Loading...
HomeMy WebLinkAboutFleet Partner Agreement - Clean Fuels Ohio - Test Drive an Electric Vehiclem } -fir. •. �s-T-� FLEET PARTNER AGREEMENT THIS FLEET PARTNER AGREEMENT (the "Agreement") executed this 9th day of May, 2017 (the "Execution Date"), by and between Clean Fuels Ohio, an Ohio non-profit corporation ("CFO"), and The City of South Bend, IN_, a(n) _Municipality (the "Fleet Partner"), either or both of which may be hereinafter referred to as the Party or Parties, respectively. RECITALS A. CFO has been awarded funding by the US Department of Energy (the "DOE") to implement an alternative fuel vehicle ("AFV") demonstration program in Ohio, Michigan and Indiana titled the "Midwest DRIVES Initiative" (the "Demonstration Project"). The terms and conditions of the Demonstration Project are set forth the DOE Assistance Agreement, which is attached hereto as Exhibit A and incorporated herein by reference (the "DOE Agreement"). B. In furtherance of the Demonstration Project, CFO has obtained commitments from Nissan Leaf for one vehicles ("Vehicle Provider") to provide AFVs for use by public and private fleets, pursuant to certain vehicle provider agreements (the "Provider Agreements") and subject to the Vehicle Provider requirements set forth in Exhibit B, attached hereto. C. The Fleet Partner desires to participate in the Demonstration Project through the use of AFV's, and CFO desires to include the Fleet Partner in the Demonstration Project, all on those terms and conditions set forth in this Agreement. PROVISIONS NOW, THEREFORE, for good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, hereby agree as follows: l . Defined Terms. All capitalized terms not otherwise defined in this Agreement shall have the definition set forth below or as set forth elsewhere in this Agreement: (a) Confidential Information. "Confidential Information" shall mean all Demonstration Project intellectual property, financial statements, books and records, documents, employee data, vendors, customers, marketing studies, strategic plans, profits, costs, pricing, and all other written (or other forms of media) or oral information which a Party and/or its affiliates consider confidential, but shall not include information (i) which was known to the public or in the published literature prior to the disclosure or making available of such information to the receiving Party, (ii) which, subsequent to the time of the disclosure or making available of such information to the receiving Party, becomes known to the public or in the published literature through no fault of the receiving Party, (iii) is lawfully acquired by the receiving Party from a third Party who is not in breach of any confidentiality agreement with the disclosing Party with respect to such information, or (iv) which the disclosing Party consents in writing to the receiving Party's disclosure. CO\5010364.2 CO\5189851.1 (b) Demonstration Project Intellectual Property. Demonstration Project Intellectual Property shall mean any IP directly contemplated by and resulting from the Demonstration Project and the data and information accumulated and gathered in connection therewith. (c) Improvements. ,ovements. "Improvement" shall mean all rights and interest, both tangible and intangible, in or with respect to any improvement, development, enhancement, adaptation or advancement derived from, connected with or relating to the subject IP. (d) IP. "IP" shall mean patents, patent applications, copyrights, trademarks, trade names, trade secrets, know-how, processes, procedures, techniques, designs, inventions, designs, developments, compositions, software, data, information, statistics and all other intangible rights. 2. Inclusion as Fleet Partner. The Fleet Partner hereby agrees to participate in the Midwest DRIVES Initiative, and to use the AFV or AFV's ("Demo Vehicles") set forth on Exhibit B, in the course of its normal fleet operations and in accordance with the terms and conditions of this Agreement and the DOE Agreement. This Agreement and the right and obligations set forth herein are further subject to those terms and conditions and further agreements set forth in Exhibit C. The Fleet Partner has closely reviewed and considered the terms, conditions and provisions of the DOE Agreement and additional terms and conditions set forth in Exhibits B and C, and agrees to be bound by and strictly adhere to them. In addition to those specific requirements and standards set forth elsewhere in this Agreement, the Fleet Partner shall: (a) Promptly meet all schedules and deadlines set forth herein and further outlined in Exhibit C. (b) Comply at all times with all applicable federal, state and local laws, rules, regulations, ordinances, orders and directives, in connection with its use of the Demo Vehicles and performance hereunder. (c) The Demo Vehicles shall be used exclusively in the Territory outlined in Exhibit B.(d) All the Demo Vehicles shall be used only for normal fleet transportation operations consistent with the Fleet Partner's customary business (and for no other purpose) and by the Fleet Partner's employees and any agents expressly authorized by CFO in advance. (e) Ensure that its employees and agents (to the extent authorized) using the Demo Vehicles are (i) properly licensed and certified to operate such Demo Vehicles under all applicable laws and regulations, (ii) experienced, trained and competent to operate the Demo Vehicles and (iii) do not have a criminal history or other history of excessive traffic violations. (f) Make itself reasonably available for consultations, conferences and meetings with CFO personnel and third parties designated by CFO including but not limited to Clean Cities Coalition project partners and CFO contractors including Vision Fleet, to discuss the Demonstration Project and related matters, upon CFO's request. 