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HomeMy WebLinkAboutC33700E and D - Elctrc Vhcle Charging Stn CONTRACT N0. C33700E CONTRACT N0. C33700D CITY OF PALM DESERT SPECIAL PROGRAMS DEPARTMENT STAFF REPORT REQUEST: Approve Agreement with University of California, Riverside (UCR) for the Electric Vehicle Charging Station Community Project and Change Order No. 1 Relative to the Project SUBMITTED BY: Frankie Riddle, Director of Special Programs APPLICANTS: Native Electric Construction UCR c/o: Will Hobbs c/o Tamara Hedges P.O. Box 3010 75-080 Frank Sinatra Dr. Ramona, CA 92065 Palm Desert, CA 92211 DATE: July 10, 2014 CONTENT: UCR Agreement Change Order No. 1 Recommendation By Minute Motion, 1. Authorize the Mayor to enter into public/private agreement with The Regents of the University of California/University of California, Riverside (UCR) for the Electric Vehicle Charging Station Community Project; 2. Approve Change Order No. 1 in the amount of$48,233; and 3. Approve 10% Contingency in the amount of$4,823. Discussion At its meeting of June 12, 2014, City Council approved the Community Electric Vehicle (EV) Charging Station Project to undertake installation of charging stations at six (6) separate sites and awarded contract to Native Electric. Also, at that meeting, staff indicated that an agreement with UCR had just been finalized for the installation of an electric vehicle charging station and would return to City Council for consideration of a change order to approve the agreement with UCR. City Council also directed staff to review the possibility of adding dual stations at each location in lieu of the single use station. Outlined below is the additional cost to include the UCR site to the project, upgrading all stations from single use to dual use electric vehicle charging stations, and the inclusion of a 10% contingency to cover any electrical upgrades that may be required to accommodate the dual charging stations: CONTRACT N0. C33700E STAFF REPORT CONTRACT No. C33700D ELECTRIC VEHCLE CHARGING STATION COMMUNITY PROJECT CHANGE ORDER NO. 1 JULY 10, 2014 PAGE 2 1. UCR Site Work: $15,000 2. Dual Use EV Charging Stations: $19,464 3. Other Fees (permitting, bonds, etc.) $13,769 4. 10% Contingency: 4 823 ($105,000 + $48,233) Total Change Order Amount: $53,056 Staff is proposing to install the Dual Tellus Electric Vehicle Charging Station that requires two 40 amp breakers. At this time, it is unknown if each site has adequate power to handle the dual stations. Once approved, the contractor will perform load calculations to determine if sites have adequate power. If it is determined that additional breakers and/or other work is required to address additional power supply needs, it will be managed through the contingency, unless cost exceeds contingency amount. If this occurs, staff will return to City Council with options. The project budget is $154,770 (with a 50% matching MSRC Grant). With the addition of the UCR site and the charging s�ation upgrade, the contract to undertake the project will increase from $105,000 to $158,056. The City's portion of funding will come from AB2766 funds, as well as any use of the 10% contingency, which is included in the $158,056. The additional cost over the original project budget will be borne by the City in the amount of $3,286. Currently, the City has approximately $258,000 in AB2766 funds for related projects; less the City's portion of funding for this project in the amount of$80,671 would leave a balance of$177,329. Fiscal Analvsis Funding for these projects are through the MSRC Grant and the City's AB2766 funds, Account No. 238-4515-442-�f30. Therefore, there will be no impact to the City's General Fund. y�( Submitted By: roval: � �� Frankie iddle ohn M. Wohlmuth Director of Special Programs City Manager Reviewed: CT COUNCII.AC�ON APPROVED � DEN�ED �� �G RECEIVED OTHER Paul G� son MEET G DATE 1' a Direct r of Finance AYE5: - � ' �f � � ��� � NOES: ABSENT: ' CE �� A�3STAIN: ' Rudy A osta VCRIFI�D IiY: � � � ` �' Assistant City Manager Original on Tile with City k's O�ce Contract No. 33700E CITY OF PALM DESERT ELECTRIC VEHICLE PROGI2AM MASTER AGREEMENT This Electric Vehicle Program Master Agreement(this"Agreement"),eftective as of June 12, 2014(the"Effective Date"), is entered into by and between the City of Palm Desert("Palm Desert"), and The Regents of the University of California, on behalf of the University nf California, Riverside (UCR and The Palm Desert Center),a Califon�ia corporation("Participa��t"). Palm Desert and Participant are at times referred to individually as a"Party"and collectively as the"Parties." 