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HomeMy WebLinkAboutResolution - 2019-R0133 - Proterra Inc. - 04/23/2019 Resolution No. 2019-RO133 Item No. 7.1.2 April 23, 2019 RESOLUTION BE IT RESOLVED 13Y THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Sales Contract for the purchase of two (2) 40' electric buses and associated charging stations, by and between the City of Lubbock and Proterra Inc., a Delaware corporation, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on April 23, 2019 DANIEL M. POPE, MAYOR ATTEST: Reb cca Garza, City Secetaty APPROVED AS TO CONTENT: Bill/w' rton, De-'U ity Manager APPROVED AS TO FORM: Ry Br k , A sistant City Attorney ccdoes/RES.Sales Con tract-Proterra Inc. Electric Buses 4.4.19 Resolution No. 2019-RO133 PROTERRA FORM SALE CONTRACT Contract No. P2018-04-Citibus CITIBUS AND PROTERRA I NC Purchase and Sale of Two (2) 40 Foot Battery Electric Buses and Two (2) Associated Charging Stations Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 This Contract Agreement (hereinafter referred to as "Contract" or "Agreement") is made and entered into effective as of the date executed in full ("Effective Date") by City of Lubbock, a Texas home rule municipal corporation on behalf of Citibus, located at 801 Texas Avenue, Lubbock, TX 79401 and Proterra Inc, a Delaware corporation, with its principal place of business 1 Whitlee Court, Greenville, SC 29607 ("Contractor") for the manufacture and delivery of two (2) 40-Foot Proterra Catalyst Battery Electric Buses (hereinafter "Buses"), and two (2) Depot Charging Station(s) (hereinafter"Depot Charging Station") or generically hereinafter"Charging Station(s)." Citibus and the Contractor are sometimes individually referred to as "Party" and collectively as "Parties." Citibus participated in a consortium to procure the Buses through the Federal Transportation Administration ("FTA") Low or No Emission Grant and, in accordance with FTA regulations, this procurement activity satisfies a competitive procurement requirement. SEC. 1 CONTRACT DOCUMENTS A. The Contract consists of the following which are incorporated herein by reference as appropriate: 1. General Contractual Provisions contained herein. 2. Option Tracker set forth as Attachment 1 hereto. 3. Configuration Templates set forth as Attachment 2 hereto. 4. Charging Station Technical Specifications set forth as Attachment 3 hereto. 5. Warranty Provisions as set forth as Attachment 4 hereto. B. In case of any conflict among these documents where the Parties' intended resolution is not clear, the order of precedence shall be in the same order set forth in paragraph A above. SEC. 2 TERM OF CONTRACT Citibus and the Contractor agree that the Term of this Contract shall be for five (5) years commencing on the later of the Effective Date or the date of the Notice to Proceed (as defined below) unless otherwise extended by written amendment mutually agreed by Citibus and Contractor. SEC. 3 PAYMENT A. Citibus shall pay and the Contractor shall accept: 1. Seven hundred and eighty-five thousand Dollars ($785,000.00) per Bus ("Bus Unit Price"), for a total of one million, five hundred and seventy thousand Dollars ($1,570,000.00) for all two (2) Buses initially purchased under this Agreement; 2. Forty thousand Dollars ($40,000.00) per Depot Charging Station ("Depot Charging Unit Price") for a total of eighty thousand Dollars ($80,000.00) for two (2) Charging Stations initially purchased under this Agreement; 3. Seventy thousand Dollars ($70,000.00) ("Depot Charging Installation Price") for complete installation of two (2) Charging System initially purchased under this Agreement; 3 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 for a total contract price of one million, seven hundred and twenty thousand Dollars ($1,720,000.00) BUT SPECIFICALLY EXCLUDING SALES TAX ("Contract Price"). It is understood and agreed by Citibus and the Contractor that Citibus is a tax-exempt entity and will provide a copy of their tax-exempt certification to the Contractor. B. The Parties agree that the Contractor will submit an invoice to Citibus for payment of Contract Price, and Citibus will make payments of Contract Price, on the following schedule: 1. Bus Payments: Citibus shall make a payment equal to one hundred percent(100%) of the Bus Unit Price for each Bus upon the delivery and acceptance of such Bus under the terms of Section 8 below and no later than thirty (30)calendar days of receipt of an invoice from Contractor. 2. Depot Charging Station Payments: Citibus agrees that it will make a payment equal to one hundred percent (100%) of the Depot Charging Unit Price and Depot Charging Installation Price upon Citibus' acceptance of the Charging Station in accordance with the provisions of Section 9 of this contract no later than thirty (30) calendar days of receipt of an invoice from Contractor. C. All payments due under this Contract in excess of twenty-five thousand Dollars ($25,000) shall be made by wire unless otherwise mutually agreed in writing to Proterra Inc pursuant to the following wiring instructions: Silicon Valley Bank (SVB) Pasadena, CA 91185-3747 ABA Number: 121140399 Beneficiary Account Number: 3300812516 Beneficiary Name: Proterra Inc Beneficiary Address: 1 Whitlee Ct., Greenville, SC 29607 D. Citibus shall be charged and shall make payments for spare parts and/or equipment at the unit prices itemized in the price schedule to be delivered by Contractor within thirty (30) calendar days after the delivery and acceptance of said spare parts and/or equipment and receipt of a proper invoice. E. The Contractor may charge interest for late payment if payment is delayed after the payment due dates set forth in this Section 3. Interest will be charged at a rate not to exceed the prime rate of interest published by The Wall Street Journal plus 3% commencing with the date such payment was due. F. Unless otherwise provided in this Contract, the Contractor shall pay all federal, state and local taxes, and duties applicable to and assessable against any work, goods, services, processes and operations incidental to or involved in the Contract, excluding sales taxes associated with the sale of the items set forth herein to Citibus (i.e., for the avoidance of doubt, Citibus shall pay any 4 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 and all sales taxes associated with or resulting from purchases pursuant to this Contract). SEC. 4 OPTIONS Intentionally left blank. SEC. 5 ADDITIONAL EQUIPMENT, SERVICES AND DELIVERABLES The Parties recognize that additional services and equipment are necessary for Citibus to fully implement the Buses and Charging Stations supplied by the Contractor under the terms of this Agreement, which are set forth below as either being included in or excluded from the Contract Price. Included in the Contract Price: 1. Driver, Maintenance and Repair and Parts Manuals, in quantities/formatting provided pursuant to Section 14 herein Additional Charge/Not Included in the Contract Price: 1. Diagnostic laptop, software and tools (if NOT selected on the Option Tracker) Contractor to provide list and charges of tools) 2. Spare Parts 3. Training beyond that agreed in Section 14 of this Contract SEC. 6 PRE-PRODUCTION MEETING A. A formal pre-production meeting shall be held to review the technical specifications and related Contract provisions and to discuss actual and potential open items. B. The Contractor and Citibus agree that the pre-production meeting will be held at either Citibus' chosen location or Contractor's facility in City of Industry, California, as mutually determined between Citibus and Contractor. Contractor shall provide a formal production schedule at this meeting which, upon mutual acceptance by the Parties, shall be automatically incorporated by reference into this Agreement. The Parties shall make commercially reasonable efforts to resolve all the issues/questions raised at this pre-production meeting within six (6) weeks after the date of the meeting. During the pre-production meeting,the Parties shall address the schedule for development regarding the Charging Station Installation. SEC. 7 FINAL BUS DESIGN In the course of bus