arbitrator shall have no authority to issue an award contrary to the express terms of this Agreement or the laws of the State of California or applicable US Federal Law, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.
v. The Parties shall exchange all documents they intend to submit to the arbitrator for consideration and shall be entitled to conduct a reasonable number of witness depositions before the final arbitration hearing. The award on the hearing shall be made within fourteen (14) days after the close of the submission of evidence. An award rendered by the arbitrator shall be final and binding on the Parties to such proceeding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall have the authority to determine issues of arbitrability and to award compensatory damages, but shall not have authority to award punitive or exemplary damages. vi. Either Party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either Party also may, without waiving any other remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief necessary to protect the rights or property of that Party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the controversy).
The arbitrators shall award to the prevailing Party, if any, as determined by the arbitrator, all of its costs and fees. As used in this Section, "costs and fees" mean all reasonable pre-award expenses of the arbitration, including the arbitrators' fees, administrative fees of the arbitration, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys' fees. 10 10. GENERAL.
A. Assignment. Neither Party may assign or transfer this Agreement, or any rights or obligations hereunder, to any other Party without the other Party's prior written consent and any attempt to do so shall be void ab initio; provided that without the consent of the other Party, a Party may make an assignment of this Agreement through merger, consolidation or sale of all or substantially all of such Party's assets.
B. Delegation. Notwithstanding Section 10.A above, Client agrees that CSE may assign, subcontract or otherwise delegate any of its functions or duties to be performed hereunder to another qualified person or Entity,provided that such assignment, subcontract or delegation will not relieve CSE of its obligations under this Agreement. At Client's request CSE will provide notice of any such assignment, subcontract or other delegation.
C. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and delivered personally, mailed via an nationally recognized overnight courier or sent via email correspondence ( with confirmation of receipt), to the applicable Party at the addresses set forth below, unless, by notice, a Party changes or supplements the addressee and addresses for giving notice. All notices shall be deemed given on the date personally delivered, when placed in the mail as specified or upon confirmation of email receipt.
Ifto CSE:
Center for Sustainable Energy
9325 Sky Park Ct, Ste. 100
San Diego, CA 92123-4380
Attention: [ notice officer]
E-mail: [ notice officer]
With a copy to (which shall not constitute notice):
[ ]
If to Client:
City of Santa Clara
1500 Warburton Ave.
Santa Clara, CA 95050
Attn: Electric Department
Email: -------
D. Force Majeure. Notwithstanding anything to the contrary herein, except regarding a Party's payment obligations, neither Party shall be in breach of this Agreement or incur any liability to the other in connection with any failure to perform any of its obligations hereunder to the extent that performance of such obligations is prevented or materially hindered by reason of strikes, lockouts, restrictive governmental or judicial orders or decrees, riots, insurrection, war, pandemics, acts of God or any other reason or event reasonably beyond such Party's control. 11 SMRH:487865848.4
E. Miscellaneous. If any part of this Agreement is held invalid, illegal or unenforceable, the remaining provisions shall be unimpaired. No amendment, modification, course of conduct or supplement to this Agreement shall be binding upon the Parties unless made in writing and duly signed by both Parties. No waiver, failure or delay in enforcing any provision, exercising any option or requiring any performance may be construed to be a continuing waiver or a waiver of that or any other provision in the future. The terms "include," "includes," and "including," whether or not capitalized, mean "include, but are not limited to," "includes, but is not limited to," and "including, but not limited to," respectively and are to be construed as inclusive, not exclusive. Captions of the Aiiicles, Sections and sub-sections of this Agreement are intended solely for convenience and no provision is to be construed by reference to the caption of any Article, Section, or sub-section. Except as expressly stated herein, the Parties' respective rights and remedies as stated herein are cumulative and not to the exclusion of each other or of any other rights or remedies a Party may have hereunder or at law or in equity; a Party may decline to exercise any one or more of its rights and remedies as it may deem fit, without jeopardizing any other rights and remedies it may have hereunder or at law or in equity. This Agreement does not create, and shall not be construed as creating, any rights enforceable by any person or Entity not a patiy to this Agreement.
F. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but which taken together shall constitute one and the same instrument.
A facsimile or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile or similar electronic transmission device under which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes.
G. Entire Agreement. This Agreement (which includes Appendix I) and any other exhibits or schedules attached hereto, constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
CENTER FOR SUSTAINABLE
ENERGY
By: _____________ _
Name: ____________ _
[Type or Print]
Title: --------------
SMRH:487865848.4
CITY OF SANTA CLARA
Name: Deanna J. Santana
Title: City Manager
12 January 30, 2020
SCOPE OF WORK
1. TASK 1: INCENTIVE PROJECT DESIGN
1.1. The goal of this task is to work with Silicon Valley Power to design a targeted incentive Project in Santa Clara County.
