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Home My WebLink About18-Police ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Keith L. Kilmer, Chief of Police Subject: Resolution of the City of San Bernardino authorizing the rental of a Dept: Police Department Managed Power Solution for the City of San Bernardino Police Department's Headquarters Date: February 16,2011 facility from Odyssey Power Corp., of Anaheim, California. M/CC DATE: February 22, 2011 Synopsis of Previous Council Action: None. Recommended Motion: Adopt Resolution. KEITH L. KILMER, Chief of Police h Concur: IT Dept. - DEESING,Director Concur: Public Wo& Dept. - NADEEM MAJAJ,Director Contact person: Public Safety IT Analyst II Michael KarschnerPhone: 384-5743 Supporting data attached: Yes Staff Report/Resolution Ward: All FUNDING REQUIREMENTS: Amount: $ 152,684 Source: 001-210-5172-0000-0049 Finance Council Notes: ese 02 D! Agenda Item No.� Dv, aa-aot r MW Baclur i E i i 1 i s CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report Sub iect Resolution of the City of San Bernardino Authorizing the Rental of a Managed Power Solution for the City of San Bernardino Police Department's Headquarters Facility from Odyssey Power Corp., of Anaheim, California. Backl4round Construction of the San Bernardino Police Department's current central headquarters facility was completed in 1994. At that time, a large Liebert uninterruptible power supply (UPS) was installed in the building. The Liebert UPS provided uninterrupted power to all the critical areas and devices (Public Safety Dispatch Center, Information Technology server rooms, Watch Commander terminal, etc.) during a loss of primary (commercial) power, until the on-site diesel generator started and assumed the power load. The Liebert UPS had a projected useful service life of ten to twelve years. The UPS has now been in continuous service for almost seventeen years—five years beyond its projected service life. The batteries have been reconditioned and replaced three times, and the UPS is moving into "parts unavailable" status. Failures of the UPS—including one in which the entire facility "went dark" (lost ALL power) for five minutes—are increasing in frequency. The UPS maintains its reliability only through dedicated and extraordinary servicing by Odyssey Power Corporation. Odyssey Power has offered a Managed Power Solution for rental by the City. This Solution includes: removal and disposal of the existing Liebert UPS; installation of a modern Toshiba UPS; maintenance service; emergency coverage (guaranteed four-hour onsite response time); parts coverage; battery coverage (including replacement and disposal); and 24/7 technical support. The Solution would remain in effect for four years, at the end of which the Police Department could continue a monthly rental, renew four-year rental, upgrade equipment, purchase the existing equipment, or terminate the Solution and contract with another vendor. Financial Impact This purchase will require a total of$152,684 of General Fund monies over four years, with an initial payment of$39,296 required in February, 2011. The yearly cost breakdown is shown in Table 1. Calendar 2011 (FY 2010-11 Funds) $39,296 Calendar 2012 (FY 2011-12 Funds) $37,796 Calendar 2013 (FY 2012-13 Funds) $37,796 Calendar 2014 (FY 2013-14 Funds) $37,796 TOTAL $152,684 Table 1: Managed Power Solution Costs by Year Currently, annual maintenance costs of$8,510 are budgeted for the existing system. That amount only covers quarterly inspections of system equipment—it does not cover any required repairs, equipment replacement, or preventive maintenance procedures. Funds for this annual purchase order of$39,296 are appropriated in the Police Department General Fund FY 2010-11 budget account for equipment and maintenance (No. 001-210-5172- 0000-0049). Account: 001-210-5172-0000-0049 Budgeted Amount: $87,200 Balance as of 12/29/10: $74,725 Balance after approval of this item: $35,429 Please note this balance does not indicate available funding. It does not include non- encumbered reoccurring expenses, or expenses incurred but not yet processed. Recommendation Adopt Resolution. : 3 1 .3 : j i b COP wl� RESOLUTION NO. RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE RENTAL OF A MANAGED POWER SOLUTION FOR THE CITY OF SAN BERNARDINO POLICE DEPARTMENT'S HEADQUARTERS FACILITY FROM ODYSSEY POWER CORP., OF ANAHEIM, CALIFORNIA. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. After a review of products, pricing, and existing infrastructure, Odyssey Power Corp., of Anaheim, California, is the recommended provider for the rental of a Police Facility Managed Power Solution to be used by the San Bernardino Police Department. Pursuant to San Bernardino Municipal Code 3.04.010(b)(3), the Mayor and Common Council approve a selected source justification for this purchase. SECTION 2. The City Manager is hereby authorized to execute on behalf of the City of San Bernardino an agreement with Odyssey Power for the rental terms and conditions of the Police Facility Managed Power Solution, a copy of which is attached hereto, marked as Exhibit "A," and incorporated herein by reference as though fully set forth at length. SECTION 3. That the Mayor and Common Council authorize the purchasing manager to issue a Purchase Order to Odyssey Power Corp., of Anaheim, California, for the rental of a Managed Power Solution for the Police Department's central headquarters facility as outlined in Odyssey Power Corporation's quote # OPCQ9123 (See Exhibit `B"), in an amount not to exceed $39,296. The Purchase Order shall read "San Bernardino Police Department Managed Power Rental Program Year One Lease". RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE RENTAL OF A MANAGED POWER SOLUTION FOR THE CITY OF SAN BERNARDINO POLICE DEPARTMENT'S HEADQUARTERS FACILITY FROM ODYSSEY POWER CORP., OF ANAHEIM, CALIFORNIA. SECTION 4. The authorization to issue the purchase order referenced in Section 2 of this resolution is rescinded if the purchase order is not issued within forty-five (45) days of the passage of this resolution. /// /// /// /// /// /// /// /// RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE RENTAL OF A MANAGED POWER SOLUTION FOR THE CITY OF SAN BERNARDINO POLICE DEPARTMENT'S HEADQUARTERS FACILITY FROM ODYSSEY POWER CORP., OF ANAHEIM, CALIFORNIA. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 2011,by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT MARQUEZ VACANT BRINKER SHORETT KELLEY JOHNSON MCCAMMACK Rachel G. Clark, City Clerk The foregoing resolution is hereby approved this day of 12011. Patrick J. Morris, Mayor City of San Bernardino Approved as to Form: (lMES F. PENMAN, ity Attorney City of San Bernardino San Bernardino Police Department Interoffice Memorandum l F�F c. To: Charles McNeely, City Manager From: Michael Karschner, Public Safety IT Analyst II Subject: Purchase pursuant to Municipal Code Section 3. 04 . 010 (B) (3) Date: 17 February 2011 Copies : Keith L. Kilmer, Chief of Police Ronald C Garcia, Captain - Admin Svc Div Commander Lea Deesing, Director of Information Technology The San Bernardino Police Department' s current headquarters facility was completed in 1994, and included a large Liebert uninterruptible power supply (UPS) . The UPS provides uninterrupted power to critical areas and devices (Public Safety Dispatch Center, IT server rooms, etc. ) during a loss of commercial power. The Liebert UPS has been in continuous service for seventeen years, five years beyond its useful service life, and is nearing "parts unavailable" status. Failures of the UPS—including a five-minute, f facility-wide loss of all power—are increasing in frequency. It is no longer cost-effective to attempt to maintain the Liebert system. : Odyssey Power Corp. , of Anaheim, CA, has been the electrical power contractor servicing the Liebert system for over five years. It has offered a Managed Power Solution for rental, which includes removal, disposal, and installation of equipment, and maintenance and technical support for four years, with renewal and upgrade options. In accordance with Department Director Letter (DDL) 82, the following information is presented as justification for permission to proceed with a selected-source purchase of Odyssey Power' s Managed Power Solution pursuant to SBMC Section 3. 04 . 010 (B) (3) : Odyssey Power has serviced the entire Police Department central headquarters facility, not just the UPS, for over five years . It is uniquely familiar with the facility' s power issues, especially regarding Public Safety requirements . It can immediately and continually provide quality service without the need for site- surveys or other costly, time-consuming information gathering. It is requested that this Managed Power Solution be rented pursuant to San Bernardino Municipal Code Section 3. 04 . 010 (B) (3) . Approved by: Charles McNeely, City Manager i Odyssey Power Equipment Terms and Conditions Odyssey Power Corporation is herein referred to as"Seller'.The person or entity purchasing goods("Goods')and/or licensing software or firmware, which is preloaded or to be loaded into Goods("Software"),is herein referred to as"Buyer." 1.ORDER ACCEPTANCE:No order issued by Buyer to Seller shall be binding on Seller unless Seller manifests its acceptance of such order either in writing or by commencement of performance hereunder.Seller reserves the right,at its sole discretion,to refuse orders.Seller's acceptance of Buyer's order shall constitute a binding agreement between Buyer and Seller and is expressly conditioned on Buyer consent to the terms and conditions set forth herein as being the complete and exclusive statement of terms governing the sale/license of Goods and Software.Changes or additions stated by Buyer in its order or otherwise are specifically rejected by Seller and shall be binding upon Seller only if expressly agreed to in writing signed by Seller.Buyer acceptance of the Goods and/or Software will further manifest Buyer's consent to Seller Terms and Conditions of Sale. 2.ITEMS PURCHASED:Goods and/or Software purchased and to be provided hereunder,unless otherwise agreed in writing by Seller,will be Seller's standard Goods and/or Software as specified in Seller's quotation or acknowledgment.Goods provided to Buyer may include Software incorporated in or provided separately for use with the Goods.Software title is reserved in Seller and Seller grants Buyer a non-exclusive,royalty free license solely for Buyer's use of the Software with the Goods provided. 3.TOOLING:Tool,die and pattern charges,if any,are in addition to the price of the Goods and are due and payable upon completion of the tooling.All tools,dies and patterns shall be and remain the property of Seller.Charges for tools,dies and patterns do not convey to Buyer,title,ownership interests in,or rights to possession or removal,nor prevent their use by Seller for other purchasers,except as otherwise expressly provided by Seller and Buyer in writing. 4.INSPECTION/TESTING/ACCEPTANCE:Buyer,at its expense,may observe the inspection and testing of the Goods upon agreement with Seller.All inspection and testing shall be in accordance with seller's specifications and standards and shall be conducted at Seller's plant before shipment of the Goods.Any claim of non-conforming Goods must be made promptly before shipment. If Buyer does not inspect the Goods at Seller's plant as provided herein,Buyer shall have ten(10)days from the date of delivery to verify receipt of conforming Goods and Software.Buyer must give written notice to Seller within ten(10)days of delivery of the Goods and Software stating why the Goods and Software are not conforming or such basis for rejection shall be deemed waived and Buyer shall be deemed to have unqualifiedly accepted the Goods. 5.RETURNED GOODS:Except as may be otherwise provided with respect to warranty returns,advance written permission to return rejected Goods must be obtained from Seller.Such Goods must be new,unused,of current manufacture and free of all liens or other claims.Goods must be shipped freight prepaid to Seller.Goods returned without the prior written permission of Seller,will not be accepted by Seller.Seller reserves the right to inspect Goods prior to authorizing their return.Upon receipt of the returned Goods,Seller will issue credit to Buyer in an amount equal to the billing price or current price of the Goods,whichever is lower,from which will be deducted an inspection and repacking charge and the cost of any reconditioning. 6.SHIPMENTIDELIVERY:Buyer acknowledges that Seller's shipping dates are estimates and are subject to change by Seller upon written notice to Buyer.Unless otherwise agreed to in writing by Seller,delivery terms shall be F.O.B.Seller's shipping point.Seller reserves the right to make partial [ shipments.Risk of loss or damage and responsibility to insure shall pass from Seller to Buyer upon delivery to a carrier for shipment to Buyer.Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier.Shortages and/or damages must be acknowledged and signed for at the time of delivery.If Goods are held by Seller for Buyer at Buyer's request,or due to Buyer's failure to supply shipping instructions,Seller may invoice Buyer for the full purchase price of the Goods and Buyer agrees to make payment.Goods held for Buyer by Seller,for whatever reason,are held at Buyer's risk and Buyer shall reimburse Seller for any insurance,storage or other costs incurred by Seller. 7.PRICES:Unless otherwise agreed in writing by Seller,prices for Goods are F.O.B.Seller's shipping point with no discount.Prices quoted by Seller shall remain in effect for the period stated in Seller's quotation or acknowledgment,or,if none stated,thirty(30)days after the date of same.If Seller does not receive,within such time period,an unconditional authorization from Buyer to ship Goods,Seller shall have the option to change the price for such Goods to that prevailing at the time of shipment.Prices and license fees do not include installation,freight,handling,hoisting,rigging,insurance or storage charges,unless otherwise agreed by Seller in writing.Prices and license fees also do not include taxes or duties imposed on the manufacture, sale,delivery or use of the Goods;such assessments are for Buyer's account and Seller will add such assessments to the price stated absent Seller receipt of Buyer's proper exemption certificate. 8.PAYMENT/SECURITY INTEREST:Payment is due in U.S.currency net thirty(30)days from date of Seller invoice,time being of the essence.Any payment not made when due shall be subject to an interest charge at the maximum rate permitted by Statute.Partial shipments of Goods will be invoiced and are payable as they occur in accordance with these terms.Buyer hereby grants Seller a security interest in the Goods,Software,and products,additions,replacement,proceeds and receivables there from and agrees to execute a financing statement confirming such interest upon Seller request.Seller may preserve its interests in payment by enforcing any applicable mechanic's,construction or similar lien rights,or demanding different terms of payment including,but not limited to,advance cash payment,whenever it appears to Seller that circumstances require such measures.Buyer agrees to take all measures necessary to comply with any new payment terms imposed by Seller.If Buyer fails to comply with payment terms,Seller may elect to terminate this Agreement or suspend performance under this or other agreements with Buyer and:(a)with or without legal process and using such force as may be lawful and necessary,enter into or upon the premises where the Goods are located and take possession of them(b)cancel all warranties herein and(c)pursue any additional remedies provided by law.Buyer shall be liable to Seller for all expenses,including reasonable attorney's fees,relating to the collection of past due amounts. 9.DELAYS:Seller shall not be liable or responsible for cost,expense or damage due to non-performance or a delay in performance where such non- performance or delay is due to causes beyond its reasonable control,including,but not limited to,natural disasters,acts of government,power failure, fire,flood,acts of God,labor disputes,riots,acts of war,epidemics,or material and transportation shortages.Deliveries of Goods and/or Software or other Seller performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer of the foregoing,but other Buyer and Seller performance hereunder shall otherwise remain unaffected. Odyssey Power Corporation Equipment Terms and Conditions Page 1 of 3 ODYSSEY t E If Seller determines that its ability to supply the total demand of Goods or to obtain material used in the manufacture of Goods is hindered,limited or made impracticable due to causes set forth in the preceding paragraph,Seller may allocate its available supply of Goods or material among its buyers on such basis as Seller determines to be equitable without liability to Buyer for any failure of performance which may result there from. 10.LIMITED WARRANTY:Seller's standard warranty applicable to the Goods purchased provided to Buyer at the time of purchase of Goods,is the only warranty applicable to the sale of Seller's Goods and its terms,conditions and limitations are incorporated by reference herein.Only a writing signed by a duly authorized officer of Seller may modify seller's warranty.Buyer assumes all other responsibility for any loss,damage or injury to persons or property arising out of,connected with,or resulting from the installation or use of Goods,either alone or in combination with other goods whether supplied by Seller or otherwise.Buyer acknowledges that any technical advice furnished by Seller with respect to the use of the Goods is given without charge and Seller assumes no obligation or liability to Buyer for the advice given or results obtained;all such advice is given by Seller and accepted by Buyer at Buyer's risk. SELLER'S WARRANTY EXTENDS ONLY TO PURCHASERS WHO BUY FOR INDUSTRIAL OR COMMERCIAL USE. SELLER'S WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES,EXPRESS OR IMPLIED,INCLUDING,WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,WHETHER OR NOT THE PURPOSE OR USE OF THE GOODS HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS,DRAWINGS,OR OTHERWISE AND WHETHER OR NOT THE GOODS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER'S USE OR PURPOSE. Seller's warranty obligations are conditioned upon timely receipt of all payments in accordance with the payment terms specified herein.During the period any amounts are overdue from Buyer,Seller shall have no obligations under this warranty.The warranty expiration date shall not be extended upon payment of the overdue amount.To the extent that Seller has relied upon any Buyer specifications,information,representations,or other data in the selection or design of Goods for Buyer,or the preparation of Seller's quotation,and conditions arise that are at variance with Buyer's representations,Seller's warranty and other provisions herein which are affected by such conditions shall be null and void. 11.PATENTS AND COPYRIGHTS:Seller warrants that any Goods provided hereunder do not infringe upon any valid U.S.patent or copyright in existence on the date of shipment.Seller will defend at its expense any action brought against Buyer to the extent it is based on a claim the Goods supplied by Seller infringe a valid United States patent or copyright.Seller will pay those costs and damages finally awarded against Buyer in any such claim,but such defense and payments are conditioned upon the following: (a)Seller shall be notified promptly in writing by Buyer of any notice of such claim;and(b)Seller shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise;and(c)should the Goods or the operation thereof become or,in Seller's opinion be likely to become,the subject of a claim of infringement of a valid United States patent or copyright,Buyer shall permit Seller,at Seller's option and expense to:(i)procure for Buyer the right to continue using the Goods,(ii)replace or modify the Goods so they become non-infringing,or(iii)grant Buyer a credit for such Goods,as depreciated,and accept return of same.Depreciation shall be calculated by Seller as an equal amount per year over the life of the Goods.(iv)cancel future deliveries of Goods without liability to Buyer. Seller shall have no liability to Buyer with respect to any claim of patent and/or copyright infringement based upon:(a)Combination or utilization of Goods or Software furnished under this Agreement with equipment,devices,or Software not manufactured by Seller;or(b)the modification by Buyer of Goods or Software furnished under this Agreement;or(c)Seller compliance with Buyer's design specifications. The foregoing states the entire liability of Seller with respect to infringement of patents or copyrights. 12.LIMITATION OF LIABILITY/CONSEQUENTIAL DAMAGES:IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR(A)DAMAGES IN EXCESS OF THE PURCHASE PRICE PAID FOR THE GOODS OR(B)INDIRECT,SPECIAL,INCIDENTAL,PUNITIVE,OR ECONOMIC CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER INCLUDING WITHOUT LIMITATION,LOSS OF USE,DATA,PROFIT,OR REVENUE, OR LOSS OR DAMAGE TO PROPERTY OR EQUIPMENT,OR OTHER ECONOMIC LOSS INCURRED BY BUYER AS A RESULT OF SELLER'S PERFORMANCE OR CANCELLATION OF THIS AGREEMENT,WHETHER ANY CLAIM IS BASED UPON THEORIES OF INFRINGEMENT, WARRANTY,CONTRACT, NEGLIGENCE,STRICT LIABILITY,TORT OR OTHERWISE,EVEN IF SELLER HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. 