ATTACHMENT #1
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EVGATEWAY , INC. AND CITY OF THOUSAND OAKS
AGREEMENT – FLEET CHARGERS
This Agreement (the “Agreement”) is entered into as of November 4, 2025 (hereafter “Effective Date”), by and between the CITY OF THOUSAND OAKS (hereafter “CITY”), a municipal corporation with offices at 2100 Thousand Oaks Blvd., Thousand Oaks, CA 91362 and EVGATEWAY, INC. (hereafter “EvGateway”), a California corporation with offices at 19681 Da Vinci Foothill Ranch CA 92610. CITY and EvGateway are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and conditions set forth below, the Parties hereby agree as follows:
1. DEFINITIONS
1.1. “CITY” means the City of Thousand Oaks, CA.
1.2. “Intellectual Property Rights” mean any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (a) rights associated with works of authorship throughout the universe, including, without limitation, all exclusive exploitation rights, copyrights, neighboring rights, moral rights, and mask-works, (b) trademark, trade dress, and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms, and other industrial property rights, (e) all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force throughout the universe.
For purposes of this Agreement, the Intellectual Property Rights of or belonging to EvGateway shall include the Intellectual Property Rights of its licensors, customers, drivers, service providers, business partners, and any and all information directly inputted by drivers while utilizing EvGateway software.
1.3. “Products and Services” means the Products and Services set forth in Exhibit A, Installation, Operation and Maintenance Scope of Work, and Exhibit B, Site Location, Equipment and Fees to be provided by EvGateway to CITY.
1.4. “Service Level Agreement” or “SLA” means the service level agreement attached as Exhibit C to this Agreement.
1.5. “Statement of Work” (SOW) means the description of the Products and Services, SLA and other terms related to the provision of the Products and Services that are set forth in Exhibits A, B, and C attached hereto.
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2. PRODUCTS AND SERVICES
2.1. Scope. CITY is purchasing the Products and Services to be provided by EvGateway as described in the SOW attached hereto, and any future SOW(s) as may be included through amendment of this Agreement.
2.2. EvGateway Products and Services; Implementation. Unless otherwise specifically agreed by the Parties, upon receipt and acceptance by EvGateway of an order pursuant to the terms of this Agreement, EvGateway shall provide Products and Services pursuant to the terms of this Agreement and the SOW.
EvGateway and CITY shall roll out and implement the Products and Services in accordance with the implementation plan set forth in Exhibit B.
2.3. Improvements. EvGateway may from time to time replace its existing Products and Services with new Products and Services. EvGateway will not discontinue, replace or reduce the existing Products and Services provided to CITY without the prior written consent of the CITY, except as otherwise permitted in this Agreement. If the replacements offered are not of equal or greater value than those currently used by the CITY, the CITY may be entitled to a proration of fees.
2.4. Statement of Work. EvGateway shall be responsible for providing the Products and Services in accordance with the terms of the SOW. Products and Services provided by EvGateway under the SOW will be governed solely by the terms and conditions contained in this Agreement and the SOW, attached hereto.
2.5. Limitations of Responsibility. EVGATEWAY shall not be responsible for, and makes no representation or warranty with respect to the following: (i) Specific location(s) or number of charging stations now, or in the future, owned, operated and/or installed by persons other than CITY or the total number of charging stations that comprise the EVGATEWAY Charging Network; (ii) Continuous availability of electrical service to any Charging Station; (iii) Continuous availability of any wireless or cellular communications network or Internet service provider network necessary for the continued operation by EVGATEWAY of the EVGATEWAY Charging Network; (iv) Availability of or interruption of the EVGATEWAY Charging Network attributable to unauthorized intrusions; and/or (v) Charging Stations that are not registered with and activated on the EVGATEWAY Charging Network.
3. PRICE AND PAYMENT
3.1. Invoicing. EvGateway shall invoice CITY for the Products and Services, shown in Exhibit B, as follows: (a) Initial fees and first twelve (12) months; Initial One Time Fees, consisting of Initial Configuration and Set-up Products and Services, and first 12 months fees shall be paid by CITY upon EvGateway’s installation and commissioning of equipment; (b) Each invoice for annual fees submitted by EvGateway shall be paid by CITY by check or wire transfer within 60 days following CITY’s receipt of such invoice from EvGateway.
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3.2 Prices. The prices listed in Exhibit B shall be valid for the entire 5-year term of the Agreement.
3.3 Taxes. All amounts payable by CITY to EvGateway under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. CITY will pay all taxes and duties assessed in connection with CITY’s purchase of the Products and Services under this Agreement, except for taxes payable on EvGateway’s net income.
3.4 Limitations of Responsibility on Information. EvGateway has integration with a third-party PCI-DSS compliant payment processor such as, but not limited to PayPal, Stripe, and Authorize.net; for all payments made at charging stations, and/or on EvGateway mobile application. Any transaction occurring at the charging stations using credit card readers are not handled by EvGateway network.
EvGateway shall not be responsible for, and makes no representation or warranty with respect to, any payments associated with using the third-party payment gateways. EvGateway shall not be responsible for, and makes no representation or warranty in regard to, the security of any information provided to the third-party payment gateway.
