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Home My WebLink AboutClub Car, LLC/BROOKSHIRE/$36,353/GPS LeaseCzTfshfzHsfdivlijobu3;46qn-Bqs37-3134 DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF ClubCar, LLC BrookshireGolfCourse - 2023 Appropriation #1207-43-530.99; P.O. #108649 ContractNot ToExceed $36,353.00perannum 6. DISCLOSURE AND WARNINGS: If requested by City, Vendor shall promptly furnish to City, in such form and detail as City may direct, a list of all chemicals, materials, substances and items used in or during the provision of the Goods and Services provided hereunder, including the quantity, quality and concentration thereof and any other information relating thereto. At the time of the delivery of the Goods and Services provided hereunder, Vendor agrees to furnish to City sufficient written warning and notice (including appropriate labels on containers and packing) of any hazardous material utilized in or that is apart of the Goods and Services. 7. LIENS: Vendor shall not cause or permit the filing of any lien on any of CityÓs property. In the event any such lien is filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding, City shall have the right to pay such lien or obtain such bond, all at VendorÓs sole cost and expense. 8. DEFAULT: In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including VendorÓs warranties; (b) fails to provide the Goods and Services as specified herein; c) fails to make progress so as to endanger timely and proper provision of the Goods and Services and does not correct such failure or breach within twenty (20) business days (or such shorter period of time as is commercially reasonable under the circumstances) after receipt of notice from City specifying such failure or breach; or (d) becomes insolvent, is placed into receivership, makes a general assignment for the benefit of creditors or dissolves, each such event constituting an event of default hereunder, City shall have the right to 1) terminate all or any parts of this Agreement, without liability to Vendor; and (2) exercise all other rights and remedies available to City at law and/or in equity. 9. INSURANCE AND INDEMNIFICATION: Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer licensed to do business in the State of Indiana, such insurance as is necessary for the protection of City and Vendor from all claims for damages under any workersÓ compensation, occupational disease and/or unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness, disease or death of or to any of VendorÓs agents, officers, employees, contractors and subcontractors; and, for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom. The coverage amounts shall be no less than those amounts set forth in attached Exhibit C. Vendor shall cause its insurers to name City as an additional insured on all such insurance policies, shall promptly provide City, upon request, with copies of all such policies, and shall provide that such insurance policies shall not be canceled without thirty (30) days prior notice to City. Vendor shall indemnify and hold harmless City from and against any and all third-party liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney fees) for injury, death and/or damages to any person or property to the extent arising from or in connection with VendorÓs provision of Goods and Services pursuant to or under this Agreement or VendorÓs use of City property. Vendor further agrees to indemnify, defend and hold harmless City and its officers, officials, agents and employees from all third-party claims and suits of whatever type, including, but not limited to, all court costs, attorney fees, and other expenses, to the extent caused by any act or omission of Vendor and/or of any of VendorÓs agents, officers, employees, contractors or subcontractors in the performance of this Agreement. These indemnification obligations shall survive the termination of this Agreement. 2 DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF ClubCar, LLC BrookshireGolfCourse - 2023 Appropriation #1207-43-530.99; P.O. #108649 ContractNot ToExceed $36,353.00perannum 10. GOVERNMENT COMPLIANCE: Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes which may be applicable to VendorÓs performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. Vendor agrees to indemnify and hold harmless City from any loss, damage and/or liability resulting from any such violation of such laws, orders, rules, regulations and codes. This indemnification obligation shall survive the termination of this Agreement. 11. NONDISCRIMINATION: Vendor represents and warrants that it and all of its officers, employees, agents, contractors and subcontractors shall comply with all laws of the United States, the State of Indiana and City prohibiting discrimination against any employee, applicant for employment or other person in the provision of any Goods and Services provided by this Agreement with respect to their hire, tenure, terms, conditions and privileges of employment and any other matter related to their employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran status. 