13.LIMITATION OF REMEDY:SECTION 10(WARRANTY),SECTION 11 (PATENTS AND COPYRIGHTS)AND SECTION 12(LIMITATION OF LIABILITY/CONSEQUENTIAL DAMAGES)PROVIDE BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTIES. 14.CHANGES:Seller reserves the right to make any changes in the model and design of its Goods and/or Software without obligation to similarly alter Goods and/or Software previously sold.Buyer may,in writing,within the scope of the accepted order,request changes in the established specifications or delivery schedules.If Seller agrees to such changes and these changes alter the amount due under the purchase order or the time required for performance hereunder,the price of Goods ordered,any license fees and/or the time for performance shall be equitably adjusted. 15.CANCELLATION:This Agreement or any part of it is subject to cancellation by Seller if the conditions specified herein are not met by Buyer or if Buyer becomes insolvent or bankrupt.In the event of cancellation for this reason Seller is under no obligation to pay Buyer for any expenses,costs, claims,or liabilities incurred and Seller may retain any portion of the purchase price pre-paid by Buyer as liquidated damages.Seller retains all rights to any other legal remedies it may have against Buyer.Buyer may cancel orders herein only upon reasonable advance written notice to Seller and upon payment to Seller of Seller's cancellation charges,which include all costs and expenses incurred by Seller in the course of performance herein and amounts adequate to cover any commitments made by Seller and Seller's anticipated profit on the sale of the Goods. 16.DRAWINGS/DOCUMENTATION:Seller's prints or drawings(and the technology depicted)which are furnished to Buyer in connection with this Agreement are the property of Seller and Seller retains all patent,copyright and other rights,including,without limitation,exclusive rights of use,license, or sale.Buyer's possession of such prints or drawings does not grant Buyer any rights or license,express or implied therein and Buyer shall,upon Seller request,return immediately all copies of such prints or drawings to Seller. 17.EXPORT:Each party hereby agrees to comply with all export laws and restrictions and regulations of the Department of Commerce or other United States or foreign agency or authority and not to export or allow the export or re-export of any Goods to be supplied hereunder in violation of any such restrictions,laws or regulations,or without all required licenses and authorizations.Buyer acknowledges that Seller's quote on Goods ordered hereunder Odyssey Power Corporation Equipment Terms and Conditions Page 2 of 3 ODYSSEY ._ . is subject to Buyer obtaining any required license or authorization at time of shipment and Buyer agrees that Seller shall incur no liability to Buyer if such license or authorization is unavailable. 18.NUCLEAR/MEDICAL AND DENTAL:GOODS SOLD HEREUNDER ARE NOT FOR USE IN ANY NUCLEAR AND RELATED APPLICATIONS. GOODS SOLD HEREUNDER ARE ALSO NOT FOR USE IN ANY LIFE SUPPORT,PATIENT-CONNECTED,OR APPLIED MEDICAL AND DENTAL APPLICATIONS.Buyer accepts Goods with the foregoing understanding,agrees to communicate the same in writing to any subsequent purchasers or user and to defend,indemnify,and hold harmless Seller from any claims,losses,suits,judgments and damages,including incidental and consequential damages,arising from such use,whether the cause of action be based in tort,contract or otherwise,including allegations that the Seller's liability is based on negligence or strict liability. 19.APPLICABLE LAW/VENUE:This Agreement shall be governed by and performance construed in accordance with the domestic laws and Uniform Commercial Code as adopted in the State of California,without reference to its choice or conflict of laws principles.The parties agree that the proper venue for all actions arising in connection herewith shall be only in California and the parties agree to submit to such jurisdiction.For non-domestic sales,the parties mutually agree that the rights and obligations of the parties herein shall be determined without reference to the provisions of the 1980 U.N.Convention on Contracts for the International Sale of Goods,as amended. 20.SEVERABILITY:If any section or part of this Agreement is or becomes illegal,unenforceable or invalid then the aforementioned part or section shall be struck from this Agreement and shall not affect the remaining parts or sections except to the extent necessary to prevent a clearly inequitable result. 21.ASSIGNMENT/DELEGATION:Buyer shall not assign any rights or delegate any duties hereunder without the prior written permission of Seller. Any assignment or delegation without such permission shall be void. 22.MODIFICATIONS/WAIVER:No proposed conditions,usage of trade,course of dealing or performance,or agreement asserted or purported to modify,change,waive,or supplement this Agreement's provisions or the Seller's quotes,acknowledgements,or documents referenced herein shall be applicable to this Agreement unless in writing and signed by a duly authorized associate of Seller.No other Seller associate or representative is authorized to alter the terms of this Agreement. 23.FINAL AND COMPLETE AGREEMENT:These terms and conditions,any software licensing agreement and other documents referenced herein, and any Seller quotation or acknowledgment and documents specifically referenced therein,represent the final and complete Agreement between the parties with respect to the sale of Goods and/or license of Software and supersede all prior or contemporaneous oral or written communications, representations,understandings or agreements relating to this subject matter. DATE OF ACCEPTANCE: DENNIS GEE, Odyssey Power Sales Representative CHARLES MCNEELY, San Bernardino City Manager JA F. PENMAN, San Bernardino City Attorney Odyssey Power Corporation Equipment Terms and Conditions Page 3 of 3 ODYSSEY Odyssey Power Rental Terms and Conditions 1.DEFINITIONS."Equipment"means any one or more of the items identified as such on the first page of this agreement,and shall include any accessories, attachments or other similar items delivered to Customer."Customer'means the person or entity identified as such on the first page of this agreement, including any representative,agent,officer or employee thereof. 2.Authority to sign.Any individual signing this contract represents and warrants that he or she is of legal age,and has the authority and power to sign this rental agreement as or for the Customer. 3.Indemnity/hold harmless/damages. INDEMNITY Odyssey Power agrees to and shall indemnify and hold the CITY,its elected officials,employees,agents or representatives,free and harmless from all claims, actions,damages and liabilities of any kind and nature arising from bodily injury,including death,or property damage,based or asserted upon any actual or alleged negligent act or omission of Odyssey Power,its employees,agents,or subcontractors,relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement,unless the bodily injury or property damage was actually caused by the sole negligence of the CITY, its elected officials,employees,agents or representatives.As part of the foregoing indemnity,Odyssey Power agrees to protect and defend at its own expense, including attorney's fees,the CITY,its elected officials,employees,agents or representatives from any and all legal actions based upon such actual or alleged negligent acts or omissions.Odyssey Power hereby waives any and all rights to any types of express or implied indemnity against the CITY,its elected officials,employees,agents or representatives,with respect to third party claims against Odyssey Power relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. INDEPENDENT CONTRACTOR. Odyssey Power shall perform work tasks provided by this Agreement,but for all intents and purposes Odyssey Power shall be an independent contractor and not an agent or employee of the CITY.Odyssey Power shall secure,at its expense,and be responsible for any and all payment of Income Tax,Social Security,State Disability Insurance Compensation,Unemployment Compensation,and other payroll deductions for Odyssey Power and its officers,agents, and employees,and all business license,if any are required,in connection with the services to be performed hereunder. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Odyssey Power warrants that it possesses or shall obtain,and maintain a business registration certificate pursuant to Chapter 5 of the San Bernardino Municipal Code,and any other licenses,permits,qualifications,insurance,and approval of whatever nature that are legally required of Odyssey Power to practice its business or profession. ATTORNEYS'FEES In the event that litigation is brought by any party in connection with this Agreement,the prevailing party shall be entitled to recover from the opposing party all costs and expenses,including reasonable attorneys'fees,incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms,conditions or provisions hereof.The costs,salary,and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as"attorneys'fees"for the purposes of this paragraph. VENUE The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino,State of California or the U.S.District Court for the Central District of California,Riverside Division.The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 4.Receipt and inspection of Equipment. Customer acknowledges that Customer has inspected the Equipment prior to taking possession thereof,finds it in good working order and repair,and suitable for Customer's needs.Customer is familiar with the proper operation and use of each item of Equipment. 5.Use of Equipment.Customer will not use or allow anyone to use the Equipment:(a)for an illegal purpose or in an illegal manner,(b)without a license,if required under any applicable law,or(c)who is not qualified to operate it.Customer agrees,at Customer's sole expense,to comply with all applicable municipal,state,and federal laws,ordinances and regulations(including O.S.H.A.)which may apply to the use of the Equipment.Customer agrees to visually inspect the Equipment daily and to immediately notify Odyssey Power when Equipment is found to be not properly working while in Customer's possession. 6.Malfunctioning Equipment. Should the Equipment become unsafe,malfunction or require repair,Customer shall immediately notify Odyssey Power. If such condition is the result of normal operation,Odyssey Power will repair the Equipment.Odyssey Power has no obligation to replace Equipment rendered inoperable by misuse,abuse or neglect.Any necessary repairs caused by misuse,abuse or neglect will be performed by Odyssey Power and charged at then prevailing time and material rates. Customer understands and agrees that all Equipment repairs must be performed by an Odyssey Power service representative or an Odyssey Power approved partner. 7.Return of Equipment,damaged and lost Equipment.At the expiration of the agreement term,Customer will return the Equipment to Odyssey Power Distribution Facility during regular business hours,such Equipment to be in the condition and repair as when delivered to Customer,subject to reasonable wear and tear,as defined below.Customer shall be liable for all damages to or loss of the Equipment,or inability or failure to return same for any reason whatsoever,Customer will pay Odyssey Power the then full replacement list value together with the full rental rate as specified until such Equipment is replaced.If Odyssey Power has agreed to deliver the Equipment to Customer or to pick up the Equipment from Customer,Customer shall pay the reasonable cost of repair and pay rental on the Equipment at the regular rental rate until all repairs have been completed.Odyssey Power shall be under no obligation to commence repair work until Customer has paid to Odyssey Power the estimated cost therefore. 8.Reasonable wear and tear.Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use.The following shall not be deemed reasonable wear and tear:(a)damage from any improper operation,including overloading or exceeding the rated capacity of the Equipment;(b)damage in the nature of dents,bending,tearing,and staining to or of the Equipment or any part thereof;and(c)any other damage to the Equipment which is not considered ordinary and reasonable in the Equipment rental industry.Any repairs to the Equipment shall be made by Odyssey Power and in a manner which will not adversely affect the operation,manufacturer's design or value of the Equipment. Odyssey Power Rental Terms and Conditions Page 1 of 2 ODYSSEY _ 9.Rental period and calculation of charges.All Equipment rentals require a(48)month minimum rental period.Rental charges commence when the Equipment leaves the Odyssey Power Distribution Facility and end when the Equipment is returned thereto. For each monthly rental period exceeded,the Customer will be charged an additional rental period.TIME IS OF THE ESSENCE in this agreement. 10.Invoicing and Payment: Initial fees for Equipment rentals will be invoiced and paid prior to Equipment delivery.The fees for the Equipment rental will be billed by Odyssey Power to the Customer on a monthly basis during the agreement term. All fee payments or other payments that may be due hereunder,are due thirty(30)days from date of invoice. Payments not received within thirty(30)days from date of invoice shall be subject to a late payment charge of one and one half percent(1 '/2%),or the maximum charge allowed by law. 11.Failure to deliver.Customer releases and discharges Odyssey Power from any and all liability or damages(including consequential and special damages) which might be caused by Odyssey Power's failure or inability to deliver any Equipment by any specified date or time. 12.Title/no purchase option/no liens.This agreement is not a contract of sale,and title to the Equipment shall at all times remain with Odyssey Power. Unless covered by a specific supplemental agreement signed by Odyssey Power,the Customer has no option or right to purchase the Equipment.Customer shall keep the Equipment free and clear of all mechanics and other liens and encumbrances. 13.Default.Should Customer in any way fail to perform,observe or keep any provision of this rental agreement,Odyssey Power may at its option do any one or more of the following:(a)terminate this agreement;(b)declare the entire rent amount immediately due and payable and commence legal action therefore; (c)retake possession of the Equipment,holding the Customer liable for all rental and other charges;or(d)pursue any other remedies available by law. 14.Repossession of Equipment.In the event of any actual or anticipatory breach by Customer,Odyssey Power's employees or agents may,without notice or legal process,go upon Customer's property and take all action reasonably necessary to repossess the Equipment.Customer waives all claims for damages and losses,physical or pecuniary,caused thereby,and shall pay all cost and expenses incurred by Odyssey Power in retaking the Equipment. 15.Customer's insurance coverage. Customer agrees to maintain and carry,at its sole cost,adequate liability,physical damage,public liability,property damage and casualty insurance extended coverage endorsement to cover any damage or liability arising from the handling,transportation,maintenance, operation or use of the Equipment during the entire rental period.When requested,Customer shall supply to Odyssey Power proof of such insurance by Certificate of Insurance clearly setting forth the coverage for the Equipment and naming Odyssey Power as loss payee and additional insured;such insurance and evidence thereof to be in amounts and form satisfactory to Odyssey Power.The Certificate of Insurance and policy shall provide that Odyssey Power shall receive not less than thirty(30)days notice prior to any cancellation of the insurance required hereunder. 16.Entire agreementlonly agreement.This written agreement represents the entire agreement between the Customer and Odyssey Power.There are no oral or other representations or agreements not included herein.None of Odyssey Power's rights or Customer's rights may be changed and no extension of the terms of this agreement may be made except in writing,signed by both Odyssey Power and Customer.The use of Customer's purchase order number on this agreement is for Customer's Convenience only.This rental agreement supersedes any purchase order or other Customer provisions or forms whether sent to or received prior,or subsequent to this agreement. j 17.No Assignment,Lending,or Subletting.Customer shall not sub-lease,sub-rent,assign or loan the Equipment,and any such action by Customer shall be void.Customer agrees to use and keep the Equipment at the job site set forth on the front page of this form unless Odyssey Power approves otherwise in writing. 18.Additional Provisions.Any failure of Odyssey Power to insist upon strict performance by Customer of any terms and conditions of this agreement shall not be construed as waiver of Odyssey Power's right to demand strict compliance.Customer has carefully reviewed this agreement and waives any principle of law which would construe any provision hereof against Odyssey Power as the draftsperson of this agreement. Customer agrees to pay all reasonable costs of collection,court,attorneys'fees and other expenses incurred by Odyssey Power in the collection of any charges due under this rental agreement or in connection with the enforcement of its terms. Customer shall pay the rental charge without any offsets or deductions of claims. The federal and state courts in the county in which the Odyssey Power Distribution Facility is located shall have exclusive jurisdiction over all matters relating to this agreement.Trial byjury is waived. Service of process may be effected by certified mail,return receipt requested.Odyssey Power shall be entitled to decrees of specific performance (without posting bond or other security)in addition to such other remedies as may be available. CRIMINAL WARNING:The use of false identification to obtain Equipment or the failure to return the Equipment by the Date Due In may be considered a theft subject to criminal prosecution pursuant to applicable criminal or penal code provisions. DATE OF ACCEPTANCE: DENNIS GEE, Odyssey Power Sales Representative CHARLES MCNEELY, San Bernardino City Manager JA F. PENMAN, San Bernardino City Attorney Odyssey Power Rental Terms and Conditions _ ODYSSEY _ Page 2 of 2 _ . Exhibit "A" Odyssey Power Equipment Terms and Conditions Odyssey Power Corporation is herein referred to as"Seller".The person or entity purchasing goods("Goods")and/or licensing software or firmware, which is preloaded or to be loaded into Goods("Software"),is herein referred to as"Buyer." 1.ORDER ACCEPTANCE:No order issued by Buyer to Seller shall be binding on Seller unless Seller manifests its acceptance of such order either in writing or by commencement of performance hereunder.Seller reserves the right,at its sole discretion,to refuse orders.Seller's acceptance of Buyer's order shall constitute a binding agreement between Buyer and Seller and is expressly conditioned on Buyer consent to the terms and conditions set forth herein as being the complete and exclusive statement of terms governing the sale/license of Goods and Software.Changes or additions stated by Buyer in its order or otherwise are specifically rejected by Seller and shall be binding upon Seller only if expressly agreed to in writing signed by Seller.Buyer acceptance of the Goods and/or Software will further manifest Buyer's consent to Seller Terms and Conditions of Sale. 2.ITEMS PURCHASED:Goods and/or Software purchased and to be provided hereunder,unless otherwise agreed in writing by Seller,will be Seller's standard Goods and/or Software as specified in Seller's quotation or acknowledgment.Goods provided to Buyer may include Software incorporated in or provided separately for use with the Goods.Software title is reserved in Seller and Seller grants Buyer a non-exclusive,royalty free license solely for Buyer's use of the Software with the Goods provided. 3.TOOLING:Tool,die and pattern charges,if any,are in addition to the price of the Goods and are due and payable upon completion of the tooling.All tools,dies and patterns shall be and remain the property of Seller.Charges for tools,dies and patterns do not convey to Buyer,title,ownership interests in,or rights to possession or removal,nor prevent their use by Seller for other purchasers,except as otherwise expressly provided by Seller and Buyer in writing. 4.INSPECTION/TESTING/ACCEPTANCE:Buyer,at its expense,may observe the inspection and testing of the Goods upon agreement with Seller.All inspection and testing shall be in accordance with seller's specifications and standards and shall be conducted at Seller's plant before shipment of the Goods.Any claim of non-conforming Goods must be made promptly before shipment.If Buyer does not inspect the Goods at Seller's plant as provided herein,Buyer shall have ten(10)days from the date of delivery to verify receipt of conforming Goods and Software.Buyer must give written notice to Seller within ten(10)days of delivery of the Goods and Software stating why the Goods and Software are not conforming or such basis for rejection shall be deemed waived and Buyer shall be deemed to have unqualifiedly accepted the Goods. 