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HomeMy WebLinkAboutPDR 2021-237 NoodoePUBLIC WORKS AGREEMENT (Uniform Cost Accounting Contract-DBMC Chapter 3.25) The following agreement ("Agreement") is made and entered into, in duplicate, as of the date executed by the City Manager and attested to by the City Clerk, by and between Noodoe EV California corporation hereinafter referred to as the "Contractor" and the City of Diamond Bar, California, hereinafter referred to as "City." WHEREAS, City received Contractor's bid on January 14 2021and WHEREAS, City accepted the bid of Contractor under its Uniform Public Construction Cost Accounting Ordinance, Diamond Bar Municipal Code Chapter 3.25 ("UPCCA Ordinance"); and WHEREAS, the UPCCA Ordinance authorizes the City Manager to execute written contracts with the Contractor for furnishing labor, equipment and material for the purchase, installation and startup of electric vehicle charging stations in the City. NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is agreed: 1. GENERAL SCOPE OF WORK: Contractor shall furnish all necessary labor, tools, materials, appliances, and equipment for and do the work for the electric vehicle charging stations in the City (the "Work"). The Work to be performed in accordance with the proposal dated January 141h 2021 (the "Proposal") on file with the City and in accordance with bid prices hereinafter mentioned and in accordance with the nstructions of the City's Project Manager, who is Claude Bradley Maintenance supervisor ( CBradley@Diamondbarca.gov ) herein by reference and made a part hereof with like force and effect as if set forth in full herein. The Proposal, Contractor's bid dated January 14 h 2021 ("Contractor's Bid") together with this Agreement shall constitute the entire agreement between the parties. This Agreement is intended to require a complete and finished piece of work and anything necessary to complete the work properly and in accordance with the law and lawful governmental regulations shall be performed by the Contractor whether set out specifically in this Agreement or not. Should it be ascertained that any inconsistency exists between the aforesaid documents and this Agreement, the following order of precedence shall apply: (1) this Agreement; (2) the Plans; and (3) Contractor's Bid (collectively, the "Contract Documents"). 3, COMPENSATION: Contractor agrees to receive and accept the prices set forth in its Contractor's Bid as full compensation for furnishing all materials, performing all Work, and fulfilling all obligations hereunder. Said compensation in the amount of Forty five thousand Dollars ($_45,000,00_) shall cover all expenses, losses, damages, and consequences arising out of the nature of the Work during its progress or prior to its acceptance, including those for well and faithfully completing the Work and the whole thereof in the manner and time specified in the Contract Documents; and also including those arising from actions of the elements, unforeseen difficulties or obstructions encountered in the prosecution of the Work, suspension or discontinuance of the Work, and all other unknowns or risks of any description connected with the Work. Final 1363002.1 payment to Contractor shall be withheld for at least 30 days after the time in which Contractor has verified, to the City's satisfaction, that it has submitted all information to the Department of Industrial Relations required by Labor Code §1773,34 4, TERM OF AGREEMENT/LIQUIDATED DAMAGES: Contractor agrees to complete the work within ninety 90 calendar days from the date of the notice to proceed (the "Completion Date"). Contractor agrees to the assessment of liquidated damages in the amount of two hundred Dollars ($200.00) for each calendar day the work remains incomplete beyond the expiration of the Completion Date. City may deduct the amount thereof from any monies due or that may become due the Contractor under this Agreement. Progress payments made after the scheduled Completion Date shall not constitute a waiver of liquidated damages. 5. INSURANCE: Contractor shall not commence work under this Agreement until it has obtained all insurance required hereunder in a company or companies acceptable to City nor shall the Contractor allow any sub -contractor to commence work on his sub -contract until all insurance required of the sub -contractor has been obtained. The Contractor shall take out and maintain at all times during the life of this contract the following policies of insurance: a. Workers' Compensation Insurance: Before beginning work, the Contractor shall furnish to the City a certificate of insurance as proof that he has taken out full workers' compensation insurance for all persons whom he may employ directly or through sub -contractors in carrying out the work specified herein, in accordance with the laws of the State of California. Such insurance shall be maintained in full force and effect during the period covered by this contract. In accordance with the provisions of Section 3700 of the California Labor Code, every Contractor shall secure the payment of compensation to his employees. The Contractor, prior to commencing work, shall sign and file with the City a certification as follows: "I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of work of this contract." b. For all operations of the Contractor or any sub -contractor in performing the work provided for herein, insurance with the following minimum limits and coverage: 1) General Liability - $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement or the general aggregate limit shall be twice the required occurrence limit. 