3. Data. (a) CFO, its partners or agents will be responsible for equipping Demo Vehicles with such data logging equipment as is necessary for conducting the Demonstration Project (the "Data Logging Equipment") and the Fleet Partner shall not acquire any interest in or to such equipment. The Fleet Partner agrees to all terms and conditions of this Agreement pertaining to the use, data reporting and operation of the Data Logging Equipment under this -2- C01501036 4.2 C015189851.1 Agreement and the DOE Agreement. The Fleet Partner will ensure that Data Logging Equipment is operated in accordance with instructions for use provided by CFO and/or its partners or agents under this Agreement and shall not tamper with or disable the Data Logging Equipment. The Fleet Partner shall use its commercially reasonable effort to ensure the safety and security of the Data Logging Equipment and shall be responsible for the cost to repair or replace the Data Logging Equipment should the same be damaged or stolen while in use by the Fleet Partner. The Fleet Partner shall notify (as soon as practicable and no later than within twenty-four (24) hours) CFO and/or its partner or agent designated under this Agreement to receive such notice of any Demo Vehicle and/or Data Logging Equipment damage, malfunction or failure to perform. The Fleet Partner will grant CFO and its partners and agents immediate access to the Demo Vehicle and, if necessary, take it to a service location, should a malfunction of the Data Logging Equipment occur that requires repair. The Fleet Partner shall not attempt to repair any Data Logging Equipment. (b) Fleet Partner agrees to log and provide CFO, its partners or agents, as requested, qualitative Demo Vehicle use information such as driver experience and general information about vehicle handling and performance and any other information as set forth in Exhibit C. 4. Vehicle Ownership and Maintenance. The Demo Vehicles will remain the property of the Vehicle Providers and the Fleet Partner shall acquire no ownership to or interest in any Demo Vehicle as a result of this Agreement. The Demo Vehicles will be marked as determined by CFO and/or the Vehicle Providers with information identifying the true owner of the vehicle and the Fleet Partner will not interfere with or obscure any such identifying information. CFO and/or the Vehicle Providers are hereby authorized by the Fleet Partner to file such notice filing financing statements as they deem reasonably necessary to identify the owner of the Demo Vehicles. Demo Vehicles provided under this Agreement may include graphics or other signage utilized by CFO in connection with the Demonstration Project. Fleet Partner agrees not to remove or otherwise obscure such identifying graphics or signage. CFO shall work with Vehicle Providers to ensure that Demo Vehicles are delivered in good working condition. The Fleet Partner shall be responsible for maintaining the Demo Vehicles in good working condition, At the end of the Term, the Fleet Partner shall return the Demo Vehicles in good operating condition and repair, free from physical damage and properly maintained, subject to reasonable wear and tear. 5. Insurance. The Fleet Partner is self -insured and will provide a statement of self- insurance. 6. Expenses. Except as set forth in Exhibit C, the Fleet Partner shall be responsible for all costs and expenses associated with the use of the Demo Vehicles and its participation in the Demonstration Project, including insurance, fuel, normal maintenance materials (such as oil, fluids, tires) and those maintenance costs and expenses contemplated by Section 4. Fleet Partner shall also be responsible for cost of transporting the Demonstration Vehicles) to and from the location designated in Exhibit B. 7. Reporting Obligations. On a no less than monthly basis, the Fleet Partner shall provide CFO with a written report detailing the use and performance of the Demo Vehicles and such other information as CFO may reasonably request, all in such format as CFO shall provide to the Fleet Partner. In addition, Fleet Partner shall comply with all reporting obligations set forth in Exhibit C. -3- C015010364.2 0015189851.1 Intellectual Property. The Fleet Partner acknowledges and agrees that it shall not acquire any ownership of or right or interest to any Demonstration Project Intellectual Property used in connection with or resulting from the Demonstration Project. In the event that Fleet Partner contends that any information being submitted constitutes a Trade Secret under applicable law and is confidential, Fleet Partner is required to clearly and promptly identity to CFO such trade secret prior to the time they are submitted to CFO or incorporated into any deliverable or used in proving any information or report hereunder. 9. Information Sharing. CFO will ensure that Fleet Partner is provided with data collected and if applicable, any final report generated in connection with the Demonstration Project and which pertains to Fleet Partner's use of Demo Vehicle(s) under this Agreement. 10. 