HomeMy WebLinkAboutDocumentation_Special Meeting_Tab 01_1/31/2022Agenda Item #1.
Special Council Meeting
STAFF MEMO
Meeting: Special Council Meeting - Jan 31 2022
Staff Contact: Jeremy Allen, Village Manager Department: Manager
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Consider Agreement Between ChargePoint and the Village of Tequesta to Provide Charging Stations
and Services at the Recreation Center
Staff is recommending an agreement between ChargePoint and the Village of Tequesta to provide
charging stations and services to the Recreation Center.
During the approval of the site plan for the Recreation Center, charging stations were included in the
planning and approval.
Summary of the agreement:
- ChargePoint will install, maintain, and service the stations
- Each station will be an annual service fee of $2040 for a 5 year agreement. We will have 2 stations
with 2 outlets for each station.
- The Charging stations will be a pay per use station
• Village will set price for charging
• Village will receive 90% of all revenue received from the pay per use
• ChargePoint will collect fees and remit check to the Village
• Typical fees would range from $.10 - $.30 per hour to cover utility cost. Average charges to
cover total cost is recommended $.70 - $1.25 per hour.
- Staff would have access to Cloud based service to view usage reports and set fees
• Cloud service included in annual fee
- Stations will utilize a cell service to communicate
• Cell service included in annual fee
The agreement has been reviewed by legal and is determined to be legally sufficient.
This document and any attachments may be reproduced upon request in an alternative format by completing
our Accessibility Feedback Form, sending an e-mail to the Village Clerk or calling 561-768-0443.
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Agenda Item #1.
BUDGETED AMOUNT: AVAILABLE AMOUNT: EXPENDITURE AMOUNT:
$21,108.80 $4080.00
Additional Budgetary Information: Funding Source(s):
001-231-546.306 General Maintenance
Please DocuSign Teguesta Village of - Charge
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CHARGEPOINT AS A SERVICE AGREEMENT
This ChargePoint as a Service Agreement (this "Agreement") is made and entered into by
and between The Village of Tequesta, a municipality, with its principal office located at 345
Tequesta Drive, Tequesta, FL ("Subscriber"), and ChargePoint, Inc., a Delaware corporation with
its principal office located at 254 East Hacienda Ave, Campbell, CA 95008 ("CPI or "ChargePoint")
as of the date this Agreement executed by the Parties (the "Effective Date"). Subscriber and CPI are
each sometimes referred to herein as a "Party" and collectively as the "Parties."
PURPOSE OF THE AGREEMENT
This Agreement describes the terms and conditions pursuant to which ChargePoint will
provide electric vehicle ("EV") charging services to EV drivers (the "Service"). Under the terms of
the Service, Subscriber will be entitled to select the locations (each, a "Location"), and the prices, at
which EV drivers may charge. The Service is offered as a subscription. In order to deliver the
Service, ChargePoint will install one or more EV charging stations ("Charging Stations") at each
Location after consultation with, and at Locations acceptable to, Subscriber.
1. AGREEMENT TERM; SUBSCRIPTION TERM; EXHIBITS.
1.1. CPI offers subscriptions to Services for a term agreed to by CPI and Subscriber (each,
a "Subscription"). CPI shall provide the Service to Subscriber throughout the entire period of the
applicable Subscription. Except as set forth in Section 6, a Subscription is binding and may not be
canceled. In case of any attempted early cancellation or termination of a Subscription by Subscriber
not otherwise permitted under Section 6 of this Agreement, Subscriber must pay the remaining
balance of the subscription fees for the applicable Subscription.
1.2. Each Subscription will commence ninety (90) days from the invoice date, as
described under Section 2. 1, and will last for the applicable term purchased. All renewal
Subscriptions will begin on the day following the expiration date of an applicable Subscription (the
"Renewal Date").
1.3. This Agreement includes the following Exhibits, which are made a part of, and are
hereby incorporated into, this Agreement by reference. In the event of any conflict between this
Agreement and any Exhibit, this Agreement shall prevail. Capitalized terms not otherwise defined
in an Exhibit shall have the meaning ascribed to them in this Agreement.
1. Exhibit 1: Flex Billing
2: Exhibit 2: Terms Regarding Granting and Receipt of Rights
3. Exhibit 3: Insurance Policy Requirements
2. INVOICING; PAYMENT.
2.1. Subscriber will be billed, annually in advance, for subscription fees for an applicable
Subscription. ChargePoint will invoice Subscriber on or after the date the applicable Charging
Station(s) associated with an applicable Subscription is shipped to Subscriber. Thereafter,
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ChargePoint will invoice Subscriber on the Renewal Date. All invoices are due within thirty (30)
days of the invoice date.
2.2. Invoices not paid when due are subject to interest at the rate of one and one-half percent
(1.5%) per month or, if less, the highest rate allowed under applicable law. If any amount owing by
Subscriber under this Agreement is more than thirty (30) days overdue, CPI may, without otherwise
limiting CPI's rights or remedies, terminate the subscription, suspend the provision of the Service,
and/or enter onto Subscriber's premise for the purpose of reclaiming the Charging Stations.
Subscriber shall be liable for all costs, including reasonable attorneys' fees and Charging Station
recovery fees, incurred by CPI in connection with its efforts to collect any past due amounts.
Subscriber is required to pay all amounts due and owing during its chosen Subscription Term
regardless of whether it is using the Service.