1363002.1 b. For all operations of the Contractor or any sub -contractor in performing the work provided for herein, insurance with the following minimum limits and coverage: 1) General Liability - $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement or the general aggregate limit shall be twice the required occurrence limit. 2) Automobile - $2,000,000 per accident for bodily injury and property damage. 3) Employer's Liability - $1,000,000 per accident for bodily injury or disease. c. Each such policy of insurance provided for in paragraph b. shall: 1) Be issued by an insurance company approved in writing by City, which is authorized to do business in the State of California. 2) Name as additional insured the City of Diamond Bar, its officers, agents and employees, and any other parties specified in the bid documents to be so included; 3) Specify it acts as primary insurance and that no insurance held or owned by the designated additional insured shall be called upon to cover a loss under the policy; 4) Contain a clause substantially in the following words: "It is hereby understood and agreed that this policy may not be canceled nor the amount of the coverage thereof reduced until thirty (30) days after receipt by City of a written notice of such cancellation or reduction of coverage." 5) Waives all right of subrogation against all persons and entities specified in subparagraph 4.c.(2) hereof to be listed as additional insured in the policy of insurance provided for in paragraph b, by reason of any claim arising out of or connected with the operations of Contractor or any sub- contractor in performing the work provided for herein; 6) Otherwise be in form satisfactory to the City. d. The Contractor shalt, prior to performing any work under this Agreement, deliver to the City Manager or his designee the original 1363002.1 3 policies of insurance required in paragraphs a. and b. hereof, or deliver to the City Manager or his designee a certificate of the insurance company, showing the issuance of such insurance, and the additional insured and other provisions required herein, 6. PREVAILING WAGE: Notice is hereby given that in accordance with the provisions of California Labor Code, Division 2, Part 7, Chapter 1, Articles 1 and 2, the Contractor is required to pay not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public works is performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work. In that regard, the Director of the Department of Industrial Relations of the State of California is required to and has determined such general prevailing rates of per diem wages. Copies of such prevailing rates of per diem wages are on file in the Office of the City Clerk of the City of Diamond Bar, 21810 Copley Drive, Diamond Bar, California, and are available to any interested party on request. Contractor shall cause a copy of such determinations to be posted at the job site. Contractor shall forfeit, as penalty to City, not more than two hundred dollars ($200,00) for each laborer, workman or mechanic employed for each calendar day or portion thereof, if such laborer, workman or mechanic is paid less than the general prevailing rate of wages hereinbefore stipulated for any work done under this Agreement, by him or by any sub -contractor under him. Contractor and any of its sub -contractors must be registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5, which precludes the award of a contract for a public work on any public works project awarded after April 1 , 2015 to a person not registered. This Agreement is subject to compliance monitoring and enforcement by the Department of Industrial Relations. 