5.RETURNED GOODS:Except as may be otherwise provided with respect to warranty returns,advance written permission to return rejected Goods must be obtained from Seller.Such Goods must be new,unused,of current manufacture and free of all liens or other claims.Goods must be shipped freight prepaid to Seller.Goods returned without the prior written permission of Seller,will not be accepted by Seller.Seller reserves the right to inspect Goods prior to authorizing their return.Upon receipt of the returned Goods,Seller will issue credit to Buyer in an amount equal to the billing price or current price of the Goods,whichever is lower,from which will be deducted an inspection and repacking charge and the cost of any reconditioning. 6.SHIPMENT/DELIVERY:Buyer acknowledges that Seller's shipping dates are estimates and are subject to change by Seller upon written notice to Buyer.Unless otherwise agreed to in writing by Seller,delivery terms shall be F.O.B.Seller's shipping point.Seller reserves the right to make partial shipments.Risk of loss or damage and responsibility to insure shall pass from Seller to Buyer upon delivery to a carrier for shipment to Buyer.Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier.Shortages and/or damages must be acknowledged and signed for at the time of delivery.If Goods are held by Seller for Buyer at Buyer's request,or due to Buyer's failure to supply shipping instructions,Seller may invoice Buyer for the full purchase price of the Goods and Buyer agrees to make payment.Goods held for Buyer by Seller,for whatever reason,are held at Buyer's risk and Buyer shall reimburse Seller for any insurance,storage or other costs incurred by Seller. 7.PRICES:Unless otherwise agreed in writing by Seller,prices for Goods are F.O.B.Seller's shipping point with no discount.Prices quoted by Seller shall remain in effect for the period stated in Seller's quotation or acknowledgment,or,if none stated,thirty(30)days after the date of same.If Seller does not receive,within such time period,an unconditional authorization from Buyer to ship Goods,Seller shall have the option to change the price for such Goods to that prevailing at the time of shipment.Prices and license fees do not include installation,freight,handling,hoisting,rigging,insurance or storage charges,unless otherwise agreed by Seller in writing.Prices and license fees also do not include taxes or duties imposed on the manufacture, sale,delivery or use of the Goods;such assessments are for Buyer's account and Seller will add such assessments to the price stated absent Seller receipt of Buyer's proper exemption certificate. 8.PAYMENT/SECURITY INTEREST:Payment is due in U.S.currency net thirty(30)days from date of Seller invoice,time being of the essence.Any payment not made when due shall be subject to an interest charge at the maximum rate permitted by Statute.Partial shipments of Goods will be invoiced and are payable as they occur in accordance with these terms.Buyer hereby grants Seller a security interest in the Goods,Software,and products,additions,replacement,proceeds and receivables there from and agrees to execute a financing statement confirming such interest upon Seller request.Seller may preserve its interests in payment by enforcing any applicable mechanic's,construction or similar lien rights,or demanding different terms of payment including,but not limited to,advance cash payment,whenever it appears to Seller that circumstances require such measures.Buyer agrees to take all measures necessary to comply with any new payment terms imposed by Seller.If Buyer fails to comply with payment terms,Seller may elect to terminate this Agreement or suspend performance under this or other agreements with Buyer and:(a)with or without legal process and using such force as may be lawful and necessary,enter into or upon the premises where the Goods are located and take possession of them(b)cancel all warranties herein and(c)pursue any additional remedies provided by law.Buyer shall be liable to Seller for all expenses,including reasonable attorney's fees,relating to the collection of past due amounts. 9.DELAYS:Seller shall not be liable or responsible for cost,expense or damage due to non-performance or a delay in performance where such non- performance or delay is due to causes beyond its reasonable control,including,but not limited to,natural disasters,acts of government,power failure, fire,flood,acts of God,labor disputes,riots,acts of war,epidemics,or material and transportation shortages.Deliveries of Goods and/or Software or other Seller performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer of the foregoing,but other Buyer and Seller performance hereunder shall otherwise remain unaffected. Odyssey Power Corporation Equipment Terms and Conditions Page 1 of 3 ODYSSEY i i If Seller determines that its ability to supply the total demand of Goods or to obtain material used in the manufacture of Goods is hindered,limited or made impracticable due to causes set forth in the preceding paragraph,Seller may allocate its available supply of Goods or material among its buyers on such basis as Seller determines to be equitable without liability to Buyer for any failure of performance which may result there from. 10.LIMITED WARRANTY:Seller's standard warranty applicable to the Goods purchased provided to Buyer at the time of purchase of Goods,is the only warranty applicable to the sale of Seller's Goods and its terms,conditions and limitations are incorporated by reference herein.Only a writing signed by a duly authorized officer of Seller may modify seller's warranty.Buyer assumes all other responsibility for any loss,damage or injury to persons or property arising out of,connected with,or resulting from the installation or use of Goods,either alone or in combination with other goods whether supplied by Seller or otherwise.Buyer acknowledges that any technical advice furnished by Seller with respect to the use of the Goods is given without charge and Seller assumes no obligation or liability to Buyer for the advice given or results obtained;all such advice is given by Seller and accepted by Buyer at Buyer's risk. SELLER'S WARRANTY EXTENDS ONLY TO PURCHASERS WHO BUY FOR INDUSTRIAL OR COMMERCIAL USE. SELLER'S WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES,EXPRESS OR IMPLIED,INCLUDING,WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,WHETHER OR NOT THE PURPOSE OR USE OF THE GOODS HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS,DRAWINGS,OR OTHERWISE AND WHETHER OR NOT THE GOODS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER'S USE OR PURPOSE. Seller's warranty obligations are conditioned upon timely receipt of all payments in accordance with the payment terms specified herein.During the period any amounts are overdue from Buyer,Seller shall have no obligations under this warranty.The warranty expiration date shall not be extended upon payment of the overdue amount.To the extent that Seller has relied upon any Buyer specifications,information,representations,or other data in the selection or design of Goods for Buyer,or the preparation of Seller's quotation,and conditions arise that are at variance with Buyer's representations,Seller's warranty and other provisions herein which are affected by such conditions shall be null and void. 11.PATENTS AND COPYRIGHTS:Seller warrants that any Goods provided hereunder do not infringe upon any valid U.S.patent or copyright in existence on the date of shipment.Seller will defend at its expense any action brought against Buyer to the extent it is based on a claim the Goods supplied by Seller infringe a valid United States patent or copyright.Seller will pay those costs and damages finally awarded against Buyer in any such claim,but such defense and payments are conditioned upon the following: (a)Seller shall be notified promptly in writing by Buyer of any notice of such claim;and(b)Seller shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise;and(c)should the Goods or the operation thereof become or,in Seller's opinion be likely to become,the subject of a claim of infringement of a valid United States patent or copyright,Buyer shall permit Seller,at Seller's option and expense to:(i)procure for Buyer the right to continue using the Goods,(ii)replace or modify the Goods so they become non-infringing,or(iii)grant Buyer a credit for such Goods,as depreciated,and accept return of same.Depreciation shall be calculated by Seller as an equal amount per year over the life of the Goods.(iv)cancel future deliveries of Goods without liability to Buyer. Seller shall have no liability to Buyer with respect to any claim of patent and/or copyright infringement based upon:(a)Combination or utilization of Goods or Software furnished under this Agreement with equipment,devices,or Software not manufactured by Seller;or(b)the modification by Buyer of Goods or Software furnished under this Agreement;or(c)Seller compliance with Buyer's design specifications. The foregoing states the entire liability of Seller with respect to infringement of patents or copyrights. 12.LIMITATION OF LIABILITY/CONSEQUENTIAL DAMAGES:IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR(A)DAMAGES IN EXCESS OF THE PURCHASE PRICE PAID FOR THE GOODS OR(B)INDIRECT,SPECIAL,INCIDENTAL,PUNITIVE,OR ECONOMIC CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER INCLUDING WITHOUT LIMITATION,LOSS OF USE,DATA,PROFIT,OR REVENUE, OR LOSS OR DAMAGE TO PROPERTY OR EQUIPMENT,OR OTHER ECONOMIC LOSS INCURRED BY BUYER AS A RESULT OF SELLER'S PERFORMANCE OR CANCELLATION OF THIS AGREEMENT,WHETHER ANY CLAIM IS BASED UPON THEORIES OF INFRINGEMENT, WARRANTY,CONTRACT, NEGLIGENCE,STRICT LIABILITY,TORT OR OTHERWISE,EVEN IF SELLER HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. 13.LIMITATION OF REMEDY:SECTION 10(WARRANTY),SECTION 11 (PATENTS AND COPYRIGHTS)AND SECTION 12(LIMITATION OF LIABILITY/CONSEQUENTIAL DAMAGES)PROVIDE BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTIES. 14.CHANGES:Seller reserves the right to make any changes in the model and design of its Goods and/or Software without obligation to similarly alter Goods and/or Software previously sold.Buyer may,in writing,within the scope of the accepted order,request changes in the established specifications or delivery schedules.If Seller agrees to such changes and these changes alter the amount due under the purchase order or the time required for performance hereunder,the price of Goods ordered,any license fees and/or the time for performance shall be equitably adjusted. j 15.CANCELLATION:This Agreement or any part of it is subject to cancellation by Seller if the conditions specified herein are not met by Buyer or if Buyer becomes insolvent or bankrupt.In the event of cancellation for this reason Seller is under no obligation to pay Buyer for any expenses,costs, claims,or liabilities incurred and Seller may retain any portion of the purchase price pre-paid by Buyer as liquidated damages.Seller retains all rights to any other legal remedies it may have against Buyer.Buyer may cancel orders herein only upon reasonable advance written notice to Seller and upon payment to Seller of Seller's cancellation charges,which include all costs and expenses incurred by Seller in the course of performance herein and i amounts adequate to cover any commitments made by Seller and Seller's anticipated profit on the sale of the Goods. 16.DRAWINGS/DOCUMENTATION:Seller's prints or drawings(and the technology depicted)which are furnished to Buyer in connection with this Agreement are the property of Seller and Seller retains all patent,copyright and other rights,including,without limitation,exclusive rights of use,license, or sale.Buyer's possession of such prints or drawings does not grant Buyer any rights or license,express or implied therein and Buyer shall,upon Seller request,return immediately all copies of such prints or drawings to Seller. 17.EXPORT:Each party hereby agrees to comply with all export laws and restrictions and regulations of the Department of Commerce or other United States or foreign agency or authority and not to export or allow the export or re-export of any Goods to be supplied hereunder in violation of any such restrictions,laws or regulations,or without all required licenses and authorizations.Buyer acknowledges that Seller's quote on Goods ordered hereunder Odyssey Power Corporation Equipment Terms and Conditions 3 Page 2 of 3 ODYSSEY is subject to Buyer obtaining any required license or authorization at time of shipment and Buyer agrees that Seller shall incur no liability to Buyer if such license or authorization is unavailable. 18.NUCLEAR/MEDICAL AND DENTAL:GOODS SOLD HEREUNDER ARE NOT FOR USE IN ANY NUCLEAR AND RELATED APPLICATIONS. GOODS SOLD HEREUNDER ARE ALSO NOT FOR USE IN ANY LIFE SUPPORT,PATIENT-CONNECTED,OR APPLIED MEDICAL AND DENTAL APPLICATIONS.Buyer accepts Goods with the foregoing understanding,agrees to communicate the same in writing to any subsequent purchasers or user and to defend,indemnify,and hold harmless Seller from any claims,losses,suits,judgments and damages,including incidental and consequential damages,arising from such use,whether the cause of action be based in tort,contract or otherwise,including allegations that the Seller's liability is based on negligence or strict liability. 19.APPLICABLE LAW/VENUE:This Agreement shall be governed by and performance construed in accordance with the domestic laws and Uniform Commercial Code as adopted in the State of California,without reference to its choice or conflict of laws principles.The parties agree that the proper venue for all actions arising in connection herewith shall be only in California and the parties agree to submit to such jurisdiction.For non-domestic sales,the parties mutually agree that the rights and obligations of the parties herein shall be determined without reference to the provisions of the 1980 U.N.Convention on Contracts for the International Sale of Goods,as amended. 20.SEVERABILITY:If any section or part of this Agreement is or becomes illegal,unenforceable or invalid then the aforementioned part or section shall be struck from this Agreement and shall not affect the remaining parts or sections except to the extent necessary to prevent a clearly inequitable result. 21.ASSIGNMENT/DELEGATION:Buyer shall not assign any rights or delegate any duties hereunder without the prior written permission of Seller. Any assignment or delegation without such permission shall be void. 22.MODIFICATIONS/WAIVER:No proposed conditions,usage of trade,course of dealing or performance,or agreement asserted or purported to modify,change,waive,or supplement this Agreement's provisions or the Seller's quotes,acknowledgements,or documents referenced herein shall be applicable to this Agreement unless in writing and signed by a duly authorized associate of Seller.No other Seller associate or representative is authorized to alter the terms of this Agreement. 23.FINAL AND COMPLETE AGREEMENT:These terms and conditions,any software licensing agreement and other documents referenced herein, and any Seller quotation or acknowledgment and documents specifically referenced therein,represent the final and complete Agreement between the parties with respect to the sale of Goods and/or license of Software and supersede all prior or contemporaneous oral or written communications, representations,understandings or agreements relating to this subject matter. DATE OF ACCEPTANCE: DENNIS GEE, Odyssey Power Sales Representative CHARLES MCNEELY, San Bernardino City Manager JA F. PENMAN, San Bernardino City Attorney Odyssey Power Corporation Equipment Terms and Conditions Page 3 of 3 ODYSSEY Odyssey Power Rental Terms and Conditions 1.DEFINITIONS. "Equipment"means any one or more of the items identified as such on the first page of this agreement,and shall include any accessories, attachments or other similar items delivered to Customer."Customer"means the person or entity identified as such on the first page of this agreement, including any representative,agent,officer or employee thereof. 2.Authority to sign.Any individual signing this contract represents and warrants that he or she is of legal age,and has the authority and power to sign this rental agreement as or for the Customer. 3.Indemnity/hold harmless/damages. INDEMNITY Odyssey Power agrees to and shall indemnify and hold the CITY,its elected officials,employees,agents or representatives,free and harmless from all claims, actions,damages and liabilities of any kind and nature arising from bodily injury,including death,or property damage,based or asserted upon any actual or alleged negligent act or omission of Odyssey Power,its employees,agents,or subcontractors,relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement,unless the bodily injury or property damage was actually caused by the sole negligence of the CITY, its elected officials,employees,agents or representatives.As part of the foregoing indemnity,Odyssey Power agrees to protect and defend at its own expense, including attorney's fees,the CITY,its elected officials,employees,agents or representatives from any and all legal actions based upon such actual or alleged negligent acts or omissions.Odyssey Power hereby waives any and all rights to any types of express or implied indemnity against the CITY,its elected officials,employees,agents or representatives,with respect to third party claims against Odyssey Power relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. INDEPENDENT CONTRACTOR. Odyssey Power shall perform work tasks provided by this Agreement,but for all intents and purposes Odyssey Power shall be an independent contractor and not an agent or employee of the CITY.Odyssey Power shall secure,at its expense,and be responsible for any and all payment of Income Tax,Social Security,State Disability Insurance Compensation,Unemployment Compensation,and other payroll deductions for Odyssey Power and its officers,agents, and employees,and all business license,if any are required,in connection with the services to be performed hereunder. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Odyssey Power warrants that it possesses or shall obtain,and maintain a business registration certificate pursuant to Chapter 5 of the San Bernardino Municipal Code,and any other licenses,permits,qualifications,insurance,and approval of whatever nature that are legally required of Odyssey Power to practice its business or profession. ATTORNEYS'FEES In the event that litigation is brought by any party in connection with this Agreement,the prevailing party shall be entitled to recover from the opposing party all costs and expenses,including reasonable attorneys'fees,incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms,conditions or provisions hereof.The costs,salary,and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as"attorneys'fees"for the purposes of this paragraph. VENUE The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino,State of California or the U.S.District Court for the Central District of California,Riverside Division.The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 4.Receipt and inspection of Equipment.Customer acknowledges that Customer has inspected the Equipment prior to taking possession thereof,finds it in good working order and repair,and suitable for Customer's needs.Customer is familiar with the proper operation and use of each item of Equipment. 5.Use of Equipment.Customer will not use or allow anyone to use the Equipment:(a)for an illegal purpose or in an illegal manner,(b)without a license,if required under any applicable law,or(c)who is not qualified to operate it.Customer agrees,at Customer's sole expense,to comply with all applicable municipal,state,and federal laws,ordinances and regulations(including O.S.H.A.)which may apply to the use of the Equipment.Customer agrees to visually inspect the Equipment daily and to immediately notify Odyssey Power when Equipment is found to be not properly working while in Customer's possession. 6.Malfunctioning Equipment.Should the Equipment become unsafe,malfunction or require repair,Customer shall immediately notify Odyssey Power. If such condition is the result of normal operation,Odyssey Power will repair the Equipment.Odyssey Power has no obligation to replace Equipment rendered inoperable by misuse,abuse or neglect.Any necessary repairs caused by misuse,abuse or neglect will be performed by Odyssey Power and charged at then prevailing time and material rates. Customer understands and agrees that all Equipment repairs must be performed by an Odyssey Power service representative or an Odyssey Power approved partner. 7.Return of Equipment,damaged and lost Equipment.At the expiration of the agreement term,Customer will return the Equipment to Odyssey Power Distribution Facility during regular business hours,such Equipment to be in the condition and repair as when delivered to Customer,subject to reasonable wear and tear,as defined below.Customer shall be liable for all damages to or loss of the Equipment,or inability or failure to return same for any reason whatsoever,Customer will pay Odyssey Power the then full replacement list value together with the full rental rate as specified until such Equipment is replaced.If Odyssey Power has agreed to deliver the Equipment to Customer or to pick up the Equipment from Customer,Customer shall pay the reasonable cost of repair and pay rental on the Equipment at the regular rental rate until all repairs have been completed.Odyssey Power shall be under no obligation to commence repair work until Customer has paid to Odyssey Power the estimated cost therefore. S.Reasonable wear and tear.Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use.The following shall not be deemed reasonable wear and tear:(a)damage from any improper operation,including overloading or exceeding the rated capacity of the Equipment;(b)damage in the nature of dents,bending,tearing,and staining to or of the Equipment or any part thereof;and(c)any other damage to the Equipment which is not considered ordinary and reasonable in the Equipment rental industry.Any repairs to the Equipment shall be made by Odyssey Power and in a manner which will not adversely affect the operation,manufacturer's design or value of the Equipment. Odyssey Power Rental Terms and Conditions Page 1 of 2 ODYSSEY _ 9.Rental period and calculation of charges.All Equipment rentals require a(48)month minimum rental period.Rental charges commence when the Equipment leaves the Odyssey Power Distribution Facility and end when the Equipment is returned thereto. For each monthly rental period exceeded,the Customer will be charged an additional rental period.TIME IS OF THE ESSENCE in this agreement. 10.Invoicing and Payment: Initial fees for Equipment rentals will be invoiced and paid prior to Equipment delivery.The fees for the Equipment rental will be billed by Odyssey Power to the Customer on a monthly basis during the agreement term. All fee payments or other payments that maybe due hereunder,are due thirty(30)days from date of invoice. Payments not received within thirty(30)days from date of invoice shall be subject to a late payment charge of one and one half percent(1 Yz%),or the maximum charge allowed by law. 11.Failure to deliver.Customer releases and discharges Odyssey Power from any and all liability or damages(including consequential and special damages) which might be caused by Odyssey Power's failure or inability to deliver any Equipment by any specified date or time. 12.Title/no purchase option/no liens.This agreement is not a contract of sale,and title to the Equipment shall at all times remain with Odyssey Power. Unless covered by a specific supplemental agreement signed by Odyssey Power,the Customer has no option or right to purchase the Equipment.Customer shall keep the Equipment free and clear of all mechanics and other liens and encumbrances. 13.Default.Should Customer in any way fail to perform,observe or keep any provision of this rental agreement,Odyssey Power may at its option do any one or more of the following:(a)terminate this agreement;(b)declare the entire rent amount immediately due and payable and commence legal action therefore; (c)retake possession of the Equipment,holding the Customer liable for all rental and other charges;or(d)pursue any other remedies available by law. 14.Repossession of Equipment. In the event of any actual or anticipatory breach by Customer,Odyssey Power's employees or agents may,without notice or legal process,go upon Customer's property and take all action reasonably necessary to repossess the Equipment.Customer waives all claims for damages and losses,physical or pecuniary,caused thereby,and shall pay all cost and expenses incurred by Odyssey Power in retaking the Equipment. 15.Customer's insurance coverage.Customer agrees to maintain and carry,at its sole cost,adequate liability,physical damage,public liability,property damage and casualty insurance extended coverage endorsement to cover any damage or liability arising from the handling,transportation,maintenance, operation or use of the Equipment during the entire rental period.When requested,Customer shall supply to Odyssey Power proof of such insurance by Certificate of Insurance clearly setting forth the coverage for the Equipment and naming Odyssey Power as loss payee and additional insured;such insurance and evidence thereof to be in amounts and form satisfactory to Odyssey Power.The Certificate of Insurance and policy shall provide that Odyssey Power shall receive not less than thirty(30)days notice prior to any cancellation of the insurance required hereunder. 16.Entire agreement/only agreement.This written agreement represents the entire agreement between the Customer and Odyssey Power.There are no oral or other representations or agreements not included herein.None of Odyssey Power's rights or Customer's rights may be changed and no extension of the terms of this agreement may be made except in writing,signed by both Odyssey Power and Customer.The use of Customer's purchase order number on this agreement is for Customer's Convenience only.This rental agreement supersedes any purchase order or other Customer provisions or forms whether sent to or received prior,or subsequent to this agreement. 10 17.No Assignment,Lending,or Subletting.Customer shall not sub-lease,sub-rent,assign or loan the Equipment,and any such action by Customer shall be void.Customer agrees to use and keep the Equipment at the job site set forth on the front page of this form unless Odyssey Power approves otherwise in writing. 18.Additional Provisions.Any failure of Odyssey Power to insist upon strict performance by Customer of any terms and conditions of this agreement shall not be construed as waiver of Odyssey Power's right to demand strict compliance.Customer has carefully reviewed this agreement and waives any principle of law which would construe any provision hereof against Odyssey Power as the draftsperson of this agreement. Customer agrees to pay all reasonable costs of collection,court,attorneys'fees and other expenses incurred by Odyssey Power in the collection of any charges due under this rental agreement or in connection with the enforcement of its terms. Customer shall pay the rental charge without any offsets or deductions of claims. The federal and state courts in the county in which the Odyssey Power Distribution Facility is located shall have exclusive jurisdiction over all matters relating to this agreement.Trial by jury is waived. Service of process may be effected by certified mail,return receipt requested.Odyssey Power shall be entitled to decrees of specific performance (without posting bond or other security)in addition to such other remedies as may be available. CRIMINAL WARNING:The use of false identification to obtain Equipment or the failure to return the Equipment by the Date Due In may be considered a theft subject to criminal prosecution pursuant to applicable criminal or penal code provisions. DATE OF ACCEPTANCE: DENNIS GEE, Odyssey Power Sales Representative CHARLES MCNEELY, San Bernardino City Manager J?7 F. PENMAN, San Bernardino City Attorney Odyssey Power Rental Terms and Conditions Page 2 of 2 ODYSSEY _ I Exhibit "B" ODYSSEYVoPOWER t QUOTE FOR EQUIPMENT License 793476 Date QUOte# 12/07/10 OPCQ9123 J Sold To: Equipment Location: San Bernardino Police San Bernardino Police Mike Eckley Jason Suarez 300 N. "D"St. 300 N. "D"St. San Bernardino, CA 92401 San Bernardino, CA 92401 Phone:(909)384-5673 Phone:(951)312-8705 E-mail: Mike.Eckley @sbcity.org E-mail: suarezJa @sbcity.org We are pleased to submit the following quotation subject to the terms and conditions on the following page hereof. It is understood that if acceptance of this proposal is acknowledged on the buyers purchase order,such acceptance will be subject to the terms and conditions of this proposal with the same force and effect as though they were included on the buyer's purchase order. System Option 1: Toshiba 80kVA G9000 UPS Equipment and Installation 1 T90S3SO8KS6XSN Toshiba 80kVA G9000 Series UPS - Base unit 480v Input -480v Alternate Input -480v Output(No Transformer) i - Dimensions (LxWxH): 27.6 x 32.8 x 80.6 -Weight: 880 lbs. 1 T90-08KO16EN-VC Toshiba Battery System - Provides 16 minutes of battery run time at 64kW/80kVA output load - Breaker: 200 amp - Dimensions(LxWxH): 40 x 29.5 x 78.7 -Weight: 3,071 lbs. 1 T90CABLECAB Toshiba Slim Cable Landing Cabinet - Empty, narrow cabinet with top, bottom, and both-sides cable entry/exit - Facilitates Top and Bottom cable entry/exit when no MBS is used - Line up and color match for G9000 1 RMTI-EXT-R4 Toshiba RemotEye II Communications Kit 1 UPSSTARTUP080G9 Toshiba Factory Start Up Services 1 AFTERHOURSSRV Toshiba After Hours Start Up Adder I 1 FRHT Freight Charge 1 ELCSVC=LBR Electrical Installation - Scope of Work 1 ELCSVC MTL Electrical Installation - Materials 4 80DIA_48 Diamond Level Coverage Maintenance Service Maintenance visit(s)scheduled at customer's convenience, excluding Sundays and holidays Quote# OPCQ9123 Corporate Office:626 N Shepard St Anaheim,CA 92806-toll free 800 675 4W-tel 714 576 5010-fax 714 630 6901-www.odysseypower.com Northern CA Office:2880 Zanker Rd Suite 203 San Jose,CA 96134*toll free 800 675 4545,fax 800 809 1993 Emergency Coverage Emergency on call service available 24/7 Includes labor for service calls Includes labor for remedial repairs Guaranteed 4 hours onsite response time Parts Coverage Includes parts for remedial repairs Battery Coverage 100%coverage of batteries per battery string, as needed Includes replacement and disposal Technical Support • 24/7 technical phone support Exclusions • Service calls and repairs associated with equipment load values exceeding 80% Service calls and repairs associated with prior recommendations not adequately corrected by customer (Equipment failures caused by natural disasters, water damage, fires, customer negligence, and riots are not covered under the maintenance agreement and will be charged to customer based on prevailing T&M rates) 4 WPTL Web Portal Access SubTotal $101,450.50 System Option 1: Managed Power Rental Program Includes list of Critical Power Equipment, Installation and Services 1 RENTAL Annual Rental Rate (Based on 4 year term) $34,675.20 1 TAX Annual Sales Tax (Based on 4 year term) $3,120.76 1 PROCESSING Processing Fee (One time fee included in initial payment) $1,500.00 1 INITIAL Initial Payment(first month, last month and processing fee) $39,295.90 System Option 2: Toshiba 80kVA 4200 Series UPS Equipment and Installation 1 T42F3F800FAXXN Toshiba 4200 Series 80kVA UPS - Input/Output Voltage: 208/208-120 -Output Rating: 50kVA - Internal Maintenance Bypass - Dimensions(WxDxH): 44"x 31"x 74" -Weight: 1,560 lbs. 1 T42-800016EN-VC Toshiba External Battery Cabinet - Provides 16 minutes of battery run time at full rated load. - Dimensions (WxDxH): 36"x 29.5"x 70.7" -Weight: 3,131 lbs. 1 RMTI-EXT-R4 Toshiba RemotEye II Communications Kit 1 UPSSTARTUP080 Quote# OPCQ9123 Corporate Office:625 N Shepard St Anaheim,CA :r. :rr 6010 r 6901 Northern CA O. 2880 Zanker Rd Suite 203 800 800 809 Toshiba Factory Start Up Service AFTERHOURSSRV Toshiba After Hours Start Up Adder FRHT Freight ELCSVC—LBR Electrical Installation -Scope of Work -Transfer load to Maintenance Bypass - Shutdown critical load - Move Critical load feeder to UPS input Feeder - Restart critical load - Removal and disposal of existing UPS and Battery Cabinet - Set in place and anchor new 80KVA UPS and Battery cabinet - Install new UPS Input breaker - Install UPS 208V input and output circuits - Install battery power and control circuits. - Shutdown critical load - Cutover critical load to new UPS output feeder - Restart Critical Load Note: Does not include costs for permits, which can be included and charged on a time and material basis. ELCSVC_IVITL Electrical Installation - Materials 4 80DIA-48 Diamond Level Coverage Maintenance Service . Maintenance visit(s) scheduled at customer's convenience, excluding Sundays and holidays Emergency Coverage Emergency on call service available 24/7 Includes labor for service calls Includes labor for remedial repairs Guaranteed 4 hours onsite response time Parts Coverage . Includes parts for remedial repairs Battery Coverage 100% coverage of batteries per battery string, as needed Includes replacement and disposal Technical Support 24/7 technical phone support Exclusions . Service calls and repairs associated with equipment load values exceeding 80% . Service calls and repairs associated with prior recommendations not adequately corrected by customer (Equipment failures caused by natural disasters, water damage, fires, customer negligence, and riots are not covered under the maintenance agreement and will be charged to customer based on prevailing T&M rates) 4 WPTL Web Portal Access SubTotal $99,453.85 Quote# OPCQ9123 r7W Corporate Office:626 N Shepard St Anaheim,CA 92806*toll free 800 675 4W-tel 714 676 5010-fax 714 63D 6901*www.odysseypower.com 80 fax Northern CA Office:2880 Zanher Rd Suite 203 San Jose,CA 95134-toll free 06764545 8008091993 System Option 2: Managed Power Rental Program Includes list of Critical Power Equipment, Installation and Services 1 RENTAL Annual Rental Rate (Based on 4 year term) $33,992.70 1 TAX Annual Sales Tax (Based on 4 year term) $3,059.34 1 PROCESSING Processing Fee (One time fee included in initial payment) $1,500.00 1 INITIAL Initial Payment(first month, last month and processing fee) $38,552.10 End of Term Options Termination: Customer to provide free and clear access to Odyssey Power for the equipment de-installation and removal. -Month-to-Month: Customer to continue rental program on a monthly basis until further notice provided by Customer. Renewal: Customer renews rental agreement for an additional (48)month term. Major consumable items will be replaced to ensure equipment reliability. Equipment remains covered under diamond level maintenance plan for the entire term. Customer receives a 50%reduction in monthly rate during renewal term. -New: Existing equipment is de-installed and removed from site by Odyssey Power. Customer option to rent new equipment based upon a new monthly rate. -Purchase: Existing equipment may be purchased at the end of rental term. Exclusive Agreement Terms and Conditions 1. Equipment and Services Description: See Bill of Material and Services listed above for which RENTER shall pay Odyssey Power the monthly rental fee listed above and any applicable state or local sales tax. RENTER agrees to rent the subject equipment for minimum of(48)months.To start rent requires FIRST MONTH,LAST MONTH and PROCESSING fees in advance, plus any applicable taxes. Early Termination Fee will be charged in the event the RENTER terminates the agreement before the end of the agreement term. 2.Title remains with Odyssey Power at all times. RENTER shall not remove,conceal,or otherwise interfere with the title or the Odyssey Power ownership plate affixed to the equipment until and unless equipment has been purchased from Odyssey Power and Odyssey Power has received full payment for the same. 3. RENTER agrees to keep the above described equipment free of all liens, levies and encumbrances. RENTER shall not sell, assign or attempt to sell or assign equipment or any interest therein. 4. It is the RENTER'S responsibility to return equipment to Odyssey Power in the same condition it was received, normal wear and tear excepted. Odyssey Power will charge RENTER the current replacement cost of any manuals, cables, and/or other accessories which are not returned with the rented unit(s). RENTER is responsible for any loss or damage to the subject equipment for any reason including, but not limited to,theft, mysterious disappearance,flood, explosion and fire. If RENTER is unable to return any of the equipment or accessories to Odyssey Power for any reason, RENTER agrees to pay Odyssey Power the current replacement cost. RENTER is responsible for all monthly rental charges from the original date of shipment until all of the subject equipment has been returned to Odyssey Power. 5. In the event RENTER defaults in any of the terms or conditions of this agreement, Odyssey Power shall be entitled to the immediate possession of the subject equipment and RENTER allows Odyssey Power permission to enter the premises without prior notice and without breach or peace,to take possession of the subject equipment. 6. RENTER hereby assumes all responsibility for all and any damages to any person or property arising from the location, condition,or use of equipment,whether in operation or not, and growing out of any cause, including alleged imperfect or defective equipment. RENTER indemnifies Odyssey Power of and from all liability during the term of this agreement or arising while the subject equipment is in the possession of the RENTER. 7. RENTER shall pay Odyssey Power all costs and expenses, including reasonable attorney's fees, incurred by Odyssey Power in exercising any of its rights and remedies with regard to the rental of the subject equipment or the enforcement of any of these terms and conditions. 8. This contract contains all of the terms and conditions of this rental agreement. No oral statements, proposals or other agreements shall be binding on either of the parties hereto. 9.Attorneys'Fees. If any arbitration, litigation, action,suit or other proceeding is instituted to remedy, prevent or obtain relief from a breach of this Agreement, in relation to a breach of this Agreement or pertaining to a declaration of rights under this Agreement, the prevailing party will recover all such party's attorneys'fees incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions. As used in this Agreement, attorneys'fees will be deemed to be the full and actual cost of any legal services actually performed in connection with the matters involved, including those related to any appeal or the enforcement of any Quote# OPCQ9123 Corporate Office:626 N Shepard St Anaheim,CA 92806*toll free 800 676 4646 o tel 714 676 5010-fox 714 630 6901-www.odysseypower.com Northern CA Office.28M Zanker Rd Suite 20-3 San Jose,CA 95134-toll free 800 676 4645-fax 800 809 1993 i I judgment, calculated on the basis of the usual fee charged by attorneys performing such services, and will not be limited to"reasonable attorneys'fees"as defined in any statute or rule of court. 10. Late Charges/Interest Fees. RENTER shall pay a late charge of one and one-half percent(1 1/2%)per month on all amounts not paid when due. Late charges shall be included in the monthly statement and become part of the principal obligation due Odyssey Power. Pricing Terms: Honored for 60 days from date above Payment Terms: Net 30(Subject to credit approval) Agreement Term:48 months All Odyssey Power Terms and Conditions shall apply By signing below the authorized agents acknowledge that each has read and does accept all the terms and conditions or this rental agreement. Date Of Acceptance Sales Rep. Dennis Gee Customer Name Title Regional Account Manager Customer Signature Purchase Order Quote# OPCQ9123 Corporate Office:626 N Shepard St Anaheim,CA 92806-toll free 800 676 4W-tel 714 6TS 6010-fax 714 630 6901-www.odysseypower.com Northern CA Office:2880 Zanker Rd Suite 203 Son Jose,CA 95134*toll free 800 676 4645,fax 800 909 1993 Odyssey Power Equipment Terms and Conditions Odyssey Power Corporation is herein referred to as"Seller".The person or entity purchasing goods("Goods")and/or licensing software or firmware, which is preloaded or to be loaded into Goods("Software"),is herein referred to as"Buyer." 1.ORDER ACCEPTANCE:No order issued by Buyer to Seller shall be binding on Seller unless Seller manifests its acceptance of such order either in writing or by commencement of performance hereunder.Seller reserves the right,at its sole discretion,to refuse orders.Seller's acceptance of Buyer's order shall constitute a binding agreement between Buyer and Seller and is expressly conditioned on Buyer consent to the terms and conditions set forth herein as being the complete and exclusive statement of terms governing the sale/license of Goods and Software.Changes or additions stated by Buyer in its order or otherwise are specifically rejected by Seller and shall be binding upon Seller only if expressly agreed to in writing signed by Seller.Buyer acceptance of the Goods and/or Software will further manifest Buyer's consent to Seller Terms and Conditions of Sale. 2.ITEMS PURCHASED:Goods and/or Software purchased and to be provided hereunder,unless otherwise agreed in writing by Seller,will be Seller's standard Goods and/or Software as specified in Seller's quotation or acknowledgment.Goods provided to Buyer may include Software incorporated in or provided separately for use with the Goods.Software title is reserved in Seller and Seller grants Buyer a non-exclusive,royalty free license solely for Buyer's use of the Software with the Goods provided. 3.TOOLING:Tool,die and pattern charges,if any,are in addition to the price of the Goods and are due and payable upon completion of the tooling.All tools,dies and patterns shall be and remain the property of Seller.Charges for tools,dies and patterns do not convey to Buyer,title,ownership interests in,or rights to possession or removal,nor prevent their use by Seller for other purchasers,except as otherwise expressly provided by Seller and Buyer in writing. 4.INSPECTION/TESTING/ACCEPTANCE:Buyer,at its expense,may observe the inspection and testing of the Goods upon agreement with Seller.All inspection and testing shall be in accordance with seller's specifications and standards and shall be conducted at Seller's plant before shipment of the Goods.Any claim of non-conforming Goods must be made promptly before shipment.If Buyer does not inspect the Goods at Seller's plant as provided herein,Buyer shall have ten(10)days from the date of delivery to verify receipt of conforming Goods and Software.Buyer must give written notice to Seller within ten(10)days of delivery of the Goods and Software stating why the Goods and Software are not conforming or such basis for rejection shall be deemed waived and Buyer shall be deemed to have unqualifiedly accepted the Goods. 