4. LICENSE AND OWNERSHIP
4.1. Intellectual Property. Except for the rights expressly granted herein, this Agreement does not transfer from CITY to EvGateway any CITY Intellectual Property Rights, and all right, title, and interest in and to CITY Intellectual Property Rights shall remain solely with CITY. In addition, except for the rights expressly granted herein, this Agreement does not transfer from EvGateway to CITY any EvGateway Intellectual Property Rights, and all right, title and interest in and to the EvGateway Intellectual Property Rights shall remain solely with EvGateway. CITY agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other Party. Neither Party may alter or remove from any applications or systems software or any associated documentation provided by the other Party any proprietary, copyright, trademark or trade secret legend.
4.2. Trademarks.
4.2.1. CITY Marks. Subject to the terms and conditions of this Agreement, CITY grants EvGateway a non-exclusive, non-transferable license for the term of this Agreement to use the name, trademarks and logos of CITY (the “CITY Marks”) in EvGateway’s marketing of the Products and Services, provided that CITY MARKS are not to be used in a way so as to suggest an endorsement of EVGateway or any products or services. Such use must refer to the CITY Marks as being owned by CITY. Nothing in this Agreement grants EvGateway ownership or any rights in or to use the CITY Marks, except in accordance with this license.
The rights granted to EvGateway in this license will terminate upon any termination or expiration of this Agreement. Upon such termination or expiration, EvGateway will no longer make any use of any CITY Marks. EvGateway agrees that any and
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all goodwill arising from its use of the CITY Marks shall inure solely to the benefit of CITY. Upon request by CITY, EvGateway will provide CITY with representative samples and documentation of all advertising, marketing, promotional, sales, and packaging materials using the CITY Marks, so that CITY can verify that adequate quality standards are being maintained. CITY will have the right to disapprove any use by EvGateway of the CITY Marks that does not meet CITY’s reasonable standards of quality. In addition to the requirements set forth in this provision, CITY may also provide EvGateway, from time to time, with additional reasonable trademark usage guidelines, to which EvGateway agrees to adhere.
4.2.2. EvGateway Marks. Subject to the terms and conditions of this Agreement, EvGateway grants CITY a non-exclusive, non-transferable license for the term of this Agreement to use the name, trademarks and logos of EvGateway (the “EvGateway Marks”) in CITY’s marketing of the Products and Services. Such use must reference the EvGateway Marks as being owned by EvGateway.
Nothing in this Agreement grants CITY ownership or any rights in or to use the EvGateway Marks, except in accordance with this license. The rights granted to CITY in this license will terminate upon any termination or expiration of this Agreement. Upon such termination or expiration, CITY will no longer make any use of any EvGateway Marks. CITY agrees that any and all goodwill arising from its use of the EvGateway Marks shall inure solely to the benefit of EvGateway.
Upon request by EvGateway, CITY will provide EvGateway with representative samples and documentation of all Products and Services resold by CITY using the EvGateway Marks and all advertising, marketing, promotional, sales and packaging materials using the EvGateway Marks, so that EvGateway can verify that adequate quality standards are being maintained. EvGateway will have the right to disapprove of any use by CITY of the EvGateway Marks that does not meet EvGateway’s reasonable standards of quality. In addition to the requirements set forth in this provision, EvGateway may also provide CITY, from time to time, with additional reasonable trademark usage guidelines, to which CITY agrees to adhere.
5. WARRANTIES
Each Party represents and warrants that it has full power and authority to enter into and perform this Agreement and that the person signing this Agreement on its behalf has been properly authorized to enter this Agreement. EvGateway warrants that (i) the performance of its obligations and delivery of the Products and Services to CITY will not violate any applicable laws or regulations; (ii) it has sufficient right and authority to grant to CITY all rights that EvGateway grants under this Agreement; (iii) it will perform the Products and Services in a professional and workmanlike manner consistent with industry standards reasonably applicable to the performance thereof; and (iv) it will comply at all times with all applicable laws and regulations related to the provision of the Products and Services. CITY warrants that (i) the performance of its obligations under this Agreement will not violate any applicable laws or regulations, (ii) it has sufficient right and authority to grant to EvGateway all rights that CITY grants under this Agreement; (iii) it will fully and punctually perform all of its obligations under the Statement of Work; and
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(iv) it will comply at all times with all applicable laws related to this Agreement and Statements of Work.
EXCEPT FOR ANY WARRANTY SPECIFICALLY IDENTIFIED AS AN EXPRESS
WARRANTY IN THIS AGREEMENT, EVGATEWAY MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, WITH RESPECT TO
ANY PRODUCTS AND SERVICES, PRODUCTS, TECHNOLOGY,
INTELLECTUAL PROPERTY, MATERIALS OR INFORMATION PROVIDED,
WHETHER ARISING BY COURSE OF DEALING OR PERFORMANCE,
CUSTOM, USAGE IN THE TRADE OR PROFESSION OR OTHERWISE,
INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE EXPRESSLY
DISCLAIMED. EXCEPT FOR ANY WARRANTY SPECIFICALLY IDENTIFIED AS
AN EXPRESS WARRANTY, CITY ACKNOWLEDGES AND AGREES THAT IT
HAS RELIED ON NO OTHER REPRESENTATIONS OR WARRANTIES AND
THAT NO OTHER REPRESENTATIONS OR WARRANTIES HAVE FORMED THE BASIS OF ITS BARGAIN HEREUNDER.