7. APPRENTICESHIP EMPLOYMENT: In accordance with the provisions of Section 1777.5 of the Labor Code, and in accordance with the regulations of the California Apprenticeship Council, properly indentured apprentices may be employed in the performance of the work. Contractor is required to make contribution to funds established for the administrative of apprenticeship programs if he employs registered apprentices or journeymen in any apprenticeship trade on such contracts and if other Contractors on the public works site are making such contributions. Contractor and any sub -contractor under him shall comply with the requirements of Sections 1777.5 and 1777.6 in the employment of apprentices. Information relative to apprenticeship standards, wage schedules and other requirements may be obtained from the Director of Industrial Relations, ex-officio the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices. 8. LEGAL HOURS OF WORK: Eight (8) hours of labor shall constitute a legal day's work for all workmen employed in the execution of this Agreement, and the Contractor and any sub -contractor under him shall comply with and be governed by the t363002.1 4 laws of the State of California having to do with working hours set forth in Division 2, Part 7, Chapter 1, Article 3 of the Labor Code of the State of California as amended. Contractor shall forfeit, as a penalty to City, twenty-five dollars ($25.00) for each laborer, workman or mechanic employed in the execution of the contract, by him or any sub -contractor under him, upon any of the work hereinbefore mentioned, for each calendar day during which the laborer, workman or mechanic is required or permitted to labor more than eight (8) hours in violation of the Labor Code. 9. TRAVEL AND SUBSISTENCE PAY: Contractor agrees to pay travel and subsistence pay to each workman needed to execute the work required by this contract as such travel and subsistence payments are defined in the applicable collective bargaining agreements filed in accordance with Labor Code Section 1773.8. 10, CONTRACTOR'S LIABILITY: The City and its officers, agents and employees ("Indemnitees") shall not be answerable or accountable in any manner for any loss or damage that may happen to the work or any part thereof, or for any of the materials or other things used or employed In performing the work; or for injury or damage to any person or persons, either workers or employees of Contractor, of its sub -contractors or the public, or for damage to adjoining or other property from any cause whatsoever arising out of or in connection with the performance of the work. Contractor shall be responsible for any damage or injury to any person or property resulting from defects or obstructions or from any cause whatsoever. Contractor will indemnify Indemnities against and will hold and save Indemnitees harmless from any and all actions, claims, damages to persons or property, penalties, obligations or liabilities that may be asserted or claimed by any person, firm, entity, corporation, political subdivision, or other organization arising out of or in connection with the work, operation, or activities of Contractor, its agents, employees, sub- contractors or invitees provided for herein, whether or not there is concurrent passive negligence on the part of City. In connection therewith: Contractor will defend any action or actions filed in connection with any such claims, damages, penalties, obligations or liabilities and will pay all costs and expenses, including attorneys' fees, expert fees and costs incurred in connection therewith. b. Contractor will promptly pay any judgment rendered against Contractor or Indemnitees covering such claims, damages, penalties, obligations and liabilities arising out of or in connection with such work, operations or activities of Contractor hereunder, and Contractor agrees to save and hold the Indemnitees harmless therefrom. Contractor's obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, Toss, stop notice, cosf, 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, Contractor shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City provided such active negligence is 1363002.1 determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City active negligence accounts for only a percentage of the liability involved, the obligation of Contractor will be for that entire portion or percentage of liability not attributable to the active negligence of City. So much of the money due to Contractor under and by virtue of the contract as shall be considered necessary by City may be retained by City until disposition has been made of such actions or claims for damages as aforesaid. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California. This indemnity provision shall survive the termination of the Agreement and is in addition to any other rights or remedies which Indemnitees may have under the law. This indemnity is effective without reference to the existence or applicability of any insurance coverage which may have been required under this Agreement or any additional insured endorsements which may extend to Indemnitees. Contractor, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the Indemnitees, while acting within the scope of their duties, from all claims, losses and liabilities arising out of or incident to activities or operations performed by or on behalf of the Contractor regardless of any prior, concurrent, or subsequent passive negligence by the Indemnitees. 