12ECITALS A. WflEREAS, Palm Desert has received a grant from the Mobile Source Air Pollution Reduction Review Committee ("MSRC") (the "Grant") to undertake the deployment of electric vehicle charging infrastructure(the"EV Project")and B. WHEREAS, Palm Desert desires to deploy electric vehicle Chargers at strategic locations as part of the EV Project, including commercia) and university locations;and C. WHEREAS, Participant owns and operates the University of California, Riverside Palm Desert Center located at 75080 Frank Sinatra Drive,Palm Desert 9221 l,and desires to participate in the EV Project upon the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the mutual undertakings and covenants herein, and for such other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree and covenant as follows: 1. INSTALLATION 1.1 Expressly contingent upon Palm Desert's sole discretion in determining that it has sufficient funds through the Grant and other Palm Desert sources of funding and upon the terms and conditions set forth herein, Palm Desert agrees to provide to Participant one (1) Level 2 Electric Vehicle Supply Equipment Charger("Charger(s)")and to install such Charger(s)at Participants property located at 75-080 Frank Sinatra Dr.,Palm Desert,CA 92211 (the"Site"),as further described and depicted on E�chibit"A" attached hereto and incorporated by this reference. Palm Desert grants Participant the right to use, and authorize its customers to use,the Charger(s)pursuant to the terms ofthis Agreement. 1.2 Palm Desert shall work with Participant and contractors to schedule and complete the installation of the Charger(s). Palm Desert shall not be liable for any failure to install the Charger(s)within any specific time frame due to any circumstances, including but not limited to funding, manufacturing, government permitting, UL certification, electric box or transformer upgrades, unusual installation conditions, inspection delays or other obstacles. 1.3 Palm Desert will bear all direct costs associated with the design, construction, purchase, delivery, signage, installation and initial setup of the Charger(s) at the Site, based on available funding to perform necessary work to install the Charger(s). 72500.00001\8548145.5 1 Contract No.33700E 1.4 Except as otherwise required pursuant to Sections 2.6 under this Agreement, Participant agrees during the Term of this Agreement and any renewal thereof, and in no event less than iive(5)years � from the date the Charger(s) are first operational and available to the public ("Operational Date"), not to uninstall, disable, turn off, remove, or relocate the Charger(s) without prior written approval by Palm Desert unless in the case of an emergency and at the direction of Palm Desert. 1.5 Participant hereby grants Palm Desert a limited license to use and occupy the areas at the Sites where the Charger(s) are located, including but not limited access and use of its electrical panels, for the sole purpose of installing, operating and maintaining the Charger(s) in accordance with this Agreement. Palm Desert shall obtain any necessary approvals for the Charger(s) installation and electrical hook-up from third party Site owners and landlords prior to the installation of the Charger(s) and as may be required under any contract or any federal, state or local law, rule, regulation, or MSRC grant requirement applicable to the rights and obligations under this Agreement ("Applicable Law") to which Palm Desert is bound. Participant agrees to cooperate with Palm Desert in obtaining any such approval. 1.6 Participant hereby agrees to provide parking space(s), electricity, and access to the Charger(s) at the Site to accommodate customer use of the electric charging units during scheduled hours, as further described and depicted on Exhibit"A." 2. CHARGER(S)OWNERSHIP, USE AND MAINTENANCE 2.1 All right, title and interest in and to the Charger(s), including all associated l�ardware, software and intellectual property rights (including, but not li�nited to, copyrights, patent rights, trademarks, trade secrets and trade names), as between the Parties shall at all times remain the sole property of Palm Desert. The Charger(s) shall not be transferred, delivered, or sublet by Participant to any person or corporation, shall remain free of all levies, liens, and encumbrances, shall not be collateralized, and no security interest shall be granted therein. 