1.2. Center for Sustainable Energy incentive design work will consist of:
(a) Research and analysis of EV charger incentive Project opportunities along the following parameters:
i. Market opportunities to incentivize the deployment of EV chargers; ii. Expected or potential demand for EV chargers;
iii. Currently available EV charger incentives relevant to proposed project; iv. Attainable policy objectives (e.g., disadvantaged communities, low income/ priority populations);
v. Budget constraints and opportunities;
vi. Funding source requirements;
vii. Definition of applicant eligible for Incentive Payments funded by SILICON VALLEY POWER; and
v111. Other relevant project design variables that are developed in the course of the design sessions and included by amendment in this section 1.2(a). (b) In consultation with the Silicon Valley Power, create a targeted incentive design covering:
i. Geographic region targeted by the incentives;
ii. Eligible sites definition (e.g., destination, workplace, multi-unit dwellings, corridors, disadvantaged communities, etc.); iii. Eligible applicant definition;
iv. Minimum technical requirements for eligible EV charging equipment; v. Amount of incentive by type of EV charger;
vi. Funding source(s) utilized for each type of incentive; vii. Total amount of incentive funding allocated to the project; 4/1/2020 1 Contract Number: ------
January 30, 2020
viii. Incentive structure (e.g., Incentive Payments system disbursing incentives after chargers are installed, or other appropriate incentive); ix. Peninsula-Silicon Valley Incentive Project goals;
X.
administration schedule;
Anticipated Peninsula-Silicon Valley Incentive Project roll-out and xi. Definition of charger data to be collected and methodology for collecting the data;
xii. Application support services consisting of CONTRACTOR staffed help desk to respond via phone and email to applicant eligibility and application process questions; xiii. Application documentation requirements; and
xiv. Internal processes and controls, processes and procedures to do the following: receive, handle, and account for and manage incentive funding, including funding from multiple sources; receive and evaluate incentive requests; effect payment for valid Incentive Payments requests; and provide monthly fiscal accounting and reporting to Silicon Valley Power.
1.3. Deliverables:
(a) Final Incentive Design Package to capture the results of work specified in Section
1.2. (b) Project Implementation Manual, consisting of
i. Eligibility requirements
(1) Equipment categories
(2) Equipment eligibility criteria
(3) Eligible costs
(4) Eligible sites
(5) Incentive Payments amounts
(6) Maximum Incentive Payments limits per entity
ii. Applicant duties
(1) Applicant requirements
(2) Research participation
(3) Application process
4/1/2020 2 Contract Number: ------
January 30, 2020
(4) Installation and operation requirements
(5) Installation data
(6) Usage data
2. TASK 2: DEVELOPMENT AND CONFIGURATION OF INCENTIVE PROCESSING WEBSITE
2.1. The goal of this task is to design, develop, configure and launch a robust, user-friendly project website.
2.2. The Peninsula-Silicon Valley Incentive Project Landing Page will include:
(a) A funding visualization, including the amount of funding available and remaining amounts for each technology, within each County.
(b) Instructions, forms and FAQs to parties interested in participating in the South Bay/ Santa Clara South Bay/ Santa Clara County Incentive Project. (c) Technology requirements, funding amounts for each specific technology and description of eligible locations.
(d) Description of eligible costs under the Peninsula-Silicon Valley Incentive Project. (e) Application process description and diagram.
(f) Attribution of the Peninsula-Silicon Valley Incentive Project to Silicon Valley Power and the California Energy Commission.
2.3. The online application will include:
(a) The ability for interested parties to indicate if they are customers of Silicon Valley Power.
(b) The ability for interested parties to submit required documents to participate in Peninsula-Silicon Valley Incentive Project, including application forms, payment requests, and appropriate documentation.
2.4. The user and application dashboards will include:
(a) The capability for incentive participants to access, in real time, the status of incentive applications and payments.
(b) The capability for incentive participants to designate collaborators on their application for purposes of authorizing others to track and submit information on their behalf.
