PROJECT DESIGN AND MANAGEMENT AGREEMENT
This PROJECT DESIGN AND MANAGEMENT AGREEMENT (this
“Agreement”) is entered into as of February 6, 2025 (the “Effective Date”), by and between [The City of Fresno], (“Client”), Solutions by Design Inc., a California corporation (“Contractor”). Contractor and Client are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, Client wishes to engage Cont ractor to provide certain digital hardware, hardscape, installation, management, design, and application hosting services, and related services, in connection with the design, development, construction and maintenance of a sports memorial exhibit located at Fresno City Hall;
WHEREAS, Contractor wishes to enter into an independent contractor relationship with Client and provide the Services (a s defined below) to Client in connection with the design, development, construction, and maintenance of th e City Hall, and pursuant to the terms and conditions set forth herein; and
NOW THEREFORE, in consideration of the mutual covenants, agreements and warranties herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties hereto agree as follows:
AGREEMENT
Term of Agreement. The term (the “Term”) of this Agreement shall commence on the Effective Date and shall terminate in accordance with Section 7 herein.
Work.
2.1 General Description of Work. Contractor will manage the design and construction of the City Hall Displays in accordance with that certain Discovery Document (the “Discovery Document”) attached hereto as Exhibit A and incorporated herein by this reference (the “Work”). If any services, functions, responsibilities or tasks not specifically set forth in the Discovery Document are, in Contractor’s discretion, required for the proper performance of the Work and are an inherent part of, or a necessa ry, customary, or appropriate sub-part included within, the Work, such services, functions, respons ibilities and tasks shal l be deemed to be implied by and included within the scope of the services included in the Work to the same extent and in the same manner as if specifical ly described in the Discovery Document. Contractor’s services rendered pursuant to this Agreement are collectively referred
2 to as the “Services.” Except as determined by Contractor in its sole discretion, all Work will be completed and all Services will be performed by Contractor.
2.2 Access to Work Site. Client shall ob tain sufficient access for Contractor and any subcontractors and/or third party consultants retained by Contractor, to the location of Fresno City Hall (the (“ Work Site”) so that Contractor may perform, or otherwise facilitate or manage the completion of, the Work. To the extent Client cannot obtain such access to the Work Site, Contractor shall be relieved of the responsibility of performing the Work until such access is obtained by Client.
2.3 Operating Budget and Timeline. The Work will be completed pursuant to the timeline and at the estimated cost set forth in that certain Operating Budget and Timeline attached hereto as Exhibit B and incorporated herein by this reference (the “Operating Budget and Timeline”). The Parties anticipate that the Work w ill be substantially completed within 6 months (the “Anticipated Completion Date,” and the actual date of substantial completion, the “Completion Date”). The Work shall be deemed substa ntially complete for purposes of this Agreement even though minor details of construc tion, design or development remain to be performed. Client acknowledges that the Operatin g Budget and Timeline is not guaranteed and the estimated timeline (the “ Estimated Timeline ”) and budget (the “ Estimated Budget ”) contained therein are subject to periodic adju stment in accordance with the terms of this Agreement. Contractor may request extensi ons to the Estimated Timeline or Anticipated Completion Date in the aggregate amount of thir ty (30) days. Notwithstanding the above, if Contractor anticipates that any line item set forth in the Operating Budget and Timeline will exceed its estimated cost by more than fifteen per cent (15%) of such cost, then Contractor will obtain Client’s prior written approval prior to purchasing that item or performing that service, as applicable; and such consent shall not be unreas onably withheld or delayed unless the increase in cost of any line item expenditure causes the aggregate cost of the Work to exceed the budgeted amount of each phase (the “Aggregate Maximum Work Cost”). Notwithstanding the above, if at any time Contractor anticipates the aggreg ate cost of the Work to exceed the Aggregate Maximum Work Cost, then (i) Contractor will promptly obtain the prior written consent of Client before continuing with the Work, and (ii) the Pa rties will cooperate in good faith to reduce the total cost of the Work by making alteration or modifications to the Work as contemplated in the Discovery Document.
2.4 Client Delays. In the event that Client causes a delay in Contractor’s performance of the Work for any reason (a “ Client Delay ”) including, without limiting the generality of the foregoing: (i) failure to coop erate with or timely respond to a request from Contractor, (ii) failure to timely provide inform ation or materials to Contractor, (iii) failure of Client to meet deadlines for approval of Phases, or (iv) requests from Client for Work Change Orders, then the Anticipated Completion Date shal l be deemed modified to the extent of the delay.