2.2 Participant agrees that the Charger(s) shall be used and operated only for their intended use and only pursuant to this Agreement,and in a careful manner and in compliance with all governmental requirements. In no event shall the Charger(s) be misused or subjected to depreciation above the normal depreciation associated with the intended use thereof,or be used or operated for any illegal purpose. 23 Participant shall be, and hereby agrees to be, solely responsible for all costs and expenses related to and associated with operating the Charger(s), including but not limited to, all costs and expenses for electricity used and/or distributed by the Charger(s). Participant may impose a fee on customers for use of the Charger(s), including but not limited to all costs of electricity, however, Participant hereby agrees and covenants it will not impose any fee on customers for use of the Charger(s) during the period beginning on the Operational Date and ending on the one(1)year anniversary of the Operational Date. 2.4 Palm Desert shall repair, inspect and maintain the Charger(s)in good working order and condition and Participant hereby grants Palm Desert a limited and non-exclusive license to enter the Site for such purposes. In the event Participant revokes or materially alters such license prior to the expiration or termination of this Agreement in accordance with the terms herein, Participant,at its sole cost and expense, agrees to repair, inspect and maintain the Charger(s)in good working order and condition for the remaining term of this Agreement. 2.5 Participant is not responsible for any third party's negligence or mistreatment (gross, criminal or otherwise)of the Charger(s)at the Site unless (a) Participant authorized such mistreatment,(b) the damages to the Charger(s) are caused by the negligence of Participant, or (c) the damages to the Charger(s) are the result of Participant failure to comply with the terms of this Agreement, including but not limited to Sections 1.4,2.2, 2.4, and 2.6. 72500.00001\8548145.5 2 Contract No. 33700E 2.6 Participant shall: (a) regularly inspect and clean the Charger(s) and d�e area around the Cliarger(s) on the same schedule and using the same degree of care that Participant uses for its own property, fixtures and equipment, but at least daily when open for business, including removal of graffiti,posted bills, stickers or other debris, ensuring the screen and user interface is clean for customer use; (b) maintain appropriate signage after initial installation by Palm Desert that clearly and prominently identifies and, where appropriate, provides directions to the Charger(s) so that they may be easily located by drivers of electric vehicles; (c) take reasonable efforts to ensure that the Charger(s) are readily accessible for use by custorners and access is not btocked by vehicles not using the Charger(s); (d) promptly repair (or report to Palm Desert under Section 2.4) any evidence of damage,defects, hazards(for example,cut or worn cables, exposed wiring, cracked connectors, damage to connector pumps), or vandalism to the Charger(s); (e) promptly repair, or report in writing and within 24 hours to Palm Desert under Section 2.4, any observed or reported tampering, operational or maintenance issues with the Charger(s); and (fl disable access to and place "Out of Service" signs on any Charger(s) with safety or operational problems that are noticed by or brought to the attention of Participant until such Charger(s) can be promptly repaired. 2.7 Software to monitor use of the Charger(s) and the amount of electricity distributed by the Charger(s) may be available through the manufacturer or a third party vendor, from time to time. Participant agrees tliat it is solely responsible for the determination whether or not to obtain such software for the Charger(s) and is and will be solely responsible for the costs and expenses of any such software. Participant agrees that Palm Desert does not require such soflware to be obtained. Notwithstanding the foregoing, in the event that Participant elects in its discretion to obtain such softwaze, Participant hereby agrees that any information obtained by Participant related to the Charger(s)through such software which meets the definition of "Feedback" below, shall be considered Feedback subject to the terms of this Agreement. 3. TERM; TERMINATION 3.1 The term of this Agreement shall commence on tlie Effective Date of this Agreement and shall end on the five(5)year anniversary of the Operational Date(the"Term"). 