Policy-Based Sharing rules engine including a complete chain of custody report of video access by user Real Time Integration with our Department’s Computer Aided Dispatch Software (CAD) for automatic display of calls for service in relation to live and recorded video based on priority and type
Apple iOS Interoperability for Live View and Sharing of Incident Video, Map Telestration for Team Incident Response and Team Movement Coordination, and a Secure Chat of Digital Media by supervisors to field-based users and groups Artificial Intelligence Search (rapid object-based video review) & Sentry (real-time objectbased alerting) capabilities An Operational Dashboard for monitoring secure chat channels between your and business community stakeholders, social media integration, local and national news channels, daily operational briefs promulgated by the Department, and emergency and safety-related notifications
Patented fususALERT™ panic alerting mobile app for Department-designated community member locations for location alerting and policy-based video sharing during critical incidents
FususNOTIFY™ mass notification capabilities for community SMS alerts The original PSA expiration date was February 28, 2024. Due to implementation delays, an extension was granted until June 28, 2024. Following the acquisition of Fusus in February 2024, the company now operates under Axon Enterprise, Inc.
DISCUSSION:
Over the past 17 months, the MPD RTCC has utilized the Fusus RTCC Dashboard to enhance its operational capabilities. Fusus’ technology has enabled efficient monitoring of field personnel, community calls for service, automated license plate reader hits, live camera feeds, alerting systems, live video streams from city and community-registered cameras, a live tip line, and emergency alerting technology. This integration of diverse technology databases into a single platform has significantly boosted the RTCC's effectiveness and responsiveness, ensuring the safety and security of both the community and law enforcement personnel.
In addition to Fusus, department staff also evaluated other available RTCC dashboards, including Genetec-Citigraf, and Spatialitics-Geoshield. The assessment revealed both Citigraf and Geoshield lacked a seamless integration of MPD’s current Axon Body Worn Camera system, did not have a robust single-pane view compared to Fusus, and did not possess the exclusive patented SMS-Based FususTIPS, FususALERT, and Dispatch-Directed Payload technologies that MPD deems critical to a fully mature and effective RTCC. The Fusus platform’s instant notification capabilities and patents for specialized real-time crime tools distinguish it as the more advanced software option.
Modesto Municipal Code Section 8-3.203 generally requires all purchases which meet or exceed $100,000 for material, equipment, or contractual services to follow formal bid procedures. However, MMC 8-3.204(b) provides that a purchase may be exempted from the City’s formal bidding requirement where the Purchasing Agency’s requirements can be met solely by a single article or process. Axon Enterprise, Inc. is the sole source for purchasing Fusus products and services. Fusus provides a robust and open ecosystem that can integrate with most data sources, including public and community video feeds via Fusus cores, automated license plate reader cameras, alerting (patented), tip line (patented), live video feeds, drones, and aircraft feeds. This ensures a consistent flow of real-time data and intelligence into #16..
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City Council, 9/24/2024
Axon Enterprise, Inc – Fusus Real-Time Public Safety Operations Solution
one platform for improved efficiency and collaboration with public safety personnel as well as community engagement features that will provide alternative quick reporting directly to our real time crime center. Therefore, staff recommends the Fusus Real-Time Public Safety Operations Solution Agreement with Axon Enterprise, Inc. should be exempt from the formal bidding procedures in accordance with Modesto Municipal Code Section 8-3.204(b) since Axon Enterprise, Inc. is the Sole Provider of the Fusus Real-Time Public Safety Operations Solution products and services.
FISCAL IMPACT:
Funding for the requested three-year agreement with Axon Enterprise, Inc., to purchase the Fusus product is not to exceed $410,000 and will be purchased with funds from the Organized Retail Theft Prevention Grant (ORT) (Project # 101537 - $391,250 budgeted) and Supplemental Law Enforcement Services Funds (SLESF) (the remaining $18,750). The initial trial year of Fusus was paid through the department’s SLESF (Project # 101284). The annual cost breakdown is shown below, in addition to the one-year trial the department has completed:
Description Actual Costs Incurred Proposed Agreement Cost Initial Trial Year $50,000 n/a
Proposed Agreement Year 1 n/a $125,000
Proposed Agreement Year 2 n/a $135,000
Proposed Agreement Year 3 n/a $150,000
Totals: $50,000 $410,000
This purchase will not impact the General Fund.
COMMITTEE RECOMMENDATION:
This item was presented to the Safety and Communities Committee on August 12, 2024, and the committee recommended forwarding this item to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the Sole Source Agreement with Axon Enterprise, Inc., Scottsdale, AZ for Fusus Real-Time Public Safety Operations Solution for a three-year Agreement, for a total amount not to exceed $410,000; and authorizing the City Manager, or his designee, to execute the Agreement.
Approved by:
Brandon Gillespie, Chief of Police
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Quote and Master Services Agreement
3. Signed Bid Waiver (Including Sole Source Letter)
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2024-?
RESOLUTION APPROVING THE SOLE SOURCE AGREEMENT WITH AXON ENTERPRISE, INC. SCOTTSDALE, AZ, FOR FUSUS REAL-TIME PUBLIC
SAFETY OPERATIONS SOLUTION FOR A THREE-YEAR AGREEMENT,
FOR A TOTAL AMOUNT NOT TO EXCEED $410,000; AND AUTHORIZING
THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE THE AGREEMENT WHEREAS, the Modesto Police Department (MPD) implemented a Real Time Crime Center (RTCC) in 2016 to enhance the real-time support and delivery of police and public safety services for the community; and
WHERAS, the RTCC processes and analyzes calls for service, intelligence, and data from multiple sources in real-time, utilizing a video wall with live feeds from the City’s camera networks; and
WHEREAS, centralizing all data sources into a single interface is crucial for improving the operational efficiency of RTCC staff and the response capabilities and situational awareness of field officers; and
WHEREAS, the MPD RTCC utilized the Fusus RTCC Dashboard to enhance its operational capabilities during an evaluation period of approximately 17 months; and WHEREAS, in addition to Fusus, department staff also evaluated other available RTCC dashboards, including Genetec-Citigraf, and Spatialitics-Geoshield; and WHEREAS, the assessment revealed both Citigraf and Geoshield lacked a seamless integration of MPD’s current bodyworn camera system, did not have a robust single-pane view compared to Fusus, and did not possess the exclusive patented SMSbased FususTIPS, FususALERT and Dispatch-Directed Payload technologies that MPD deems critical to a fully mature and effective RTCC; and #16..
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2 WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment or contractual services to be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204(b) provides that a purchase may be exempted from the City’s formal bidding requirement where the Purchasing Agency’s requirements can be met solely by a single article or process. Axon Enterprise, Inc. is the sole source for purchasing Fusus products and services. Fusus provides a robust and open ecosystem that can integrate with most data sources, including public and community video feeds via Fusus cores, automated license plate reader cameras, altering (patented), tip line (patented), live video feeds, drones, and aircraft feeds. This ensures a consistent flow of real-time data and intelligence into one platform for improved efficiency and collaboration with public safety personnel as well as community engagement features that will provide alternative quick reporting directly to our real time crime center.
Therefore, staff recommends the Fusus Real-Time Public Safety Operations Solution Agreement with Axon Enterprise, Inc. should be exempt from the formal bidding procedures in accordance with Modesto Municipal Code Section 8-3.204(b) since Axon Enterprise, Inc. is the Sole Provider of the Fusus Real-Time Public Safety Operations Solution products and services.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto approves the Sole Source Agreement with Axon Enterprise, Inc., Scottsdale, AZ, for Fusus Real-Time Public Safety Operations Solution for a three-year Agreement, for a total amount not to exceed $410,000.
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3 BE IT FURTHER RESOLVED that the City Manager, or his designee, is authorized to execute the Agreement, in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 24th day of September, 2024, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: _______________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________________
JOSE M. SANCHEZ, City Attorney
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Q-576863-45463.888TS
Issued: 06/20/2024
Quote Expiration: 09/30/2024
Estimated Contract Start Date: 08/01/2024
Account Number: 113387
Payment Terms: N30
Delivery Method:
SHIP TO BILL TO SALES REPRESENTATIVE PRIMARY CONTACT
Modesto Police Dept. - CA
600 10th St
Modesto,
CA
95354-3506
USA
Modesto Police Dept. - CA
PO Box 642
Modesto
CA
95353-0642
USA
Email:
Cynthia Cote
Phone:
Email: [email protected]
Fax:
Ivan Valencia
Phone: (209) 342-6132
Email: [email protected]
Fax: (209) 572-9629
Quote Summary Discount Summary
Program Length 36 Months Average Savings Per Year $29,028.33 TOTAL COST $410,000.00
ESTIMATED TOTAL W/ TAX $410,000.00 TOTAL SAVINGS $87,085.00 Axon Enterprise, Inc.
17800 N 85th St.
Scottsdale, Arizona 85255
United States
VAT: 86-0741227
Domestic: (800) 978-2737
International: +1.800.978.2737
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Payment Summary
Date Subtotal Tax Total
Aug 2024 $125,000.00 $0.00 $125,000.00
Aug 2025 $135,000.00 $0.00 $135,000.00
Aug 2026 $150,000.00 $0.00 $150,000.00
Total $410,000.00 $0.00 $410,000.00
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Quote Unbundled Price: $497,085.00
Quote List Price: $497,085.00
Quote Subtotal: $410,000.00
Pricing
All deliverables are detailed in Delivery Schedules section lower in proposal Item Description Qty Term Unbundled List Price Net Price Subtotal Tax Total A la Carte Hardware
101409 AXON RESPOND - FUSUSCORE - LISTEN 1 $600.00 $0.00 $0.00 $0.00 $0.00 101408 AXON RESPOND - FUSUSCORE - CAD 1 $600.00 $0.00 $0.00 $0.00 $0.00 A la Carte Software
101358 AXON RESPOND - FUSUSONE - ENTERPRISE LEVEL
SAAS 1 36 $13,010.00 $11,388.89 $410,000.00 $0.00 $410,000.00 A la Carte Services
101422 AXON RESPOND - FUSUS HARDWARE DEPLOYMENT 13 $425.00 $0.00 $0.00 $0.00 $0.00 101421 AXON RESPOND - FUSUS SOFTWARE
IMPLEMENTATION 1 $22,000.00 $0.00 $0.00 $0.00 $0.00
A la Carte Warranties
101424 AXON RESPOND - FUSUSCORE - EXTENDED
WARRANTY 30 24 $0.00 $0.00 $0.00 $0.00 $0.00
Total $410,000.00 $0.00 $410,000.00
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Delivery Schedule
Hardware
Bundle Item Description QTY Shipping Location Estimated Delivery Date A la Carte 101408 AXON RESPOND - FUSUSCORE - CAD 1 1 08/01/2024 A la Carte 101409 AXON RESPOND - FUSUSCORE - LISTEN 1 1 08/01/2024 Software
Bundle Item Description QTY Estimated Start Date Estimated End Date A la Carte 101358 AXON RESPOND - FUSUSONE - ENTERPRISE LEVEL SAAS 1 08/01/2024 07/31/2027 Services
Bundle Item Description QTY
A la Carte 101421 AXON RESPOND - FUSUS SOFTWARE IMPLEMENTATION 1 A la Carte 101422 AXON RESPOND - FUSUS HARDWARE DEPLOYMENT 13 Warranties
Bundle Item Description QTY Estimated Start Date Estimated End Date A la Carte 101424 AXON RESPOND - FUSUSCORE - EXTENDED WARRANTY 30 08/01/2025 07/31/2027 #16..
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Shipping Locations
Location Number Street City State Zip Country
1 600 10th St Modesto CA 95354-3506 USA
Payment Details
Aug 2024
Invoice Plan Item Description Qty Subtotal Tax Total
Year 1 101358 AXON RESPOND - FUSUSONE - ENTERPRISE LEVEL SAAS 1 $125,000.00 $0.00 $125,000.00 Year 1 101408 AXON RESPOND - FUSUSCORE - CAD 1 $0.00 $0.00 $0.00 Year 1 101409 AXON RESPOND - FUSUSCORE - LISTEN 1 $0.00 $0.00 $0.00 Year 1 101421 AXON RESPOND - FUSUS SOFTWARE IMPLEMENTATION 1 $0.00 $0.00 $0.00 Year 1 101422 AXON RESPOND - FUSUS HARDWARE DEPLOYMENT 13 $0.00 $0.00 $0.00 Year 1 101424 AXON RESPOND - FUSUSCORE - EXTENDED WARRANTY 30 $0.00 $0.00 $0.00 Total $125,000.00 $0.00 $125,000.00
Aug 2025
Invoice Plan Item Description Qty Subtotal Tax Total
Year 2 101358 AXON RESPOND - FUSUSONE - ENTERPRISE LEVEL SAAS 1 $135,000.00 $0.00 $135,000.00 Year 2 101408 AXON RESPOND - FUSUSCORE - CAD 1 $0.00 $0.00 $0.00 Year 2 101409 AXON RESPOND - FUSUSCORE - LISTEN 1 $0.00 $0.00 $0.00 Year 2 101421 AXON RESPOND - FUSUS SOFTWARE IMPLEMENTATION 1 $0.00 $0.00 $0.00 Year 2 101422 AXON RESPOND - FUSUS HARDWARE DEPLOYMENT 13 $0.00 $0.00 $0.00 Year 2 101424 AXON RESPOND - FUSUSCORE - EXTENDED WARRANTY 30 $0.00 $0.00 $0.00 Total $135,000.00 $0.00 $135,000.00
Aug 2026
Invoice Plan Item Description Qty Subtotal Tax Total
Year 3 101358 AXON RESPOND - FUSUSONE - ENTERPRISE LEVEL SAAS 1 $150,000.00 $0.00 $150,000.00 Year 3 101408 AXON RESPOND - FUSUSCORE - CAD 1 $0.00 $0.00 $0.00 Year 3 101409 AXON RESPOND - FUSUSCORE - LISTEN 1 $0.00 $0.00 $0.00 Year 3 101421 AXON RESPOND - FUSUS SOFTWARE IMPLEMENTATION 1 $0.00 $0.00 $0.00 Year 3 101422 AXON RESPOND - FUSUS HARDWARE DEPLOYMENT 13 $0.00 $0.00 $0.00 Year 3 101424 AXON RESPOND - FUSUSCORE - EXTENDED WARRANTY 30 $0.00 $0.00 $0.00 Total $150,000.00 $0.00 $150,000.00
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Tax is estimated based on rates applicable at date of quote and subject to change at time of invoicing. If a tax exemption certificate should be applied, please submit prior to invoicing.
Standard Terms and Conditions
Axon Enterprise Inc. Sales Terms and Conditions
Axon Master Services and Purchasing Agreement:
This Quote is limited to and conditional upon your acceptance of the provisions set forth herein and Axon’s Master Services and Purchasing Agreement (posted at https://www.axon.com/sales-terms-and-conditions), as well as the attached Statement of Work (SOW) for Axon Fleet and/or Axon Interview Room purchase, if applicable. In the event you and Axon have entered into a prior agreement to govern all future purchases, that agreement shall govern to the extent it includes the products and services being purchased and does not conflict with the Axon Customer Experience Improvement Program Appendix as described below.
ACEIP:
The Axon Customer Experience Improvement Program Appendix, which includes the sharing of de-identified segments of Agency Content with Axon to develop new products and improve your product experience (posted at www.axon.com/legal/sales-terms-and-conditions), is incorporated herein by reference. By signing below, you agree to the terms of the Axon Customer Experience Improvement Program.
Acceptance of Terms:
Any purchase order issued in response to this Quote is subject solely to the above referenced terms and conditions. By signing below, you represent that you are lawfully able to enter into contracts. If you are signing on behalf of an entity (including but not limited to the company, municipality, or government agency for whom you work), you represent to Axon that you have legal authority to bind that entity. If you do not have this authority, please do not sign this Quote. #16..
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\s1\ \d1\
Signature Date Signed
6/20/2024
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Master Services and Purchasing Agreement for Customer
Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 1 of 43
This Master Services and Purchasing Agreement ("Agreement") is between Axon Enterprise, Inc. ("Axon"), and the customer listed below or, if no customer is listed below, the customer on the Quote attached hereto ("Customer").
This Agreement is effective as of the later of the (a) last signature date on this Agreement or (b) date of acceptance of the Quote ("Effective Date"). Axon and Customer are each a "Party" and collectively "Parties". This Agreement governs Customer’s purchase and use of the Axon Devices and Services detailed in the Quote Appendix ("Quote"). It is the intent of the Parties that this Agreement will govern all subsequent purchases by Customer for the same Axon Devices and Services in the Quote, and all such subsequent quotes accepted by Customer shall be also incorporated into this Agreement by reference as a Quote. The Parties agree as follows:
1. Definitions.
1.1. "Axon Cloud Services" means Axon’s web services, including but not limited to, Axon Evidence, Axon Records, Axon Dispatch, FUSUS services and interactions between Axon Evidence and Axon Devices or Axon client software. Axon Cloud Service excludes third-party applications, hardware warranties, and my.evidence.com.
1.2. "Axon Device" means all hardware provided by Axon under this Agreement. Axon-manufactured Devices are a subset of Axon Devices.
1.3. "Quote" means an offer to sell and is only valid for devices and services on the offer at the specified prices.
Any inconsistent or supplemental terms within Customer’s purchase order in response to a Quote will be void.
Orders are subject to prior credit approval. Changes in the deployment estimated ship date may change charges in the Quote. Shipping dates are estimates only. Axon is not responsible for typographical errors in any Quote by Axon, and Axon reserves the right to cancel any orders resulting from such errors.
1.4. "Services" means all services provided by Axon under this Agreement, including software, Axon Cloud Services, and professional services.
2. Term. This Agreement begins on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated ("Term").
2.1. All subscriptions including Axon Evidence, Axon Fleet, Officer Safety Plans, Technology Assurance Plans, and TASER 7 or TASER 10 plans begin on the date stated in the Quote. Each subscription term ends upon completion of the subscription stated in the Quote ("Subscription Term").
2.2. Upon completion of the Subscription Term, the Subscription Term will automatically renew for an additional 5 years ("Renewal Term"). For purchase of TASER 7 or TASER 10 as a standalone, Axon may increase pricing to its then-current list pricing for any Renewal Term. For all other purchases, Axon may increase pricing on all line items in the Quote by up to 3% at the beginning of each year of the Renewal Term. New devices and services may require additional terms. Axon will not authorize services until Axon receives a signed Quote or accepts a purchase order, whichever is first.
3. Payment. Axon invoices for Axon Devices upon shipment, or on the date specified within the invoicing plan in the Quote. Payment is due net 30 days from the invoice date. Axon invoices for Axon Cloud Services on an upfront yearly basis prior to the beginning of the Subscription Term and upon the anniversary of the Subscription Term. Payment obligations are non-cancelable. Unless otherwise prohibited by law, Customer will pay interest on all past-due sums at the lower of one-and-a-half percent (1.5%) per month or the highest rate allowed by law. Customer will pay invoices without setoff, deduction, or withholding. If Axon sends a past due account to collections, Customer is responsible for collection and attorneys’ fees.
4. Taxes. Customer is responsible for sales and other taxes associated with the order unless Customer provides Axon a valid tax exemption certificate.
5. Shipping. Axon may make partial shipments and ship Axon Devices from multiple locations. All shipments are EXW (Incoterms 2020) via common carrier. Title and risk of loss pass to Customer upon Axon’s delivery to the common carrier. Customer is responsible for any shipping charges in the Quote.
6. Returns. All sales are final. Axon does not allow refunds or exchanges, except warranty returns or as provided by state or federal law.
7. Warranty.
7.1. Limited Warranty. Axon warrants that Axon-manufactured Devices are free from defects in workmanship and materials for one (1) year from the date of Customer’s receipt, except Signal Sidearm and Axon-manufactured accessories, which Axon warrants for thirty (30) months and ninety (90) days, respectively, from the date of Customer’s receipt. Used conducted energy weapon ("CEW") cartridges are deemed to have operated properly. Extended warranties run from the expiration of the one (1) year hardware warranty through the extended warranty term purchased.
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Master Services and Purchasing Agreement for Customer
Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 2 of 43
7.2. Disclaimer. All software and Axon Cloud Services are provided "AS IS," without any warranty of any kind, either express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Axon Devices and Services that are not manufactured, published or performed by Axon ("Third-Party Products") are not covered by Axon’s warranty and are only subject to the warranties of the third-party provider or manufacturer.
7.3. Claims. If Axon receives a valid warranty claim for an Axon-manufactured Device during the warranty term, Axon’s sole responsibility is to repair or replace the Axon-manufactured Device with the same or like Axonmanufactured Device, at Axon’s option. A replacement Axon-manufactured Device will be new or like new.
Axon will warrant the replacement Axon-manufactured Device for the longer of (a) the remaining warranty of the original Axon-manufactured Device or (b) ninety (90) days from the date of repair or replacement.
7.3.1. If Customer exchanges an Axon Device or part, the replacement item becomes Customer’s property, and the replaced item becomes Axon’s property. Before delivering an Axon-manufactured Device for service, Customer must upload Axon-manufactured Device data to Axon Evidence or download it and retain a copy. Axon is not responsible for any loss of software, data, or other information contained in storage media or any part of the Axon-manufactured Device sent to Axon for service.
7.4. Spare Axon Devices. At Axon's reasonable discretion, Axon may provide Customer a predetermined number of spare Axon Devices as detailed in the Quote ("Spare Axon Devices"). Spare Axon Devices are intended to replace broken or non-functioning units while Customer submits the broken or non-functioning units, through Axon’s warranty return process. Axon will repair or replace the unit with a replacement Axon Device. Title and risk of loss for all Spare Axon Devices shall pass to Customer in accordance with shipping terms under Section
5. Axon assumes no liability or obligation in the event Customer does not utilize Spare Axon Devices for the intended purpose.
7.5. Limitations. Axon’s warranty excludes damage related to: (a) failure to follow Axon Device use instructions; (b) Axon Devices used with equipment not manufactured or recommended by Axon; (c) abuse, misuse, or intentional damage to Axon Device; (d) force majeure; (e) Axon Devices repaired or modified by persons other than Axon without Axon’s written permission; or (f) Axon Devices with a defaced or removed serial number.
Axon’s warranty will be void if Customer resells Axon Devices.
7.5.1.To the extent permitted by law, the above warranties and remedies are exclusive. Axon disclaims all other warranties, remedies, and conditions, whether oral, written, statutory, or implied. If statutory or implied warranties cannot be lawfully disclaimed, then such warranties are limited to the duration of the warranty described above and by the provisions in this Agreement. Customer confirms and agrees that, in deciding whether to sign this Agreement, it has not relied on any statement or representation by Axon or anyone acting on behalf of Axon related to the subject matter of this Agreement that is not in this Agreement.
7.5.2. Axon’s cumulative liability to any party for any loss or damage resulting from any claim, demand, or action arising out of or relating to this Agreement will not exceed the purchase price paid to Axon for the Axon Device, or if for Services, the amount paid for such Services over the twelve (12) months preceding the claim. Neither Party will be liable for special, indirect, incidental, punitive or consequential damages, however caused, whether for breach of warranty or contract, negligence, strict liability, tort or any other legal theory.
7.6. Online Support Platforms. Use of Axon's online support platforms (e.g., Axon Academy and MyAxon) is governed by the Axon Online Support Platforms Terms of Use Appendix available at www.axon.com/salesterms-and-conditions.
7.7. Third-Party Software and Services. Use of software or services other than those provided by Axon is governed by the terms, if any, entered into between Customer and the respective third-party provider, including, without limitation, the terms applicable to such software or services located at www.axon.com/sales-termsand-conditions, if any.
7.8. Axon Aid. Upon mutual agreement between Axon and Customer, Axon may provide certain products and services to Customer, as a charitable donation under the Axon Aid program. In such event, Customer expressly waives and releases any and all claims, now known or hereafter known, against Axon and its officers, directors, employees, agents, contractors, affiliates, successors, and assigns (collectively, "Releasees"), including but not limited to, on account of injury, death, property damage, or loss of data, arising out of or attributable to the Axon Aid program whether arising out of the negligence of any Releasees or otherwise. Customer agrees not to make or bring any such claim against any Releasee, and forever release and discharge all Releasees from liability under such claims. Customer expressly allows Axon to publicly announce its participation in Axon Aid and use its name in marketing materials. Axon may terminate the Axon Aid program without cause immediately #16..
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Master Services and Purchasing Agreement for Customer
Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 3 of 43
upon notice to the Customer.
8. Statement of Work. Certain Axon Devices and Services, including Axon Interview Room, Axon Channel Services, and Axon Fleet, may require a Statement of Work that details Axon’s Service deliverables ("SOW"). In the event Axon provides an SOW to Customer, Axon is only responsible for the performance of Services described in the SOW.
Additional services are out of scope. The Parties must document scope changes in a written and signed change order. Changes may require an equitable adjustment in fees or schedule. The SOW is incorporated into this Agreement by reference.
9. Axon Device Warnings. See www.axon.com/legal for the most current Axon Device warnings.
10. Design Changes. Axon may make design changes to any Axon Device or Service without notifying Customer or making the same change to Axon Devices and Services previously purchased by Customer.
11. Bundled Offerings. Some offerings in bundled offerings may not be generally available at the time of Customer’s purchase. Axon will not provide a refund, credit, or additional discount beyond what is in the Quote due to a delay of availability or Customer’s election not to utilize any portion of an Axon bundle.
12. Insurance. Axon will maintain General Liability, Workers’ Compensation, and Automobile Liability insurance. Upon request, Axon will supply certificates of insurance.
13. IP Rights. Axon owns and reserves all right, title, and interest in Axon-manufactured Devices and Services and suggestions to Axon, including all related intellectual property rights. Customer will not cause any Axon proprietary rights to be violated.
14. IP Indemnification. Axon will indemnify Customer against all claims, losses, and reasonable expenses from any third-party claim alleging that the use of Axon-manufactured Devices or Services infringes or misappropriates the third-party’s intellectual property rights. Customer must promptly provide Axon with written notice of such claim, tender to Axon the defense or settlement of such claim at Axon’s expense and cooperate fully with Axon in the defense or settlement of such claim. Axon’s IP indemnification obligations do not apply to claims based on (a) modification of Axon-manufactured Devices or Services by Customer or a third-party not approved by Axon; (b) use of Axonmanufactured Devices and Services in combination with hardware or services not approved by Axon; (c) use of Axon Devices and Services other than as permitted in this Agreement; or (d) use of Axon software that is not the most current release provided by Axon.
15. Customer Responsibilities. Customer is responsible for (a) Customer’s use of Axon Devices; (b) breach of this Agreement or violation of applicable law by Customer or an Customer end user; (c) disputes between Customer and a third-party over Customer’s use of Axon Devices; (d) ensuring Axon Devices are destroyed and disposed of securely and sustainably at Customer’s cost; and (e) any regulatory violations or fines, as a result of improper destruction or disposal of Axon Devices.
16. Termination.
16.1. For Breach. A Party may terminate this Agreement for cause if it provides thirty (30) days written notice of the breach to the other Party, and the breach remains uncured at the end of thirty (30) days. If Customer terminates this Agreement due to Axon’s uncured breach, Axon will refund prepaid amounts on a prorated basis based on the effective date of termination.
16.2. By Customer. If sufficient funds are not appropriated or otherwise legally available to pay the fees, Customer may terminate this Agreement. Customer will deliver notice of termination under this section as soon as reasonably practicable.
16.3. Effect of Termination. Upon termination of this Agreement, Customer rights immediately terminate. Customer remains responsible for all fees incurred before the effective date of termination. If Customer purchases Axon Devices for less than the manufacturer’s suggested retail price ("MSRP") and this Agreement terminates before the end of the Term, Axon will invoice Customer the difference between the MSRP for Axon Devices received, including any Spare Axon Devices, and amounts paid towards those Axon Devices. Only if terminating for nonappropriation, Customer may return Axon Devices to Axon within thirty (30) days of termination. MSRP is the standalone price of the individual Axon Device at the time of sale. For bundled Axon Devices, MSRP is the standalone price of all individual components.
17. Confidentiality. "Confidential Information" means nonpublic information designated as confidential or, given the nature of the information or circumstances surrounding disclosure, should reasonably be understood to be confidential. Each Party will take reasonable measures to avoid disclosure, dissemination, or unauthorized use of the other Party’s Confidential Information. Unless required by law, neither Party will disclose the other Party’s Confidential Information during the Term and for five (5) years thereafter. To the extent permissible by law, Axon pricing is Confidential Information and competition sensitive. If Customer receives a public records request to disclose Axon #16..
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Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
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Confidential Information, to the extent allowed by law, Customer will provide notice to Axon before disclosure. Axon may publicly announce information related to this Agreement.
18. General.
18.1. Force Majeure. Neither Party will be liable for any delay or failure to perform due to a cause beyond a Party’s reasonable control.
18.2. Independent Contractors. The Parties are independent contractors. Neither Party has the authority to bind the other. This Agreement does not create a partnership, franchise, joint venture, Customer, fiduciary, or employment relationship between the Parties.
18.3. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
18.4. Non-Discrimination. Neither Party nor its employees will discriminate against any person based on race; religion; creed; color; sex; gender identity and expression; pregnancy; childbirth; breastfeeding; medical conditions related to pregnancy, childbirth, or breastfeeding; sexual orientation; marital status; age; national origin; ancestry; genetic information; disability; veteran status; or any class protected by local, state, or federal law.
18.5. Export Compliance. Each Party will comply with all import and export control laws and regulations.
18.6. Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent. Axon may assign this Agreement, its rights, or obligations without consent: (a) to an affiliate or subsidiary; or (b) for purposes of financing, merger, acquisition, corporate reorganization, or sale of all or substantially all its assets.
This Agreement is binding upon the Parties respective successors and assigns.
18.7. Waiver. No waiver or delay by either Party in exercising any right under this Agreement constitutes a waiver of that right.