3. INSTALLATION AND MAINTENANCE OF CHARGING STATIONS.
3.1. Site Preparation and Installation of Chamirug Stations.
3.1.1. After consultation with Subscriber, parking spaces at an applicable Location will be
designated (the "Designated Parking Spaces") for installation of the Charging Stations. Before
installation, Subscriber shall be responsible for performing Site Preparation, as described below. For
Subscriber's convenience only CPI may provide contact information of certain operations and
maintenance partners (each, a "CPI Partner"), who can assist Subscriber with Site Preparation. All
Site Preparation services, whether performed by a CPI Partner or other third party, on behalf of
Subscriber shall be performed pursuant to a separate agreement between such CPI Partner or other
third party and Subscriber ("Separate Agreement"). The Parties agree that, in providing such
information, CPI makes no representation or warranty of any bind, nor does CPI take or assume any
liability in connection with the Separate Agreement. For purposes of this Agreement, the term "Site
Preparation" shall mean, without limitation, performing any electrical service upgrades, installing
conduit runs, running wiring, installing cell repeaters, ensuring cellular coverage and other site work
necessary to provide adequate power and connectivity to each of the Designated Parking Spaces
according to CPI's published Site Design Guide specifications. Please visit CPI's training website
available at https:Hchargepoint.ent.box.com/v/cp-university for instructions on how to access CP
University and access to the relevant Site Design Guide specifications.
3.1.2. After Subscriber completes Site Preparation, Subscriber will notify ChargePoint
that Charging Stations may be installed at the Designated Parking Spaces. Notice must be provided
with the Construction Signoff Form found at.www.chargepoint.com/guides/. If Subscriber does not
use a ChargePoint Partner to complete Site Preparation and if ChargePoint attempts to install the
Charging Stations but is unable to do so because the Site Preparation has not been completed in
accordance with ChargePoint's published specifications, Subscriber agrees to pay a re -dispatch fee
of $300 within thirty (30) days of receipt of ChargePoint's invoice for such fee. Once the applicable
Charging Station(s) have been installed, Subscriber may not move the Charging Stations from the
Designated Parking Spaces. Charging Stations and replacement parts installed pursuant to this
Agreement may be new or refurbished and equivalent to new in performance and reliability.
3.2 Maintenance of Charging Stations
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3.2.1. ChargePoint shall ensure that the Charging Stations function in the manner required
to provide the Service. In the event Subscriber knows of or becomes aware of any malfunctioning
Charging Station, Subscriber shall promptly notify CPI of such malfunction. ChargePoint will
respond to Subscriber within I (one) business day of learning of a malfunctioning Charging Station.
Subscriber will cooperate with CPI, so that CPI may remotely diagnose an issue with the Charging
Station. ChargePoint is responsible for servicing, repairing, modifying, and adjusting Charging
Stations. Subscriber shall not directly or indirectly service, repair, modify or adjust any Charging
Station. ChargePoint's obligations include providing labor and parts coverage for vandalism,
damage or other problems caused by accidents or negligence; provided that, ChargePoint reserves
all rights to charge Subscriber for all costs incurred for unauthorized services, repairs, modifications
and adjustments to the Charging Station caused by Subscriber, its employees, agents.
3.2.2. ChargePoint's obligations under this Section 3 do not include repairing, replacing
monitoring or servicing anything other than the Charging Stations. For example, ChargePoint will
not configure, repair, replace or otherwise maintain repeaters installed by Subscriber as part of the
Site Preparation Process.
3.2.3. Subscriber agrees that it shall not interfere with, or cause its employees or agents to
interfere with, CPI's performance of maintenance services, or in any other way interfere with CPI's
responsibilities under this Agreement.
3.2.4. Subscriber agrees to provide CPI or its service partners with access, during normal
business hours (9:00 a.m. to 5:00 p.m., Monday to Friday), to the Charging Stations to perform
required maintenance work. In addition, Subscriber shall designate and keep current a Subscriber
manager in its ChargePoint Cloud Service account, who shall act as Subscriber's sole liaison with
CPI for those matters covered by this Agreement.
3.2.5 Subscriber agrees, at its own expense and at all times during the Subscription, to
keep public areas, parking spaces, streets and sidewalks appurtenant to the Designated Parking
Spaces reasonably free of debris and rubbish and in good repair and condition.
4. CLOUD SERVICES. During a Subscription, ChargePoint shall make available to
Subscriber the software -as -a- service offering ("ChargePoint Cloud Service") that will permit
Subscriber to, among other things, designate who may use the Charging Stations to charge an electric
vehicle and the price charged for such use. The ChargePoint Cloud Services are an integral part of
the Service and all references in this Agreement to the Service shall be deemed to include a reference
to the ChargePoint Cloud Services.
5. RESPONSIBILITIES AND AGREEMENTS.
5.1 OPERATION OF THE CHARGEPOINT NETWORK. In addition to maintenance
obligations set forth in Section 3 of this Agreement, CPI shall be solely responsible for: (i)
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provisioning and operating, maintaining, administering and supporting the open -platform network
of electric vehicle charging stations and the vehicle charging applications the network delivers, that
is operated and maintained by CPI (the "ChargePoint Network"); (ii) provisioning and operating,
maintaining, administering and supporting the applications offered on the Cloud Services; and (iii)
operating the ChargePoint Network in compliance with all applicable laws. CPI will protect the
confidentiality and security of all personally identifiable information in accordance with all
applicable laws and regulations and the CPI Privacy Policy.
5.2 LIMITATIONS ON RESPONSIBLITY. CPI shall not be responsible for, and makes
no representation or warranty with respect to the following: (i) continuous availability of electrical
service to any of Subscriber's Charging Stations; (ii) continuous availability of any wireless or
cellular communications network or Internet service provider network necessary for the continued
operation by CPI of ChargePoint; and (iii) availability of or interruption of the ChargePoint Network
attributable to unauthorized intrusions.