3.2 Termination for Cause by Either Partv. Either Party may terminate this Agreement in its entirety for cause if the other Parly or its authorized personnel (a) commit a material breach or numerous breaches which collectively constitute a material breach of this Agreement, which is not cured or capable of cure within thirty (30) days after notice of such breach; (b) has a material adverse change in the financial condition which affects or will affect the Party's performance under this Agreement; (c) files proceedings, or has proceedings filed against it, under federal bankruptcy or state insolvency statutes, and a proceeding instituted against the Noticed Party is not dismissed within 30 days; or(d) has a receiver or trustee appointed for the property and assets of the Party related to this Agreement and the receivership is not discharged within 30 days of such appointment. 72500.0000118548145.5 3 Contract No. 33700E i 3.3 Termination in Whole or In Part for Convenience Palm Desert. In the event Palm Desert wishes to terminate this Agreement, either in whole or in part, prior to the expiration of the Term without cause and for the convenience of Palm Desert, Palm Uese�1:shall provide Participant with a thirty(30)days prior written notice of its intent to terminate, specifying with particularity the reasons for early termination (the "Termination Notice"), and shall confer in good faith to resolve any issues that caused the Termination Notice. 3.4 Effect of Termination. (a) Upon the termination of this Agreement for cause by either Party, or for convenience of Palm Desert, Palm Desert is authorized, at its sole discretion, either (i) to enter upon the Site, with or without legal process, and take passession of and remove the Charger(s) at its own expense and perform any work required to return the Site to a safe condition, w'rth the electricity to the Charger(s) installation location capped, the breakers turned off, and the Charger(s) anchor/mounting bolts cut flush/removed; or(ii)to provide Participant a Bill of Sale for the Charger(s)which Participant shall accept. (b) Upon the termination of this Agreement and election of Palm Desert to provide Participant with a Bill of Sale for the Charger(s), Participant hereby expressly agrees not to uninstall, disable, turn off, remove, or relocate the Charger(s) for five (5) years from the Operational Date without prior written approval by Palm Desert unless in the case of an emergency and at the direction of Palm Desert. This Section 3.4(b)shall survive termination of this Agreement. 3.5 NEITHER PARTY SHALL, BY REASON OF TH.E EXPIRATION OR TERMINATION OF THIS AGREEMENT, BE LIABLE TO THE OTHER PARTY FOR COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF ANY LOSS OF PROSPECTIVE PROFITS, ANTICIPATED SALES OR GOODWILL OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS OR COMMITMENTS MADE IN CONNECTION WITH THIS AGREEMENT OR THE ANTICIPATION OF EXTENDED PERFORMANCE HEREUNDER. 4. EXPIRATION Upon the expiration of the Term of this Agreement: 4.1 If Participas�t is imposiug a fee for use of the Charger(s), Participant shall have the option to acquire ownership of the Charger(s) installed at the Site at no cost to Participant by providing Palm Desert thirty (30) days prior written notice of intent to acquire ownership of the Charger(s). Upon timely receipt of Participant's written notice of intent to acquire the Charger(s) and upon the expiration of this Agreement, Palm Desert shall execute and deliver a bill of sale evidencing transfer of ownership of the Charger(s)to Participant; 4.2 If Participant is not imposing a fee for use of the Charger(s), and if the Charger(s) are maintained by Palm Desert pursuant to a license granted by Participant, Participant shall have the option to allow the Charger(s)to remain as then installed, owned and maintained by Palm Desert upon execution of a separate lease, maintenance, and service agreement with Palm Desert; or 43 Participant shall have the option to request that Palm Desert enter upon the Site and take possession of and remove the Charger(s) at Palm Desert's own expense and perform any work required to return the Site to a safe condition, with the electricity to the Charger(s) installation location capped, the breakers turned off, and the Charger(s)anchor/mounting bolts cut flush/removed. 