5.RETURNED GOODS:Except as may be otherwise provided with respect to warranty returns,advance written permission to return rejected Goods must be obtained from Seller.Such Goods must be new,unused,of current manufacture and free of all liens or other claims.Goods must be shipped freight prepaid to Seller.Goods returned without the prior written permission of Seller,will not be accepted by Seller.Seller reserves the right to inspect Goods prior to authorizing their return.Upon receipt of the returned Goods,Seller will issue credit to Buyer in an amount equal to the billing price or current price of the Goods,whichever is lower,from which will be deducted an inspection and repacking charge and the cost of any reconditioning. 6.SHIPMENT/DELIVERY:Buyer acknowledges that Seller's shipping dates are estimates and are subject to change by Seller upon written notice to Buyer.Unless otherwise agreed to in writing by Seller,delivery terms shall be F.O.B.Seller's shipping point.Seller reserves the right to make partial shipments.Risk of loss or damage and responsibility to insure shall pass from Seller to Buyer upon delivery to a carrier for shipment to Buyer.Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier.Shortages and/or damages must be acknowledged and signed for at the time of delivery.If Goods are held by Seller for Buyer at Buyer's request,or due to Buyer's failure to supply shipping instructions,Seller may invoice Buyer for the full purchase price of the Goods and Buyer agrees to make payment.Goods held for Buyer by Seller,for whatever reason,are held at Buyer's risk and Buyer shall reimburse Seller for any insurance,storage or other costs incurred by Seller. 7.PRICES:Unless otherwise agreed in writing by Seller,prices for Goods are F.O.B.Seller's shipping point with no discount.Prices quoted by Seller shall remain in effect for the period stated in Seller's quotation or acknowledgment,or,if none stated,thirty(30)days after the date of same.If Seller does not receive,within such time period,an unconditional authorization from Buyer to ship Goods,Seller shall have the option to change the price for such Goods to that prevailing at the time of shipment.Prices and license fees do not include installation,freight,handling,hoisting,rigging,insurance or storage charges,unless otherwise agreed by Seller in writing.Prices and license fees also do not include taxes or duties imposed on the manufacture, sale,delivery or use of the Goods;such assessments are for Buyer's account and Seller will add such assessments to the price stated absent Seller receipt of Buyer's proper exemption certificate. 8.PAYMENT/SECURITY INTEREST:Payment is due in U.S.currency net thirty(30)days from date of Seller invoice,time being of the essence.Any payment not made when due shall be subject to an interest charge at the maximum rate permitted by Statute.Partial shipments of Goods will be invoiced and are payable as they occur in accordance with these terms.Buyer hereby grants Seller a security interest in the Goods,Software,and products,additions,replacement,proceeds and receivables there from and agrees to execute a financing statement confirming such interest upon Seller request.Seller may preserve its interests in payment by enforcing any applicable mechanic's,construction or similar lien rights,or demanding different terms of payment including,but not limited to,advance cash payment,whenever it appears to Seller that circumstances require such measures.Buyer agrees to take all measures necessary to comply with any new payment terms imposed by Seller.If Buyer fails to comply with payment terms,Seller may elect to terminate this Agreement or suspend performance under this or other agreements with Buyer and:(a)with or without legal process and using such force as may be lawful and necessary,enter into or upon the premises where the Goods are located and take possession of them(b)cancel all warranties herein and(c)pursue any additional remedies provided by law.Buyer shall be liable to Seller for all expenses,including reasonable attorney's fees,relating to the collection of past due amounts. 9.DELAYS:Seller shall not be liable or responsible for cost,expense or damage due to non-performance or a delay in performance where such non- performance or delay is due to causes beyond its reasonable control,including,but not limited to,natural disasters,acts of government,power failure, fire,flood,acts of God,labor disputes,riots,acts of war,epidemics,or material and transportation shortages.Deliveries of Goods and/or Software or other Seller performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer of the foregoing,but other Buyer and Seller performance hereunder shall otherwise remain unaffected. Odyssey Power Corporation Equipment Terms and Conditions Page 1 of 3 ODYSSEY _ _ .. If Seller determines that its ability to supply the total demand of Goods or to obtain material used in the manufacture of Goods is hindered,limited or made impracticable due to causes set forth in the preceding paragraph,Seller may allocate its available supply of Goods or material among its buyers on such basis as Seller determines to be equitable without liability to Buyer for any failure of performance which may result there from. 10.LIMITED WARRANTY:Seller's standard warranty applicable to the Goods purchased provided to Buyer at the time of purchase of Goods,is the only warranty applicable to the sale of Seller's Goods and its terms,conditions and limitations are incorporated by reference herein.Only a writing signed by a duly authorized officer of Seller may modify seller's warranty.Buyer assumes all other responsibility for any loss,damage or injury to persons or property arising out of,connected with,or resulting from the installation or use of Goods,either alone or in combination with other goods whether supplied by Seller or otherwise.Buyer acknowledges that any technical advice furnished by Seller with respect to the use of the Goods is given without charge and Seller assumes no obligation or liability to Buyer for the advice given or results obtained;all such advice is given by Seller and accepted by Buyer at Buyer's risk. SELLER'S WARRANTY EXTENDS ONLY TO PURCHASERS WHO BUY FOR INDUSTRIAL OR COMMERCIAL USE. SELLER'S WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES,EXPRESS OR IMPLIED,INCLUDING,WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,WHETHER OR NOT THE PURPOSE OR USE OF THE GOODS HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS,DRAWINGS,OR OTHERWISE AND WHETHER OR NOT THE GOODS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER'S USE OR PURPOSE. Seller's warranty obligations are conditioned upon timely receipt of all payments in accordance with the payment terms specified herein.During the period any amounts are overdue from Buyer,Seller shall have no obligations under this warranty.The warranty expiration date shall not be extended upon payment of the overdue amount.To the extent that Seller has relied upon any Buyer specifications,information,representations,or other data in the selection or design of Goods for Buyer,or the preparation of Seller's quotation,and conditions arise that are at variance with Buyer's representations,Seller's warranty and other provisions herein which are affected by such conditions shall be null and void. 11.PATENTS AND COPYRIGHTS:Seller warrants that any Goods provided hereunder do not infringe upon any valid U.S.patent or copyright in existence on the date of shipment.Seller will defend at its expense any action brought against Buyer to the extent it is based on a claim the Goods supplied by Seller infringe a valid United States patent or copyright.Seller will pay those costs and damages finally awarded against Buyer in any such claim,but such defense and payments are conditioned upon the following: (a)Seller shall be notified promptly in writing by Buyer of any notice of such claim;and(b)Seller shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise;and(c)should the Goods or the operation thereof become or,in Seller's opinion be likely to become,the subject of a claim of infringement of a valid United States patent or copyright,Buyer shall permit Seller,at Seller's option and expense to:(i)procure for Buyer the right to continue using the Goods,(ii)replace or modify the Goods so they become non-infringing,or(iii)grant Buyer a credit for such Goods,as depreciated,and accept return of same.Depreciation shall be calculated by Seller as an equal amount per year over the life of the Goods.(iv)cancel future deliveries of Goods without liability to Buyer. Seller shall have no liability to Buyer with respect to any claim of patent and/or copyright infringement based upon:(a)Combination or utilization of Goods or Software furnished under this Agreement with equipment,devices,or Software not manufactured by Seller;or(b)the modification by Buyer of Goods or Software furnished under this Agreement;or(c)Seller compliance with Buyer's design specifications. The foregoing states the entire liability of Seller with respect to infringement of patents or copyrights. 12.LIMITATION OF LIABILITY/CONSEQUENTIAL DAMAGES:IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR(A)DAMAGES IN EXCESS OF THE PURCHASE PRICE PAID FOR THE GOODS OR(B)INDIRECT,SPECIAL,INCIDENTAL,PUNITIVE,OR ECONOMIC CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER INCLUDING WITHOUT LIMITATION,LOSS OF USE,DATA,PROFIT,OR REVENUE, OR LOSS OR DAMAGE TO PROPERTY OR EQUIPMENT,OR OTHER ECONOMIC LOSS INCURRED BY BUYER AS A RESULT OF SELLER'S PERFORMANCE OR CANCELLATION OF THIS AGREEMENT,WHETHER ANY CLAIM IS BASED UPON THEORIES OF INFRINGEMENT, WARRANTY,CONTRACT, NEGLIGENCE,STRICT LIABILITY,TORT OR OTHERWISE,EVEN IF SELLER HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. 13.LIMITATION OF REMEDY:SECTION 10(WARRANTY),SECTION 11 (PATENTS AND COPYRIGHTS)AND SECTION 12(LIMITATION OF LIABILITY/CONSEQUENTIAL DAMAGES)PROVIDE BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTIES. 14.CHANGES:Seller reserves the right to make any changes in the model and design of its Goods and/or Software without obligation to similarly alter Goods and/or Software previously sold.Buyer may,in writing,within the scope of the accepted order,request changes in the established specifications or delivery schedules.If Seller agrees to such changes and these changes alter the amount due under the purchase order or the time required for performance hereunder,the price of Goods ordered,any license fees and/or the time for performance shall be equitably adjusted. 15.CANCELLATION:This Agreement or any part of it is subject to cancellation by Seller if the conditions specified herein are not met by Buyer or if Buyer becomes insolvent or bankrupt. In the event of cancellation for this reason Seller is under no obligation to pay Buyer for any expenses,costs, claims,or liabilities incurred and Seller may retain any portion of the purchase price pre-paid by Buyer as liquidated damages.Seller retains all rights to any other legal remedies it may have against Buyer.Buyer may cancel orders herein only upon reasonable advance written notice to Seller and upon payment to Seller of Seller's cancellation charges,which include all costs and expenses incurred by Seller in the course of performance herein and amounts adequate to cover any commitments made by Seller and Seller's anticipated profit on the sale of the Goods. 16.DRAWINGS/DOCUMENTATION:Seller's prints or drawings(and the technology depicted)which are furnished to Buyer in connection with this Agreement are the property of Seller and Seller retains all patent,copyright and other rights,including,without limitation,exclusive rights of use,license, or sale.Buyer's possession of such prints or drawings does not grant Buyer any rights or license,express or implied therein and Buyer shall,upon Seller request,return immediately all copies of such prints or drawings to Seller. 17.EXPORT:Each party hereby agrees to comply with all export laws and restrictions and regulations of the Department of Commerce or other United States or foreign agency or authority and not to export or allow the export or re-export of any Goods to be supplied hereunder in violation of any such restrictions,laws or regulations,or without all required licenses and authorizations.Buyer acknowledges that Seller's quote on Goods ordered hereunder Odyssey Power Corporation Equipment Terms and Conditions Page 2 of 3 ODYSSEY _ _ . is subject to Buyer obtaining any required license or authorization at time of shipment and Buyer agrees that Seller shall incur no liability to Buyer if such license or authorization is unavailable. 18.NUCLEAR/MEDICAL AND DENTAL:GOODS SOLD HEREUNDER ARE NOT FOR USE IN ANY NUCLEAR AND RELATED APPLICATIONS. GOODS SOLD HEREUNDER ARE ALSO NOT FOR USE IN ANY LIFE SUPPORT,PATIENT-CONNECTED,OR APPLIED MEDICAL AND DENTAL APPLICATIONS.Buyer accepts Goods with the foregoing understanding,agrees to communicate the same in writing to any subsequent purchasers or user and to defend,indemnify,and hold harmless Seller from any claims,losses,suits,judgments and damages,including incidental and consequential damages,arising from such use,whether the cause of action be based in tort,contract or otherwise,including allegations that the Seller's liability is based on negligence or strict liability. 19.APPLICABLE LAWIVENUE:This Agreement shall be governed by and performance construed in accordance with the domestic laws and Uniform Commercial Code as adopted in the State of California,without reference to its choice or conflict of laws principles.The parties agree that the proper venue for all actions arising in connection herewith shall be only in California and the parties agree to submit to such jurisdiction.For non-domestic sales,the parties mutually agree that the rights and obligations of the parties herein shall be determined without reference to the provisions of the 1980 U.N.Convention on Contracts for the International Sale of Goods,as amended. 20.SEVERABILITY:If any section or part of this Agreement is or becomes illegal,unenforceable or invalid then the aforementioned part or section shall be struck from this Agreement and shall not affect the remaining parts or sections except to the extent necessary to prevent a clearly inequitable result. 21.ASSIGNMENT/DELEGATION:Buyer shall not assign any rights or delegate any duties hereunder without the prior written permission of Seller. Any assignment or delegation without such permission shall be void. 22.MODIFICATIONS/WAIVER:No proposed conditions,usage of trade,course of dealing or performance,or agreement asserted or purported to modify,change,waive,or supplement this Agreement's provisions or the Seller's quotes,acknowledgements,or documents referenced herein shall be applicable to this Agreement unless in writing and signed by a duly authorized associate of Seller.No other Seller associate or representative is authorized to alter the terms of this Agreement. 23.FINAL AND COMPLETE AGREEMENT:These terms and conditions,any software licensing agreement and other documents referenced herein, and any Seller quotation or acknowledgment and documents specifically referenced therein,represent the final and complete Agreement between the parties with respect to the sale of Goods and/or license of Software and supersede all prior or contemporaneous oral or written communications, representations,understandings or agreements relating to this subject matter. Odyssey Power Corporation Equipment Terms and Conditions Page 3 of 3 ODYSSEY _ _ . Odyssey Power Rental Terms and Conditions 1.DEFINITIONS."Equipment"means any one or more of the items identified as such on the first page of this agreement,and shall include any accessories, attachments or other similar items delivered to Customer."Customer"means the person or entity identified as such on the first page of this agreement, including any representative,agent,officer or employee thereof. 2.Authority to sign.Any individual signing this contract represents and warrants that he or she is of legal age,and has the authority and power to sign this rental agreement as or for the Customer. 3.Indemnity/hold harmless/damages. INDEMNITY Odyssey Power agrees to and shall indemnify and hold the CITY,its elected officials,employees,agents or representatives,free and harmless from all claims, actions,damages and liabilities of any kind and nature arising from bodily injury,including death,or property damage,based or asserted upon any actual or alleged negligent act or omission of Odyssey Power,its employees,agents,or subcontractors,relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement,unless the bodily injury or property damage was actually caused by the sole negligence of the CITY, its elected officials,employees,agents or representatives.As part of the foregoing indemnity,Odyssey Power agrees to protect and defend at its own expense, including attorney's fees,the CITY,its elected officials,employees,agents or representatives from any and all legal actions based upon such actual or alleged negligent acts or omissions.Odyssey Power hereby waives any and all rights to any types of express or implied indemnity against the CITY,its elected officials,employees,agents or representatives,with respect to third party claims against Odyssey Power relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. INDEPENDENT CONTRACTOR. Odyssey Power shall perform work tasks provided by this Agreement,but for all intents and purposes Odyssey Power shall be an independent contractor and not an agent or employee of the CITY.Odyssey Power shall secure,at its expense,and be responsible for any and all payment of Income Tax,Social Security,State Disability Insurance Compensation,Unemployment Compensation,and other payroll deductions for Odyssey Power and its officers,agents, and employees,and all business license,if any are required,in connection with the services to be performed hereunder. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Odyssey Power warrants that it possesses or shall obtain,and maintain a business registration certificate pursuant to Chapter 5 of the San Bernardino Municipal Code,and any other licenses,permits,qualifications,insurance,and approval of whatever nature that are legally required of Odyssey Power to practice its business or profession. ATTORNEYS'FEES In the event that litigation is brought by any party in connection with this Agreement,the prevailing party shall be entitled to recover from the opposing party all costs and expenses,including reasonable attorneys'fees,incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms,conditions or provisions hereof.The costs,salary,and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as"attorneys'fees"for the purposes of this paragraph. VENUE The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino,State of California or the U.S.District Court for the Central District of California,Riverside Division.The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 4.Receipt and inspection of Equipment. Customer acknowledges that Customer has inspected the Equipment prior to taking possession thereof,finds it in good working order and repair,and suitable for Customer's needs.Customer is familiar with the proper operation and use of each item of Equipment. 5.Use of Equipment.Customer will not use or allow anyone to use the Equipment:(a)for an illegal purpose or in an illegal manner,(b)without a license,if required under any applicable law,or(c)who is not qualified to operate it.Customer agrees,at Customer's sole expense,to comply with all applicable municipal,state,and federal laws,ordinances and regulations(including O.S.H.A.)which may apply to the use of the Equipment.Customer agrees to visually inspect the Equipment daily and to immediately notify Odyssey Power when Equipment is found to be not properly working while in Customer's possession. 6.Malfunctioning Equipment. Should the Equipment become unsafe,malfunction or require repair,Customer shall immediately notify Odyssey Power. If such condition is the result of normal operation,Odyssey Power will repair the Equipment.Odyssey Power has no obligation to replace Equipment rendered inoperable by misuse,abuse or neglect.Any necessary repairs caused by misuse,abuse or neglect will be performed by Odyssey Power and charged at then prevailing time and material rates. Customer understands and agrees that all Equipment repairs must be performed by an Odyssey Power service representative or an Odyssey Power approved partner. 7.Return of Equipment,damaged and lost Equipment.At the expiration of the agreement term,Customer will return the Equipment to Odyssey Power Distribution Facility during regular business hours,such Equipment to be in the condition and repair as when delivered to Customer,subject to reasonable wear and tear,as defined below.Customer shall be liable for all damages to or loss of the Equipment,or inability or failure to return same for any reason whatsoever,Customer will pay Odyssey Power the then full replacement list value together with the full rental rate as specified until such Equipment is replaced.If Odyssey Power has agreed to deliver the Equipment to Customer or to pick up the Equipment from Customer,Customer shall pay the reasonable cost of repair and pay rental on the Equipment at the regular rental rate until all repairs have been completed.Odyssey Power shall be under no obligation to commence repair work until Customer has paid to Odyssey Power the estimated cost therefore. 8.Reasonable wear and tear.Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use.The following shall not be deemed reasonable wear and tear:(a)damage from any improper operation,including overloading or exceeding the rated capacity of the Equipment;(b)damage in the nature of dents,bending,tearing,and staining to or of the Equipment or any part thereof;and(c)any other damage to the Equipment which is not considered ordinary and reasonable in the Equipment rental industry.Any repairs to the Equipment shall be made by Odyssey Power and in a manner which will not adversely affect the operation,manufacturer's design or value of the Equipment. Odyssey Power Rental Terms and Conditions Page 1 of 2 ODYSSEY _ 9.Rental period and calculation of charges.All Equipment rentals require a(48)month minimum rental period.Rental charges commence when the Equipment leaves the Odyssey Power Distribution Facility and end when the Equipment is returned thereto. For each monthly rental period exceeded,the Customer will be charged an additional rental period.TIME IS OF THE ESSENCE in this agreement. 10.Invoicing and Payment: Initial fees for Equipment rentals will be invoiced and paid prior to Equipment delivery.The fees for the Equipment rental will be billed by Odyssey Power to the Customer on a monthly basis during the agreement term. All fee payments or other payments that maybe due hereunder,are due thirty(30)days from date of invoice. Payments not received within thirty(30)days from date of invoice shall be subject to a late payment charge of one and one half percent(1 '/2%),or the maximum charge allowed by law. 11.Failure to deliver. Customer releases and discharges Odyssey Power from any and all liability or damages(including consequential and special damages) which might be caused by Odyssey Power's failure or inability to deliver any Equipment by any specified date or time. 12.Title/no purchase option/no liens.This agreement is not a contract of sale,and title to the Equipment shall at all times remain with Odyssey Power. Unless covered by a specific supplemental agreement signed by Odyssey Power,the Customer has no option or right to purchase the Equipment.Customer shall keep the Equipment free and clear of all mechanics and other liens and encumbrances. 13.Default.Should Customer in any way fail to perform,observe or keep any provision of this rental agreement,Odyssey Power may at its option do any one or more of the following:(a)terminate this agreement;(b)declare the entire rent amount immediately due and payable and commence legal action therefore; (c)retake possession of the Equipment,holding the Customer liable for all rental and other charges;or(d)pursue any other remedies available by law. 14.Repossession of Equipment. In the event of any actual or anticipatory breach by Customer,Odyssey Power's employees or agents may,without notice or legal process,go upon Customer's property and take all action reasonably necessary to repossess the Equipment.Customer waives all claims for damages and losses,physical or pecuniary,caused thereby,and shall pay all cost and expenses incurred by Odyssey Power in retaking the Equipment. 15.Customer's insurance coverage. Customer agrees to maintain and carry,at its sole cost,adequate liability,physical damage,public liability,property damage and casualty insurance extended coverage endorsement to cover any damage or liability arising from the handling,transportation,maintenance, operation or use of the Equipment during the entire rental period.When requested,Customer shall supply to Odyssey Power proof of such insurance by Certificate of Insurance clearly setting forth the coverage for the Equipment and naming Odyssey Power as loss payee and additional insured;such insurance and evidence thereof to be in amounts and form satisfactory to Odyssey Power.The Certificate of Insurance and policy shall provide that Odyssey Power shall receive not less than thirty(30)days notice prior to any cancellation of the insurance required hereunder. 16.Entire agreement/only agreement.This written agreement represents the entire agreement between the Customer and Odyssey Power.There are no oral or other representations or agreements not included herein.None of Odyssey Power's rights or Customer's rights may be changed and no extension of the terms of this agreement may be made except in writing,signed by both Odyssey Power and Customer.The use of Customer's purchase order number on this agreement is for Customer's Convenience only.This rental agreement supersedes any purchase order or other Customer provisions or forms whether sent to or received prior,or subsequent to this agreement. 17.No Assignment,Lending,or Subletting.Customer shall not sub-lease,sub-rent,assign or loan the Equipment,and any such action by Customer shall be void.Customer agrees to use and keep the Equipment at the job site set forth on the front page of this form unless Odyssey Power approves otherwise in writing. 18.Additional Provisions.Any failure of Odyssey Power to insist upon strict performance by Customer of any terms and conditions of this agreement shall not be construed as waiver of Odyssey Power's right to demand strict compliance.Customer has carefully reviewed this agreement and waives any principle of law which would construe any provision hereof against Odyssey Power as the draftsperson of this agreement. Customer agrees to pay all reasonable costs of collection,court,attorneys'fees and other expenses incurred by Odyssey Power in the collection of any charges due under this rental agreement or in connection with the enforcement of its terms. Customer shall pay the rental charge without any offsets or deductions of claims. The federal and state courts in the county in which the Odyssey Power Distribution Facility is located shall have exclusive jurisdiction over all matters relating to this agreement.Trial by jury is waived. Service of process may be effected by certified mail,return receipt requested.Odyssey Power shall be entitled to decrees of specific performance (without posting bond or other security)in addition to such other remedies as may be available. CRIMINAL WARNING:The use of false identification to obtain Equipment or the failure to return the Equipment by the Date Due In may be considered a theft subject to criminal prosecution pursuant to applicable criminal or penal code provisions. Odyssey Power Rental Terms and Conditions Page 2 of 2 ODYSSEY _ t CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Keith L. Kilmer, Chief of Police Subject: Resolution of the City of San Bernardino authorizing the purchase of a Dept: Police Department Managed Power Solution for the City of San Bernardino Police Department's Headquarters Date: January 27, 2011 facility from Odyssey Power Corp., of Anaheim, California. M/CC DATE: February 7, 2011 Synopsis of Previous Council Action: None. Recommended Motion: Adopt Resolution. l KEITH L. KIL.MER, Chief of Police 47 Concur:Ix Dept. -JTAW YOTSUYA,Interim IT Director Concur: Public Works Dept. ADEEM MAJAJ,Director Contact person: Public Safety IT Analyst II Michael Karschner Phone: 384-5743 Supporting data attached: Yes Staff Report/Resolution Ward: All FUNDING REQUIREMENTS: Amount: $ 152,684 Source: 001-210-5172-0000-0049 Finance Council tes: J7& 1-2- Agenda Item No.- 4 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subiect Resolution of the City of San Bernardino Authorizing the Purchase of a Managed Power Solution for the City of San Bernardino Police Department's Headquarters Facility from Odyssey Power Corp., of Anaheim, California. Backl4round Construction of the San Bernardino Police Department's current central headquarters facility was completed in 1994. At that time, a large Liebert uninterruptible power supply (UPS) was installed in the building. The Liebert UPS provided uninterrupted power to all the critical areas and devices (Public Safety Dispatch Center, Information Technology server rooms, Watch Commander terminal, etc.) during a loss of primary (commercial) power, until the on-site diesel generator started and assumed the power load. The Liebert UPS had a projected useful service life of ten to twelve years. The UPS has now been in continuous service for almost seventeen years—five years beyond its projected service life. The batteries have been reconditioned and replaced three times, and the UPS is moving into "parts unavailable" status. Failures of the UPS—including one in which the entire facility "went dark" (lost ALL power) for five minutes—are increasing in frequency. The UPS maintains its reliability only through dedicated and extraordinary servicing by Odyssey Power Corporation. Odyssey Power has offered a Managed Power Solution for purchase by the City. This Solution includes: removal and disposal of the existing Liebert UPS; installation of a modern Toshiba UPS; maintenance service; emergency coverage (guaranteed four-hour onsite response time); parts coverage; battery coverage (including replacement and disposal); and 24/7 technical support. The Solution would remain in effect for four years, at the end of which the Police Department could continue a monthly rental, renew four-year rental, upgrade equipment, purchase the existing equipment, or terminate the Solution and contract with another vendor. Financial Impact This purchase will require a total of$152,684 of General Fund monies over four years, with an initial payment of$39,296 required in February, 2011. The yearly cost breakdown is shown in Table 1. Calendar 2011 (FY 2010-11 Funds) $39,296 Calendar 2012 (FY 2011-12 Funds) $37,796 Calendar 2013 (FY 2012-13 Funds) $37,796 Calendar 2014 (FY 2013-14 Funds) $37,796 TOTAL $152,684 Table 1: Managed Power Solution Costs by Year Funds for this annual purchase order of $39,296 are appropriated in the Police Department General Fund FY 2010-11 budget account for equipment and maintenance (No. 001-210-5172- 0000-0049). Account: 001-210-5172-0000-0049 Budgeted Amount: $87,200 Balance as of 1/27/11: $59,716 Balance after approval of this item: $20,420 Please note this balance does not indicate available funding. It does not include non- encumbered reoccurring expenses, or expenses incurred but not yet processed. Recommendation Adopt Resolution. j.-MON., City of San Bernardino San Bernardino Police Department Interoffice Memorandum To: Charles McNeely, City Manager From: Michael Karschner, Public Safety IT Analyst II Subject: Purchase pursuant to Municipal Code Section 3. 04 . 010 (B) (3) Date: 26 January 2011 Copies: Keith L. Kilmer, Chief of Police Ronald C Garcia, Captain - Admin Svc Div Commander June Yotsuya, Interim Director of Information Technology The San Bernardino Police Department' s current headquarters facility was completed in 1994, and included a large Liebert uninterruptible power supply (UPS) . The UPS provides uninterrupted power to critical areas and devices (Public Safety Dispatch Center, IT server rooms, etc. ) during a loss of commercial power. The Liebert UPS has been in continuous service for seventeen years, five years beyond its useful service life, and is nearing "parts /OW unavailable" status . Failures of the UPS-including a five-minute, facility-wide loss of all power-are increasing in frequency. It is no longer cost-effective to attempt to maintain the Liebert system. Odyssey Power Corp. , of Anaheim, CA, has been the electrical power contractor servicing the Liebert system for over five years . It has offered a Managed Power Solution for purchase, which includes removal, disposal, and installation of equipment, and maintenance and technical support for four years, with renewal and upgrade options. In accordance with Department Director Letter (DDL) 82, the following information is presented as justification for permission to proceed with a selected-source purchase of Odyssey Power' s Managed Power Solution pursuant to SBMC Section 3.04 .010 (B) (3) : Odyssey Power has serviced the entire Police Department central headquarters facility, not just the UPS, for over five years . It is uniquely familiar with the facility' s power issues, especially regarding Public Safety requirements. It can immediately and continually provide quality service without the need for site- surveys or other costly, time-consuming information gathering. It is requested that this Managed Power Solution be purchased pursuant to San Bernardino Municipal Code Section 3. 04 .010 (B) (3) . Appr ed by: —�;wet4 Charles McNeely, City Manager CITY OF SAN BE RNARDINO — REQUEST FOR COUNCIL ACTION From: Keith L. Kilmer, Chief of Police Subject: Resolution of the City of San Bernardino authorizing the purchase of a Dept: Police Department Managed Power Solution for the City of San Bernardino Police Department's Headquarters Date: January 27, 2011 facility from Odyssey Power Corp., of Anaheim, California. M/CC DATE: February 7, 2011 Synopsis of Previous Council Action: None. Recommended Motion: Adopt Resolution. KEITH L. KI L.MER, Chief of Police zl Concur: I, Dept. - J YOTSUYA,Interim IT Director Concur: Public Works Dept. NADEEM MAJAJ,Director Contact person: Public Safety IT Analyst II Michael Karschner Phone: 384-5743 Supporting data attached: Yes Staff Report/Resolution Ward: All FUNDING REQUIREMENTS: Amount: $ 152,684 Source: 001-210-5172-0000-0049 Finance Council Notes: Agenda Item No.-1.2- Qa-07- 011 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report Subject Resolution of the City of San Bernardino Authorizing the Purchase of a Managed Power Solution for the City of San Bernardino Police Department's Headquarters Facility from Odyssey Power Corp., of Anaheim, California. Background Construction of the San Bernardino Police Department's current central headquarters facility was completed in 1994. At that time, a large Liebert uninterruptible power supply (UPS) was installed in the building. The Liebert UPS provided uninterrupted power to all the critical areas and devices (Public Safety Dispatch Center, Information Technology server rooms, Watch Commander terminal, etc.) during a loss of primary (commercial) power, until the on-site diesel generator started and assumed the power load. The Liebert UPS had a projected useful service life of ten to twelve years. The UPS has now been in continuous service for almost seventeen years—five years beyond its projected service life. The batteries have been reconditioned and replaced three times, and the UPS is moving into "parts unavailable" status. Failures of the UPS—including one in which the entire facility "went dark" (lost ALL power) for five minutes—are increasing in frequency. The UPS maintains its reliability only through dedicated and extraordinary servicing by Odyssey Power Corporation. Odyssey Power has offered a Managed Power Solution for purchase by the City. This Solution includes: removal and disposal of the existing Liebert UPS; installation of a modern Toshiba UPS; maintenance service; emergency coverage (guaranteed four-hour onsite response time); parts coverage; battery coverage (including replacement and disposal); and 24/7 technical support. The Solution would remain in effect for four years, at the end of which the Police Department could continue a monthly rental, renew four-year rental, upgrade equipment, purchase the existing equipment, or terminate the Solution and contract with another vendor. Financial Impact This purchase will require a total of$152,684 of General Fund monies over four years, with an initial payment of$39,296 required in February, 2011. The yearly cost breakdown is shown in Table 1. Calendar 2011 (FY 2010-11 Funds) $39,296 Calendar 2012 (FY 2011-12 Funds) $37,796 Calendar 2013 (FY 2012-13 Funds) $37,796 Calendar 2014 (FY 2013-14 Funds) $37,796 TOTAL $152,684 Table 1: Managed Power Solution Costs by Year 3 a 3 I Funds for this annual purchase order of $39,296 are appropriated in the Police Department General Fund FY 2010-11 budget account for equipment and maintenance (No. 001-210-5172- ! 0000-0049). Account: 001-210-5172-0000-0049 Budgeted Amount: $87,200 Balance as of 1/27/11: $59,716 Balance after approval of this item: $20,420 Please note this balance does not indicate available funding. It does not include non- encumbered reoccurring expenses, or expenses incurred but not yet processed. 1 Recommendation Adopt Resolution. City of San Bernardino San Bernardino Police Department Interoffice Memorandum To: Charles McNeely, City Manager From: Michael Karschner, Public Safety IT Analyst II Subject: Purchase pursuant to Municipal Code Section 3. 04 . 010 (B) (3) Date: 26 January 2011 Copies : Keith L. Kilmer, Chief of Police Ronald C Garcia, Captain - Admin Svc Div Commander June Yotsuya, Interim Director of Information Technology The San Bernardino Police Department' s current headquarters facility was completed in 1994, and included a large Liebert uninterruptible power supply (UPS) . The UPS provides uninterrupted power to critical areas and devices (Public Safety Dispatch Center, IT server rooms, etc. ) during a loss of commercial power. The Liebert UPS has been in continuous service for seventeen years, five years beyond its useful service life, and is nearing "parts unavailable" status. Failures of the UPS—including a five-minute, facility-wide loss of all power—are increasing in frequency. It is no longer cost-effective to attempt to maintain the Liebert system. Odyssey Power Corp. , of Anaheim, CA, has been the electrical power contractor servicing the Liebert system for over five years . It has offered a Managed Power Solution for purchase, which includes removal, disposal, and installation of equipment, and maintenance and technical support for four years, with renewal and upgrade options . In accordance with Department Director Letter (DDL) 82, the following information is presented as justification for permission to proceed with a selected-source purchase of Odyssey Power' s Managed Power Solution pursuant to SBMC Section 3.04 . 010 (B) (3) : Odyssey Power has serviced the entire Police Department central headquarters facility, not just the UPS, for over five years. It is uniquely familiar with the facility' s power issues, especially regarding Public Safety requirements . It can immediately and continually provide quality service without the need for site- surveys or other costly, time-consuming information gathering. It is requested that this Managed Power Solution be purchased pursuant to San Bernardino Municipal Code Section 3. 04 . 010 (B) (3) . Appr ed by: ,6 11,t, _hla -a AJ Charles McNeely, City Manager 1 RESOLUTION NO. 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE 3 PURCHASE OF A MANAGED POWER SOLUTION FOR THE CITY OF SAN BERNARDINO POLICE DEPARTMENT'S HEADQUARTERS FACILITY FROM 4 ODYSSEY POWER CORP., OF ANAHEIM, CALIFORNIA. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 6 CITY OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. That after a review of products, pricing, and existing infrastructure, 8 9 Odyssey Power Corp., of Anaheim, California, is the recommended provider for the purchase 10 of a Police Facility Managed Power Solution to be used by the San Bernardino Police 11 Department and that pursuant to San Bernardino Municipal Code 3.04.010(b)(3), the Mayor 12 and Common Council approve a selected source justification for this purchase. 13 SECTION 2. That the Mayor and Common Council authorize the purchasing 14 manager to issue a Purchase Order to Odyssey Power Corp., of Anaheim, California, for the 15 16 purchase of a Managed Power Solution for the Police Department's central headquarters 17 facility as outlined in Odyssey Power Corporation's quote # OPCQ9123 (See Exhibit "A"), in 18 an amount not to exceed $39,296. The Purchase Order shall read, "San Bernardino Police 19 Department Managed Power Rental Program Year One Lease." 20 SECTION 3. That the authorization to issue the Purchase Order referenced in Section 21 2 of this Resolution is rescinded if the purchase order is not issued within forty-five (45) days 22 of the passage of this Resolution. 23 24 25 26 n 27 �l`Z1 28 1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE PURCHASE OF A MANAGED POWER SOLUTION FOR THE CITY OF SAN 2 BERNARDINO POLICE DEPARTMENT'S HEADQUARTERS FACILITY FROM 3 ODYSSEY POWER CORP., OF ANAHEIM, CALIFORNIA. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 5 and Common Council of the City of San Bernardino at a meeting thereof, held 6 on the day of , 2011, by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 MARQUEZ 9 DESJARDINS 10 11 BRINKER 12 SHORETT 13 KELLEY 14 JOHNSON 15 MCCAMMACK 16 17 Rachel G. Clark, City Clerk 18 The foregoing Resolution is hereby approved this day of , 2011. 19 20 Patrick J. Morris, Mayor 21 City of San Bernardino 22 Approved as to Form: 23 24 James F. Penman, City Attorney 25 26 27 28 I E I City of San Bernardino San Bernardino Police Department Interoffice Memorandum To: Charles McNeely, City Manager From: Michael Karschner, Public Safety IT Analyst II Subject: Purchase pursuant to Municipal Code Section 3. 04 . 