2.5. Deliverables:
(a) Peninsula-Silicon Valley Incentive Project Landing Page design and content 4/1/2020 3 Contract Number: ------
January 30, 2020
(b) Online application form and process
(c) User and application dashboards
(d) On going system maintenance and minor adjustments
3. TASK 3: EV CHARGER INCENTIVE PROJECT MARKETING, EDUCATION, OUTREACH & TECHNICAL
ASSISTANCE
3.1. The goal of this task is to market the Peninsula-Silicon Valley Incentive Project to relevant target audiences, and to provide basic support to applicants to file applications and pursue their EV charging installation projects. To accomplish this CONTRACTOR will:
(a) Develop an Integrated Communications Plan for the Peninsula-Silicon Valley Incentive Project. The plan will identify the goals of the marketing and outreach effort, target audience(s), methods/tactics/channels to be used, and will include a schedule to coordinate the marketing activities. (b) Develop marketing and outreach materials to reflect the communication plan developed in 3.l(a). Marketing and outreach material development will be coordinated with Silicon Valley Power
(c) Develop a marketing budget and technical assistance budget (which are included in the seven (7) percent administration cost) covering both labor and other direct costs (e.g. digital ads, travel, etc.) necessary for executing on the communications plan developed in Task 3.l(a) and providing Silicon Valley Power specified technical assistance.
3.2. The goal of this task is to provide technical assistance to South Bay/ Santa Clara County Incentive Project applicants in South Bay/ Santa Clara counties. To accomplish this CONTRACTOR will:
(a) Develop FAQs and other similar EV charging information resources for applicant use in pursuing EV charging installation projects.
(b) Develop curated 'EV charging 101' resources on:
(1) EV charger capabilities;
(2) EV charger network characteristics and capabilities; (3) Ballpark EV charger load considerations;
(4) Typical EV charger installation requirements and best practices; (5) Typical utility connection requirements; and
(6) Similar common EV charger basic information.
(c) Provide email and phone support of basic inquiries that applicants have on EV chargers and EV charging installation.
4/1/2020 4 Contract Number: _____ _
January 30, 2020
(d) Availability of CONTRACTOR staff typically providing EV Expert services to field incoming inquiries (e.g. desk top site assessments, charger layouts, equipment selection, etc.), as mutually· agreed to with Silicon Valley Power.
(e) Provide log of basic EV charging installation project inquiries.
3.3. Deliverables:
(a) Integrated Communications Plan (updated annually)
(b) Marketing/ Outreach materials
(c) Marketing budget
(d) On going marketing, education and outreach activities (e) Technical assistance budget
(f) FAQs
(g) EV charging 101 resources
(h) Ongoing technical assistance, including Tracking Log
4. TASK 4: EV CHARGER INCENTIVE PROJECT ADMINISTRATION
4.1. The goal of this task is to administer the Peninsula-Silicon Valley Incentive Project as defined in Tasks 1-3. Center for Sustainable Energy will:
(a) Receive, evaluate, and process Incentive Payments requests. i. For all Incentive Payments applicants, the process will include:
(1) Requirement that applicant indicate if they have filed for bankruptcy within the last five years and, if so, to provide relevant details certifying under penalty of perjury that the information provided is accurate and complete. (a) If bankruptcy is identified and has occurred within 5 years of the date of the application, CONTRACTOR shall inform Silicon Valley Power of any such applications and shall refrain from issuance any Incentive Payments unless and until such payment is authorized in writing by Silicon Valley Power.
(2) Requirement that applicant indicate if they have any threatened or pending legal actions by or against them, loan defaults, or unpaid judgments against them. (a) If any threatened or pending legal actions, loan
defaults, or unpaid judgements are identified, CONTRACTOR shall inform Silicon Valley Power of any such applications and shall refrain from issuance any Incentive Payments unless and until such payment is authorized in writing by Silicon Valley Power.
4/1/2020 5 Contract Number: _____ _
January 30, 2020
(3) Tracking and timely reporting in writing to Silicon Valley Power of any:
(a) complaints about the Peninsula-Silicon Valley Incentive Project
(b) Problematic issues arising in the operation of the South Bay/ Santa Clara County Incentive Project
(c) knowledge of any threatened or actual legal actions involving any Peninsula-Silicon Valley Incentive Project or incentive applicants, applications, payments (e.g., alleged false information provided in an incentive application or threatened or actual lawsuits over the South Bay/ Santa Clara County Incentive Project).