5. INDEMNIFICATION
6.1 Indemnity: Hold Harmless for EvGateway's Damages.
(a) EvGateway holds CITY, its elected officials, officers, agents, employees and volunteers, harmless from all of EvGateway's claims, demands, lawsuits, judgments, damages, losses, injuries or liability to EvGateway, to EvGateway's employees, to EvGateway’s contractors or subcontractors, or to the owners of EvGateway's firm, which damages, losses, injuries or liability occur during the work or services required under this Agreement, or performance of any activity or work required under this Agreement, unless damage was directly caused due to active negligence or willful misconduct of CITY.
(b) Defense and Indemnity of Third-Party Claims/Liability. EvGateway shall indemnify, defend, and hold harmless CITY, its elected officials, officers, agents, employees and volunteers from and against all liability including, but not limited to, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with EvGateway’s negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in the Agreement, except such loss or damage which is caused by the negligence or willful misconduct of CITY. EvGateway shall promptly pay CITY any final judgment rendered against CITY (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of EvGateway’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and
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inclusive as is permitted by the law of the State of California and will survive termination or expiration of this Agreement.
EVGateway’s obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of CITY under any provision of this Agreement, EvGateway shall not be required to indemnify and hold harmless CITY for liability attributable to the negligence of CITY, provided such negligence is determined by agreement between the parties or by findings of a court of competent jurisdiction.
(c)Nonwaiver. CITY does not waive, nor shall be deemed to have waived, any indemnity, defense or hold harmless rights under this section because of the acceptance by CITY, or the deposit with CITY, of any insurance certificates or policies described in this Section 8.
Intellectual Property Infringement Claims. Each Party will indemnify, defend and hold the other Party, its parents, subsidiaries and affiliates, if any, and the respective directors, officials, officers, employees and agents of any of them (each an “Indemnified Party”) harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) resulting from any claim, suit, action, or proceeding brought by any third party against such Indemnified Party alleging the infringement or misappropriation of any Intellectual Property Right relating to the delivery or use of the Service(s) and attributable to the software, products or Products and Services originating, as between CITY and EvGateway, with the indemnifying party. If, as the result of any such claim, suit, action or proceeding, a judgment or equitable relief is obtained against the delivery or use of any part of the Products and Services by either Party, or if EvGateway believes that there is a likelihood of a claim of infringement, EvGateway may, at its option and expense: (i) modify the Products and Services with written approval of CITY (but provide CITY with substantially the same functionality); (ii) obtain for CITY, the right to continued delivery and use of the Products and Services; or (iii) terminate the infringing portion of the Products and Services. In the event of termination of any part of the Products and Services pursuant to clause (iii), EvGateway will refund to CITY a pro rata portion of any fees previously paid by CITY that are allocable to such terminated Products and Services and to the terminated portion of the period for which such fees had been paid.
Indemnification Notice and Cooperation. Each Party’s indemnification obligations hereunder shall be subject to (i) receiving prompt written notice of the existence of any action; (ii) being able to, at its option, control the defense of such action; (iii) permitting the Indemnified Party at its own cost and expense to participate in the defense of any action; and (iv) receiving full cooperation of the Indemnified Party in the defense thereof.
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6.2 Exclusive Remedy. The indemnification rights of an Indemnified Party hereunder shall be the exclusive monetary remedy of the Indemnified Party with respect to the claims to which such indemnification relates.
6.3 Electrical, Cellular and Internet Service Interruptions. EvGateway shall not be responsible for acts or omissions of CITY’s representatives that result in failure of, or disruption to, the Products and Services. Notwithstanding the foregoing, neither EvGateway nor the CITY shall have any liability whatsoever to the other with respect to damages caused by: (i) electrical outages, power surges, utility load management or any other similar electrical service interruptions whatsoever the cause, (ii) interruptions in wireless or cellular service linking the Charging Stations to the EvGateway Charging Network intrusions: or (iv) interruptions in services provided by any Internet service provider not affiliated with EvGateway. This includes the loss of data resulting from such electrical wireless, cellular or Internet service interruptions.
6.INSURANCE
7.1 Insurance.
Without limiting EvGateway’s indemnification of CITY, and prior to commencement of Work, EvGateway shall obtain, provide, and maintain at its own expense during the term of this Agreement, and any extension thereof, policies of insurance of the type and amounts described below in a form that is satisfactory to CITY. Coverage shall be at least as broad as:
(a) Commercial General Liability (CGL): EvGateway shall, at EvGateway’s sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry General Liability insurance coverage at least as broad as Insurance Services form CG 00 01 in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate for bodily injury, personal and advertising injury and property damage, including with limitation, blanket contractual liability. EvGateway shall also maintain coverage as described in Section 8.2.
(b) Automobile Liability: EvGateway shall, at EvGateway’s sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry Automobile Liability insurance coverage at least as broad as Insurance Services form CA 00 01 or the exact equivalent covering bodily injury and property damage for all activities of EvGateway arising out of or in connection with the work to be performed under this Agreement, including coverage of any owned, hired, non-owned, or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. (c) Worker’s Compensation: EvGateway shall, at EvGateway’s sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry workers’ compensation statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident for bodily
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injury or disease. EvGateway shall submit to CITY, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of CITY, its officers, agents, employees and volunteers for all work performed by EvGateway, its employees, agents and subcontractors.
