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Agreement - US Digital Designs, Inc. - Phoenix G2 Station Alerting Package - Signed 2021-04-01 -1- 4821-0681-0176v1 ALF\04706083 AGREEMENT FOR SERVICES (For contracts over $5,000 – NON-DESIGN OR NON-ENGINEERING TYPE CONTRACTOR) This AGREEMENT is entered on March 22, 2021, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONSULTANT: US Digital Design, Inc. , having a principal place of business at 1835 E Sixth St. #27, Tempe, AZ 85281. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on April 1, 2021 and will continue in effect through August 31, 2021 unless terminated in accordance with the provisions of Article 7 of this Agreement. Any lapse in insurance coverage as required by Article 5, Section D of this Agreement shall terminate this Agreement regardless of any other provision stated herein. ______ Initial ARTICLE 2. INDEPENDENT CONTRACTOR STATUS Both parties acknowledge that CONTRACTOR is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing an employer-employee relationship between CITY and CONTRACTOR or any employee or agent of CONTRACTOR. CONTRACTOR is not an employee for state or federal tax purposes. CONTRACTOR shall not be entitled to any of the rights or benefits afforded to CITY’S employees, including, without limitation, disability or unemployment insurance, workers’ compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONTRACTOR shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONTRACTOR A. Specific Services CONTRACTOR agrees to: Perform the services as outlined in Exhibit “A” (“Specific Provisions”) and Exhibit “B” (“Scope of Services”), within the time periods described in Exhibit “C” (“Milestone Schedule”). B. Method of Performing Services CONTRACTOR shall determine the method, details and means of performing the above- described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONTRACTOR’S services. DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -2- 4821-0681-0176v1 ALF\04706083 C. Employment of Assistants CONTRACTOR may, at the CONTRACTOR’S own expense, employ such assistants as CONTRACTOR deems necessary to perform the services required of CONTRACTOR by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONTRACTOR’S assistants in the performance of those services. CONTRACTOR assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONTRACTOR shall perform the services required by this Agreement at any place or location and at such times as CONTRACTOR shall determine is necessary to properly and timely perform CONTRACTOR’S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONTRACTOR, CITY agrees to pay CONTRACTOR the amounts set forth in Exhibit “D” (“Payment Schedule”). In no event however shall the total compensation paid to CONTRACTOR exceed $161,257.47. B. Invoices CONTRACTOR shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit “D”. No payment will be made unless CONTRACTOR has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit “A”, Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONTRACTOR of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. D. Expenses CONTRACTOR shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONTRACTOR, all fees, fines, licenses, bonds or taxes required of or imposed against CONTRACTOR and all other of CONTRACTOR’S costs of doing business. CITY shall not be responsible for any expenses incurred by CONTRACTOR in performing services for CITY, except for those expenses constituting “direct expenses” referenced on Exhibit “A.” DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -3- 4821-0681-0176v1 ALF\04706083 ARTICLE 5. OBLIGATIONS OF CONTRACTOR A. Tools and Instrumentalities CONTRACTOR agrees to supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONTRACTOR is not required to purchase or rent any tools, equipment or services from CITY. B. Workers’ Compensation CONTRACTOR agrees to provide workers’ compensation insurance for CONTRACTOR’S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys’ fees, arising out of any injury, disability, or death of any of CONTRACTOR’S employees. C. Indemnification of Liability, Duty to Defend As to all liability, to the fullest extent permitted by law, CONTRACTOR agrees to defend, through counsel approved by CITY (which approval shall not be unreasonabl y withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys’ fees, arising or resulting directly or indirectly from any act or omission of CONTRACTOR or CONTRACTOR’S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONTRACTOR shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non-owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof. As a condition precedent to CITY’S obligations under this Agreement, CONTRACTOR will furnish written evidence of such coverage naming CITY, its officers and employees as additional insureds on the Comprehensive Liability Insurance policy referred to in (a) immediately above via a specific endorsement acceptable to CITY, showing that the commercial general liability coverage is primary and non-contributory to any insurance or self-insurance of CITY, and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -4- 4821-0681-0176v1 ALF\04706083 E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONTRACTOR under this Agreement may be assigned or subcontracted by CONTRACTOR without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONTRACTOR is not CITY’S employee, CONTRACTOR shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONTRACTOR acknowledges and agrees that:  CITY will not withhold FICA (Social Security) from CONTRACTOR’S payments;  CITY will not make state or federal unemployment insurance contributions on CONTRACTOR’S behalf;  CITY will not withhold state or federal income tax from payment to CONTRACTOR;  CITY will not make disability insurance contributions on behalf of CONTRACTOR;  CITY will not obtain workers’ compensation insurance on behalf of CONTRACTOR. G. Prevailing Wage CONTRACTOR agrees and acknowledges that it is its obligation to determine whether, and to what extent, any work performed under this Agreement is subject to any Codes, Ordinances, Resolutions, Rules and other Regulations and established policies of CITY and the laws of the State of California, the United States, the California Labor Code and Public Contract Code relating to public contracting and prevailing wage laws. CONTRACTOR shall ensure that all assistants and/or subcontractors are informed of any comply with any requirement to pay prevailing wages in compliance with the California Labor Code and the regulations thereunder. It is the duty of CONTRACTOR to post a copy of applicable prevailing wages at the job site. Prevailing wage information may be obtained at www.dir.ca.gov. ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONTRACTOR and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONTRACTOR’S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONTRACTOR. Such assignment shall not release CONTRACTOR from any of CONTRACTOR’S duties or obligations under this Agreement. DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -5- 4821-0681-0176v1 ALF\04706083 ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of CONTRACTOR’s Business/ Death of CONTRACTOR. CONTRACTOR shall notify CITY of the proposed sale of CONTRACTOR’s business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONTRACTOR set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after CITY’ receipt of such notice of sale. If CONTRACTOR is an individual, this Agreement shall be deemed automatically terminated upon death of CONTRACTOR. B. Termination by City for Default of CONTRACTOR Should CONTRACTOR default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY’S option, may terminate this Agreement by giving written notification to CONTRACTOR. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONTRACTOR’S failure to professionally and/or timely perform any of the services contemplated by this Agreement. 2. CONTRACTOR’S breach of any of its representations, warranties or covenants contained in this Agreement. CONTRACTOR shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C” which have been fully, competently and timely rendered by CONTRACTOR. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONTRACTOR’S default in the performance of this Agreement or material breach by CONTRACTOR of any of its provisions, then in addition to any other rights and remedies CITY may have, CONTRACTOR shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONTRACTOR for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed-Upon Payments Should CITY fail to pay CONTRACTOR all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONTRACTOR, at the CONTRACTOR’S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONTRACTOR to CITY. DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -6- 4821-0681-0176v1 ALF\04706083 D. Transition after Termination Upon termination, CONTRACTOR shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONTRACTOR shall cease such work as soon as it is safe to do so. CONTRACTOR shall incur no further expenses in connection with this Agreement. CONTRACTOR shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONTRACTOR’s duties by any new CONTRACTOR hired by the CITY to complete such services. ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agre ement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONTRACTOR shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 (“the Act”) in its current form and as it may be amended from time to time. CONTRACTOR shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONTRACTOR shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys’ fees, that may arise out of any violations of the Act by the CONTRACTOR, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys’ Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws CONTRACTOR shall comply with all applicable federal, state, and local laws and regulations in fulfilling CONTRACTOR’S obligations under this Agreement. DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -7- 4821-0681-0176v1 ALF\04706083 Without limiting the foregoing, CONTRACTOR agrees to observe the provisions of the Municipal Code of the CITY OF GILROY obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. F. Conflict of Interest CONTRACTOR certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONTRACTOR and that no person associated with CONTRACTOR has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONTRACTOR for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligation s contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit “A”, Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -8- 4821-0681-0176v1 ALF\04706083 J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K. Waiver CONTRACTOR agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. L. Time of the Essence All dates and times referred to in this Agreement are of the essence. Executed at Gilroy, California, on the date and year first above written. CONTRACTOR: CITY: US Digital Designs CITY OF GILROY By: By: Name: Dominic Magnoni Name: Jimmy Forbis Title: Vice President Title: City Administrator Social Security or Taxpayer Identification Number 86-1004261 Approved as to Form ATTEST: City Attorney City Clerk DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -9- 4821-0681-0176v1 ALF\04706083 EXHIBIT “A” SPECIFIC PROVISIONS I. PROJECT MANAGER CONTRACTOR shall provide the services indicated on the attached Exhibit “B”, Scope of Services (“Services”). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONTRACTOR agrees to assign Tod Scher, who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONTRACTOR shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED/COMPLETION OF SERVICE A. NOTICE TO PROCEED CONTRACTOR shall commence the Services upon delivery to CONTRACTOR of a written “Notice to Proceed”, which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Jennifer Fortino shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONTRACTOR or if otherwise delivered as provided in the Section V.H. (“Notices”) of this Exhibit “A”. B. COMPLETION OF SERVICES When CITY determines that CONTRACTOR has completed all of the Services in accordance with the terms of this Agreement, CITY shall give CONTRACTOR written Notice of Final Acceptance, and CONTRACTOR shall not incur any further costs hereunder. CONTRACTOR may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONTRACTOR has not completed all of such Services as required by this Agreement, CITY shall so inform CONTRACTOR within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit “C”. IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONTRACTOR as provided for in Article 4 of this Agreement. DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -10- 4821-0681-0176v1 ALF\04706083 Direct expenses are charges and fees not included in Exhibit “B”. CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONTRACTOR shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONTRACTOR represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONTRACTOR’S representations and warranties regarding its skills, qualifications and licenses. CONTRACTOR shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well-organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONTRACTOR CONTRACTOR shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONTRACTOR shall not be responsible for the accuracy of any project or technical information provided by the CITY. The CITY’S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONTRACTOR shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONTRACTOR’S negligent performance of any of the services furnished under this Agreement. C. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONTRACTOR for the purpose of verifying any and all charges made by CONTRACTOR in connection with this Agreement. CONTRACTOR shall maintain for a minimum period of three (3) years (from the date of final payment to CONTRACTOR), or for any longer period required by law, sufficient books and reco rds in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONTRACTOR, all of which shall be made available to CITY at the CITY’s offices within five (5) business days after CITY’s request. DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -11- 4821-0681-0176v1 ALF\04706083 D. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONTRACTOR and all other written and oral information developed or received by or for CONTRACTOR and all other written and oral information submitted to CONTRACTOR in connection with the performance of this Agreement shall be held confidential by CONTRACTOR and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONTRACTOR’S disclosure thereof) shall be deemed confidential. CONTRACTOR shall not use CITY’S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. E. NO PLEDGING OF CITY’S CREDIT. Under no circumstances shall CONTRACTOR have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. F. OWNERSHIP OF MATERIAL. Intellectual Property. City hereby agrees and acknowledges that US Digital Designs, Inc. owns all rights, title, and interest in and to the Intellectual Property (as defined below). City agrees to not remove, obscure, or alter USDD’s or any third party's copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through USDD’s Product (as defined below). Nothing herein shall be deemed to give, transfer, or convey to City any rights in the Intellectual Property other than the license, as set forth below. 1. LICENSE: At all times that City is in compliance with the terms of this Agreement and all other agreements between the parties, City shall have a non-exclusive, non- transferable, fully paid license to use the Software, but only in conjunction with the Hardware provided by USDD and only in conjunction with City's fire station alerting system pursuant to the terms of this Agreement. 2. DEFINITIONS: For purposes of this Section the following terms shall have the following definitions: 2.1 “Intellectual Property " means any and all rights of USDD related to USDD’s Product existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all derivative works, work product, applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide; DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -12- 4821-0681-0176v1 ALF\04706083 2.2 “USDD’s Product” means any and all Hardware and Software provided to Customer by USDD under this Agreement or any other contract, purchase order, or arrangement; 2.3 “Hardware” means a physically tangible electro-mechanical system or sub-system and associated documentation but specifically excludes any televisions or monitors manufactured by a third party; and 2.4 “Software” means software programs, including embedded software, firmware, executable code, linkable object code, and source code, including any updates, modifications, revisions, copies, documentation and design data that are licensed under this Agreement. G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. H. NOTICES. Notices are to be sent as follows: CITY: Jennifer Fortino City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONTRACTOR: Dominic Mangoni US Digital Designs, Inc. 1835 E Sixth Street, Suite 27 Tempe, AZ 85281 I. FEDERAL FUNDING REQUIREMENTS. If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply. If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. 