12. E-VERIFY: Pursuant to I.C. § 22-5-1.7 et seq., as the same may be amended from time to time, and as is incorporated herein by this reference (the ÐIndiana E-Verify LawÑ), Vendor is required to enroll in and verify the work eligibility status of its newly-hired employees using the E-Verify program, and to execute the Affidavit attached herein as Exhibit D, affirming that it is enrolled and participating in the E-verify program and does not knowingly employ unauthorized aliens. In support of the Affidavit, Vendor shall provide the City with documentation indicating that it has enrolled and is participating in the E-Verify program. Should Vendor subcontract for the performance of any work under and pursuant to this Agreement, itshall fully comply with the Indiana E-Verify Law as regards each such subcontractor. Should the Vendor or any subcontractor violate the Indiana E-Verify law, the City may require a cure of such violation and thereafter, if no timely cure is performed, terminate this Agreement in accordance with either the provisions hereof or those set forth in the Indiana E-Verify Law. The requirements of this paragraph shall not apply should the E- Verify program cease to exist. 13. NO IMPLIED WAIVER: The failure of either party to require performance by the other of any provision of this Agreement shall not affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision hereof. 14. NON-ASSIGNMENT: Vendor shall not assign or pledge this Agreement, whether as collateral for a loan or otherwise, and shall not delegate its obligations under this Agreement without CityÓs prior written consent, which shall not be unreasonably withheld. 15. RELATIONSHIP OF PARTIES: The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price set forth herein shall be the full and maximum compensation and monies required of City to be paid to Vendor under or pursuant to this Agreement 3 DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF ClubCar, LLC BrookshireGolfCourse - 2023 Appropriation #1207-43-530.99; P.O. #108649 ContractNot ToExceed $36,353.00perannum 16. GOVERNING LAW; LAWSUITS: This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court is the appropriate venue for and has jurisdiction over same. 17. SEVERABILITY: If any term of this Agreement isinvalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with same, and the remaining provisions of this Agreement shall remain in full force and effect. 18. NOTICE: Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified herein: If to City: City of Carmel AND City of Carmel Brookshire Golf Course Office of Corporation Counsel 12120 Brookshire Pkwy One Civic Square Carmel, Indiana 46033 Carmel, Indiana 46032 If to Vendor: Club Car, LLC 1074 N. Orange Ave. Sarasota, FL 34236 Notwithstanding the above, notice of termination under paragraph 19 hereinbelow shall be effective if given orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from the date of such oral notice. 19. TERMINATION: 19.1 Notwithstanding anything to the contrary contained in this Agreement, City may, upon notice to Vendor, immediately terminate this Agreement, in the event of a default hereunder by Vendor and/or if sufficient funds are not appropriated or encumbered to pay for the Goods and Services to be provided hereunder. In the event of non-appropriation of funds, City shall certify in writing that (a) funds have not been appropriated for the fiscal period in question and (b) City has exhausted all funds legally available for the subject payments. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount representing conforming Goods and Services delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. 19.2 The City may terminate this Agreement pursuant to Paragraph 11 hereof, as appropriate. 20. REPRESENTATIONS AND WARRANTIES The parties represent and warrant that they are authorized to enter into this Agreement and that the persons executing this Agreement have the authority to bind the party which they represent. 21. ADDITIONAL GOODS AND SERVICES 4 DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF ClubCar, LLC BrookshireGolfCourse - 2023 Appropriation #1207-43-530.99; P.O. #108649 ContractNot ToExceed $36,353.00perannum Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods and services to City. When City desires additional goods and services from Vendor, the City shall notify Vendor of such additional goods and services desired, as well as the time frame in which same are to be provided. Only after City has approved VendorÓs time and cost estimate for the provision of such additional goods and services, has encumbered sufficient monies to pay for same, and has authorized Vendor, in writing, to provide such additional goods and services, shall such goods and services be provided by Vendor to City. A copy of the CityÓs authorization documents for the purchase of additional goods and services shall be numbered and attached hereto in the order in which they are approved by City. 22. TERM Unless otherwise terminated in accordance with the termination provisions set forth in Paragraph 19 hereinabove, this Agreement shall be in effect from the Effective Date through December 31, 2023 and shall, on the first day of each January thereafter, automatically renew for a period of one (1) calendar year, not to exceed three (3) consecutive renewal periods, unless otherwise agreed by the parties hereto. 23. HEADINGS All heading and sections of this Agreement are inserted for convenience only and do not form a part of this Agreement nor limit, expand or otherwise alter the meaning of any provision hereof. 24. BINDING EFFECT The parties, and their respective officers, officials, agents, partners, successors, assigns and legal representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations set forth in Agreement. 25. NO THIRD PARTY BENEFICIARIES This Agreement gives no rights or benefits to anyone other than City and Vendor. 