5.3 SUBSCRIBER'S RESPONSIBILITIES AND AGREEMENTS FOR CLOUD
SERVICES
5.3.1 GENERAL. All use of the ChargePoint Cloud Services by Subscriber, its
employees and agents shall comply with this Agreement. All ChargePoint Cloud Services account
details, passwords, keys, etc. are granted to Subscriber solely for Subscriber's own use, and
Subscriber shall keep all such items secure and confidential. Subscriber shall use reasonable efforts
to prevent, and shall be fully liable to CPI for, any unauthorized access to, use of or damage to the
ChargePoint Network or ChargePoint Cloud Services arising as a result of Subscriber's breach of its
obligations as a result its failure to comply with its obligations under this Section 5.3.1. Subscriber
shall immediately notify CPI upon becoming aware of any such unauthorized use.
5.3.2 USE RESTRICTIONS AND LIMITATIONS OF CLOUD SERVICES.
Subscriber shall not:
a) sell, resell, license, rent, lease or otherwise transfer the Services or any data
collected or maintained by CPT in connection with the operation of ChargePoint therein to any third
party;
(b) interfere with or disrupt the Services, the ChargePoint Network, servers, or
networks connected to the ChargePoint Cloud Services, or disobey any requirements, procedures,
policies, or regulations of networks connected to the ChargePoint Network;
(c) attempt to gain unauthorized access to the ChargePoint Network or the Services
or related systems or networks or any data contained therein, or access or use the Services through
any technology or means other than those provided or expressly authorized by CPI;
(d) reverse engineer, decompile or otherwise attempt to extract the source code of the
Services, including, without limitation, the Charging Stations and cloud services, or any part thereof,
except to the extent expressly permitted or required by applicable law;
(e) create derivative works based on the ChargePoint Network, the Services, or any
of ChargePoint's various trademarks, service marks, trade names, logos, domain names, and other
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distinctive brand features and designations used in connection with ChargePoint and/or CPI
manufactured Charging Stations, (the "CPI Marks") and all other CPI -supplied material developed
by CPI;
(f) remove, conceal or cover the CPI Marks or any other markings, labels, legends,
trademarks, or trade names installed or placed on the Charging Stations or any peripheral equipment
for use in connection therewith;
(g) except as otherwise expressly permitted by this Agreement or in any applicable
data sheet relating to the Service, copy, frame or mirror any part of the Service, other than copying
or framing on Subscriber's own intranets or otherwise solely for Subscriber's own internal business
use and purposes;
(h) access the ChargePoint Network, any part of the Services for any competitive
purpose, or for any improper purpose whatsoever, including, without limitation, in order to build a
competitive product or service or copy any features, functions, interface, graphics or "look and feel;"
(i) use any robot, spider, site search/retrieval application, or other device to retrieve
or index any portion of the Services or collect information about ChargePoint users for any
unauthorized purpose;
0) upload, transmit or introduce any malicious code to ChargePoint or Services;
(k) use any of the Services if Subscriber is a person barred from such use under the
laws of the United States or of any other jurisdiction; or
(1) use the ChargePoint Cloud Services to upload, post, display, transmit or otherwise
make available (i) any inappropriate, defamatory, obscene, or unlawful content; (ii) any content that
infringes any patent, trademark, copyright, trade secret or other proprietary right of any party; (iii)
any messages, communication or other content that promotes pyramid schemes, chain letters,
constitutes disruptive commercial messages or advertisements, or is prohibited by applicable law,
the Agreement or the Documentation.
(m) Utilize the Content for any other purpose other than Subscriber's internal
business purpose.
5.3.3 OWNERSHIP OF CONTENT. ChargePoint shall own and hold all right, title
and interest in and to the following:
(a) Content, including all data collected or maintained by CPI in the operation of
ChargePoint, the Services and the Charging Stations; and
(b) CPI Property, including (i) ChargePoint, (ii) the Services, (iii) all data
generated or collected by CPI in connection with the operation of ChargePoint and the Services, (iv)
the CPI Marks and (v) all other CPI -supplied material developed or provided by CPI for Subscriber's
use in connection with the Services.
5.3.4 LIMITED LICENSE TO CPI. Subscriber hereby grants to CPI a non -
assignable, non -transferable, and non-exclusive license to use the Subscriber's property solely in
accordance with the terms of this Agreement (including without limitation all limitations and
restrictions on such use) to the extent necessary for CPI to provide the Services. CPI may utilize the
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various trademarks, service marks, trade names, logos, domain names, and other distinctive brand
features and designations used by Subscriber in connection with its business (the "Subscriber
Marks") to advertise that Subscriber is using the Services. CPI shall have a royalty -free, worldwide,
transferable, sublicensable, irrevocable perpetual license to use or incorporate in the Services any
suggestions, enhancement requests, recommendations or other feedback provided by Subscriber or
Subscriber Rights Grantees relating to the Services.
5.3.5 ADDITIONAL TERMS REGARDING CPI MARKS.
(a) USE LIMITATIONS. Subscriber shall not use any of the CPI Marks for or with
any products, except in the manner permitted pursuant to CPI's usage guidelines. From time to time,
CPI may provide updated CPI Mark usage guidelines, and Subscriber shall thereafter comply with
such updated guidelines. For any use of the CPI Mark not authorized by such guidelines, or if no
such guidelines are provided, then for each initial use of the CPI Mark, Subscriber must obtain CPI's
prior written consent, and after such consent is obtained, Subscriber may use the CPI Mark in the
approved manner. All use by Subscriber of CPI's Marks (including any goodwill associated
therewith) will inure to the benefit of CPI.