(d) As needed, CONTRACTOR shall provide Silicon Valley
Power personnel or other personnel as directed by Silicon Valley Power with all project documents, files and records requested in support of the Commission investigating and resolving any such issues. (4) Prohibition against applicant submission of materials marked as confidential without prior written approval and instructions from the Silicon Valley Power. Silicon Valley Power is a public agency, and as such is subject to the Public Records Act. CONTRACTOR shall not agree to keep any incentive application information confidential. (5) Fair and impartial Project administration, including provision of information in a public manner that avoids giving advantage to any applicant or group of applicants. ii. For each incentive applicant that is a business, prior to the issuance of an Incentive Payments the evaluation will include:
(1) confirmation that the applicant is currently licensed to do business in California;
(2) confirmation of "active" status for businesses required to register with the California Secretary of State; and
(3} coordination with Silicon Valley Power to validate each installation site as a Silicon Valley Power customer.
4.2. Deliverables: Processed applications.
5. TASK 5- DATA COLLECTION
5.1. The goal of this task is to collect and share data on the project applications, implementation and charger utilization. CONTRACTOR will:
(a} Collect, analyze and compile data on the Peninsula-Silicon Valley Incentive Project, which may include without limitation:
(1) Type of organizations receiving Incentive Payments; 4/1/2020 6 Contract Number: ------
January 30, 2020
(2) Timelines to complete each Incentive Payments project; (3) Time frames associated with EV charger installations; (4) EV charger utilization.
(b) Share collected data with SVP. Data will be shared in both aggregate and down to the site and application level.
5.2. Deliverables:
(a) Data· Collection Reports covering all Peninsula-Silicon Valley Incentive Project applications in Silicon Valley Power territory {Le. aggregate and site/application specific data)
6. TASK 6: ADMINISTRATIVE
6.1. Monthly progress reports The goal of this task is to provide the reporting that will allow monthly verification that satisfactory and continued progress is made towards achieving the objectives of this Agreement on time and within budget.
6.2. Deliverables: The monthly reporting will consist of:
(a) Summary of activity during the reporting period for the purpose of determining whether invoices are consistent with the work performed (b) Summary of activities planned for the next reporting period. (c) KPI reports for marketing and technical assistance activities (Task 3) (d) Complaints, programmatic issues and actual or threatened litigation regarding applicants or the Peninsula-Silicon Valley Incentive Project (as identified in Task 4.1(a)(i){3){a)).
6.3. Final Report
(a) CONTRACTOR will prepare a final report for Silicon Valley Power. The document will be of a professional standard appropriate for review by elected officials, Silicon Valley Power board members and members of the public. The final report will be submitted no later than two months after Peninsula-Silicon Valley Incentive Project funds have been exhausted and applicants that have received incentives have completed installation.
(b) Deliverable. The Final Report shall include:
(1) Data about the EV chargers and applicants participating in the project during implementation of the Peninsula-Silicon Valley Incentive Project. (2) Survey of a reasonable percentage of site hosts to assess their satisfaction with the project and recommendations for improvement. {3) Calculations of GHG emission reductions and other
environmental benefits from installation and usage of EV charging infrastructure. 4/1/2020 7 Contract Number: ------
January 30, 2020
(4) Recommendations for future project including operational improvements and considerations associated with the changing EV market. (5) Other elements as mutually determined and codified by an amendment revising this Section 6.3 of the Scope of Work.
6.4. Invoicing
(a) CONTRACTOR will periodically prepare an invoice for the advancement of funds designated for the Incentive Payments, based on the projected need. CONTRACTOR shall keep the funds in an interest-bearing account. The interest earned shall only be used for this Agreement upon approval of the Silicon Valley Power.
7. PROJECT REPRESENTATIVES
7.1. CONTRACTOR's Project Representative shall be Andy Hoskinson.
7.2. Silicon Valley Power's Project Representative shall be ______ _
8. ACCOUNT AND FUNDS MANAGEMENT
8.1. CONTRACTOR shall deposit and maintain separate accounts for CALIFORNIA ENERGY COMMISSION Funds (defined in recitals) available for funding Incentive Paymentss ("CALIFORNIA ENERGY COMMISSION Account") and Silicon Valley Power Funds (defined below) available for funding Incentive Payments (the "Silicon Valley Power Account"), and the CALIFORNIA ENERGY COMMISSION Account and Silicon Valley Power Account are collectively, "Incentive Funds Accounts".
8.2. Except for the Services Fee, CONTRACTOR shall utilize the funds in the Silicon Valley Power Account ("Silicon Valley Power Funds") solely for the payment of eligible Incentive Payments claims submitted by Silicon Valley Power customers and in accordance with other requirements applicable to the Peninsula-Silicon Valley Incentive Project. The requirements for a person or business to be deemed to be a Silicon Valley Power customer shall be set forth in the Project design that will be established pursuant to Section 1.2.(a)(vii) of the Scope of Work.