11. NON-DISCRIMINATION: Pursuant to Labor Code Section 1735, no discrimination shall be made in the employment of persons in the work contemplated by this Agreement because of the race, color, sex, mental disability, physical disability, religion or other reason set forth in Government Code § 12940 of such person. Contractor agrees to post in conspicuous places available to employees and applications, a notice setting forth provisions of this non-discrimination clause. A violation of this section exposes the Contractor to the penalties provided for in Labor Code Section 1735. 12. PAYMENT FUND: A City Council resolution established a Project Payment Account, encumbered money in the current budget, and assigned thaf money to the Project Payment Account, which is the sole source of funds available for payment of the contract sum set forth in Section 3 of this Agreement. Contractor understands and agrees that Contractor will be paid only from this special fund and if for any reason this fund is not sufficient to pay Contractor, Contractor will not be entitled to payment. The availability of money in this fund, and City's ability to draw from this fund, are conditions precedent to City's obligation to make payments to Contractor. 13. PRESENTATION OF CLAIMS: Any claim, as that term is defined in Public Contract Code §9204, shall be submitted in accordance with Section 9204 and shall contain a sufficient description of the claim, the basis therefore and documentation 1363002.1 availability of money in this fund, and City ability to draw from this fund, are conditions precedent to City's obligation to make payments to Contractor. 13. PRESENTATION OF CLAIMS: Any claim, as that term is defined in Public Contract Code §9204, shall be submitted in accordance with Section 9204 and shall contain a sufficient description of the claim, the basis therefore and documentation in support of the claim. The claim shall be processed as more fully set forth in the Plans and Specifications. 14. TERMINATION: This Agreement may be terminated by the City for any reason upon the giving of a written "Notice of Termination" to Contractor at lest thirty (30) days prior to the date of termination specified in the notice. Upon recei6kof such notice, Contractor shall immediately cease work, unless otherwise directed by the Notice of Termination. In the event of such termination, Contractor shall be paid for services satisfactorily rendered and expenses reasonably and necessarily inc4 red prior to the effective date of termination, unless the Notice of Termination is issued fir cause, in which event the City may withhold any disputed compensation. Contractor:ahall not be entitled to any claim for lost profits. State of California Contractor's License No. 770564 Clean fuel connection Contractor's Business Phone (323)400- 3827 Contractor's emergency phone which can be reached at anytime: 949 59L9989 IN WITNESS WHEREOF, the parties hereto have executed this Agreement with ail the formalities required by law on the respective dates set forth oppQ, e their signatures. [Full Name of Contractor] By: M Title: C Holding multiple corporate Officer roles, Date: By: Title: Date: 1363002A 7 CITY OF DIAMOND BAR, CALIFORNIA Daniel Digitally signed by Daniel Fox By: DN: cn=Daniel Fox, o, ou, Daniel Fox, G,'I�'mnm a �° F O �/ Date: 2021.06.02 08:22:38 /�-07'00' Date Krishna Digitally signed by Krishna Santana ATTEST: DN:an=Xrlstlna Santana, o=Cltyot Diamond Bar, ou=City Clerk Santanamail=ksantana@tliamondbarca gov, a=05 By: Date: 2021.09.2217:16:50 0T00' 9/22/2021 [Name], CITY CLERK APPROVED AS TO FORM: T:)av-ud ZD) David DeBerry, CITY ATTORNEY 5-28-21 Date *NOTE: if Contractor is a corporation, the City requires the following signatures): The Chairman of the Board, the President or a Vice -President, AND (2) the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate officer exists or one corporate officer holds more than one corporate office, please so indicate. OR -- The corporate officer named in a corporate resolution as authorized to enter into this Agreement. A copy of the corporate resolution, certified by the Secretary close in time to the execution of the Agreement, must be provided to the City. i36�uuz.i EXHIB A CITY OF DIAMOND BAR EV Charging Station Installation Agreement (See Noodoe EV's Purchase and MSA for Complete Product and Service Engagement) Installation Scone of Work Noodoe Inc. shall provide installation service to the City of Diamond Bar through a licensed and certified partner (the Service). The Service shall consist of installing five (5) level-2 UL Certified Noodoe charging stations plus one (1) single pedestal and two (2) dual pedestals in the parking lot as designated by the City of Diamond Bar, The Service performed shall include the following: A. Design and engineering B. Procurement and Installation of a step-down transformer (480V to 208V) C. Run approximately 100 feet conduit from panel "GLA" to the outside of the building in designated location next to ATS switch. D. Trench