1. DBE Program CONTRACTOR shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City-adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -13- 4821-0681-0176v1 ALF\04706083 3. Covenant against Contingent Fees The CONTRACTOR warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the CONTRACTOR, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -1- 4821-0681-0176v1 ALF\04706083 EXHIBIT “B” SCOPE OF SERVICES Supplying the Products and services as enumerated in the Quote #CA_GLRY003-Qv2 dated 09 Feb 2021, which includes one dispatch system to be installed by USDD, and station-level equipment and services for installation at Customer’s fire stations as shown on the engineered designed attached hereto: See Drawing #USDD.CA_GLRY.ALLSTATONS.FSA.2021.02.09.pdfThe following is a description of the services to be provided by USDD and Customer obligations: General Scope of Work In accordance with the Contract, USDD shall provide the System, installation, training, and Acceptance Test to Customer as set forth herein. In the event of any conflict between this SOW and the terms of the Contract, Service Agreement or Warranty, the terms of the Contract, Service Agreement or Warranty shall control. General Customer Responsibilities: In addition to any Customer obligations set forth in the Contract, the Customer shall: a. Ensure that the data network is configured to accommodate the station alerting application. b. Provide physical mounting space, AC power, and network access for the Communications Gateways. c. Provide connections for VoiceAlert /GaRI to Customer radio system and provide integration assistance with Customer radio system. d. Provide VPN using SSH protocol access for USDD use in implementation, troubleshooting, and maintenance of the system. e. Provide technical diagrams and information, or technical assistance, on all customer-owned/provided station level equipment to be connected to the Station Alerting System as part of the installation. f. Prior to installer appearance Customer shall select locations of ATX Station Controller at each station. Note that the ATX Station Controller must be within 6 feet of a 120 VAC outlet; within 6 feet of network connection and within 6 feet of radio connection. g. Provide Postscript or USDD approved PCL-compatible network printers in each station (if desired / necessary). DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -2- 4821-0681-0176v1 ALF\04706083 h. Provide USDD personnel reasonable access (Recommended 7AM to 7PM M-F or as mutually acceptable) to the fire stations for site surveys, equipment i nstallation and other related tasks (as necessary). i. Provide skilled personnel to assist USDD personnel with data network, computer system and radio system troubleshooting as well as problem escalation. j. The foregoing is in addition to any Customer Obligations set forth in the Contract. Project Deliverables The deliverables provided under this SOW include station alerting hardware and software, software configuration, dispatch hardware installation, and user, administrator and maintenance training (schedule coordinated with Customer) as detailed on the quotation provided to the Customer Hardware Deliverables US Digital Designs will provide the hardware as detailed on the Quote provided to the Customer. Hardware delivery/shipment is intended to be a single shipment to a single receiving point. The Customer provided warehouse must be an environmentally controlled and secure storage area. Software Deliverables US Digital Designs will provide standard embedded software for the operation of the station alerting system. This includes the software for the operation of the central Communications Gateway and GaRI radio system interfaces. Modifications to Standard Products Modifications will be made, if required, to US Digital Designs standard products where necessary to provide the agreed upon functionality. Modifications will include VoiceAlert element order and repetition, and printer display elements. Standard Interface Software The US Digital Designs’ Communications Gateway will interface to Custom ers CAD system using the USDD standard fire station alerting interface. The costs associated with CAD provider’s fees are not included. CAD Provider’s portion of the FSA interface is the responsibility of the Customer. Training a. Dispatch System Operation (half-day). The Dispatch System Operation class is intended to give dispatch center personnel the skills to use the alerting system through the CAD system, to operate the Manual Alerting client and to recognize system faults. The class will be hands-on using the system prior to go live. DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -3- 4821-0681-0176v1 ALF\04706083 b. Administration and Maintenance (half-day). The Administration and Maintenance class is intended to give technical service personnel the skills to perform system configuration, basic diagnostics and troubleshooting on the station alerting system. The class will be hands-on using the system prior to go live. US Digital Designs Project Roles and Responsibility Overview US Digital Designs will assign qualified personnel to implement the System for the Project. The project team will be located primarily at the USDD headquarters in Tempe, Arizona, but will travel as necessary to the Customer’s location. The following is a proposed list of USDD project personnel roles for this project. The list of roles may change as necessary to accommodate new project requirements. US Digital Designs Project Manager The USDD project manager (“Project Manager”) will have the overall responsibility for ensuring the success of the USDD portion of this project. The Project Manager will be the primary contact for project-related issues and will be responsible for issue resolution. The Project Manager will also develop an issue escalation plan in conjunction with the Customer’s System Administrator. Software Engineer The USDD Software Engineer will be responsible for USDD’s configuration of software required for the system, and for the resolution of any USDD software issues identified during the course of the project. Project Implementation USDD will work with the Customer and CAD provider to develop an implementation plan and schedule that meets the needs of the Customer and is