2.5 Acceptance. After the substantial completion, Contractor shall deliver notice to Client of such completion, and Client sh all have fifteen (15) calendar days from such notice to test and evaluate the then completed Work (the “Acceptance Period”). If the completed Work contains all material features and functionality as described in the Discovery
3 Document and Operating Budget and Timeline, then Client shall accept the completed Work and provide Contractor with immediate notice thereof. In the event that Client determines in its reasonable and good faith judgment that the completed Work fails to so conform, Client shall provide Contractor with written notice of the material discrepancies between the completed Work and the Work as described in the Discovery Document and Operating Budget and Timeline, and request that Contra ctor correct such material di screpancies and deliver the corrected Work to Client for review within thirty (30) days following receipt by Contractor of notice of the discrepancies. This process shall be repeated until the completed Work conforms to the Discovery Document, or until either Party exercises its right to terminate this Agreement pursuant to Section 7. Due to the complex na ture of the Work, Client acknowledges that the Work may contain minor errors. Client acknowledges and agrees that the presence of such errors shall not constitute a breach of Contractor’s obligations under this Agreement or preclude the acceptance of Work, provided that Contractor uses its best efforts to remedy such errors within sixty (60) days. Notwithstanding anything to the contrary in this Agreement, Client shall accept any alterations or modifications to the Work which were previously approved or consented to by Client.
Compensation and Reimbursement for Work. In consideration for the Work, Client agrees to pay Contractor as set forth below. It is the in tent of the Parties that Client pays for all costs, fees, expenses, and charges related to the Work. Should this Section 3 be silent or not complete as to any particular services performed by Cont ractor, Client agrees to pay Contractor on a time and materials basis for such work, at Contractor’s then-current rates.
3.1 Hourly Rates. Client shall compen sate Contractor for the following services at the corresponding hourly rates:
3.1.1 Project Management Sr. at $225/hour
3.1.2 Project Management Jr. at $175/hour
3.1.3 Space Planning and Design at $150/hour
3.1.4 Programming at $185/hour
3.1.5 Video Production at $150/hour
3.1.6 3D Animation at $225/hour
3.1.7 Graphic Design at $165/hour
3.1.8 Production Art at $150/hour
3.1.9 Training of Client personnel at $150/hour
4 3.2 Reimbursement for Expenses and Out- of-Pocket Costs. Client shall reimburse Contractor for all expenses and out-o f-pocket costs incurred by Contractor in connection with the Work including, but not limited to:
3.2.1 Communication charges;
3.2.2 Print and copy charges;
3.2.3 Database and content conversion services;
3.2.4 Travel expenses (including lodging, airfare, and rental vehicles); and
3.2.5 Any other expenses, charges or fees related to the Work.
3.3 Payment. All materials including but not limited to casework, digital electronics and displays will require a 50% deposit upon acceptan ce of this agreement. The remaining balance for the aforementioned items w ill be due and payable within 10 days of delivery. Payment for services shall be paid 25% upon acceptance of this agreement, with 25% due upon presentation of conceptual work and th e balance due upon installation of software application. Contractor’s failure to deliver invoices by the abov e deadline will not relieve Client’s obligation to pay the amounts payable under any invoice, and Client will promptly pay all amounts due under any invoice. All past due sums of money due to Contractor hereunder shall incur interest at the rate of eight percent (8%) per annum. Payment is to be in the form of a check. Credit card payment requires a 3% processing fee.
3.4 Third Party Vendor Costs and Purchases. The Parties acknowledge that the Work will require that certain deliverables or services be purchased from third party vendors (including but not limited to hardware, electr ical and network cabling, equipment and fixture installation services, printing, architecture services, and engineering services). The Parties will mutually agree on the selection of third party vendors; provided, however, that Client’s consent to the selection of any third party vendor will not be unreasonably withheld or delayed upon Contractor’s recommendation of that vendor. The Parties agree that The City of Fresno will provide architectural, engineering and ADA Comp liance Approval services for the Work, and that Contractor will bear no liability or responsibility due to the City of Fresno’s or Work’s lack of compliance with the ADA or similar laws, or any other codes, regulations or laws that control the structure or design of buildings or related improvements. Contractor shall not be responsible or liable for any errors in the Work caused by any third party vendors. Client acknowledges that Contractor acts as an exclusive dealer for certa in vendors and, to the extent such vendors sell products or items that are required to be delivere d as part of the Work, Client agrees that Contractor may require that those products or items be purchased from Contractor as a dealer for those vendors, and Client will pay the standard retail costs ordinarily charged by Contractor for such products and items. Client shall be responsible for contracting with and paying directly all third party vendors, consultants, and professionals in connection with the Work. If requested by Contractor, Client shall promptly pay in advance any sums
5 required to purchase or manufacture hardware or other tangible deliverables or any sums owed to third party vendors in connection with the Work.