and backfrll approximately 90 feet to the furthest charging station and install PVC conduits to feed power to the new charging stations. E. Frame and pour three (3) pedestal pads. F. Run power conductors from panel °GLA° to new charging stations. G. Install charging stations H. Installation of wheel stops J. Procurement and Installation of signage K. Stripping of parking stalls L. Commissioning of charging stations. M. Procurement of all requisite permits; City shall waive all permit fees for this project N. Restoring landscaping and irrigation that are impacted by this project CITY OF DIAMOND BAR EV Charge Station Purchase and Master Service Agreement This purchase agreement (hereafter referred to as the "Agreement") is made between City of Diamond Bar (the "CUSTOMER"); located at Diamond Bar City Hall, 21810 Copley Dr., Diamond Bar, CA 91765, and Noodoe lne. (hereafter referred to as "NOODOE" or "SELLER"), a California corporation with its place of business at 9351 Irvine Blvd, Irvine, CA 92618, (hereafter collectively referred to as "Parties"). This Agreement is for the sale and purchase of EV charging products, software licenses, and services. Therefore, in consideration of the mutual covenants and agreements hereinafter set forth and for other good wad valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: ARTICLE 1. PRODUCTS AND PRICING 1.1 Description of Products and Term of Agreement NOODOE shall sell to CUSTOMER, and CUSTOMEK shall purchase from NOODOE, Charging Stations in the United States of America (U.S.A.). The specifications of the Charging Stations are shown in Appendix,4 ]..2 Pricing and Service Fees The pricing structure of the Charging Stations and NOODOE's service fees are set forth in Appendix B. 1.3 Training NOODOE must host, at its own expense, and CUSTOMER shall attend training sessions of Noodoe EV OS. Training topics include, but not limited to the following: (1) How to set up a Noodoe EV charging site (2) How to activate a Noodoe EV charging station (3) (if applicable) How to manage a Noodoe EV charging site CU5TOMER will be able to use the management software remotely. NOODOE will provide software, maintenance, and on -going service for NOODOE EV Charging Stations until the Chargers are no longer in service. ARTICLE 2. INVOICING AND PAYMENT 2.1 Invoicing 3.1 Subscription to STRIPE The Charging Stations are designed to work with STRiPE's czedit card processing services. CUSTOMER agrees that it and/or its customers must open an account with STRIPE and enter into an agreement with STRIPE to process all customer payment transactions through STRIPE. 3.2 Credit Card Transaction Fees Each customer credit card transaction at a NOODOE Charging Station will be processed by STRIPE and incur the following fees: (1) For each domestic US credit card transaction —a STRIPE service fee is charged (2.9%+30) as set forth in the current Master Services and Subscription Agreement between CUSTOMER's customer and STRIPE, or (2) For each international credit card transaction —a STRIPE service fee is charged as set forth in the current Master Services and Subscription Agreement between CUSTOMER and STRIPE. ARTICLE 4. REVENUE SHARING 4.1 NOODOE SHALL COLLECT ALL REVENUES from Apple Pay, Google Pay, credit card(s), and/or any updated payment method during the term of this AGREEMENT. NOODOE's charging code is not available for the five (5) installed EV Charger(s). 4.2 NOODOE and CUSTOMER shall split Charge Service Revenues 50 / 50. (a) Charge Service Revenue is defined as the revenue earned per charge session net of NOODOE's $1 per charge session usage fee, and net of the STRIPE credit card handling fee per each successful STRIPE transaction. The STRIPE credit card handling fee is further described in Article 4 and is subject to STRIPE's Master Services and Subscription Agreement, Appendix A. PRODUCT SPECTFTCATIONS Noodoe EV Level 2 AC Commercial Charger Power Input Power 200-240 Vac, 50H7J60Hz, Single-phase Output Power 200-240 Vac, 50Hz160Hz, Single-phase, 32A, 7,6kW maximum Charging Plug Interface SAE J1772 AC Level 2 Protection Over current, Under voltage, Overvoltage, Surge protection, Over temperature, Ground fault User Interface & Management Cloud Service Noodoe EV OS LED Indicator v RHO v Read er (User Authe nticati on) Communication Network Interface Ethernet Charging Protocol OCPP 1.6 JSON Mechanical & Regulation Dust and Water IP55 Resistant Operating Temperature -220 to 1220F (-300 to 5O°C) Certificate UL, cUL industrial grade 4G router, with auto recovery Industrial grade Ethernet switch Interface LAN 2 x Ethernet port (RJ45) Power DC power adaptor Network Support 4G LTE 82/84/B5/812/B13/814 Environmental Operating Temperature -22" to 158OF (-30" to 70°C) Interface LAN 10/100 Base -Tx RJ45 ports Power I DC power adaptor. Environmental Operating Tam erature -220F — 158OF (- 30°C — +70°C Appendix B. COST OF MATERTAT, AND SERVICE FEES Cost Breakdown List of Materials and