8.3. CONTRACTOR shall inform Silicon Valley Power within five business days after the end of each calendar month the amount of Funds in the Silicon Valley Power Account and the CALIFORNIA ENERGY COMMISSION Account.
8.4. Onan as needed basis, CONTRACTOR shall provide to Silicon Valley Power a written request for funding from Client Funds (a "Funding Request") to the Silicon Valley Power Account, and Silicon Valley Powershall endeavor to promptly, but no later than 30 days after receipt of a Funding Request, send funds to the Silicon Valley Power Account in the amount requested in the Funding Request; provided that Silicon Valley Power is under no obligation to fund amounts that would result in funding to the Silicon Valley Power Account an aggregate amount greater than the agreed to monies intended to be used to fund Incentive Paymentss.
8.5. If an Incentive Payments applicant meets the eligibility requirements of the CEC's eligibility requirements, but not the eligibility requirements of the Peninsula-Silicon Valley Incentive 4/1/2020 8 Contract Number: _____ _
January 30, 2020
Project, CONTRACTOR shall draw from the CEC Account to fund the Incentive Payments owing to such Incentive Payments applicant.
4/1/2020 9 Contract Number: _____ _
EXHIBIT B
PAYMENT TERMS
January 30, 2020
Payment of Services Fee. The Services Fee shall be $280,000 in aggregate and shall be paid by Silicon Valley Power as follows:
1. $15,170 license fee for the incremental increase in the number of applicants accessing the system based on Silicon Valley Power incentive funding levels.
2. $20,000 ofthe Services Fee shall be paid to CONTRACTOR for the delivery (including Silicon Valley Power approval) of Task 1 and Task 2 deliverables. Payment will be made within 30 days upon reciept of CONTRACTOR invoice.
3. $12,540 of the Services Fee shall paid to CONTRACTOR for the delivery (including Silicon Valley Power approval) of Task 3 deliverables of lntergrated Communications Plan, ME&O budget, EV charging 101 resources, technical assistance and initial marketing materials. Payment will be made within 30 days upon receipt of CONTRACTOR invoice.
4. $11,145 of the Services Fee shall be paid to the CONTRACTOR on the first business day 3 months after the incentive project opens to the public for rebate processing, marketing activities, technical assistance, ongoing system maintenance and reporting services of Tasks 2, 3 and 4 through 6 in Silicon Valley Power territory.
5. $11,145 of the Services Fee shall be paid to the CONTRACTOR on the first business day 9 months after the incentive project opens to the public for rebate processing, marketing activities, technical assistance, ongoing system maintenance and reporting services of Tasks 2, 3 and 4 through 6 in Silicon Valley Power territory.
6. $17,500 of the Services Fee shall be paid to the CONTRACTOR for rebate processing, marketing activities, technical assistance, ongoing system maintenance and reporting services of Tasks 2, 3 and 4 through 6 in Silicon Valley Power territory. Payments shall be on the following schedule:
4/1/2020
a. On the first business day 15 months after the incentive project opens to the public. b. On the first business day 18 months after the incentive project opens to the public. c. On the first business day 21 months after the incentive project opens to the public. d. On the first business day 24 months after the incentive project opens to the public. e. On the first business day 27 months after the incentive project opens to the public. f. On the first business day 30 months after the incentive project opens to the public. g. On the first business day 33 months after the incentive project opens to the public. h. On the first business day 36 months after the incentive project opens to the public. i. On the first business day 39 months after the incentive project opens to the public. 10 Contract Number: ------
January 30, 2020
j. On the first business day 42 months after the incentive project opens to the public. k. On the first business day 45 months after the incentive project opens to the public.
7. $12,500 of the Services Fee shall be paid to the CONTRACTOR on the first business day 48 months after the incentive project opens to the public for rebate processing, marketing activities, technical assistance, ongoing system maintenance and reporting services of Tasks 2, 3 and 4 through 6 in Silicon Valley Power territory.
8. $5,000 of the Services Fee shall be paid to CONTRACTOR for the delivery (including Silicon Valley Power approval) of the Final Report. Payment will be made within 30 days upon receipt of CONTRACTOR invoice.
At any time that all incentive project funding (Energy Commission Funding of $XX,XXX,XXX and Silicon Valley Power Funding of $4,000,000) has been paid out for completed installations the balance of Services fee (total Services fee is $280,000), minus $5,000, shall be paid within 30 days upon receipt of CONTRACTOR invoice.
4/1/2020 11 Contract Number: ___ _