Work Change Orders. Subsequent to execution of this Agreement, Client may request that additions to or deletions from the Work be made (“Work Change Orders”) subject to the following provisions. If Client desires a Work Change Order to be made, Client shall so notify Contractor in writing and, within ten (10) days after such no tification, Contractor shall deliver to Client (a) written notice that Contractor has determined, in Contractor’s reasonable discretion, to disapprove the proposed Work Change Order, or (b) if Contractor approves the proposed Work Change Order, a written estimate of any extension to the schedule of Work and any additional costs resulting from such proposed Work Change Order. Without limitation on other reasons for Contractor’s disapproval, Contractor may disapprove any such proposed Work Change Order if it will cause (a) a material change to the Work as described in the Discovery Document, or (b) any material adverse effect (as determined by Contractor) on the quality or adequate functionality of the City Hall Displays as described in the Discovery Docu ment. If Contractor approves of the proposed Work Change Order, Client shall notify Contractor, within two (2) days following receipt of such notification from Contractor, in writing, whether or not Client elects to proceed with the Work Change Order. If Client elects to cause an y Work Change Order to be made, the Anticipated Completion Date shall be appropriately adjusted, in Contractor’s discretion, as a result of any delays due to such Work Change Order. If Contractor does not approve a proposed Work Change Order, the Work Change Order shall not be im plemented. Any delay resulting from a Work Change Order shall be deemed to constitute a Client Delay (as defined herein). Client acknowledges, however, that no vendor or subcontrac tor shall not be instructed to stop the Work during the time taken by Client in considering whether to proceed with any proposed Work Change Orders and that the cost charged to Client sh all include any work necessary to reverse Work previously completed by Contractor, or any third party vendors or contractors, during the pendency of Client's decision of whether to proceed with a Work Change Order.
Independent Contractor Status. Contra ctor is an independent contractor. Contractor’s employees, agents, representatives and contrac t personnel are not Client’s employees. Contractor and Client agree to the following rights consistent with an independent contractor relationship:
Non-Exclusive. Contractor has the right to perform services for others during the term of this Agreement.
No Additional Obligations. Contractor ma y be requested, but shall have no obligation, to perform any work other than as described in the Discovery Document.
Control of Services. Contractor has the sole right to control and direct the means, manner and method by which the Work required by this Agreement will be performed. Consistent with this freedom from Client’s control, Contractor shall adopt and carry out its own strategy and methods to complete the Work.
6 Location and Time. Contractor has the ri ght to perform the services provided hereunder required by this Agreement at any location or time.
Use of Agents and Employees. Contractor has the right to use employees, agents, and third party vendors or professionals to perform the Work.
No Full-Time Requirement. Client shall not require Contractor or Contractor’s employees, agents, representatives or contract personnel to devote full time to performing the Work.
6. Termination.
6.1 Grounds for Termination. This Agreement may be terminated as follows:
6.1.1 Except as provided in Section 6.1.4, by either Party if the other Party is in breach and such breach has not been cured within thirty (30) days of written notice from the non-breaching Party describing the nature of th e breach, provided, however, the breaching Party will have sixty (60) days from the written notic e to cure such breach if the breach cannot be reasonably cured in thirty (30) days;
6.1.2 By either Party immediately upon wr itten notice to the other Party if the other Party makes a general assignment fo r the benefit of its cred itors, files a voluntary petition in bankruptcy or for reorganization under the bankruptcy laws or if a petition is filed against it, or if a receiver or trustee is appointed for such Party; By Contractor immediately upon written notice to Client if any sum of money owed to Contractor under this Agreement has not be paid within five (5) days of its due date; By Client within seven calendar days prior written notice with or without cause by the Client to the Contractor; or the Client ’s non-appropriation of funds sufficient to meet its obligations hereunder during any City fiscal year of this Agreement, or insufficient funding for the Project;
6.1.3 By Client immediately upon written notice to Contractor if Phase I is not substantially completed by the above referenced completion date or Phase II is not substantially completed by the above referenced targeted completion date, provided, however, that Client’s right to terminate under this Section 6.1.5 will be postponed for an amount of time equal to the aggregate duration of time of the following: (i) any Client Delay, (ii) any delays due to any Work Change Order request or modification, (iii) any delay caused by circumstances described in Sections 2.2 or 13.2, and (iv) an Acceptance Period and any period of time Contractor has to make revisions or modifications under Section 2.5.
Effect of Termination.
Survival of Certain Sections and Pa yment Obligations. The provisions of this Section 6; Section 7 (Confidentiality); S ection 8; (Intellectual Property Rights and Ownership); Section 10 (Limitation on Liability); Section 12 (Indemnification); and Section 13 (General) and any payment obligation that has accrued and is owed by Client to Contractor but has not been paid prior to the termination of this Agreement, shall survive the termination of this Agreement.
7 Payment Upon Termination and Return of Contractor Property. The Parties expressly agree that if this Agreement is duly terminated in accordance with this Section 6, within thirty (30) days of such termination: Client shall immediately pay all outstanding invoices and the further agrees to (a) pay the reasonable value of all Work in progress as of the date of any such notification, and (b) any costs or expenses which Contractor may incur as a result of the premature cancellation of the Agreement. Client shall return all documentation, copies, data, and records related to Contractor IP or the Software Application, and will immediately cease using the Contractor IP and Software Application.
Confidentiality.