18.8. Severability. If a court of competent jurisdiction holds any portion of this Agreement invalid or unenforceable, the remaining portions of this Agreement will remain in effect.
18.9. Survival. The following sections will survive termination: Payment, Warranty, Axon Device Warnings, Indemnification, IP Rights, Customer Responsibilities and any other Sections detailed in the survival sections of the Appendices.
18.10.Governing Law. The laws of the country, state, province, or municipality where Customer is physically located, without reference to conflict of law rules, govern this Agreement and any dispute arising from it. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
18.11.Notices. All notices must be in English. Notices posted on Customer’s Axon Evidence site are effective upon posting. Notices by email are effective on the sent date of the email. Notices by personal delivery are effective immediately. Notices to Customer shall be provided to the address on file with Axon. Notices to Axon shall be provided to Axon Enterprise, Inc., Attn: Legal, 17800 North 85th Street, Scottsdale, Arizona 85255 with a copy to [email protected].
18.12 Entire Agreement. This Agreement, the Appendices, including any applicable Appendices not attached herein for the products and services purchased, which are incorporated by reference and located in the Master Purchasing and Services Agreement located at https://www.axon.com/sales-terms-and-conditions, Quote and any SOW(s), represents the entire agreement between the Parties. This Agreement supersedes all prior agreements or understandings, whether written or verbal, regarding the subject matter of this Agreement. This Agreement may only be modified or amended in a writing signed by the Parties. #16..
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Master Services and Purchasing Agreement for Customer
Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 5 of 43
Each Party, by and through its respective representative authorized to execute this Agreement, has duly executed and delivered this Agreement as of the date of signature.
AXON: CUSTOMER:
Axon Enterprise, Inc. ___________________________
Signature: Signature:
Name: Name:
Title: Title:
Date: Date:
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Master Services and Purchasing Agreement for Customer
Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 6 of 43
Axon Cloud Services Terms of Use Appendix
1. Definitions.
a. "Customer Content" is data uploaded into, ingested by, or created in Axon Cloud Services within Customer’s tenant, including media or multimedia uploaded into Axon Cloud Services by Customer.
Customer Content includes Evidence but excludes Non-Content Data. b. "Evidence" is media or multimedia uploaded into Axon Evidence as 'evidence' by an Customer.
Evidence is a subset of Customer Content.
c. "Non-Content Data" is data, configuration, and usage information about Customer’s Axon Cloud Services tenant, Axon Devices and client software, and users that is transmitted or generated when using Axon Devices. Non-Content Data includes data about users captured during account management and customer support activities. Non-Content Data does not include Customer Content. d. "Personal Data" means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
e. “Provided Data” means de-identified, de-personalized, data derived from Customer's TASER energy weapon deployment reports, related TASER energy weapon logs, body-worn camera footage, and incident reports.
f. “Transformed Data” means the Provided Data used for the purpose of quantitative evaluation of the performance and effectiveness of TASER energy weapons in the field across a variety of circumstances.
2. Access. Upon Axon granting Customer a subscription to Axon Cloud Services, Customer may access and use Axon Cloud Services to store and manage Customer Content. Customer may not exceed more end users than the Quote specifies. Axon Air requires an Axon Evidence subscription for each drone operator. For Axon Evidence Lite, Customer may access and use Axon Evidence only to store and manage TASER CEW and TASER CAM data ("TASER Data"). Customer may not upload non-TASER Data to Axon Evidence Lite.
3. Customer Owns Customer Content. Customer controls and owns all right, title, and interest in Customer Content. Except as outlined herein, Axon obtains no interest in Customer Content, and Customer Content is not Axon’s business records. Customer is solely responsible for uploading, sharing, managing, and deleting Customer Content. Axon will only have access to Customer Content for the limited purposes set forth herein. Customer agrees to allow Axon access to Customer Content to (a) perform troubleshooting, maintenance, or diagnostic screenings; and (b) enforce this Agreement or policies governing use of the Axon products.
4. Security. Axon will implement commercially reasonable and appropriate measures to secure Customer Content against accidental or unlawful loss, access or disclosure. Axon will maintain a comprehensive information security program to protect Axon Cloud Services and Customer Content including logical, physical access, vulnerability, risk, and configuration management; incident monitoring and response; encryption of uploaded digital evidence; security education; and data protection. Axon agrees to the Federal Bureau of Investigation Criminal Justice Information Services Security Addendum for its digital evidence management systems or records.
5. Customer Responsibilities. Customer is responsible for (a) ensuring Customer owns Customer Content; (b) ensuring no Customer Content or Customer end user’s use of Customer Content or Axon Cloud Services violates this Agreement or applicable laws; and (c) maintaining necessary computer equipment and Internet connections for use of Axon Cloud Services. If Customer becomes aware of any violation of this Agreement by an end user, Customer will immediately terminate that end user’s access to Axon Cloud Services. a. Customer will also maintain the security of end usernames and passwords and security and access by end users to Customer Content. Customer is responsible for ensuring the configuration and utilization of Axon Cloud Services meet applicable Customer regulation and standards. Customer may not sell, transfer, or sublicense access to any other entity or person. Customer shall contact Axon immediately if an unauthorized party may be using Customer’s account or Customer Content, or if account information is lost or stolen.
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6. Privacy. Customer’s use of Axon Cloud Services is subject to the Axon Cloud Services Privacy Policy, a current version of which is available at https://www.axon.com/legal/cloud-services-privacy-policy. Customer agrees to allow Axon access to Non-Content Data from Customer to (a) perform troubleshooting, maintenance, or diagnostic screenings; (b) provide, develop, improve, and support current and future Axon products and related services; and (c) enforce this Agreement or policies governing the use of Axon products.
7. Axon Body Wi-Fi Positioning. Axon Body cameras may offer a feature to enhance location services where GPS/GNSS signals may not be available, for instance, within buildings or underground. Customer administrators can manage their choice to use this service within the administrative features of Axon Cloud Services. If Customer chooses to use this service, Axon must also enable the usage of the feature for Customer’s Axon Cloud Services tenant. Customer will not see this option with Axon Cloud Services unless Axon has enabled Wi-Fi Positioning for Customer’s Axon Cloud Services tenant. When Wi-Fi Positioning is enabled by both Axon and Customer, NonContent and Personal Data will be sent to Skyhook Holdings, Inc. ("Skyhook") to facilitate the Wi-Fi Positioning functionality. Data controlled by Skyhook is outside the scope of the Axon Cloud Services Privacy Policy and is subject to the Skyhook Services Privacy Policy.
8. Storage. For Axon Unlimited Device Storage subscriptions, Customer may store unlimited data in Customer's Axon Evidence account only if data originates from Axon Capture or the applicable Axon Device. Axon may charge Customer additional fees for exceeding purchased storage amounts. Axon may place Customer Content that Customer has not viewed or accessed for six (6) months into archival storage. Customer Content in archival storage will not have immediate availability and may take up to twenty-four (24) hours to access.
For Third-Party Unlimited Storage the following restrictions apply: (i) it may only be used in conjunction with a valid Axon’s Evidence.com user license; (ii) is limited to data of the law enforcement Customer that purchased the ThirdParty Unlimited Storage and the Axon’s Evidence.com end user or Customer is prohibited from storing data for other law enforcement agencies; and (iii) Customer may only upload and store data that is directly related to: (1) the investigation of, or the prosecution of a crime; (2) common law enforcement activities; or (3) any Customer Content created by Axon Devices or Evidence.com.
9. Location of Storage. Axon may transfer Customer Content to third-party subcontractors for storage. Axon will determine the locations of data centers for storage of Customer Content. For United States agencies, Axon will ensure all Agency Content stored in Axon Cloud Services remains within the United States. Ownership of Customer Content remains with Customer.
10. Suspension. Axon may temporarily suspend Customer’s or any end user’s right to access or use any portion or all of Axon Cloud Services immediately upon notice, if Customer or end user’s use of or registration for Axon Cloud Services may (a) pose a security risk to Axon Cloud Services or any third-party; (b) adversely impact Axon Cloud Services, the systems, or content of any other customer; (c) subject Axon, Axon’s affiliates, or any third-party to liability; or (d) be fraudulent. Customer remains responsible for all fees incurred through suspension. Axon will not delete Customer Content because of suspension, except as specified in this Agreement.
11. Axon Cloud Services Warranty. Axon disclaims any warranties or responsibility for data corruption or errors before Customer uploads data to Axon Cloud Services.
12. TASER Data Science Program. Axon will provide a quantitative evaluation on the performance and effectiveness of TASER energy weapons in the field across a variety of circumstances.
If Customer purchases the TASER Data Science Program, Customer grants Axon, its affiliates, and assignees an irrevocable, perpetual, fully paid, royalty-free, and worldwide right and license to use Provided Data solely for the purposes of this Agreement and to create Transformed Data. Customer shall own all rights and title to Provided Data. Axon shall own all rights and title to Transformed Data and any derivatives of Transformed Data.
Axon grants to Customer an irrevocable, perpetual, fully paid, royalty-free, license to use to TASER Data Science report provided to Customer for its own internal purposes. The Data Science report is provided “as is” and without any warranty of any kind.
In the event Customer seeks Axon’s deletion of Provided Data, it may submit a request to [email protected].
Where reasonably capable of doing so, Axon will implement the request but at a minimum will not continue to collect Provided Data from Customer.
13. Axon Records. Axon Records is the software-as-a-service product that is generally available at the time Customer purchases an OSP 7 or OSP 10 bundle. During Customer’s Axon Records Subscription Term, if any, Customer will be entitled to receive Axon’s Update and Upgrade releases on an if-and-when available basis. #16..
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a. The Axon Records Subscription Term will end upon the completion of the Axon Records Subscription as documented in the Quote, or if purchased as part of an OSP 7 or OSP 10 bundle, upon completion of the OSP 7 or OSP 10 Term ("Axon Records Subscription") b. An "Update" is a generally available release of Axon Records that Axon makes available from time to time. An "Upgrade" includes (i) new versions of Axon Records that enhance features and functionality, as solely determined by Axon; and/or (ii) new versions of Axon Records that provide additional features or perform additional functions. Upgrades exclude new products that Axon introduces and markets as distinct products or applications.
c. New or additional Axon products and applications, as well as any Axon professional services needed to configure Axon Records, are not included. If Customer purchases Axon Records as part of a bundled offering, the Axon Record subscription begins on the later of the (1) start date of that bundled offering, or (2) date Axon provisions Axon Records to Customer.
d. Users of Axon Records at the Customer may upload files to entities (incidents, reports, cases, etc) in Axon Records with no limit to the number of files and amount of storage. Notwithstanding the foregoing, Axon may limit usage should the Customer exceed an average rate of one-hundred (100) GB per user per year of uploaded files. Axon will not bill for overages.
14. Axon Cloud Services Restrictions. Customer and Customer end users (including employees, contractors, agents, officers, volunteers, and directors), may not, or may not attempt to:
a. reverse engineer, disassemble, or decompile Axon Cloud Services or apply any process to derive any source code included in Axon Cloud Services, or allow others to do the same; b. copy, modify, tamper with, repair, or create derivative works of any part of Axon Cloud Services; c. access or use Axon Cloud Services with the intent to gain unauthorized access, avoid incurring fees or exceeding usage limits or quotas;
d. use Axon Cloud Serves as a service bureau, or as part of an Customer infrastructure as a service; e. use trade secret information contained in Axon Cloud Services, except as expressly permitted in this Agreement;
f. access Axon Cloud Services to build a competitive device or service or copy any features, functions, or graphics of Axon Cloud Services;
g. remove, alter, or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices) of Axon’s or Axon’s licensors on or within Axon Cloud Services; or h. use Axon Cloud Services to store or transmit infringing, libelous, or other unlawful or tortious material; material in violation of third-party privacy rights; or malicious code.
15. Axon Narrative. AI-Assisted Report Writing feature. Axon may impose usage restrictions if a single user generates more than one hundred (100) reports per month for two or more consecutive months.
16. After Termination. Axon will not delete Customer Content for ninety (90) days following termination. There will be no functionality of Axon Cloud Services during these ninety (90) days other than the ability to retrieve Customer Content. Customer will not incur additional fees if Customer downloads Customer Content from Axon Cloud Services during this time. Axon has no obligation to maintain or provide Customer Content after these ninety (90) days and will thereafter, unless legally prohibited, delete all Customer Content. Upon request, Axon will provide written proof that Axon successfully deleted and fully removed all Customer Content from Axon Cloud Services.
17. Post-Termination Assistance. Axon will provide Customer with the same post-termination data retrieval assistance that Axon generally makes available to all customers. Requests for Axon to provide additional assistance in downloading or transferring Customer Content, including requests for Axon’s data egress service, will result in additional fees and Axon will not warrant or guarantee data integrity or readability in the external system.
18. U.S. Government Rights. If Customer is a U.S. Federal department or using Axon Cloud Services on behalf of a U.S. Federal department, Axon Cloud Services is provided as a "commercial item," "commercial computer software," "commercial computer software documentation," and "technical data", as defined in the Federal Acquisition Regulation and Defense Federal Acquisition Regulation Supplement. If Customer is using Axon Cloud #16..
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Services on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer will immediately discontinue use of Axon Cloud Services.
19. Survival. Upon any termination of this Agreement, the following sections in this Appendix will survive: Customer Owns Customer Content, Privacy, Storage, Axon Cloud Services Warranty, Customer Responsibilities and Axon Cloud Services Restrictions.
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Master Services and Purchasing Agreement for Customer
Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 10 of 43
Axon Customer Experience Improvement Program Appendix
1. Axon Customer Experience Improvement Program (ACEIP). The ACEIP is designed to accelerate Axon’s development of technology, such as building and supporting automated features, to ultimately increase safety within communities and drive efficiency in public safety. To this end, subject to the limitations on Axon as described below, Axon, where allowed by law, may make limited use of Customer Content from all of its customers to provide, develop, improve, and support current and future Axon products (collectively, "ACEIP Purposes"). However, at all times, Axon will comply with its obligations pursuant to the Axon Cloud Services Terms of Use Appendix to maintain a comprehensive data security program (including compliance with the CJIS Security Policy for Criminal Justice Information), privacy program, and data governance policy, including high industry standards of de-identifying Personal Data, to enforce its security and privacy obligations for the ACEIP. ACEIP has 2 tiers of participation, Tier 1 and Tier 2. By default, Customer will be a participant in ACEIP Tier 1. If Customer does not want to participate in ACEIP Tier 1, Customer can revoke its consent at any time. If Customer wants to participate in Tier 2, as detailed below, Customer can check the ACEIP Tier 2 box below. If Customer does not want to participate in ACEIP Tier 2, Customer should leave box unchecked. At any time, Customer may revoke its consent to ACEIP Tier 1, Tier 2, or both Tiers.
2. ACEIP Tier 1.
2.1. When Axon uses Customer Content for the ACEIP Purposes, Axon will extract from Customer Content and may store separately copies of certain segments or elements of the Customer Content (collectively, "ACEIP Content"). When extracting ACEIP Content, Axon will use commercially reasonable efforts to aggregate, transform or de-identify Customer Content so that the extracted ACEIP Content is no longer reasonably capable of being associated with, or could reasonably be linked directly or indirectly to a particular individual ("Privacy Preserving Technique(s)"). For illustrative purposes, some examples are described in footnote 11.
For clarity, ACEIP Content will still be linked indirectly, with an attribution, to the Customer from which it was extracted. This attribution will be stored separately from the data itself, but is necessary for and will be solely used to enable Axon to identify and delete all ACEIP Content upon Customer request. Once de-identified, ACEIP Content may then be further modified, analyzed, and used to create derivative works. At any time, Customer may revoke the consent granted herein to Axon to access and use Customer Content for ACEIP Purposes. Within 30 days of receiving the Customer’s request, Axon will no longer access or use Customer Content for ACEIP Purposes and will delete any and all ACEIP Content. Axon will also delete any derivative works which may reasonably be capable of being associated with, or could reasonably be linked directly or indirectly to Customer. In addition, if Axon uses Customer Content for the ACEIP Purposes, upon request, Axon will make available to Customer a list of the specific type of Customer Content being used to generate ACEIP Content, the purpose of such use, and the retention, privacy preserving extraction technique, and relevant data protection practices applicable to the Customer Content or ACEIP Content ("Use Case"). From time to time, Axon may develop and deploy new Use Cases. At least 30 days prior to authorizing the deployment of any new Use Case, Axon will provide Customer notice (by updating the list of Use Case at https://www.axon.com/aceip and providing Customer with a mechanism to obtain notice of that update or another commercially reasonable method to Customer designated contact) ("New Use Case").
2.2. Expiration of ACEIP Tier 1. Customer consent granted herein will expire upon termination of the Agreement.
In accordance with section 1.1.1, within 30 days of receiving the Customer’s request, Axon will no longer access or use Customer Content for ACEIP Purposes and will delete ACEIP Content. Axon will also delete any derivative works which may reasonably be capable of being associated with, or could reasonably be linked directly or indirectly to, Customer.
3. ACEIP Tier 2. In addition to ACEIP Tier 1, if Customer wants to help further improve Axon’s services, Customer may choose to participate in Tier 2 of the ACEIP. ACEIP Tier 2 grants Axon certain additional rights to use Customer 1 For example; (a) when extracting specific text to improve automated transcription capabilities, text that could be used to directly identify a particular individual would not be extracted, and extracted text would be disassociated from identifying metadata of any speakers, and the extracted text would be split into individual words and aggregated with other data sources (including publicly available data) to remove any reasonable ability to link any specific text directly or indirectly back to a particular individual; (b) when extracting license plate data to improve Automated License Plate Recognition (ALPR) capabilities, individual license plate characters would be extracted and disassociated from each other so a complete plate could not be reconstituted, and all association to other elements of the source video, such as the vehicle, location, time, and the surrounding environment would also be removed; (c) when extracting audio of potential acoustic events (such as glass breaking or gun shots), very short segments (<1 second) of audio that only contains the likely acoustic events would be extracted and all human utterances would be removed. #16..
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Version: 21
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Content, in addition to those set forth in Tier 1 above, without the guaranteed deployment of a Privacy Preserving Technique to enable product development, improvement, and support that cannot be accomplished with aggregated, transformed, or de-identified data.
☐ Check this box if Customer wants to help further improve Axon’s services by participating in ACEIP Tier 2 in addition to Tier 1. Axon will not enroll Customer into ACEIP Tier 2 until Axon and Customer agree to terms in writing providing for such participation in ACEIP Tier 2.
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Master Services and Purchasing Agreement for Customer
Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 12 of 43
Professional Services Appendix
If any of the Professional Services specified below are included on the Quote, this Appendix applies.
1. Utilization of Services. Customer must use professional services as outlined in the Quote and this Appendix within six (6) months of the Effective Date.
2. Axon Full Service (Axon Full Service). Axon Full Service includes advance remote project planning and configuration support and up to four (4) consecutive days of on-site service and a professional services manager to work with Customer to assess Customer’s deployment and determine which on-site services are appropriate. If Customer requires more than four (4) consecutive on-site days, Customer must purchase additional days. Axon Full Service options include:
System set up and configuration
• Instructor-led setup of Axon View on smartphones (if applicable) • Configure categories and custom roles based on Customer need • Register cameras to Customer domain
• Troubleshoot IT issues with Axon Evidence and Axon Dock ("Dock") access • One on-site session included
Dock configuration
• Work with Customer to decide the ideal location of Docks and set configurations on Dock • Authenticate Dock with Axon Evidence using admin credentials from Customer • On-site assistance, not to include physical mounting of docks Best practice implementation planning session
• Provide considerations for the establishment of video policy and system operations best practices based on Axon’s observations with other agencies
• Discuss the importance of entering metadata in the field for organization purposes and other best practices for digital data management
• Provide referrals of other agencies using the Axon camera devices and Axon Evidence • Recommend rollout plan based on review of shift schedules System Admin and troubleshooting training sessions
Step-by-step explanation and assistance for Customer’s configuration of security, roles & permissions, categories & retention, and other specific settings for Axon Evidence Axon instructor training (Train the Trainer)
Training for Customer’s in-house instructors who can support Customer’s Axon camera and Axon Evidence training needs after Axon has fulfilled its contractual on-site obligations Evidence sharing training
Tailored workflow instruction for Investigative Units on sharing Cases and Evidence with local prosecuting agencies
End user go-live training and support sessions
• Assistance with device set up and configuration
• Training on device use, Axon Evidence, and Evidence Sync Implementation document packet
Axon Evidence administrator guides, camera implementation guides, network setup guide, sample policies, and categories & roles guide
Post go-live review
3. Body-Worn Camera Starter Service (Axon Starter). Axon Starter includes advance remote project planning and configuration support and one (1) day of on-site Services and a professional services manager to work closely with Customer to assess Customer’s deployment and determine which Services are appropriate. If Customer requires more than one (1) day of on-site Services, Customer must purchase additional on-site Services. The Axon Starter options include:
System set up and configuration (Remote Support)
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• Instructor-led setup of Axon View on smartphones (if applicable) • Configure categories & custom roles based on Customer need • Troubleshoot IT issues with Axon Evidence and Dock access Dock configuration
• Work with Customer to decide the ideal location of Dock setup and set configurations on Dock • Authenticate Dock with Axon Evidence using "Administrator" credentials from Customer • Does not include physical mounting of docks
Axon instructor training (Train the Trainer)
Training for Customer’s in-house instructors who can support Customer’s Axon camera and Axon Evidence training needs after Axon’s has fulfilled its contracted on-site obligations End user go-live training and support sessions
• Assistance with device set up and configuration
• Training on device use, Axon Evidence, and Evidence Sync Implementation document packet
Axon Evidence administrator guides, camera implementation guides, network setup guide, sample policies, and categories & roles guide
4. Body-Worn Camera Virtual 1-Day Service (Axon Virtual). Axon Virtual includes all items in the BWC Starter Service Package, except one (1) day of on-site services.
5. CEW Services Packages. CEW Services Packages are detailed below:
System set up and configuration
• Configure Axon Evidence categories & custom roles based on Customer need. • Troubleshoot IT issues with Axon Evidence.
• Register users and assign roles in Axon Evidence.
• For the CEW Full Service Package: On-site assistance included • For the CEW Starter Package: Virtual assistance included Dedicated Project Manager
Assignment of specific Axon representative for all aspects of planning the rollout (Project Manager). Ideally, Project Manager will be assigned to Customer 4–6 weeks before rollout Best practice implementation planning session to include:
• Provide considerations for the establishment of CEW policy and system operations best practices based on Axon’s observations with other agencies
• Discuss the importance of entering metadata and best practices for digital data management • Provide referrals to other agencies using TASER CEWs and Axon Evidence • For the CEW Full Service Package: On-site assistance included • For the CEW Starter Package: Virtual assistance included System Admin and troubleshooting training sessions
On-site sessions providing a step-by-step explanation and assistance for Customer’s configuration of security, roles & permissions, categories & retention, and other specific settings for Axon Evidence Axon Evidence Instructor training
• Provide training on the Axon Evidence to educate instructors who can support Customer’s subsequent Axon Evidence training needs.
• For the CEW Full Service Package: Training for up to 3 individuals at Customer • For the CEW Starter Package: Training for up to 1 individual at Customer TASER CEW inspection and device assignment
Axon’s on-site professional services team will perform functions check on all new TASER CEW Smart weapons and assign them to a user on Axon Evidence.
Post go-live review
For the CEW Full Service Package: On-site assistance included.
For the CEW Starter Package: Virtual assistance included.
6. Smart Weapon Transition Service. The Smart Weapon Transition Service includes:
Archival of CEW Firing Logs
Axon’s on-site professional services team will upload CEW firing logs to Axon Evidence from all TASER CEW #16..
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Smart Weapons that Customer is replacing with newer Smart Weapon models.
Return of Old Weapons
Axon’s on-site professional service team will ship all old weapons back to Axon’s headquarters.
Axon will provide Customer with a Certificate of Destruction *Note: CEW Full Service packages for TASER 7 or TASER 10 include Smart Weapon Transition Service instead of 1-Day Device Specific Instructor Course.
7. VR Services Package. VR Service includes advance remote project planning and configuration support and one (1) day of on-site service and a professional services manager to work with Customer to assess Customer's deployment and determine which Services are appropriate. The VR Service training options include:
System set up and configuration (Remote Support)
• Instructor-led setup of Axon VR headset content
• Configure Customer settings based on Customer need
• Troubleshoot IT issues with Axon VR headset
Axon instructor training (Train the Trainer)
Training for up to five (5) Customer's in-house instructors who can support Customer's Axon VR CET and SIM training needs after Axon’s has fulfilled its contracted on-site obligations Classroom and practical training sessions
Step-by-step explanation and assistance for Customer's configuration of Axon VR CET and SIM functionality, basic operation, and best practices
8. Axon Air, On-Site Training. Axon Air, On-Site training includes advance remote project planning and configuration support and one (1) day of on-site Services and a professional services manager to work closely with Customer to assess Customer's deployment and determine which Services are appropriate. If Customer's requires more than one (1) day of on-site Services, Customer must purchase additional on-site Services. The Axon Air, On-Site training options include:
System set up and configuration (Remote Support)
• Instructor-led setup of Axon Air App (ASDS)
• Configure Customer settings based on Customer need
• Configure drone controller
• Troubleshoot IT issues with Axon Evidence
Axon instructor training (Train the Trainer)
Training for Customer's in-house instructors who can support Customer's Axon Air and Axon Evidence training needs after Axon’s has fulfilled its contracted on-site obligations Classroom and practical training sessions
Step-by-step explanation and assistance for Customer's configuration of Axon Respond+ livestreaming functionality, basic operation, and best practices
9. Axon Air, Virtual Training. Axon Air, Virtual training includes all items in the Axon Air, On-Site Training Package, except the practical training session, with the Axon Instructor training for up to four hours virtually.
10. Signal Sidearm Installation Service.
a. Purchases of 50 SSA units or more: Axon will provide one (1) day of on-site service and one professional services manager and will provide train the trainer instruction, with direct assistance on the first of each unique holster/mounting type. Customer is responsible for providing a suitable work/training area.
b. Purchases of less than 50 SSA units: Axon will provide a 1-hour virtual instruction session on the basics of installation and device calibration.
11. Out of Scope Services. Axon is only responsible to perform the professional services described in the Quote and this Appendix. Any additional professional services are out of scope. The Parties must document scope changes in a written and signed change order. Changes may require an equitable adjustment in the charges or schedule.
12. Delivery of Services. Axon personnel will work Monday through Friday, 8:30 a.m. to 5:30 p.m., except holidays.
Axon will perform all on-site tasks over a consecutive timeframe. Axon will not charge Customer travel time by Axon #16..
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personnel to Customer premises as work hours.
13. Access Computer Systems to Perform Services. Customer authorizes Axon to access relevant Customer computers and networks, solely for performing the Services. Axon will work to identify as soon as reasonably practicable resources and information Axon expects to use and will provide an initial itemized list to Customer.
Customer is responsible for and assumes the risk of any problems, delays, losses, claims, or expenses resulting from the content, accuracy, completeness, and consistency of all data, materials, and information supplied by Customer.
14. Site Preparation. Axon will provide a hardcopy or digital copy of current user documentation for the Axon Devices ("User Documentation"). User Documentation will include all required environmental specifications for the professional services and Axon Devices to operate per the Axon Device User Documentation. Before installation of Axon Devices (whether performed by Customer or Axon), Customer must prepare the location(s) where Axon Devices are to be installed ("Installation Site") per the environmental specifications in the Axon Device User Documentation.
Following installation, Customer must maintain the Installation Site per the environmental specifications. If Axon modifies Axon Device User Documentation for any Axon Devices under this Agreement, Axon will provide the update to Customer when Axon generally releases it
15. Acceptance. When Axon completes professional services, Axon will present an acceptance form ("Acceptance Form") to Customer. Customer will sign the Acceptance Form acknowledging completion. If Customer reasonably believes Axon did not complete the professional services in substantial conformance with this Agreement, Customer must notify Axon in writing of the specific reasons for rejection within seven (7) calendar days from delivery of the Acceptance Form. Axon will address the issues and re-present the Acceptance Form for signature. If Axon does not receive the signed Acceptance Form or written notification of reasons for rejection within seven (7) calendar days of delivery of the Acceptance Form, Axon will deem Customer to have accepted the professional services.
16. Customer Network. For work performed by Axon transiting or making use of Customer’s network, Customer is solely responsible for maintenance and functionality of the network. In no event will Axon be liable for loss, damage, or corruption of Customer’s network from any cause.
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Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 16 of 43
Technology Assurance Plan Appendix
If Technology Assurance Plan ("TAP") or a bundle including TAP is on the Quote, this appendix applies.
1. TAP Warranty. The TAP warranty is an extended warranty that starts at the end of the one- (1-) year hardware limited warranty.
2. Officer Safety Plan. If Customer purchases an Officer Safety Plan ("OSP"), Customer will receive the deliverables detailed in the Quote. Customer must accept delivery of the TASER CEW and accessories as soon as available from Axon.
3. OSP 7 or OSP 10 Term. OSP 7 or OSP 10 begins on the date specified in the Quote ("OSP Term").
4. TAP BWC Upgrade. If Customer has no outstanding payment obligations and purchased TAP, Axon will provide Customer a new Axon body-worn camera ("BWC Upgrade") as scheduled in the Quote. If Customer purchased TAP, Axon will provide a BWC Upgrade that is the same or like Axon Device, at Axon’s option. Axon makes no guarantee the BWC Upgrade will utilize the same accessories or Axon dock.
5. TAP Dock Upgrade. If Customer has no outstanding payment obligations and purchased TAP, Axon will provide Customer a new Axon Dock as scheduled in the Quote ("Dock Upgrade"). Accessories associated with any Dock Upgrades are subject to change at Axon discretion. Dock Upgrades will only include a new Axon dock bay configuration unless a new Axon dock core is required for BWC compatibility. If Customer originally purchased a single-bay Axon dock, the Dock Upgrade will be a single-bay Axon dock model that is the same or like Axon Device, at Axon’s option. If Customer originally purchased a multi-bay Axon dock, the Dock Upgrade will be a multi-bay Axon dock that is the same or like Axon Device, at Axon’s option.