72500.00001\8548145.5 4 Contract No. 33700E 5. FECDI3ACK FROM OPERATION OF CHARGER(S) 5.1 "Feedback" means all information and data (whether provided in aral, written, electronic or other forrnat) related to or generated by the installation, operation and use of the Charger(s) at the Site, received by Participant, during the Term of this Agreement. Feedback does not include any personal identification information of customers, customer credit card numbers or financial institution information, or any other information protected under the applicable privacy policies of either Party or any consumer privacy laws. 5.2 Participant agrees to use its best efforts to collect and record Feedback from custoiners and users ofi the Charger(s), their employees, their vendors, and their agents and deliver the Feedback to Palm Desert at least quarterly following Site installation. 6. PRESS REI�EASE 6.1 The Parties will cooperate with each other in the preparation of a joint press release concerning the subject matter of this Agreement. The Parties must each approve the substance of tl�e press release in advance of publication or distribution, such consent not to be unreasonabty withheld or delayed. 6.2 Neither Party will publish airy officral statement or mtdertake any activity which would demean, tarnish, or negatively affect or impact in any way the services, products, marks, and/or iinage of the other Party. Neither Party will engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to the other Parly or the EV Program. 7. REPRESENTATIONS AND WARRANTIES 7.1 Each Party represents and warrants to the other that: (a) It is a duly incorporated or organized, validly existing and in good standing under Applicable Laws; (b) It has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) It will comply with all Applicable Laws and has obtained and wil( continue to obtain all licenses, authorizations, approvals, consents or permits required to carry on and conduct its business as now conducted and as contemplated by this Agreement, except where the failure to do so would not have a material adverse effect on its ability to perform its obligations hereunder, and all of such licenses,authorizations, approvals,consent and permits are in full force and effect in all material respects; (d) It will not, and shall not authorize any third party to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to other Party or the EV Program; (e) The execution, delivery and performance of this Agreement and the consummation of the rights and obligations contemplated by this Agreement have been duly authorized by the requisite corporate action on the part of such Party;and (fl The execution, delivery,and performance of this Agreement shall not: (a)conflict with, result in the breach of, or constitute an event which would, either immediately or with the lapse of time or giving of notice or both, result in a default under, or accelerate the performance required by, the terms of any agreement, document, contract, instrument or commitment to which it is a party or by which it is bound; (b) violate its articles of incorporation or bylaws; (c) conflict with or require any written consent or approval under any judgment, order, writ, decree, permit or license to which it is a party or by 72500.00001\8548145.5 5 Contract No. 33700E which it is bound; or (d) require the written consent or approval of any other party to any agreement, document,contract, instr�nnent or commihnent to which it is a party or by which it is bound. 8. INSLIRANCE 8.1 Partici�ant shall obtain, provide and maintain at its owii expense during the Term of this Agreement,policies of insurance or self-insurance of the type and amounts described below and in a form that is satisfactory to Palm Desert: (a) General Liability Insurance. Participant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 Ol, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate,for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. (b) Automobile Liability Insurance. Participant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 O1 covering bodily injury and property damage for activities of the Participant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. (c) Workers' Com�ensation Insurance. Participant shall maintain Workers' Compensation lnsurance(Statutory Limits)and Employer's Liability Insurance(with limits of at least $1,000,000). (d) llmbrella or Excess Liability I�tsurance.Participant may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances,Participant shall obtain and maintain an umbrella or excess liability insurance policy with limits of not less than $4,000,000 that will provide bodily injury,personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer's liability. Such policy or policies shall include the following terms and conditions: (i) A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; (ii) Pay on behalf of wording as opposed to reimbursement; (iii) Concurrency of effective dates with primary policies; and (iv) Policies shall"follow form"to the underlying primary policies. (v) Insureds under primary policies shall also be insureds under the umbrella or excess policies 8.2 Proof of Insurance. Participant shall provide certificates of insurance to Palm Desert as evidence of the insurance coverage reyuired herein. Insurance certificates and endorsement must be approved by Palm Desert's Risk 1Vlanager prior to commencement of performance. Current certification of insurance shall be kept on file with Palm Desert at all times during the term of this contract. Palm Desert reserves the right to require complete,certified copies of all required insurance policies, at any time. 8.3 Duration of Covera�e. Participant shall procure and mainta.in for the duration of this Agreement, insurance against claims for injuries to persons or damages to property,which may arise from or in connection with the performance of the work hereunder by Participant,his/her agents, representatives,employees or sub-consultants. 72500.00001\8548145.5 6 Contract No. 33700E 8.4 Palm Desert's Ri�hts of Enforcement. In the event any policy of insurance required under this A�reement does not comply with these specifications or is canceled and not replaced, Palm Desert has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by Palm Desert will be promptly reimbursed by Participant, or Palm Uesert will withhold amounts sufficient to pay premi�nn from Participant payments. In the alternative, Palm Desert may cancel this Agreement. 8.5 Acceptable Insurers. All insurance policies shal) be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California,with an assigned policyholders' Rating of A-(or higher)and Financial Size Category Class V(I (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by Palm Desert's Risk Manager. 8.6 Enforcement of Contract Provisions(non esto�pel�. Participant acknowledges and agrees that any actual or a(leged failure on the part of Palm Desert to inform Participant of noncompliance with any requirement imposes no additiona) obligations on Palm Desert nor does it waive any rights hereunder. 8.7 Specifications Not Limiting. Requiretnents of specific coverage features or liinits contained in this Section are not intended as a limitation on coverage, limits or other requirements,or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage,or a waiver of any type. 8.8 Notice of Cancellation. Participant agrees to oblige its insurance agent or broker and insurers to provide to Palm Desert with a thirty(30)day notice of cancellation(except for nonpayment for which a ten [10] day notice is required)or nonrenewal of coverage for each required coverage. 8.9 Additional Insured Status. General liability policies shall provide, or be endorsed to provide,that Palm Desert and its officers,officials, employees, and agents shall be additional insureds under such policies. This provision shall also apply to any excess liability policies. 8.10 Self-Insured Retentions. Any self-insured retentions must be declared to and approved by Palm Desert. Palm Desert reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by Palm Desert. . 8.11 Palm Desert's Right to Revise Specifications. Palm Desert reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Pac�icipant ninety(90)days advance written notice of such change. If such change results in substantial additional cost to the Participant, Palm Desert and Participant may renegotiate Participai�Ys compensation. 8.12 Timely Notice of Claims. Participant shall give Palm Desert prompt and timely notice of claims made or suits instituted that arise out of or result from ParticipanYs performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 8.13 Additional Insurance. Participant shall also procure and maintain, at its own cost and expense,any additional kinds of insurance,which in its own judgment may be necessary for its proper protection and prosecution of the work. 72500.00001\8548145.5 "J Contract No. 33700E 9. 1NDEMN[FICATION 9.1 "Chis Section 9 shall survive the expiration or termination of this Agreement. 9.2 Participant shall defend, indemnify and hold MSRC and Palm Desert and its affiliates, and any and all of its and their respective officers,directors, shareholders, employees,agents and representatives,and any and all of its and their assigns, successars, heirs and legal representatives, harmless from and against any and all claims,demands, litigation, settlements,judgments,damages, liabilities,costs and expenses(including, but not limited to,reasonable attorneys' fees)arising directly or indirectly out of or in connection with a breach of a��y representation,warranty or covenant of Participant hereunder or the negligent and/or willfully wrongful act or omission of Participant in performance of its obligations hereunder but only in proportion to and to the extent such liability, loss,expense, attorneys' fees,or claims far injury or damages are caused by or result from the negligent or intentional acts or omissions of Participant, its officers,agents,or employees. Palm Desert agrees to promptly notify Participant of any written claim or demand for which Participant is responsible hereunder. 93 Palm Desert shall defend, indemnify and hold Participant and its affiliates, and any and all of its respective officers, directors, shareholders,employees,agents and representatives, and any and all of its assigns, successors, heirs and legal representatives, harmless from and against any and all claims, demands, litigation, settlements, judgments, damages, liabilities, costs and expenses (including, but not limited to, reasonable attorneys' fees) arising directly or indirectly out of or in connection with a breach of any representation, warranty or covenant of Palm Desert hereunder or tl�e grossly negligent and/or willfully wrongful act or omission of Palm Desert in performance of its obligations hereunder. Participant agrees to promptly notify Palm Desert of any written claim or demand for which Participant is responsible hereunder. 10. LIMITATION OF LIABILITY 10.1 EXCEPT FOR THE WARRANTIES STATED HEREIN FOR PARTICIPANT, NO WARRANTY, CONDITION OR REPRESENTATION, EXPRESSED, IMPLIED, ORAL OR STATUTORY, IS PROVIDED TO PARTICIPANT OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY, CONDITION OR REPRESENTATION: (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) THAT THE CHARGER(S) WILL BE FREE FROM INFRINGEMENT OR VIOLATION OF ANY RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES; OR (C) THAT THE OPERATION OF ANY SOFTWARE SUPPLIED WILL BE UNINTERRUPTED OR ERROR FREE. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. PARTICIPANT'S SOLE AND EXCLUSIVE REMEDIES HEREUNDER AND THE ONLY LIABILITY OF PALM DESERT IS EXPRESSLY LIMITED TO THE TERMS OF THE AGREEMENT. PALM DESERT SHALL NOT BE LIABLE TO PARTICIPANT, OR ANY THIRD PARTY, FOR ANY OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, INCLUDING WITHOUT LIMITATION, LITIGATION COSTS, LOSS OF DATA, PRODUCTION OR PROFIT ARISING FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. FOR PURPOSES OF THIS PROVISION, PALM DESERT INCLUDES PALM DESERT'S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, SUBCONTRACTORS AND SUPPLIERS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY CLAIMS FOR DAMAGES BY EITHER PARTY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ACTUAL RECOVERIES UNDER SUCH PARTY'S INSURANCE POLICIES. 72500.00001\8548145.5 g Contract No. 33700E 1 I. GOVERN[NG LAW 11.1 Any claim or controversy arising out of or related to this Agreement, including without limitation warranty claims, shall be governed by the internal laws of the State of California,without regard to conflicts of law principles. Venue for any cause of action relating to this Agreement shall be the state and federal courts located in Riverside County,California. 12. MISCELLANEOUS PROVISIONS 12.1 This Agreement does not make either Party the agent ot• le�al representative of the other for any purpose and neither Party will transact any business oc make any promise or representations in the name of, or on behalf of,the other without prior written approval. 122 Grant. Any and all terms af the Grant received by Aalm Desert frorn MSRC which impact the relationship between Palm Desert and Participant, but not otherwise incorporated in this Agreement, are hereby incorporated herein by this reference. Participant hereby agrees to abide by any ancl all such terms of the Grant, if any. 12.3 Assi�nment and Enforcement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. The Agreement may not be assigi�ed by either Party aud any attempted assignment is void, unless upon the prior written consent of the noi�-assigning Party. In the event of a breach or threatened breach by any Party hereunder, the other Parly shall be entitled to all remedies provided by law or in equity, inchiding without limitation the right to specific perforrnance and damages. 