completed within the overall timeframe of the project. The implementation plan will list all equipment to be delivered and will detail the delivery timeframe for this equipment as well as any work to be done by Customer prior to or after delivery and installation. CAD Interface Customization US Digital Designs will provide its standard API for CAD System alerting interfacing and will customize this interface to operate with the current version of the Customer’s CAD system FSA interface. Any associated FSA interface fees charged by the Customer’s CAD provider are not included in the Quote. Installation US Digital Designs will install the Communications Gateway equipment in t he data center or other communications equipment location near the CAD equipment. USDD will also install the DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -4- 4821-0681-0176v1 ALF\04706083 GaRI radio control units and assist in their connection to Customer radio equipment. . Regardless of the party responsible for providing installation, all Product MUST be installed by a Customer approved, USDD approved, and USDD certified Phoenix G2 FSA installation contractor. USDD staff will perform final inspection and start-up each station. System Functionality Demonstration Pursuant to the terms of the Contract, US Digital Designs will demonstrate the functionality of the installed and configured system after system installation. This demonstration will preferably utilize the CAD system to allow end-to-end demonstration. Acceptance Test Procedures After all installation is complete and basic functionality has been demonstrated, Customer and US Digital Designs will initiate the Acceptance Test Procedure (“ATP”). The ATP procedure will be jointly developed based on the intended functionality of the System as actually installed and carried out according to the terms of the Contract. Training US Digital Designs will provide training to Customer personnel on the operation, administration and maintenance of the System as priced in the Quote. The training will be provided in half-day class(es) as required. This training will be scheduled in conjunction with system testing and acceptance. Project Controlling Process Schedule Adherence US Digital Designs will work with the System Administrator to track the progress of the project and will work diligently to ensure that the project remains on or ahead of schedule. The schedule may be adjusted to accommodate Customer’s activity. Change Management Process A change management plan shall be developed jointly by the Customer and USDD to document procedures for additions, deletions and modifications to the scope of the project. This includes software feature development and delivery and installation of additional equipment requested by the Customer. Document Review US Digital Designs will submit documentation developed under this project for approval prior to inclusion in the project documents as necessary. Project Closure Overview DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -5- 4821-0681-0176v1 ALF\04706083 The project closure process ensures that all outstanding issues are resolved, provides feedback on the project successes and issues to the Customer and US Digital Designs, and transitions the Customer and System from a project to a support process. Completion of Punch List Items US Digital Designs will work with the Customer to identify any outstanding items for resolution. A list will be made of any unresolved issues and a disposition will be created for each item. System Acceptance System Acceptance Test will be conducted in accordance with the Contract. Transition to Support After a successful Acceptance Test and a short confirmation period, as mutually defined in the ATP process document, the Customer will be transitioned to support from the project team. The primary contact for the Customer may change. It is important for the Customer to continue to provide remote access to the System after the transition to support to allow US Digital Designs support personnel to perform remote diagnostics on the System. Project Closure After transition of the Customer to technical support, US Digital Designs will prepare a document detailing any outstanding issues, lessons learned and other pertinent information for the Customer and/or CAD provider. DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 -1- 4821-0681-0176v1 ALF\04706083 EXHIBIT “C” MILESTONE SCHEDULE -5 to 7 days to process the order after receipt of PO. -Project Manager will contact the City to schedule a Kick Off Meeting once order processed. -At the Kick Off Meeting, the Project Manager will provide the requirements needed from the City and CAD provider.-Upon receipt of those requirements then configuration of the Gateway Servers begins. -USDD will assign a Developer from USDD to work with the City IT staff to answer any questions they have regarding these requirements. -Station Installation begins. It takes 7 - 8 business days per station -At end of station installation and acceptance of installation, and once all requirements developed during the Kick Off Meeting are completed: x1 business day for on-site Gateway Server and radio / GaRI Configuration x1 business day - software training x1 business day to perform 2 station startups DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7 4821-0681-0176v1 ALF\04706083 EXHIBIT “D” PAYMENT SCHEDULE US Digital Designs will invoice the City of Gilroy when the components are shipped. US Digital Designs requires 50% payment, $80,628.74, at the beginning of the project for the Gateway configuration and modification, and the cost of the station engineering and design services at the station level. The remaining $80,628.74 will be invoiced at the end of the project. Payment terms are net 30 days. DocuSign Envelope ID: A9DE17BB-E224-4268-91DE-56055A5CC1C9DocuSign Envelope ID: BA092419-743F-4D76-B6DF-61CC5812A3A7