6. Upgrade Delay. Axon may ship the BWC and Dock Upgrades as scheduled in the Quote without prior confirmation from Customer unless the Parties agree in writing otherwise at least ninety (90) days in advance. Axon may ship the final BWC and Dock Upgrade as scheduled in the Quote sixty (60) days before the end of the Subscription Term without prior confirmation from Customer.
7. Upgrade Change. If Customer wants to upgrade Axon Device models from the current Axon Device to an upgraded Axon Device, Customer must pay the price difference between the MSRP for the current Axon Device and the MSRP for the upgraded Axon Device. If the model Customer desires has an MSRP less than the MSRP of the offered BWC Upgrade or Dock Upgrade, Axon will not provide a refund. The MSRP is the MSRP in effect at the time of the upgrade.
8. Return of Original Axon Device. Within thirty (30) days of receiving a BWC or Dock Upgrade, Customer must return the original Axon Devices to Axon or destroy the Axon Devices and provide a certificate of destruction to Axon including serial numbers for the destroyed Axon Devices. If Customer does not return or destroy the Axon Devices, Axon will deactivate the serial numbers for the Axon Devices received by Customer.
9. Termination. If Customer’s payment for TAP, OSP, or Axon Evidence is more than thirty (30) days past due, Axon may terminate TAP or OSP. Once TAP or OSP terminates for any reason:
9.1. TAP and OSP coverage terminate as of the date of termination and no refunds will be given.
9.2. Axon will not and has no obligation to provide the Upgrade Models.
9.3. Customer must make any missed payments due to the termination before Customer may purchase any future TAP or OSP.
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Version: 21
Release Date: 4/1/2024 Page 17 of 43
TASER Device Appendix
This TASER Device Appendix applies to Customer’s TASER 7/10, OSP 7/10, OSP Plus, or OSP 7/10 Plus Premium purchase from Axon, if applicable.
1. Duty Cartridge Replenishment Plan. If the Quote includes "Duty Cartridge Replenishment Plan", Customer must purchase the plan for each CEW user. A CEW user includes officers that use a CEW in the line of duty and those that only use a CEW for training. Customer may not resell cartridges received. Axon will only replace cartridges used in the line of duty.
2. Training. If the Quote includes a TASER On Demand Certification subscription, Customer will have on-demand access to TASER Instructor and TASER Master Instructor courses only for the duration of the TASER Subscription Term. Axon will issue a maximum of ten (10) TASER Instructor vouchers and ten (10) TASER Master Instructor vouchers for every thousand TASER Subscriptions purchased. Customer shall utilize vouchers to register for TASER courses at their discretion however Customer may incur a fee for cancellations less than 10 business days prior to a course date or failure to appear to a registered course. The voucher has no cash value. Customer cannot exchange voucher for any other device or service. Any unused vouchers at the end of the Term will be forfeited. A voucher does not include any travel or other expenses that might be incurred related to attending a course.
3. Extended Warranty. If the Quote includes an extended warranty, the extended warranty coverage period warranty will be for a five- (5-) year term, which includes the hardware manufacturer’s warranty plus the four- (4-) year extended term.
4. Trade-in. If the Quote contains a discount on CEW-related line items and that discount is contingent upon the tradein of hardware, Customer must return used hardware and accessories associated with the discount ("Trade-In Units") to Axon within the below prescribed timeline. Customer must ship batteries via ground shipping. Axon will pay shipping costs of the return. If Axon does not receive Trade-In Units within the timeframe below, Axon will invoice Customer the value of the trade-in credit. Customer may not destroy Trade-In Units and receive a trade-in credit.
Customer Size Days to Return from Start Date of TASER 10 Subscription Less than 100 officers 60 days
100 to 499 officers 90 days
500+ officers 180 days
5. TASER Device Subscription Term. The TASER Device Subscription Term for a standalone TASER Device purchase begins on shipment of the TASER Device. The TASER Device Subscription Term for OSP 7/10 begins on the OSP 7/10 start date.
6. Access Rights. Upon Axon granting Customer a TASER Device Axon Evidence subscription, Customer may access and use Axon Evidence for the storage and management of data from TASER Devices devices during the TASER Device Subscription Term. Customer may not exceed the number of end users the Quote specifies.
7. Customer Warranty. If Customer is located in the US, Customer warrants and acknowledges that TASER 10 is classified as a firearm and is being acquired for official Customer use pursuant to a law enforcement Customer transfer under the Gun Control Act of 1968.
8. Purchase Order. To comply with applicable laws and regulations, Customer must provide a purchase order to Axon prior to shipment of TASER 10.
9. Apollo Grant (US only). If Customer has received an Apollo Grant from Axon, Customer must pay all fees in the Quote prior to upgrading to any new TASER Device offered by Axon.
10. Termination. If payment for TASER Device is more than thirty (30) days past due, Axon may terminate Customer’s TASER Device plan by notifying Customer. Upon termination for any reason, then as of the date of termination:
10.1.TASER Device extended warranties and access to Training Content will terminate. No refunds will be given.
10.2.Axon will invoice Customer the remaining MSRP for TASER Devices received before termination. If terminating for non-appropriations, Axon will not invoice Customer if Customer returns the TASER Device, rechargeable battery, holster, dock, core, training suits, and unused cartridges to Axon within thirty (30) days of the date of #16..
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termination.
10.3.Customer will be responsible for payment of any missed payments due to the termination before being allowed to purchase any future TASER Device plan.
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Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 19 of 43
Axon Auto-Tagging Appendix
If Auto-Tagging is included on the Quote, this Appendix applies.
1. Scope. Axon Auto-Tagging consists of the development of a module to allow Axon Evidence to interact with Customer’s Computer-Aided Dispatch ("CAD") or Records Management Systems ("RMS"). This allows end users to auto-populate Axon video meta-data with a case ID, category, and location-based on data maintained in Customer’s CAD or RMS.
2. Support. For thirty (30) days after completing Auto-Tagging Services, Axon will provide up to five (5) hours of remote support at no additional charge. Axon will provide free support due to a change in Axon Evidence, if Customer maintains an Axon Evidence and Auto-Tagging subscription. Axon will not provide support if a change is required because Customer changes its CAD or RMS.
3. Changes. Axon is only responsible to perform the Services in this Appendix. Any additional Services are out of scope.
The Parties must document scope changes in a written and signed change order. Changes may require an equitable adjustment in fees or schedule.
4. Customer Responsibilities. Axon’s performance of Auto-Tagging Services requires Customer to:
4.1. Make available relevant systems, including Customer’s current CAD or RMS, for assessment by Axon (including remote access if possible);
4.2. Make required modifications, upgrades or alterations to Customer’s hardware, facilities, systems and networks related to Axon’s performance of Auto-Tagging Services;
4.3. Provide access to the premises where Axon is performing Auto-Tagging Services, subject to Customer safety and security restrictions, and allow Axon to enter and exit the premises with laptops and materials needed to perform Auto-Tagging Services;
4.4. Provide all infrastructure and software information (TCP/IP addresses, node names, network configuration) necessary for Axon to provide Auto-Tagging Services;
4.5. Promptly install and implement any software updates provided by Axon;
4.6. Ensure that all appropriate data backups are performed;
4.7. Provide assistance, participation, and approvals in testing Auto-Tagging Services;
4.8. Provide Axon with remote access to Customer’s Axon Evidence account when required;
4.9. Notify Axon of any network or machine maintenance that may impact the performance of the module at Customer; and
4.10. Ensure reasonable availability of knowledgeable staff and personnel to provide timely, accurate, complete, and up-to-date documentation and information to Axon.
5. Access to Systems. Customer authorizes Axon to access Customer’s relevant computers, network systems, and CAD or RMS solely for performing Auto-Tagging Services. Axon will work diligently to identify the resources and information Axon expects to use and will provide an initial list to Customer. Customer is responsible for and assumes the risk of any problems, delays, losses, claims, or expenses resulting from the content, accuracy, completeness, and consistency of all data, materials, and information supplied by Customer. #16..
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Version: 21
Release Date: 4/1/2024 Page 20 of 43
Axon Fleet Appendix
If Axon Fleet is included on the Quote, this Appendix applies.
1. Customer Responsibilities.
1.1. Customer must ensure its infrastructure and vehicles adhere to the minimum requirements to operate Axon Fleet 2 Axon Fleet 3 or a future Fleet iteration (collectively, "Axon Fleet") as established by Axon during the qualifier call and on-site assessment at Customer and in any technical qualifying questions. If Customer’s representations are inaccurate, the Quote is subject to change.
1.2. Customer is responsible for providing a suitable work area for Axon or Axon third-party providers to install Axon Fleet systems into Customer vehicles. Customer is responsible for making available all vehicles for which installation services were purchased, during the agreed upon onsite installation dates, Failure to make vehicles available may require an equitable adjustment in fees or schedule.
2. Cradlepoint. If Customer purchases Cradlepoint Enterprise Cloud Manager, Customer will comply with Cradlepoint’s end user license agreement. The term of the Cradlepoint license may differ from the Axon Evidence Subscription. If Customer requires Cradlepoint support, Customer will contact Cradlepoint directly.
3. Third-party Installer. Axon will not be liable for the failure of Axon Fleet hardware to operate per specifications if such failure results from installation not performed by, or as directed by Axon.
4. Wireless Offload Server.
4.1. License Grant. Axon grants Customer a non-exclusive, royalty-free, worldwide, perpetual license to use Wireless Offload Server ("WOS"). "Use" means storing, loading, installing, or executing WOS solely for data communication with Axon Devices for the number of licenses purchased. The WOS term begins upon the start of the Axon Evidence Subscription.
4.2. Restrictions. Customer may not: (a) modify, alter, tamper with, repair, or create derivative works of WOS; (b) reverse engineer, disassemble, or decompile WOS, apply any process to derive the source code of WOS, or allow others to do so; (c) access or use WOS to avoid incurring fees or exceeding usage limits; (d) copy WOS in whole or part; (e) use trade secret information contained in WOS; (f) resell, rent, loan or sublicense WOS; (g) access WOS to build a competitive device or service or copy any features, functions or graphics of WOS; or (h) remove, alter or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices) of Axon or Axon’s licensors on or within WOS.
4.3. Updates. If Customer purchases WOS maintenance, Axon will make updates and error corrections to WOS ("WOS Updates") available electronically via the Internet or media as determined by Axon. Customer is responsible for establishing and maintaining adequate Internet access to receive WOS Updates and maintaining computer equipment necessary for use of WOS. The Quote will detail the maintenance term.
4.4. WOS Support. Upon request by Axon, Customer will provide Axon with access to Customer’s store and forward servers solely for troubleshooting and maintenance.
5. Axon Vehicle Software.
5.1. License Grant. Axon grants Customer a non-exclusive, royalty-free, worldwide, perpetual license to use ViewXL or Dashboard (collectively, "Axon Vehicle Software".) "Use" means storing, loading, installing, or executing Axon Vehicle Software solely for data communication with Axon Devices. The Axon Vehicle Software term begins upon the start of the Axon Evidence Subscription.
5.2. Restrictions. Customer may not: (a) modify, alter, tamper with, repair, or create derivative works of Axon Vehicle Software; (b) reverse engineer, disassemble, or decompile Axon Vehicle Software, apply any process to derive the source code of Axon Vehicle Software, or allow others to do so; (c) access or use Axon Vehicle Software to avoid incurring fees or exceeding usage limits; (d) copy Axon Vehicle Software in whole or part; (e) use trade secret information contained in Axon Vehicle Software; (f) resell, rent, loan or sublicense Axon Vehicle Software; (g) access Axon Vehicle Software to build a competitive device or service or copy any features, functions or graphics of Axon Vehicle Software; or (h) remove, alter or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices) of Axon or Axon’s licensors on or within Axon Vehicle Software.
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6. Acceptance Checklist. If Axon provides services to Customer pursuant to any statement of work in connection with Axon Fleet, within seven (7) days of the date on which Customer retrieves Customer's vehicle(s) from the Axon installer, said vehicle having been installed and configured with tested and fully and properly operational in-car hardware and software identified above, Customer will receive a Professional Services Acceptance Checklist to submit to Axon indicating acceptance or denial of said deliverables.
7. Axon Fleet Upgrade. If Customer has no outstanding payment obligations and has purchased the "Fleet Technology Assurance Plan" (Fleet TAP), Axon will provide Customer with the same or like model of Fleet hardware ("Axon Fleet Upgrade") as scheduled on the Quote.
7.1. If Customer would like to change models for the Axon Fleet Upgrade, Customer must pay the difference between the MSRP for the offered Axon Fleet Upgrade and the MSRP for the model desired. The MSRP is the MSRP in effect at the time of the upgrade. Customer is responsible for the removal of previously installed hardware and installation of the Axon Fleet Upgrade.
7.2. Within thirty (30) days of receiving the Axon Fleet Upgrade, Customer must return the original Axon Devices to Axon or destroy the Axon Devices and provide a certificate of destruction to Axon, including serial numbers of the destroyed Axon Devices. If Customer does not destroy or return the Axon Devices to Axon, Axon will deactivate the serial numbers for the Axon Devices received by Customer.
8. Axon Fleet Termination. Axon may terminate Customer’s Fleet subscription for non-payment. Upon any termination:
8.1. Axon Fleet subscription coverage terminates, and no refunds will be given.
8.2. Axon will not and has no obligation to provide the Axon Fleet Upgrade.
8.3. Customer will be responsible for payment of any missed payments due to the termination before being allowed to purchase any future Fleet TAP.
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Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 22 of 43
Axon Respond Appendix
This Axon Respond Appendix applies to both Axon Respond and Axon Respond Plus, if either is included on the Quote.
1. Axon Respond Subscription Term. If Customer purchases Axon Respond as part of a bundled offering, the Axon Respond subscription begins on the later of the (1) start date of that bundled offering, or (2) date Axon provisions Axon Respond to Customer. If Customer purchases Axon Respond as a standalone, the Axon Respond subscription begins the later of the (1) date Axon provisions Axon Respond to Customer, or (2) first day of the month following the Effective Date. The Axon Respond subscription term will end upon the completion of the Axon Evidence Subscription associated with Axon Respond.
2. Scope of Axon Respond. The scope of Axon Respond is to assist Customer with real-time situational awareness during critical incidents to improve officer safety, effectiveness, and awareness. In the event Customer uses Axon Respond outside this scope, Axon may initiate good-faith discussions with Customer on upgrading Customer’s Axon Respond to better meet Customer’s needs.
3. Axon Body LTE Requirements. Axon Respond is only available and usable with an LTE enabled body-worn camera.
Axon is not liable if Customer utilizes the LTE device outside of the coverage area or if the LTE carrier is unavailable.
LTE coverage is only available in the United States, including any U.S. territories. Axon may utilize a carrier of Axon’s choice to provide LTE service. Axon may change LTE carriers during the Term without Customer’s consent.
4. Axon Fleet LTE Requirements. Axon Respond is only available and usable with a Fleet system configured with LTE modem and service. Customer is responsible for providing LTE service for the modem. Coverage and availability of LTE service is subject to Customer’s LTE carrier.
5. Axon Respond Service Limitations. Customer acknowledges that LTE service is made available only within the operating range of the networks. Service may be temporarily refused, interrupted, or limited because of: (a) facilities limitations; (b) transmission limitations caused by atmospheric, terrain, other natural or artificial conditions adversely affecting transmission, weak batteries, system overcapacity, movement outside a service area or gaps in coverage in a service area, and other causes reasonably outside of the carrier’s control such as intentional or negligent acts of third parties that damage or impair the network or disrupt service; or (c) equipment modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operation of service.
5.1. With regard to Axon Body, Partner networks are made available as-is and the carrier makes no warranties or representations as to the availability or quality of roaming service provided by carrier partners, and the carrier will not be liable in any capacity for any errors, outages, or failures of carrier partner networks. Customer expressly understands and agrees that it has no contractual relationship whatsoever with the underlying wireless service provider or its affiliates or contractors and Customer is not a third-party beneficiary of any agreement between Axon and the underlying carrier.
6. Termination. Upon termination of this Agreement, or if Customer stops paying for Axon Respond or bundles that include Axon Respond, Axon will end Axon Respond services, including any Axon-provided LTE service. #16..
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Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 23 of 43
Add-on Services Appendix
This Appendix applies if Axon Community Request, Axon Redaction Assistant, and/or Axon Performance are included on the Quote.
1. Subscription Term. If Customer purchases Axon Community Request, Axon Redaction Assistant, or Axon Performance as part of OSP 7 or OSP 10, the subscription begins on the later of the (1) start date of the OSP 7 or OSP 10 Term, or (2) date Axon provisions Axon Community Request Axon Redaction Assistant, or Axon Performance to Customer.
1.1. If Customer purchases Axon Community Request, Axon Redaction Assistant, or Axon Performance as a standalone, the subscription begins the later of the (1) date Axon provisions Axon Community Request, Axon Redaction Assistant, or Axon Performance to Customer, or (2) first day of the month following the Effective Date.
1.2. The subscription term will end upon the completion of the Axon Evidence Subscription associated with the addon.
2. Axon Community Request Storage. For Axon Community Request, Customer may store an unlimited amount of data submitted through the public portal ("Portal Content"), within Customer’s Axon Evidence instance. The posttermination provisions outlined in the Axon Cloud Services Terms of Use Appendix also apply to Portal Content.
3. Performance Auto-Tagging Data. In order to provide some features of Axon Performance to Customer, Axon will need to store call for service data from Customer’s CAD or RMS. #16..
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Version: 21
Release Date: 4/1/2024 Page 24 of 43
Axon Auto-Transcribe Appendix
This Appendix applies if Axon Auto-Transcribe is included on the Quote.
1. Subscription Term. If Customer purchases Axon Auto-Transcribe as part of a bundle or Axon Cloud Services subscription, the subscription begins on the later of the (1) start date of the bundle or Axon Cloud Services license term, or (2) date Axon provisions Axon Auto-Transcribe to Customer. If Customer purchases Axon Auto-Transcribe minutes as a standalone, the subscription begins on the date Axon provisions Axon Auto-Transcribe to Customer.
1.1. If Customer cancels Auto-Transcribe services, any amounts owed by the Parties will be based on the amount of time passed under the annual subscription, rather than on the number of minutes used, regardless of usage.
2. Auto-Transcribe A-La-Carte Minutes. Upon Axon granting Customer a set number of minutes, Customer may utilize Axon Auto-Transcribe, subject to the number of minutes allowed on the Quote. Customer will not have the ability to roll over unused minutes to future Auto-Transcribe terms. Axon may charge Customer additional fees for exceeding the number of purchased minutes. Axon Auto-Transcribe minutes expire one year after being provisioned to Customer by Axon.
3. Axon Unlimited Transcribe. Upon Axon granting Customer an Unlimited Transcribe subscription to Axon AutoTranscribe, Customer may utilize Axon Auto-Transcribe with no limit on the number of minutes. Unlimited Transcribe includes automatic transcription of all Axon BWC and Axon Capture footage. With regard to Axon Interview Room, Axon Fleet, Axon Citizen, or third-party transcription, transcription must be requested on demand. Notwithstanding the foregoing, Axon may limit usage after 5,000 minutes per user per month for multiple months in a row. Axon will not bill for overages.
4. Warranty. Axon disclaims all warranties, express or implied, for Axon Auto-Transcribe. #16..
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Version: 21
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Axon Virtual Reality Content Terms of Use Appendix
If Virtual Reality is included on the Quote, this Appendix applies.
1. Term. The Quote will detail the products and license duration, as applicable, of the goods, services, and software, and contents thereof, provided by Axon to Customer related to virtual reality (collectively, "Virtual Reality Media").
2. Headsets. Customer may purchase additional virtual reality headsets from Axon. In the event Customer decides to purchase additional virtual reality headsets for use with Virtual Reality Media, Customer must purchase those headsets from Axon.
3. License Restrictions. All licenses will immediately terminate if Customer does not comply with any term of this Agreement. If Customer utilizes more users than stated in this Agreement, Customer must purchase additional Virtual Reality Media licenses from Axon. Customer may not use Virtual Reality Media for any purpose other than as expressly permitted by this Agreement. Customer may not:
3.1. modify, tamper with, repair, or otherwise create derivative works of Virtual Reality Media;
3.2. reverse engineer, disassemble, or decompile Virtual Reality Media or apply any process to derive the source code of Virtual Reality Media, or allow others to do the same;
3.3. copy Virtual Reality Media in whole or part, except as expressly permitted in this Agreement;
3.4. use trade secret information contained in Virtual Reality Media;
3.5. resell, rent, loan or sublicense Virtual Reality Media;
3.6. access Virtual Reality Media to build a competitive device or service or copy any features, functions, or graphics of Virtual Reality Media; or
3.7. remove, alter, or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices) of Axon or Axon’s licensors on or within Virtual Reality Media or any copies of Virtual Reality Media.
4. Privacy. Customer’s use of the Virtual Reality Media is subject to the Axon Virtual Reality Privacy Policy, a current version of which is available at https://www.axon.com/axonvrprivacypolicy.
5. Termination. Axon may terminate Customer’s license immediately for Customer’s failure to comply with any of the terms in this Agreement.
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Version: 21
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Axon Evidence Local Software Appendix
This Appendix applies if Axon Evidence Local is included on the Quote.
1. License. Axon owns all executable instructions, images, icons, sound, and text in Axon Evidence Local. All rights are reserved to Axon. Axon grants a non-exclusive, royalty-free, worldwide right and license to use Axon Evidence Local. "Use" means storing, loading, installing, or executing Axon Evidence Local exclusively for data communication with an Axon Device. Customer may use Axon Evidence Local in a networked environment on computers other than the computer it installs Axon Evidence Local on, so long as each execution of Axon Evidence Local is for data communication with an Axon Device. Customer may make copies of Axon Evidence Local for archival purposes only.
Axon shall retain all copyright, trademark, and proprietary notices in Axon Evidence Local on all copies or adaptations.
2. Term. The Quote will detail the duration of the Axon Evidence Local license, as well as any maintenance. The term will begin upon installation of Axon Evidence Local.
3. License Restrictions. All licenses will immediately terminate if Customer does not comply with any term of this Agreement. Customer may not use Axon Evidence Local for any purpose other than as expressly permitted by this Agreement. Customer may not:
3.1. modify, tamper with, repair, or otherwise create derivative works of Axon Evidence Local;
3.2. reverse engineer, disassemble, or decompile Axon Evidence Local or apply any process to derive the source code of Axon Evidence Local, or allow others to do the same;
3.3. access or use Axon Evidence Local to avoid incurring fees or exceeding usage limits or quotas;
3.4. copy Axon Evidence Local in whole or part, except as expressly permitted in this Agreement;
3.5. use trade secret information contained in Axon Evidence Local;
3.6. resell, rent, loan or sublicense Axon Evidence Local;
3.7. access Axon Evidence Local to build a competitive device or service or copy any features, functions, or graphics of Axon Evidence Local; or
3.8. remove, alter, or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices) of Axon or Axon’s licensors on or within Axon Evidence Local or any copies of Axon Evidence Local.
4. Support. Axon may make available updates and error corrections ("Updates") to Axon Evidence Local. Axon will provide Updates electronically via the Internet or media as determined by Axon. Customer is responsible for establishing and maintaining adequate access to the Internet to receive Updates. Customer is responsible for maintaining the computer equipment necessary to use Axon Evidence Local. Axon may provide technical support of a prior release/version of Axon Evidence Local for six (6) months from when Axon made the subsequent release/version available.
5. Termination. Axon may terminate Customer’s license immediately for Customer’s failure to comply with any of the terms in this Agreement. Upon termination, Axon may disable Customer’s right to login to Axon Evidence Local. #16..
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Axon Application Programming Interface Appendix
This Appendix applies if Axon’s API Services or a subscription to Axon Cloud Services is included on the Quote.
1. Definitions.
1.1. "API Client" means the software that acts as the interface between Customer’s computer and the server, which is already developed or to be developed by Customer.
1.2. "API Interface" means software implemented by Customer to configure Customer’s independent API Client Software to operate in conjunction with the API Service for Customer’s authorized Use.
1.3. "Axon Evidence Partner API, API or Axon API" (collectively "API Service") means Axon’s API which provides a programmatic means to access data in Customer’s Axon Evidence account or integrate Customer’s Axon Evidence account with other systems.
1.4. "Use" means any operation on Customer’s data enabled by the supported API functionality.
2. Purpose and License.
2.1. Customer may use API Service and data made available through API Service, in connection with an API Client developed by Customer. Axon may monitor Customer’s use of API Service to ensure quality, improve Axon devices and services, and verify compliance with this Agreement. Customer agrees to not interfere with such monitoring or obscure from Axon Customer’s use of API Service. Customer will not use API Service for commercial use.
2.2. Axon grants Customer a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the Term to use API Service, solely for Customer’s Use in connection with Customer’s API Client.
2.3. Axon reserves the right to set limitations on Customer’s use of the API Service, such as a quota on operations, to ensure stability and availability of Axon’s API. Axon will use reasonable efforts to accommodate use beyond the designated limits.
3. Configuration. Customer will work independently to configure Customer’s API Client with API Service for Customer’s applicable Use. Customer will be required to provide certain information (such as identification or contact details) as part of the registration. Registration information provided to Axon must be accurate. Customer will inform Axon promptly of any updates. Upon Customer’s registration, Axon will provide documentation outlining API Service information.
4. Customer Responsibilities. When using API Service, Customer and its end users may not:
4.1. use API Service in any way other than as expressly permitted under this Agreement;
4.2. use in any way that results in, or could result in, any security breach to Axon;
4.3. perform an action with the intent of introducing any viruses, worms, defect, Trojan horses, malware, or any items of a destructive nature to Axon Devices and Services;
4.4. interfere with, modify, disrupt or disable features or functionality of API Service or the servers or networks providing API Service;
4.5. reverse engineer, decompile, disassemble, or translate or attempt to extract the source code from API Service or any related software;
4.6. create an API Interface that functions substantially the same as API Service and offer it for use by third parties;
4.7. provide use of API Service on a service bureau, rental or managed services basis or permit other individuals or entities to create links to API Service;
4.8. frame or mirror API Service on any other server, or wireless or Internet-based device;
4.9. make available to a third-party, any token, key, password or other login credentials to API Service;
4.10. take any action or inaction resulting in illegal, unauthorized or improper purposes; or
4.11. disclose Axon’s API manual.
5. API Content. All content related to API Service, other than Customer Content or Customer’s API Client content, is considered Axon’s API Content, including:
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5.1. the design, structure and naming of API Service fields in all responses and requests;
5.2. the resources available within API Service for which Customer takes actions on, such as evidence, cases, users, or reports;
5.3. the structure of and relationship of API Service resources; and
5.4. the design of API Service, in any part or as a whole.
6. Prohibitions on API Content. Neither Customer nor its end users will use API content returned from the API Interface to:
6.1. scrape, build databases, or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header;
6.2. copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense to any third-party;
6.3. misrepresent the source or ownership; or
6.4. remove, alter, or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices).
7. API Updates. Axon may update or modify the API Service from time to time ("API Update"). Customer is required to implement and use the most current version of API Service and to make any applicable changes to Customer’s API Client required as a result of such API Update. API Updates may adversely affect how Customer’s API Client access or communicate with API Service or the API Interface. Each API Client must contain means for Customer to update API Client to the most current version of API Service. Axon will provide support for one (1) year following the release of an API Update for all depreciated API Service versions. #16..
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Advanced User Management Appendix
This Appendix applies if Axon Advanced User Management is included on the Quote.
1. Scope. Advanced User Management allows Customer to (a) utilize bulk user creation and management, (b) automate user creation and management through System for Cross-domain Identity Management ("SCIM"), and (c) automate group creation and management through SCIM.
2. Advanced User Management Configuration. Customer will work independently to configure Customer’s Advanced User Management for Customer’s applicable Use. Upon request, Axon will provide general guidance to Customer, including documentation that details the setup and configuration process. #16..
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FUSUS APPENDIX
1. Access. Upon Axon granting Customer a subscription to FUSUS cloud services in the Quote, Customer may access and use FūsusONE Real Time Interoperability Solution services to for the purpose of viewing and managing Customer Content. Some Customer content contained in Axon’s Evidence.com may not be accessible or transferable to the FUSUS cloud services.
2. Product Limits. The following limitations apply to the below products:
Lite Basic Pro Enterprise Enterprise Plus
Total Number of Managed End Points 150 150 500 1500 4500 Max Number of Video Streams Connected 0 150 500 1500 4500 Indefinite Cloud Storage 2TB 5TB 10TB 30TB
Overages may result in additional fees or the need to upgrade products.
3. Disclaimer. Customer is responsible for use of any internet access devices and/or all third-party hardware, software, services, telecommunication services (including Internet connectivity), or other items used by Customer to access the service (“Third-Party Components”) are the sole and exclusive responsibility of Customer, and that Axon has no responsibility for such Third-party Components, FUSUS cloud services, or Customer relationships with such third parties. Customer agrees to at all times comply with the lawful terms and conditions of agreements with such third parties. Axon does not represent or warrant that the FUSUS cloud services and the Customer Content are compatible with any specific third-party hardware or software or any other Third-Party Components.
Customer is responsible for providing and maintaining an operating environment as reasonably necessary to accommodate and access the FUSUS cloud services.
4. Data Privacy. Axon may collect, use, transfer, disclose and otherwise process Customer Content in the context of facilitating communication of data with Customer through their use of FUSUS cloud services FUSUS app (iOS or Android interface), complying with legal requirements, monitoring the Customer’s use of FUSUS systems, and undertaking data analytics. Customer Content saved in Axon Cloud Services is the sole property of Customer and may not be distributed by Axon to any third parties outside of the Customer’s organization without the Customer’s expressed written consent.