010 (B) (3) Date: 13 December 2010 Copies : Keith L. Kilmer, Chief of Police Ronald C Garcia, Captain - Admin Svc Div Commander June Yotsuya, Interim Director of Information Technology The San Bernardino Police Department' s current headquarters facility was completed in 1994, and included a large Liebert uninterruptible power supply (UPS) . The UPS provides uninterrupted power to critical areas and devices (Public Safety Dispatch Center, IT server rooms, etc. ) during a loss of commercial power. The Liebert UPS has been in continuous service for seventeen years, five years beyond its useful service life, and is nearing "parts unavailable" status . Failures of the UPS — including a five-minute, facility - wide loss of all power—are increasing in frequency. It is no longer cost-effective to attempt to maintain the Liebert system. Odyssey Power Corp. , of Anaheim, CA, has been the electrical power contractor servicing the Liebert system for over five years. It has offered a Managed Power Solution for purchase, which includes removal, disposal, and installation of equipment, and maintenance and technical support for four years, with renewal and upgrade options. In accordance with Department Director Letter (DDL) 82, the following information is presented as justification for permission to proceed with a selected-source purchase of Odyssey Power' s Managed Power Solution pursuant to SBMC Section 3.04 .010 (B) (3) : Odyssey Power has serviced the entire Police Department central headquarters facility, not just the UPS, for over five years. It is uniquely familiar with the facility' s power issues, especially regarding Public Safety requirements . It can immediately and continually provide quality service without the need for site- surveys or other costly, time-consuming information gathering. It is requested that this Managed Power Solution be purchased pursuant to San Bernardino Municipal Code Section 3. 04 . 010 (B) (3) . Approved by: Charles McNeely, City Manager Exhibit "A" ODYSSEYeoPOWER QUOTE FOR EQUIPMENT License 793476 Date Quote# 12/07/10 OPCQ9123 Sold To: Equipment Location: San Bernardino Police San Bernardino Police Mike Eckley Jason Suarez 300 N. "D"St. 300 N. "D" St. San Bernardino, CA 92401 San Bernardino, CA 92401 Phone: (909)384-5673 Phone: (951)312-8705 E-mail: Mike.Eckley @sbcity.org E-mail: Suarez is @sbcity.org We are pleased to submit the following quotation subject to the terms and conditions on the following page hereof. It is understood that if acceptance of this proposal is acknowledged on the buyer's purchase order, such acceptance will be subject to the terms and conditions of this proposal with the same force and effect as though they were included on the buyers purchase order. MODEL QTY . PRICE System Option 1: Toshiba 80kVA G9000 UPS Equipment and Installation 1 T90S3SO8KS6XSN Toshiba 80kVA G9000 Series UPS - Base unit 480v Input -480v Alternate Input -480v Output (No Transformer) - Dimensions(LxWxH): 27.6 x 32.8 x 80.6 -Weight: 880 lbs. 1 T90-08KO16EN-VC Toshiba Battery System - Provides 16 minutes of battery run time at 64kW 180kVA output load - Breaker: 200 amp - Dimensions (LxWxH): 40 x 29.5 x 78.7 -Weight: 3,071 lbs. 1 T90CABLECAB Toshiba Slim Cable Landing Cabinet - Empty, narrow cabinet with top, bottom, and both-sides cable entry/exit - Facilitates Top and Bottom cable entry/exit when no MBS is used - Line up and color match for G9000 1 RMTI-EXT-R4 Toshiba RemotEye II Communications Kit 1 UPSSTARTUP080G9 Toshiba Factory Start Up Services 1 AFTERHOURSSRV Toshiba After Hours Start Up Adder 1 FRHT Freight Charge 1 ELCSVC_LBR Electrical Installation - Scope of Work 1 ELCSVC_MTL Electrical Installation - Materials 4 80DIA_48 Diamond Level Coverage Maintenance Service Maintenance visit(s) scheduled at customer's convenience, excluding Sundays and holidays Quote# OPCQ9123 Northern CA Office:2880 Zanker Rd Suite 203 San Jose. CA 95134-toll free 800 676 4646-fax 800 809 1993 QTY MODEL • Emergency Coverage Emergency on call service available 24/7 Includes labor for service calls Includes labor for remedial repairs Guaranteed 4 hours onsite response time Parts Coverage Includes parts for remedial repairs Battery Coverage 100% coverage of batteries per battery string, as needed Includes replacement and disposal Technical Support 24/7 technical phone support Exclusions Service calls and repairs associated with equipment load values exceeding 80% Service calls and repairs associated with prior recommendations not adequately corrected by customer (Equipment failures caused by natural disasters, water damage, fires, customer negligence, and riots are not covered under the maintenance agreement and will be charged to customer based on prevailing T&M rates) 4 WPTL Web Portal Access SubTotal $101,450.50 System Option 1: Managed Power Rental Program Includes list of Critical Power Equipment, Installation and Services 1 RENTAL Annual Rental Rate (Based on 4 year term) $34,675.20 1 TAX Annual Sales Tax (Based on 4 year term) $3,120.76 1 PROCESSING Processing Fee (One time fee included in initial payment) $1,500.00 1 INITIAL Initial Payment(first month, last month and processing fee) $39,295.90 System Option 2: Toshiba 80kVA 4200 Series UPS Equipment and Installation 1 T42F3F800FAXXN Toshiba 4200 Series 80kVA UPS - Input/Output Voltage: 208/208-120 -Output Rating: 50kVA - Internal Maintenance Bypass - Dimensions(WxDxH): 44"x 31"x 74" -Weight: 1,560 lbs. 1 T42-800016EN-VC Toshiba External Battery Cabinet - Provides 16 minutes of battery run time at full rated load. - Dimensions(WxDxH): 36"x 29.5"x 70.7" -Weight: 3,131 lbs. 1 RMTI-EXT-R4 Toshiba RemotEye II Communications Kit 1 UPSSTARTUP080 Quote# OPCQ9123 Corporate Office:625 N Shepard St Anaheim, CA 92806-toll free 800 675 4545-tel 714 575 5010-fax 714 630 6901 www.odysseypower.com Northern CA Office:2880 Zanker Rd Suite 203 San Jose. CA 96134-toll free 800 676 4545-fax 800 809 1993 QTY •r EL DESCRIPTION EXT. PRICE Toshiba Factory Start Up Service 1 AFTERHOURSSRV Toshiba After Hours Start Up Adder 1 FRHT Freight 1 ELCSVC_LBR Electrical Installation - Scope of Work -Transfer load to Maintenance Bypass - Shutdown critical load - Move Critical load feeder to UPS input Feeder - Restart critical load - Removal and disposal of existing UPS and Battery Cabinet -Set in place and anchor new 80KVA UPS and Battery cabinet - Install new UPS Input breaker - Install UPS 208V input and output circuits - Install battery power and control circuits. -Shutdown critical load -Cutover critical load to new UPS output feeder - Restart Critical Load Note: Does not include costs for permits, which can be included and charged on a time and material basis. 1 ELCSVC_MTL Electrical Installation - Materials 4 80DIA_48 Diamond Level Coverage Maintenance Service Maintenance visit(s) scheduled at customer's convenience, excluding Sundays and holidays Emergency Coverage Emergency on call service available 24/7 Includes labor for service calls Includes labor for remedial repairs Guaranteed 4 hours onsite response time Parts Coverage Includes parts for remedial repairs Battery Coverage 100% coverage of batteries per battery string, as needed Includes replacement and disposal Technical Support 24/7 technical phone support Exclusions Service calls and repairs associated with equipment load values exceeding 80% Service calls and repairs associated with prior recommendations not adequately corrected by customer (Equipment failures caused by natural disasters, water damage, fires, customer negligence, and riots are not covered under the maintenance agreement and will be charged to customer based on prevailing T&M rates) 4 WPTL Web Portal Access SubTotal $99,453.85 Quote# OPCQ9123 Corporate Office:625 N Shepard St Anaheim, CA 92806-toll free 800 675 4645-tel 714 575 5010-fax 714 630 6901 -www.odysseypower.com Northern CA •" 2880 Zanker Rd Suite 203 + 95134 - 800 800 809 QTY •D DESCRIPTION System Option 2: Managed Power Rental Program Includes list of Critical Power Equipment, Installation and Services 1 RENTAL Annual Rental Rate (Based on 4 year term) $33,992.70 1 TAX Annual Sales Tax (Based on 4 year term) $3,059.34 1 PROCESSING Processing Fee (One time fee included in initial payment) $1,500.00 1 INITIAL Initial Payment (first month, last month and processing fee) $38,552.10 End of Term Options -Termination: Customer to provide free and clear access to Odyssey Power for the equipment de-installation and removal. -Month-to-Month: Customer to continue rental program on a monthly basis until further notice provided by Customer. -Renewal: Customer renews rental agreement for an additional(48)month term. Major consumable items will be replaced to ensure equipment reliability. Equipment remains covered under diamond level maintenance plan for the entire term. Customer receives a 50% reduction in monthly rate during renewal term. -New: Existing equipment is de-installed and removed from site by Odyssey Power. Customer option to rent new equipment based upon a new monthly rate. -Purchase: Existing equipment may be purchased at the end of rental term. Exclusive Agreement Terms and Conditions 1. Equipment and Services Description: See Bill of Material and Services listed above for which RENTER shall pay Odyssey Power the monthly rental fee listed above and any applicable state or local sales tax. RENTER agrees to rent the subject equipment for minimum of(48)months. To start rent requires FIRST MONTH, LAST MONTH and PROCESSING fees in advance, plus any applicable taxes. Early Termination Fee will be charged in the event the RENTER terminates the agreement before the end of the agreement term. 2.Title remains with Odyssey Power at all times. RENTER shall not remove, conceal, or otherwise interfere with the title or the Odyssey Power ownership plate affixed to the equipment until and unless equipment has been purchased from Odyssey Power and Odyssey Power has received full payment for the same. 3. RENTER agrees to keep the above described equipment free of all liens, levies and encumbrances. RENTER shall not sell, assign or attempt to sell or assign equipment or any interest therein. 4. It is the RENTER'S responsibility to return equipment to Odyssey Power in the same condition it was received, normal wear and tear excepted. Odyssey Power will charge RENTER the current replacement cost of any manuals, cables, and/or other accessories which are not returned with the rented unit(s). RENTER is responsible for any loss or damage to the subject equipment for any reason including, but not limited to,theft, mysterious disappearance, flood, explosion and fire. If RENTER is unable to return any of the equipment or accessories to Odyssey Power for any reason, RENTER agrees to pay Odyssey Power the current replacement cost. RENTER is responsible for all monthly rental charges from the original date of shipment until all of the subject equipment has been returned to Odyssey Power. 5. In the event RENTER defaults in any of the terms or conditions of this agreement, Odyssey Power shall be entitled to the immediate possession of the subject equipment and RENTER allows Odyssey Power permission to enter the premises without prior notice and without breach or peace, to take possession of the subject equipment. 6. RENTER hereby assumes all responsibility for all and any damages to any person or property arising from the location, condition, or use of equipment, whether in operation or not, and growing out of any cause, including alleged imperfect or defective equipment. RENTER indemnifies Odyssey Power of and from all liability during the term of this agreement or arising while the subject equipment is in the possession of the RENTER. 7. RENTER shall pay Odyssey Power all costs and expenses, including reasonable attorney's fees, incurred by Odyssey Power in exercising any of its rights and remedies with regard to the rental of the subject equipment or the enforcement of any of these terms and conditions. 8. This contract contains all of the terms and conditions of this rental agreement. No oral statements, proposals or other agreements shall be binding on either of the parties hereto. 9.Attorneys'Fees. If any arbitration, litigation, action, suit or other proceeding is instituted to remedy, prevent or obtain relief from a breach of this Agreement, in relation to a breach of this Agreement or pertaining to a declaration of rights under this Agreement,the prevailing party will recover all such party's attorneys'fees incurred in each and every such action, suit or other proceeding, including any and all appeals or petitions. As used in this Agreement, attorneys'fees will be deemed to be the full and actual cost of any legal services actually performed in connection with the matters involved, including those related to any appeal or the enforcement of any Quote# OPCQ9123 Corporate O" •. • St Anaheim, + 92806*toll free 711 5010 1 691 1 -www.odysseypower.com Northern + O" 2880 Zanker Rd Suite 203 Jose. • 800. 800 809 judgment, calculated on the basis of the usual fee charged by attorneys performing such services, and will not be limited to"reasonable attorneys'fees"as defined in any statute or rule of court. 10. Late Charges/Interest Fees. RENTER shall pay a late charge of one and one-half percent(1 1/2%)per month on all amounts not paid when due. Late charges shall be included in the monthly statement and become part of the principal obligation due Odyssey Power. Pricing Terms: Honored for 60 days from date above Payment Terms: Net 30(Subject to credit approval) Agreement Term: 48 months All Odyssey Power Terms and Conditions shall apply By signing below the authorized agents acknowledge that each has read and does accept all the terms and conditions or this rental agreement. Date Of Acceptance Sales Rep. Dennis Gee Customer Name Title Regional Account Manager Customer Signature Purchase Order Quote# OPCQ9123 Corporate Office:625 N Shepard St Anaheim, CA 92806-toll free 800 675 4545*tel 714 676 6010-fax 714 630 6901 -wvvw.odysseypower.com Northern CA Office:2880 Zanker Rd Suite 203 San Jose, CA 95134-toll free 800 675 4545-fax 800 809 1993 I r 4 Odyssey Power Equipment Terms and Conditions Odyssey Power Corporation is herein referred to as"Seller".The person or entity purchasing goods("Goods")and/or licensing software or firmware, which is preloaded or to be loaded into Goods("Software"),is herein referred to as"Buyer." 1.ORDER ACCEPTANCE:No order issued by Buyer to Seller shall be binding on Seller unless Seller manifests its acceptance of such order either in writing or by commencement of performance hereunder.Seller reserves the right,at its sole discretion,to refuse orders.Seller's acceptance of Buyer's order shall constitute a binding agreement between Buyer and Seller and is expressly conditioned on Buyer consent to the terms and conditions set forth herein as being the complete and exclusive statement of terms governing the sale/license of Goods and Software.Changes or additions stated by Buyer in its order or otherwise are specifically rejected by Seller and shall be binding upon Seller only if expressly agreed to in writing signed by Seller. Buyer acceptance of the Goods and/or Software will further manifest Buyer's consent to Seller Terms and Conditions of Sale. 2.ITEMS PURCHASED:Goods and/or Software purchased and to be provided hereunder,unless otherwise agreed in writing by Seller,will be Seller's standard Goods and/or Software as specified in Seller's quotation or acknowledgment.Goods provided to Buyer may include Software incorporated in or provided separately for use with the Goods.Software title is reserved in Seller and Seller grants Buyer a non-exclusive,royalty free license solely for Buyer's use of the Software with the Goods provided. 3.TOOLING:Tool,die and pattern charges,if any,are in addition to the price of the Goods and are due and payable upon completion of the tooling.All tools,dies and patterns shall be and remain the property of Seller.Charges for tools,dies and patterns do not convey to Buyer,title,ownership interests in,or rights to possession or removal,nor prevent their use by Seller for other purchasers,except as otherwise expressly provided by Seller and Buyer in writing. 4.INSPECTION/TESTING/ACCEPTANCE:Buyer,at its expense,may observe the inspection and testing of the Goods upon agreement with Seller.All inspection and testing shall be in accordance with seller's specifications and standards and shall be conducted at Seller's plant before shipment of the Goods.Any claim of non-conforming Goods must be made promptly before shipment. If Buyer does not inspect the Goods at Seller's plant as provided herein,Buyer shall have ten(10)days from the date of delivery to verify receipt of conforming Goods and Software.Buyer must give written notice to Seller within ten(10)days of delivery of the Goods and Software stating why the Goods and Software are not conforming or such basis for rejection shall be deemed waived and Buyer shall be deemed to have unqualifiedly accepted the Goods. 5.RETURNED GOODS: Except as may be otherwise provided with respect to warranty returns,advance written permission to return rejected Goods must be obtained from Seller.Such Goods must be new,unused,of current manufacture and free of all liens or other claims.Goods must be shipped freight prepaid to Seller.Goods returned without the prior written permission of Seller,will not be accepted by Seller.Seller reserves the right to inspect Goods prior to authorizing their return.Upon receipt of the returned Goods,Seller will issue credit to Buyer in an amount equal to the billing price or current price of the Goods,whichever is lower,from which will be deducted an inspection and repacking charge and the cost of any reconditioning. 6.SHIPMENT/DELIVERY:Buyer acknowledges that Seller's shipping dates are estimates and are subject to change by Seller upon written notice to Buyer.Unless otherwise agreed to in writing by Seller,delivery terms shall be F.O.B.Seller's shipping point.Seller reserves the right to make partial shipments.Risk of loss or damage and responsibility to insure shall pass from Seller to Buyer upon delivery to a carrier for shipment to Buyer.Any claims for shortages or damages suffered in transit are the responsibility of Buyer and shall be submitted by Buyer directly to the carrier.Shortages and/or damages must be acknowledged and signed for at the time of delivery.If Goods are held by Seller for Buyer at Buyer's request,or due to Buyer's failure to supply shipping instructions,Seller may invoice Buyer for the full purchase price of the Goods and Buyer agrees to make payment.Goods held for Buyer by Seller,for whatever reason,are held at Buyer's risk and Buyer shall reimburse Seller for any insurance,storage or other costs incurred by Seller. 7.PRICES:Unless otherwise agreed in writing by Seller,prices for Goods are F.O.B.Seller's shipping point with no discount.Prices quoted by Seller shall remain in effect for the period stated in Seller's quotation or acknowledgment,or,if none stated,thirty(30)days after the date of same. If Seller does not receive,within such time period,an unconditional authorization from Buyer to ship Goods,Seller shall have the option to change the price for such Goods to that prevailing at the time of shipment. Prices and license fees do not include installation,freight,handling,hoisting,rigging,insurance or storage charges,unless otherwise agreed by Seller in writing. Prices and license fees also do not include taxes or duties imposed on the manufacture, sale,delivery or use of the Goods;such assessments are for Buyer's account and Seller will add such assessments to the price stated absent Seller receipt of Buyer's proper exemption certificate. 8.PAYMENT/SECURITY INTEREST:Payment is due in U.S.currency net thirty(30)days from date of Seller invoice,time being of the essence.Any payment not made when due shall be subject to an interest charge at the maximum rate permitted by Statute. Partial shipments of Goods will be invoiced and are payable as they occur in accordance with these terms.Buyer hereby grants Seller a security interest in the Goods,Software,and products,additions,replacement,proceeds and receivables there from and agrees to execute a financing statement confirming such interest upon Seller request.Seller may preserve its interests in payment by enforcing any applicable mechanic's,construction or similar lien rights,or demanding different terms of payment including,but not limited to,advance cash payment,whenever it appears to Seller that circumstances require such measures. Buyer agrees to take all measures necessary to comply with any new payment terms imposed by Seller. If Buyer fails to comply with payment terms,Seller may elect to terminate this Agreement or suspend performance under this or other agreements with Buyer and:(a)with or without legal process and using such force as may be lawful and necessary,enter into or upon the premises where the Goods are located and take possession of them(b)cancel all warranties herein and(c)pursue any additional remedies provided by law. Buyer shall be liable to Seller for all expenses,including reasonable attorney's fees,relating to the collection of past due amounts. 