26. DEBARMENT AND SUSPENSION 26.1 The Vendor certifies by entering into this Agreement that neither it nor its principals nor any of its subcontractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from entering into this Agreement by any federal agency or by any department, agency or political subdivision of the State of Indiana. The term ÐprincipalÑ for purposes of this Agreement means an officer, director, owner, partner, key employee or other person with primary management or supervisory responsibilities, or a person who has a critical influence on or substantive control over the operations of the Vendor. 26.2 The Vendor certifies that it has verified the state and federal suspension and debarment status for all subcontractors receiving funds under this Agreement and shall be solely responsible for any recoupment, penalties or costs that might arise from use of a suspended or debarred subcontractor. The Vendor shall immediately notify the City if any subcontractor becomes debarred or suspended, and shall, at the CityÓs request, take all steps required by the City to terminate its contractual relationship with the subcontractor for work to be performed under this Agreement. 27. IRAN CERTIFICATION Pursuant to I.C. § 5-22-16.5, the Vendor shall certify that, in signing this Agreement, it does not engage in investment activities within the Country of Iran. 5 DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF ClubCar, LLC BrookshireGolfCourse - 2023 Appropriation #1207-43-530.99; P.O. #108649 ContractNot ToExceed $36,353.00perannum 28. ADVICE OF COUNSEL: The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. 29. ENTIRE AGREEMENT: This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire agreement between Vendor and City with respect to the subject matter hereof, and supersedes all prior oral or written representations and agreements regarding same. Notwithstanding any other term or condition set forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit attached to this Agreement or in any document referenced herein conflicts with any term or condition contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail. This Agreement may only be modified by written amendment executed by both parties hereto, or their successors in interest. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as follows: CITY OF CARMEL, INDIANA Club Car, LLC by and through its Board of Public Works and Safety By: By: James Brainard, Presiding Officer Authorized Signature Date: Printed Name Mary Ann Burke, Member Date: Title Lori S. Watson, Member FID/TIN: 13-3488925 Date: Last Four of SSN if Sole Proprietor: ATTEST: Date: Sue Wolfgang, Clerk Date: 6 DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF 5/3/2023 5/3/2023 5/3/2023 5/3/2023 Exhibit A Equipment Rental Agreement Issued Date: April21, 2023 Customer Information FullLegal Name ( ÐCustomerÑ) Course Name CityofCarmel Brookshire GolfCourse Equipment Location/ City/ County/ State/ Zip Type ofOrganization 12120BrookshireParkway, Carmel, IN46033 Municipality Billing Address/ City/ County/ State/ Zip (ifdifferent) Organization Jurisdiction Indiana Billing Contact Name Title TaxIdentification NumberBillingEmail: bhiggins@carmel.in.govBobHigginsPhone: (317) 249-2716 Course Information Holes GolfCarMake/Model/Year/Power/Motor Controller Installation Type 18 ClubCarTempo - lithium Factory Equipment Selected Options: Quantity Equipment Description None68VisageDisplayInstalledonVehicle Included Standard Connectivity Module Included Car Control Module Included Car Tracking Module Included Golf Experience Module See attached Exhibit A for a detailed feature set description. Term and Payments Term (Months) Annual Payment: # Security Payment J F M A M J J A S O N D Deposit Months X48Xindicates36,353.00 plus tax 0 payment month) USD) Payments are due annually in advance. Four payments of $36,353 for a total of $145,412.00 shall be due during the term of this Agreement. TERMS AND CONDITIONS 1. System. Customer shall rent a mobile golf information system comprised of the equipment listed above enabled with the selected modules further described on Exhibit A (the ÐSystemÑ). 2. Term. The term of this Agreement (including any extensions hereto, the ÐTermÑ) shall commence on the Effective Date and run for a term of forty-eight (48) months from the ÐDate of CompletionÑ (the date Customer accepts installation of the System). The Term of this Agreement shall be extended at the conclusion of the initial Term for additional one-year Terms unless terminated by either party upon not less than 90 days written notice prior to the conclusion of the then current Term. 3. Payments. Customer shall make all Payments stated in this Agreement according to the payment terms above beginning on the Date of stththCompletion.. If the Date of Completion is between the 1 and 15 day of the month, all Payments will be due on the 15day of each month. thstIftheDateofCompletionisbetweenthe16andthelastdayofthemonth, all Payments will be due on the 1day of each month. All amounts payable under this Agreement are payable at CCLÓs address below or at such other address as CCL may specify in writing from time to time. Time is of the essence for all obligations arising hereunder. 4. Taxes and Insurance. Customer is required to provide and maintain insurance related tothe System, and topay any property, use and other taxes related to this Agreement or the System. (See sections 7 and 12.3 on the following pages). If Customer is tax-exempt, Customer agrees to provide satisfactory evidence of exemption. 5. Installation. CCL shall deliver and install the System at the equipment location listed above. 