7.1 Confidential Information. The Parties acknowledge that for the purposes of the performance of this Agreement one Party may disclose Confidential Information (as defined below) to the other Party. The Party disclosing information is referred to as the “ Disclosing Party” and the Party receiving information is referred to as the “Receiving Party.” “Confidential Information” means any and all technical and non -technical information, including but not limited to: information and business opportunities related to Disclosing Party; business, marketing, and financial informati on; financial projections and plans; business plans, models, strategies, forecasts, and opportunities; pricing and cost information; information concerning current or vendors, customers, clients, constituents, business participants and partners; business relationships and contacts; procurement requi rements; sales and merchandising; business methods; software; hardware; sources codes, programming codes, and other codes; algorithms; data; designs; employee information; traini ng methods and information; equipment and apparatuses; know-how; intellectual property rights; software programs; systems design; performance specifications; computer documentati on; encryption keys; processes; techniques; web site construction and operation; and manuals and specifications. “Confidential Information” also includes proprietary or confide ntial information of any third party who may disclose such information to the Disclosing Party in the cour se of its operations, collaborations or business.
The Receiving Party agrees that Confidential Information disclosed by the Disclosing Party, whether provided on paper, electronically or oral ly communicated or in any other form, has independent economic value, and constitutes th e confidential and trade secret property of the Disclosing Party. This Agree ment applies to all Confidential Information disclosed to the Receiving Party by the Disclosing Party regardless of whether the Confidential Information was disclosed prior to the date of this Agreement.
Use of Confidential Information. The Receiving Party shall use any Confidential Information solely to the extent necessary in connect ion with this Agreement and in furtherance of the Work, and shall make only that number of copies of Confidential Information as are necessary to the Work.
Non-Disclosure; Destruction or Return of Confidential Information. The Receiving Party shall not in any manner or form disclose, provide or otherwise make available, in whole or in part, any Confidential Information, to any thir d parties except for the employees, agents and consultants, if any, who are bound by appropriate and equally restrictive non-disclosure agreements. The Receiving Party acknowledges and agrees that all Confidential Information, except as specified in Section 7.5 below, that comes to be known by reason of work under this Agreement, is confidential and shall not be disclosed to unauthorized third parties.
8 Upon termination of this Agreement for any reason, all Confidential Information shall be, at the request of the Disclosing Party, returned to the Disclosing Party or destroyed within five (5) days of such request from the Disclosing Party.
Standard of Care. The Receiving Party will use the same standard of care, and will bind its employees, agents or representatives, if an y, to such standard, to prevent disclosure of Confidential Information as the Receiving Part y uses to protect its own confidential information and trade secrets, but in no case less than reasonable care.
Exceptions. Information under this Agreement will not be considered Confidential Information if such information: (a) is generally k nown to the public at the time of disclosure; or (b) is required to be disclosed by a court or other administrative body of competent jurisdiction, provided that the receiving Party provides prompt notice prior to any such mandated disclosure.
The Disclosing Party also recognizes that City of Fresno is a public entity subject to public disclosure laws as governed by California law. Each Party may disclose Confidential Information when compelled to do so by law.
Intellectual Property Rights and Ownership.
Ownership of Client Content. Client and Contractor each agree that images, photographs, illustrations, graphics, audio clips, video clips, graphics, trade or service marks provided by Client for incorporation into the City Hall Displays (the “Client Content”) will remain the sole and exclusive property of Client in its original state.
Ownership of Contractor Intellectual Prope rty. Client and Contractor each agree that all intellectual property of Contractor used in the Work, including without limitation, patents, patentable intellectual property, analytical tools, CGI, programming code, source codes, any other code, software testing protocols, hardware, software, firmware, algorithms, methodologies and all other proprietary information and trade secrets of Contractor, and any customizations, plug-ins, enhancements, customer interfaces, or software developed by Contractor in the course of performing the Work (the “Contractor IP”), shall be the sole and exclusive property of Contractor.
Contractor IP shall also include all designs, drawings, renderings, computer programs or other work products fixed in a tangible medium of ex pression that Contractor prepares, creates and/or otherwise makes under and/or within the scope of this Agreement. Contractor shall retain the right to seek, apply for and obtain any or all copyrigh ts, patents, registrations and similar protections which may be available in the Contractor IP, including reissues, extensions, divisions and continuations thereof. Client acknowledges and agrees that th e Contractor IP is Confidential Information. Contractor shall be the sole owner of any Contractor IP, even if such Contractor IP is incorporated into a deliverable as part of the Work. Notwithstanding the foregoing, Client will have permission from Contractor to use Contractor IP to the extent necessary to operate the City Hall Displays. If at any time Contractor provides not ice to Client that it is unable to continue providing the Hosting and Maintenance Services for any reason (other than due to a breach of this Agreement or any other agreement between Contractor and Client), such that Client does not use have the necessary Contractor IP to have material functionality of the Hall of Fame, then the Parties will negotiate and implement in good faith an ar rangement that allows Client to continue using the Contractor IP to the extent
9 necessary to operate the City Hall Display. Contractor reserves the right to place a copyright signature on all screens along with the client company logo and URL.