9.DELAYS:Seller shall not be liable or responsible for cost,expense or damage due to non-performance or a delay in performance where such non- performance or delay is due to causes beyond its reasonable control,including,but not limited to,natural disasters,acts of government,power failure, fire,flood,acts of God,labor disputes,riots,acts of war,epidemics,or material and transportation shortages. Deliveries of Goods and/or Software or other Seller performance may be suspended for an appropriate period of time or canceled by Seller upon notice to Buyer of the foregoing,but other Buyer and Seller performance hereunder shall otherwise remain unaffected. Odyssey Power Corporation Equipment Terms and Conditions Page 1 of 3 ODYSSEY C If Seller determines that its ability to supply the total demand of Goods or to obtain material used in the manufacture of Goods is hindered,limited or made impracticable due to causes set forth in the preceding paragraph,Seller may allocate its available supply of Goods or material among its buyers on such basis as Seller determines to be equitable without liability to Buyer for any failure of performance which may result there from. 10. LIMITED WARRANTY:Seller's standard warranty applicable to the Goods purchased provided to Buyer at the time of purchase of Goods,is the only warranty applicable to the sale of Seller's Goods and its terms,conditions and limitations are incorporated by reference herein.Only a writing signed by a duly authorized officer of Seller may modify seller's warranty.Buyer assumes all other responsibility for any loss,damage or injury to persons or property arising out of,connected with,or resulting from the installation or use of Goods,either alone or in combination with other goods whether supplied by Seller or otherwise.Buyer acknowledges that any technical advice furnished by Seller with respect to the use of the Goods is given without charge and Seller assumes no obligation or liability to Buyer for the advice given or results obtained;all such advice is given by Seller and accepted by Buyer at Buyer's risk. SELLER'S WARRANTY EXTENDS ONLY TO PURCHASERS WHO BUY FOR INDUSTRIAL OR COMMERCIAL USE. SELLER'S WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES,EXPRESS OR IMPLIED,INCLUDING,WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,WHETHER OR NOT THE PURPOSE OR USE OF THE GOODS HAS BEEN DISCLOSED TO SELLER IN SPECIFICATIONS,DRAWINGS,OR OTHERWISE AND WHETHER OR NOT THE GOODS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER'S USE OR PURPOSE. Seller's warranty obligations are conditioned upon timely receipt of all payments in accordance with the payment terms specified herein.During the period any amounts are overdue from Buyer,Seller shall have no obligations under this warranty.The warranty expiration date shall not be extended upon payment of the overdue amount.To the extent that Seller has relied upon any Buyer specifications,information,representations,or other data in the selection or design of Goods for Buyer,or the preparation of Seller's quotation,and conditions arise that are at variance with Buyer's representations,Seller's warranty and other provisions herein which are affected by such conditions shall be null and void. 11. PATENTS AND COPYRIGHTS:Seller warrants that any Goods provided hereunder do not infringe upon any valid U.S.patent or copyright in existence on the date of shipment.Seller will defend at its expense any action brought against Buyer to the extent it is based on a claim the Goods supplied by Seller infringe a valid United States patent or copyright.Seller will pay those costs and damages finally awarded against Buyer in any such claim,but such defense and payments are conditioned upon the following: (a)Seller shall be notified promptly in writing by Buyer of any notice of such claim;and(b)Seller shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise;and(c)should the Goods or the operation thereof become or,in Seller's opinion be likely to become,the subject of a claim of infringement of a valid United States patent or copyright,Buyer shall permit Seller,at Seller's option and expense to:(i)procure for Buyer the right to continue using the Goods,(ii)replace or modify the Goods so they become non-infringing,or(iii)grant Buyer a credit for such Goods,as depreciated,and accept return of same.Depreciation shall be calculated by Seller as an equal amount per year over the life of the Goods.(iv)cancel future deliveries of Goods without liability to Buyer. Seller shall have no liability to Buyer with respect to any claim of patent and/or copyright infringement based upon:(a)Combination or utilization of Goods or Software furnished under this Agreement with equipment,devices,or Software not manufactured by Seller;or(b)the modification by Buyer of Goods or Software furnished under this Agreement;or(c)Seller compliance with Buyer's design specifications. The foregoing states the entire liability of Seller with respect to infringement of patents or copyrights. 12. LIMITATION OF LIABILITY/CONSEQUENTIAL DAMAGES: IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR(A)DAMAGES IN EXCESS OF THE PURCHASE PRICE PAID FOR THE GOODS OR(B)INDIRECT,SPECIAL, INCIDENTAL,PUNITIVE,OR ECONOMIC CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER INCLUDING WITHOUT LIMITATION,LOSS OF USE, DATA,PROFIT,OR REVENUE, OR LOSS OR DAMAGE TO PROPERTY OR EQUIPMENT,OR OTHER ECONOMIC LOSS INCURRED BY BUYER AS A RESULT OF SELLER'S PERFORMANCE OR CANCELLATION OF THIS AGREEMENT,WHETHER ANY CLAIM IS BASED UPON THEORIES OF INFRINGEMENT, WARRANTY,CONTRACT, NEGLIGENCE,STRICT LIABILITY,TORT OR OTHERWISE,EVEN IF SELLER HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. 13.LIMITATION OF REMEDY:SECTION 10(WARRANTY),SECTION 11 (PATENTS AND COPYRIGHTS)AND SECTION 12(LIMITATION OF LIABILITY/CONSEQUENTIAL DAMAGES)PROVIDE BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTIES. 14.CHANGES:Seller reserves the right to make any changes in the model and design of its Goods and/or Software without obligation to similarly alter Goods and/or Software previously sold.Buyer may,in writing,within the scope of the accepted order,request changes in the established specifications or delivery schedules. If Seller agrees to such changes and these changes alter the amount due under the purchase order or the time required for performance hereunder,the price of Goods ordered,any license fees and/or the time for performance shall be equitably adjusted. 15.CANCELLATION:This Agreement or any part of it is subject to cancellation by Seller if the conditions specified herein are not met by Buyer or if Buyer becomes insolvent or bankrupt. In the event of cancellation for this reason Seller is under no obligation to pay Buyer for any expenses,costs, claims,or liabilities incurred and Seller may retain any portion of the purchase price pre-paid by Buyer as liquidated damages.Seller retains all rights to any other legal remedies it may have against Buyer.Buyer may cancel orders herein only upon reasonable advance written notice to Seller and upon payment to Seller of Seller's cancellation charges,which include all costs and expenses incurred by Seller in the course of performance herein and amounts adequate to cover any commitments made by Seller and Seller's anticipated profit on the sale of the Goods. 16. DRAWINGS/DOCUMENTATION:Seller's prints or drawings(and the technology depicted)which are furnished to Buyer in connection with this Agreement are the property of Seller and Seller retains all patent,copyright and other rights,including,without limitation,exclusive rights of use,license, or sale.Buyer's possession of such prints or drawings does not grant Buyer any rights or license,express or implied therein and Buyer shall,upon Seller request,return immediately all copies of such prints or drawings to Seller. 17. EXPORT:Each party hereby agrees to comply with all export laws and restrictions and regulations of the Department of Commerce or other United States or foreign agency or authority and not to export or allow the export or re-export of any Goods to be supplied hereunder in violation of any such restrictions,laws or regulations,or without all required licenses and authorizations.Buyer acknowledges that Seller's quote on Goods ordered hereunder Odyssey Power Corporation Equipment Terms and Conditions Page 2 of 3 ODYSSEY 1133..'1 is subject to Buyer obtaining any required license or authorization at time of shipment and Buyer agrees that Seller shall incur no liability to Buyer if such license or authorization is unavailable. 18. NUCLEAR/MEDICAL AND DENTAL:GOODS SOLD HEREUNDER ARE NOT FOR USE IN ANY NUCLEAR AND RELATED APPLICATIONS. GOODS SOLD HEREUNDER ARE ALSO NOT FOR USE IN ANY LIFE SUPPORT,PATIENT-CONNECTED,OR APPLIED MEDICAL AND DENTAL APPLICATIONS.Buyer accepts Goods with the foregoing understanding,agrees to communicate the same in writing to any subsequent purchasers or user and to defend,indemnify,and hold harmless Seller from any claims,losses,suits,judgments and damages, including incidental and consequential damages,arising from such use,whether the cause of action be based in tort,contract or otherwise, including allegations that the Seller's liability is based on negligence or strict liability. 19.APPLICABLE LAW/VENUE:This Agreement shall be governed by and performance construed in accordance with the domestic laws and Uniform Commercial Code as adopted in the State of California,without reference to its choice or conflict of laws principles.The parties agree that the proper venue for all actions arising in connection herewith shall be only in California and the parties agree to submit to such jurisdiction. For non-domestic sales,the parties mutually agree that the rights and obligations of the parties herein shall be determined without reference to the provisions of the 1980 U.N.Convention on Contracts for the International Sale of Goods,as amended. 20.SEVERABILITY:If any section or part of this Agreement is or becomes illegal,unenforceable or invalid then the aforementioned part or section shall be struck from this Agreement and shall not affect the remaining parts or sections except to the extent necessary to prevent a clearly inequitable result. 21.ASSIGNMENT/DELEGATION: Buyer shall not assign any rights or delegate any duties hereunder without the prior written permission of Seller. Any assignment or delegation without such permission shall be void. 22.MODIFICATIONS/WAIVER:No proposed conditions,usage of trade,course of dealing or performance,or agreement asserted or purported to modify,change,waive,or supplement this Agreement's provisions or the Seller's quotes,acknowledgements,or documents referenced herein shall be applicable to this Agreement unless in writing and signed by a duly authorized associate of Seller. No other Seller associate or representative is authorized to alter the terms of this Agreement. 23. FINAL AND COMPLETE AGREEMENT:These terms and conditions,any software licensing agreement and other documents referenced herein, and any Seller quotation or acknowledgment and documents specifically referenced therein,represent the final and complete Agreement between the parties with respect to the sale of Goods and/or license of Software and supersede all prior or contemporaneous oral or written communications, representations,understandings or agreements relating to this subject matter. Odyssey Power Corporation Equipment Terms and Conditions Page 3 of 3 ODYSSEY :73 ER I Odyssey Power Rental Terms and Conditions 1.DEFINITIONS."Equipment"means any one or more of the items identified as such on the first page of this agreement,and shall include any accessories,attachments or other similar items delivered to Customer."Customer"means the person or entity identified as such on the first page of this agreement,including any representative,agent,officer or employee thereof. 2.Authority to sign.Any individual signing this contract represents and warrants that he or she is of legal age,and has the authority and power to sign this rental agreement as or for the Customer. 3.Indemnity/hold harmless/damages.Customer acknowledges and assumes all risks inherent in the operation and use of the Equipment by Customer,and will take all necessary precaution to protect all persons and property from injury or damage while in possession of the Equipment. Odyssey Power shall not be responsible to Customer or to any other party for any loss,damage,or injury(including any loss of profits,business interruption or other special or consequential damages)caused by,resulting from,or in any way connected with the Equipment,its operation or use,or any defect with respect thereto.Customer agrees to defend,indemnify and hold Odyssey Power harmless from and against any and all liability,claims and damages of any kind(including attorney's fees)for injuries or death to persons and damage to property arising out of the use,maintenance, instruction,operation,possession,ownership or rental of the Equipment,however caused. 4.Receipt and inspection of Equipment.Customer acknowledges that Customer has inspected the Equipment prior to taking possession thereof, finds it in good working order and repair,and suitable for Customer's needs.Customer is familiar with the proper operation and use of each item of Equipment. 5.Use of Equipment.Customer will not use or allow anyone to use the Equipment:(a)for an illegal purpose or in an illegal manner,(b)without a license,if required under any applicable law,or(c)who is not qualified to operate it.Customer agrees,at Customer's sole expense,to comply with all applicable municipal,state,and federal laws,ordinances and regulations(including O.S.H.A.)which may apply to the use of the Equipment.Customer agrees to visually inspect the Equipment daily and to immediately notify Odyssey Power when Equipment is found to be not properly working while in Customer's possession. 6.Malfunctioning Equipment.Should the Equipment become unsafe,malfunction or require repair,Customer shall immediately notify Odyssey Power. If such condition is the result of normal operation,Odyssey Power will repair the Equipment.Odyssey Power has no obligation to replace Equipment rendered inoperable by misuse,abuse or neglect.Any necessary repairs caused by misuse,abuse or neglect will be performed by Odyssey Power and charged at then prevailing time and material rates. Customer understands and agrees that all Equipment repairs must be performed by an Odyssey Power service representative or an Odyssey Power approved partner. 7.Return of Equipment,damaged and lost Equipment.At the expiration of the agreement term,Customer will return the Equipment to Odyssey Power Distribution Facility during regular business hours,such Equipment to be in the condition and repair as when delivered to Customer,subject to reasonable wear and tear,as defined below.Customer shall be liable for all damages to or loss of the Equipment,or inability or failure to return same for any reason whatsoever,Customer will pay Odyssey Power the then full replacement list value together with the full rental rate as specified until such Equipment is replaced.If Odyssey Power has agreed to deliver the Equipment to Customer or to pick up the Equipment from Customer,Customer shall pay the reasonable cost of repair and pay rental on the Equipment at the regular rental rate until all repairs have been completed.Odyssey Power shall be under no obligation to commence repair work until Customer has paid to Odyssey Power the estimated cost therefore. 8.Reasonable wear and tear.Reasonable wear and tear of the Equipment shall mean only the normal deterioration of the Equipment caused by ordinary and reasonable use.The following shall not be deemed reasonable wear and tear:(a)damage from any improper operation,including overloading or exceeding the rated capacity of the Equipment;(b)damage in the nature of dents,bending,tearing,and staining to or of the Equipment or any part thereof;and(c)any other damage to the Equipment which is not considered ordinary and reasonable in the Equipment rental industry.Any repairs to the Equipment shall be made by Odyssey Power and in a manner which will not adversely affect the operation,manufacturer's design or value of the Equipment. 9.Rental period and calculation of charges.All Equipment rentals require a(48)month minimum rental period.Rental charges commence when the Equipment leaves the Odyssey Power Distribution Facility and end when the Equipment is returned thereto. For each monthly rental period exceeded, the Customer will be charged an additional rental period.TIME IS OF THE ESSENCE in this agreement. 10.Invoicing and Payment: Initial fees for Equipment rentals will be invoiced and paid prior to Equipment delivery.The fees for the Equipment rental will be billed by Odyssey Power to the Customer on a monthly basis during the agreement term. All fee payments or other payments that may be due hereunder,are due thirty(30)days from date of invoice. Payments not received within thirty(30)days from date of invoice shall be subject to a late payment charge of one and one half percent(1 %z%),or the maximum charge allowed by law. 11.Failure to deliver.Customer releases and discharges Odyssey Power from any and all liability or damages(including consequential and special damages)which might be caused by Odyssey Power's failure or inability to deliver any Equipment by any specified date or time. 12.Title/no purchase option/no liens.This agreement is not a contract of sale,and title to the Equipment shall at all times remain with Odyssey Power. Unless covered by a specific supplemental agreement signed by Odyssey Power,the Customer has no option or right to purchase the Equipment.Customer shall keep the Equipment free and clear of all mechanics and other liens and encumbrances. 13.Default.Should Customer in any way fail to perform,observe or keep any provision of this rental agreement,Odyssey Power may at its option do any one or more of the following:(a)terminate this agreement; (b)declare the entire rent amount immediately due and payable and commence legal action therefore;(c)retake possession of the Equipment,holding the Customer liable for all rental and other charges;or(d)pursue any other remedies available by law. 14.Repossession of Equipment.In the event of any actual or anticipatory breach by Customer,Odyssey Power's employees or agents may,without notice or legal process,go upon Customer's property and take all action reasonably necessary to repossess the Equipment.Customer waives all claims Odyssey Power Rental Terms and Conditions Page 1 of 2 ODYSSEY for damages and losses,physical or pecuniary,caused thereby,and shall pay all cost and expenses incurred by Odyssey Power in retaking the Equipment. 15.Customer's insurance coverage.Customer agrees to maintain and carry,at its sole cost,adequate liability,physical damage,public liability, property damage and casualty insurance extended coverage endorsement to cover any damage or liability arising from the handling,transportation, maintenance,operation or use of the Equipment during the entire rental period.When requested,Customer shall supply to Odyssey Power proof of such insurance by Certificate of Insurance clearly setting forth the coverage for the Equipment and naming Odyssey Power as loss payee and additional insured;such insurance and evidence thereof to be in amounts and form satisfactory to Odyssey Power.The Certificate of Insurance and policy shall provide that Odyssey Power shall receive not less than thirty(30)days notice prior to any cancellation of the insurance required hereunder. 16.Entire agreement/only agreement.This written agreement represents the entire agreement between the Customer and Odyssey Power.There are no oral or other representations or agreements not included herein.None of Odyssey Power's rights or Customer's rights may be changed and no extension of the terms of this agreement may be made except in writing,signed by both Odyssey Power and Customer.The use of Customer's purchase order number on this agreement is for Customer's Convenience only.This rental agreement supersedes any purchase order or other Customer provisions or forms whether sent to or received prior,or subsequent to this agreement. 17.No Assignment,Lending,or Subletting.Customer shall not sub-lease,sub-rent,assign or loan the Equipment,and any such action by Customer shall be void.Customer agrees to use and keep the Equipment at the job site set forth on the front page of this form unless Odyssey Power approves otherwise in writing. 18.Additional Provisions.Any failure of Odyssey Power to insist upon strict performance by Customer of any terms and conditions of this agreement shall not be construed as waiver of Odyssey Power's right to demand strict compliance.Customer has carefully reviewed this agreement and waives any principle of law which would construe any provision hereof against Odyssey Power as the draftsperson of this agreement. Customer agrees to pay all reasonable costs of collection,court,attorneys'fees and other expenses incurred by Odyssey Power in the collection of any charges due under this rental agreement or in connection with the enforcement of its terms. Customer shall pay the rental charge without any offsets or deductions of claims. The federal and state courts in the county in which the Odyssey Power Distribution Facility is located shall have exclusive jurisdiction over all matters relating to this agreement.Trial by jury is waived. Service of process may be effected by certified mail,return receipt requested.Odyssey Power shall be entitled to decrees of specific performance(without posting bond or other security)in addition to such other remedies as may be available. CRIMINAL WARNING:The use of false identification to obtain Equipment or the failure to return the Equipment by the Date Due In may be considered a theft subject to criminal prosecution pursuant to applicable criminal or penal code provisions. 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