(b) PROHIBITIONS. Subscriber shall not use or display any CPI Mark (or any
likeness of a CPI Mark):
(i) as a part of the name under which Subscriber's business is conducted or in
connection with the name of a business of Subscriber or its affiliates;
(ii) in any manner that (x) implies a relationship or affiliation with CPI other than as
described under the Agreement, (y) implies any sponsorship or endorsement by CPI, or (z) can be
reasonably interpreted to suggest that any Subscriber content and services has been authored by, or
represents the views or opinions of CPI or CPI personnel;
(iii) in any manner intended to disparage CPI, the ChargePoint Network, or the
Services, or in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene
or otherwise objectionable to CPI;
(iv) in any manner that violates any law or regulation; or
(v) that is distorted or altered in any way (including squeezing, stretching, inverting,
discoloring, etc.) from the original form provided by CPI.
(c) NO REGISTRATION OF CPI MARKS. Subscriber shall not, directly or
indirectly, register or apply for, or cause to be registered or applied for, any CPI Marks or any patent,
trademark, service mark, copyright, trade name, domain name or registered design that is
substantially or confusingly similar to a CPI Mark, patent, trademark, service mark, copyright, trade
name, domain name or registered design of CPI, or that is licensed to, connected with or derived
from confidential, material or proprietary information imparted to or licensed to Subscriber by CPI.
At no time will Subscriber challenge or assist others to challenge the CPI Marks (except to the extent
such restriction is prohibited by law) or the registration thereof by CPI.
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(d) TERMINATION AND CESSATION OF USE OF CPI MARKS. Upon
termination of this Agreement, Subscriber will immediately discontinue all use and display of all
CPI Marks.
5.3.6 ELECTRICAL, CELLULAR AND INTERNET SERVICE
INTERRUPTIONS. Neither CPI nor Subscriber shall have any liability whatsoever to the other
with respect to damages caused by: (i) electrical outages, power surges, brown -outs, utility load
management or any other similar electrical service interruptions, whatever the cause; (ii)
interruptions in wireless or cellular service linking Charging Stations to the ChargePoint Network;
(iii) interruptions attributable to unauthorized ChargePoint Network intrusions; (iv) interruptions in
services provided by any internet service provider not affiliated with CPI; or This includes the loss
of data resulting from such electrical, wireless, cellular or Internet service interruptions.
5.3.7 CELLULAR CARRIER LIABILITY. IN ORDER TO DELIVER THE
CHARGEPONT SERVICES, CPI HAS ENTERED INTO CONTRACTS WITH ONE OR MORE
UNDERLYING WIRELESS SERVICE CARRIERS (THE "UNDERLYING CARRIER").
SUBSCRIBER HAS NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING
CARRIER AND CUSTOMER IS NOT A THIRD -PARTY BENEFICIARY OF ANY
AGREEMENT BETWEEN CPI AND THE UNDERLYING CARRIER. SUBSCRIBER
UNDERSTANDS AND AGREES THAT THE UNDERLYING CARRIER HAS NO LIABILITY
OF ANY KIND TO SUBSCRIBER, WHETHER FOR BREACH OF CONTRACT, WARRANTY,
NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. SUBSCRIBER HAS NO
PROPERTY RIGHT IN ANY NUMBER ASSIGNED TO IT, AND UNDERSTANDS THAT ANY
SUCH NUMBER CAN BE CHANGED. SUBSCRIBER UNDERSTANDS THAT CPI AND THE
UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS
TRANSMISSIONS AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING
TO THE USE OF THE CHARGEPOINT SERVICES.
6. RENEWAL AND TERMINATION.
6.1 Upon the expiration of a Subscription, unless ChargePoint has received Subscriber's
notice of intent not to renew sixty (60) days prior to the expiration of an applicable Subscription, the
Subscription will auto renew and ChargePoint shall invoice Subscriber for a new one-year
Subscription, with subscription fees set at the current list price for the subscription. Annual list price
increases for a Subscription will be limited to the greater of (i) three percent (3%) or (ii) the aggregate
increase in the consumer price index during the immediately preceding Subscription Term. This
Agreement may be immediately terminated by Subscriber for cause if (i) CPI is in material breach
of any of its obligations under this Agreement and has not cured such breach within thirty (30) days
of the date of its receipt of written notice thereof from Subscriber, or (ii) CPI becomes the subject
of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation
or an assignment for the benefit of creditors. Any notice of termination of this Agreement by
Subscriber pursuant to this Section 6.1 shall be sent to the address for notices set forth below in
Section 20.
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6.2 This Agreement may be immediately terminated by Subscriber for cause if (i) CPI is
in material breach of any of its obligations under this Agreement and has not cured such breach
within thirty (30) days of the date of its receipt of written notice thereof from Subscriber, or (ii) CPI
becomes the subject of a petition in bankruptcy or any other proceeding related to insolvency,
receivership, liquidation or an assignment for the benefit of creditors. Any notice of termination of
this Agreement by Subscriber pursuant to this Section 6.1 shall be sent to the address for notices set
forth below in Section 20.
Upon any termination of this Agreement for cause by Subscriber pursuant to this Section 6.2, CPI
shall refund a pro-rata portion of any pre -paid subscription fees.
6.3 This Agreement may be immediately terminated by CPI: (i) if Subscriber is in
material breach of any of its obligations under this Agreement, and has not cured such breach within
thirty (30) days of Subscriber's receipt of written notice thereof, (ii) Subscriber becomes the subject
of a petition in bankruptcy or any other proceeding related to insolvency, receivership, liquidation
or an assignment for the benefit of creditors; or (iii) as otherwise explicitly provided in this
Agreement.