10. Term and Termination. (a) Term. The term of this Agreement shall commence on the Effective Date through July 3_1 , 2017 (the "Term."), unless earlier terminated as provided herein. Specific terms for the provision and use of each Demo Vehicle are set forth in Exhibit B (each a Vehicle Term) and any Vehicle Term shall terminate no later than the end of the Term (including as earlier terminated as described below). The Fleet Partner agrees to keep the Demo Vehicles in active use throughout the Term. The Term and Vehicle Term may be extended upon CFO's reasonable request in order to complete any outstanding data gathering relating to the Demonstration Project, but in no case such any extension be for longer than _three_ (_I_) months without the Fleet Partner's consent. (b) Termination for Convenience. CFO shall have the right to terminate this Agreement at any time for any reason or no reason effective upon ten (10) days' written notice to the Fleet Partner. (c) Default by Fleet Partner. CFO shall have the option to terminate this Agreement effective upon written notice to the Fleet Partner upon any of the following events of default: (i) The Fleet Partner commits or permits a breach of, or default in, any of its duties, liabilities or obligations hereunder and fails to fully cure or remedy such failure, breach or default within two (2) days after written notice from CFO to the Fleet Partner specifying the nature of such failure, breach or default; or (ii) The Fleet Partner shall file a voluntary petition in bankruptcy, or shall be adjudicated bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency or other relief for debtors, whether federal or state, or shall seek, consent to or acquiesce in the appointment of any trustee, receiver, conservator or liquidator of the Fleet Partner or of all or any substantial part of its properties (the term "acquiesce," as used herein, being deemed to include, but not be limited to, the failure to file a petition or motion to vacate or discharge any order, judgment or decree providing for such appointment within the time specified by law); or a court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against the Fleet Partner seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency or other relief for debtors, whether federal or state; -4- C015010364.2 0015189851.1 (d) Termination of Underlying Contracts. This Agreement shall automatically terminate without constituting a default or breach on the part of either Party upon the termination of either the DOE Agreement or the Provider Agreement applicable to the Demo Vehicles for any reason. (e) Survival. Sections 4, 7, S, 9, 11, 14 and 20 shall survive the termination of this Agreement. 11. Representations (a) CFO's Representations, Warranties and Covenants. CFO hereby represents, warrants and covenants to the Fleet Partner as follows: (i) it is duly authorized to enter into this Agreement and has taken all necessary corporate action to obtain such authorization and that no consent of, or notice to, any other individual, private entity or governmental authority is required in connection with the execution, delivery, and performance of this Agreement; and (ii) this Agreement, when properly executed by both parties, will constitute a legal, valid and binding agreement, enforceable by the Fleet Partner in accordance with its terms. (b) Fleet Partner's Representations, Warranties and Covenants. The Fleet Partner hereby represents, warrants and covenants to CFO as follows: (i) it is duly authorized to enter into this Agreement and has taken all necessary action to obtain such authorization, and that no consent of, or notice to, any other individual, private entity or governmental authority is required in connection with the execution, delivery and performance of this Agreement; (ii) this Agreement, when properly executed by both parties, will constitute a legal, valid, and binding agreement, enforceable by CFO in accordance with its terms; (iii) that it has been provided access to and has reviewed the DOE Agreement and understands the obligations, duties and standards imposed by it upon the Fleet Partner's performance hereunder; 13. Relationship of the Parties; Authority. The Parties shall at all times be acting and performing as independent contractors, and this Agreement shall not be construed as creating any partnership, joint venture, employment or similar relationship between the Parties or an employment relationship between CFO and any employee or contractor of the Fleet Partner. The Fleet Partner shall have no authority to bind CFO with respect to any contract or obligation or waive any right or interest held by CFO without CFO's prior written consent. 14. Severability. In the event that one or more of the terms and conditions of this Agreement should be held invalid by a court of competent jurisdiction, the validity of the remaining terms and conditions of this Agreement shall not be affected; provided, however, that CFO may elect to terminate this Agreement if a material term or condition hereof is so deemed invalid. -5- 0015Q1 Q364.2 C015189851.1 15. Governing Law; Venue. This Agreement shall be construed in all respects to be in accordance with, and any dispute arising hereunder shall be governed by, the substantive and procedural laws of the State of Indiana (state). The Parties hereby irrevocably consent to the exclusive jurisdiction of the courts of the State of Indiana (state) in _Porter_ County, and the United States District Court for _Indiana_ (state), and waive any contention that any such court is an improper venue for enforceability of this Agreement. Notwithstanding the foregoing, to the extent any action, claims, demand or dispute is subject to a specified venue under the DOE Agreement, the Parties hereby agree to submit such matter to such specified venue as described in the DOE Agreement. 