If EvGateway maintains higher limits than the minimum shown above, CITY requires and shall be entitled to coverage for the higher limits maintained by EvGateway. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to CITY.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
7.2 Additional Insured Status
CITY, its elected officials, officers, agents, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of EvGateway including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to EvGateway’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 10 01 and CG 20 37 10 01 if a later edition is used). The provision shall also apply to any excess liability policies. In addition, EvGateway shall ensure that the automobile liability policy contains a provision covering CITY as an additional insured,and shall obtain an endorsement to that effect if it does not.
7.3 Excess Insurance
The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. Umbrella insurance shall be maintained, providing a minimum of $5 million per occurrence and $5 million in aggregate. Umbrella or excess policies shall provide coverage at least as broad as specified for underlying coverages and covering those insured in the underlying policies. Coverage shall be “pay on behalf” with defense costs payable in addition to policy limits. There shall be no cross-liability exclusion of claims or suits by one insured against the other. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of CITY as required in written contract or agreement before CITY’s own insurance or self-insurance shall be called upon to protect it as a named insured.
7.4 CITY’s Rights of Enforcement
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In the event any policy of insurance required under this Agreement does not comply with these specifications or is cancelled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by EvGateway, or CITY will withhold amounts sufficient to pay premium from EvGateway’s payments. In the alternative, CITY may cancel this Agreement.
7.5 CITY’s Right to Revise Specifications
CITY reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving EvGateway ninety (90) days advance written notice of such change. If such change results in substantial additional cost to EvGateway, CITY and EvGateway may renegotiate EvGateway's compensation.
7.6 Primary and Non-Contributory Coverage
For any claims related to this Agreement, EvGateway's insurance coverage shall be primary insurance as respects CITY, its elected officials, officers, agents, employees and volunteers. Any insurance or self-insurance maintained by CITY, its elected officials, officers, agents, employees or volunteers shall be excess of EvGateway's insurance and shall not contribute with it and be at least as broad as CG 20 01 04 13.
7.7 Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to CITY.
7.8 Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by CITY. CITY may require EvGateway to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
7.9 Acceptability of Insurers
All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with a current A.M. Best’s rating of no less than A:VII, (unless otherwise acceptable to CITY).
7.10 Waiver of Subrogation
All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against CITY, its elected officials,
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officers, agents, employees or volunteers or shall specifically allow EvGateway, or others providing insurance evidence in compliance with these specifications, to waive their right of recovery prior to a loss.
EvGateway hereby waives his own right of recovery against CITY and shall require similar written express waivers and insurance clauses from each of its subcontractors. Copies of these waivers shall be submitted to CITY prior to commencement of work.
7.11 Claims Made Policies
If any of the required policies provided coverage on a claims-made basis:
(a). The Retroactive Date must be shown and must be before the date of the Agreement or the beginning of contract work.
(b). Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the work required under this Agreement.
(c). If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Agreement effective date, EvGateway must purchase “extended reporting” coverage for a minimum of five (5) years after completion of Agreement work.
7.12 Verification of Coverage
EvGateway shall provide CITY with copies of certificates (on CITY certificate form or an Accord form as modified per CITY direction) for all policies, with the appropriate named additional insured coverage and an endorsement that they are not subject to cancellation without 30 days prior written notice to CITY. All certificates and endorsements are to be received and approved by CITY before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive EvGateway's obligation to provide them. CITY reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
7.13 Subcontractors
EvGateway shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and EvGateway shall ensure that CITY is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.
7. ASSIGNMENT AND FURTHER ACTIONS
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8.1 Assignment: This Agreement is not assignable by EvGateway without the CITY’s prior written consent.
8.2 Further Actions: Each of the parties will execute such documents and take such actions as may be reasonably requested by the other Parties to carry out the provisions and purposes of this Agreement and will use their own best efforts to perform and carry out the terms and conditions of this Agreement.
8. CONFIDENTIALITY
8.1. Nondisclosure of Confidential Information. Each Party acknowledges that it will have access to certain confidential information of the other Party concerning the other Party’s business, plans, CITYs, technology, customer/client information, and products, and other information held in confidence by the other Party (“Confidential Information”). Confidential Information will include all information tangible or intangible form that is marked or designated as confidential or that, under the circumstances of its disclosure, should be considered confidential. Confidential Information will also include, but not be limited to EvGateway’s Intellectual Property Rights, CITY’s Intellectual Property Rights, and the terms and conditions of this Agreement. Each Party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party any of the other Party’s Confidential Information and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information.
EvGateway acknowledges that CITY is a public agency subject to the disclosure requirements of the California Public Records Act.
8.2. Exceptions. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving Party prior to receipt from the disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; (iv) or is independently developed by the receiving Party without the use of Confidential Information received from the disclosing Party.
10. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, NEITHER PARTY NOR ITS AFFILIATES SHALL, UNDER ANY
CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES
FOR ANY CLAIM BASED UPON ANY THIRD PARTY CLAIM (EXCEPT AS
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PROVIDED FOR IN SECTION 7 (INDEMNIFICATION)) OR FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR
SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, OR FOR ANY
DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY
MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, INTERRUPTION
OF SERVICE OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF A
PARTY OR ITS AFFILIATES HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
11. TERM AND TERMINATION
11.1. Term. This Agreement shall commence as of the Effective Date and continue (the “Term”).
11.2. Effect of Termination or Expiration. The termination or expiration of this Agreement shall terminate the obligations of the Parties to perform any joint marketing activities hereunder. However, no such termination shall have any effect on the SOW Orders or any other agreements between the Parties regarding the provisions of the Products and Services that have been entered into under this Agreement, which will continue in full force and effect until terminated as per the terms of the individual SOW Order or other agreements for such Products and Services. CITY shall pay EvGateway for Products and Services rendered through the termination or expiration of the SOW Order. EvGateway will not refund any payments paid by CITY as part of section 4.1 (a) and (b). Upon termination of this Agreement the Parties will attempt to negotiate in good faith an appropriate transition for any joint sales, marketing or operations activities in progress.
11.3. Network access after Termination. CITY will have 30 days from Termination date to transition chargers away from EvGateway network.
11.4. Upon termination or expiration of this contract, EVGateway will upon request of CITY provide an Open Charge Point Interface (OCPI) platform to ensure a seamless transition for the CITY.
11.5. No Damages for Termination. NEITHER PARTY WILL BE LIABLE TO THE
OTHER FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR
CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION
OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS
TERMS.
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12. GENERAL
12.1 Security. Each Party and its personnel will at all times comply with all security, rules and regulations in effect at the other Party’s premises.
12.2 Non-Solicitation. During the term of this Agreement and continuing through the first anniversary of the termination of this Agreement, EvGateway and CITY agree that neither Party will, and both will take reasonable steps to ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by the other Party who are directly involved in carrying out the obligations of the Parties under this Agreement.
12.3 Governing Law; Venue. This Agreement is made under and will be governed by and construed in accordance with the laws of the County of Ventura, in the State of California (except that body of law controlling conflicts of law). The Parties hereby irrevocably submit to the jurisdiction of any California state or federal court sitting in respect of any suit, action or proceeding arising out of or pertaining to this Agreement and irrevocably accepts for itself/himself/herself and in respect of its/his/her property, generally and unconditionally, jurisdiction of the foregoing courts. The Parties hereby irrevocably waive, to the fullest extent under applicable law, any objection that such Party may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that such suit, action or proceeding has been brought in an inconvenient forum.
12.4 Independent Contractor.
a.EvGateway is and shall at all times remain as to the CITY a wholly independent contractor. The personnel performing the services under this Agreement on behalf of EvGateway shall at all times be under EvGateway's exclusive direction and control. Neither CITY nor any of its officers, employees, agents, or volunteers shall have control over the conduct of EvGateway or any of EvGateway's officers, employees, or agents except as set forth in this Agreement. EvGateway 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. EvGateway shall not incur or have the power to incur any debt, obligation or liability whatever against CITY, or bind CITY in any manner.
b. No employee benefits shall be available to EvGateway in connection with the performance of this Agreement. Except for the fees paid to EvGateway as provided in the Agreement, CITY shall not pay salaries, wages, or other compensation to EvGateway for performing services hereunder for CITY. CITY shall not be liable for compensation or indemnification to EvGateway for injury or sickness
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arising out of performing services hereunder.
12.5 Headings. Headings used in this Agreement are for reference only and shall not be deemed a part of this Agreement.
12.6 Assignment. Either Party may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Neither Party may otherwise assign its rights under this Agreement either in whole or in part without the prior written consent of the other Party, said consent not to be unreasonably withheld, and any attempted assignment or delegation without such consent will be void.
Notwithstanding the foregoing, either Party may delegate its duties in whole or part, provided such Party remains liable for its performance hereunder.
This Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.
12.7 Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving Party as set forth in the preamble to this Agreement. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed, faxed or sent, whichever is earlier.
11.6. Excusable Delay. If the performance of this Agreement, or of any obligation hereunder (other than a payment obligation) is prevented, restricted or interfered with by reason of (i) acts of God; (ii) wars, revolution, terrorism, civil commotion, acts of public enemies, blockage or embargo; (iii) acts of the Government in its sovereign capacity; (iv) labor difficulties, including, without limitation, strikes, slowdown, picketing or boycotts; or (v) any other circumstances beyond the reasonable control and without the fault or negligence of the Party affected, the Party affected, upon giving prompt notice to the other Party, shall be excused from such performance on a day- to-day basis.
12.8 Survival. The obligations of the Parties under this Agreement, which by their nature would continue beyond termination, cancellation, or expiration of this Agreement, shall in all cases survive the cancellation, termination or expiration of this Agreement.
12.9 Waiver. The failure of either Party to insist on the strict performance of any terms, covenants and conditions of this Agreement at any time, or in any one or more instances, or its failure to take advantage of any of its rights hereunder, or any course of conduct or dealing shall not be construed as a waiver or relinquishment of any such rights or conditions at any future time and shall in no way effect the continuance in full force and effect of all the provisions of this Agreement.