design and production, Contractor shall request bus option and design input from Citibus. Citibus shall give input on bus option and design within a reasonable timeframe. Contractor and Citibus shall both agree on final bus option and design package. After agreeing on final bus option and design, Contractor's Engineering Department will design bus to required specifications. Citibus shall review design and, once satisfied, approve "Final Bus Design". Contractor commits to build bus to Final Bus Design and specifications. Citibus commits to accept buses built to Final Bus Design. If Citibus, after agreeing to final bus design, makes material changes to final bus design, Citibus acknowledges that Proterra, in its sole discretion, retains recourse to pursue any of the following actions, as described below, in the"Late Changes" Clause. Contractor shall solely determine whether changes are "material." Additionally, Citibus 5 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 agrees to inspect buses with solely the "Final Bus Design" as the standard for inspection. "Final Bus Design" is comprised of Proterra's Option Tracker (Attachment 1) and Proterra's Configuration Templates (Attachment 2). SEC. 8 BUS DELIVERY SCHEDULE AND ACCEPTANCE PROCEDURES A. Delivery of Buses shall be determined by signed receipt of Citibus's designated agent(s), at point of delivery and may be preceded by a cursory inspection of the Bus. Delivery location for the Buses is Citibus' bus yard located at 801 Texas Avenue, Lubbock, TX 79401. B. Hours of delivery shall be between 8:30 AM to 5:30 PM local time, Monday through Friday except holidays. C. Prior to Citibus's final acceptance of each Bus, each Bus shall undergo Citibus's reasonable tests prior to Citibus's final acceptance of each Bus. Each Bus will be deemed accepted by Citibus only when the Contractor has complied in all material respects with the"Final Bus Design" set forth in Proterra's Option Tracker (Attachment 1) and Proterra's Configuration Templates (Attachment 2). Acceptance will not be completed until the Contractor has made all reasonably requested repairs to the Bus in accordance with Section 12 of this Contract. Citibus agrees and acknowledges that it must make its determination on acceptance or non-acceptance no later than twelve (12) calendar days following receipt of each Bus under this Contract or the Bus shall be deemed accepted, and that in the event of any non-acceptance, Citibus shall provide Contractor a reasonably detailed description of the reasons for non-acceptance. Citibus shall not be able to reject or not accept a Bus after such twelve (12) calendar day period. Notwithstanding the foregoing, placement of any non-accepted Bus into service shall, notwithstanding anything to the contrary in this Agreement, be deemed acceptance of such Bus. D. The Contractor's pre-delivery tests and inspections of all Buses shall be performed at or near the Contractor's plant/facility, and they shall be witnessed by Citibus's inspector(s). Any such tests and inspections performed at or near Contractor's plant/facility shall be made using the same criteria as set forth above in Subsection (C), and if Citibus inspects and accepts a Bus at or near Contractor's plant/facility, and such Bus has not materially changed when it has been delivered and received by Citibus as compared to when such Bus was inspected and accepted at or near Contractor's plant/facility, then Citibus shall not and may not then reject such delivered and received Bus. No post-delivery test/inspection shall apply criteria that are different from the criteria applied in any pre-delivery test/inspection. SEC. 9 CHARGING STATION DELIVERY SCHEDULE AND ACCEPTANCE PROCEDURES A. Delivery of the Charging Station shall be determined by signed receipt of Citibus's designated agent(s), at point of delivery, unless directed to another location as directed by Citibus. Delivery locations will be provided by Citibus prior to production. Charging Station delivery shall be made at Citibus' bus yard located at 801 Texas Avenue, Lubbock, TX 79401. B. The Contractor agrees to deliver the Charging Station no later than fifteen (15) days prior to delivery of the first Bus under this Contract. C. Hours of delivery shall be between 8:30 AM through 5:30 PM local time, Monday through 6 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/0412019 Friday except holidays. D. Each Charging Station will be deemed accepted by Citibus only when the Contractor has commissioned the Charging Station and demonstrated that it works to charge the Proterra Catalyst Buses. Acceptance will not be completed until the Contractor has made all reasonably requested repairs to the Charging Station in accordance with Section 12 of this Contract. Citibus agrees and acknowledges that it must make its determination on acceptance or non-acceptance no later than twelve (12) calendar days following receipt of and installation of the Charging Station or the Charging Station shall be deemed accepted, and that in the event of any non-acceptance, Citibus shall provide Contractor a reasonably detailed description of the reasons for non- acceptance. Citibus shall not be able to reject or not accept a Charging Station after such twelve (12) calendar day period. Since Proterra has agreed to a Turn-Key (TK) charging solution: Whereas Proterra has accepted responsibility for charger installation and, if, completion or functionality of the charger portion of the project is delayed, but Citibus otherwise finds the Bus or Buses themselves acceptable in accordance with the terms and requirements herein, a holdback of 10% of the total contract price for the Bus or Buses may be applied until the chargers are installed and functional in accordance in all material respects with [Attachment 3]. Citibus shall promptly pay such 10% holdback once the chargers are installed and functional in accordance in all material respects with [Attachment 3]. Turnkey Charginq Solution: Contractor's Scope of Supply: Complete design, installation and permitting of one (1) Charging System including installation of Contractor's 60kW charging equipment, distribution panel, switch breakers, concrete pads for equipment and transformer, underground conduit and electrical wiring. Contractor will also be responsible for scheduling commissioning of the Charging Station and demonstrate that it works to charge the Proterra Catalyst buses. Citibus' Scope of Supply: Provide Contractor access to Citibus' site where the charging station will be installed. Submit the request for new electrical service to Citibus' utility provider. SEC. 10 END OF LIFE BATTERY REPLACEMENT Intentionally left blank. SEC. 11 TITLE The Contractor shall provide reasonably adequate documents for registering the Bus in the State of Texas to Citibus at the time of delivery. Risk of loss on any Bus or Charging Station remains with the Contractor until delivery to Citibus, at which point risk of loss passes to Citibus. SEC. 12 REPAIRS OF BUSES AND CHARGING STATIONS AFTER NOW Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 ACCEPTANCE A. After non-acceptance of a Bus or Charging Station,the Contractor must take commercially reasonable efforts to complete work within fifteen (15) business days after receiving notification from Citibus of failure of acceptance tests. In the event a repair shall take longer than fifteen (15) business days, Contractor shall have such reasonable time as is necessary to complete the repair so long as Contractor commences to resolve the repair issue within such fifteen (15) business day period. Citibus shall make the Bus or Charging Station available to complete repairs timely with the Contractor's repair schedule. B. The Contractor shall provide all spare parts, tools, and space required to complete the repairs. Citibus agrees that for the first thirty(30)day period following non-acceptance, Contractor shall have the right to perform repairs at Citibus's facilities, provided that following such thirty (30) day period if the non-accepted item is not corrected then, at Citibus's option, the Contractor may be required to remove the non-accepted item from Citibus's facilities while repairs