6.4 Subscriber hereby grants CPI the right, upon termination of this Agreement, and upon
the termination of any Subscription that Subscriber elects not to renew, to enter the Location for the
purpose of removing the Charging Stations and any equipment owned by CPI, and any other
ancillary property of CPI relating thereto. Within thirty (30) days of termination of a Subscription,
ChargePoint and Subscriber will engage in good faith to schedule a date upon which such Charging
Stations from the Location. CPI will remove such Charging Stations and other equipment at no cost
to Subscriber. Upon termination of a Subscription, Subscriber shall immediately cease its use of all
Services related to such Subscription and CPI will no longer be bound to deliver the Services under
such Subscription. Subscriber agrees that it shall not interfere with, and will cause its employees
and agents not to interfere with, CPI in conjunction with the service, maintenance, or removal of the
Charging Stations, or in any other way interfere with CPT's responsibilities under this Agreement.
7. INDEMNIFICATION.
7.1 "Damages" shall mean any injury, wound, wrong, hurt, harm, fee, damages, cost,
expense, expenditure, or loss of any nature, including, but not limited to: (1) injury or damage to any
property or right; and (ii) injury, damage or death to any person or entity, (iii) attorneys' fees, witness
fees, expert witness fees and expenses; and (iv) all other litigation costs and expenses.
7.2 "Claims" shall mean all claims, requests, accusations, allegations, assertions,
complaints, petitions, demands, suits, actions, proceedings, and causes of action of every kind and
description.
7.3 Subscriber shall indemnify, defend and hold CPI and its affiliates, and any of their
respective present and former directors, officers, members, shareholders, employees, representatives
and agents, and all of its and their successors and assigns, harmless from and against any and all
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Damages from third -parry Claims which arise out of or relate to: (i) Subscriber's negligent acts or
omissions, recklessness or willful misconduct; or (ii) the loss of life or any injury to persons or
property due to conditions existing at the Location, including the Designated Parking Spaces, unless
any such Damages arise out of or relate to CPI's negligence or willful misconduct.
7.4 CPI shall indemnify, defend, and hold Subscriber harmless from and against any and
all Damages from third -party Claims that result from or arise out of the actual or alleged
misappropriation or infringement of any intellectual property rights in connection with the Service.
NOTHING CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED OR
INTERPRETED AS CONSENT BY THE SUBSCRIBER TO BE SUED BY THIRD PARTIES,
NOR AS A WAIVER OF SUBSCRIBER'S SOVEREIGN IMMUNITY BEYOND THE WAIVER
PROVIDED IN SECTION 768.28, FLORIDA STATUTES.
7.5 The obligations under this Section shall survive the termination or expiration of this
Agreement.
8. OWNERSHIP OF CHARGING STATIONS. The Charging Stations are and shall
remain the personal property of CPI, regardless of the manner in which they may be attached to any
other property. Subscriber shall not permit any levy, lien, or other legal process to be attached to
the Charging Stations and shall immediately notify ChargePoint if any of the foregoing shall occur.
Subscriber acknowledges that, for purposes of the Uniform Commercial Code, the Charging Stations
are provided to Subscriber pursuant to a subscription service, and not a secured financing.
ChargePoint may make such filings under the Uniform Commercial Code, and in such jurisdictions,
as it deems necessary in its sole discretion.
9. INTELLECTUAL PROPERTY.
9.1 Subscriber shall not: (i) create derivative works based on any of ChargePoint's
intellectual property rights, including, without limitation, the Service, Charging Stations, Cloud
Services, patents, patent applications, patent rights, trademarks, trademark applications, trade names,
service marks, service mark applications, copyrights, copyright applications, franchises, licenses,
inventories, know-how, trade secrets, customer lists, proprietary processes and formulae, all source
and object code, algorithms, architecture, structure, display screens, layouts, inventions, URL links,
websites, development tools and all documentation and media constituting, describing or relating to
the above, including, without limitation, manuals, memoranda and records (collectively the
"Intellectual Property") (ii) copy, frame or mirror any part or content of the Intellectual Property,
(iii) reverse engineer any Intellectual Property right or (iv) access the Intellectual Property 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
ChargePoint's Intellectual Property.
9.2 All right, title and interest in the Intellectual Property shall remain, the exclusive
property of ChargePoint.
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10. EXCLUSIVE RIGHT. During the Subscription Term, Subscriber will not permit
anyone other than CPI to provide, maintain, service or operate any electric vehicle charging stations
at the Location.
11. LICENSES; PERMITS. Subscriber agrees that it shall obtain any and all necessary
licenses and/or permits for the make ready electrical work, installation, and operation of the
Charging Stations.
12.INJUNCTIVE RELIEF. The Parties recognize that the obligations under this
Agreement are special, unique and of extraordinary character. The Parties acknowledge the difficulty
in forecasting damages arising from the breach of any of the obligations or restrictive covenants and
that the non -breaching Party may be irreparably harmed thereby. Therefore, the Parties agree that
the non -breaching Party shall be entitled to elect to enforce each of the obligations and restrictive
covenants by means of injunctive relief or an order of specific performance and that such remedy
shall be available in addition to all other remedies available at law or in equity, including the
recovery of damages from the non -breaching Party's agents or affiliates involved in such breach.
13. REPRESENTATIONS & WARRANTIES.
13.1 CPI represents and warrants to Subscriber that it has the appropriate legal authority to
execute this Agreement, that it has all requisite licenses and permits to perform pursuant to this
Agreement, that it is not bound by any other agreement which precludes it from complying with the
terms and conditions contained herein, and that it will perform under this Agreement in compliance
with any applicable laws, rules, regulations, or ordinances.