6. Maintenance Service. CCL shall provide maintenance service based on the Service Terms and Conditions, set forth in Exhibit B, for a period beginning with the Date of Completion and ending at the conclusion of the Term. SEE THE FOLLOWING PAGES FOR ADDITIONAL TERMS AND CONDITIONS Appropriation #1207-43-530.99; P.O. #108649 - Exhibit A 1 (8) DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF Equipment Rental Agreement Terms and Conditions Continued) 7. Taxes. All Payments made under this Agreement shall be net to CCL. Customer shall pay all taxes, tax pass along, assessments, and any sales, use, personal property incurred in connection with the System or otherwise with respect to this Agreement. If tax-exempt, the foregoing shall not apply provided Customer has provided CCL satisfactory evidence of exemption; provided, however, that Customer understands and agrees that CCL, as owner of the System equipment, will pass along to Customer any additional cost derived from personal property tax. 8. Ownership. CCL is the owner and has title to the System. The only right, title or interest Customer shall have in the System shall be under the terms of this Agreement. This is a rental of personal property and Customer agrees to do everything necessary or reasonably requested by CCL to ensure that the System shall be considered and remain personal property. Customer shall, at its own expense, keep the System free and clear of all liens, charges, claims and other encumbrances. CCL may encumber, sell, lease, or otherwise finance the System, although such actions will not relieve CCL of its obligations under this Agreement. Customer agrees to execute and deliver from time to time as requested any document necessary or desirable to evidence CCLÓs or its assigns ownership of and all rights to the System. CCL or its assigns may, upon notice to Customer, enter onto CustomerÓs property and remove the System following the termination of this Agreement or at any other time authorized by this Agreement or by law. Without limiting the generality of the foregoing, to secure CustomerÓs payments under this Agreement, Customer agrees to give CCL a security interest in the System and all additions, attachments, updates, accessories and substitutions to it. Customer agrees to any assignment of that security interest. 9. Software License. Customer understands that CCL does not sell its software. For the Term, CCL grants Customer a nontransferable, non-exclusive license to use the software only in conjunction with the System and only as expressly authorized in this Agreement. ÐSystem SoftwareÑ means standard system software included with the System provided to Customer. Customer shall (i) hold System Software in confidence and not disclose it to anyone other than its employees and consultants who require disclosure in connection with CustomerÓs use of the System and who are subject to confidentiality obligations in substance at least as strict as these, (ii) not print, copy, modify, translate, alter, reverse compile, decompile or reverse engineer System Software, (iii) not remove any CCL copyright, trademark or other proprietary notice from System Software and shall reproduce all such notices on copies made by Customer, and (iv) not transfer System Software or assign any license or rights regarding the System Software. 10. Force Majeure. CCL shall not be liable for any interruption in service, delay in the delivery, or disruption of performance of the System resulting from any cause beyond its reasonable control or caused by acts of God, acts of Customer, acts of civil or military authorities, fires, strikes, floods, epidemics, governmental rules or regulations, war, riot, delays in transportation, or shortages. 11. Delinquency Charges. Payments not paid by 5days after the Payment due date are subject to a late payment fee of ten percent (10%) of the Payment amount and subject to interest at the rate of two percent (2%) per month, or the maximum percentage allowed under applicable laws, whichever is less. Should any fee paid by Customer under this Agreement result in interest in excess of the maximum lawful rate, then such excess shall be automatically credited to Customer. 12. Customer Responsibilities. Customer hereby agrees to the following responsibilities as a part of this Agreement: 12.1. Customer agrees to store safely and properly secure the System in areasonably safe area protected from the weather when not in use. At all times, Customer shall use and operate the System in a careful manner, in compliance of all applicable laws and in compliance of any maintenance or operating manuals and instructions provided by CCL. Customer shall not use or operate the System in a manner that may subject it to depreciation above the normal depreciation associated with its specified use. Customer acknowledges and agrees that it will not allow any repairs to the System or the replacement of System parts to be done by any person except CCL or persons authorized by CCL. Customer shall not make any additions, subtractions or alterations affecting the System without the written consent of CCL. Customer shall use reasonable efforts not to permit any System to be abused by an employee, vandalized by any third party, permit the removal of any plate or markings put on the System by CCL, or attach anything to or remove anything from the System. 12.2. Customer shall not install software unauthorized by CCL on the System. 