are being effected. If the non-accepted item is removed from Citibus's facilities, repair procedures must be pursued by the Contractor's representatives. SEC. 13 ENGINEERISERVICE REPRESENTATIVES The Contractor shall provide a field service representative(s) available on request to assist Citibus's staff in the solution of engineering or design problems that may arise during the acceptance and warranty periods. SEC. 14 DOCUMENTS AND TRAINING A. The Contractor shall supply training documents to Citibus in Contractor's customary format and as reasonably determined by Contractor. The Contractor agrees to provide driver and maintenance training. In connection with such training, Citibus agrees to provide Contractor reasonable access to Citibus's data and information, and Citibus shall have access to its own custom web portal,which contains the latest versions of all applicable manuals, videos, guidelines and other training materials. Contractor recommends that Citibus obtain high voltage safety training for its employees and that Citibus develops its own high voltage safety rules and guidelines; however, any such training, rules and guidelines will not be provided by the Contractor. B. Successful acceptance and deployment of new technology requires a significant effort on the part of Citibus as well as Contractor. Accordingly, Citibus agrees to follow and adhere to the "launch schedule" as agreed to between Contractor and Citibus. C. Contractor shall own all data produced by the Buses/vehicle and the Charging Station/charging system. Contractor reserves the right to present data to third parties without the prior consent of Citibus. Contractor agrees to provide any data that may be reasonably required to satisfy the requirements of any grants or other sources of funding used to purchase the Buses by Citibus at an interval of no more frequently than once per month. D. Citibus agrees that it shall ensure that any drivers assigned to operate the Bus shall be sufficiently trained. New drivers should receive sufficient training on the Bus and its docking and charging procedures including at least four hours of shadow service and five successful docks prior to being in revenue service. Contractor recommends that new drivers get assigned to the Buses no more frequently than every 12 months. 8 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/0412019 E. Labor Rates for any out of warranty work chargeable to Citibus shall be set at $100/hour for this contract term. SEC. 15 TOOLS AND EQUIPMENT The Contractor shall provide Citibus with a comprehensive list of all of the tools, equipment, software, specialized diagnostic tools, and/or related equipment for the service, repair and overhaul of the complete Bus, all major sub-systems of the Bus, and the Charging Stations. Proprietary software and computer hardware necessary to repair, service and/or diagnose all systems of the Bus and the Charging Stations shall be made reasonably available to Citibus when required to repair the Bus, its systems, or the Charging Stations at no cost to Citibus per Section 5 above. SEC. 16 PARTS AVAILABILITY GUARANTEE A. Contractor hereby agrees to make available the spare parts and equipment as set forth in the Option Tracker. B. Unless otherwise agreed, all units and components procured under this Contract, whether provided by suppliers or manufactured by the Contractor, shall be duplicates in design, manufacture, and installation to assure interchangeability among Buses in this procurement. This interchangeability shall extend to individual components as well as to their locations in the Buses. C. EXCEPT FOR ANY SUCH WARRANTIES THAT CONTRACTOR MAY EXPRESSLY AND SPECIFICALLY PROVIDE, ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT, OR ANY WARRANTIES BASED UPON SAMPLES, MODELS, OR SPECIFICATIONS, ARE EXPRESSLY DISCLAIMED. SEC. 17 MATERIALS/ACCESSORIES RESPONSIBILITIES The Contractor shall be responsible for all materials and workmanship in the construction of the Buses and Charging Stations and all accessories used, whether the same are manufactured by the Contractor or purchased from supplier and as subject to the Warranty provisions set forth in Attachment 4 to this Agreement. This provision excludes fare boxes, radios, and any equipment supplied by Citibus, except insofar as such equipment is damaged by the failure of a part or component for which the Contractor is responsible, or except insofar as the damage to such equipment is solely caused by the Contractor during the manufacture of the Buses and/or Charging Stations. SEC. 18 REPRESENTATIVES AND NOTICE A. Citibus's Representative. Citibus hereby designates Chris Mandrell, to act as its representative for the performance of this Agreement ("Citibus's Representative"). Citibus's Representative shall have power to act on behalf of Citibus for all purposes under this Agreement. B. Contractor's Representative. Contractor hereby designates Nishant Dixit as its Project Manager, to act as its representative to oversee the performance of this Agreement("Contractor's Representative"). Contractor's Representative shall have full authority to represent and act on 9 Contract No.P2018-04-Cilibus Battery Electric Buses Version No.8 Dated 04/04/2019 behalf of the Contractor for all purposes under this Agreement. Contractor agrees that its representative will be on site, as needed, during the period of design, construction and installation of the Charging Station. Contractor further agrees that if its representative named above is not physically on site at any time, it will designate an individual employed by its construction contractor to act as its representative. Such designation will be provided in writing to Citibus's representative. C. Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Contractor: Nishant Dixit Technical Program Manager Proterra Inc 383 Cheryl Lane, City of Industry, CA 91789 Phone (323) 360-1499 with a copy to: Jeff Mitchell Deputy General Counsel, Legal Proterra Inc 1815 Rollins Road, Burlingame, CA 94010 Phone (650) 689-8265 Citibus: Chris Mandrell General Manager Citibus 801 Texas Avenue, Lubbock, TX 79401 (806) 712-2001 with a copy to: Bill Howerton Deputy City Manager City of Lubbock P.O. Box 2000 1625 13t" Street, Lubbock, TX 79457 Phone (806) 775-2300 Any notices required by this Agreement shall be deemed received on (a) the day of delivery if delivered by hand (including overnight courier service) during receiving Party's regular business hours or by facsimile before or during receiving Party's regular business hours; or(b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses set forth below, or to such other addresses as the Parties may, from time to time, designate in writing pursuant to the provisions of this Section. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. SEC. 19 ACCOUNTING RECORDS AND AUDIT ADJUSTMENTS The Contractor shall maintain accurate records with respect to all costs and expenses incurred under this Agreement. The Contractor agrees that the United States Department of Transportation and Citibus, or any of their duly authorized representatives, shall, for the purpose of audit and examination, and to the extent required by law, be permitted to inspect all work, materials, payrolls, and other data and records, and to audit, during normal business hours with 10 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 reasonable advanced notice, the books, records, and accounts relating to the performance of the Contract; provided that Contractor shall have the right to maintain and protect the confidentiality of any information so provided. Further, Contractor agrees to maintain all required records for at least three (3) years after Citibus has made final payment and all other pending matters are closed. SEC. 20 CHANGE ORDERS AND SPECIFICATION REVISIONS Unless there are changes mandated by applicable law, the Parties recognize that no changes to the Bus and/or Charging Station to be delivered by the Contractor to Citibus can be made without a written Change Order executed by Citibus's Representative and accepted by Contractor's Representative. SEC. 21 LATE CHANGES This Agreement represents and contains specific