13.2 Subscriber represents and warrants to CPI that it has the appropriate legal authority to
execute and be bound by this Agreement, it has the full power and authority to permit CPI to install
Charging Stations at the Designated Parking Spaces, that it has all requisite licenses and permits to
perform pursuant to this Agreement, the electrical usage consumed by the Charging Stations will
not violate or otherwise conflict with the terms and conditions of any other agreement, that it is not
bound by any other agreement which precludes it from complying with the terms and conditions
contained herein, and that it will perform under this Agreement in compliance with any applicable
laws, rules, regulations or ordinances.
14. ENVIRONMENTAL ATTRIBUTES. CPI is the owner of the Charging Stations
provided under this Agreement and retains any and all rights to claim environmental attributes
associated with the use of the Charging Stations, including, without limitation, carbon offset and
other credits.
15. BINDING. This Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns.
16. GOVERNING LAW; ARBITRATION. This Agreement is to be construed according
to the laws of the State of Florida, excluding the provisions of the United Nations Convention on
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Contracts for the International Sale of Goods and any conflict of law provisions that would require
application of another choice of law. Any dispute arising from or relating to this Agreement shall
be litigated in Palm Beach County, Florida. The arbitration shall be administered by JAMS in
accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on any award
may be entered in any court of competent jurisdiction. If the Parties agree, a mediator may be
consulted prior to arbitration. All claims shall be brought in the parties' individual capacity, and not
as a plaintiff or class member in any purported class or representative proceeding. The prevailing
party in any dispute arising out of this Agreement shall be entitled to reasonable attorneys' fees and
costs.
17. LIMITATIONS OF LIABILITY.
17.1 Disclaimers of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR
PROHIBITED BY APPLICABLE LAW, CPI EXPRESSLY DISCLAIMS ANY
REPRESENTATION OR WARRANTY MADE, OR THAT MAY HAVE BEEN MADE, IN
CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF
MERCHANTABILITY, FITNESS FORA PARTICULAR PURPOSE, TITLE, UNINTERRUPTED
SERVICE, AND ANY WARRANTY ARISING OUT OF A COURSE OF PERFORMANCE,
DEALING OR TRADE USAGE.
17.2 Exclusion of Consequential Damages. EXCEPT AS PROHIBITED BY
APPLICABLE LAW, IN NO EVENT SHALL CPI BE LIABLE TO SUBSCRIBER FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE
DAMAGES, INCLUDING WITHOUT LIMITATION FOR THE LOSS OF DATA, BUSINESS
INTERRUPTION, OR LOST PROFITS, THAT IN ANY WAY ARISE OUT OF OR RELATE TO
THIS AGREEMENT, REGARDLESS OF THE THEORY OF RELIEF, WHETHER OR NOT CPI
HAS BEEN ADVISED TO THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF
ANY CLAIM OR FINDING THAT A REMEDY SUFFERS A FAILURE OF ITS ESSENTIAL
PURPOSE. NOTWITHSTANDING THE FOREGOING, THIS SECTION SHALL NOT APPLY
WITH RESPECT TO ANY DAMAGES WHICH ARISE OUT OF OR RELATE TO CPI'S
INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
17.3 Limitation of Liability. CPI's aggregate liability under this Agreement shall not
exceed the aggregate subscription fees paid by Subscriber to CPI in the twelve (12) calendar months
prior to the event giving rise to the liability.
18. NOTICES. Any notice required to be given or otherwise given pursuant to this
Agreement shall be in writing and shall be hand delivered, mailed by certified mail, return receipt
requested or sent recognized overnight courier service as follows:
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If to CPI:
Construction Signoff Form
ChargePoint, Inc.
c/o Site Readiness Department
7350 N. Dobson Road, Suite 104,
Scottsdale, AZ 85256
installdispatchkehargepoint.com
Non -Renewal and Termination Notices
ChargePoint, Inc.
csam@chargepoint.com
All other notices
Attn: Legal Department
ChargePoint, Inc.
254 E Hacienda Ave
Campbell, CA 95008
If to Subscriber:
If to Subscriber, to the billing address
and contact on file.
19. INSURANCE. At all times during the Subscription Term of this Agreement, the Parties
shall keep and maintain insurance described in Exhibit 3, or higher if required by law. Upon request,
the Parties shall furnish, a certificate of insurance evidencing such insurance is in full force and
effect.
20. RELATIONSHIP OF PARTIES. Nothing in this Agreement shall constitute or be
deemed to constitute a partnership or joint venture between the Parties hereto or constitute or be
deemed to constitute any Party the agent or employee of the other Party for any purpose whatsoever,
and neither Party shall have authority or power to bind the other or to contract in the name of, or
create a liability against, the other in any way or for any purpose.
21. FORCE MAJEURE. If either Party shall be delayed or hindered in or prevented from
the performance of any act required under this Agreement by reason of any strike, lockout, labor
trouble, inability to procure materials or energy, failure of power, hurricane, restrictive governmental
laws or regulations, riot, insurrection, picketing, sit-ins, war or other unavoidable reason of a like
nature not attributable to the negligence or fault of such Party, then the performance of such work
or action will be excused for the period of the unavoidable delay and the period for the performance
of any such work or action will be extended for an equivalent period.
22. EXHIBITS. All exhibits attached to this Agreement and referred to herein are hereby
incorporated by reference as if fully set forth herein. Any exhibit not annexed hereto may be attached
after the Effective Date hereof and which shall thereafter be incorporated by reference herein.
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23. NO THIRD -PARTY RIGHTS. The provisions of this Agreement are for the
exclusive benefit of CPI and Subscriber only, and no other party shall have any right or claim against
either Parry or be entitled to enforce any provisions hereunder against any Party hereto.
24. HEADINGS. The headings in this Agreement are used for convenience only and shall
not be used to define, limit, or describe the scope of this Agreement or any of the obligations herein.