Costs Qty. Description Cost Total 5 Noodoe W2000 Charger with Pedestals $ 800.00 $4,000.00 1 Conduit $1,500.00 $11500.00 1 Hardware $1500.00 $1$00.00 1 Breaker $11500.00 $1,500.00 1 Wire $1,500.00 $1,500.00 3 Concrete rooting/foundation 6" thick $ 465.00 $1,395.00 106 Building wire specialist $ 110.00 $11,660.00 1 Engineering and Designs $ 6,713.00 _ $67713.00 112 Journeyman Electrician $ 136.00 $150232,00 Total $45,000.00 1. Warranties/Limitation of Liability A. Warranty. The Charging Station is covered by the terms of NOODOE's standard parts only product Warranty (the "Warranty"), which will expire 2 years from the date of installation. Warranty covers the replacement of new A/C models free of charge with the exception of End of Life chargers. All applicable warranties with respect to the Charging Station are set forth in the Warranty and are hereby incorporated by reference into these Terms. Insurance: NOODOE shall provide product liability insurance for hardware and software only. The Extended Warranty fee of $49,99 per unit per year shall be waived. B. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 1, NOODOE MAKES NO WARRANTY WITH RESPECT TO THE PERFORMANCE OF THE CHARGING STATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, NOODOE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON -INFRINGEMENT OF THIRD -PARTY RIGHTS BYTHE CHARGING STATIONS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NOODOE DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF CHARGING STATIONS, C. Limitation of Liability. i. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, EXCEPT FOR A PARTVS INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL NOODOE BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREUNDER, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER'S SOLE REMEDY FOR ANY BREACH BY NOODOE OF ITS 08LIGATIONS OR WARRANTIES UNDER THESE TERMS SHALL BE LIMITED 70, AT NOODOE'S OPTION, REPAIR OR REPLACEMENT OF THOSE CHARGING STATIONS TO WHICH SUCH BREACH IS APPLICABLE OR REFUND BY NOODOE OF ALL OR A PART OF THE PURCHASE PRICE OF THE NON -CONFORMING CHARGING STATIONS, D. Warranty Exclusions. The Warranty set forth in these Terms is subject to certain excluslans as more fully set forth in the Warranty. CUSTOMER HAS BEEN INFORMED AND UNDERSTANDS THAT, IN THE EVENT ANY SUCH EXCLUSION BECOMES APPLICABLE, ALL REPRESENTATIONS AND WARRANTIES CONTAINED IN THESE TERMS SHALL IMMEDIATELY BECOME NULL AND VOID. E. End of Life (FOCI. Noodoe reserves the right to discontinue manufacturing of any Product. If during the term of this Agreement, Noodoe decides to discontinue any Product, Noodoe shall inform CUSTOMER in advance of the Product EOL and work with CUSTOMER to ensure business continuity, Noodoe reserves the right to discontinue support to any EOL Product at any time with reasonable advance notice to CUSTOMER. CUSTOMER may purchase extended support on EOL products from Noodoe if extended support on EOL products is available. 2. Intellectual Property A. Restrictions on Use CUSTOMER shall not: (1) create derivative works based on the Charging Systems, (H) copy, frame or mirror any part or content of the Charging Systems, (iii) reverse engineer any Charging Station, or (iv) access the Charging Systems for any improper purpose whatsoever, including, without limitation, in order to (A) build a competitive product or service, or (B) copy any features, functions, interface, graphics or "look and feel" of the Charging Stations. B. Ownership of Intellectual Property All right, title and interest in and to any intellectual property related in any way to the Charging Systems is, and shall remain, the exclusive property of NOODOE. For these purposes, the term 'Intellectual property" shall mean, all of a party's patents, patent applications, patent rights, copyrights, moral rights, algorithms, devices, application programming interfaces, databases, data collections, diagrams, inventions, methods, and processes (whether or not patentable), know-how, trade secrets, trademarks, service marks and other brand identifiers, network configurations and architectures, proprietary information, protocols, schematics, specifications, software (in any form, including source code and executable code), techniques, interfaces, URLs, web sites, works of authorship, and all other forms of technology, in each case whether registered with a governmental entity or embodied in any tangible form and all rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world in any way arising prior to or during the term of these Terms. 