Representations and Warranties.
Client. Client represents and warrants to Contractor that:
9.1.1 Power and Authority. Client has the full right, power and authority to enter into this Agreement and perform its obligations hereunder.
9.1.2 Valid Obligation. This Agreement, when executed by Client, shall constitute the valid and binding obligation of Client, enforceable in accordance with its terms.
9.1.3 Client Content. Client warrants that all Client Content or other similar content provided to Contractor for incor poration into the City Hall Display does not infringe on or violate any intellectual property righ ts of any other person or entity, nor do they defame or libel any person or entity. Client is solely responsible for the Client Content and information provided hereunder (or an y content, materials, or adve rtising or services contained therein).
Contractor. Contractor represents and warrants to Client that:
9.2.1 Power and Authority. Contractor has the full right, power and authority to enter into this Agreement and perform his obligations hereunder.
Valid Obligation. This Agreement, when executed by Contractor, shall constitute the valid and binding obligation of Contractor, enforceable in accordance with its terms.
Warranty for Certain Errors and Defects. For a period of five (5) years from the Completion Date (the “ Warranty Period ”), the software applications directly developed by Contractor for use in the City Hall (the “ Software Applications ”) will be free from material reproducible programming errors and defects in workmanship (the “ Software Applications Warranty”). Client’s first remedy for breach of this Section 9.2.3 shall be to notify Contractor in writing of such errors or defects, in which event, Contractor will attempt to correct, or provide a work around for, such errors or defects. The Soft ware Applications Warranty shall become null and void if any of the following occur: (i) Client breaches or is in default under this Agreement, or (ii) Client (or its employees or agents) modifi es or misuses the Software Applications or any related hardware. The Software Applications Warran ty shall not cover errors, defects, or issues caused by the following: (a) hardware malfunctions, (b) power problems, (c) environmental problems, (d) ordinary wear and tear, (e) compu ter viruses and other unforeseeable events, (f) failure to complete routine software upgrades, (g ) vandalism,, (h) unknown security or operating requirements imposed by the SMC or Client or (h) misuse.
NO OTHER WARRANTY. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
CONTRACTOR MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. THERE ARE NO EXPRESS OR IMPLIED
10 WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IT IS THE INTENT OF THE PARTIES THAT THE CLIENT RELY ON MANUFACTURERS’
WARRANTIES FROM THIRD PARTY MANUFACTURERS IN CONNECTION WITH DELIVERABLES PURCHASED FOR THE WORK.
10. LIMITATION OF LIABILITY. EXCLUDING THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 12, NO PARTY SHALL BE LIABLE UNDER THIS
AGREEMENT OR OTHERWISE FOR ANY FO RM OF INDIRECT, CONSEQUENTIAL,
EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO THE INDEMNITIES PROVIDED FOR IN SECTION 12 OF THIS AGREEMENT, EACH PARTY’S LIABILITY FOR ANY REASON AND UPON ANY CAUSE
OF ACTION SHALL BE LIMITED TO THE FEES RECEIVED BY CONTRACTOR FROM CLIENT UNDER THIS AGREEMENT.
11. Hosting and Maintenance Servi ces Terms and Obligations.
For a period of five
(5) years from the Completion Date, Contractor will be the exclusive provider to Client of certain ongoing web-based application hosting, IT maintenance, and help desk services related to the City Hall Display as is customary for Contractor to provide to its other client s and as described on Exhibit C attached hereto and incorporated herein by reference (“ Hosting and Maintenance Services”). Hosting and Maintenance Services will include Client Content updates to the City Hall Display, to the extent requested by Client. Client agrees that from time to time, in the course of Contractor providing Network Hosting and Maintenance Services, the City Hall computer systems, software, or media content may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions, (ii) periodic maintenance procedures or repairs which Contractor or a third party vendor may undertake from time to time, or (iii) causes beyond the control of Contractor or which are not reasonably foreseeable by C ontractor, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively, “Downtime”). All services performed by Contractor pursuant to this Section 11 shall be payable by Client at Contractor’s standard fees and rates. Contractor will provide written notice to Client of any increase in its standard fees and rates. All balances due under any invoices for services rendered by Contractor pursuant to this Section 11 shall be paid by Client within fifteen (15) days of Client’s receipt of the invoice.
12. Indemnification.
11 12.1 Indemnification by Contractor. To the furthest extent allowed by law, CONTRACTOR shall indemnify, hold harmless and defend CLIENT and each of its officers, officials, employees, agents and volunteers from any and all loss , liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by CLIENT, CONTRACTOR or any other person, and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees, litigation expenses and cost to enforce this agreement), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. CONTRACTOR'S obligations under the preceding sentence shall apply regardless of whether CLIENT or any of its officers, officials, employees, agents or volunteers are negligent, but shall not apply to any loss, liability, fi nes, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of CLIENT or any of its officers, officials, employees, agents or volunteers.