12.4 Attornevs' Fees. In the event of litigation, arbitration or if an attorney is retained by either Party to this Agreement to enforce the terms hereof or to collect any monies due hereunder, the prevailing Party shall be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorneys' fees and court costs as awarded by the court or arbitrator. 12.5 Entire Agreement; Amendment This instrument contains the entire agreement of the Parties with respect to the subject matter hereof and no representations, warranties or inducements have been made by either of the Parties except as expressly set forth herein. This Agreement may only be amended (a) in writing executed by both Parties or (b) as required for the Agreement to conform to any local, state or federal government or regulatory agency or granting requirements applicable to Palm Desert. 12.6 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given on the earlier of actual receipt or two (2) days after deposit thereof in the United States mail in a sealed enve(ope, postage prepaid,registered or certified mail, and addressed to the address specified in this Agreement. 12.7 Counterparts. This Agreement may be executed by the Parties in separate counterparts, each of which when executed and delivered shall be an original, but all of which together shall constitute one and the same instrument. Facsimiles and email transmissions of ".pdf' or similar format shall be considered originals for purposes of this Agreement. 12.8 Severabilitv. If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason,the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be in any way impaired. 72500.0000118548145.5 9 Contract No. 33700E � 12.9 Waiver. A provision of this Agreement m�y be waived only by a written instrument executed by the Party waiving compliance.No waiver of any provision of this Agreement shal) constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of tl�is �greement shall not operate as a waiver of such provision or any other provision. IN WI'I'NESS WHEREOF, the Parties have executed this Agreement effective 1s of the date first above written. Ciiy of Palm Desert The Regents of the University of California, on behalf of the University of California,Riverside By: BY� Van G. Tanner,Mayor Maria R. Anguiano Vice Chancellor Planning and Budget Address: City of Palm Desert Address: University of California, Riverside 73-510 Fred Waring Dr. 900 University Avenue Palm Desert,CA 92260 Riverside, California 92521 Approved as to Form: Attest: By: BY� Counsel for City of Palm Desert Name: Its: Secretary 72500.00001\8548145.5 1� Contract No. 33700E Exhibit"A" Description and Depiction of Site and Schedule of Operation University of Califomia,Riverside located at 75-OSO Fra��k Sinatra Dr.,Palm Desert,CA 92211 Project site more generally described as UCR Palm Desert Campus parking lot B adjacentto sidewalk Exhibit"A" 72500.00001\8548145.5 City of Palm Desert Contract#/P.O. # C33700D CONSTRUCTION CHANGE ORDER Change Order No. 1 Contract Purpose: _EV Char�in� Stations Contingency: yes No X Contractors Name: Native Electric Construction Account No. 238-4515-442-3630 Description of Changes DECREASE INCREASE (Supplemental Plans and Specifications Attached) In Contract Price In Contract Price Addition of UCR site $15,000 Upgrade to dual use electric vehicle charging stations $19,464 Additional Fees (permitting,engineering, bond,etc.) $13,769 10% Contingency $ 4,823 TOTALS $53,056 NET CHANGE IN CONTRACT PRICE $53,056 You are hereby requested to comply with the following changes from the contract plans and specifications: JUSTIFICATION: Addition of UCR site to project, up�rade from single use electric vehicle char �i�ng stations to single use stations, miscellaneous costs associated with upgrade, and 10% contin�ency. The amount of the Contract will be(Decreased)(Increased by The Sum of: Dollars($53,056.00). Fifty-three Thousand and Fiftv-six Dollars This document will become a supplement to the contract and all provisions will apply hereto,all items included above must have requ' d signatures as per the purchasing resolution. 1.)ORDERED BY: 2.)ACCEPTED BY: D artment Head Contractor/Vendor 3.) CERTIFIED 4.)APPROVED BY: FUNDS AVAIL. Finance Director City Manager City Council Note:No Payments will be made prior to City Manager and Council approval.