3. General A. Attorneys' Fees If any action at law or in equifiy is necessary to enforce the terms of these Terms, each party will pay its own fees, cost, and expenses. B. Force Majeure Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account strikes, shortages, riots, insurrection, fires, flood, storm, explosion, acts of God, war, governmental action, labor conditions, earthquakes, or any other cause which is beyond the reasonable control of such party. C. Waiver The failure of either party to require performance by the other party of any provision hereof shall not affect such party's full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. D. Severability In the event that any provision of these Terms shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render these Terms unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted as to best accomplish the objectives of such provisions within the limits of applicable law or applicable court decisions. E. Assignment The rights and liabilities of the parties hereto shall bind and inure to the benefit of their successors, executors or administrators, provided, however, that neither NOODOE nor CUSTOMER may assignor delegate these Terms or any of its licenses, rights or duties under these Terms, whether by operation of law or otherwise, without the prior written consent of the other party in its reasonable discretion; provided, however, that CUSTOMER and NOODOE shall each be entitled to assign these Terms to an affiliate or to its successor in interest by way of merger, acquisition of substantially all of the assets of Assignor or any similar event (collectively, "Acquisition Transactions"); and provided further, however, that notwithstanding any Acquisition Transaction, CUSTOMER shall not assign these Terms to any competitor of NOODOE without NOODOE's prior written consent, in its sole discretion. Any attempted assignment in violation of this provision shall be void. F. Notices Any notice, request, demand or other communication by the terms hereof required or permitted to be given by one part to the other shall be given in writing by email with confirmation of receipt, certified or registered mail, return receipt requested, fax or courier addressed to such other party or delivered to the address for each party set forth below their respective signatures, or at such other fax, email address or office address as may be given from time to time by either of the parties. G. Controlling Law These Terms shall be governed in all respects by the laws of the State of California, exclusive of conflicts of law principles. H. Entire Agreement These Terms and the attachments hereto constitute the entire agreement between the parties regarding its subject matter. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. These Terms shall not be modified unless done so in a writing signed by an authorized representative of each party. These Terms and the attachments hereto constitute the entire agreement between the parties regarding its subject matter. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. These Terms shall not be modified unless done so in a writing signed by an authorized representative of each party. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the last date listed below. Service Recipient: Clty of Diamond Bar By: Name: Title: Phone: Service Provider: DATE: NOODOE INC. By: ���} DATE: 05-05-2021 Jennifer Chang, CEO jenniferchang@noodoe.com 909-468-1118 10 A D® CERTIFICATE OF LIABILITY INSURANCE DATEiMMIODIYYYY) 4/2i2921 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER($), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER, IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsements . PRODUCER Foley Business Insurance Agency, Inc. PO Box 4945 Chatsworth CA 91313 ACT NAME: Jeremy Foley PHO16&NE Ea. 818-386-8913 Fa1c No: 818.450-0126 EJ A_N Do Ess: folpytns@gmall.com _ INSURER 6 AFFORDING COVERAGE NAIC p INSURER A: Colony Insurance Company 39993 INSURED EVCHAA INSURER 9: Starstone National Ins CO 25496 INSURER c: Hartford Insurance Co 29424 Remmet 8, LLC 11800 Clark Street Arcadia CA 91006 — INSURER D: Market Insurance Co INSURER E: INSURER F: V THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. _ LTR TYPEOFINSURANCE ADDLS POLICY NUMBER MMIDIDIEYV 7/24/2020 MMI�DNYXYY 712412021 LIMITS EACH OCCURRENCE E 1,000,000 A GENERAL LIABILITY PACEP4245703 T_AWA­Gr`rURfN­ PRESES Ea accuTE ence $100,000 X COMMERCIAL GENERAL LIABILITY CLAIMSMADE1XIOCCUR MED EXP An on son) Eb,000 PERSONAL B ADV INJURY Ei,000,ow GENERAL AGGREGATE E2,000,000 PRODUCTS - COMP/OPAGG E240001000 GENL AGGREGATE LIMIT APPLIES PER: X I POLICY 0 JECO LOC AUTOMOBILE LIABILITY Ea ccmdeDn51NGLE LIMIT E E _ ANY AUTO BODILY INJURY (Per person) E ALL OWNED r 1 SCHEDULED BODILY INJURY (Par accident) E AUTOS AUTOS NON -OWNED HIRED AUTOS AUTOS PPaOr ac-Ritl pA RAGE S E B UMBRELLALIAB X OCCUR 77504R201ALl 712612020 7/26/2021 EACHOCCURRENCE sstpe,o00 X EXCESS LIAR CLAIMS -MADE AGGREGATE E5,000,000 C N/A 72VVECAJBLYP 12/3012020 1=012021 X NC STATu- OEH- S 060 RETENTIONS WORKERS COMPENSATION AND EMPLOYERS'LIABILITY YIN ANY PROPRIETORIPARTNERIEXECUTIVE OFFICEWMEMBER E%CLUDED7 M (Mandaloryln NH) E.L. EACH ACCIDENT S1,BOD,000 E.L. DISEASE - EA EMPLOYEE E1,000,000 I1 yes, describe under DESCRIPTION OF OPERATIONS thomv E.L. DISEASE, POLICY LIMIT 51,000,000 D PROPERTY: I BUSINESS PERSONAL PROPERTY:: MKLM51MG062336 12/3V2020 12nli/?021 Limit: 21400,000 LIMIT: 50,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (Attach ACORD 1011 Additional Remarks Schedule, If more space is required) 'Except 10 days Cancellation Notice for Non -Payment or Non -Reporting of Premium. U,S. Small Business Administration Office of Processing and Disbursement, 14926 Kingsport Road, Fort Worth, TX 761651s named as Loss Payee per the attached endorsement form#IM7902. �erc I Irwn I c nvwcn U - SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL 8E DELIVERED IN U.S. Small Business Administration ACCORDANCE WITH THE POLICY PROVISIONS. Office of Processing and Disbursement 14925 Kingsport Road Fart Worth TX 76155 AUTHORIZED REPRESENTATIVE Sot 7aao-w7unwnr. wr.r-.,,..,,,..,., ..,, a ...---.._ ACORD 25 (2010/06) The ACORD name and logo are registered marks of ACORD AAis IM, 7002 01 12 LOSS PAYABJ_.E SGHEDULE (The entries required to complete this schedule will be shown below oronthe "schedule of coverages'.) Indicate applicable provision: [Xj Loss Payable ( j Lenders Loss Payable [ j Contract of Sale SCFIEDULE Location Covered Name and Address Number Address Property of Loss Paves We will pay any and Lail loss payees according to written contracts as thelr interests may appear. Copyright. Ametican Association of Insurance Servioes,lnb., 2092 Av oCERTIFICATE OF LIABILITY INSURANCE DAM 4i26/20s2a® zl THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER, IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(les) most be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In Ileu of such endorsement(s). PRODUCER Foley Business Insurance Agency, Inc. PO BOX 4945 Chatsworth CA 91313 CAMEFCT Jeremy FOIE _ PHONE e E t: 818�86-8913 FAX Alc No:818-45D-0126 aDDREs foIeyIns@qmaILCOm INSURERS AFFORDING COVERAGE NAIC q INSURER A: COIOnY Insurance Company 39993 INSURED EVCHAA EV Charging Solutions, Inc. 11800 Clark Street Arcadia CA 91006 INSURERS: Starstone National Ina Co 25496 INSURER Or Hartford Insurance Co 29424 INsuRERD: Markel Insurance Cc INSURERE: Scottsdale Insurance 41297 INSURER F: OnVFRAnFS CERTIFICATE NUMBER: 1440194862 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, N­BRTR TYPE OF INSURANCE O WAR aft WVDF POLICY NUMBER POLICYEFFYY MMtOGMY 7/242020 POLICYEXP MMIDD/YY 7/2412021 MITS A GENERALLIADILITY X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE lxl OCCUR PACEP4246703 EACH OCCURRENCE $1,00010DO PREMISES Ea occurrence $Home MED EXP(Any one person) S51000 PERSONAL &ADV INJURY s1,000,000 GENERALAGGREGATE Sz000,600 PRODUCTS - COMP/OPAGG S2,000000 GENL AGGREGATE LIMIT APPLIES PER: POLICY j LOG $ —XI AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOSULE NON-OS)WNE0 HIRED AUTOS AUTOS Ee accident SINGLE LIMIT BODILY INJURY (Per person) S BODILY INJURY tPer accident) $ PeOsophism)DAMAGE $ B UMBRELLA LIAR EXCE36 LIAB X OCCUR CLAIMS -MADE 77504R201ALi 7I252020 7/25/2021 EACH OCCURRENCE $ 500001000 X AGGREGATE $5,000,000 DED RETENTION$ $ C WORKERS COMPENSATION ANDEMPLOYERS'LIABILITY YIN ANY OFFICERIMEMBER/EXC UDED7 ECUTiVE FYI (Mandatory In NH) If yes, describe under DESCRIPTION OF OPERATIONS below NIA 72WECAJ8LYP 12/30/2020 121302021 X WCSTATU- 2- EL. EACH ACCIDENT $ 71600,000 E,L. DISEASE - EA EMPLOYEE $1,000,000 E.L. DISEASE -POLICY LIMIT $1,000,OBO D E PROPERTY: BUSINESS PERSONAL PROPERTY: EMPLOYMENT PRACTICES LIABILITY: MKLM5)MW52336 EKS3376539 12/312020 4/16/2021 121312021 4/162022 PROP Limit: 214MI000 BPP Limit 501000 EPL Limit: 1A0g000 DESCRIPTION OF OPERATIONS) LOCATIONS IVEHICLES (Attach ACORD 101, Additlonal Remarks Schedule, if more space is required) 'Except 10 days Cancellation Notice for Non -Payment or Non -Reporting of Premium. City of Diamond Bar 21810 Copley Drive Diamond Bar, California 91765, TF H(ll nFR fi7_�JCA�MAii[i701 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ............ 1. ACCORDANCE WITH THE POLICY PROVISIONS. City of Diarnond:Bar� 21810 Copley Drive Diamond Bar CA 91765 _ AUTHORRED REPRESENTATIVE -- .�-- ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010106) The ACORD name and logo are registered marks of ACORD September 30, 2021 Jennifer Chang Noodoe, inc. 9351 Irvine Blvd Irvine CA 92618 SUBJECT: NOTICE TO PROCEED FOR THE CITY HALL ELECTRIC VEHICLE CHARGING STATION PROJECT. We are pleased to provide this notice and authorize you to proceed with the subject project. This notice shall be effective as of September 30, 2021 If you have any questions, please feel free to contact me Mr. Claude Bradley Maintenance Supervisor, at (909) 839-7064 or cbradley@diamondbarca.aov Sincerely, Claude Bradley Maintenance Supervisor c. c. David Liu, Public Works Director/City Engineer ��r'r�y f�. Ly�vrs Stuih F.R. ! �w A;�dr�vu G&�au S�cacr L[J 54�v� Yyo Mayor Mayor Pro Tem Council Member Council Member Council Member City of Diamond Bar 121810 Copley Drive Diamond Bar CA 91765-4178 www.DiamondBarCA.gov 1909.839,7000 Fax 909.861.3117