25. FINAL AGREEMENT. This Agreement constitutes the final understanding and
agreement between the parties with respect to the subject matter hereof and supersedes all prior
negotiations, understandings, and agreements between the parties, whether written or oral. This
Agreement may be amended, supplemented or changed only by an agreement in writing signed by
both of the parties.
26. SEVERABILITY. If any term or provision of this Agreement is found by a court of
competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the
remaining terms and provisions, shall remain in full force and effect as if such invalid or
unenforceable term had never been included.
27. CONFIDENTIALITY.
27.1 Subscriber acknowledges that all terms and conditions of this Agreement (the
"Confidential Information") shall be deemed confidential and may not be disclosed to third parties.
Subscriber recognizes that CPI has legitimate business interests in protecting the Confidential
Information, and as a consequence, Subscriber expressly agrees to the restrictions contained in this
Agreement because they further CPI's legitimate business interests. The provisions of this Section
27.1 shall survive the expiration or other termination of this Agreement.
27.2 Notwithstanding anything in this Agreement to the contrary, Subscriber may disclose
Confidential Information: (i) as required by any court or other governmental body; (ii) as otherwise
required by law; (iii) to legal counsel of Subscriber; (iv) in confidence, to accountants, banks and
financing sources, and its advisors (who are bound by terms of confidentiality at least as strict as
those set forth in this Agreement); (v) in connection with the enforcement of this Agreement or rights
under this Agreement; or (vi) in confidence, in connection with an actual or proposed merger,
acquisition or similar transaction; provided, however, that if Subscriber is required to disclose
pursuant to clause (i) or (ii), Subscriber shall provide prompt prior notice thereof, if possible, to CPI
to enable CPI at its sole cost to seek a protective order or otherwise prevent or restrict such
disclosure.
28. ASSIGNMENT. This Agreement may not be assigned by Subscriber without the prior
written consent of CPI. Notwithstanding the foregoing, Subscriber may assign this Agreement in
connection with the sale of substantially all of its assets, a transfer to an affiliate, a merger, an
acquisition, or any other similar transaction; provided that the assignee agrees to be bound by the
terms of this Agreement.
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29. COUNTERPARTS. This Agreement may be executed in any number of counterparts
(including, electronic, facsimile, or scanned versions), each of which shall be an original but all of
which together will constitute one instrument, binding upon all parties hereto, and notwithstanding
that all of such parties may not have executed the same counterpart.
[signature page to follow]
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Subscriber: The Village of Tequesta
7eremy Allen
Full name [Print]
village Manager
Title
Signature
Date
Revised October 18, 2021
ChargePoint, Inc.
Henrik Gerdes
Full name [Print]
chief Accounting officer, chargePoint Inc.
Title DocuSigned by:
E��wtvi� Gt,V'�,t,S
0273ECE89F57429...
Signature
1/26/2022
Date
—chargepoin+
LEGAL APPROVED
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EXHIBIT 1: FLEX BILLING TERMS
This Exhibit sets forth certain additional terms and conditions ("Flex Billing Subscription
Terms") pursuant to which Subscriber may charge Users fees for the use of Subscriber's
Charging Stations. In order to charge such fees, Subscriber must subscribe to a Service Plan
that includes CPI's management, collection and/or processing services related to such fees
("Flex Billing").
1. DEFINITIONS. The following additional defined terms shall apply to these Flex Billing
Subscription Terms:
1.1 "CPI Fees" means a fee, currently equal to ten percent (10%) of Session Fees, charged
for a particular Session. CPI Fees are charged by CPI in exchange for its collection and processing
of Session Fees on behalf of Subscriber. CPI will provide Subscriber with thirty (30) days prior
written notice (which may include, without limitation, notice provided by CPI through its regular
newsletter to Subscriber) of any increase in CPI Fees.
1.2 "Net Session Fees" means the total amount of Session Fees collected on behalf of the
Subscriber by CPI, less CPI Fees and Taxes, if any, required by law to be collected by CPI from
Users in connection with the use of Charging Stations. Except as required by law, Subscriber shall
be responsible for the payment of all Taxes incurred in connection with use of Subscriber's
Charging Stations.
1.3 "Session" or "Charging Session" means the period of time during which a User uses
Subscriber's Charging Station to charge his or her electric vehicle for a continuous period of time
not less than two (2) minutes commencing when a User has accessed such Charging Station and
ending when such User has terminated such access.
1.4 "Session Fees" means the fees set by the Subscriber for a Charging Session, inclusive
of any applicable Taxes.
2. FLEX -BILLING SERVICE FOR CHARGING STATIONS.
2.1 SESSION FEES. Subscriber shall have sole authority to determine and set in real-time
Session Fees. Subscriber shall be solely responsible for determining and charging Session Fees in
compliance with all applicable laws and regulations (including without limitation any restriction on
Subscriber's use of per -kWh pricing). Subscriber acknowledges that CPI is not responsible for
informing Subscriber of applicable laws or changes thereto, and CPI will not be liable to Subscriber
or any third party for any alleged or actual failure of Subscriber to comply with such applicable laws
and regulations.
2.2 DEDUCTIONS FROM SESSION FEES. In exchange for CPI collecting Session Fees
on behalf of the Subscriber, the Subscriber hereby authorizes CPI to deduct from all Session Fees
collected: (i) CPI Fees and (ii) to the extent required by Section 3, applicable Taxes.
2.3 PAYMENT TO SUBSCRIBER OF NET SESSION FEES. CPI shall remit Net
Session Fees to Subscriber not more than thirty (30) days after the end of each calendar month as
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directed by Subscriber from time to time through the applicable ChargePoint Cloud Services.