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Axon Channel Services Appendix
This Appendix applies if Customer purchases Axon Channel Service, as set forth on the Quote.
1. Definitions.
1.1. "Axon Digital Evidence Management System" means Axon Evidence or Axon Evidence Local, as specified in the attached Channel Services Statement of Work.
1.2. "Active Channel" means a third-party system that is continuously communicating with an Axon Digital Evidence Management System.
1.3. "Inactive Channel" means a third-party system that will have a one-time communication to an Axon Digital Evidence Management System.
2. Scope. Customer currently has a third-party system or data repository from which Customer desires to share data with Axon Digital Evidence Management. Axon will facilitate the transfer of Customer’s third-party data into an Axon Digital Evidence Management System or the transfer of Customer data out of an Axon Digital Evidence Management System as defined in the Channel Services Statement of Work ("Channel Services SOW"). Channel Services will not delete any Customer Content. Customer is responsible for verifying all necessary data is migrated correctly and retained per Customer policy.
3. Changes. Axon is only responsible to perform the Services described in this Appendix and Channel Services SOW.
Any additional services are out of scope. The Parties must document scope changes in a written and signed change order. Changes may require an equitable adjustment in the charges or schedule.
4. Purpose and Use. Customer is responsible for verifying Customer has the right to share data from and provide access to third-party system as it relates to the Services described in this Appendix and the Channel Services SOW.
For Active Channels, Customer is responsible for any changes to a third-party system that may affect the functionality of the channel service. Any additional work required for the continuation of the Service may require additional fees.
An Axon Field Engineer may require access to Customer’s network and systems to perform the Services described in the Channel Services SOW. Customer is responsible for facilitating this access per all laws and policies applicable to Customer.
5. Project Management. Axon will assign a Project Manager to work closely with Customer’s project manager and project team members and will be responsible for completing the tasks required to meet all contract deliverables on time and budget.
6. Warranty. Axon warrants that it will perform the Channel Services in a good and workmanlike manner.
7. Monitoring. Axon may monitor Customer’s use of Channel Services to ensure quality, improve Axon devices and services, prepare invoices based on the total amount of data migrated, and verify compliance with this Agreement.
Customer agrees not to interfere with such monitoring or obscure from Axon Customer’s use of channel services.
8. Customer’s Responsibilities. Axon’s successful performance of the Channel Services requires Customer:
8.1. Make available its relevant systems for assessment by Axon (including making these systems available to Axon via remote access);
8.2. Provide access to the building facilities and where Axon is to perform the Channel Services, subject to safety and security restrictions imposed by the Customer (including providing security passes or other necessary documentation to Axon representatives performing the Channel Services permitting them to enter and exit Customer premises with laptop personal computers and any other materials needed to perform the Channel Services);
8.3. Provide all necessary infrastructure and software information (TCP/IP addresses, node names, and network configuration) for Axon to provide the Channel Services;
8.4. Ensure all appropriate data backups are performed;
8.5. Provide Axon with remote access to the Customer’s network and third-party systems when required for Axon to perform the Channel Services;
8.6. Notify Axon of any network or machine maintenance that may impact the performance of the Channel Services; and
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and operators to provide timely, accurate, complete, and up-to-date documentation and information to Axon (these contacts are to provide background information and clarification of information required to perform the Channel Services).
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VIEVU Data Migration Appendix
This Appendix applies if Customer purchases Migration services, as set forth on the Quote.
1. Scope. Customer currently has legacy data in the VIEVU solution from which Customer desires to move to Axon Evidence. Axon will work with Customer to copy legacy data from the VIEVU solution into Axon Evidence ("Migration"). Before Migration, Customer and Axon will work together to develop a Statement of Work ("Migration SOW") to detail all deliverables and responsibilities. The Migration will require the availability of Customer resources.
Such resources will be identified in the SOW. On-site support during Migration is not required. Upon Customer’s request, Axon will provide on-site support for an additional fee. Any request for on-site support will need to be prescheduled and is subject to Axon’s resource availability.
1.1. A small amount of unexposed data related to system information will not be migrated from the VIEVU solution to Axon Evidence. Upon request, some of this data can be manually exported before Migration and provided to Customer. The Migration SOW will provide further detail.
2. Changes. Axon is only responsible to perform the Services described in this Appendix and Migration SOW. Any additional services are out of scope. The Parties must document scope changes in a written and signed change order.
Changes may require an equitable adjustment in the charges or schedule.
3. Project Management. Axon will assign a Project Manager to work closely with Customer’s project manager and project team members and will be responsible for completing the tasks required to meet all contract deliverables on time and budget.
4. Downtime. There may be downtime during the Migration. The duration of the downtime will depend on the amount of data that Customer is migrating. Axon will work with Customer to minimize any downtime. Any VIEVU mobile application will need to be disabled upon Migration.
5. Functionality Changes. Due to device differences between the VIEVU solution and the Axon’s Axon Evidence solution, there may be functionality gaps that will not allow for all migrated data to be displayed the same way in the user interface after Migration.
6. Acceptance. Once the Migration is complete, Axon will notify Customer and provide an acceptance form. Customer is responsible for verifying that the scope of the project has been completed and all necessary data is migrated correctly and retained per Customer policy. Customer will have ninety (90) days to provide Axon acceptance that the Migration was successful, or Axon will deem the Migration accepted.
6.1. In the event Customer does not accept the Migration, Customer agrees to notify Axon within a reasonable time.
Customer also agrees to allow Axon a reasonable time to resolve any issue. In the event Customer does not provide Axon with a written rejection of the Migration during these ninety (90) days, Customer may be charged for additional monthly storage costs. After Customer provides acceptance of the Migration, Axon will delete all data from the VIEVU solution ninety (90) days after the Migration.
7. Post-Migration. After Migration, the VIEVU solution may not be supported and updates may not be provided. Axon may end of life the VIEVU solution in the future. If Customer elects to maintain data within the VIEVU solution, Axon will provide Customer ninety (90) days’ notice before ending support for the VIEVU solution.
8. Warranty. Axon warrants that it will perform the Migration in a good and workmanlike manner.
9. Monitoring. Axon may monitor Customer’s use of Migration to ensure quality, improve Axon Devices and Services, prepare invoices based on the total amount of data migrated, and verify compliance with this Agreement. Customer agrees not to interfere with such monitoring or obscure Customer’s use of Migration from Axon. #16..
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10. Axon Technical Account Manager Appendix
This Appendix applies if Axon Support Engineer services are included on the Quote.
1. Axon Technical Account Manager Payment. Axon will invoice for Axon Technical Account Manager ("TAM") services, as outlined in the Quote, when the TAM commences work on-site at Customer.
2. Full-Time TAM Scope of Services.
2.1. A Full-Time TAM will work on-site four (4) days per week, unless an alternate schedule or reporting location is mutually agreed upon by Axon and Customer.
2.2. Customer’s Axon sales representative and Axon’s Customer Success team will work with Customer to define its support needs and ensure the Full-Time TAM has skills to align with those needs. There may be up to a six- (6-) month waiting period before the Full-Time TAM can work on-site, depending upon Customer’s needs and availability of a Full-Time TAM.
2.3. The purchase of Full-Time TAM Services includes two (2) complimentary Axon Accelerate tickets per year of the Agreement, so long as the TAM has started work at Customer, and Customer is current on all payments for the Full-Time TAM Service.
2.4. The Full-Time TAM Service options are listed below:
Ongoing System Set-up and Configuration
Assisting with assigning cameras and registering docks
Maintaining Customer’s Axon Evidence account
Connecting Customer to "Early Access" programs for new devices Account Maintenance
Conducting on-site training on new features and devices for Customer leadership team(s) Thoroughly documenting issues and workflows and suggesting new workflows to improve the effectiveness of the Axon program
Conducting weekly meetings to cover current issues and program status Data Analysis
Providing on-demand Axon usage data to identify trends and insights for improving daily workflows Comparing Customer's Axon usage and trends to peers to establish best practices Proactively monitoring the health of Axon equipment and coordinating returns when needed Direct Support
Providing on-site, Tier 1 and Tier 2 (as defined in Axon's Service Level Agreement) technical support for Axon Devices
Proactively monitoring the health of Axon equipment
Creating and monitoring RMAs on-site
Providing Axon app support
Monitoring and testing new firmware and workflows before they are released to Customer’s production environment Customer Advocacy
Coordinating bi-annual voice of customer meetings with Axon’s Device Management team Recording and tracking Customer feature requests and major bugs
3. Regional TAM Scope of Services
3.1. A Regional TAM will work on-site for three (3) consecutive days per quarter. Customer must schedule the onsite days at least two (2) weeks in advance. The Regional TAM will also be available by phone and email during regular business hours up to eight (8) hours per week.
3.2. There may be up to a six- (6-) month waiting period before Axon assigns a Regional TAM to Customer, depending upon the availability of a Regional TAM.
3.3. The purchase of Regional TAM Services includes two (2) complimentary Axon Accelerate tickets per year of the Agreement, so long as the TAM has started work at Customer and Customer is current on all payments for the Regional TAM Service.
3.4. The Regional TAM service options are listed below:
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Account Maintenance
Conducting remote training on new features and devices for Customer’s leadership Thoroughly documenting issues and workflows and suggesting new workflows to improve the effectiveness of the Axon program
Conducting weekly conference calls to cover current issues and program status Visiting Customer quarterly (up to 3 consecutive days) to perform a quarterly business review, discuss Customer's goals for your Axon program, and continue to ensure a successful deployment of Axon Devices Direct Support
Providing remote, Tier 1 and Tier 2 (As defined Axon's Service Level Agreement) technical support for Axon Devices
Creating and monitoring RMAs remotely
Data Analysis
Providing quarterly Axon usage data to identify trends and program efficiency opportunities Comparing an Customer's Axon usage and trends to peers to establish best practices Proactively monitoring the health of Axon equipment and coordinating returns when needed Customer Advocacy
Coordinating bi-yearly Voice of Customer meetings with Device Management team Recording and tracking Customer feature requests and major bugs
4. Out of Scope Services. The TAM is responsible to perform only the Services described in this Appendix. Any additional Services discussed or implied that are not defined explicitly in this Appendix will be considered out of the scope.
5. TAM Leave Time. The TAM will be allowed up seven (7) days of sick leave and up to fifteen (15) days of vacation time per each calendar year. The TAM will work with Customer to coordinate any time off and will provide Customer with at least two (2) weeks’ notice before utilizing any vacation days. #16..
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Axon Investigate Appendix
If the Quote includes Axon's On Prem Video Suite known as Axon Investigate or Third Party Video Support License, the following appendix shall apply.
1. License Grant. Subject to the terms and conditions specified below and upon payment of the applicable fees set forth in the Quote, Axon grants to Customer a nonexclusive, nontransferable license to install, use, and display the Axon Investigate software ("Software") solely for its own internal use only and for no other purpose, for the duration of subscription term set forth in the Quote. This Agreement does not grant Customer any right to enhancements or updates, but if such are made available to Customer and obtained by Customer they shall become part of the Software and governed by the terms of this Agreement.
2. Third-Party Licenses. Axon licenses several third-party codecs and applications that are integrated into the Software. Users with an active support contract with Axon are granted access to these additional features. By accepting this agreement, Customer agrees to and understands that an active support contract is required for all of the following features: DNxHD output formats, decoding files via the "fast indexing" method, proprietary file metadata, telephone and email support, and all future updates to the software. If Customer terminates the annual support contract with Axon, the features listed above will be disabled within the Software. It is recommended that users remain on an active support contract to maintain the full functionality of the Software.
3. Restrictions on Use. Customer may not permit any other person to use the Software unless such use is in accordance with the terms of this Agreement. Customer may not modify, translate, reverse engineer, reverse compile, decompile, disassemble or create derivative works with respect to the Software, except to the extent applicable laws specifically prohibit such restrictions. Customer may not rent, lease, sublicense, grant a security interest in or otherwise transfer Customer’s rights to or to use the Software. Any rights not granted are reserved to Axon.
4. Term. For purchased perpetual Licenses only—excluding Licenses leased for a pre-determined period, evaluation licenses, companion licenses, as well as temporary licenses--the license shall be perpetual unless Customer fails to observe any of its terms, in which case it shall terminate immediately, and without additional prior notice. The terms of Paragraphs 1, 2, 3, 5, 6, 8 and 9 shall survive termination of this Agreement. For licenses leased for a predetermined period, for evaluation licenses, companion licenses, as well as temporary licenses, the license is granted for a period beginning at the installation date and for the duration of the evaluation period or temporary period as agreed between Axon and Customer.
5. Title. Axon and its licensors shall have sole and exclusive ownership of all right, title, and interest in and to the Software and all changes, modifications, and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), regardless of the form or media in which the original or copies may exist, subject only to the rights and privileges expressly granted by Axon. This Agreement does not provide Customer with title or ownership of the Software, but only a right of limited use.
6. Copies. The Software is copyrighted under the laws of the United States and international treaty provisions. Customer may not copy the Software except for backup or archival purposes, and all such copies shall contain all Axon’s notices regarding proprietary rights as contained in the Software as originally provided to Customer. If Customer receives one copy electronically and another copy on media, the copy on media may be used only for archival purposes and this license does not authorize Customer to use the copy of media on an additional server.
7. Actions Required Upon Termination. Upon termination of the license associated with this Agreement, Customer agrees to destroy all copies of the Software and other text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions and operation of the Software that are provided by Axon to Customer ("Software Documentation") or return such copies to Axon. Regarding any copies of media containing regular backups of Customer's computer or computer system, Customer agrees not to access such media for the purpose of recovering the Software or online Software Documentation.
8. Export Controls. None of the Software, Software Documentation or underlying information may be downloaded or otherwise exported, directly or indirectly, without the prior written consent, if required, of the office of Export Administration of the United States, Department of Commerce, nor to any country to which the U.S. has embargoed goods, to any person on the U.S. Treasury Department’s list of Specially Designated Nations, or the U.S. Department of Commerce’s Table of Denials.
9. U.S. Government Restricted Rights. The Software and Software Documentation are Commercial Computer Software provided with Restricted Rights under Federal Acquisition Regulations and Customer supplements to them.
Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFAR 255.227-7013 et. Seq. or 252.211-7015, or #16..
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subparagraphs (a) through (d) of the Commercial Computer Software Restricted Rights at FAR 52.227-19, as applicable, or similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Axon Enterprise, Inc., 17800 North 85th Street, Scottsdale, Arizona 85255.
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My90 Terms of Use Appendix
Definitions.
1.1. "My90" means Axon’s proprietary platform and methodology to obtain and analyze feedback, and other related offerings, including, without limitation, interactions between My90 and Axon products.
1.2. "Recipient Contact Information" means contact information, as applicable, including phone number or email address (if available) of the individual whom Customer would like to obtain feedback.
1.3. "Customer Data" means
1.3.1."My90 Customer Content" which means data, including Recipient Contact Information, provided to My90 directly by Customer or at their direction, or by permitting My90 to access or connect to an information system or similar technology. My90 Customer Content does not include My90 NonContent Data.
1.3.2."My90 Non-Content Data" which means data, configuration, and usage information about Customer's My90 tenant, and client software, users, and survey recipients that is Processed (as defined in Section 1.6 of this Appendix) when using My90 or responding to a My90 Survey. My90 Non-Content Data includes data about users and survey recipients captured during account management and customer support activities. My90 Non-Content Data does not include My90 Customer Content.
1.3.3."Survey Response" which means survey recipients' response to My90 Survey.
1.4. "My90 Data" means
1.4.1."My90 Survey" which means surveys, material(s) or content(s) made available by Axon to Customer and survey recipients within My90.
1.4.2."Aggregated Survey Response" which means Survey Response that has been de-identified and aggregated or transformed so that it is no longer reasonably capable of being associated with, or could reasonably be linked directly or indirectly to, a particular individual.
1.5. "Personal Data" means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
1.6. "Processing" means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
1.7. "Sensitive Personal Data" means Personal Data that reveals an individual’s health, racial or ethnic origin, sexual orientation, disability, religious or philosophical beliefs, or trade union membership.
2. Access. Upon Axon granting Customer a subscription to My90, Customer may access and use My90 to store and manage My90 Customer Content, and applicable My90 Surveys and Aggregated Survey Responses. This Appendix is subject to the Terms and Conditions of Axon’s Master Service and Purchasing Agreement or in the event you and Axon have entered into a prior agreement to govern all future purchases, that agreement shall govern.
3. IP address. Axon will not store survey respondents’ IP address.
4. Customer Owns My90 Customer Content. Customer controls or owns all right, title, and interest in My90 Customer Content. Except as outlined herein, Axon obtains no interest in My90 Customer Content, and My90 Customer Content is not Axon’s business records. Except as set forth in this Agreement, Customer is responsible for uploading, sharing, managing, and deleting My90 Customer Content. Axon will only have access to My90 Customer Content for the limited purposes set forth herein. Customer agrees to allow Axon access to My90 Customer Content to (a) perform troubleshooting, maintenance, or diagnostic screenings; and (b) enforce this Agreement or policies governing use of My90 and other Axon products. #16..
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5. Details of the Processing. The nature and purpose of the Processing under this Appendix are further specified in Schedule 1 Details of the Processing, to this Appendix.
6. Security. Axon will implement commercially reasonable and appropriate measures to secure Customer Data against accidental or unlawful loss, access, or disclosure. Axon will maintain a comprehensive information security program to protect Customer Data including logical, physical access, vulnerability, risk, and configuration management; incident monitoring and response; security education; and data protection. Axon will not treat Customer Data in accordance with FBI CJIS Security Policy requirements and does not agree to the CJIS Security Addendum for this engagement or any other security or privacy related commitments that have been established between Axon and Customer, such as ISO 27001 certification or SOC 2 Reporting.
7. Privacy. Customer use of My90 is subject to the My90 Privacy Policy, a current version of which is available at https://www.axon.com/legal/my90privacypolicy. Customer agrees to allow Axon access to My90 Non-Content Data from Customer to (a) perform troubleshooting, maintenance, or diagnostic screenings; (b) provide, develop, improve, and support current and future Axon products including My90 and related services; and (c) enforce this Agreement or policies governing the use of My90 or other Axon products.
8. Location of Storage. Axon may transfer Customer Data to third-party subcontractors for Processing. Axon will determine the locations for Processing of Customer Data. For all Customer, Axon will Process and store Customer Data within the country Customer is based. Ownership of My90 Customer Content remains with Customer.
9. Required Disclosures. Axon will not disclose Customer Data that Customer shares with Axon except as compelled by a court or administrative body or required by any law or regulation. Axon will notify Customer if any disclosure request is received for Customer Data so Customer may file an objection with the court or administrative body, unless prohibited by law.
10. Data Sharing. Axon may share data only with entities that control or are controlled by or under common control of Axon, and as described below:
10.1. Axon may share Customer Data with third parties it employs to perform tasks on Axon’s behalf to provide products or services to Customer.
10.2. Axon may share Aggregated Survey Response with third parties, such as other Axon customers, local city agencies, private companies, or members of the public that are seeking a way to collect analysis on general policing and community trends. Aggregated Survey Response will not be reasonably capable of being associated with or reasonably be linked directly or indirectly to a particular individual.
11. License and Intellectual Property. Customer grants Axon, its affiliates, and assignees the irrevocable, perpetual, fully paid, royalty-free, and worldwide right and license to use Customer Data for internal use including but not limited to analysis and creation of derivatives. Axon may not release Customer Data to any third party under this right that is not aggregated and de-identified. Customer acknowledges that Customer will have no intellectual property right in any media, good or service developed or improved by Axon. Customer acknowledges that Axon may make any lawful use of My90 Data and any derivative of Customer Data including, without limitation, the right to monetize, redistribute, make modification of, and make derivatives of the surveys, survey responses and associated data, and Customer will have no intellectual property right in any good, service, media, or other product that uses My90 Data.
12. Customer Use of Aggregated Survey Response. Axon will make available to Customer Aggregated Survey Response and rights to use for any Customer purpose.
13. Data Subject Rights. Taking into account the nature of the Processing, Axon shall assist Customer by appropriate technical and organizational measures, insofar as this is reasonable, for the fulfilment of Customer's obligation to respond to a Data Subject Request regarding any Personal Data contained within My90 Customer Content. If in regard to My90 Customer Content, Axon receives a Data Subject Request from Customer's data subject to exercise one or more of its rights under applicable Data Protection Law, Axon will redirect the data subject within seventy-two (72) hours, to make its request directly to Customer. Customer will be responsible for responding to any such request.
14. Assistance with Requests Related to My90 Customer Content. With regard to the processing of My90 Customer Content, Axon shall, if not prohibited by applicable law, notify Customer without delay after receipt, if Axon: (a) receives a request for information from the Supervisory Authority or any other competent authority regarding My90 Customer Content; (b) receives a complaint or request from a third party regarding the obligations of Customer or Axon under applicable Data Protection Law; or (c) receives any other communication which directly or indirectly pertains to My90 Customer Content or the Processing or protection of My90 Customer Content. Axon #16..
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Master Services and Purchasing Agreement for Customer
Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 40 of 43
shall not respond to such requests, complaints, or communications, unless Customer has given Axon written instructions to that effect or if such is required under a statutory provision. In the latter case, prior to responding to the request, Axon shall notify Customer of the relevant statutory provision and Axon shall limit its response to what is necessary to comply with the request.
15. Axon Evidence Partner Sharing. If Axon Evidence partner sharing is used to share My90 Customer Content, Customer will manage the data sharing partnership with Axon and access to allow only for authorized data sharing with Axon. Customer acknowledges that any applicable audit trail on the original source data will not include activities and processing performed against the instances, copies or clips that has been shared with Axon.
Customer also acknowledges that the retention policy from the original source data is not applied to any data shared with Axon. Except as provided herein, data shared with Axon may be retained indefinitely by Axon.
16. Data Retention. Phone numbers provided to Axon directly by Customer or at their direction, or by permitting My90 to access or connect to an information system or similar technology will be retained for twenty-four (24) hours. Axon will not delete Aggregated Survey Response for four (4) years following termination of this Agreement. There will be no functionality of My90 during these four (4) years other than the ability to submit a request to retrieve Aggregated Survey Response. Axon has no obligation to maintain or provide Aggregated Survey Response after these four years and may thereafter, unless legally prohibited, delete all Aggregated Survey Response.
17. Termination. Termination of an My90 Agreement will not result in the removal or modification of previously shared My90 Customer Content or the potential monetization of Survey Response and Aggregated Survey Response.
18. Managing Data Shared. Customer is responsible for:
18.1. Ensuring My90 Customer Content is appropriate for use in My90. This includes, prior to sharing: (a) applying any and all required redactions, clipping, removal of metadata, logs, etc. and (b) coordination with applicable public disclosure officers and related legal teams;
18.2. Ensuring that only My90 Customer Content that is authorized to be shared for the purposes outlined is shared with Axon. Customer will periodically monitor or audit this shared data;
18.3. Using an appropriately secure data transfer mechanism to provide My90 Customer Content to Axon;
18.4. Immediately notifying Axon if My90 Customer Content that is not authorized for sharing has been shared.
Axon may not be able to immediately retrieve or locate all instances, copies or clips of My90 Customer Content in the event Customer requests to un-share previously shared My90 Customer Content;
19. Prior to enrollment in My90. Prior to enrolling in My90, Customer will:
19.1. determine how to use My90 in accordance with applicable laws and regulations including but not limited to consents, use of info or other legal considerations;
19.2. develop a set of default qualification criteria of what My90 Customer Content may be shared with Axon; and
19.3. assign responsibilities for managing what My90 Customer Content is shared with Axon and educate users on what data may or not be shared with Axon.
20. Customer Responsibilities. Customer is responsible for:
20.1. ensuring no My90 Customer Content or Customer end user’s use of My90 Customer Content or My90 violates this Agreement or applicable laws;
20.2. providing, and will continue to provide, all notices and has obtained, and will continue to obtain, all consents and rights necessary under applicable laws for Axon to process Customer Data in accordance with this Agreement; and
20.3. maintaining necessary computer equipment and Internet connections for use of My90. If Customer becomes aware of any violation of this Agreement by an end user, Customer will immediately terminate that end user’s access to My90. Customer will also maintain the security of end usernames and passwords and security and access by end users to My90 Customer Content. Customer is responsible for ensuring the configuration and utilization of My90 meets applicable Customer regulations and standards. Customer may not sell, transfer, or sublicense access to any other entity or person. Customer shall contact Axon #16..
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Master Services and Purchasing Agreement for Customer
Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 41 of 43
immediately if an unauthorized party may be using Customer's account or My90 Customer Content or if account information is lost or stolen.
21. Suspension. Axon may temporarily suspend Customer's or any end user’s right to access or use any portion or all of My90 immediately upon notice, if Customer or end user’s use of or registration for My90 may (a) pose a security risk to Axon products including My90, or any third-party; (b) adversely impact My90, the systems, or content of any other customer; (c) subject Axon, Axon’s affiliates, or any third-party to liability; or (d) be fraudulent.
Customer remains responsible for all fees, if applicable, incurred through suspension. Axon will not delete My90 Customer Content or Aggregated Survey Response because of suspension, except as specified in this Agreement.
22. My90 Restrictions. Customer and Customer end users (including employees, contractors, agents, officers, volunteers, and directors), may not, or may not attempt to:
22.1. copy, modify, tamper with, repair, or create derivative works of any part of My90;
22.2. reverse engineer, disassemble, or decompile My90 or apply any process to derive any source code included in My90, or allow others to do the same;
22.3. access or use My90 with the intent to gain unauthorized access, avoid incurring fees or exceeding usage limits or quotas;
22.4. use trade secret information contained in My90, except as expressly permitted in this Agreement;
22.5. access My90 to build a competitive product or service or copy any features, functions, or graphics of My90;
22.6. remove, alter, or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices) of Axon’s or Axon’s licensors on or within My90; or
22.7. use My90 to store or transmit infringing, libelous, or other unlawful or tortious material; to store or transmit material in violation of third-party privacy rights; or to store or transmit malicious code. #16..
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Master Services and Purchasing Agreement for Customer
Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 42 of 43
Schedule 1- Details of the Processing
1. Nature and Purpose of the Processing. To help Customer obtain feedback from individuals, such as members of their community, staff, or officers. Features of My90 may include:
1.1. Survey Tool where Customer may create, distribute, and analyze feedback from individuals it designates.
Customer may designate members of the community, staff or officers from whom they would like to obtain feedback;
1.2. Creation of custom forms for surveys. Customer may select questions from a list of pre-drafted questions or create their own;
1.3. Distribution of survey via multiple distribution channels such as text message;
1.4. Ability to access and analyze Survey Response. Axon may also provide Customer Aggregated Survey Responses which contain analysis and insights from the Survey Response;
1.5. Direct integrations into information systems including Computer Aided Dispatch ("CAD"). This will enable Customer to share contact information easily and quickly with Axon of any individuals from whom it wishes to obtain feedback, enabling Axon to communicate directly with these individuals;
1.6. Data Dashboard Beta Test ("Data Dashboard") where Survey Response and Aggregated Survey Response will be displayed for Customer use. Customer will be able to analyze, interpret, and share results of the Survey Response. My90 may provide beta versions of the Data Dashboard that are specifically designed for Customer to test before they are publicly available;
1.7. Survey Responses will be aggregated and de-identified and may be subsequently distributed and disclosed through various mediums to: (1) Customer; (2) other Axon Customer; (3) private companies; and (4) members of the public. The purpose of disclosure is to provide ongoing insights and comparisons on general policing and community trends. Prior to disclosing this information, Axon will ensure that the Survey Response has been de-identified and aggregated or transformed so that it is no longer reasonably capable of being associated with, or could reasonably be linked directly or indirectly to a particular individual; and
1.8. Provide services and materials to engage Customer stakeholders, market the partnership to the public, and facilitate training.
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Master Services and Purchasing Agreement for Customer
Title: Master Services and Purchasing Agreement between Axon and Customer Department: Legal
Version: 21
Release Date: 4/1/2024 Page 43 of 43
Axon Event Offer Appendix
If the Agreement includes the provision of, or Axon otherwise offers, ticket(s), travel and/or accommodation for select events hosted by Axon (“Axon Event”), the following shall apply:
10. General. Subject to the terms and conditions specified below and those in the Agreement, Axon may provide Customer with one or more offers to fund Axon Event ticket(s), travel and/or accommodation for Customer-selected employee(s) to attend one or more Axon Events. By entering into the Agreement, Customer warrants that it is appropriate and permissible for Customer to receive the referenced Axon Event offer(s) based on Customer’s understanding of the terms and conditions outlined in this Axon Event Offer Appendix.
11. Attendee/Employee Selection. Customer shall have sole and absolute discretion to select the Customer employee(s) eligible to receive the ticket(s), travel and/or accommodation that is the subject of any Axon Event offer(s).
12. Compliance. It is the intent of Axon that any and all Axon Event offers comply with all applicable laws, regulations and ethics rules regarding contributions, including gifts and donations. Axon’s provision of ticket(s), travel and/or accommodation for the applicable Axon Event to Customer is intended for the use and benefit of Customer in furtherance of its goals, and not the personal use or benefit of any official or employee of Customer. Axon makes this offer without seeking promises or favoritism for Axon in any bidding arrangements. Further, no exclusivity will be expected by either party in consideration for the offer. Axon makes the offer with the understanding that it will not, as a result of such offer, be prohibited from any procurement opportunities or be subject to any reporting requirements.
If Customer’s local jurisdiction requires Customer to report or disclose the fair market value of the benefits provided by Axon, Customer shall promptly contact Axon to obtain such information, and Axon shall provide the information necessary to facilitate Customer's compliance with such reporting requirements.
13. Assignability. Customer may not sell, transfer, or assign Axon Event ticket(s), travel and/or accommodation provided under the Agreement.