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12.10 Entire Understanding; Amendment. This Agreement, including the exhibits hereto (all of which are incorporated herein), constitutes the entire understanding of the parties hereto, and supersedes all prior or contemporaneous written and oral agreements, regarding the subject matter hereof. This Agreement may not be modified or amended except in a writing signed by authorized representatives of both Parties. No third party shall have any interest herein or be deemed a third party beneficiary of this Agreement, except as expressly provided for herein.
12.11 Signatures.
12.11.1 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original but all of which taken together shall constitute one and the same instrument.
12.11.2 Scanned Signatures. In the event that any signature is delivered by facsimile transmission or submitted electronically as a scanned image (i.e. files with .pdf, .tiff or .jpeg extensions), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or scanned signature page were an original thereof.
12.11.3 Digital/Electronic Signatures. This Agreement may be executed through the use of digital or electronic signatures provided they meet the requirements of the Electronic Signatures in Global and National Commerce (ESIGN) Act and the California Uniform Electronic Transactions Act (UETA) and are produced using a CITY-approved method. The presence of an electronic signature on this document shall be construed as the parties’ consent to do business electronically.
13.LEVINE ACT COMPLIANCE
California Government Code section 84308 (Levine Act) prohibits any Thousand Oaks City Council member from participating in any action related to a contract, agreement, or franchise agreement if the councilmember receives a campaign contribution totaling more than $500 (aggregated) from the party to the contract, agreement, or franchise agreement, an agent of the party, or any financially interested participant who actively supports or opposes the matter within the previous twelve (12) months. Councilmembers must also disclose any eligible campaign contribution received on the record of the proceeding.
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Councilmembers are also prohibited from soliciting, accepting or directing campaign contributions totaling more than $500 (aggregated) from the applicant or party, an agent of the applicant/party, or any financially interested participant who actively supports or opposes the matter within the previous twelve (12) months, and for twelve (12) months following the date a final decision on the contract/agreement is made.
The Levine Act also requires parties to a contract, agreement, or franchise agreement to disclose any campaign contribution over $500 (aggregated) within the preceding twelve (12) months by the party to the agreement, contract, or franchise agreement. The Levine Act does not apply to contracts under $50,000, competitively bid, labor, or personal employment contracts. An agent to the Party/Consultant/Service Provider is prohibited from making any contributions whatsoever during this time period.
In order to assure compliance with these requirements, Party/Consultant/Service Provider has provided the disclosure requirements identified in the Levine Act Disclosure Form, attached as Exhibit D, incorporated herein by reference, and Party/Consultant/Service Provider verifies by its signature that it has completed Exhibit D in compliance of these requirements.
Party/Consultant/Service Provider shall also be responsible for understanding and complying with requirements of Government Code section 84308, which prohibits parties to a contract/agreement, as well as their agents and representatives, from contributing more than $500 (aggregated) to a City Council member of the City of Thousand Oaks for the 12 months prior to the award of this Contract/Agreement, and for the 12 months following award of this Contract/Agreement. . An agent to the Party/Consultant/Service Provider is prohibited from making any contributions whatsoever during this time period. Where applicable, Party/Consultant/Service Provider shall disclose any post award campaign contributions prior to seeking an amendment to this Contract/Agreement.
In concurrence and witness whereof, this Agreement has been executed by the parties effective November 4, 2025.
EVGATEWAY, INC. CITY OF THOUSAND OAKS
By: By:
signature signature
Name: Divina Anzures Name: David Newman _____
Title: Chief Executive Officer Title: Mayor _____ ATTEST:
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By: ________________
signature Laura B. Maguire, City Clerk
Name: Laura Pichardo _____ APPROVED AS TO
ADMINISTRATION:
Title: Vice President - Marketing &
Corporate Partnerships
______________________________________
Andrew P. Powers, City Manager
APPROVED BY DEPARTMENT
HEAD:
__________
Nader Heydari, PE
Public Works Director
APPROVED AS TO FORM:
Office of the City Attorney
__________
Tracy Friedl, Assistant City Attorney
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EXHIBIT LIST:
Exhibit A Installation, Operation, and Maintenance Scope of Work Exhibit B Site Location, Equipment, and Fee Schedule
Exhibit C EvGateway Network Support Service Level Agreement (SLA) Exhibit D Levine Act Disclosure Form
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EXHIBIT A
SCOPE OF WORK
FLEET CHARGER INSTALLATION, OPERATION, AND MAINTENANCE
EV GATEWAY will supply, permit, install, commission, and maintain forty-six (46) Level 2 EV Chargers as further described in Exhibit B, Site Location, Equipment and Fees in accordance with the following.
Definitions
Automated Load Management System (ALMS) - A software-based solution that optimizes the distribution of electrical power to multiple electric vehicle (EV) chargers, preventing overloads on the electrical grid and reducing infrastructure costs.
Charging Session - a session during which an EV driver uses the CITY’s EVSE Unit to charge an EV for a continuous period of time, starting when the EV driver accesses the CITY's EVSE Unit and ending when the EV driver has terminated such access.
Charging Station – An Individual charging unit that may have one or more ports.
Contractor – Qualified and Licensed contractors meeting all federal, state, local, and utility requirements for installation and commissioning of EV Charging Stations.
Equipment - Electric Vehicle charger and related infrastructure, including RFID cards to enable fleet charging, as set forth in Exhibit B.
EVCO - Electric Vehicle Charging Operator.
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EV Charging Station – Electric Vehicle Supply Equipment with one or more charging ports.
EVITP - Electric Vehicle Infrastructure Training Program.
EVSE – Electric Vehicle Supply Equipment includes Network equipment.
Fleet – CITY vehicles that are authorized to use an RFID card to initiate free charging from CITY owned EVSE.
Infrastructure – improvements from the SCE meter to the Stubout.
Level 2 – EV charger supplied by a 208-240-volt electrical service and typically provides 18 to 28 miles of range per hour.
Net Usage Fees - the total amount of Session Usage Fees collected by EVGateway for a non-fleet Charging Session, less Session Authorization and Processing Fees, from EV drivers in connection with the use of CITY EVSE Charging Stations.
Network – software that operates the EV charger and verifies the user for payment authorization.
RFID Card – A Radio Frequency Identification card that enables identification as an authorized user.
Session Authorization and Processing Fees – fees to initiate non-Fleet Charging Sessions.
Session Usage Fees – Fees for non-Fleet Charging Sessions.
Southern California Edison (SCE) - utility provider.
Stubout – Location for the installation of the EV Chargers with a cement pad with bolt holes and wiring available for installing EV Chargers or conduit on wall ready to mount a charger.
Uptime - the percentage of time that the charger’s hardware and software must be online and available for use, or are in use, and the charging port is dispensing electricity as designed.
1. General.
1.1 EVCO will provide Equipment, operate, and maintain the turn-key EVSE solution for the Site location(s) as set forth in this Agreement in Exhibit B.
1.2 EVCO will provide Network management, including 24/7 driver support, and all maintenance and warranty work.
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1.3 EVCO will meet all federal, state, and SCE installation and operation requirements, including using EVITP Certified Electricians and paying prevailing wage where required.
1.4 EVCO will provide the CITY with access to dashboards to monitor EV Charger usage and trends.
1.5 EVCO will assist in the development of reports and usage statistics to use for reporting to City Council and provide documentation for progress in meeting the CITY’s Climate and Environmental Action Plan (CEAP) Greenhouse Gas (GHG) goals.
2. Installation.
2.1 EVCO and/or their Contractor(s), in coordination with CITY, shall obtain all necessary permits and provide all necessary labor, supplies, and equipment to install and commission the Equipment from the Stubouts at the locations listed in Exhibit B
2.2 CITY shall be responsible for the preparation of the Stubout and related infrastructure improvements for each EV Charging Station.
2.3 EVCO will apply for a permit to install the EV Chargers within 30 days of the date of the agreement.
2.4 EVCO will install and commission EV Chargers within 14 days of notification by the CITY that the Stubout has been completed.
3. Maintenance and Operation.
3.1 EVCO shall be responsible for the Equipment maintenance, 24/7 customer service support, and Network monitoring for the term of this Agreement.
3.2 EVCO will be responsible for the operation of the EVSE for the term of this Agreement.
3.3 EVCO will meet all federal and California requirements for Uptime as further described in Exhibit C.
3.4 EVCO will be solely responsible for operating the Network during the Term of this agreement. CITY understands that, unless mutually agreed otherwise, EVCO only provides charging or EV services when connected to the EVCO Network.
4. Software.
4.1 Software embedded in the EVSE units and EVCO Network is provided in connection with the EVSE Units.
4.2 The software is licensed, not sold. All rights, title, and interest in and to the intellectual property of any kind associated with the EVCO Software is reserved to, and belongs to, EVCO. This agreement gives CITY a limited license for use of the software. EVCO reserves all other rights and sole ownership of the Software. CITY may not attempt to reverse engineer, decompile, or disassemble the software.
4.3 CITY shall be entitled to all software updates available during the term of this Agreement.
5. Usage Fees and Tracking.
5.1 EVCO shall not collect fees for charger usage for RFID-initiated charges for CITY vehicles.
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5.2 Fees for using the Fleet chargers by non-CITY vehicles shall be set at the same rate as the CITY-authorized public charger rates.
5.3 EVCO charges a 6% transaction fee, which includes the Credit Card and Payment Processing fee, for non-Fleet Charging Sessions.
5.4 EVCO will pay the CITY Net Usage Fees on the 30th day of the following month for charges from credit card usage, subject to the following process. CITY Net Usage Fee will be Total Collected Usage Fee, minus Session Authorization and Processing Fees as charged by EVCO.
5.5 Except as required by law, the CITY shall be responsible for the payment of all Taxes incurred from revenue generated in connection with the use of the CITY's EVSE Charging Station.
5.6 Revenue Adjustment. In the occurrence where EVCO fails to collect payment from drivers for the electricity consumed at the CITY’s charging facilities, for any reason, including, but not limited to, bank transaction declines, EV Gateway shall possess the authority to adjust the revenue due to the site host by an amount equivalent to the transaction value that could not be collected. This adjustment shall specifically relate to the kilowatts (KW) provided to the driver's vehicle during the charging session. The CITY acknowledges and consents to this revenue adjustment as a necessary action for maintaining the financial stability and uninterrupted operation of the charging service. This clause is intended to address scenarios wherein the driver has utilized the charging service (KW) but the payment transaction has failed due to banking issues or other financial irregularities.