Notwithstanding the foregoing, no such payment will be required if at the end of any calendar month
the amount due to Subscriber hereunder is less than fifty U.S. Dollars ($50), except in connection
with the expiration or termination of this Agreement. In no event shall CPI remit amounts due to
Subscriber, regardless of the amount then due, later than thirty (30) days following the end of each
calendar quarter.
3. TAXES. Subscriber is responsible for the payment of all sales, use, value added, and similar
taxes (collectively "Sales Tax") incurred in connection with Session Fees; provided that CPI is solely
responsible for all taxes based on CPI's income, property and employees. Where CPI is required by
law to collect and/or remit Sales Tax for which Subscriber is responsible, the appropriate amount
shall be invoiced to Subscriber and deducted by CPI from Session Fees, unless Subscriber has
otherwise provided CPI with a valid tax or regulatory exemption certificate or authorization from
the appropriate taxing or regulatory authority.
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EXHIBIT 2: TERMS REGARDING GRANTING OF RIGHTS
This Exhibit sets forth certain additional terms and conditions applicable to Rights Grantors and
Rights Grantees regarding the granting of Rights ("Rights Subscription Terms"). The Rights
Subscription Terms are part of the Agreement, and all use of the ChargePoint Cloud Services
permitted pursuant to the Rights Subscription Terms remains subject to the Agreement.
1. ADDITIONAL DEFINITIONS. The following additional definitions shall apply.
1.1 "Rights" means the rights, authorizations, privileges, actions, information and settings
within the ChargePoint Cloud Services which a Rights Grantor grants to a Rights Grantee, to enable
such Rights Grantee to access, obtain and use certain portions of the ChargePoint Cloud Services
and certain information available therein in the course of providing services to or on behalf of such
Rights Grantor in connection with one or more of the Charging Stations.
1.2 "Rights Grantor" means Subscriber.
1.3 "Rights Grantee" means any person to whom Subscriber has granted Rights. For
purposes of this Agreement, a Subscriber shall be deemed to have granted Rights to the entity
assisting Subscriber with creating its account and initiating Subscriber's access to Services.
2. TERMS.
2.1 LIMITED RIGHTS. A Rights Grantee's right to access and use the ChargePoint Cloud
Services for and on behalf of a Rights Grantor is limited to the specific Rights granted by such Rights
Grantor to such Rights Grantee. Such Rights may be limited according to the Service Plan(s)
subscribed to by Subscriber. Subscriber may revoke Rights, or any portion thereof, it has granted
to a Rights Grantee at will and such Rights will thereafter by terminated with respect to such Rights
Grantee. In no event may Subscriber grant Rights in excess of those provided to it through the
Service Plan(s) to which it has subscribed.
2.2 RESPONSIBILITY FOR AUTHORIZED USER. All use of the ChargePoint Cloud
Services by a Rights Grantee exercising Rights granted by Subscriber shall be subject to the terms
and conditions of the Agreement (including without limitation Subscriber's indemnification
obligation pursuant to Section 10 thereof). Subscriber shall be responsible for the actions, omissions,
or performance of such Rights Grantee while exercising any such Rights, as if such action, omission
or performance had been committed by Subscriber directly.
2.3 NO AGREEMENT. Subscriber acknowledges and agrees that the ChargePoint Cloud
Services merely enable a Rights Grantor to extend Rights to Rights Grantees. The mere extension
of such Rights by a Rights Grantor to a Rights Grantee does not constitute an agreement between
Rights Grantor and the Rights Grantee with respect to the granted Rights or the exercise of such
Rights by the Rights Grantee. CPI does not, either through the terms of the Agreement or the
provision of ChargePoint Cloud Services undertake to provide any such agreement. It is the
responsibility of the Rights Grantor and the Rights Grantee to enter into such an agreement on terms
mutually acceptable to each. CPI expressly undertakes no liability with respect to such an agreement
and Rights Grantor fully and unconditionally releases CPI from any liability arising out of such an
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agreement. Further Rights Grantor agrees to indemnify and hold CPI, its officers, directors, agents,
affiliates, distribution partners, licensors and suppliers harmless from and against any and all claims,
actions, proceedings, costs, liabilities, losses and expenses (including, but not limited to, reasonable
attorneys' fees) (collectively, "Claims") suffered or incurred by such indemnified parties resulting
from or arising out of such agreement.
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EXHIBIT 3: INSURANCE REOUIREMENTS
Commercial General Liability
Limits: $1,000,000 Each Occurrence
$2,000,000 General Aggregate and Products/ Completed
Operations Aggregate (Separately)
Coverage: Occurrence Form, Commercial General Liability including
Personal Injury, Products Liability, Completed Operations,
Contractual and Property Damage Coverage. Should provide
primary (and not contributing) coverage, containing cross -
liability and severability of interest clauses.
Per Location Limits:
Automobile Liability
Bodily Injury & Property Damage
Combined Single Limit -
General Aggregate Limit applies per location.
$1,000,000 Each Accident
Coverage: Comprehensive Form including Employer's Non -Owned &
Hired Liability providing primary (and not contributing)
coverage, containing cross -liability and severability of interest
clauses.
Workers Compensation: Statutory Benefits
Employers' Liability: $500,000 Employers' Liability
This Workers' Compensation and Employer's liability
insurance must contain a waiver by the insurer of all rights of
legal and conventional subrogation against Client and
Property Management Company.
Umbrella/Excess
Liability: $5,000,000 Each Occurrence
$5,000,000 Aggregate
Forms for All Coverages: Copy of specific applicable additional insured endorsement
and waiver of subrogation endorsement must be attached and
noted on Certificate of Insurance.
Revised October 18, 2021
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