14. Availability. The provision of all offers of Axon Event ticket(s), travel and/or accommodation is subject to availability of funds and resources. Axon has no obligation to provide Axon Event ticket(s), travel and/or accommodation.
15. Revocation of Offer. Axon reserves the right at any time to rescind the offer of Axon Event ticket(s), travel and/or accommodation to Customer if Customer or its selected employees fail to meet the prescribed conditions or if changes in circumstances render the provision of such benefits impractical, inadvisable, or in violation of any applicable laws, regulations, and ethics rules regarding contributions, including gifts and donations #16..
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CITY Of It
MODESTO Bid Waiver Approval Form
CALIFORNIA
Requisition No: I Department:p01ice
Project Description:Axon-Fusus Real Time Crime Operations Solution Platform Sunnlier Name: Amount of Bid Waiver Reauest:
Axon-Fusus $410,000.00
Sunnlier Contact: Sunnlier Phone No:
Matthew Aveling 951-370-0343
Yes No
Are Federal Funds being utilized for portion of purchase? t/ The purchase of any item utilizing any Federal Funding must comply with current applicable Circular A bid waiver is required for any procurement commitment greater than $ 3,500 where a minimum of three bids are not obtained.
Justification for waiving the competitive bid requirements is limited to the following (provide detailed information in the comments section of form):
Reason for Bid Waiver - Check Box:
:j ■ [ Sole Source - The item/service is unique in its specifications such that only one ' . . vendor is qualified to provide the good or service (Formal bidding exception under MMC 8-3.204(b))
D OEM - Original Equipment Manufacturer I Distributor
□ Inflexible time constraints preclude the bidding process - Exigent or mergency circumstances (Formal bidding exception under MMC 8-3.204 (c)) □ The incumbent's cost, delivery and quality can be compared to a previous quote/bid obtained within the last six months, for the same or similar item/service (Total purchase must be less than $100,000)
0 Professional Services defined under MMC 8-3.103 (Formal bidding exception under • MMC 8-3.204 (a)) - staff should make effort to solicit at least three informal proposals.
□ Single Bid/Proposal - More than one supplier could provide the goods or service, but only one supplier provided bid/proposal for solicitation. □ Amendment- Extending agreement for no more than one year to allow the City to complete formal bidding process for new agreement (MMC 8-3.204 (e)). □ Amendment- Amending the goods or services under the existing agreement to include similar types of goods and services (MMC 8-3.204 (f)) Revised 1/19/2024
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D Other (requires detailed comments)
Comments:
See attached Sole Source Letter and Business Justification Memo.
NEW TECHNOLOGY PURCHASES
Does the new technology meet the criteria to be reviewed by the Technology Steering and Alignment Committee (TSAC)? Yes il No fil
If yes, was it approved by this committee? Yes Il No il Approval
Requester
Division Manager
Department Director
Chief Information Officer;
Buyer
Purchasing Manager
Director of Finance
Buyer Comments:
Name Slgnat�re
Jillane Blakeley 9/��
_Je_s_s_ic_a_S_m_a_rt __ -1{:: /\= /LJ=
1 Information technology (IT) purchases will require Chief Information Officer Signature Date
7 / ri!z<J,
,z/u /!Jtj
Revised 1/1912024
Holly Gonzales Holly Gonzales 7/11/24
Sole source letter and justification memo attached.
Dianne Love (Jul 12, 2024 11:28 PDT) Dianne Love Dianne Love Jul 12, 2024 DeAnna Christensen Jul 12, 2024 #16..
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Axon-Fusus Bid Waiver
Final Audit Report 2024-07-12
Created: 2024-07-12
By: Juana Lynch ([email protected])
Status: Signed
Transaction ID: CBJCHBCAABAAwZsP1OwZvLrKBDQWLXD5fJGs30NsIbqz "Axon-Fusus Bid Waiver" History
Document created by Juana Lynch ([email protected]) 2024-07-12 - 3:16:37 PM GMT
Document emailed to [email protected] for signature
2024-07-12 - 3:17:19 PM GMT
Email viewed by [email protected]
2024-07-12 - 6:25:40 PM GMT
Signer [email protected] entered name at signing as Dianne Love 2024-07-12 - 6:28:47 PM GMT
Document e-signed by Dianne Love ([email protected]) Signature Date: 2024-07-12 - 6:28:49 PM GMT - Time Source: server Document emailed to DeAnna Christensen ([email protected]) for signature 2024-07-12 - 6:28:50 PM GMT
Email viewed by DeAnna Christensen ([email protected]) 2024-07-12 - 8:06:15 PM GMT
Document e-signed by DeAnna Christensen ([email protected]) Signature Date: 2024-07-12 - 8:07:00 PM GMT - Time Source: server Agreement completed.
2024-07-12 - 8:07:00 PM GMT
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
September 24, 2024
Date: August 28, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Bill Sandhu, Public Works Director
SUBJECT: Award of Furnishing of Asphalt and Emulsified Asphalt Materials CONTACT: John Sphar, Streets Manager, [email protected], (209) 342-2235 DESCRIPTION:
Consider approving the Award of Bid and Agreement for Furnishing of Asphalt and Emulsified Asphalt Materials to George Reed, Inc., Escalon, CA, for a total amount not to exceed $2,987,330 over five years. (Funding Source: Surface Transportation Fund) STRATEGIC PLAN ELEMENT:
This recommended action supports the City’s Strategic Plan Area of Focus: Quality of Life: “engage partners across the community to ensure the safety, resilience, and attractiveness of Modesto”; Goal D: “provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance and sustainability efforts”.
BACKGROUND:
The Streets Division is tasked with maintaining residential streets, major arterial, collector streets and alleys within the City of Modesto. This division plays a vital role in ensuring that the city’s transportation infrastructure remains functional and accessible for residents, businesses, and visitors.
The Streets Division relies heavily on asphalt and emulsified asphalt materials, (tack oil that allows the asphalt to adhere to the existing surface), as crucial elements to perform its essential maintenance functions, including pothole patching, patching offsets on sidewalks and repaving. These materials allow Streets to fulfill their role efficiently and effectively in asphalt preservation.
By investing in the necessary asphalt and emulsified asphalt materials, the Streets Division can continue to uphold its commitment to maintaining the City’s infrastructure, improving the quality and safety of the City’s roads and contributing to the satisfaction of all who utilize the City’s roads.
On July 9, 2019, by Resolution No. 2019-348, Council approved the Award of Bid for the Furnishing of Asphalt and Emulsified Asphalt Materials to George Reed, Inc., Escalon, CA in the amount of $2,715,755.
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City Council, September 24, 2024
Award of Furnishing of Asphalt and Emulsified Asphalt Materials
DISCUSSION:
On March 13, 2024, the City Manager authorized the Purchasing Manager to solicit the procurement for Asphalt and Emulsified Asphalt Materials. On May 9, 2024, the Purchasing Division issued an Invitation for Bid (IFB) 2324-86 for the Asphalt and Emulsified Asphalt Materials for the furnishing of Asphalt and Emulsified Asphalt Materials on the City’s PlanetBids public bidding website under various commodity codes1. Prospective bidders were notified online and via email of the bid opportunity.
Twelve prospective bidders were notified; 11 companies downloaded the IFB document from PlanetBids.
On June 11, 2024, bids were formally opened in the City Clerk’s office and broadcast via Microsoft Teams Livestream. One chose to respond. This sole bidder is also the one local bid received. Based on providing the lowest responsive and responsible bid, City staff recommend to award the Asphalt and Emulsified Asphalt Materials to George Reed, Inc., Escalon, CA for a one–year agreement with four one-year extension options, for an estimated annual amount of $597,466 and total cost not to exceed $2,987,330 over five years.
Modesto Municipal Section 8-3.203 generally requires all purchases which meet or exceed $100,000 for material, equipment, or contractual services to follow the formal bid procedures. An Award of Bid and Agreement for Asphalt and Emulsified Asphalt Materials for the Streets Division of the Public Works Department use to George Reed, Inc., Escalon, CA., conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and George Reed, Inc. was the lowest responsible and responsible bidder.
FISCAL IMPACT:
Over the past five fiscal years, the cost for asphalt materials including applicable tax has been as follows:
These costs reflect a rising trend in asphalt material prices, with a significant increase observed in FY 23/24. Historically, the average annual cost of asphalt materials over the 1 i.e. 74500 Road & Highway Building Materials (asphaltic), 75000 Road & Highway Building Materials (not asphaltic), 75500 Road & Highway Asphalt & Concrete Handling & processing Equipment, 83064 Steel Tanks, Surface Storage Type (for asphalt, emulsions, road oil, water, etc), 91371 Maintenance & Repair, Highway & Road (to include the removal of asphalt, concrete, bitumens, etc.), 96154 Milling Services: Aspalt, Grain, Cottonseed, Vegetable, Wood, Etc., 08585 Soil Erosion Sheeting Material (to include silt fencing): Asphalt, Biodegradable Paper, Burlap, Excelsior, Jute, Straw, Etc.
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City Council, September 24, 2024
Award of Furnishing of Asphalt and Emulsified Asphalt Materials
past five years has been $294,089 per year for a total cost of $1,470,447 over that period.
The anticipated annual cost of $597,466 will be absorbed within the current Streets Division (1700-53130-53150) Fiscal Year 2024-25 operating budget.
COMMITTEE RECOMMENDATION:
This item was presented to Finance Committee on August 26, 2024, and was recommended to forward to Council for approval of the Award of Bid and Agreement.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the Award of Bid for Purchase of Asphalt and Emulsified Asphalt Materials on an as needed basis to George Reed, Inc., Escalon, CA for a one-year Agreement with four one-year extension options, for an annual estimated cost of $597,466 and a total amount not to exceed $2,987,330 over five years, and authorizing the Finance Director, or her designee, to execute the Purchase Agreement.
Approved by:
Bill Sandhu, Director of Public Works
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Agreement
3. Exhibit A – Price Schedule
4. Exhibit B – Bid Submittal Checklist
5. Exhibit C – Asphalt & Emulsified Asphalt IFB 2324.86
6. Cost Abstract
7. Bid Waiver
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING THE AWARD OF BID FOR PURCHASE OF
ASPHALT AND EMULSIFIED ASPHALT MATERIALS ON AN AS NEEDED BASIS TO GEORGE REED, INC., ESCALON, CA, FOR A ONE-YEAR
AGREEMENT WITH FOUR ONE-YEAR EXTENSION OPTIONS, FOR AN
ANNUAL ESTIMATED COST OF $597,466, AND A TOTAL AMOUNT NOT TO EXCEED $2,987,330 OVER FIVE YEARS, AND AUTHORIZING THE FINANCE
DIRECTOR, OR HER DESIGNEE, TO EXECUTE THE PURCHASE
AGREEMENT
WHEREAS, the Streets Division is tasked with maintaining residential streets, major arterial, collector streets and alleys within the City of Modesto. This division plays a vital role in ensuring that the city’s transportation infrastructure remains functional and accessible for residents, businesses, and visitors; and WHEREAS, the Streets Division relies heavily on asphalt and emulsified asphalt materials, (tack oil that allows the asphalt to adhere to the existing surface), as crucial elements to perform its essential maintenance functions, including pothole patching, patching offsets on sidewalks and repaving. The timely furnishing and availability of these materials allow Streets to fulfill their role efficiently and effectively in asphalt preservation; and WHEREAS, on July 9, 2019, by Resolution No. 2019-348, Council approved the Award of Bid for the Furnishing of Asphalt and Emulsified Asphalt Materials to George Reed, Inc., Escalon, CA; and
WHEREAS, on March 13, 2024, the City Manager authorized the Purchasing Manager to solicit the procurement for Asphalt and Emulsified Asphalt Materials; and #17..
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2 WHEREAS, on May 9, 2024, the Purchasing Division issued IFB 2324-86 for purchase of asphalt and emulsified asphalt materials and posted on PlanetBids via the City’s Website; and
WHEREAS, on June 11, 2024, bids were formally opened in the City Clerk’s Office and broadcast via Microsoft Teams Livestream, and one sole local bidder chose to respond. This company provided a responsive and responsible proposal; and WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases which meet or exceed $100,000 for materials, equipment or contractual services to be formally bid. The award of proposal and contract for the purchase, as needed, of asphalt and emulsified asphalt materials, George Reed, Inc., Escalon, CA, conforms to the Modesto Municipal Code, 8-3.203.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it authorized the award of Bid for Purchase and Agreement for Asphalt and Emulsified Asphalt Materials to George Reed, Inc., Escalon, CA on an, as needed basis, for a one-year agreement with four one-year extension options for an annual cost of $597,466 and a total amount not to exceed $2,987,330 over five years.
BE IT FURTHER RESOLVED that the Director of Finance, or her designee, is authorized to issue the Purchase Agreement.
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3 The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto to be held on September 24, 2024, by Councilmember, who moved its adoption, which motion being duly seconded by Councilmember, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: __________________________
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _______________________________
JOSE M. SANCHEZ, City Attorney
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1 GEORGE REED INC ANNUAL PURCHASE AGREEMENT #276495
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of _____________, 2024, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and George Reed, Inc a California corporation, hereinafter called VENDOR,
W I T N E S E T H:
WHEREAS, the Modesto City Council adopted Resolution No. 2024- authorizing the Award of Bid and agreement for the asphalt and emulsified materials, supplies or equipment described herein (the “GOODS”) to VENDOR, attached hereto as Exhibit “A”, and made a part hereof, and WHEREAS, the VENDOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B”, and made a part hereof, and WHEREAS, the CITY and VENDOR shall enter into an agreement for the ASPHALT AND EMULSIFIED MATERIALS as described in IFB, attached hereto as Exhibit “C”, and made a part hereof, and
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. TERM OF AGREEMENT: The term of the AGREEMENT shall be for a period of ONE YEAR with FOUR one-year extension options at the sole discretion of City, for a total of up to five years.
Year one: SEPTEMBER 25, 2024 THROUGH SEPTEMBER 24, 2025 Year two: SEPTEMBER 25, 2025 THROUGH SEPTEMBER 24, 2026 Year three: SEPTEMBER 25, 2026 THROUGH SEPTEMBER 24, 2027 Year four: SEPTEMBER 25, 2027 THROUGH SEPTEMBER 24, 2028 Year five: SEPTEMBER 25, 2028 THROUGH SEPTEMBER 24, 2029 #17..
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2 2. PRICING:
A. Per the aforementioned Council Resolution, the annual estimated amount of the AGREEMENT is $597,466. The total amount paid by CITY to VENDOR over the full term of the AGREEMENT shall not exceed $2,987,330
B. Pricing during AGREEMENT Year one shall be as set forth in Exhibit A Pricing, attached hereto and made a part hereof by this reference.
C. Pricing shall remain firm for the first year of the AGREEMENT.
D. Price increases for each subsequent AGREEMENT years two, three, four, and five, shall be negotiated in good faith by the parties, but in no instance may exceed the net percentage increase during the prior twelve (12) month period in the Federal Bureau of Labor Statistics’ Consumer Price Index (CPI) for West Urban Area. Requests for price increases in any renewal year shall be submitted by VENDOR in writing at least sixty (60) days prior to the annual anniversary date of the AGREEMENT.
3. USAGE: Vendor shall provide whatever quantities may be required during the term of this Agreement. No minimum or maximum quantities are guaranteed or implied by CITY.
4. ORDERING: Vendor shall deliver GOODS to the location specified within CITY’s purchase order. Unless otherwise specified by the Purchasing Division, no GOODS may be delivered to CITY unless a purchase order has been provided by CITY to VENDOR.
5. PAYMENT: All invoices shall be paid in full by CITY after completion and acceptance of the GOODS by the City, and receipt of a properly prepared invoice submitted by VENDOR via email to [email protected] . As specified by the Purchasing Division, every invoice must reference this AGREEMENT number or CITY’s purchase order number. VENDOR will be paid by CITY via the following payment method: “Net 45 Days via manual check”.
6. AMENDMENTS: No changes to this AGREEMENT shall be effective unless documented by a written amendment to this AGREEMENT and signed by the parties hereto with CITY represented by the Purchasing Division.
7. TERMINATION:
A. In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non-performance. Within 30 days after receipt of notification, the breaching party shall correct any non-performance to the reasonable satisfaction of the non-breaching party. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
B. CITY may terminate this AGREEMENT for convenience upon 30 days prior notice to VENDOR by CITY’s authorized employee.
8. INSPECTION: All GOODS are subject to inspection and test by the City for compliance with specifications as included herein, within a reasonable time after delivery. In the event GOODS are defective or not in conformity with this AGREEMENT or CITY’s purchase order, the CITY shall have the rights to either #17..
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3 reject the GOODS or require correction. Defective articles or services shall be removed from CITY premises and/or corrected by and at the expense of VENDOR; provided that should the VENDOR fail, neglect or refuse to do so, the CITY shall thereupon have the right to purchase in the open market, in lieu thereof, a corresponding quantity of any such items. CITY may deduct from any moneys due or that may there after come due to VENDOR, or send an invoice to the VENDOR which shall be paid within thirty (30) days, the difference between the prices named in the contract or purchase order and the actual cost thereof to the CITY. In the event that the VENDOR fails to make prompt delivery as specified for any item, the same conditions as to the rights of the CITY to purchase in the open market and to reimbursement set forth above shall apply, except when delivery is delayed by fire, strike, freight embargo, or Act of God or the government. Cost of inspection or deliveries or offers for delivery, which do not meet specifications, will be borne by the Bidder. Failure by CITY to inspect and accept or reject shall not relieve the VENDOR from responsibility for compliance with specifications. Final acceptance shall be conclusive except as regards to latent defects, fraud, or such gross mistakes as amount to fraud.
9. RESPONSIBILITY: Unless otherwise specified, the VENDOR shall be responsible for all GOODS until delivered at CITY’s designated delivery point and shall bear all risks as to items rejected or requiring correction after notice of such rejection or correction is given.
10. SHIPMENT: Unless otherwise authorized by CITY’s Purchasing Division, GOODS shall be delivered F.O.B. Destination Freight Prepaid and Included in Price of GOODS. VENDOR may not collect freight collect or charge shipping expenses otherwise to CITY. Original receipted freight bill must accompany the invoice. Shipment must be made within the time stated on Purchase Order, failing which CITY reserves the right to purchase elsewhere and charge VENDOR with any loss incurred, unless delay in making shipment is due to unforeseeable causes beyond the control and without the fault or negligence of VENDOR.
11. CHANGES: A purchase order may at any time, by written order of the CITY, be changed in regard to the GOODS to be furnished, quantities ordered, unit price, discount, delivery point or arrangements, terms or any other matters affecting a valid PO. In the event such change causes an increase or decrease in the cost of performance hereunder, and equitable adjustment will be made for the cost thereof, subject to the approval of the Purchasing Manager, and written notice given, therefore.
12. WARRANTY: Notwithstanding any other provisions of the purchase order, VENDOR warranties for the GOODS shall extend for 90 days after delivery thereof to CITY, shall meet or exceed all original manufacturer warranties, and that GOODS shall be of the most suitable grade as specified in this AGREEMENT, VENDOR’s own marketing materials and in the purchase order. Moreover, VENDOR warrants and represents that GOODS shall comply with warranties of merchantability and fitness for a particular purpose. If a defect is discovered in any GOODS covered in this AGREEMENT, VENDOR shall correct at its expense, including transportation/freight, such defects as are reported within one year of final acceptance.
13. INSURANCE: Any purchase order where work, maintenance, or service is performed on CITY property requires appropriate insurance. VENDOR shall ensure proper insurance certificates are on file with the CITY prior to performing onsite work. Contact CITY’s Purchasing Division to verify the type of insurance required.
14. TAX EXEMPTIONS: The CITY is exempt from payment of federal excise tax. All invoices shall be exclusive of such excise tax. Moreover, if the CITY’s purchase is not subject to sales tax, the statement for resale will appear in the body of the purchase order.
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4 15. INDEMNITIES:
A. VENDOR agrees to protect, indemnify and save harmless CITY and its agents, officers, employees, and volunteers from any claim, loss or damage from VENDOR’s, or the GOODs’, infringement of trademarks, patents, copyrights and unfair competition action with to any third party.
B. VENDOR shall hold the CITY and its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of VENDOR, or its agents, officers, employees, or subcontractors relating to or during the performance of its obligations under this AGREEMENT. VENDOR’s obligation to defend, indemnify, and hold the city, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement for VENDOR to procure and maintain a policy of insurance VENDOR.
16. GOVERNING LAW: This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, U.S.A., without giving effect to its conflicts of law provisions or principles.
17. VENUE: Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California.
18. ATTORNEY’S FEES. If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
19. LIMITATION OF LIABILITY: The CITY shall not be responsible for any damage that may accrue by reason of the death or injury of the person of the Vendor’s officers, agents, employees, invitees, or licensees, or be set up at any time because of personal injury or damage to property sustained by any other person or persons, which may have been caused or contributed to, approximately or remotely, by reason of or in the course of performance of the Purchase Order. The Vendor shall assume full responsibility for the defense of any claims arising under the Purchase Order and the Vendor shall save, keep, and bear harmless the City, all officers and employees thereof, from all damages, costs, or expenses because of personal injury or property damage based on the performance of this Purchase Order or asserted against it.
20. NOTICES: Any notice, payment or instrument required or permitted by this AGREEMENT to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid addressed as follows:
CONTRACTOR: George Reed, Inc
Ed Berlier, Vice President – General Manager
140 Empire Ave.
Modesto, CA 95354
Phone: (209) 524-3197
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5 Email: [email protected]
CITY: City of Modesto
Kim Presson, Buyer
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Phone; (209) 577-5375
Email: [email protected]
Either party may change its address for delivery of notice by delivering written notice of such change of address to the other party.
21. ASSIGNMENT: Neither this AGREEMENT nor any portion hereof shall be subcontracted or assigned without the written consent of the City in each and every instance.
22. MISCELLANEOUS: Time is of the essence in each and every provision of this AGREEMENT.
23. ENTIRE AGREEMENT: This AGREEMENT and its exhibits contain the entire understanding between VENDOR and CITY. Additional or new terms contained in this AGREEMENT which vary from VENDOR’S bid are controlling and are deemed accepted by VENDOR by provision of any GOODS or other commencement of performance hereunder. The terms and conditions of the IFB, attached hereto as Exhibit C, are incorporated herein. In the event of a conflict between the IFB and this AGREEMENT, this AGREEMENT shall control. All previous bids, offers and communications relative to this AGREEMENT, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this AGREEMENT. No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.
24. 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 shall nevertheless continue in full force without being impaired or invalidated in any way.
IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this AGREEMENT by its Director of Finance under authority of Resolution No. 2024- adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2024 and George Reed Inc. has caused this Agreement to be duly executed. #17..
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EXHIBIT “A”
Price Schedule
ITEM/DESCRIPTION QTY
UNIT
OF George Reed, Inc.
ISSUE UN PRC EXTENSION
Sheet Asphalt Concrete PG 64 1 Per Ton $89.00 $89.00
Sheet Asphalt Concrete PG 70 1 Per Ton $91.00 $91.00
3/8" Asphalt Concrete PG 64 1 Per Ton $86.00 $86.00
3/8" Asphalt Concrete PG 70 1 Per Ton $88.00 $88.00
3/8" Rubberized Asphalt 1 Per Ton $142.00 $142.00
1/2" Asphalt Concrete PG 64 1 Per Ton $81.25 $81.25
1/2" Asphalt Concrete PG 70 1 Per Ton $83.25 $83.25
1/2" Rubberized Asphalt 1 Per Ton $140.00 $140.00
3/4" Asphalt Concrete PG 64 1 Per Ton $79.00 $79.00
3/4" Asphalt Concrete PG 70 1 Per Ton $81.00 $81.00
3/4" Rubberized Asphalt 1 Per Ton $140.00 $140.00
3/4" Class II AB 1 Per Ton $20.00 $20.00
SS-1 Emulsion 1 Per Ton $900.00 $900.00
Environmental Fee 1
Per
Load $10.00 $10.00
Plant Hours of Operation: Summer Hours 6:00am to 3:30pm Months: May-October Plant Hours of Operation: Winter Hours 7:00am to 3:30pm Months: November - April Plant address: 26292 E. River Road, Escalon, CA 95320
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1 INVITATION FOR BIDS (“IFB”) NO. 2324-86
FOR
ASPHALT AND EMULSIFIED ASPHALT MATERIAL
BID OPENING: June 11, 2024, at 11:00 A.M.
CITY OF MODESTO CONTACT: Kim Presson, Buyer
E-MAIL ADDRESS: [email protected]
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
2 Table of Contents
NOTICE TO BIDDERS ............................................................................................................................. 3 CALENDAR OF EVENTS ........................................................................................................................ 5 CITY CONTACT ....................................................................................................................................... 5 PRECEDENCE........................................................................................................................................... 5 VIRTUAL BID OPENING......................................................................................................................... 6 GENERAL BID REQUIREMENTS .......................................................................................................... 7 BID SUBMITTAL CHECKLIST............................................................................................................. 15 BID FORM A - IFB ACKNOWLEDGEMENT .................................................................................. 16 BID FORM B – BIDDER COMPANY INFORMATION................................................................... 19 BID FORM C –PRICING SCHEDULE............................................................................................... 20 BID FORM D – BIDDER EXCEPTIONS, CLARIFICATIONS, AMENDMENTS.......................... 22 BID FORM E – BIDDER CUSTOMER REFERENCES .................................................................... 23 BID FORM F - FINANCIAL INTEREST DISCLOSURE.................................................................. 25 BID FORM G – SUPPORT OF LOCAL VENDORS.......................................................................... 27 BID FORM H - BIDDER COMPANY HISTORY STATEMENT..................................................... 28 BID FORM I - ADDENDA ACKNOWLEDGEMENT ...................................................................... 29 BID FORM J – BIDDER WARRANTY STATEMENTS................................................................... 30 BID FORM K - SUBCONTRACTOR LIST ......................................................................................... 31 TECHNICAL SPECIFICATIONS AND REQUIREMENTS ................................................................. 32
1.1 SCOPE OF WORK:........................................................................................................................ 32
1.2 PRODUCTS SUBSTITUTIONS.................................................................................................... 32
1.3 WILL CALL REQUIREMENTS…………………………….………………………...…………32
1.4 MEASUREMENT REQUIREMENTS …………………………………………………………. 32
1.5 ASPHALT CONCRETE TIME/MILEAGE/TRANSPORTATION MEASUREMENT….….….32
1.6 ESTIMATED ANNUAL VOLUME ………………………………….………………………….33
1.7 USAGE REPORTS………………………….…………………………………………………….33
SAMPLE AGREEMENT......................................................................................................................... 34 #17..
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
3 NOTICE TO BIDDERS
NOTICE IS HEREBY GIVEN that the City of Modesto, County of Stanislaus, State of California (“City”), will receive at the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 sealed Bids (each, a “Bid”) from qualified Bidders (each, a “Bidder”) for the furnishing of Asphalt and Emulsified Asphalt equipment, materials, supplies and/or related services (the “Goods”) for the City of Modesto, Streets Department, Public Works Division.
All equipment, materials, and supplies shall be furnished F.O.B. City of Modesto (delivery charges borne by Bidder, included in the Goods pricing herein, and not separately charged to the City). Bidders are highly recommended to download all IFB documents from the City’s Purchasing Division website at http://www.modestogov.com/257/Contracting-Bid-Opportunities; such IFB documents shall include all specifications necessary for Bidders to submit a responsive Bid..
Each Bid shall be sealed and filed with the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 prior to Tuesday, June 11, 2024, at 11:00 A.M., at which time Bids will be opened, read and recorded. The opening of bids will not be physically open to the public but may be viewed simultaneously via video conferencing in the manner provided for herein. All Bids shall be available for review following City Council award approval at the Purchasing Division, 1010 Tenth Street, 5th Floor, Suite 5300, Modesto, CA 95354.
Bids will be received only at the address shown above, and prior to the time indicated. Any Bid received at or after said time and/or date, or at a place other than the stated address cannot be considered and will be returned to the Bidder unopened.
All Bids, whether delivered by an employee of the Bidder, U.S. Postal Service, courier or package delivery service must be received and time stamped at the stated address prior to the time designated.
The City Clerk’s time stamp shall be considered the official timepiece for the purpose of establishing the actual receipt of Bids. Bids will not be accepted by email or facsimile. The City of Modesto assumes no responsibility for delay in the delivery of the Bid. #17..
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
4 On the outside of the Bid envelope and courier envelope, if any, the Bidder shall indicate the following:
“NAME AND ADDRESS OF BIDDER
BID IN RESPONSE TO INVITATION FOR BIDS # 2324-86
BID OPENING DATE: June 11, 2024, AT 11:00 A.M.”
Bidder must deliver your Bid by a preferred method to the appropriate location below:
MAIL TO: CITY CLERK DELIVER/ COURIER TO: CITY CLERK
CITY OF MODESTO CITY OF MODESTO
P.O. BOX 642 1010 10TH STREET, SUITE 6600,
MODESTO, CA 95353 MODESTO, CA 95354
The City reserves the right to reject any or all Bids or to waive any informalities or minor irregularities in a Bid.
No Bidder may withdraw its Bid for a period of ninety (90) days after the date set for the opening thereof.
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
5 CALENDAR OF EVENTS
Event Date
IFB Issued May 09, 2024
Written Questions Due via Email May 23, 2024
Addendum Issued (if required) May 29, 2024 (approximate date) Bid Due Date & Time PRIOR 11:00 A.M. on Tuesday, June 11, 2024 Contract Award Approximately September 2024
CITY CONTACT
All questions regarding these specifications, terms, and conditions shall be submitted in writing via email to the City’s Purchasing Division contact named on the cover page of this IFB (“City Contact”) by the date listed in the CALENDAR OF EVENTS above. The City will respond to pertinent questions through issuance of an Addendum to be available to all Bidders. All contact between Bidder and the City regarding the Bid process shall be through the City Contact. Attempts by the Bidder to contact other City personnel regarding this IFB and associated process may result in disqualification of the Bidder. Notwithstanding the foregoing, information intentionally or un-intentionally provided by any person other than the City Contact may not be correct and will not be binding upon the City.
PRECEDENCE
Bidder agrees that any agreement resulting from City’s acceptance of its Bid, together with the terms in any City purchase order and associated specifications provided by the City to Bidder therewith, shall comprise the entire agreement between City and Bidder. Moreover, Bidder agrees that any additional or contrary terms contained in Bidder’s acknowledgement of, shall be null and void. #17..
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
6 VIRTUAL BID OPENING
The City of Modesto will be broadcasting Bid openings live electronically via Microsoft Teams at 11:00 a.m. (Pacific Time) on Tuesday, June 11, 2024. The City Clerk Record of Bid document should be available on Planet Bids by the end of the same day.
The public Bid opening for this Invitation for Bids will be available using the URL link containing the Number and Title of the Bid on the cover page, provided below. By submitting your Bid for the abovestated IFB you acknowledge, understand, and agree to this modified Bid opening procedure.
URL: https://teams.microsoft.com/l/meetupjoin/19%3ameeting_NTI0YzBiMDMtNDQ0Yi00YjNlLWIwZjYtYzg4ZDVjMDdkM2Mz%40thread.v2/0?context=%7b %22Tid%22%3a%22125ccacf-fc61-463c-9976-189f876ff90b%22%2c%22Oid%22%3a%229715c333-c997-4dd7- 8984-12cd4deaa705%22%7d
• +1 (469) 998-7409
• Conference ID: 961 656 049#
Should you have any questions regarding this, please do not hesitate to contact the Purchasing Department Contact listed on the Cover Page.
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
7 GENERAL BID REQUIREMENTS
A. BID SUBMITTAL: Bidders should submit two “inked” (preferably blue ink) signed original Bid documents, plus one copy of the signed original Bid document, and one electronic copy submitted via USB. The original Bid document shall be clearly marked. Photocopies do not constitute an original Bid. FAILURE TO FURNISH AT LEAST TWO “INKED” SIGNED ORIGINAL BID DOCUMENTS MAY RESULT IN DISQUALIFICATION.
B. CONFIDENTIAL BIDDER INFORMATION: It is the responsibility of the Bidders to identify information in their Bid submission that they may consider to be confidential under the California Public Records Act. To the extent that the City agrees with that designation, such information will be held in confidence whenever possible. All other information will be considered public.
C. BIDDER COSTS INCURRED IN RESPONDING TO IFB: All costs associated with the preparation and submission of a Bid shall be borne by the Bidder.
D. BIDDER EXCEPTIONS: All exceptions taken to this IFB, and associated specifications shall be specifically and clearly identified on the Exceptions, Clarifications and Amendments form.
Failure to comply with this provision may deem the Bid as non-responsive. Please review the Sample Agreement and make note on the Exceptions, Clarifications and Amendments form for any changes. Exceptions taken shall not affect the overall performance and quality of equipment, materials and/or provision of Goods required by the City. The Purchasing Manager or designated agent shall make the final decision regarding the acceptability of equipment, materials and/or provision of Goods with exceptions.
E. CITY ACCEPTANCE/REJECTION OF IRREGULAR BIDS: An agreement shall be awarded to the Bidder whose Bid most closely satisfies the needs of the City and is deemed the most advantageous to the City. The City reserves the right to reject any or all Bids or to waive any informalities or minor irregularities in a Bid.
F. COMPLETE BID DOCUMENT: The following forms constitute the makeup of a complete Bid document and shall be submitted to the City in the order listed (note – some forms require signature):
• Bid Form A - IFB Acknowledgement
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
8 • Bid Form B – Bidder Company Information
• Bid Form C - Pricing Schedule
• Bid Form D – Bidder Exceptions, Clarifications, Amendments • Bid Form E – Bidder Customer References
• Bid Form F - Financial Interest Disclosure
• Bid Form G – Support of Local Vendors
• Bid Form H – Bidder Company History Statement
• Bid Form I - Addenda Acknowledgement
• Bid Form J – Bidder Warranty Statements
• Bid Form K - Subcontractor List
Failure to furnish any of these documents may result in disqualification.
G. COMPLIANCE/NON-COMPLIANCE: If Bidder cannot comply with a specification requirement in this IFB, note on the Exception, Clarifications, Amendments form of the specification paragraph, your exception, and your recommendation. The Purchasing Manager will evaluate your recommendation. If after evaluation it is determined that the Bidder is not in compliance with the specification, the Bid may be deemed non-responsive.
H. PROPOSED PRICING FORMAT:
• The cost of labor, equipment, fuel, licenses, bonds, permits and insurance necessary to perform the required provision of Goods shall be included in Bid pricing, along with Bidder’s profit margin and any other cost factors.
• Unless otherwise stated, the Bidder agrees that, in the event of a price decline, the benefit of such lower pricing shall be extended to the City.
• The City of Modesto shall not pay mileage charges or travel time from the Contractor’s place of business to the job site, or from site to site, or for the Contractor’s travel time to pick up materials.
• Bidder shall use the pricing schedule provided in this IFB to present Bid pricing. No other form or format shall be accepted. Bid must be submitted on the Pricing Schedule provided. No alterations may be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on the Exception, Clarification, Amendments Form.
I. AWARD OF BID:
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
9 • The City may award one or more agreements to one or more Bidder in order to provide for backup, or in case the “primary” contractor is unable to meet the City’s needs. • The City reserves the right to decline to award any agreement if it is determined that the proposed pricing is not competitively priced based on similar agreements with public agencies within the State of California or if the bids received fail to meet the City’s requirements.
• The City reserves the right to select that Bid, which best suits the City’s needs. In addition to price, consideration will be given to the quality and performance of the commodity to be purchased, and the criteria listed in Modesto Municipal Code Section 8-
3.203(f). Regardless of City staff’s recommendation, the City Council reserves the right to award an agreement to the Bidder that best suits the City’s needs as determined by the City Council whether or not said award is consistent with City staff’s recommendation for award.
J. TERM OF AGREEMENT: The term of the agreement shall be for a period of two (2) years with three (3) one-year extension options at the sole discretion of City, for a total of up to five (5) years.
• Pricing shall remain firm for the first two (2) years of the agreement, which may be awarded pursuant to this IFB.
• Price increases for subsequent agreement years, three, four and five, shall not exceed the Consumer Price Index (CPI) for West Urban Area in any one agreement year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by Contractor(s) in writing, at least sixty (60) days prior to the annual anniversary date of the agreement to be effective for the subsequent year.
K. SUPPORT OF LOCAL VENDORS: Should the Bidder that submits the lowest responsive Bid or and would otherwise normally qualify to receive the Bid pursuant to Sections 8-3.203 and 8-
3.204 of the Modesto Municipal Code (MMC) not be a local business as defined herein, the lowest Bid or quote submitted by a local business that is within 5%of the lowest Bid, whether or not that Bidder is the second lowest Bidder, may be deemed to be the lowest Bidder if the local Bidder agrees to reduce its Bid to match the Bid or quote of the lowest Bidder in writing within five business days after notification by City Purchasing staff, provided that said local Bidder is deemed to be a responsible Bidder as determined by the Purchasing Manager. To qualify as a local Bidder, the Bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
10 L. INDEMNITY: The successful Bidder (the “Contractor”) will be required to hold the City, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgements or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of the Contractor, its agents, officers, employees, and volunteers relating to or during the performance of its obligations under this Bid. Contractor’s obligation to defend, indemnify, and hold the city, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement for Contractor to procure and maintain a policy of insurance. With reference to the foregoing, the parties agree that all risk of loss, including but not limited to damages, property losses and defense of third-party suits, arising out of or relation to the operation of City-owned vehicles by Contractor’s employees will be apportioned to Contractor in accordance with the provisions contained in indemnity.
M. BIDDER REPRESENTATION: Bidder represents that:
• Bidder has had an opportunity to examine and has examined any and all of the documents, including specifications, any resultant contract and supporting data, and that it has, from the information contained in such documents, specifications, and data, fully acquainted itself with all conditions relevant to the work. • Bidder has made all reasonable investigations essential to a full understanding of the difficulties, which may be encountered in performing the work. • Bidder will complete the proposed provision of Goods for the compensation stated in any resultant agreement.
• Bidder assumes full and complete responsibility for all conditions relevant to the proposed provision of Goods and all risks in connection therewith. • Bidder represents that it is fully qualified to perform the proposed provision of Goods in accordance with the terms of any resultant agreement within the time specified therein.
N. BID PROTEST AND APPEAL PROCEDURES: Bidders wishing to protest or appeal a contract award decision by the City of Modesto must follow the procedures provided in this section. Protests or appeals which are not submitted in accordance with these procedures will not be reviewed.
Definitions
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
11 For the purposes of these procedures: "Days" means working days in which City Hall is open for business, excluding holidays and weekends.
"Bid" includes the term "offer" or "proposal" as used in the context of formal, informal, or negotiated procurements.
"Announced Decision" includes the term “Notice of Intent to Award Letter”. Once the City has issued an Announced Decision, the date noted will begin the time that a Bidder may lodge a protest.
Protest Procedures
• Only a Bidder who has actually submitted a Bid is eligible to submit a protest against the City’s Announced Decision.
• Subcontractors are not eligible to submit bid protests. • A Bidder may not rely on the bid protest submitted by another bidder but must timely pursue its own protest.
• A written protest to an Announced Decision must be made to the City of Modesto's Director of Finance no later than ten days after the date of the Announced Decision. • The protest shall be delivered or sent by registered mail and received by the City by the deadline, or protest will be automatically rejected. Protestors who choose to be represented by legal counsel are responsible for the associated expenses. • The protest shall be accompanied by a certified or cashier's check in the amount of $300.00, (except for protests of Federally Funded agreements), made payable to the Clerk of the City of Modesto. Protests filed without the requisite fee will be rejected without any additional review.
• The protest filed with the Director of Finance shall:
a. Include the name, address, email address and business telephone number of the protestor.
b. Identify the protest by name, Invitation for Bid (IFB) or Request for Proposal (RFP) number, and IFB/RFP date;
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
12 c. The bid protest must contain a complete statement of the basis for the protest and all supporting documentation. The protest must refer to the specific portion or portions of the Contract Documents upon which the protest is based; d. Include all supporting documentation, if any. Documentation submitted after filing deadline will not be reviewed.
• Bid Protests: A Bidder shall follow, in order, the following steps:
a. Protest to Director of Finance: Upon receipt of a complete and timely protest, the Director of Finance shall review all the submitted materials and shall create and retain a written record of the review. The Director of Finance shall respond at least generally to each material issue raised in the protest not later than ten days after receipt of the protest. Notice of the Director of Finance's decision may be given by letter mailed through U.S. Postal Service.
All protests to the Director of Finance shall either be delivered to:
City Clerk’s Office
Attn: Director of Finance
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: Director of Finance
PO Box 642
Modesto CA 95353
b. Appeal to Deputy City Manager: At the protestor’s discretion, the decision of the Director of Finance may be appealed in writing to the City of Modesto's Deputy City Manager(s) no later than ten days after the date of the Director of Finance’s Decision. The scope of the appeal shall be limited by the issues raised in the initial protest to the Director of Finance. The Deputy City Manager shall not be permitted to review any newly raised issues. The Deputy City Manager shall review the appeal, accompanying supporting documents, if any, and the written records of the protest review by the Director of Finance. A written record of the Deputy City Manager's review shall be created and maintained. The Deputy City Manager shall give notice of their decision to the protestor within ten days after receipt of appeal.
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
13 Further protest appeals shall either be delivered to:
City Clerk’s Office
Attn: Deputy City Manager
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: Deputy City Manager
PO Box 642
Modesto CA 95353
d. Appeal to City Council: Any protestor seeking to appeal to the decision of the Deputy City Manager may appeal in writing to the City Council by filing with the City Clerk a written notice of such appeal not later than ten days after the date of the Deputy City Manager's decision. The City Clerk will calendar the protest for Council hearing and give notice of the time and place of the hearing as provided in Modesto Municipal Code Sections 1-4.01 through 1-4.05. The City Council’s decision on the appeal shall be final.
All protest appeals to the City Council shall either be delivered to:
City Clerk’s Office
Attn: City Council
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: City Council
PO Box 642
Modesto CA 95353
e. Optional Alternative Process for Protests of Procurement Actions Exceeding $250,000: A Bidder protesting procurements exceeding $250,000 shall comply with the procedures contained herein, except that in lieu of appeal to the Deputy #17..
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
14 City Manager a protestor may request that the protest be heard and decided at an administrative hearing.
A written request for administrative hearing shall be accompanied by a certified or cashier's check in the amount of $1,500, (except for protests of Federally Funded projects); The request for hearing shall include the specific grounds of the appeal.
The City of Modesto shall select and engage an impartial and qualified person to act as hearing officer in the pending protest. The protestor shall have the right to twice reject the selected hearing officer, provided that the City is notified of such rejection within three days of notice to protestor of the name of the hearing officer.
The protest shall be heard not later than twenty days after receipt of protestor's request for hearing and the selection of a hearing officer. Protests not made in a timely manner shall be deemed withdrawn, unless the City and the protestor mutually agree otherwise in writing. The protestor’s failure to accept a hearing officer after the third attempt by City staff to identify an impartial hearing officer shall be deemed a withdrawal of the protest.
The costs of the hearing officer and expenses of the protest shall be borne by the protestor. The sums deposited with the request for hearing shall be credited to the costs of the hearing officer and other hearing expenses. f. Mandatory Alternative Process for Protests of Procurements Obtained with Federal Funds: If the protested procurement involves federal funds, the Deputy City Manager, City Council, or hearing officer shall give notice, accompanying their respective decisions, to the protestor that he or she has the right to appeal to the appropriate federal agency, for which an agency name, contact (where available) and address shall be provided by City staff. Such an appeal shall be filed with the appropriate agency within seven business days of the dispatch or rejection notices to the protestor. Federal agencies may entertain protests alleging that the City has failed to adopt written protest procedures or has failed to follow such procedures. The City Council is the highest authority of the City of Modesto and its decisions are final. A disappointed Bidder for a contract involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the federal agency as described herein. #17..
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
15 BID SUBMITTAL CHECKLIST
The Bidder shall provide a complete Bid in a sealed envelope by the required deadline on the Bid Opening Date. Failure to provide all the required documents may cause the Bid to be considered nonresponsive.
Bidder’s Bid must contain the following applicable elements completed as described more-fully herein.
The following checklist is provided solely for Bidder’s use in reviewing the completeness of your submission (please note which forms require signature):
COMPLETE BID ELEMENTS
Bid Form A – IFB Acknowledgement
Bid Form B – Bidder Company Information
Bid Form C - Pricing Schedule
Bid Form D – Bidder Exceptions, Clarifications, Amendments Bid Form E – Bidder Customer References
Bid Form F - Financial Interest Disclosure
Bid Form G – Support of Local Vendors
Bid Form H – Bidder Company History Statement
Bid Form I - Addenda Acknowledgement
Bid Form J – Bidder Warranty Statements
Bid Form K - Subcontractors List
Bidder’s submission should include all City of Modesto forms. If any form is not applicable, Bidder should write or type “Not Applicable” on it but still include the form in your submission. #17..
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
16 BID FORM A - IFB ACKNOWLEDGEMENT
The City is soliciting Bids from qualified firms (each a “Bidder” to fulfill the City’s requirements per the specifications, terms and conditions contained in this Invitation for Bids (“Invitation for Bids” or “IFB”).
This Bid Acknowledgement must be completed, signed by an authorized responsible officer or employee, dated and submitted with the Bid response. Obligations assumed by such signature will include the following:
1. Preparation of Bids: (a) All prices and notations must be printed in ink or typewritten. No erasures permitted. Errors may be crossed out and corrections printed in ink or typewritten adjacent and must be initialed in ink by person signing the Bid. (b) Quote price as specified in Bid. No alterations or changes of any kind shall be permitted to the Bid Form. Responses that do not comply shall be subject to rejection in total.
2. Failure to Submit Bid: If you are not submitting a Bid but want to remain on the mailing list and receive future Bids, complete, sign and return this Bid Acknowledgement and state the reason you are not pricing.
3. Taxes and Freight Charges: (a) Unless otherwise required and specified in the IFB, the prices quoted herein do not include Sales, Use or other taxes. (b) No charge for delivery, drayage, express, parcel post packing, cartage, insurance, license fees, permits, costs of bonds, or for any other purpose, except taxes legally payable by City, will be paid by the City unless expressly included and itemized in the Bid. (c) Amount paid for transportation of property to the City is exempt from Federal Transportation Tax. An exemption certificate is not required where the shipping paper shows the consignee as one (1) of the City; as such papers may be accepted by the carrier as proof of the exempt character of the shipment. (d) Articles sold to the City are exempt from certain Federal excise taxes. The City will furnish an exemption certificate.
4. Award: (a) Unless otherwise specified by the Bidder or the IFB gives notice of an all-or-none award, the City may accept any item or group of items of any Bid. (b) Bids are subject to acceptance by the City at any time within 60 days of opening, unless otherwise specified in the IFB. A Bidder shall not change its bid if accepted within such time. (c) A valid, contract based on the sample agreement attached to the IFB and the submitted bid shall be mailed, or otherwise furnished, to the successful Bidder within the time for acceptance specified, and such contract shall be a binding agreement without further action by either party. The contract shall be interpreted, construed and given effect in all respects according to the laws of the State of California.
5. Patent Indemnity: Bidders who do business with the City shall hold the City, its officers, agents and employees, harmless from liability of any nature or kind, including cost and expenses, for infringement or use of any patent, copyright or other proprietary right, secret process, patented or un- #17..
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
17 patented invention, article or appliance furnished or used in connection with the contract or purchase order.
6. Samples: Samples of items, when required, shall be furnished free of expense to the City and if not destroyed by test may upon request (made when the sample is furnished), be returned at the Bidder’s expense.
7. Rights and Remedies of City for Default: (a) In the event any item furnished by the Bidder in the performance of the contract or purchase order should fail to conform to the specifications therefore or to the sample submitted by the Bidder with its Bid, the City may reject the same, and it shall thereupon become the duty of the Bidder to reclaim and remove the same forthwith, without expense to the City, and immediately to replace all such rejected items with others conforming to such specifications or samples; provided that should the Bidder fail, neglect or refuse to do so, the City shall thereupon have the right to purchase in the open market, in lieu thereof, a corresponding quantity of any such items. City may deduct from any moneys due or that may thereafter come due to Bidder, or send an invoice to the Bidder which shall be paid within thirty (30) days, the difference between the prices named in the contract or purchase order and the actual cost thereof to the City. In the event that the Bidder fails to make prompt delivery as specified for any item, the same conditions as to the rights of the City to purchase in the open market and to reimbursement set forth above shall apply, except when delivery is delayed by fire, strike, freight embargo, or Act of God or the government. (b) Cost of inspection or deliveries or offers for delivery, which do not meet specifications, will be borne by the Bidder. (c) The rights and remedies of the City provided above shall not be exclusive and are in addition to any other rights and remedies provided by law or under the contract.
8. Payment Terms and Methods: Bidder will be able to choose from either of the following payment methods and associated timings:
(a) Option A (Preferred): City of Modesto ePay Payment: This secure payment methodology is preferred by an increasing number of the City’s suppliers. On Net 30-day timing, you will receive a single-use Master Card number with a detailed remittance for each payment. You will process the payment though your POS/Card terminal. The payment remittance will be sent from [email protected] via email and will contain the following information:
• 16-digit credit card number
• Expiration date
• Security code
• Total dollar amount of invoices to be paid
• Invoices reference numbers and corresponding amounts
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INVITATION FOR BIDS # 2324-86
ASPHALT AND EMULSIFIED
ASPHALT MATERIAL
18 ePay results in small percentage rebate of 1.0% to the City through the card issuer. That rebate amount will be considered by the City in its evaluation of Bidder’s pricing proposal hereunder.
Information about enrolling in MasterCard ePay program can be obtained from the City’s contact listed on the Cover Page of this IFB.
(b) Option B – Manual Check: On Net 45 Day timing, the City will mail a hardcopy check to Bidder. The payment will be deemed to have been made when the check envelope is mailed via US Postal Service First Class Mail. The timing of the mailing will be at the end of the Net 45 Day period. Additional time should be estimated by the Bidder for the check to be in transit, and to await deposit and clearance by Bidder staff.
9. California Government Code Section 4552: In submitting a Bid to the City, the Bidder offers and agrees that if the Bid is accepted, it will assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of Goods, materials, or services by the Bidder for sale to the purchasing body pursuant to the Bid. Such assignment shall be made and become effective at the time the purchasing body tender’s final payment to the Bidder.
10. No Guarantee or Warranty: The City makes no guarantee or warranty as to the condition, completeness or safety of any material or equipment that may be traded under a contract or purchase order resulting from this Bid.
11. Two “Inked” Signed Original Bid Document Required: Failure to furnish two “inked” signed original Bid documents may result in disqualification. One additional copy and one electronic copy provided on a USB drive will accompany the “inked” originals.
12. Minor Irregularities. The City reserves the right, in its sole discretion, to waive any informalities or minor irregularities in a Bid.
THE undersigned acknowledges receipt of the referenced IFB and/or Addenda and offers and agrees to provide the Goods specified on behalf of the Bidder indicated in Bidder’s Bid Forms A through K, attached hereto and made a part hereof, for the pricing proposed on the Pricing Schedule.
Bidder Company Name:
Bidder Headquarters Address:
City/State/Zip:
Signature/Title/Date:
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19 BID FORM B – BIDDER COMPANY INFORMATION
A. Bidder Company Full
Legal Name
B. Bidder Company
Marketplace (or DBA)
Name
C. Type of Legal Entity: ___ Corporation, registered in ____________________ (State) ___ Limited Liability Company, registered in _________________(State) ___ Partnership, registered in ________________(State)
___ Sole Proprietorship, registered in ____________(State) ___ Other ___________________________________________(Describe) D. Headquarters Address
(Street Address, City,
State, Country, Postal
Code):
E. Website Address: www.___________
F. Contact Person Details: Name:
Title:
Phone (Office):
Phone (Mobile):
Mailing Address (Street Address, City, State, Postal Code):
Fax Number:
Email:
G. Federal Taxpayer
Identification Number
(TIN):
H. Dun & Bradstreet
(DUNS) Number:
I. Names and Titles of
Top Three Bidder
Officers:
J. Years in Business:
K. Bidder Office Address
Closest to City of
Modesto (Street
Address, City, State,
Country, Postal Code):
L. City of Modesto
Business License
Number (note –
provide only if
available now - - but
not required until any
contract begins):
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20 BID FORM C –PRICING SCHEDULE
All labor, materials, equipment, tools, fuel, licenses, bonds, insurance, and other expenses necessary for Bidder to perform the required provision of Goods shall be included in Bid pricing. Bid must be submitted on the below Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on Bid Form D – Bidder Exceptions, Clarifications, Amendments.
PRICING SCHEDULE
Item Description QTY Unit Unit Pricing for PG
64 Asphalt Concrete
Unit Pricing for PG 70
Asphalt Concrete
Unit Pricing for Rubberized
Asphalt
Sheet Asphalt Concrete 1 TON
$ _______________/TON $ _______________/TON $ _______________/TON 3/8” Asphalt Concrete 1 TON
$ _______________/TON $ _______________/TON $ _______________/TON ½” Asphalt Concrete 1 TON
$ _______________/TON $ _______________/TON $ _______________/TON ¾” Asphalt Concrete 1 TON
$ _______________/TON $ _______________/TON $ _______________/TON $ _______________/TBD
$ _______________/TBD
ePay $(-________________)
Total Items: $__________________/
Total
Item Description QTY Unit Unit Pricing per Ton
¾ - inch Class II AB 1 TON $ _______________/TON
SS-1 Emulsion 1 TON $ _______________/TON
Additional Charges/Fees Amount Description
$
$
Plant Hours of Operation: Summer Hours ______________ Months of Operation: __________________ Plant Hours of Operation: Winter Hours _______________ Months of Operation: _________________ Plant Physical Address:
______________________________________________________________________ City, State, Zip: ______________________________________________________________ #17..
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21 Payment Terms:
Check which of the following payment terms/methodology Bidder accepts (a description of each can be found in Bid Form A – IFB Acknowledgement):
Choose One:
• Option A (Preferred): City of Modesto ePay Payment on Net 30 Day Timing: ___ Choose by checking () here. If selected, for bid comparison purposes, Bidder’s pricing will be reduced by the City of Modesto’s average ePay card program rebate percentage; or ePay Email Address: ___________________________
• Manual Check Payment Mailed by US Postal Service First Class Mail Only on Net 45 Day Timing:
___ Choose by checking () here.
THE undersigned acknowledges receipt of the referenced IFB and any associated Addenda and offers to furnish the Goods specified, in accordance with the specifications, terms and conditions of this IFB and these Bid documents, for the pricing indicated on the Pricing Schedule.
Bidder Company Name:
Name of Bidder Signatory:
Signature of Bidder Representative:
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22 BID FORM D – BIDDER EXCEPTIONS, CLARIFICATIONS, AMENDMENTS Exceptions to the City of Modesto’s IFB package, sample agreement, and associate specifications are not encouraged and may cause Bidder to be considered not responsible and/or its Bid to be considered not responsive. Therefore, if no exceptions, clarifications or amendments are proposed by Bidder, it is preferred that Bidder so indicate by typing or writing “Not Applicable” in the Description field in the first item row below. Less preferred, Bidder may indicate no exceptions, clarifications or amendments are proposed by leaving this form out of its’ Bid submission.
Nonetheless, Bidder may request Bid clarifications and exceptions below, if any, sign and submit with your Bid response.
Any requested exception, clarification or amendment may not be accepted and may deem the Bidder as non-responsive.
Item # Reference To: Description
Page # Section or
Paragraph #
Bidder Company Name:
Name of Bidder Signatory:
Signature of Bidder Representative:
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23 BID FORM E – BIDDER CUSTOMER REFERENCES
Bidder must provide a list of five current or former customers able to discuss prior experience with similar type of Goods and related services requested by the City in the above-referenced IFB. Bidder’s references shall have similar volume and requirements to the City of Modesto’s as described in the above-referenced IFB. Bidders failing to provide references may be deemed as non-responsive.
The City may contact some or all of the references provided in order to determine the Bidder’s performance record on services similar to that described in the above-referenced IFB. The City reserves the right to contact references other than those provided in Bidder’s submission and to use the information gained from them in the award process.
Company Name:
Address:
City, State, Zip Code:
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of
Service:
Annual Contract Value $
Company Name:
Address:
City, State, Zip Code:
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of Goods:
Annual Contract Value $
Company Name:
Address:
City, State, Zip Code
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of Goods:
Annual Contract Value $
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24 Company Name:
Address:
City, State, Zip Code
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of Goods:
Annual Contract Value $
Company Name:
Address:
City, State, Zip Code
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of Goods:
Annual Contract Value $
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25 BID FORM F - FINANCIAL INTEREST DISCLOSURE
Any contract award to result from this IFB process and Bidder’s submission of a Bid therewith will require approval by a majority vote of the City of Modesto’s City Council. In order to have full transparency in any City of Modesto commercial actions, the City Council may not approve an agreement between the City and the Bidder until all person with a direct or indirect financial interest of greater than $2,000 in the Bidder are identified by name.
Bidder must therefore complete this Bid Form F – Financial Interest Disclosure, listing by name all parties that have a material financial interest in the agreement, contract or development right.
PLEASE NOTE, any Council action that requires a Financial Interest Disclosure cannot be considered by the City Council until the required reporting is made. That means that City Council agenda items without the disclosure will be removed from the Council agenda.
Financial Interest Disclosure to City of Modesto
The Bidder shall identify any person with a financial interest in the Bidder by name, below.
For the purposes of this disclosure, a “Financial Interest” shall have the meaning contained in Modesto Municipal Code section 2-10.02.
Persons having an aggregate economic interest in the Bidder less than two thousand dollars ($2,000.00) at all times prior to final Council action of the proposed contract are not required to be listed on the Financial Interest Disclosure.
Notwithstanding the foregoing, a Financial Interest Disclosure is not required for a Bidder meeting the financial criteria for listing on the New York or the Pacific Stock exchanges unless it is reasonably foreseeable that a City Council decision will increase or decrease that entity's gross revenues or expenses by one million dollars ($1,000,000) or more and the requirements of Modesto Municipal Code Section 2-
10.03(h) are satisfied.
It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the Bidder is true, correct and complete. By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
Print Names of Persons Having a Financial Interest in Bidder Receiving this Contract:
First Name, Last Name
First Name, Last Name
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26 First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
By signing this document, I agree to the information contained within.
Bidder Company Name:
Name of Bidder Signatory:
Signature of Bidder Representative:
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27 BID FORM G – SUPPORT OF LOCAL VENDORS
Notice Pursuant to Modesto Municipal Code section 8.3-206 - Should the Bidder which submits the lowest responsive Bid (and would otherwise normally qualify to receive the Bid pursuant to Sections 8-3.203 and 8-
3.204 of the Modesto Municipal Code) not be a local business as defined herein, the lowest Bid or quote submitted by a local business that is within five percent (5%) of the lowest Bid or quote, whether or not that Bidder is the second lowest Bidder, may be deemed to be the lowest Bidder if the local Bidder agrees to reduce its Bid to match the Bid of the lowest Bidder in writing within five business days after notification by City Purchasing staff, provided that said local Bidder is deemed to be a responsible Bidder as determined by the Purchasing Manager.
Notwithstanding the foregoing, award to the local Bidder must still be approved by the City Council as would have the typical award.
To qualify as a local Bidder, the Bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.
This document is only required should the Bidder request to be considered for the Support of Local Vendor preference, and meets the criteria noted above.
Check here:
I declare I am a local business per the above criteria
Bidder Company Name:
City of Modesto Address (Street,
City, State, Postal Code:
City of Modesto Business License
Number:
Under penalty of perjury, the undersigned declares that the foregoing information is true and correct:
Print/Type Name:
Title:
Signature:
Date:
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28 BID FORM H - BIDDER COMPANY HISTORY STATEMENT
Bidder shall have been in business for a minimum of three continuous years (immediately prior to the time of the City’s solicitation) providing the Goods and related services described in this Invitation for Bids (IFB).
The Bidder’s company history overview statement shall be approximately one to three pages in length and inserted below:
Bidder Company Legal Name: Insert Bidder Logo Here (if existent):
Insert Bidder Company History Overview Statement Beginning Here:
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29 BID FORM I - ADDENDA ACKNOWLEDGEMENT
In order to obtain any addenda information, throughout the IFB period, Bidder is responsible for regularly checking the City of Modesto’s Planet Bid website at https://pbsystem.planetbids.com/portal/14999/bo/bosearch for the IFB number listed on the Cover Page and in the header of each subsequent page of this IFB, and in any event, no later than the day prior to Bid opening. The changes identified in any addenda issued will modify this IFB and specifications. The addenda now become a part of this IFB and Bidder’s resultant Bid.
Signing the Bid on the signature portion thereof, the Bidder is acknowledging that the Bidder has confirmed that it has received all addenda issued for IFB and has included costs for such in the Bid submitted. Failure to list and acknowledge all addenda numbers may cause Bidder’s Bid to be considered nonresponsive.
Do not attach any of the addenda to this sheet nor include them with the Bid.
If no addenda have been issued against this IFB solicitation, Bidder may write “Not Applicable” and return this Bid Form as part of its submission. Alternatively, Bidder may leave this Bid Form out of its submission.
But if any addenda have been issued by the City of Modesto this document is required to be completed and returned.
The Bid is submitted with respect to the changes to the IFB included in addenda numbers:
List All Addenda Numbers, Separated by Commas
(“,”):
Bidder Company Name:
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30 BID FORM J – BIDDER WARRANTY STATEMENTS
As a material part of its Bid, Bidder shall insert below a written statement detailing any materials and workmanship warranties, term and conditions in conformance with the specifications and requirements set forth in this IFB.
Notwithstanding any other provisions of this IFB, Bidder warrants that the Goods furnished under any contract or purchase order resulting from its Bid shall be on the most suitable grade and meet or exceed the standards set forth in this IFB. Such warranty shall include the following: performance, workmanship, labor, materials, and Bidder design or engineering contributions. If a defect is discovered in any item of the Goods and related services covered in this Bid, Bidder shall correct at its sole expense. All such defects as are reported within 30 days of City’s final acceptance. Upon expiration of the applicable warranty period, all such liability shall terminate except for fraud or such gross mistakes as amount to fraud, latent defects, or specific failure to comply with the terms or any resultant purchase order.
All materials, parts, labor, assemblies and components shall by subject to the warranty conditions and terms unless specifically exempted in writing by the City of Modesto.
Bidder Company Legal Name: Insert Bidder Logo Here (if existent):
Insert Bidder Warranty Statement Beginning Here:
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31 BID FORM K - SUBCONTRACTOR LIST
Bidder shall list the name and the address of the place of business for each subcontractor who will perform work or labor or render services to the Bidder. In addition, list the type of work the subcontractor will perform.
Name of
Subcontractor
Address Type of Work Contractor
License # (if any)
DIR
Registration #
(if any)
N/A N/A
N/A N/A
N/A N/A
N/A N/A
N/A N/A
N/A N/A
N/A N/A
Bidder Company Name:
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32 TECHNICAL SPECIFICATIONS AND REQUIREMENTS
1.0 SCOPE OF WORK:
The City of Modesto is requesting the purchase of asphalt paving materials on an “as needed” basis, throughout the year. All asphalt paving materials shall be picked up by the Public Works Department, Streets Division.
1.1 GENERAL REQUIREMENTS:
The Public Works and Utilities Departments has requested that the successful bidder be able to weigh in and weigh out loaded trucks within thirty (30) minutes maximum. The successful vendor shall notify the Streets, Water or Wastewater Divisions should there be any delays beyond the thirty (30) minute time frame. If necessary, the City reserves the right to use the secondary vendor assigned to this contract based on project size, location of job and proximity to the asphalt plant.
1.2 CALTRANS STANDARD SPECIFICATIONS:
Asphalt shall be Type A or if requested Type B, and shall conform to the provisions in Section 39, “Asphalt Concrete,” of the Caltrans Standards Specifications.
Performance Graded Asphalt binder PG 64-10 or if requested, PG 70-10, with an option to use other grades, including rubberized, if needed, and will comply with Section 92 of the Caltrans Standard Specification for Performance Graded Asphalt.” Specifications are available on the website at:
http://dot.ca.gov/hq/esc/oe/specifications/std_specs
The City of Modesto reserves the right to send any materials not conforming to the Caltrans Standard Specification back to the plant for a full refund, excluding transport cost and from pickup plant.
1.3 WILL CALL REQUIREMENTS:
The successful bidder shall have the capability to provide hot asphalt materials daily, Monday through Friday, year-round, except legal holidays and weather permitting for the Public Works Department, Streets Division. In the event the primary vendor cannot provide materials Monday through Friday, during normal business hours, the secondary vendor may be used. Bidder shall list hours of operation; the successful bidder shall be able to provide asphalt or emulsified asphalt on or before 7:00 A.M. The City reserves the right to use multiple vendors based on project size and proximity to the asphalt plant. • There shall be no minimum ordering requirement.
1.4 MEASUREMENT REQUIREMENTS:
All material vendors will be responsible for supply each truck with a numbered material tag, including truck number, driver’s name, time into plant and time out of plant, job location, type of material received, empty weight and loaded weight showing the amount of materials purchased.
1.5 ASPHALT CONCRETE TIME/MILEAGE/TRANSPORTATION MEASUREMENT:
Due to the temperature sensitivity of asphalt materials, a twenty (20) mile radius from the center of City of Modesto proper shall be the most desirable point of consideration for any asphalt plant manufacturer. #17..
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33 The City has conducted time, mileage, labor, and equipment cost measurements for determining the City’s hauling cost per ton. The calculated travel time, mileage, labor, equipment costs and hours of operation will be a consideration factor in determining the lowest responsive and responsible bid.
The City will use the geographical center located at 1400 Coffee Road, Modesto, CA 95355 for determining the mileage to the bidder’s plant. The bidder shall list the bidder’s plant location and hours of operation on the pricing schedule.
1.6 ESTIMATED ANNUAL VOLUME:
Item
No. Product Description Estimated Annual Quantity
1 Sheet Asphalt Concrete 2,000 Tons
2 3/8" Asphalt Concrete 2,000 Tons
3 1/2" Asphalt Concrete 2,500 Tons
4 3/4" Asphalt Concrete 2,500 Tons
5 SS-1 Emulsion 50 Tons
*No minimum or Maximum is guaranteed or implied.
1.7 USAGE REPORTS:
Vendor shall furnish the City with two (2) copies of a bi-annual usage report. The reports shall list each item supplied in industry nomenclature, unit of measure and quantity. The usage report shall be a comprehensive report, listing usage by product, year-to-date. Mail reports to the following address:
City of Modesto City of Modesto
Purchasing Division John Sphar/Streets Division
P.O. Box 642 P.O. Box 642
Modesto, CA 95353 Modesto, CA 95353
1.8 USAGE REPORTS:
The City reserves the right to use the primary, secondary or third position vendors assigned to this contract based on the City’s needs for each project, location of job and proximity to the asphalt plant. The City reserves the right to use the secondary or third position vendor if the primary vendor is unable to provide material, or if primary vendor is unable to complete a specific job within the time frame required by the City, and finally, if the primary vendor is unable to maintain acceptable quality standards required by the City. If the bidder’s company does not wish to participate as secondary or third company, using page 8, Exceptions, Clarifications, Amendments, the bidder shall list their intentions in this matter. #17..
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34 SAMPLE AGREEMENT
ANNUAL PURCHASE AGREEMENT – GOODS
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of _________, 2024, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and _________________, a ______ _______, hereinafter called VENDOR,
W I T N E S E T H:
WHEREAS, the Modesto City Council adopted Resolution No. 202X-xx authorizing the Award of Bid and agreement for the asphalt and emulsified materials, supplies or equipment described herein (the “GOODS”) to VENDOR, attached hereto as Exhibit “A”, and made a part hereof, and WHEREAS, the VENDOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B”, and made a part hereof, and WHEREAS, the CITY and VENDOR shall enter into an agreement for the ASPHALT AND EMULSIFIED MATERIALS as described in IFB, attached hereto as Exhibit “C”, and made a part hereof, and
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. TERM OF AGREEMENT: The term of the AGREEMENT shall be for a period of ONE YEAR with FOUR one-year extension options at the sole discretion of City, for a total of up to five years.
Year one: SEPTEMBER, DAY, 2024 THROUGH SEPTEMBER, DAY, 2025 Year two: SEPTEMBER, DAY, 2025 THROUGH SEPTEMBER, DAY, 2026 Year three: SEPTEMBER, DAY, 2026 THROUGH SEPTEMBER, DAY, 2027 Year four: SEPTEMBER, DAY, 2027 THROUGH SEPTEMBER, DAY, 2028 Year five: SEPTEMBER, DAY, 2028 THROUGH SEPTEMBER, DAY, 2029 #17..
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35 2. PRICING:
A. Per the aforementioned Council Resolution, the annual estimated amount of the AGREEMENT is $_____________. The total amount paid by CITY to VENDOR over the full term of the AGREEMENT shall not exceed $_____________.
B. Pricing during AGREEMENT Year one shall be as set forth in Exhibit A Pricing, attached hereto and made a part hereof by this reference.
C. Pricing shall remain firm for the first year of the AGREEMENT.
D. Price increases for each subsequent AGREEMENT years two, three, four, and five, shall be negotiated in good faith by the parties, but in no instance may exceed the net percentage increase during the prior twelve (12) month period in the Federal Bureau of Labor Statistics’ Consumer Price Index (CPI) for West Urban Area. Requests for price increases in any renewal year shall be submitted by VENDOR in writing at least sixty (60) days prior to the annual anniversary date of the AGREEMENT.
3. USAGE: Vendor shall provide whatever quantities may be required during the term of this Agreement. No minimum or maximum quantities are guaranteed or implied by CITY.
4. ORDERING: Vendor shall deliver GOODS to the location specified within CITY’s purchase order. Unless otherwise specified by the Purchasing Division, no GOODS may be delivered to CITY unless a purchase order has been provided by CITY to VENDOR.
5. PAYMENT: All invoices shall be paid in full by CITY after completion and acceptance of the GOODS by the City, and receipt of a properly prepared invoice submitted by VENDOR via email to [email protected] . As specified by the Purchasing Division, every invoice must reference this AGREEMENT number or CITY’s purchase order number. VENDOR will be paid by CITY via the following payment method [TO BE DETERMINED BY IFB RESPONSE IN FINAL AGREEMENT, EITHER “Net 30 terms via CITY’s ePay Program” or “Net 45 Days via manual check”.]
6. AMENDMENTS: No changes to this AGREEMENT shall be effective unless documented by a written amendment to this AGREEMENT and signed by the parties hereto with CITY represented by the Purchasing Division.
7. TERMINATION:
A. In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the non-performance. Within 30 days after receipt of notification, the breaching party shall correct any non-performance to the reasonable satisfaction of the non-breaching party. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
B. CITY may terminate this AGREEMENT for convenience upon 30 days prior notice to VENDOR by CITY’s authorized employee.
8. INSPECTION: All GOODS are subject to inspection and test by the City for compliance with specifications as included herein, within a reasonable time after delivery. In the event GOODS are defective or not in #17..
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36 conformity with this AGREEMENT or CITY’s purchase order, the CITY shall have the rights to either reject the GOODS or require correction. Defective articles or services shall be removed from CITY premises and/or corrected by and at the expense of VENDOR; provided that should the VENDOR fail, neglect or refuse to do so, the CITY shall thereupon have the right to purchase in the open market, in lieu thereof, a corresponding quantity of any such items. CITY may deduct from any moneys due or that may there after come due to VENDOR, or send an invoice to the VENDOR which shall be paid within thirty (30) days, the difference between the prices named in the contract or purchase order and the actual cost thereof to the CITY. In the event that the VENDOR fails to make prompt delivery as specified for any item, the same conditions as to the rights of the CITY to purchase in the open market and to reimbursement set forth above shall apply, except when delivery is delayed by fire, strike, freight embargo, or Act of God or the government. Cost of inspection or deliveries or offers for delivery, which do not meet specifications, will be borne by the Bidder. Failure by CITY to inspect and accept or reject shall not relieve the VENDOR from responsibility for compliance with specifications. Final acceptance shall be conclusive except as regards to latent defects, fraud, or such gross mistakes as amount to fraud.
9. RESPONSIBILITY: Unless otherwise specified, the VENDOR shall be responsible for all GOODS until delivered at CITY’s designated delivery point and shall bear all risks as to items rejected or requiring correction after notice of such rejection or correction is given.
10. SHIPMENT: Unless otherwise authorized by CITY’s Purchasing Division, GOODS shall be delivered F.O.B. Destination Freight Prepaid and Included in Price of GOODS. VENDOR may not collect freight collect or charge shipping expenses otherwise to CITY. Original receipted freight bill must accompany the invoice. Shipment must be made within the time stated on Purchase Order, failing which CITY reserves the right to purchase elsewhere and charge VENDOR with any loss incurred, unless delay in making shipment is due to unforeseeable causes beyond the control and without the fault or negligence of VENDOR.
11. CHANGES: A purchase order may at any time, by written order of the CITY, be changed in regard to the GOODS to be furnished, quantities ordered, unit price, discount, delivery point or arrangements, terms or any other matters affecting a valid PO. In the event such change causes an increase or decrease in the cost of performance hereunder, and equitable adjustment will be made for the cost thereof, subject to the approval of the Purchasing Manager, and written notice given, therefore.
12. WARRANTY: Notwithstanding any other provisions of the purchase order, VENDOR warranties for the GOODS shall extend for 90 days after delivery thereof to CITY, shall meet or exceed all original manufacturer warranties, and that GOODS shall be of the most suitable grade as specified in this AGREEMENT, VENDOR’s own marketing materials and in the purchase order. Moreover, VENDOR warrants and represents that GOODS shall comply with warranties of merchantability and fitness for a particular purpose. If a defect is discovered in any GOODS covered in this AGREEMENT, VENDOR shall correct at its expense, including transportation/freight, such defects as are reported within one year of final acceptance.
13. INSURANCE: Any purchase order where work, maintenance, or service is performed on CITY property requires appropriate insurance. VENDOR shall ensure proper insurance certificates are on file with the CITY prior to performing onsite work. Contact CITY’s Purchasing Division to verify the type of insurance required.
14. TAX EXEMPTIONS: The CITY is exempt from payment of federal excise tax. All invoices shall be exclusive of such excise tax. Moreover, if the CITY’s purchase is not subject to sales tax, the statement for resale will appear in the body of the purchase order.
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37 15. INDEMNITIES:
A. VENDOR agrees to protect, indemnify and save harmless CITY and its agents, officers, employees, and volunteers from any claim, loss or damage from VENDOR’s, or the GOODs’, infringement of trademarks, patents, copyrights and unfair competition action with to any third party.
B. VENDOR shall hold the CITY and its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of VENDOR, or its agents, officers, employees, or subcontractors relating to or during the performance of its obligations under this AGREEMENT. VENDOR’s obligation to defend, indemnify, and hold the city, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement for VENDOR to procure and maintain a policy of insurance VENDOR.
16. GOVERNING LAW: This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, U.S.A., without giving effect to its conflicts of law provisions or principles.
17. VENUE: Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California.
18. ATTORNEYS’ FEES. If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
19. LIMITATION OF LIABILITY: The CITY shall not be responsible for any damage that may accrue by reason of the death or injury of the person of the Vendor’s officers, agents, employees, invitees, or licensees, or be set up at any time because of personal injury or damage to property sustained by any other person or persons, which may have been caused or contributed to, approximately or remotely, by reason of or in the course of performance of the Purchase Order. The Vendor shall assume full responsibility for the defense of any claims arising under the Purchase Order and the Vendor shall save, keep, and bear harmless the City, all officers and employees thereof, from all damages, costs, or expenses because of personal injury or property damage based on the performance of this Purchase Order or asserted against it.
20. NOTICES: Any notice, payment or instrument required or permitted by this AGREEMENT to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid addressed as follows:
21. CONTRACTOR: __________________
__________________
__________________
__________________
#17..
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38 CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Either party may change its address for delivery of notice by delivering written notice of such change of address to the other party.
22. ASSIGNMENT: Neither this AGREEMENT nor any portion hereof shall be subcontracted or assigned without the written consent of the City in each and every instance.
23. MISCELLANEOUS: Time is of the essence in each and every provision of this AGREEMENT.
24. ENTIRE AGREEMENT: This AGREEMENT and its exhibits contain the entire understanding between VENDOR and CITY. Additional or new terms contained in this AGREEMENT which vary from VENDOR’S bid are controlling and are deemed accepted by VENDOR by provision of any GOODS or other commencement of performance hereunder. The terms and conditions of the IFB, attached hereto as Exhibit C, are incorporated herein. In the event of a conflict between the IFB and this AGREEMENT, this AGREEMENT shall control. All previous bids, offers and communications relative to this AGREEMENT, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this AGREEMENT. No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.
25. 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 shall nevertheless continue in full force without being impaired or invalidated in any way.
IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this AGREEMENT by its Director of Finance under authority of Resolution No. 20??-?? adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2024 and _____________________has caused this Agreement to be duly executed.
CITY OF MODESTO, VENDOR
A municipal corporation
By: __________________________ By: _________________________________ DEANNA CHRISTENSEN, (Signature)
Director of Finance
_________________________________
(Name & Title)
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ITEM # STOCK # ITEM/DESCRIPTION QTY UNIT OF
ISSUE UN PRC EXTENSION UN PRC EXTENSION UN PRC EXTENSION 1 Sheet Asphalt Concrete PG 64 1 Per Ton $89.00 $89.00
2 Sheet Asphalt Concrete PG 70 1 Per Ton $91.00 $91.00
3 3/8" Asphalt Concrete PG 64 1 Per Ton $86.00 $86.00
4 3/8" Asphalt Concrete PG 70 1 Per Ton $88.00 $88.00
5 3/8" Rubberized Asphalt 1 Per Ton $142.00 $142.00
6 1/2" Asphalt Concrete PG 64 1 Per Ton $81.25 $81.25
7 1/2" Asphalt Concrete PG 70 1 Per Ton $83.25 $83.25
8 1/2" Rubberized Asphalt 1 Per Ton $140.00 $140.00
9 3/4" Asphalt Concrete PG 64 1 Per Ton $79.00 $79.00
10 3/4" Asphalt Concrete PG 70 1 Per Ton $81.00 $81.00
11 3/4" Rubberized Asphalt 1 Per Ton $140.00 $140.00
12 13 3/4" Class II AB 1 Per Ton $20.00 $20.00
14 SS-1 Emulsion 1 Per Ton $900.00 $900.00
15 Environmental Fee 1 Per Load $10.00 $10.00
16 100
101
102
SUB-TOTAL: $2,030.50 $0.00 $0.00
SALES TAX 8.875%: $159.90 $0.00 $0.00
TOTAL: $2,190.40 $0.00 $0.00
CITY OF MODESTO
PO BOX 642 MODESTO CA 95353
IFB NO. 2324-86 Asphalt and Emulsified Asphalt Material Modesto, CA
George Reed, Inc. VENDOR 3
CITY, STATE
VENDOR 2
CITY, STATE
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#17..
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
September 24, 2024
Date: August 22, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Award Woodland Lift Station Rehabilitation Project CONTACT: Cristian C. Ciotau, Engineering Division Manager [email protected], 209-571-5175
DESCRIPTION:
Consider approving the Plans and Specifications for the Woodland Lift Station Rehabilitation Project, accepting the Bid and Awarding a Construction Contract to TNT Industrial Contractors Inc., of Sacramento, CA, in the amount of $3,792,937, authorizing 15% in contingency (if needed), for a total payment amount not to exceed $4,361,878 and approving an Agreement with Pezzoni Engineering, Inc., of Modesto, CA, for Engineering Support during Construction Services for a total amount not to exceed $33,000. (Funding Source: Wastewater Fund) STRATEGIC PLAN ELEMENT:
The recommended action supports the 2020-2025 City of Modesto Strategic Plan Initiatives, Goal D: Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.
BACKGROUND:
Woodland Lift Station is located near the intersection of Woodland Avenue and Poust Road and conveys wastewater flows into the West Trunk and on to the Regional Water Recycling Facility – Sutter Campus.
Woodland Lift Station was recognized in the Wastewater Collection System Master Plan as needing rehabilitation to accommodate current and future peak wet weather flows. The key objective of this project is to preserve, improve and extend the useful life of the Woodland List Station.
The planned improvements include:
Installation of a New 25 Horsepower Pump
Retrofitting of the Existing Structural Concrete Slab and Beam Replacement of Various Valves
Replacement of Gasket on the Gate to Prevent Leakage when in the Closed Position Providing a New Roof Deck in Between the Two Buildings
Replacement of Old Obsolete Electrical Equipment
#18..
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City Council, September 24, 2024
Award Woodland Lift Station Rehabilitation Project
Painting the Interior and Exterior of Buildings
Replacement of Piping
Replacement of Deteriorated Asphalt to Provide Adequate Drainage On Site DISCUSSION:
The project was advertised for bid on May 30, 2024. Bids were publicly opened on July 16, 2024, pursuant to City Charter Section 1307 and TNT Industrial Contractors Inc., of Sacramento, CA, was the responsible bidder with the lowest responsive bid.
Bid Analysis:
Number of Bids Received 1
Number of Bids Within 10% of the Engineer’s Estimate 0
Number of Bids Above the Engineer’s Estimate 1
Number of Bids Below the Engineer’s Estimate 0
Percent Low Bid is Above the Engineer’s Estimate 40%
TNT Industrial Contractors’ bid was 40% above the Engineer’s Estimate. Bidder competition and participation was not as anticipated as the City received only one bid. After the bid was received, staff analyzed the bid schedule, and the majority of the price discrepancy was associated with the following two bid line items:
Line 10 – All Electrical Work
Line 18 – Bypass Pumping
After conducting a reevaluation of these two bid line items, staff concluded that the Engineer’s Estimate was low and that the bid received is around 15% higher than the reevaluated Engineer’s Estimate. While TNT Industrial Contractors’ bid is still above the reevaluated Engineer’s Estimate, the deviation is by a more common amount.
In an effort to better understand why the level of participation in the bid process was not as expected, staff reached out to several contractors who did not submit bids but were present at the mandatory pre-bid meeting on June 18, 2024, held at the project site. The contractor’s responses included the following:
Project Scope Structurally Specialized Components
Subcontractor Unable to Secure Pricing from an Electrical Subcontractor General/Unspecified Lack of Interest/Capacity to Bid on the Project Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment, or contractual services to follow the formal bid procedures. The award of a Contract for the construction of the Woodland Lift Station Rehabilitation Project to TNT Industrial Contractors Inc., of Sacramento, CA, conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and TNT Industrial Contractors, was the lowest responsive and responsible bidder.
While the contingency policy is utilized for each Construction Contract awarded by the City, it is not written into each contract, nor is it a guaranteed amount included in the final compensation to the contractor.
#18..
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City Council, September 24, 2024
Award Woodland Lift Station Rehabilitation Project
The City’s “Change Order Approval Policy” enacted by Council Resolution No. 1994-443 on July 19, 1994, revised on July 9, 2019, by Council Resolution No. 2019-326, and revised a second time on September 12, 2023 by Council Resolution No. 2023-405 established a Contract change order authority of 10% for Construction Contracts of this dollar value. However, after reviewing the plans and specifications, and given the nature of this project where unforeseen conditions may exist when dealing with existing construction, and other unaccounted for issues may arise, it is likely that this project could exceed the Director’s Authority of 10% ($379,294) of the Construction Contract amount of $3,792,937. Therefore, staff is requesting that the Director’s authority to issue change orders be increased to 15% ($568,941) of the Construction Contract amount.
The City is also proposing to hire Pezzoni Engineering, Inc. to provide engineering support during construction to ensure construction of the facilities meets the original design described in the plans and specifications. Pezzoni Engineering, Inc. is the Engineer-of-Record, and so they are best suited to provide engineering support during construction. Hiring a different engineering firm would require that firm to become familiar with the project, and interpret engineering plans prepared by Pezzoni Engineering, which would create inefficiencies and is not a best practice for engineering work.
Staff, therefore recommends the an Agreement with Pezzoni Engineering for Engineering Support During Construction services in the amount of $30,000, plus $3,000 in additional services, if needed, for a total amount not to exceed $33,000.
Pezzoni Engineering’s scope of work will include reviewing submittals, responding to requests for information and providing field engineering support.
FISCAL IMPACT:
The total estimated cost for the construction phase of this project is $4,914,878. Expenses associated with this effort are housed in the following Capital Improvement Program project:
100844 – Woodland Lift Station Rehab
ANTICIPATED EXPENDITURES
Construction Contract - TNT $3,792,937
Construction Contingency (15%) $568,941
Construction Administration – City Staff $400,000
Engineering Support During Construction Agreement - Pezzoni $30,000 Additional Services (10%) $3,000
Engineering/Design/Administration – City Staff $120,000 TOTAL $4,914,878
A budget adjustment in the amount of $3,505,000 from Wastewater Reserves will be necessary to fund the Construction Phase of this project.
COMMITTEE RECOMMENDATION:
#18..
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City Council, September 24, 2024
Award Woodland Lift Station Rehabilitation Project
This item was considered by the Finance Committee at the meeting held on November 9, 2022, where it was recommended that it be forwarded to Council.
CEQA/NEPA REQUIREMENTS:
Environmental review has been provided through a Categorical Exemption under CEQA Section 15301 (Ex. Facilities) Class1, (b).
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the Plans and Specifications for the Woodland Lift Station Rehabilitation Project; accepting the Bid and Awarding a Construction Contract to TNT Industrial Contractors Inc., of Sacramento, CA, in the amount of 3,792,937, authorizing the Director of Engineering Services to approve Change Orders up to the cumulative amount of $568,941, 15% of the original contract price, for a total payment amount not to exceed $4,361,878 and authorizing the City Manager, or his designee, to execute the Contract.
Resolution approving an Agreement with Pezzoni Engineering Inc, of Modesto, CA, for Engineering Support during Construction Services for the Woodland Lift Station Rehabilitation Project, in the amount of $30,000, plus $3,000 in additional services, if needed, for an Agreement total amount not to exceed $33,000 and authorizing the City Manager, or his designee, to execute the Agreement.
Resolution amending the Fiscal Year 2024-25 Capital Improvement Program Budget in the amount of $3,505,000 to fund the Construction Phase of the Woodland Lift Station Rehabilitation Project and authorizing the City Manager, or his designee, to implement the provisions of the resolution.
Approved by:
William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:
1. Resolutions (3)
2. Construction Contract - TNT Industrial Contractors
3. Bid Results
4. Bid Waiver
5. Engineering Support During Construction Agreement - Pezzoni Engineering & Exhibits
6. Bid Waiver
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1 2024-
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING THE PLANS AND SPECIFICATIONS FOR THE WOODLAND LIFT STATION REHABILITATION PROJECT; ACCEPTING
THE BID AND AWARDING A CONSTRUCTION CONTRACT TO TNT
INDUSTRIAL CONTRACTORS INC., OF SACRAMENTO, CA, IN THE
AMOUNT OF $3,792,937, AUTHORIZING THE DIRECTOR OF ENGINEERING
SERVICES TO APPROVE CHANGE ORDERS UP TO THE CUMULATIVE
AMOUNT OF $568,941, 15% OF THE ORIGINAL CONTRACT PRICE, FOR A TOTAL PAYMENT AMOUNT NOT TO EXCEED $4,361,878 AND
AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE
THE CONTRACT
WHEREAS, the Woodland Lift Station is located near the intersection of Woodland Avenue and Poust Road and conveys wastewater flows into the West Trunk and on to the Regional Water Recycling Facility – Sutter Campus, and WHEREAS, the Woodland Lift Station was recognized in the Wastewater Collection System Master Plan as being in need of rehabilitation to accommodate current and future peak wet weather flows, and
WHEREAS, the project was advertised for bids on May 30, 2024, and WHEREAS, on July 16, 2024, bids were publicly opened, pursuant to City Charter Section 1307, and one bid was received, and
WHEREAS, TNT Industrial Contractors Inc., of Sacramento, CA, was the responsible bidder with the lowest responsive bid, and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $100,000 for material, equipment or contractual services to follow the formal bid procedures, and
WHEREAS, the award of a Contract for the construction of the Woodland Lift Station Rehabilitation Project to TNT Industrial Contractors Inc., of Sacramento, CA, #18..
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2 2024-
conforms to the Modesto Municipal Code because the City complied with the formal bid procedures and TNT Industrial Contractors Inc. was the lowest responsive and responsible bidder.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the plans and specifications for the Woodland Lift Station Rehabilitation Project, accepts the bid of $3,792,937, authorizes the Director of Engineering Services to approve Change Orders up to the cumulative amount of $568,941, 15% of the original Contract price, for a total payment amount not to exceed $4,361,878, and awards the Construction Contract to TNT Industrial Contractors Inc., of Sacramento, CA.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the Contract, in a form approved by the City Attorney. #18..
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3 2024-
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 24th day of September, 2024, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANA NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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1 2024-
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING AN AGREEMENT WITH PEZZONI
ENGINEERING INC, OF MODESTO, CA, FOR ENGINEERING SUPPORT
DURING CONSTRUCTION SERVICES FOR THE WOODLAND LIFT
STATION REHABILITATION PROJECT, IN THE AMOUNT OF $30,000, PLUS $3,000 IN ADDITIONAL SERVICES, IF NEEDED, FOR AN AGREEMENT TOTAL AMOUNT NOT TO EXCEED $33,000 AND AUTHORIZING THE CITY
MANAGER, OR HIS DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, Pezzoni Engineering Inc (Pezzoni Engineering) is the Engineer-ofRecord for the Woodland Lift Station Rehabilitation Project, and WHEREAS, Engineering Support During Construction will be needed from Pezzoni Engineering to ensure construction of the facilities meets the original design described in the plans and specifications, and
WHEREAS, Pezzoni Engineering’s scope of work will include reviewing submittals, responding to requests for information and providing field engineering support, and
WHEREAS, hiring a different engineering firm would require that firm to become familiar with the project, and interpret engineering plans prepared by Pezzoni Engineering, which would create inefficiencies and is not a best practice for engineering work, and
WHEREAS, staff, recommends entering into an Agreement with Pezzoni Engineering for Engineering Support During Construction Services in the amount of $30,000, plus $3,000 in additional services, if needed, for a total amount not to exceed $33,000.
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2 2024-
NOW, THEREFORE BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an Engineering Support During Construction Services Agreement with Pezzoni Engineering for the Woodland Lift Station Rehabilitation Project in the amount of $30,000, plus $3,000 for additional services, if needed, for a total amount not to exceed $33,000.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the agreement, in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 24th day of September 2024, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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1 2024-
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION AMENDING THE FISCAL YEAR 2024-25 CAPITAL
IMPROVEMENT PROGRAM BUDGET IN THE AMOUNT OF $3,505,000 TO
FUND THE CONSTRUCTION PHASE OF THE WOODLAND LIFT STATION
REHABILITATION PROJECT AND AUTHORIZING THE CITY MANAGER,
OR HIS DESIGNEE, TO IMPLEMENT THE PROVISIONS OF THE
RESOLUTION
WHEREAS, certain budgetary transactions are necessary in the amount of $3,505,000, in order to fund the Woodland Lift Station Rehabilitation Project, and WHEREAS, the Fiscal Year 2024-25 Capital Improvement Program Budget must be amended.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the amendment of the Fiscal Year 2024-25 Capital Improvement Program Budget in the amount of $3,505,000.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to implement the provisions of this resolution. #18..
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The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 24th day of September 2024, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST:
DIANA NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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Bid Tabulation Wednesday, July 17, 2024
Project Title: Woodland Lift Station Rehabilitation Project Project ID #: 2024-012
Account #: 100844
Vault ID #: 12-D-0536
Bid Opening: 7/16/2024 at 11:00 AM
Basis of Award: By Base Bid Designer: Kevin Pezzoni
Design Manager: Cristian Ciotau
Project Description: The major work for this project will be various structural, electrical, and piping improvements to existing sewer lift station. Other miscellaneous building and site improvements will be made as part of this project, such as painting and site paving.
Item # Item Description Units Quantity Unit Price Extension Apparent Low Bidder
TNT Industrial Contractors Inc.
(916) 395-8400 3800 Happy Lane, Sacramento, CA 95827
Base Bid
1 Mobilization & Demobilization LS 1 $180,050.00 $180,050.00 2 Demolition LS 1 $137,800.00 $137,800.00
3 Hot Mix Asphalt TON 175 $616.00 $107,800.00
4 Aggregate Base CY 280 $267.00 $74,760.00
5 Retrofit of Existing Manhole LS 1 $134,800.00 $134,800.00 6 Retrofit of Existing Sluice Gate LS 1 $14,650.00 $14,650.00 7 Retrofit of Wet Well Stairs LS 1 $26,607.00 $26,607.00 8 Painting of Interior and Exterior of Building SF 17000 $17.00 $289,000.00 9 Painting of Piping, Conduits, Equipment, LS 1 $65,804.00 $65,804.00 and Miscellaneous
10 All Electrical Work LS 1 $1,250,000.00 $1,250,000.00 11 Structural Canopies Over Electrical Units LS 1 $111,794.00 $111,794.00 12 CMU Structure Along East Side of Existing LS 1 $48,042.00 $48,042.00 Building
13 FRP Composite Reinforcing Structural LS 1 $57,309.00 $57,309.00 Retrofit of Existing Structure
14 New Pump #3 and All Associated Piping, LS 1 $139,632.00 $139,632.00 Fittings, & Valves
15 Reroofing of Existing Building LS 1 $177,799.00 $177,799.00 16 New Valves and Piping At Other Pumps LS 1 $125,342.00 $125,342.00 17 Canopy Between Existing Rooftops LS 1 $44,063.00 $44,063.00 18 Bypass Pumping LS 1 $642,000.00 $642,000.00
19 Structural Calculations LS 1 $84,000.00 $84,000.00
20 Miscellaneous Site Improvements LS 1 $67,200.00 $67,200.00 21 Potholing LS 1 $5,056.00 $5,056.00
22 Water Pollution Control Plan (WPCP) LS 1 $9,429.00 $9,429.00 Total: $3,792,937.00
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Engineer's Estimate
Base Bid
1 Mobilization & Demobilization LS 1 $100,000.00 $100,000.00 2 Demolition LS 1 $75,000.00 $75,000.00
3 Hot Mix Asphalt TON 175 $300.00 $52,500.00
4 Aggregate Base CY 280 $200.00 $56,000.00
5 Retrofit of Existing Manhole LS 1 $40,000.00 $40,000.00 6 Retrofit of Existing Sluice Gate LS 1 $70,000.00 $70,000.00 7 Retrofit of Wet Well Stairs LS 1 $35,000.00 $35,000.00 8 Painting of Interior and Exterior of Building SF 17000 $8.00 $136,000.00 9 Painting of Piping, Conduits, Equipment, LS 1 $50,000.00 $50,000.00 and Miscellaneous
10 All Electrical Work LS 1 $1,050,000.00 $1,050,000.00 11 Structural Canopies Over Electrical Units LS 1 $114,000.00 $114,000.00 12 CMU Structure Along East Side of Existing LS 1 $50,000.00 $50,000.00 Building
13 FRP Composite Reinforcing Structural LS 1 $200,000.00 $200,000.00 Retrofit of Existing Structure
14 New Pump #3 and All Associated Piping, LS 1 $150,000.00 $150,000.00 Fittings, & Valves
15 Reroofing of Existing Building LS 1 $125,000.00 $125,000.00 16 New Valves and Piping At Other Pumps LS 1 $45,000.00 $45,000.00 17 Canopy Between Existing Rooftops LS 1 $75,000.00 $75,000.00 18 Bypass Pumping LS 1 $150,000.00 $150,000.00
19 Structural Calculations LS 1 $11,500.00 $11,500.00
20 Miscellaneous Site Improvements LS 1 $50,000.00 $50,000.00 21 Potholing LS 1 $50,000.00 $50,000.00
22 Water Pollution Control Plan (WPCP) LS 1 $15,000.00 $15,000.00 Total: $2,700,000.00
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ENGINEERING SUPPORT DURING CONSTRUCTION SERVICE AGREEMENT
WOODLAND LIFT STATION REHABILITATION PROJECT
THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this day of , 2024, (“Effective Date”) by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and PEZZONI ENGINEERING, INC., a California corporation, hereinafter referred to as "Consultant".
This Agreement is made with regard to the following recitals:
A. The City has determined that Engineering Support During Construction Services are necessary for the Woodland Lift Station Rehabilitation Project.
B. Consultant represents that it is qualified, willing and able to provide the services to prepare said document(s).
NOW, THEREFORE, in consideration of this agreement, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
1. SCOPE OF SERVICES.
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached hereto and referred to as Exhibit "A" or "project". The Consultant shall perform the services as described in Exhibit "A" in a manner compatible with the standards of its profession, and shall produce a fully complete project that is acceptable to City.
2. TERM OF AGREEMENT.
This Agreement is effective as of the date first written above and will continue in effect until City's acceptance of and payment for all services authorized by City and #18..
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performed by Consultant, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents commonly referred to as “project” attached hereto as Exhibit "A" and made a part hereof. City hereby gives Consultant notice to proceed with the preparation of the project in the manner described in Exhibit "A", as of the Effective Date of this agreement. Consultant shall diligently proceed with the preparation of the project and agrees to complete said preparation within the time period set forth in Exhibit "A".
3. COMPENSATION.
Consultant agrees to accept a sum not to exceed THIRTY THOUSAND AND 00/100 DOLLARS ($30,000) (maximum compensation) as full remuneration for performing all services and furnishing all staffing and materials for Modesto in accordance with Exhibit "A" attached hereto and for performance by Consultant of all of its duties and obligations under this Agreement, except that additional services may be compensated as described below.
The Compensation shall be paid pursuant in the manner and at the times set forth below:
City shall pay Consultant on a time and materials basis for Consultant’s actual costs for all work called for in Exhibit “A” to this Agreement. All work to be performed under this Agreement shall be billed at the hourly rates set forth in Exhibit “B” attached hereto, Consultant shall submit monthly invoices to City which include detailed tasks, hours worked, and billable rates for all work completed, and detailed receipts for any out-of-pocket costs paid by Consultant in connection with work performed on this project. #18..
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Additional services may be authorized by the City Manager in an amount up to, but not to exceed ten percent (10%) of the agreed maximum compensation, or THREE THOUSAND AND 00/100 DOLLARS ($3,000). In the event that additional services are deemed necessary, the Consultant shall provide a written request to the City Manager indicating the reason for additional work, scope and cost of such work. The City Manager shall provide a written response to the request, either approving or denying the additional expenditure. If additional services are requested and approved, they will be billed at the hourly rates set forth in Exhibit “B” and may not exceed the amount requested and approved in writing by the City Manager. In that event, the new total compensation shall not exceed THIRTY THREE THOUSAND AND 00/100 DOLLARS ($33,000). If additional services in excess of this amount are deemed necessary by City Staff, an amendment to this Agreement will be required and must be approved by the City Council prior to commencing the work, as provided in Paragraph 9 of this agreement.
4. OBLIGATIONS OF CONSULTANT.
Throughout the term of this Agreement, Consultant shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business.
Consultant warrants that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by this Agreement. Consultant further warrants that it will follow the best current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.
5. PERFORMANCE BY KEY EMPLOYEE.
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Consultant has represented to City that Kevin Pezzoni, PE, will be the person primarily responsible for the performance of the services referred to in this Agreement.
City has entered into this Agreement in reliance on that representation by Consultant. Consultant therefore agrees that ten percent (10%) or more of the time to be devoted to the project that is the subject of this Agreement will be that of the above-named person.
6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA.
Ownership of Documents
All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of the City, and may be used by City as it may require without any additional cost to City. No reports shall be used by the Consultant for purposes other than this contract without the express prior written consent of City.
Title to Data
If, as a part of the agreement, Consultant is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diagrams, visual aids and other related materials, the originals of all such data generated under this agreement will be delivered to City upon the completion or termination of services under the contract.
All materials, documents, data or information obtained from the City data files or any City medium furnished to Consultant in the performance of this Agreement will at all times remain the property of the City. Such data or information may not be used or copied for direct or indirect use by Consultant after termination of this Agreement without written consent of the City.
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7. NEWS AND INFORMATION RELEASE.
Consultant agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Manager.
8. INTEREST OF CONTRACTOR.
Consultant warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Consultant warrants that, in performance of this Agreement, Consultant shall not employ any person having any such interest. Consultant agrees to file a Statement of Economic Interests with the City Clerk at the start and end of this contract if so required at the option of City.
9. AMENDMENTS.
Both parties to this Agreement understand that it may become desirable or necessary during the execution of this Agreement, for City or Consultant to modify the scope of services provided for under this Agreement. Any material extension or change in the scope of work shall be discussed with City and the change and cost shall be memorialized in a written amendment to the original contract prior to the performance of the additional work.
Until a change order is so executed, City will not be responsible to pay any charges Consultant may incur in performing such additional services, and Consultant shall not be required to perform any such additional services. #18..
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10. INDEPENDENT CONTRACTOR.
All acts of Consultant, its agents, officers, and employees and all others acting on behalf of Consultant relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of City. Consultant, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of City.
Consultant has no authority or responsibility to exercise any rights or power vested in the City.
No agent, officer, or employee of the City is to be considered an employee of Consultant. It is understood by both Consultant and City that this Agreement shall not under any circumstances be construed or considered to create an employer-employee relationship or a joint venture.
Consultant, its agents, officers and employees are and, at all times during the terms of this Agreement, shall represent and conduct themselves as independent contractors and not as employees of City.
Consultant shall determine the method, details and means of performing the work and services to be provided by Consultant under this Agreement. Consultant shall be responsible to City only for the requirements and results specified in this Agreement, and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of the Consultant in fulfillment of this Agreement. Consultant has control over the manner and means of performing the services under this Agreement.
Consultant is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Consultant has the responsibility for employing other persons or firms to assist Consultant in fulfilling the terms and obligations under this Agreement.
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If in the performance of this Agreement any third persons are employed by Consultant, such persons shall be entirely and exclusively under the direction, supervision, and control of Consultant. All terms of employment including hours, wages, working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by the Consultant.
It is understood and agreed that as an independent contractor and not an employee of City neither the Consultant or Consultant's assigned personnel shall have any entitlement as a City employee, right to act on behalf of the City in any capacity whatsoever as an agent, or to bind the City to any obligation whatsoever.
It is further understood and agreed that Consultant must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of Consultant's personnel.
As an independent contractor, Consultant hereby indemnifies and holds City harmless from any and all claims that may be made against City based upon any contention by any third party that an employer-employee relationship exists by reason of this Agreement.
11. ASSIGNMENT.
Neither this Agreement nor any portion thereof shall be subcontracted or assigned without the express prior written consent of the City in each and every instance.
12. PATENT/COPYRIGHT MATERIALS.
Unless otherwise expressly provided in the contract, Consultant shall be solely responsible for obtaining the right to use any patented or copyrighted materials in the performance of this Agreement. Consultant shall furnish a warranty of such right to use to City at the request of City.
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13. NOTICES.
Notice required by this Agreement shall be given in writing and shall be deemed given and effective upon receipt provided that such are delivered in accordance with the provisions of this Section. Notices shall be delivered either by: (a) personal delivery (including delivery by an overnight courier service which obtains confirmation of receipt); or (b) by facsimile, provided that such transmission is followed by delivery by an overnight courier service which obtains confirmation of receipt; or (c) postage prepaid, return receipt requested, certified mail; or (d) by electronic transmission subject to reasonable proof that the notice was both transmitted and received. Each such notice shall be sent to the parties at the address respectively set forth below or to such other address as a party may designate by written notice given in accordance with the provisions of this Section:
FOR CONSULTANT: Name: Pezzoni Engineering
Address: 1150 9th Street
Modesto, CA 95354
Attention: Kevin Pezzoni
Phone: (209) 554-4602
Emal: [email protected]
FOR CITY: Name: City of Modesto
Address: 1010 10th Street
Suite 4600
Modesto, CA 95354
Attention: Cristian Ciotau
Phone: (209) 571-5175
Email: [email protected]
14. INSURANCE REQUIREMENTS.
The Consultant shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the City as may be required by the Risk Manager of the #18..
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City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the City by certified mail, return receipt requested, for all of the following stated insurance policies.
In the event the certificates of insurance required hereunder do not provide for notice of cancellation to the certificate holder and/or additional insureds, the Consultant shall provide, and shall require its subcontractors to provide, as an express condition precedent to payment hereunder, an endorsement from their insurers providing that the additional insureds identified herein shall be provided 30 days notice of the cancellation on the policies of insurance required hereunder (10 days notice if the policies are cancelled for non-payment of premium). In addition, the named insured on all such policies shall provide to the additional insureds identified herein any notices of cancellation of said insurance policies within 5 business days of receipt of such notice. The Consultant shall, as a further express condition precedent to payment for work performed, affirm under penalty of perjury that the required insurance on the project remains in place and said insurance has not been cancelled.
(a) Worker's Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000. (b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises #18..
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and operations; broad form contractual; independent consultants and subcontractors; products and completed operations as applicable.
(c) Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. This insurance shall cover any automobile for bodily injury and property damage.
(d) Professional Liability insurance with a minimum limit of $1,000,000 per claim and policy aggregate. If coverage is on a claims made basis it shall be maintained for at least three (3) years following completion of the work.
If at any time any of said policies shall be unsatisfactory to the City, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City, the Consultant shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the Consultant to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the City, may be forthwith declared suspended or terminated.
Failure of the Consultant to obtain and/or maintain any required insurance shall not relieve the Consultant from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the Consultant concerning indemnification. The City, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City, its agents, officers, employees, and volunteers for losses arising from work performed by Consultant for the City. The Consultant's insurance policy(ies) shall include a provision that the coverage is primary as respects the City; shall include no special #18..
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limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the Risk Manager. The Consultant must deliver certificates evidencing existence of the insurance listed above to the City prior to the time the contract is signed.
CONSULTANT shall provide CITY with separate endorsements evidencing proof of the CITY’s additional insured status as to both the general liability and automobile liability insurance policies. In addition, CONSULTANT shall provide CITY with a Workers Compensation subrogation waiver by way of a separate endorsement. All endorsements referenced above must include the applicable policy number.
For any claims related to this project, the CONSULTANT’S insurance coverage shall be primary insurance as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the CONSULTANT’S insurance and shall not contribute with it.
15. TERMINATION OF AGREEMENT.
Termination by City for Default of Consultant
Should Consultant default in the performance of this Agreement or materially breach any of its provisions, at its option, City may terminate this Agreement by giving written notification to Consultant. The termination date shall be the effective date of the notice. For the purposes of this section, material breach of this Agreement shall include, but not be limited to, any of the following: failure to perform required services or duties, willful destruction of City's property by Consultant, dishonesty or theft. #18..
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Termination by City for Convenience
The City may also terminate the Consultant's performance under the Agreement, either in whole or in part, at its own discretion, or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the City is prevented from proceeding with the Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Work for any reason. The City shall provide no less than ten (10) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the Consultant with consultation with the City prior to termination.
Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the Consultant shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subconsultants and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and Subcontractors except as necessary to complete any portion of the Work that is not terminated; c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such #18..
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subconsultants, but in no event shall recovery by any Consultant or subconsultant include lost profits for portions of the Work not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Consultant in performing the Work whether completed or in process; e. Settle outstanding liabilities and claims, subject to the approval of City;
f. Complete performance of such part of the Work as has not been terminated;
g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Work and/or property related to the Work;
h. If City so requests, and at City's cost, Consultant shall provide sufficient oral or written status reports to make City reasonably aware of the status of Consultant's work on the project. i. The Consultant understands and agrees that City may, in City's sole discretion, refuse to pay Consultant for that portion of Consultant's services which were performed by Consultant on the project prior to the termination date and which remain
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City will pay Consultant an amount based on the percentage of satisfactory work completed in accordance with the notice of termination. The final payment to the Consultant after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant agreements or contracts for materials;
b. The Agreement price allocable to the portion of the Work properly performed or goods supplied to the work site by the Consultant as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the Consultant.
Authorization to Terminate Agreement
Termination of the Agreement may be invoked by the City Manager, or his/her designee, subject to the right of the Consultant to appeal the City Manager, or his/her designee’s, decision to the City Council. The Consultant shall appeal by notifying the City Clerk in writing within ten (10) calendar days of receipt of written notification from City of termination of the Agreement. In the event that termination of this Agreement is upheld by the City Council, any cessation of payment of delay claims, extended claims, Eichleay claims, or any other claims for delay shall be retroactive to the date of termination selected by the City Manager, or his/her designee.
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16. CERTIFIED PAYROLL REQUIREMENT.
For consultants performing field work on public works contracts on which prevailing wages are required: The Consultant shall comply with the provisions of Section 1776 of the California Labor Code, regarding payroll records, and shall require its subconsultants and subcontractors to comply with that section as may be required by law.
17. INDEMNITY.
The Consultant shall hold the City, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of Consultant, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.
Consultant's obligation to defend, indemnify, and hold the City, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Consultant to procure and maintain a policy of insurance.
18. DISPUTE RESOLUTION.
All claims, controversies, or disputes arising out of, or relating to the formation of this Agreement, or the breach, termination execution, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this contract provision shall be determined by binding arbitration in Modesto, California by one arbitrator, except as otherwise specified in this Agreement. The American Arbitration #18..
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Association shall administer the arbitration under its Arbitration Rules then in effect, subject to the modifications of those rules contained in this paragraph. This agreement to arbitrate shall be specifically enforceable under the prevailing law of any court having jurisdiction, and the award rendered by the arbitrator may be entered in any court having jurisdiction. The appropriate venue for any arbitration or court proceeding relating to or arising out of this provision shall be in Stanislaus County, California.
This paragraph is not intended to and does not waive the claim filing requirements found in California Government Code section 900 et seq. In the event that a timely and legally sufficient, arbitrable claim is filed by Consultant with City, and the claim is rejected in whole or in part by City, this paragraph shall result in the conclusive, final, and binding resolution of all the issues presented in the claim by Consultant so long as any issues presented by the claim are arbitrable. Claims rejected by City or by operation of law, shall be submitted by Consultant to arbitration pursuant to the Arbitration Rules of the American Arbitration Association within ninety (90) days after mailing of the written rejection by City to Consultant.
Otherwise, the claim or claims shall be deemed waived in their entirety.
The “fast track’ rules of the American Arbitration Association shall apply to any claim or counterclaim less than ONE HUNDRED FIFTY THOUSAND AND 00/100 ($150,000.00) DOLLARS. In arbitration not proceeding under the “fast track” rules, the arbitrator shall have the power to order that depositions be taken and other discovery be made.
Both City and Consultant shall have the right, upon written notice, to take no more than three (3) depositions of the other as a matter of right in an arbitration proceeding under the “fast track” rules.
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Whether or not City and Consultant may be engaged in interstate commerce, any controversy or dispute mentioned above shall be determined by, and the parties shall be bound by, the substantive law of the State of California, and not the Federal Arbitration Act at 9 USC Section 1 et seq.
The arbitrator may grant any remedy or relief deemed by the arbitrator just and equitable under the circumstances, whether or not such relief could be awarded in a court of law. The arbitrator shall be empowered to award monetary sanctions against a party for failure of cooperation in the arbitration. The arbitrator shall, in written award, allocate all the costs of the arbitration, including the fees of the arbitrator and the reasonable attorney fees of the prevailing party, against the party who did not prevail. The prevailing party shall be the party in whose favor the majority of the central issues in the case are resolved.
Notwithstanding anything in this provision to the contrary, the arbitrator shall have no power to award punitive damages or other damages not measured by the party’s actual damages (excluding litigation costs and fees) against any party. This limitation of the arbitrator’s powers under this Agreement shall not operate as an exclusion of the issue of punitive damages from this Agreement to Arbitrate sufficient to vest jurisdiction in a court with respect to that issue.
Consultant shall include in all subcontracts a specification whereby the subcontractor consents to being joined in an arbitration between City and Consultant involving the work of the subcontractor to be joined. Consultant’s failure to do so shall be a breach of this Agreement.
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The parties hereby waive any rights provided by Title 9.2 of the California Code of Civil Procedure, Section 1296. The arbitrator’s award shall be deemed final, conclusive and binding to the fullest extent allowed by California law.
19. ENTIRE AGREEMENT.
This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder. All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.
20. 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 shall nevertheless continue in full force without being impaired or invalidated in any way.
21. WAIVER.
The waiver by any party to this Agreement of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing. #18..
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22. AUDIT.
The City's duly authorized representative shall have access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify Consultant's charges to City under this Agreement.
Consultant agrees to retain reports, records, documents, and files related to charges under this Agreement for a period of four (4) years following the date of final payment for Consultant services. City's representative shall have the right to reproduce any of the aforesaid documents.
23. GOVERNING LAW.
This Agreement shall be governed according to the laws of the State of California.
24. HEADINGS NOT CONTROLLING.
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
25. COMPLIANCE WITH LAWS.
Consultant shall insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. Consultant shall fully comply with all applicable federal, state, and local laws, ordinances, regulations and permits.
26. CITY BUSINESS LICENSE.
Consultant will have a City of Modesto business license. #18..
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IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2024- , adopted by the Council of the City of Modesto on the day of , 2024, and PEZZONI ENGINEERING, INC. has caused this agreement to be duly executed in duplicate as of the Effective Date. #18..
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1150 9th Street, Suite 1415
Modesto, CA 95354
(209) 554-4602
http://www.pezengr.com
July 22, 2024
Christian Ciotau
City of Modesto
1010 10th Street, Suite 4600
Modesto, CA 95354
Project: Woodland Lift Station Rehabilitation
ESDC
Dear Mr. Ciotau:
Thank you for the opportunity to provide this proposal, the scope of the proposed services is as follows:
Provide engineering services for engineering services through bidding and construction the following items are included within this proposal:
1. Submittals – Review approximately 12 submittals including re-reviews.
2. RFIs – Anticipate a total of 25-50 RFIs throughout the project to account for unforeseen conditions.
3. Design clarifications – Assume 5 design clarification with 4 revised drawing and 1 revised spec
4. Site visits/Meetings – Assume 10 site visit, assume two (5) virtual meetings with City that will be one (5) hour in length
5. Record Drawings – Assume we get contractor redlines and update drawings based on redlines
6. PM -Anticipated time to do project management including QA/QC, invoicing, tracking scope/schedule/budget, etc.
Our fee to complete the above on a time and material basis should not exceed $30,000 per the attached Fee Schedule.
EXHIBIT A
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Woodland Lift Station Rehabilitation
ESDC
City of Modesto
July 22, 2024
1150 9th Street, Suite 1415
Modesto, CA 95354
(209) 554-4602
http://www.pezengr.com
The above fees are based upon our Standard Fee Schedule attached. Should this proposal meet with your approval, please forward a work authorization or sign below and return.
Thank you for the opportunity to be of service to you.
Sincerely,
Kevin L. Pezzoni, P.E.
President
Pezzoni Engineering, Inc
Approved:
By: Date:
Print Name:
Billing Contact Information
Please provide your billing contact information below:
Billing should be sent to:
Name: Email:
Mailing Address:
Phone No. Client’s Project Number
If special handling is required, e.g. hard copy back up, supplemental invoices, etc., please provide specific instructions:
EXHIBIT A
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Pezzoni Engineering
1150 9th Street, Suite 1415
Modesto, CA 95354
(209) 554-4602
FEE SCHEDULE FOR PROFESSIONAL SERVICES
EFFECTIVE: January 1, 2024
The following fees are presently in effect for professional services available from our firm:
CONSULTATION SERVICES:
Investigative/Expert Witness/Professional Consultation TBD* ENGINEERING SERVICES:
Principal Engineer $240.00 Per Hour
Project Manager $210.00 Per Hour
Engineer $185.00 Per Hour
Senior Designer $165.00 Per Hour
Designer $132.00 Per Hour
CAD/BIM Specialist $105.00 Per Hour
Clerical $82.00 Per Hour
* Charges for investigative services, expert witness or professional consultation are generally not applicable to projects involving the preparation of plans or specifications for construction projects.
The fees, terms, and conditions stated herein are included and a part of this Agreement by reference. Carrying charges equal to one percent per month, twelve percent A.P.R., may be assessed to all accounts over 60 days of billing.
The Client agrees to limit our liability and to defend and hold harmless for any cause in connection with this project to a maximum of our net aggregate fees as stated in this proposal. The Client and Owner further agree that any cause of action shall be adjudicated in Stanislaus County, California. The prevailing Party to any action shall be entitled to the full recovery of all expenses, fees, hours, and consultants associated with defending such actions, all to be paid by the nonprevailing Party or Parties, based upon a percentage of award of damages or dismissal.
Should actions be taken for the collection of fees due, the prevailing party will be entitled to full recovery of costs of collection paid by the non-prevailing party. This agreement is entered into on the above-referenced date in Stanislaus County, California.
Client may terminate this Agreement with or without cause, upon written notice.
Should any provision of this Agreement be found to be unenforceable by the presiding Court or authority, the entire balance of this agreement shall remain in full force and effect.
EXHIBIT B
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
September 24, 2024
Date: August 21, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: William Wong, Director of Utilities
SUBJECT: Approve Grant of Permanent Easement to Modesto Irrigation District CONTACT: Edgar Vargas, Senior Civil Engineer, [email protected], 209-577-5424 DESCRIPTION:
Consider approving a Grant of Permanent Easement and Right-of-Way to Modesto Irrigation District associated with existing irrigation facilities within a portion of APN 004-102-003. (Funding Source: Water Fund)
STRATEGIC PLAN ELEMENT:
The recommended action supports the 2020-2025 City of Modesto Strategic Plan Initiatives, Goal D: Provide safe, efficient, and reliable infrastructure through proactive community investment, maintenance, and sustainability efforts.
BACKGROUND:
On April 3, 2018, by Resolution No. 2018-144, Council awarded a Construction Contract to NorCal Pump & Well Drilling, Inc., of Yuba City, CA in the amount of $426,417 for the Del Rio Well 70 (Replacing Well 271) Surface Improvements Project.
During construction of the Project, staff became aware that the Modesto Irrigation District (MID) facilities located on the property did not have an easement to permit the placement of the facilities, nor access to upgrade, maintain, repair, replace or modify those facilities.
DISCUSSION:
The Utilities Department and MID routinely work together to coordinate infrastructure maintenance, installation, repair, upgrades, removal and modifications throughout the City.
The existing MID infrastructure on the property in question includes an irrigation line & control box structure which are utilized primarily to convey irrigation water to their agricultural customers.
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City Council, September 24, 2024
Approve Grant of Permanent Easement to Modesto Irrigation District