If CONTRACTOR should subcontract all or any portion of the work to be performed under this Agreement, CONTRACTOR shall require each subcontractor to indemnify, hold harmless and defend CLIENT and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
General Provisions.
Governing Law; Venue; Service of Process. All matters arising out of or relating to this Agreement, and all the transactions c ontemplated thereby (including, but not limited to validity, interpretation, construction, performance and enforcement), shall be governed by the laws of the State of California without regard to its conflict of law principles. Venue shall lie in Fresno County, California.
Force Majeure. No Party shall be liable to another Party for any failure to perform hereunder caused by any cause beyond said Party’s control, including without limitation fire, earthquake, flood, epidemic, labor shortages, suppl y shortages, delays caused by third party vendors, accident, explosion, casualty, strike, loc kout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God or law, except as expressly provided herein to the contrary. Notwithstanding the foregoing, should such failure to perform last for 180 days, then the Party affected shall be able to terminate this Agreement.
No Waivers. No waiver by any Party to this Agreement of any breach of this Agreement shall be deemed to be a waiver of any preceding or succeeding breach of the same or any other provision hereof. The exercise of any right granted to a Party hereunder shall not operate as a waiver.
Amendment. The terms of this Agreement may not be amended, waived or modified, except by a writing duly signed by the Parties referring to the specific provision to be waived, amended or modified.
Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective a nd valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, il legality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provisions had never been
12 contained herein.
No Representations. No Party has relied upon any representations or statements made by another Party hereto which are not specifically set forth in this Agreement.
Notice. Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given by delive ry, by facsimile, by electronic transmission or e- mail, or by mail (registered or certified mail, pos tage prepaid, return receipt requested) to the respective Party at the addresses set forth on the signature page hereto. The Parties shall be entitled to change its address for purposes of this section by notice to the other. All notices shall be effective upon actual receipt, or upon the passing of five (5) days from the mailing of such notice, whichever occurs first.
Headings. The headings in this Agreement are solely for convenience of reference and shall not affect its interpretation.
Entire Agreement. This Agreement, including exhibits, schedules, and attachments, if any, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces any prior correspondence, negotiations, agreements, understandings and representations with respect thereto.
Execution in Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail or other electronic medium shall have the same force and effect as an original signature.
No Third Party Beneficiar ies. This Agreement shall be binding upon and inure solely to the benefit of the partie s hereto and their respective su ccessors and assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Attorneys’ Fees. In the event any party hereto shall institute an action or arbitration to enforce any rights hereunder, the prevailing party in such action shall be entitled, in addition to any other relief awarded by the court, to such reasonable attorneys’ fees as the court may deem appropriate.
Assignment. None of the parties hereto may assign this Agreement to a third party without the prior written consent of the other. Subject to the preceding sentence, this Agreement shall insure to the benefit of and be binding up on the parties hereto and their successors and permitted assigns.
DISPUTE RESOLUTION. THE PARTIES SHALL SUBMIT ALL DISPUTES, CLAIMS OR
DEMANDS OF ANY KIND RELATING TO OR ARISING OUT OF THIS AGREEMENT (“CONTROVERSY”) TO A THREE-STEP DISPUTE RESOLUTION PROCESS. THE THREE-STEP
PROCESS SHALL (I) BEGIN WITH INFORMAL NEGOTIATION CONDUCTED IN GOOD FAITH; (II) BE FOLLOWED, IF NECESSARY, BY MEDIATION, INITIATED BY WRITTEN
DEMAND OF ONE PARTY SERVED ON THE OTHER, AND IF THE MEDIATOR DETERMINES THAT THE CONTROVERSY CANNOT BE RESOLVED BY MEDIATION, THEN; (III) THE
CONTROVERSY SHALL BE SUBMITTED TO ARBITRATION IN ACCORDANCE WITH THE
RULES AND REGULATIONS OF THE CALIFORNIA ARBITRATION ACT, AND THAT THE
13 PROVISIONS OF SECTION 1283.05 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE
SHALL BE ADOPTED AND USED WITH RESPECT TO THE CONDUCT OF DISCOVERY PRIOR TO ANY SUCH ARBITRATION. THE ARBITRATION AWARD SHALL BE SUPPORTED BY WRITTEN CONCLUSIONS OF LAW AND FACT. APPLICATION MAY BE HAD BY ANY
PARTY TO ANY COURT OF GENERAL JURISDICTION FOR ENTRY AND ENFORCEMENT OF JUDGMENT BASED ON THE ARBITRATION AWARD. THE FOREGOING
NOTWITHSTANDING, EITHER PARTY MAY MAINTAIN, FOR THE PURPOSE OF OBTAINING
A PROVISIONAL REMEDY OR PROVISIONAL RELIEF, ANY UNDERLYING ACTION OR CLAIM ON WHICH SUCH AFFIRMATIVE RELIEF MAY BE BASED. THE COURT, PENDING
MEDIATION OR ARBITRATION OF CLAIMS, SHALL STAY THE PROSECUTION OF SUCH PARTY’S UNDERLYING CLAIMS ON WHICH ANY PROVISIONAL REMEDIES OR RELIEF ARE BASED.