5.7 EVCO will track charger usage, enabling the CITY to allocate energy usage and energy costs internally to the appropriate department.
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EXHIBIT B
Site Location, Equipment, and Fees – Summary
Location T otal Ports T otal Year One Costs Annual Fees 5 Year T otal Civic Arts Plaza 14 46,950.40$ 6,650.00$ 73,550.40$ Hill Canyon T reatment Plant 6 21,055.13$ 2,850.00$ 32,455.13$ Municipal Service Center 26 88,185.50$ 12,350.00$ 137,585.50$ T otals 46 156,191.03$ 21,850.00$ 243,591.03$
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Location Breakdown
Civic Arts Plaza (CAP) Fleet Chargers
2100 E. Thousand Oaks Blvd. Thousand Oaks, CA 91362
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Hill Canyon Treatment Plant (HCTP) Fleet Chargers
9600 Santa Rosa Rd., Camarillo, CA 93012
E quipment Quantity Unit Price T otal
1 LiteOn IC80 G en 2 Level 2 Charger (R FID Only) 6 1,750.00 $ 10,500.00 $ 2 LiteOn IC80 G en 2 Level 2 Charger (Credit Card enabled)) 8 1,969.00 $ 15,752.00 $ 3 Cable Management (cord retractor) 14 325.00 $ 4,550.00 $ 4 Pedestal (Dual mount) 2 450.00 $ 900.00 $
Subtotal E quipment 31,702.00 $
Sales T ax 7.25% 2,298.40 $
T otal E quipment costs 34,000.40 $
5 Installation (per dual port) 7 500.00 $ 3,500.00 $ 6 Commissioning & Activiation (per charger) 14 100.00 $ 1,400.00 $ 7 Maintenance (annual fee) 14 195.00 $ 2,730.00 $ 8 Network License (annual fee) 14 180.00 $ 2,520.00 $ 9 S IM Data Connection (annual fee) 14 100.00 $ 1,400.00 $ S hipping 1,400.00 $
Installation and Annual Fees Subtotal 12,950.00 $
Y ear One T otal 46,950.40 $
Annual Fees - years 2-5 6,650.00 $
Contract T otal (5 Year) 73,550.40 $
Civic A rts P laza - 14 P orts
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Municipal Service Center (MSC) Fleet Chargers
1993 Rancho Conejo Blvd, Newbury Park, CA 91320
E quipment Quantity Unit Price T otal
1 LiteOn IC80 G en 2 Level 2 Charger (R FID Only) 3 1,750.00 $ 5,250.00 $ 2 LiteOn IC80 G en 2 Level 2 Charger (Credit Card enabled)) 3 1,969.00 $ 5,907.00 $ 3 Cable Management (cord retractor) 6 325.00 $ 1,950.00 $ 4 Pedestal (Dual mount) 3 450.00 $ 1,350.00 $
Subtotal E quipment 14,457.00 $
Sales T ax 7.25% 1,048.13 $
T otal E quipment costs 15,505.13 $
5 Installation (per dual port) 3 500.00 $ 1,500.00 $ 6 Commissioning & Activiation (per charger) 6 100.00 $ 600.00 $ 7 Maintenance (annual fee) 6 195.00 $ 1,170.00 $ 8 Network License (annual fee) 6 180.00 $ 1,080.00 $ 9 S IM Data Connection (annual fee) 6 100.00 $ 600.00 $ S hipping 600.00 $
Installation and Annual Fees Subtotal 5,550.00 $
Y ear One T otal 21,055.13 $
Annual Fees - years 2-5 2,850.00 $
Contract T otal (5 Year) 32,455.13 $
Hill Canyon T reatment P lant - 6 P orts
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EXHIBIT C
E quipment Quantity Unit Price T otal
1 LiteOn IC80 G en 2 Level 2 Charger (R FID Only) 26 1,750.00 $ 45,500.00 $ 2 LiteOn IC80 G en 2 Level 2 Charger (Credit Card enabled)) 0 1,969.00 $ - $ 3 Cable Management (cord retractor) 26 325.00 $ 8,450.00 $ 4 Pedestal (Dual mount) 13 450.00 $ 5,850.00 $
Subtotal E quipment 59,800.00 $
Sales T ax 7.25% 4,335.50 $
T otal E quipment costs 64,135.50 $
5 Installation (per dual port) 13 500.00 $ 6,500.00 $ 6 Commissioning & Activiation (per charger) 26 100.00 $ 2,600.00 $ 7 Maintenance (annual fee) 26 195.00 $ 5,070.00 $ 8 Network License (annual fee) 26 180.00 $ 4,680.00 $ 9 S IM Data Connection (annual fee) 26 100.00 $ 2,600.00 $ S hipping 2,600.00 $
Installation and Annual Fees Subtotal 24,050.00 $
Y ear One T otal 88,185.50 $
Annual Fees - years 2-5 12,350.00 $
Contract T otal (5 Year) 137,585.50 $
Municipal S ervice Center - 26 P orts
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EXHIBIT D
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