12.3. Customer assumes responsibility for all risk of loss to the System and all of its components from the time any of the components arrive at the CustomerÓs premises. Customer shall procure ÐAll RiskÑ property loss (personal business property & equipment) and general public liability insurance covering the system and its use and shall name Club Car, LLC and its assigns as additional named insured and loss payee. Customer shall provide CCL with certificates or other evidence of insurance, acceptable to CCL, before this Agreement Term begins. If Customer does not procure the insurance required, CCL may obtain such insurance and pay the amounts due thereon. Customer will reimburse CCL, upon demand, for the amount of such payment or cost of such performance. Even if the System is damaged, lost or stolen Customer shall fulfill all of its obligations hereunder. 12.4. If requested, Customer will reasonably cause third-parties to execute any leasehold or other waivers regarding the attachment of the System components to any car, maintenance vehicle, or other attachment to real or personal property on the premises. 12.5. At the termination of this Agreement, in case of default, if not extended, or otherwise modified, Customer agrees to provide CCL with reasonable access to CustomerÓs facility for the de-installation and removal of the System. Prior to CCLÓs removal of the System, Customer shall be responsible for repair or replacement of any damaged or missing System components, if caused by CustomerÓs misuse, abuse and/or negligence. CCL will use normal care in the de-installation and removal of the system, which will be performed so as not to unduly disrupt the operations of the golf course. 13. General 13.1. Assignment. Customer acknowledges that CCL may assign to a successor all or any part of its right, title and interest in this Agreement, and hereby consents to such assignments. In case of such assignment, Customer agrees to continue to perform all of its obligations under this Agreement. 13.2. Events of Default and Remedies. 13.2.1. In the event that the Customer violates any provision of this Agreement and CCL believes the System or any property or rights of CCL to be threatened, CCL may immediately disable the System. In addition, in the event that Customer violates any provision of this Agreement and such violation continues for a period of at least twenty (20) days after notice in writing of such default from CCL, Customer shall be deemed to be in default and CCL may (at its sole election), in addition to any other legal or equitable remedy permitted by law: a. remove or disable the System; b. terminate this Agreement and CustomerÓs rights herein and retain any and all prior payments paid to CCL by Customer ÐTerminationÑ). c. In the event of termination of this Agreement, whether due to an Event of Default or otherwise, if Customer does not allow CCL onto the Golf Course to de-install the System, and does not otherwise make the System available to CCL to 2 (8) Appropriation #1207-43-530.99; P.O. #108649 - Exhibit A Equipment Rental Agreement DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF de-install, in addition to any other rights or remedies available to CCL, Customer shall pay to CCL any and all costs incurred by CCL in collecting its System and any other amounts due to CCL, including without limitation all legal fees and costs, whether or not suit is commenced, and further, in addition to the foregoing, Customer will pay the full monthly payment multiplied by 1.5 for each and every month after termination hereof that CCL is without possession of the System. d. This Section 13.2.1, without limitation, shall survive termination of this Agreement. 13.2.2. In the event that CCL violates any provision of this Agreement and such violation continues for aperiod of at least twenty 20) days after notice in writing of such default from Customer, CCL shall be deemed to be in default and Customer may pursue such remedies as it may have in law or in equity; provided, however, that if CCL cannot reasonably remedy the breach within twenty (20) days, the twenty (20) day period shall be extended for as long as CCL diligently pursues such corrective action in a prompt and reasonable manner, not to exceed ninety (90) days. 13.2.3. In addition to the other events of default under this Agreement, either party shall be in default if (i) a petition in bankruptcy is filed by either party or (ii) if a petition in bankruptcy is filed against either party and is not dismissed within 30 days ofthe date it is filed. 13.3. Notice. All notices required, permitted or given in accordance with the provisions of this Agreement shall be in writing, and either hand- delivered or delivered by recognized overnight courier to the offices listed in the first paragraph of this Agreement or such other address as either party may designate by notice as specified in this section. 13.4. Provided that the System is maintained properly pursuant to CustomerÓs obligations under this Agreement, CCL warrants that the installed System will provide distance measurements within established performance parameters pertaining to System components when the System is operated under conditions that are typically encountered on agolf course, specifically but without limitation: clear access to satellites and reasonably clear weather with temperatures between 32ºF and 120ºF. Customer acknowledges that GPS-produced distances are subject to a margin of error. Customer further acknowledges that terrain and topography affect the margin of error on a particular GPS receiver and that the margin of error may be increased under certain topographical conditions. WARRANTIES CONTAINED HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE GOVERNING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE LIMITED WARRANTY PROVISIONS SHALL BE CCLÓS SOLE LIABILITY