configurations and specifications agreed upon between Proterra and Citibus. Notwithstanding anything to the contrary contained herein,for any and all proposed changes, no matter how material or immaterial, requested by Citibus after the date hereof that are outside of or different from the configurations and/or specifications agreed upon between the parties hereto as of the date hereof, Proterra reserves and shall have the right to, in its sole and absolute discretion, pursue any of the following: A) Propose price increases for the changed configurations and/or specifications, which price increases are subject to Citibus's prior approval, which approval shall not be unreasonably withheld or delayed; B) Propose, subject to Citibus's prior approval (which approval shall not be unreasonably withheld or delayed), an alternative build slot and/or delays in delivery/shipment to account for delays resulting from the requested changed configurations and/or specifications; C) Reject some or all of the requested changes to, among other things, preserve a build slot(s) and delivery timeframe; and/or D) Any other solution proposed by Proterra, subject to Citibus's prior approval, which approval shall not be unreasonably withheld or delayed. Notwithstanding anything to the contrary contained herein, Citibus acknowledges and agrees that any of the above rights, if/when exercised by Proterra (including any delivery/shipment delays and/or alternative build slots and including any outright rejection of any requested changes) shall not (1) be a breach of this Agreement, (2) affect or toll any warranties provided by Proterra, (3) result in or cause any penalties, damages (including liquidated damages), claims or liabilities to Proterra, (4) give Citibus any termination right, (5) affect or change payment terms (including any progress payments) and/or(6) give Citibus the right to reject any shipment or fail any inspection. In addition, notwithstanding anything to the contrary contained herein, Proterra may, in its sole and absolute discretion, utilize subcontractors to implement any requested changes that Proterra may agree to. SEC. 22 DISPUTES A. General. Any dispute between the Contractor and Citibus relating to the implementation or administration of the Contract shall be resolved in accordance with this Section. B. Resolution. The Parties shall first attempt to resolve the dispute informally in meetings or 11 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 communications among the Contractor's Representative and Citibus's Representative. If the dispute remains unresolved fifteen (15) days after it first arises, the Contractor may request that Citibus's Representative issue a recommended decision on the matter in dispute. Citibus's Representative shall issue the recommended decision in writing and provide a copy to the Contractor. The Parties reserve the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the Parties shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, the former shall control. SEC. 23 MINOR CHANGES Citibus acknowledges and agrees that there could be minor changes and/or minor delivery and timeline revisions. Accordingly, Citibus and Proterra agree to reasonably cooperate in good faith regarding any such minor changes and slight timeline revisions. SEC. 24 TERMINATION A. Termination for Convenience a. Action by Citibus The performance of work under the Contract may be terminated by Citibus in accordance with this Section in whole, or from time to time in part, with at least sixty (60) days prior written notice to Contractor. Any such termination shall be effected by delivery to the Contractor of a notice of termination specifying the extent to which performance of the professional services under the Contract is terminated and the date upon which such termination becomes effective; provided that such termination effective date shall be no earlier than sixty (60)days after receipt of such termination notice by Contractor. b. Responsibility of Contractor Upon receipt of a notice of termination, and except as otherwise directed by Citibus, the Contractor shall, to the extent possible, (1) stop work under the Contract on the date and to the extent specified in the notice of termination; (2) place no further orders or subcontracts for materials, services, or facilities, except as may be necessary for completion of such portion of the work under the Contract as is not terminated; (3)to the extent possible, terminate all orders and subcontracts to the extent that they relate to the performance of work terminated by the notice of termination; (4) transfer title to Citibus and deliver in the manner, at the times, and to the extent, if any, directed by Citibus, non-proprietary supplies, equipment, and other material produced as a part of, or acquired in connection with the 12 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 performance of, the work terminated, and any information and other property which, if the Contract had been completed, would have been required to be furnished to Citibus provided that Citibus reimburses Contractor for all related costs and expenses; and (5) complete any such part of the work as shall not have been terminated by the notice of termination. Payments by Citibus to the Contractor shall be made by the effective date of termination, including with respect to the portion of any completed work and related costs and expenses so terminated. Except as otherwise provided, settlement of claims by the Contractor under this termination Section shall be in accordance with the provisions set forth in 48 C.F.R. Part 49, as amended from time to time. B. Termination by Mutual Agreement. The Contract may be terminated by mutual agreement of the Parties. Such termination shall be effective in accordance with a written agreement by the Parties. Any other act of termination shall be in accordance with the termination by convenience or default provisions contained in Sections 24.A. and C., respectively. C. Termination for Default a. Action by Citibus Subject to the provisions of subparagraph c. below, Citibus may terminate the whole or any part of the Contract in any one of the following circumstances: (1) If the Contractor fails to provide any material services required under this Contract; or (2) If the Contractor fails to perform any of the material provisions of the Contract in accordance in all material respects with its terms. b. Contractor Liability In the event that Citibus terminates the Contract in whole or in part as provided in this Subsection (C), Citibus may procure, upon such terms and in such manner as Citibus may deem appropriate and at Citibus's cost and expense, supplies or services similar to those so terminated. The Contractor shall continue the performance of the Contract to the extent not terminated under the provisions of this Section. C. Cure by Contractor If Citibus determines that an event of default under this Section 24 has occurred, it shall immediately notify the Contractor in writing and provide the Contractor with thirty (30) days in which to cure such default; provided that if it would reasonably take longer to cure such default, Contractor shall commence the cure during such thirty (30) day period and take commercially reasonable efforts to cure as soon as reasonably practicable thereafter. If the Contractor fails to cure within such time frame, Citibus 13 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 may declare that Contractor to be in default and terminate the Contract in whole or in part. d. Claims Except as otherwise provided, settlement of claims by the Contractor under this Section shall be in accordance to the provisions set forth in 48 C.F.R. Part 49, as amended from time to time. e. Default by Citibus Except to the extent solely caused by a default of Contractor, in the event that Citibus breaches this Contract, and such breach, if and only if curable, is not cured within sixty (60) days following written notice from Contractor (or such longer period as is reasonably necessary to cure if such cure may not reasonably be effected in such sixty (60) day period, provided Citibus diligently prosecutes such cure to completion at all times), Contractor shall have the right to terminate this Contract by written notice delivered by Contractor to Citibus at which time Citibus shall reimburse Contractor for all reasonable costs and expenses incurred by Contractor in connection with this Contract, including, at Contractor's option, payment of the difference between the purchase price under this Contract and the actual price paid to Contractor to sell the Buses and Charging Station(s) to another customer. For the avoidance of doubt, failure to make any payment by Citibus is a breach that would require cure within thirty (30) days. SEC. 26 RESPONSIBILITIES OF CONTRACTOR AND Citibus A. Compliance with Law. The Contractor and Citibus shall give all notices and comply with all Federal, state, and local laws, ordinances, rules, regulations, and orders of any public authority bearing on the performance of the Contract, including, but not limited to, the laws referred to in these provisions of the Contract. If the Contract documents are at variance therewith in any respect, any necessary changes shall be incorporated by appropriate modification. Upon reasonable request by the other Party, the requested Party shall furnish the other Party with certificates of compliance with all such laws, orders, and regulations. B. Independent Contractor. All services shall be performed by Contractor or by a third party under Contractor's supervision. Citibus retains Contractor on an independent contractor basis and not as an employee. Contractor retains the right to perform similar or different services for, and sell similar products to, others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Contractor shall also not be employees of Citibus and shall be under Contractor's direction. SEC. 26 FORCE MAJEURE The Contractor shall not be liable for any failure to perform if acceptable evidence has been submitted to Citibus that failure to perform the Contract was due to causes beyond the control of the Contractor. Examples of such causes include acts of God, civil disturbances, unanticipated work stoppages, strikes, lockouts, labor disputes, national emergencies, acts of government, acts 14 Contract No.P2018-04-Citibus Battery Electric Buses Version No. 8 Dated 04/04/2019 of public enemy, storms, casualties, fires, riots, hurricanes,tornadoes, wars,floods or other cause of similar or dissimilar nature beyond Contractor's control. SEC. 27 CONFLICT OF INTEREST No officer, member or employee of Citibus and no members of its governing body, and no other public official of the governing body of the locality in which the project is situated and being carried out who exercise any functions or responsibility in the review and approval of the undertaking or carrying out of this project, shall participate in any decision relating to this Agreementwhich affects his or her personal interest or have any personal or pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. SEC. 28 INDEMNIFICATION, INSURANCE & LIABILITY A. Indemnification The Contractor shall indemnify and save harmless Citibus, its officials and employees, from all losses, damages, costs, expenses, liability, claims, actions, and judgments of any kind brought or asserted against, or incurred by, Citibus, to the extent that the same arise out of or are caused by any willful act or omission of the Contractor, or by the employees, officers or directors of the Contractor, but not to the extent arising out of or are caused by any act or omission of Citibus or its employees, officers, directors, agents or representatives. Citibus agrees that it shall be responsible for the negligent, willful and wrongful acts or omissions of its employees, officers, directors, agents and representatives. In addition, Citibus agrees that it shall be responsible for any use of the goods either (a) in combination with apparatus, devices or other products/goods not supplied by Contractor, or (b) in a manner for which the goods were neither designated nor contemplated. The parties expressly acknowledge that the City of Lubbock's, acting by and through Citibus, authority to indemnify and/or hold harmless any third party is governed by Article XI, Section 7 of the Texas Constitution and any provision which purports to require indemnification by the City is invalid. B. Insurance. Prior to commencing work, the Contractor shall procure and maintain at Contractor's own cost and expense for the duration of the Agreement, the following insurance against claims for injuries to person(s) or damages to property which may arise from, or in connection with, the performance of the work or services hereunder by the Contractor or its employees. Contractor shall maintain limits no less than: (1) Commercial Genera[/Umbrella Liability Insurance- $1,000,000 limit per occurrence for property damage and bodily injury. The service provider should indicate in its proposal whether the coverage is provided on a claims-made or on an occurrence basis. (2) Business Automobile/Umbrella Liability Insurance - $1,000,000 limit per accident for property damage and personal injury. (3) Workers' Compensation and Employers'/Umbrella Liability Insurance -- Workers' 15 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 Compensation coverage with benefits and monetary limits as set forth in South Carolina law. This policy shall include Employers'/Umbrella Liability coverage for $1,000,000 per accident. (4) Other Insurance Provisions: a. Commercial General Liability and Automobile Liability Coverage Citibus shall be covered as additional insured's. b. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by Citibus. At the option of Citibus, the insurer shall reduce or eliminate such deductibles or self- insured retentions with respect to Citibus. c. Acceptability of Insurers Insurance is to be placed with South Carolina admitted insurers rated B+X or better by A.M. Best's rating service. b. Verification of Coverage Upon written request from Citibus, Contractor shall furnish Citibus with certificates of insurance and with original endorsements affecting coverage required by this clause. C. Liability. IN NO EVENT WILL CONTRACTOR BE LIABLE TO CITIBUS FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFITS OR REVENUE, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE. CONTRACTOR'S CUMULATIVE LIABILITY UNDER THIS CONTRACT WILL NOT EXCEED THE LESSER OF $2 MILLION OR THE AGGREGATE AMOUNT PAID BY CITIBUS PURSUANT TO THIS CONTRACT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR LIABILITY AT ISSUE. SEC. 29 INTERPRETATION, JURISDICTION, AND VENUE This Contract is subject to all present and future valid laws, orders, rules and ordinances and/or regulations of the United States of America, the State of Texas and the Parties, and any other regulatory body having jurisdiction. This Agreement shall be construed and governed according to the laws of the State of Texas. The sole venue for any action, controversy, dispute or claim arising under this Agreement shall be in a court of appropriate jurisdiction in Lubbock County, Texas exclusively. SEC. 30 NO FEDERAL GOVERNMENT OBLIGATIONS Although this Contract is funded with Federal funds, absent the Federal Government's express written consent, the Federal Government shall not be subject to any obligations or liabilities to the Contractor, or any other person other than Citibus in connection with the performance of this Contract. 16 Contract No,P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 SEC. 31 INTERESTS OF MEMBERS OF, OR DELEGATES TO, CONGRESS In accordance with 18 U.S.C. Section 431, no member of, or delegate to, the Congress of the United States shall be admitted to any share or part of the Contract or to any benefit arising therefrom. SEC. 32 FALSE OR FRAUDULENT STATEMENTS AND CLAIMS By executing this Contract, the Contractor acknowledges that if it makes a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose penalties under the program Fraud Civil Remedies Act of 1986. SEC. 33 DEBARMENTISUSPENSION STATUS The Contractor shall provide Citibus with a certification addressing its debarment and suspension status, if any, and that of its principals. The Contractor shall promptly inform Citibus of any change in the suspension or debarment status of the Contractor or its principals during the term of the Contract. SEC. 34 AMERICANS WITH DISABILITIES ACT The Contractor shall ensure that the Buses manufactured and delivered under the terms of this Contract meet, in all material respects, the applicable Accessibility Guidelines for Transportation Vehicles set out in 49 C.F.R. Part 38. SEC. 35 BUY AMERICA The Contractor shall comply with the applicable Buy America requirements set forth in 49 U.S.C. 53230) and the applicable regulations in 49 C.F.R. Part 661, as amended. SEC. 36 CARGO PREFERENCE The Contractor agrees: A. Whenever shipping any equipment, materials or commodities pursuant to this Contract, to utilize privately owned United States-flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, but only if and to the extent such vessels are available at fair and reasonable rates for United States-flag commercial vessels. B. To furnish within twenty (20) business days following the date of loading for shipments originating within the United States, or within forty(40) business days following the date of loading for shipment originating outside the United States, a legible copy of a rated, "on-board" commercial ocean bill-of-lading in English for each shipment of cargo described in paragraph A. above to Citibus (through the prime contractor in the case of subcontractor bills-of-lading) and to the Division of National Cargo, Office of Market Development, Maritime Administration, 400 Seventh Street, S.W., Washington, D.C. 20590, marked with appropriate identification of the project. 17 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 SEC. 37 FLY AMERICA The Contractor agrees that if this Contract may involve the international transportation of goods, equipment, or personnel by air, the Contractor will use U.S.-flag air carriers, only if and to the extent service by these carriers is available at fair and reasonable rates. (49 U.S.C. 40018 and 4 C.F.R. Part 52). SEC. 38 RECYCLED PRODUCTS The Contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act(RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 C.F.R. Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 C.F.R. Part 247. SEC. 39 ENVIRONMENTAL REQUIREMENTS The Contractor agrees to comply in all material respects with all Federal, State and local environmental and resource conservation requirements that apply to the construction activities under the terms of this Contract. The Contractor shall report any violation of standards, orders or regulations issued under the Clean Air Act(42 U.S.C. 7401 et seq.) or the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) resulting from any activity of the Contractor in connection with the performance of the Contract to FTA and to the appropriate U.S. EPA Regional Office. The Contractor shall be responsible for the disposal of hazardous materials, in accordance with applicable Federal, state and local laws and regulations. SEC. 40 ENERGY EFFICIENCY The Contractor shall recognize the mandatory standards and policies relating to energy efficiency that are contained in the State Energy Conservation Plan issued in compliance with the Energy Policy and Conservation Act (42 U.S.C. 6321 et seq.). SEC. 41 NONDISCRIMINATION In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. SEC. 42 EQUAL EMPLOYMENT OPPORTUNITY The following equal employment opportunity requirements apply to the Contract: A. Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. §2000e, and Federal transit laws at 49 U.S.C. §5332,the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment 18 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 Opportunity,"42 U.S.C. §2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. B. Age. In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§623 and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. C. Disabilities. In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act,"29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. SEC. 43 DISADVANTAGED BUSINESS ENTERPRISE The Contractor agrees to comply with the Disadvantaged Business Enterprise requirements set forth in 49 C.F.R. 26.49. SEC. 44 PRE-AWARD AND POST-DELIVERY AUDIT REQUIREMENTS The Contractor agrees to comply with 49 U.S.C. § 5323(I) and FTA's implementing regulation at 49 C.F.R. Part 663 and to submit the following certifications: A. The Contractor shall complete and submit a declaration certifying either compliance or noncompliance with Buy America. If the Contractor certifies compliance with Buy America, it shall submit documentation which lists: 1) component and subcomponent parts of the rolling stock to be purchased, identified by manufacturer of the parts, their country of origin and costs on a percentage basis; and 2) the location of the final assembly point for the rolling stock, including a description of the activities that will take place at the final assembly point and the cost of final assembly on a percentage basis. B. The Contractor shall submit evidence that it will be capable of meeting the specifications. C. The Contractor shall submit: 1)manufacturer's FMVSS self-certification sticker information that the vehicle complies with relevant FMVSS; or 2) manufacturer's certified statement that the contracted Buses will not be subject to FMVSS regulations. SEC. 45 BUS TESTING The Contractor agrees to comply with 49 U.S.C. § 5323(c) and FTA's implementing regulation at 49 CFR Part 665 and shall perform the following if applicable: A. If the bus being procured under this Contract is a new bus model or a bus produced with a major change in components or configuration, the Contractor shall provide a copy of the final test report to Citibus prior to Citibus's final acceptance of the first bus. 19 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04104/2019 B. If the Contractor releases a report under paragraph A above, it shall provide notice to the operator of the testing facility that the report is available to the public. C. If the Contractor represents that the vehicle was previously tested, the vehicle being sold should have substantially the same configuration and major components as the vehicle in the test report, which must be provided to Citibus prior to Citibus's final acceptance of the first vehicle. If the configuration or components are not identical, the Contractor shall provide a description of the change and the Contractor's basis for concluding that it is not a major change requiring additional testing. D. If the Contractor represents that the vehicle is "grandfathered" (has been used in mass transit service in the United States before October 1, 1988 and is currently being produced without a major change in configuration or components), the Contractor shall provide the name and address of the recipient of such a vehicle and the details of that vehicle's configuration and major components. SEC. 46 FEDERAL MOTOR VEHICLE SAFETY STANDARDS The Contractor shall comply with the Federal Motor Vehicle Safety Standards (FMVSS) and Regulations (49 C.F.R. Part 571) issued by the National Highway Traffic Safety Administration, which require motor vehicle manufacturers to conform to and certify compliance with the FMVSS requirements. These Regulations establish crashworthiness and crash avoidance standards for various types of vehicles, including buses. SEC. 47 INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION TERMS AND CONDITIONS A. The Contractor recognizes that this Contract includes, in part, certain terms and conditions required by the Federal Transit Administration, whether or not expressly set forth in this Contract. All contractual provisions required by the Federal Transit Administration, as set forth in FTA Circular 4220.1 (current version as of the Effective Date of this Contract) are hereby incorporated by reference. If any of the provisions of this Contract are contrary to the Federal Transit Administration's mandated terms and conditions, such Federal Transit Administration's terms and conditions shall be deemed to control. B. The Contractor shall not knowingly or willingly perform any act, fail to perform any act, or refuse to comply with any requests of Citibus which would cause Citibus to be in violation of the Federal Transit Administration terms and conditions. SEC. 48 TAX AND CARBON CREDITS A. In the event that the Contractor is entitled to Federal or State tax credits, rebates or refunds conditioned on the sale of battery electric buses or charging stations to a public agency, the Contractor shall not be required to rebate such amounts to Citibus when the Contractor takes the credit and/or realizes the refund or rebate. B. In the event that the sale/purchase of a Bus or Charging Station may generate credits or other benefits associated with reductions in carbon emissions, exhaust or emissions banking or other credits, refunds, rebates or incentives of any kind as a result of environmental attributes 20 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 associated with the deployment of battery electric buses or use of charging stations, such incentives, refunds, rebates or credits shall be owned and attributable solely by the Contractor. SEC. 49 LACK OF FUNDS If any of the material amounts due under this Contract constitute federal funds (such as formula funds or grants managed by the U.S. Department of Transportation), the entering into of this Contract by Citibus is subject to its receipt of such material funds to carry out the provisions of this Contract. SEC. 50 ASSIGNMENT OR TRANSFER Except for the rights of money due to Contractor pursuant to this Contract, Contractor shall not assign, hypothecate, or transfer this Agreement or any interest herein to any other party without the prior written consent of Citibus, which consent shall not be unreasonably withheld or delayed. Such consent of Citibus shall not be required in the event of any transfer or assignment in connection with any merger, acquisition (whether stock or asset) or other change of control involving Contractor. Citibus shall not assign, hypothecate, or transfer this Agreement or any interest herein to any other party without the prior written consent of Contractor, which consent shall not be unreasonably withheld or delayed. Any assignment, transfer or hypothecation other than in accordance with the terms of this Section 50 shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. SEC. 51 INTELLECTUAL PROPERTY & CONFIDENTIAL INFORMATION A. Intellectual Property. Citibus and Contractor acknowledge that Citibus is a transit agency and not a manufacturer of buses or charging stations and therefore has no interest in ownership of any rights in,to, or arising out of: (i)any patents; (ii) inventions, discoveries (whether patentable or not in any country), invention disclosures, improvements,trade secrets, proprietary information, know-how, technology, technical data and other intellectual property; (iii) copyrights, copyright registrations, mask works, mask work registrations, and applications therefor in the United States, and anywhere in the world, and all other rights corresponding thereto throughout the world; and (iv) any other proprietary rights ((i) through (iv) hereof collectively, the "Intellectual Property") in or to the technology associated with the charging stations and vehicles/buses that are the subject of this Agreement. As such, Citibus and Contractor agree that Contractor shall own any Intellectual Property developed in connection with the buses and charging stations purchased through this Agreement, including, without limitation, any performance and other Bus and Charging Station data developed and any alterations or modifications to the charging stations or buses purchased under this Agreement whether made or developed by Citibus or any other party (the "Developed Technology"). Citibus hereby assigns and agrees to assign to Contractor, all right, title and interest in the Developed Technology (including all intellectual property rights therein) and the Intellectual Property. Citibus shall, to the fullest extent, protect proprietary information, trade secrets and confidential commercial and financial information provided by the Contractor. Citibus will provide immediate notice in writing to the Contractor of the existence of any claim that the goods furnished hereunder violate or infringe upon another third party's rights, and Citibus shall reasonably cooperate with Contractor in connection with any such claim. Citibus also agrees that it shall not, and shall not allow any third party to, directly or indirectly reverse engineer the Bus or Charging Station or otherwise obtain, share or use any confidential information of Contractor, including, without limitation, any control or other software of Contractor 21 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 0410412019 provided with either the Bus or Charging Station. B. Confidential Information. During the performance underthis Contract, it may be necessary for either party (the "Discloser") to make confidential information available to the other party (the "Recipient"). The Recipient agrees to use all such information solely for the performance under this Contract and to hold all such information in confidence and not to disclose the same to any third party without the prior written consent of the Discloser. Likewise, the Recipient agrees that information developed in connection with the performance of this Contract shall be used solely for the performance under this Contract and shall be held in confidence not disclosed to any third party without the prior written consent of the Discloser. Citibus shall employ sound business practices no less diligent than those used for Citibus's own confidential information to protect the confidence of all licensed technology, software, documentation, drawings, schematics, manuals, data and other information and material provided by the Contractor pursuant to this Contract. C. Survival. This Section shall survive termination or expiration of this Contract. SEC. 52 MARKETING Contractor and Citibus shall work together to promote the unique nature of the deployment of the Buses and Charging Stations under this Contract. However, the Parties shall mutually agree to the content of any press release related to the substance, performance or existence of this Contract and the purchase or use of Buses and Charging Stations hereunder. Citibus hereby gives Contractor, and Contractor gives Citibus, the right to use images of the Buses and Charging Stations under this Contract in any manner desired by the Parties, subject to each party's prior written consent, not to be unreasonably withheld. SEC. 53 COMPLIANCE WITH FEDERAL LOBBYING POLICY Customers, including Citibus, who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR Part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any Agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal Contract, grant or any other award covered by 31 USC 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non-federal funds with respect to that federal Contract, grant or award covered by 31 USC 1352. Such disclosures are forwarded from tier to tier up to the recipient. SEC. 54 WHISTLEBLOWER PROTECTION Section 1553 of Division A, Title XV of the American Recovery and Reinvestment Act of 2009, P.L. 111-5, provides protections for certain individuals who make specified disclosures relating to Recovery Act funds. A. An employee of any non-Federal employer receiving covered funds may not be discharged, demoted or otherwise discriminated against as a reprisal for disclosing, including a disclosure made in the ordinary course of an employee's duties, to the Board, an inspector general, the Comptroller General, a member of Congress, a state or federal regulatory or law enforcement agency, a person with supervisory authority over the employee (or such other person 22 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 working for the employer who has the authority to investigate, discover or terminate misconduct), a court or grand jury, the head of a Federal agency or his/her/their representatives, information that the employee reasonably believes is evidence of: 1) gross mismanagement of an agency contract or grant relating to covered funds; 2) a gross waste of covered funds; 3) a substantial and specific danger to public health or safety related to the implementation or use of covered funds; 4) an abuse of authority related to the implementation or use of covered funds; or 5) a violation of law, rule or regulation related to an agency contract (including the competition for or negotiation of a contract) or grant, awarded or issued relating to covered funds. B. To be protected, the disclosure must be made by the employee to the Recovery Accountability and Transparency Board, an Inspector General, the Comptroller General, a member of Congress, a state or federal regulatory or law enforcement agency, a person with supervisory authority over the employee, a court or grand jury, or the head of a federal agency or his/her/their representatives. SEC. 55 IRON, STEEL AND MANUFACTURING A. Required Use of American Iron, Steel, and Manufactured Goods--Section 1605 of the American Recovery and Reinvestment Act of 2009. 1) This award term and condition implements Section 1605 of the American Recovery and Reinvestment Act of 2009 (Recovery Act) (Pub. L. 111-5), by requiring that all iron, steel and manufactured goods used in the project are produced in the United States except as provided in paragraph 2 CFR 176.140 (b)(3) and 2 CFR 176.140 (b)(4). This requirement does not apply to the material listed by the Federal Government under 2 CFR 176.140(b)(2). 2) A prospective applicant requesting a determination regarding the inapplicability of section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) (Recovery Act) should submit the request to the U.S. Federal Transit Administrator in time to allow a determination before submission of applications or proposals. The prospective applicant shall include the information and applicable supporting data required by paragraphs 2 CFR 176.140(c) and (d) in the request. If an applicant has not requested a determination regarding the inapplicability of 1605 of the Recovery Act before submitting its application or proposal or has not received a response to a previous request, the applicant shall include the information and supporting data in the application or proposal. SEC. 56 CLEAN AIR AND CLEAN WATER The Contractor shall comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. §§7401 et seq. The Contractor shall comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. The Contractor shall report each violation to Citibus and understands and agrees that Citibus will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. SEC. 57 FEDERAL CHANGES 23 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 Contractor shall at all times comply with all applicable FTA regulations, policies, procedures, and directives. SEC. 58 PRIVACY To the extent that Contractor administers any system of records on behalf of the Federal Government, Contractor agrees to comply with the information restrictions and other applicable requirements of the Privacy Act of 1974, as amended, 5 U.S.C. Sect. 552, (the Privacy Act). Contractor shall obtain the express consent of the Department and the Federal Government before the Contractor operates a system of records on behalf of the Federal Government. SEC. 59 GENERAL PROVISIONS A. Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Unless and except otherwise set forth herein, any term referencing time, days or period for performance shall be deemed calendar days and not business days. All references to Citibus include its elected officials, officers, agents, volunteers and independent contractors who serve as Citibus officers, officials, or staff except as otherwise specified in this Agreement. The captions of the various sections and paragraphs herein are for convenience and ease of reference only, and do not define, limit, augment or describe the scope, content or intent of this Agreement. B. Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. C. Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel or otherwise. The failure of Citibus or the Contractor to enforce one or more of the terms or conditions of this Contract or to exercise any of its rights or privileges, or the waiver by one Party of any breach of such terms or conditions, shall not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same shall continue and remain in force and effect as if no waiver had occurred. D. No Third-Party Beneficiaries. There are no intended third-party beneficiaries of any right or obligation assumed by the Parties. E. Cooperation: Further Acts. The Parties shall fully cooperate with one another and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. F. Invalidity: Severability. If any portion of this Agreement is declared as invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. G. Authority to Enter Agreement. Contractor has all requisite power and authority to conduct its business and to execute, deliver and perform this Agreement. Citibus has all requisite power and authority to conduct its business and to execute, deliver and perform this Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right 24 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019 and authority to make this Agreement and bind each respective Party. H. Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the Parties which expressly refers to this Agreement. I. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile or other electronic means shall have the same force and effect as the delivery of an original executed counterpart of this Agreement. J. Rules of Construction. The singular shall include the plural and vice versa, and any gender shall include any other gender as the text shall indicate. All references to "including" shall mean "including, without limitation." K. Public Information. This Agreement is public information. To the extent, if any, that any provision of this Agreement is in conflict with Tex. Gov't. Code Ann. Chapter 552 et seq., as amended (the "Texas Public Information Act") the same shall be of no force and effect. L. Funding. The Parties understand and acknowledge that the funding of this Agreement is wholly contingent upon The City of Lubbock's, acting by and through Citibus, receipt of the Federal Transportation Administration("FTA") Low or No Emission Grant and the City of Lubbock's annual budget and is subject to the approval of the City Council of the City of Lubbock. The Parties further agree that should the City Council of the City of Lubbock fail to approve a budget which includes sufficient funds for the continuance of this Agreement or should the City Council of the City of Lubbock fail to certify funds for any reason, then and upon the occurrence of such event, this Agreement shall terminate, and the City of Lubbock shall then have no further obligation to any other Party. When the funds budgeted or certified during any fiscal year by a Party to discharge its obligations under this Agreement are expended, any other Party's sole and exclusive remedy shall be to terminate this Agreement. If this agreement is between governmental entities, as defined by Chapter 791 of the Texas Government Code, each party paying for the performance of governmental functions or services must make those payments from current revenues available to the paying party. M. Compliance with Chapter 2270, Subtitle F, Title 10, Texas Government Code. The Contractor warrants that it is in compliance with Chapter 2270, Subtitle F, Title 10 of the Texas Government Code by verifying that: (1) it does not boycott Israel; and (2) it will not boycott Israel during the term of the contract. [Signatures continued on next page] 25 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 dated 0410412019 IN WITNESS WHEREOF, the Parties hereto have caused these presents to be duly executed with all the formalities required by law. Proterra Inc Attest: � By: a e and Address: Printe ame: �&v'I RopQle- T C11—C�� Title: 0112-� tXeCk�lye% , aieer CA*Ia AW C(kne+� IrNec w44 v't A65tS+Aryt Dated: 41 $ 201 1 ft '�VIVIA5 'TO-1A "�Krl+tn�tifry D , QA 014010 City of Lubbock DANIEL M. POPE, MMYOR ATTEST: Reb ca Garza, City Secre®ry APPROVED AS O CONTENT: Bill H ert n, Deputy Cit anager APPROVED AS TO FOR Ryf 76, ssi nt City Attorney 26 Contract No.P2018-04-Citibus Battery Electric Buses Version No.8 Dated 04/04/2019