16. Assignment of Contract. Neither Party may assign or transfer this Agreement or any rights or liabilities herein, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld. 17. Modification of Agreement. This Agreement constitutes the entire agreement between the Parties hereto. To be effective, any modification of this Agreement must be in writing and signed by the Party to be charged thereby. 18. Headings. The headings of the paragraphs of this Agreement are inserted for convenience of reference only and shall not in any manner affect the construction or meaning of anything contained herein or govern the rights or liabilities of the Parties hereto. 19. Interpretation. Whenever the context requires, all words used in the singular number shall be deemed to include the plural and vice versa, and each gender shall include any other gender. The use herein of the word "including," when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or .matters set forth immediately following such word or to similar items or matters, whether or not non -limiting language (such as "without limitation," or "but not limited to," or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter. 20. Notices. All notices, requests and communications required or permitted hereunder shall be in writing and shall be sufficiently given and, deemed to have been given and received upon personal delivery or, if mailed, upon the date mailed if sent by certified or registered mail or a nationally recognized overnight courier service addressed as follows: If to CFO: Clean Fuels Ohio 530 West Spring Street, Suite 250 Columbus, Ohio 43215 Attn: Sam Spofforth With a copy to: Ice Miller LLP 250 West Street Columbus, Ohio 43215 Attn: Sarah E. Lynn -6- CO\5010364.2 0015189851.1 If to Fleet Partner: City of South Bend 1045 W. Sample St. South Bend, IN 46619 Attn: Matt Chlebowski Notice of a change in address of one of the parties shall be given in writing to the other parties as provided above, but shall be effective only upon actual receipt. 21. Confidentiality. The parties acknowledge that they will acquire Confidential Information and knowledge respecting the confidential affairs of one another and their affiliates in various phases of their businesses. The parties agree to keep secret and retain in the strictest confidence all such Confidential Information and not to disclose the same to anyone outside such party, whether during or after the term of this Agreement, except in the course of and to the extent necessary to perform the obligations hereunder, and except as required under the IN (insert state) Public Records laws. Confidential Information shall be used only to carry out the obligations of the parties hereunder and not for the benefit of any other party or in the furtherance of any other purpose. Fleet Partner shall not disclose any information unless it (i) has the express right to disclose such information and if it owes no duty of confidentiality to a third party with respect to such information, or (ii) has a legal obligation under the IN (insert state) Public Records laws to disclose such information. The receiving party shall (i) use Confidential Information only for the purposes described in this Agreement or such other purposes as the disclosing party may approve in writing, (ii) restrict access to and use of Confidential Information to its employees and agents for whom such access and use is required to perform hereunder and who are bound by obligations of confidentiality at least as strict as those set forth in this Section. The obligation of confidentiality under this paragraph shall extend for a period of ten (10) years after the disclosure of Confidential Information under this Agreement. In the event a receiving party is required by court or administrative order, applicable law or the DOE Agreement to disclose any Confidential Information, it may do so without liability hereunder. 22. Third Party Beneficiary. The applicable Vehicle Provider is expressly made a third - party beneficiary of this Agreement for purposes of the indemnification rights set forth in Section I 1 and is entitled to enforce the terms and conditions set forth therein and the obligations of the Fleet Partner thereunder. Nothing herein expressed or implied is intended or shall be construed to confer upon or give any third party other than the Parties and their respective permitted successors and permitted assigns, any rights or remedies under or by reason of this Agreement. [signatures on following page] _7. CM5010364.2 CO\518985I.1 :1 I Y 1' r II .. 1 R l 1 I N R � ^S :. I • I e i.! I , _ �_._ r_. ^� _ • II >ff I . i Date Name BOARD OF PUBLIC WORKS AGENDA ITEM REVIEW REQUEST FORM 5/1 /17 Matt Chlebowski Purchasing ® George King Department Central Services U Agreement ® Contract ❑ Proposal ❑ Addendum ❑ Professional Services ❑ Resolution ❑ Bid Opening ❑ Bid Award ❑ Req. to Advertise ❑ Title Sheet ❑ Quote Opening ❑ Quote Award ❑ Change Order No. ❑ CIO & PCA No. ❑ PCA ❑ Ease/Encroach. ❑ Traffic Control (� Other: Company or Vendor Name New Vendor MBEANBE Contractor MBENVBE Contractor Requested Project Name Project Number Funding Source Account No. Amount Terms of Contract Purpose/Description Clean Fuels Ohio would like us to test drive an electric vehicle through the demonstration project "Midwest DRIVES Initiative" for 10 days and give them our opinion. Lj Yes U No Lj If Yes, Approved by Purchasing n MBE M WBE ❑ No ❑ Yes Name of Com an Bid Opening Date: ❑ Required Contractor's Certification Form Attached (Non - Collusion, Non -Discrimination, Non -Debarment, E-Vehfv, Iran. etc. Amount of ❑ Increase $ ❑ Decrease $ Previous Amount $ Current Percent of Change: % New Amount $ Total Percent of Change: % Copy Original ❑ ❑ Dispersal After Approval Matt Chlebowski & Sheila Enos