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14 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
CLIENT:
City of Fresno
By:
Print Name:
Title:
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By:
Christine C. Charitar Date
Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:
Date
Deputy
CONTRACTOR:
SOLUTIONS BY DESIGN INC., a
California corporation
By:
Print Name: William Poss
Title: President
15 EXHIBIT A
SEE PROVIDED DISCOVERY DOCUMENT
EXHIBIT B
OPERATING BUDGET AND TIMELINE
Pricing:
Note: We did not include the cost for multiple languages at this point. Not knowing the volume of each medium and how many varied languages may or may not be desired it is not possible to estimate these costs at this point.
Video Wall Configuration Options:
1) 2 Video Walls, 3 Panel x 3 Panel LCD:
Structural Casework Design, Display Cases Fabrication
and Installation: $37,022
2 - 3x3 Panel LCD Clarity Matrix Display Video Walls: $330,956 Video Wall Shipping: $5,000
Planar Team Install Video Walls: $14,923
Directional Speakers 6 Units: $7,375
Misc Hardware and Cabling: $500
Cooling Fan System: $687
Creative and Programming Services
Structural Design and Renderings: $7,425
Project Management and Creative Direction: $20,250
Interface Design and Programming: $24,975
ScreenSaver Motion Graphics: $8,950
Video Production and Special Effects: $24,750
In-studio Interview Videos (3): $15,000
Content Management Archives: $14,800
Installation SBD: $5,000
Total: $517,613
Free-standing Kiosk Towers
1) 4 Tower Kiosks:
17 8 - 55” Touch Displays: $20,000
4 Tower Custom Fabrication: $28,570
8 Thin Clients: $4,100
Bar Speaker Sound System: $800
Shipping: $400
Creative and Programming Services
Structural Design and Renderings: $7,425
Project Management and Creative Direction: $20,250
Graphic Design: $8,000
Interface Design and Programming: $18,000
Floor Mural Graphics $2,500
Installation SBD: $3.080
Total: $113,125
Back-end Management System
Server, Graphics Cards
Cabling
Tower Cases
Drives
Dell Servers
Total $31,049
Sales Tax Not Included, Any Required Construction Not Included
EXHIBIT C
HOSTING AND MAINTENANCE SERVICES
Solutions by Design Service Agreement
SBD provides support, maintenance and monitoring programs for our client’s systems.
Support is based upon a 5 year agreement, unless otherwise stated, and will renew automatically after 59 months unless canceled by the client 60 days in advance.
Support Packages Offered:
Platinum
24-7 Phone, Email, Text Support x
Same Business Day Support x
Phone, Email and Text Support x
Periodic Maintenance x
Software Updates x
Cloud System Storage x
Content Updates x
Staff Training x
Hardware Panel and Module Replacement Services x
Term Definitions:
Client Support:
Solutions by Design will provide the Support Services listed below for the Software and the two contacts ('Designated Contacts').
Solutions by Design will establish and maintain an organization and process to provide support for Software and Systems to our clients. Support shall include (i) diagnosis of problems or performance deficiencies of the Software and (ii) a resolution of the problem or performance deficiencies of the Software. (iii) diagnostic of problems related to hardware, iv) a resolution of the problem or performance deficiencies of the Hardware. Solutions by Design will provide support for the above as well and telephone software support based upon the agreed to level of Support Tier desired by the client.
Periodic Maintenance:
20 Our technical team will do an on-site visit to perform periodic maintenance on each of the provided devices including displays, servers and connectivity. We will check and replace any cables that are not performing up to speed, clean all equipment including surface dust, component dust and repair any casework that is damaged.
The Maintenance Program includes 4 on-site visits per year (ie, quarterly).
Software Updates:
Typical software updates will be necessary for your display environment to perform at its intended level. There are many possible issues that result from a wide variety of occurrences including;
Software Bugs: Complex code engineered to run any environment can and probably will experience bugs caused by a wide variety of reasons. Conflicts in the core code, plug-in updates that conflict with the core code and various minor bugs that may not come into light for weeks, months or even years.
Operating System Conflicts: OS updates provided by MIcrosoft amongst others, can cause a variety of conflicts resulting in a wide variety of problems. Making updates to your system software so that it provides the intended functionality and will be compatible with any OS changes included in your Platinum Support Package.
Security Updates: Security Updates can cause a variety of conflicts. Updating our system software may be required in the event of a conflict.
Virus Protection: We provide Virus Protection to all code.