WITH REGARD TO THE SYSTEM. CCL SHALL, IN NO EVENT, BE LIABLE FOR DAMAGES, FOR LOSS OF PROFIT, GOODWILL, OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE SUFFERED BY CUSTOMER OR ITS CUSTOMERS AS A RESULT OF THE USE OF THE SYSTEM RENTED UNDER THIS AGREEMENT, EVEN IF DAMAGES COULD HAVE BEEN FORESEEN AND WHETHER OR NOT CCL HAS BEEN APPRISED BY CUSTOMER OR ITS CUSTOMERS FOR THE POSSIBILITY OF SUCH DAMAGES. CUSTOMERÓS EXCLUSIVE REMEDY UNDER THE LIMITED WARRANTY PROVISIONS SHALL BE LIMITED TO, AT CCLÓS OPTION, REPAIR, PERFORMANCE, ADJUSTMENT AND/OR REPLACEMENT, OR ANY COMBINATION THEREOF IN AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE OR COST OF SERVICES PROVIDED, AS REASONABLY DETERMINED BY CCL, PROVIDED, HOWEVER, THAT CCL HAS RECEIVED WRITTEN NOTICE OF ANY SUCH WARRANTY CLAIM, SPECIFYING THE NATURE THEREOF, WITHIN THE APPLICABLE WARRANTY PERIOD. THESE WARRANTIES ARE MADE ONLY TO CUSTOMER AND ARE NOT TRANSFERABLE TO ANY OTHER PERSON OR ENTITY. ALL WARRANTY CLAIMS MUST BE MADE BY AN AUTHORIZED REPRESENTATIVE OR AGENT OF CUSTOMER. EXCEPT AS OTHERWISE PROVIDED HEREIN, CCL SHALL NOT BE LIABLE TO CUSTOMER, OR ANY OTHER PERSON OR ENTITY, FOR ANY CLAIM OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM THE FURNISHING OF MATERIAL AND SERVICE SOLD HEREUNDER UPON WHICH ANY CLAIM OF WARRANTY LIABILITY IS BASED. 13.5. General. This Agreement, together with the exhibits and schedules referred to in it, constitutes the entire agreement between the parties pertaining to the within subject matter and supersedes any prior understandings or oral or written. This Agreement may not be varied, modified, or amended except in writing signed by the parties. Waiver by either party of any breach or violation or default of any provision of this Agreement will not operate as a waiver of such provision or of any subsequent breach or violation or any default. The failure or refusal of any party to exercise any right or remedy shall not be deemed to be a waiver or abandonment of any right or remedy. If any term of this Agreement is for any reason invalid or unenforceable, the rest of the Agreement remains fully valid and enforceable. The headings in the Agreement are for convenience of reference only and do not constitute a part of it. The headings do not affect its interpretation. This Agreement shall be governed by and construed in accordance with the procedural and substantive laws of the State of Georgia. This Agreement may be executed by facsimile and/or electronic signature. The parties agree that this Agreement was fully negotiated by the parties; therefore, no provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision. Customer shall allow CCL to reference Customer in various marketing material or corporate literature, and to the use of approved photos of the CustomerÓs facility for various marketing materials or media. Customer further agrees to allow CCL to reference it in a press release or other media announcing it as a new location for its System. Any information and data arising out of or in connection with CustomerÓs use of the System shall be owned jointly by CCL and Customer. All work performed by CCL in connection with the services to be performed under this Agreement shall be performed by CCL as an independent contractor and not as the agent of Customer. CCL may subcontract any or all of the work to be performed under this Agreement but shall retain full responsibility for the work so subcontracted. 13.6. Supplemental or Replacement Provisions. Notwithstanding any provision to the contrary in this Agreement, supplement or replacement provisions, if any, shall be set forth on Exhibit E attached hereto. 3 (8) Appropriation #1207-43-530.99; P.O. #108649 - Exhibit A Equipment Rental Agreement DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF EXHIBIT A Visage System Description TheSystemwillbeenabledwiththemoduleslistedunderEquipmentDescriptiononpageoneofthisAgreement. Additional modulesareavailableforsubscription. StandardFeatures: Batterystatusindicator andvehicle ¤ Overviewdisplayofeachhole, ¤ Electronicscorecard: Request ÐonchargeÑdisplay, ¤ Broadcastmessagingsuchas emailormobilenumberprior VehiclestatusÎon-charge, promotions, weather alerts, toscoring, (1stgreen) and ServicenotificationsÎbatterylevels ¤ Sponsorshipandadvertising againatend-of-round, andfaults, displayslots, ¤ Emailaddressreport. Odometer (miles, hours & amp ¤ Electronicinfoholderwith hours), playersÓ namesandmessaging, Serialnumberandmodelyear, CarTracking: Real-timeposition ofvehiclesand ¤ Pacenotifications, ¤ Pop-upnotifications- pace-of- equipment, ¤ Pace-of-playreporting, play, FindcarÎcurrentorlastknown ¤ Marshalcarmodetoinclude ¤ Real-timemessagingtoand location (worldwide), messagingtomarshal, fromclubhouse, Vehicledrivehistory, ¤ Roundsplayedreporting. ¤ Messagelogs. Pace-of-playtracking, CarControl: Fleetlockdown, ¤ Actionzonemessaging, ¤ Pop-upnotificationsÎaction Vehicle staging, ¤ Geofence, zoneviolation, Maxspeedsetting (Electriccaronly), ¤ Anti-tamper, ¤ Carpathonly, Actionzonecontrol: ¤ Vehiclegroupingby ¤ VisualnotificationÎvehicle oGascarsÎstop/reverse, department, vehicletype, speedchangeoractionzone oElectriccars - stop/reverseand membership, marshal, etc., violations. variablespeedcontrol, GolfExperience: Dynamicdistancestopinsand ¤ Teeshotdistance, ¤ Pinplacementmanager, pointsofinterest, ¤ Foodandbeverageordering, ¤ Foodandbeveragereports. Touchscreenfordistance, ¤ Blindteeshot, AdManager: AdMan: ImageGallery, Scheduled & automaticallypublishedads, GreentoTeespots, Fairway (par4and5holesonly) - FullandInsertspots. OptionalFeatures (Indicates selected): TournamentConnect: (Provides for integration with tournament management software, contracted separately) Video Flyovers AdManPro Appropriation #1207-43-530.99; P.O. #108649 - Exhibit A Equipment Rental Agreement - Exhibit A Î System Description 4 (8) DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF EXHIBIT B Service Terms and Conditions 1. ScopeofService. 1.1. DefectiveComponents. CCLshallprovidemaintenanceserviceasprovidedforinparagraph2.3and2.4, at itsexpense, torepair, modifyorreplaceSystemcomponents, asnecessarythataredefectivein workmanship (ÐServiceÑ). CCLdoesnotwarrant thattheoperationoftheSystemshallbeuninterruptedor completelyerror-free. 1.2. Exclusions. Serviceshallnotinclude: (1) maintenance, repairorreplacementofpartsdamagedorfailingto operateduetoactsofGod, includingwithoutlimitstorms, atmosphericdisturbances, lightning, fire, hail, andflood; actsofgovernment, includingwar; catastrophes, accident, neglect, misuse, failureofsatellites, failureofelectricalpower, faultornegligenceofCustomer, causesexternaltotheSystemorfromanyother causebeyondthecontrolofCCL; (2) service andrepairofaccessories, attachments, oranyotherdevices thatarenotpartoftheSystem; (3) changes, modificationsoralterationsinortotheSystemrequireddueto newconstruction orchangestothegolfcourseorfacilities; (4) graphical changesafteracceptanceofthe System, (5) softwaredamage causedbyunauthorizeduse. 2. CustomerResponsibilities. 2.1. ProblemNotification. CustomeragreestopromptlynotifyCustomerSupportintheeventofanySystemor componentfailureandprovidediagnosticassistancetosupportCCLÓsserviceefforts. 2.2. ToContactCustomer Support. Customer shallhavereasonableaccesstoCustomer Supportduring businesshours. CustomerSupportprovidesusersupport, troubleshooting, anddiagnostic assistanceand isCustomerÓspointofcontactforreportingsystemproblemsorrequestingservice. a. Forallroutinerequestsandstatusinquiries, contactCustomer Supportviaemailto sar-cams@clubcar.com. b. Toreportemergencyorcriticalsystemissues, contactCustomerSupportbycallingthetoll freeCustomerSupportlineat888-575-2901. 2.3. ComponentReplacement. Customeragreestoperform thetaskofchangingoutreplacementcomponents providedbyCCL. Customerwillbebilledforrepairorreplacementofreturnedcomponentsthathavebeen damaged duetocausesnotcoveredbyServiceasdescribedinsection 1.2above. 2.4. RMArequestfordefectivecomponents. AReturnMaterialsAuthorization number (RMA) isrequiredforthe returnofanydefectivecomponent. ToobtainanRMA, CustomermustcontacttheCustomerSupport centerat888-575-2901. IfCustomerSupportdeterminesthatthecomponentmustbereturnedforrepair, CustomerSupport willissueanRMA. Customeristhenresponsibleforproperlyfollowingproceduresfor returningcomponents asinstructed byCustomerSupport. Anyrequestforspecialhandlingsuchas expeditedrepair, overnightreturndelivery, ornon-businessdaydeliverymaybesubjecttoadditional chargesbillabletoCustomer. CustomeragreestopayforshipmentofcomponentsreturnedtoCCL. CCL agreestopayforreturnshipmenttoCustomer. 2.5. AnunrestrictedbroadbandInternetconnectionateachlocationontheGolfCoursethatneedsaccess totheVisageSystem (includingF&Borderfulfillment) forthedurationofthisAgreementforSystem installation, monitoringandmaintenanceservice. Theinternetconnectionmustprovidethefollowing minimumspeedsasmeasured byonlinetestingtoolsfoundatsitessuchaswww.speakeasy.net: Minimum 120cartsormore 160cartsormore Download speed (Mbit/sec): 1.52.253.0 UpLoad speed (Mbit/sec): 0.50.751.0 2.6. BatterypowertotheGolfCar-mountedunitsatalltimes, andCustomeragreestoallowpowertobedrawn frompowersources tosupplySystemequipmentasneeded. CCLrequiresCustomermustusedeep-cycle batteriesforallgaspoweredvehiclesonwhichdisplayunitswillbeinstalled. 2.7. NotfewerthantwoCustomerstaffmembersfulltimeforthreedays (per18holes) toprovidelaborto assistCCLwithinitialinstallationofthegolfcartmounteddisplaycomponentsincludingremovalofanyprior existinghardware. CustomerÓspersonnelduringthisperiodwillbetrainedontheinstallation, maintenance andreplacementofthedisplayunits. Appropriation #1207-43-530.99; P.O. #108649 - Exhibit A Equipment Rental Agreement - Exhibit B Î Service Terms and Conditions 5 (8) DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF 3. DefinitionofServiceElements 3.1. RemoteDiagnostics. CCLaccessesthecourseSystemviatheInternettoperformsystemdiagnostics, remotehealthmonitoringorspecifictroubleshooting procedurestodetect, identifyorcorrectfailures. 3.2. SoftwareUpdatesandEnhancements. CCLshallprovidesoftwaremaintenance fortheSystemSoftware. Softwaremaintenanceprovidesforbugfixes, patches, corrections, updatesandenhancements as available. Softwareupdatesdonotincludenewsoftwarefeaturesorhardwareproduct offeringsthatare soldseparately. 3.3. On-siteService. Ifaproblemcannotberesolvedthroughtelephone supportorbyshippingareplacement component, CCLmaydispatchatechniciantoCustomerÓssitetoaddresstheproblem. On-siteservices includinglabor, materials, andreasonabletravelexpensesarechargeable forsitevisitsthatresultfrom causesnotcovered byServiceasdescribedinsection1.2above. 4. PricingofAdditionalServices. ServicesnotcoveredunderServiceTermsandConditions (ExhibitB) orthatmaybe requestedfromtimetotimeareavailableaccordingtothepricesandtermsbelow. Allpricesandtermsforadditional servicesaresubject tochange. ForordersuptoUS$1,500, CCLwillprovideservicesuponreceiptandconfirmation of theorder. Payment willbedueupondeliveryofservices. ForordersofUS$1,500ormore, CCLrequiresasigned purchaseorderoradepositpaymentequalto50% oftheorderpricewiththefinalpaymentdueupondeliveryof services. CCLatitssolediscretionreserves therighttoholdordersforaccountsthathaveoutstandingpayablesbeyond terms. Schedulingofservicesdependsonmateriallead-timesandthebacklogofservice ordersatthetimeoforder confirmation Description Prices (USD) Graphical Changes $65 / halfhour MappingChanges $65 / halfhourplustravelandexpenses atreasonable cost GraphicsMedia 3DVideoFlyovers: $1,000/14holeset; $500/ additional7holeset RawdatafilesforCustomerÓsuse) 2DHoleImages: $500/18holeset; $250/ additional9holeset 2DTrackerCourseMap: $200 On-siteservice foritemsnotcoveredunder $400perhalfdayonsiteplus $40perhourtraveltimetoandfromsite Service (duetoexternalcausesoratcustomerÓs plustravelandexpensesatreasonablecost; plusanyapplicable requestforadditionalservices) materialcharges. RepairofGPSunitfordamagenotcoveredunder Level1: $100 - Damagetoexteriorplastichousing. DoesnotincludeServicedamagetothetouchscreenorLCDdisplay, Level2: $200 - Broken orcrackedtouchscreenorLCDdisplay, Level3: Completelossincludingwaterdamageordamagetointernal components. ReplacewithrefurbishedVDU $600 ReplacewithnewVDU $800 FleetReplacement Like-to-Likecarchangeover; (i.e. ClubCarTempo electrictoClubCarTempoelectricwhichrequiresno additional orreplacementmountinghardware), Customermayselectoptionaorb (90daysadvance noticerequired): a- ByCustomer (2-3people) + 1CCL $20/unitplustravelandexpensesatreasonablecost employee b- ByCCL (2-3people) on-site $42/unitplustravelandexpensesatreasonablecost FleetReplacementdifferenttypecars (90days Quotedoncasebycasebasis advancenoticerequired): Appropriation #1207-43-530.99; P.O. #108649 - Exhibit A Equipment Rental Agreement - Exhibit B Î Service Terms and Conditions 6 (8) DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF ADVERTISING AGREEMENT This Advertising Agreement is attached to and incorporated into the terms of that certain Equipment Rental Agreement (ÐAgreementÑ) between Club Car, LLC (ÐCCLÑ) and City of Carmel dba Brookshire Golf Course ÐCustomerÑ). Capitalized terms appearing herein shall have the same meaning ascribed to them herein as in the Agreement unless otherwise noted. Ad Modules & Pricing Selection Feature Description AdMan: Standard package provides Fairway and Green-to-Tee spots. Price: Included with the Visage Control Center (VCC) CCL hereby grants Customer graphical exposure opportunities on the System that shall consist of Fairway (full page and insert spots) and available ÐGreen to TeeÑ full screen graphics to be used for local advertising and promotions or for tournament sponsorships but not for national advertising campaigns which are administered by CCL exclusively. Fairway spots are available onpar 4and par 5holes (fairway spots arenot available for par 3holes. Fairway spots include afull page Ðtouch-to-make-go- awayÑ and the quarter page insert). ÐGreen to TeeÑ is defined as the area just after a green and prior to the next tee (a200-yd distance between the green and next tee is required for aGreen to Tee spot to work.) CCL retains exclusive rights to all other advertising on the System and may sell ads for placement on the System. Customer retains right of approval, which shall not be unreasonably withheld, for such CCL sold ads and where approved will receive revenues, ifany, on acampaign-by-campaign basis. Customer agrees that itwill allow no third party to place advertising on the System. AdMan Pro: Ad Manager with access to all Ad Inventory. Price: $5.00 per unit per month Customer retains exclusive rights to all advertising onthe System and may sell ads for placement on and inconnection with the System and retain all such revenues. Appropriation #1207-43-530.99; P.O. #108649 - Exhibit A Equipment Rental Agreement Advertising Agreement 7 (8) DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF Insurance Instructions City of Carmel dba Brookshire Golf Course (ÐCustomerÑ) has rented or will be renting equipment from Club Car, LLC (ÐCCLÑ). The Customer is required to provide CCL with the following insurance coverage: A. ÐAll RiskÑ personal business property and equipment insurance covering the complete System including stationary equipment and mobile GPS displays mounted on vehicles (as listed in the Rental Agreement) owned by or in which CCL has a security interest, in an amount not less than the full replacement value of the equipment, with Club Car, LLC named as loss payee. Replacement values: Stationary and wireless equipment Î $5,000; Mobile equipment: GPS displays mounted on vehicles Î $800/unit. B. Public Liability Insurance naming Club Car, LLC as an additional insured with the proceeds to bepayable first on the behalf of CCL tothe extent of its liability, ifany. The amount of the Public Liability Insurance shall not be less than $1,000,000.00, combined single limit. C. Each policy shall provide that: (i) CCL will be given not lessthan thirty (30) days prior written notice of cancellation ornon-renewal, (ii) itis primary insurance and any other insurance covering CCL shall be secondary orexcess of the policy and (iii) in noevent shall the policy be invalidated as against CCL for any violation of any term ofthe policy of the CustomerÓs application therefore. Acertificate evidencing such coverage should befaxed and mailed to CCL at thefollowing address: sar-pmg@clubcar.com Club Car, LLC 1074 N. Orange Ave Sarasota, FL 34236 Proof ofinsurance isrequired before CCL can release shipment of equipment to the site. Appropriation #1207-43-530.99; P.O. #108649 - Exhibit A Equipment Rental Agreement EFT Enrollment 8 (8) DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF DocuSign Envelope ID: F958AD14-DC17-4D8D-B2B6-A04320874CCF