Kiosk Software Updates and Security: Touch kiosks, in particular, can experience issues including functionality of the IR System and alignment of touch sensitivity.
API Compatibility Changes: Most of our systems utilize integration paths to connect the various utilities required to make your system run. It is very common for these integration paths to be updated to make sure things continue to work.
Cloud Services:
Content developed by SBD that is utilized for your displays will be backed up in case of any number of events such as damage due to vandalism, fire, power surges, conflicts, etc.
21 Cloud storage is required even if data is served via an onsite/local server. Changes to source code, bug fixes, updates and upgrades, content changes, etc. all require rigorous testing before live updates can occur. The Developmental Version of your systems code and content are maintained to make such changes for testing before implementation.
Content Updates:
Our Platinum Support Package includes minor updates to the content on your system.
Animations, images and videos that require updating up to 2 hours per month are included in the Platinum Support Package. (Hours must be used each quarter and may not be rolled forward). Changes such as Key Person changes, program changes (subject based), as well as various other possible date related changes are included.
Training:
Many of our clients have on staff personnel to manage the day-to-day operations of their displays. Basic usage of Video Controllers and Content Management systems, for example, require training to efficiently conduct the day-to-day operations of your components. Initial training is included in your overall project development. SBD will provid e training for new staff members as required.
Monthly Support and Maintenance Fee $5,000/ month
22 Exhibit D
Insurance Requirements
(a) Throughout the life of this Agreement, CONTRACTOR shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by CLIENT'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CLIENT, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, CONTRACTOR or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to CONTRACTOR shall be withheld until notice is received by CLIENT that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CLIENT. Any failure to maintain the required insurance shall be sufficient cause for CLIENT to terminate this Agreement. No action taken by CLIENT pursuant to this section shall in any way relieve CONTRACTOR of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by CLIENT that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by CONTRACTOR shall not be deemed to release or diminish the liability of CONTRACTOR, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CLIENT shall apply to all claims and liability regardless of whether any insurance policies are applicable.
The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONTRACTOR. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONTRACTOR, vendors, suppliers, invitees, contractors, sub-contractors, subcontractors, or anyone employed directly or indirectly by any of them.
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.”
2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of
23 automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non- owned automobiles or other licensed vehicles (Code 1- Any Auto).
3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.
MINIMUM LIMITS OF INSURANCE
CONTRACTOR shall procure and maintain for the duration of the contract insurance with limits of liability not less than those set forth below. However, insurance limits available to CLIENT, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABILITY
(i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY
$1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation Insurance as required by the State of California with statutory limits and EMPLOYER’S LIABILITY with limits of liability not less than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
UMBRELLA OR EXCESS INSURANCE
In the event CONTRACTOR purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CLIENT, its officers, officials, employees, agents and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
CONTRACTOR shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and CONTRACTOR shall also be responsible for payment of any self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
(i) All policies of insurance required he rein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to CLIENT, except ten (10) days for nonpayment of premium. CONTRACTOR is also responsible for providing written notice to the CLIENT under the same terms and conditions. Upon issuance by the insurer,
24 broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, CONTRACTOR shall furnish CLIENT with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CLIENT, CONTRACTOR shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than seven (7) calendar days following to the expiration date of the expiring policy. (ii) The Commercial General and Automobile Liability insurance policies shall be written on an occurrence form.
(iii) The Commercial General and Automobile Liability insurance policies shall be endorsed to name Client, its officers, officials, agents, employees and volunteers as an additional insured for all ongoing and completed operations. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37.
(iv) The Commercial General and Automobile Liability insurance shall contain, or be endorsed to contain, that the CONTRACTORS’ insurance shall be primary to and require no contribution from the Client. These coverages shall contain no special limitations on the scope of protection afforded to Client, its officers, officials, employees, agents and volunteers.
(v) If CONTRACTOR maintains higher limits of liability than the minimums shown above, Client requires and shall be entitled to coverage for the higher limits of liability maintained by CONTRACTOR.
(vi) Should any of these policies provide t hat the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. (vii) All policies of insurance shall contai n, or be endorsed to contain, a waiver of subrogation as to CLIENT, its officers, officials, agents, employees and volunteers.
PROVIDING OF DOCUMENTS
CONTRACTOR shall furnish CLIENT with all certificate(s) and applicable endorsements effecting coverage required herein All certificates and applicable endorsements are to be received and approved by the CLIENT’S Risk Manager or his/her designee prior to CLIENT’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CLIENT, CONTRACTOR shall immediately furnish CLIENT with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All subcontractors working under the direction of CONTRACTOR shall also be required to provide all documents noted herein.
SUBCONTRACTORS
If CONTRACTOR subcontracts any or all of the services to be performed under this Agreement, CONTRACTOR shall require, at the discretion of the CLIENT Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the Client to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CLIENT Risk Manager or designee. If no Side Agreement
25 is required, CONTRACTOR will be solely responsible for ensuring that it’s subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry.