1 AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN
STADIUM MANAGER
AND
ICS INTEGRATED COMMUNICATION SYSTEMS
This Agreement for the Performance of Services (“A greement”) is made and entered into on this November 1, 2019 (“Effective Date”) by and between ICS INTEGRATED COMMUNICATION SYSTEMS a California corporation with a principal place of business located at 6680 Via Del Oro, San Jose, CA 95119 (“Contractor”), and the FORTY NINERS STADIUM MANAGEMENT COMPANY LLC, a Delaware limited liability company (“Stadium Manager”), with its principal place of business located at 4900 Marie P.
DeBartolo Way, Santa Clara, CA 95054. Stadium Mana ger and Contractor may be referred to individually as a “Party” or collectively as the “Parties” or the “Parties to this Agreement.”
RECITALS
A. The CITY OF SANTA CLARA, a municipal corporation (“City”) and the SANTA CLARA STADIUM AUTHORITY, a joint exercise of powers entity, created through Government Code sections 6500 et seq. (the “Authority”), are parties to that certain Ground Lease dated as of March 28, 2012, as amended by that certain First Amendment to Ground Lease (Stadium Site) (as the same may be further amended from time to time, the “Ground Lease”), pursuant to which the Authority leases certain real property from the City upon which the Authority has developed and constructed a multi-purpose stadium (the “Stadium”).
B. The Authority and FORTY NINERS SC STADIU M COMPANY, LLC, a Delaware limited liability company (“StadCo”), are parties to that certain Amended and Restated Stadium Lease Agreement dated as of March 28, 2012 as amended and restated as of June 19, 2013 (as the same may be further amended from time to time, the “Stadium Lease”), pursuant to which StadCo is granted the right during the term of the Stadium Lease to use and occupy the Stadium for the operation of an NFL franchise, subject to, and on the basis of, the terms, covenants and conditions set forth in the Stadium Lease.
C. StadCo and FORTY NINERS FOOTBALL COMPANY LLC, a Delaware limited liability company (“Team”) are parties to a certain Sublease Agreement dated as of March 28, 2012, as amended and restated as of June 19, 2013 (as the same may be further amended from time to time, the “Team Sublease”), pursuant to which, during the term of the Team Sublease, the Team shall play its NFL home games at the Stadium, subject to, and on the basis of, the terms, covenants and conditions set forth in the Team Sublease.
D. The Authority, StadCo, and Stadium Manager are parties to a certain Stadium Management Agreement effective as of March 28, 2012, as amended by that certain First Amendment to Stadium Management Agreement dated as of November 13, 2012, that certain Second Amendment to Stadium Management Agreement dated as of May 9, 2013, that certain Third Amendment to Stadium Management Agreement dated as of June 19, 2013, and that certain Fourth Amendment to Stadium Management Agreement dated as of March 18, 2014 (as the same may be, further amended from time to time, the “Stadium Management Agreement”), pursuant to which the Stadium Manager will manage the operation of the Stadium year-round on behalf of the Authority and StadCo for the term and on the basis specified in the Stadium Management Agreement.
E. Pursuant to the Stadium Management Agreemen t, the Stadium Manager is required to maintain and operate the Stadium and areas surrounding the Stadium, and, accordingly, desires to secure professional services more fully described in this Agreement, at Exhibit A, entitled “Scope of Services” (the “Services”).
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC 2 F. Contractor represents that it, and its subcontracto rs, if any, have the professional qualifications, expertise, necessary licenses and desire to provide the Services of the quality and type which meet objectives and requirements of Stadium Manager.
G. In accordance with the Stadium Management Ag reement, the Stadium Manager is authorized to enter into this Agreement on behalf of the Authority and StadCo to engage Contractor to provide the Services; and, accordingly, the Stadium Manager and Contractor desire to enter into this Agreement whereby Contractor shall have the right to provide, and Contractor agrees to provide, the Services, subject to the terms and conditions of this Agreement, the Ground Lease, the Stadium Lease and the Stadium Management Agreement:
AGREEMENT PROVISIONS
1. EMPLOYMENT OF CONTRACTOR.
Stadium Manager hereby employs Contractor to perform the Services. Stadium Manager shall pay for all such Services which are consistent with the terms of this Agreement.
2. SERVICES TO BE PROVIDED.
A. Except as and to the extent expressly set fo rth in this Agreement, Contractor shall furnish all Services necessary to satisfactorily complete the work required by Stadium Manager at Contractor’s own risk and expense. The Re citals above and all of the exhibits and schedules referenced in this Agreement are attached and are incorporated by this reference.
B. Stadium Manager may, at its discretion, provid e, or cause to be provided, during the Term designated office and storage space within the Stadium for use by Contractor. The location of such office and storage space shall be in the sole discretion of Stadium Manager, and Stadium Manager may direct that the office and storage space be moved to a new location within the Stadium from time to time as it deems necessary.
C. Except as expressly provided herein, Cont ractor shall be responsible for all costs and expenses incurred in performing the Se rvices, including costs and expenses of maintaining, repairing and replacing any furniture, fixtures, equipment, or other tangible property and all applicable taxes, staffing (i ncluding all managerial and Event staff, if applicable), and training. As described in greater detail in Section 7.F hereof, Contractor agrees to fully abide by all sustainability and reuse programs established for or applicable to the Stadium, as each may be modified from time to time following the Effective Date.
D. Without limiting the generalit y of any other provision in this Agreement, Contractor’s provision of the Services shall be subject to the reasonable prior approval of Stadium Manager acting in conjunction with Contractor, including but not limited to staffing and the manner of Contractor’s performance. Contractor shall not offer exclusivity to any supplier without the prior written approval of Stadium Manager.
E. If at any time, Contractor fails or is otherwis e prevented from providing all or any portion of the Services whether due to a suspension or termination of any licenses or permits or otherwise, then, in addition to any other right of Stadium Manager, Stadium Manager shall have the right, in its sole discretion, withou t the payment of any kind to Contractor, to provide through any available means the Services, or any portion thereof, until such time as Contractor has resumed its provision of the Services. In the event Stadium Manager exercises its rights pursuant to this Section, Contractor shall, and shall cause its employees to cooperate and assist Stadium Manager in providing the Services.
F. Notwithstanding the foregoing, and subject to any restrictions imposed by the Authority, including pursuant to the Stadium Leas e and Stadium Management Agreement, the DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC 3 Stadium Manager and its designated agents reserve the right of access to all areas that Contractor is permitted to access, use and oc cupy hereunder for purposes of operating, inspecting, maintaining and repairing the St adium (and all improvements therein or thereon) and for the purpose of determining whether the terms, covenants and conditions contained in this Agreement are being fully and faithfully observed and performed by Contractor. Use of any space or property that Contractor is permitted to access, use and occupy hereunder for purposes other than th e operations to be conducted under this Agreement, without prior written approval of Stadium Manager in its sole discretion, is prohibited. Contractor shall not interfere with any other contractor, licensee or employee of the Authority, Stadium Manager or any other person working at the Stadium.
3. COMMENCEMENT OF SERVICES.
Contractor shall begin providing the Services on the Effective Date. Contractor shall provide the Services as described in Exhibit A and shall complete all Services during the Term or as mutually agreed upon in writing by the Parties.
4. QUALIFICATIONS OF CONTRACTOR – STANDARD OF WORKMANSHIP.
A. Contractor represents and maintains that it has the necessary expertise in the professional calling necessary to perform the Services, an d its duties and obligations, expressed and implied, contained in this Agreement, and Stadium Manager expressly relies upon Contractor’s representations regarding its skills and knowledge. Contractor shall perform such Services and duties and obligations in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.
B. The plans, designs, specifications, estimates, calculations, reports, and other documents furnished under Exhibit A shall be of a qua lity acceptable to Stadium Manager. To be accepted as provided under this Agreement, any such work shall be a product of neat appearance and shall be well-organized, technically and grammatically correct, and checked, and shall identify the maker and checker. The minimum standard of appearance, organization, and content of the drawings shall be that used by Stadium Manager for similar projects.
5. TERM OF AGREEMENT.
The term of this Agreement (the “Term”) shall begin on the Effective Date and terminate on March 31, 2023 provided however, if this Agreement extends beyond a single fiscal year, the Term for subsequent fiscal years shall be conditioned upon approval of the Authority budget for the applicable fiscal year that includes the amounts due under this Agreement. All Services contained herein shall be completed prior to the end of the Term of this Agreement. The Stadium Manager shall have the option, in its sole discretion, to ex tend the Term for additional one (1) year periods by notifying Contractor in writing of Stadium Manage r's desire to exercise said option prior to the expiration of the then-current Term.
6. WARRANTY.
Contractor expressly warrants that all Services co vered by this Agreement shall be fit for the purpose intended, shall be free from defect, and shall conform to the specifications, requirements, and instructions upon which this Agreement is ba sed. Contractor agrees to promptly replace or correct any incomplete, inaccurate, or defective Se rvices at no further cost to Stadium Manager when defects are due to the negligence, errors, or omissions of Contractor. If Contractor fails to promptly correct or replace Services, Stadium Manager may make corrections or replace Services and charge Contractor for the cost incurred by Stadium Manager.
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC 4 7. PERFORMANCE OF SERVICES.
A. Contractor shall perform all Services in an efficient and expeditious manner and shall work closely with and be guided by Stadium Manage r. Contractor shall be as fully responsible to Stadium Manager for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor is for the acts and omissions of persons directly employed by it. Contractor will perform all Services in a safe manner and in accordance with all Applicable Laws and safety regulations, the policies and procedures issued by the Stadium Manager relating to the Services, the general operating procedures of the Authority, and any and all other applicable rules, regulations, policies and directives established or implemented by the Authority and/or Stadium Manager, the designees of either of them, or the NFL, from time to time, including scheduling rules, regulations and policies, related to the use or operation of the Stadium (collectively, “Stadium Policies”).
The term “Applicable Laws” as used in this Agreement shall mean any statute, law, treaty, rule, code, ordinance, regulation, permit, inte rpretation, certificate or order, whether now or hereafter existing, of any Governmental Authority, or any judgment, decision, decree, injunction, writ, order or like action of any court, arbitrator or other Governmental Authority, whether now or hereafter existing. The term “Governmental Authority” as used in this Agreement shall mean any federal, state, local or foreign governmental entity, authority or agency, court, tribunal, regulatory commission or other body, whether legislative, judicial or executive (or a combination or permutation thereof), and any arbitrator to whom a dispute has been presented under Applicable Laws or by agreement of the Parties with an interest in such dispute.
B. Contractor shall at all times maintain a suff icient number of qualified personnel at the Stadium and, if applicable, the Related Facilities ( e.g., offsite parking areas ) for the performance of all of Contractor’s obligations under this Agreement.
C. Contractor’s authorized personnel who are sch eduled to work at events at the Stadium (“Events”) shall be provided with ingress to and egress from the Stadium through a gate or gates designated for such purpose by Stadiu m Manager, without charge, during all days on which Events are held and at all other times necessary to enable Contractor to prepare for Events and fulfill its responsibilities unde r this Agreement. Contractor shall be bound by and comply with all rules, policies and procedures relating to security and access rights, including requirements related to screening an d identification of Contractor’s personnel, established from time to time by Stadium Manager. Nothing herein contained shall be held to limit or qualify the right of the Authority or Stadium Manager to a free and unobstructed use, occupation and control of the Stadium an d ingress and egress for itself, its lessees and the public.
D. Contractor shall obtain on or before the Co mmencement Date and shall thereafter maintain throughout the Term, at its cost and in its name, all licenses and permits necessary for the performance of the Services and any and all other licenses and permits required to be obtained by Contractor by the terms of the Stadium Lease. Stadium Manager shall cooperate with Contractor in connection with applications submitted by Contractor for any and all licenses and permits and renewals th ereof. Contractor shall not submit any application for a permit or license without first providing Stadium Manager a reasonable opportunity to review it. Contractor shall furnish Stadium Manager with copies of such licenses and permits and renewals thereof as ar e physically maintained at the Stadium, and all other licenses or permits otherwise required under Applicable Laws or this Agreement, and shall surrender all license s and permits to Stadium Manager upon termination of this Agreement.
E. In the event that Contractor fails to obtain or maintain in full force and effect any material license or permit necessary for the perfor mance of the Services, including upon a suspension applicable to an Event or revoca tion thereof, (a) Stadium Manager shall have the right (but no obligation) to perform or have another Person perform the applicable DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC 5 obligation without compensation to Contra ctor and, whether or not Stadium Manager exercises that right or its termination rights , Contractor shall be responsible to Stadium Manager for the loss of income and all other damages, including consequential and special damages, suffered by Stadium Manager as the result of Contractor’s breach of this Agreement, including any loss of income; and (b) Contractor shall be considered in material breach of this Agreement, and Stadium Manager may, in addition to any other rights or remedies it may have, immediately terminate this Agreement.
F. Contractor shall comply in all respects with the Santa Clara Business and Commercial Recycling Program, as the same shall be am ended from time to time, and shall, in partnership with Stadium Manager, prepare and implement a plan (the “Waste Reduction and Recycling Plan”) that targets 100% diversion of solid waste from all Events, including composting or other diversion of compostable organics. Contractor shall train its employees in the methods and objectives of the Waste Reduction and Recycling Plan and shall direct and cause its employees to no t dispose of or discharge recyclables, compostables, waste, garbage, refuse or Hazardous Substances in any area in or outside the Stadium other than in areas specifically designated therefor. Contractor shall be responsible for expeditiously collecting, separating, recycling, bagging and delivering recyclables, compostables, trash and garbage generated within the Stadium Complex, and Contractor shall cause its employees to deposit such recyclables, compostables, trash and garbage in appropriate containers or equipment in the locations specified by Stadium Manager, whereupon Stadium Manager shall be responsible for the further delivery and ultimate disposal of such recyclables, compostables, trash and garbage. In addition, Contractor shall separate, compact and recycl e the trash generated by Events on non- Event days. Contractor shall take all action necessary to: (i) ensure that all such recyclables, compostables, trash and garbage are placed in bags and/or the appropriate receptacles or other containers (which receptacles and contai ners shall be provided by Contractor) that are durable for transport and not easily susceptible to breakage or leakage, (ii) notify Stadium Manager when the centralized Stadium recyclable, compostable and garbage receptacles are full and need to be emptied, (iii) prevent recyclables, compostables and trash from piling up around the outside of the receptacles and from using the Stadium receptacles in lieu of transferring the recyclables, compostables and trash to the required locations as described herein and (iv) ensure that recyclables, compostables and trash do not spill out prior to or during tr ansport. Contractor agrees to and is fully committed to participating in the separation an d recycling of refuse in the Stadium and to minimize the amount of non-recyclable and non-compostable refuse to be removed from the Stadium. All recyclable, compostable, trash and garbage receptacles within the areas controlled by Contractor shall be provided by Contractor and shall be cleaned and sanitized by Contractor in accordance with the standards reasonably set from time to time by the Authority and/or Stadium Manager, to ensure a consistently high standard of sanitation meeting or exceeding the standards set by the Santa Clara County Public Health Department and/or the City. Contractor will comply with all federal, state and local recycling and composting requirements and such recycling and composting programs implemented from time to time by the Authority and/or Stadium Manager and all rules and regulations applicable to the Stadium’s adherence to, and/or certification by, the Leadership in Energy and Environmental Design (LEED) Green Building Rating System. Contractor shall indemnify Stadium Manager and make Stadium Manager whole for any out of pocket costs incurred by Stadium Manager which are solely attributable to any negligence or intentional act or omission of Contractor or any of its employees with respect to the recycling or trash removal program, including the expense of returned or rejected recyclable, compostable and trash removals due to mixing or contaminating the trash flow in violation of Applicable Laws or specific directives provided to Contractor in writing as part of the Stadium’s sustainability and recycling, composting or trash removal programs. Stadium Manager will determine the type, appearance and location of the recyclable, compostable and trash receptacles.
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC 6 G. Contractor agrees not to use Hazardous Subs tances at the Stadium, except in accordance with Applicable Laws, and agrees to indemnif y, defend, and hold the Indemnified Parties harmless for all Losses (as defined in Section Error! Reference source not found. below) arising out of its use, generation or storage of Hazardous Substances at the Stadium.
H. Contractors acknowledges and agrees that Se rvices performed under this Agreement shall not create any right of lien for Contractor at the Stadium, which is a publicly owned building.
Contractor hereby waives and releases any right of lien against Stadium Manager, StadCo, the Authority, the City, or the Stadium for the Services or any other work performed by Contractor at the Stadium during the Term of this Agreement.
I. As required by Applicable Laws, Contractor shall file a payment bond for one hundred percent of the total amount payable hereunder with and approved by Stadium Manager.
J. The Services provided by Contractor unde r this Agreement are subject to compliance monitoring and enforcement by the Department of Industrial Relations. During the Term of this Agreement, Contractor warrants that it is registered with the Department of Industrial Relations and qualified to perform Work consistent with Labor Code section 1725.5.
K. In accordance with California Labor Code Section 1771, not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the Services are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work as provided in the California Labor Code must be paid to all workers engaged in performing the Services. In accordance with California Labor Code Section 1770 and following, the Director of Industrial Relations has determined the general prevailing wage per diem rates for the locality in which the Services are to be performed; the Stadium Manager has obtained the general prevailing rate of per diem wages and the general rate for holiday and overtime work in the locality in which the Work is to be performed for each craft, classificati on or type of worker needed to perform the project; and copies of the prevailing rate of per diem wages are on file at the Stadium Manager’s office and will be made available on request. Throughout the performance of the Services, Contractor must comply with all Applicable Laws that apply to wages earned in performance of the Services. Contractor assumes all responsibility for such payments and shall defend, indemnify and hold the City, the Authority, the Stadium Manager and its Affiliates harmless from any and all claims made by the State of California, the Department of Industrial Relations, any subcontractor, an y worker or any other third party with regard thereto. Additionally, in accordance with the California Administrative Code, Title 8, Group 3, Article 2, Section 16000, Publication of Prevailing Wage Rates by Awarding Bodies, copies of the applicable determination of the Director can be found on the web at http://www.dir.ca.gov/DLSR/PWD/ and may be reviewed at any time.
L. Contractor shall provide a certified copy of its payroll, on forms to be determined by the Stadium Manager and consistent with the California Labor Code, within ten (10) days of the Contractor’s receipt of Stadium Manager’s written request therefor. Contractor’s failure to timely comply with this provision may subject the Contractor to penalties pursuant to state law.
8. MONITORING OF SERVICES.
Stadium Manager may monitor the Services performed under this Agreement to determine whether Contractor’s operations conform to Stadium operating policies and directives and to the terms of this Agreement. Stadium Manager may also monitor the Services to be performed to determine whether the Services are being conducted in accordance with applicable Stadium Policies, National Football League requirements, and Applicable Laws.
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC 7 9. CORRECTION OF SERVICES.
Contractor agrees to correct any incomplete, inaccurate, or defective Services at no cost to Stadium Manager, when such defects are due to the negligen ce, errors, or omissions of Contractor. If any action of Contractor constitutes a breach, Stadium Manager may terminate this Agreement pursuant to the provisions described herein.
10. RESPONSIBILITY OF CONTRACTOR.
A. Contractor shall be responsible for the pr ofessional quality, technical accuracy, and coordination of the Services furnished by it under this Agreement. Neither Stadium Manager’s review, acceptance, nor payments for any of the Services required under this Agreement shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement and Contractor shall be and remain liable to Stadium Manager in accordance with Applicable Laws for all damages to Stadium Manager caused by Contractor failure to perform any of the Services furnished under this Agreement.
B. Any acceptance by Stadium Manager of pl ans, specifications, construction contract documents, reports, diagrams, maps, and other material prepared by Contractor shall not in any respect absolve Contractor from the responsibility Contractor has in accordance with customary standards of good professional practice in compliance with Applicable Laws.
C. Contractor shall comply and otherwise abide by, all emergency and security procedures and protocols of the Stadium Manager, the Authority, the City, the Team, the NFL and promoters of Events as the Stadium Manager or such other Persons shall adopt from time to time. Such procedures and protocols may include, without limitation, (i) employee pat- down and screening, (ii) presentment by Contrac tor’s employees of identification cards or badges issued by Stadium Manager, which ma y include reporting criteria such as bar codes, “Mag Stripes”, “RFID” or other identifier systems; (iii) restricting access to certain parts of the Stadium to specified employees of Contractor as reasonably approved by the Stadium Manager (with respect to security clearance standards); and/or (iv) conduct by Contractor, at its sole expense, of Team-s pecified minimum background and such other security screening checks on all of Contractor's employees as the Stadium Manager shall request from time to time, which checks may vary as to job function.
D. Personnel.
i. Contractor shall hire, employ, train, su pervise and discipline any and all persons necessary to provide the Services in accordance with the terms of this Agreement and shall use its best efforts to ensure that its employees continually practice the high standards of safety, courtesy and service customarily followed in the conduct of a first-class operation. Contractor shall use its best efforts to select qualified, competent and trustworthy employees. Any and all persons who furnish services under this Agreement, whether or not employed by Contractor prior to the Effective Date, are exclusively employees, subcontractors and/or non-affiliated third parties employed by Contractor and are not employees of the Authority, the City, StadCo or Stadium Manager. Such persons furnishing services under this Agreement shall be subject to appearance standards mutually acceptable to the parties hereto and as permitted by Applicable Laws, and shal l wear, at all times while working at the Stadium, neat and clean uniforms provided by Contractor and approved by Stadium Manager. Such uniforms shall bear such lettering and insignia (including the name and logo of the Stadium, the Stadium naming rights sponsor, if required, and the location of the employee's assignment ( e.g., a Club Area or Suite area)) as Stadium Manager may require and shall be of a design reasonably satisfactory to Stadium Manager. Contractor shall cause its employees to conduct themselves in a professional and courteous manner, and not to unreasonably disturb or DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC 8 interfere with Events. Contractor shall at all times maintain accurate records of the names, addresses, employment history and other legal identification of those to whom Contractor issues employee badges, un iforms or other identifying items to ensure the proper identification and legal working status of Contractor's employees at the Stadium. Contractor shall conduct such background and other security screening checks on its employees as Stadium Manager shall reasonably request from time to time and shall not knowingly hire any person who has been previously terminated by the Authority, StadCo, Stadium Manager or any of their respective Affiliates or contractors. Upon Stadium Manager's request, and so long as any such action shall not be contrary to law, Contractor shall immediately remove from the Stadium any employee, agent, contractor or invitee of Contractor and permanently revoke such person's access credentials.
ii. Intentionally Left Blank.
iii. Contractor shall conduct regularly scheduled employee training programs appropriate to the Services provided, including any programs specifically requested by Stadium Manager, for all of its employees working in the Stadium (the “Employee Training Programs”). The Employee Training Programs will be mandatory for all employees, agents and any subcontractors of Contractor and, at a minimum, will include customer service, guest interaction, security procedures and specific job skills training, and will be conducted in such frequency as may be approved or directed by Stadium Manager. Contractor shall cause all Employee Training Programs to be periodically re viewed (no less frequently than annually) and updated to the extent necessary to maintain the standard of service requested by Stadium Manager. All employees of Contractor shall also be required to attend such policy and procedures training sessions as may be held by the Stadium Manager, as well as the Stadium orientat ion tour and training conducted by the Stadium Manager. Contractor shall not permit any employee, agent or subcontractor to work at an Event prior to his or her completion of the prescribed training sessions and Employee Training Programs.
iv. Contractor shall promptly notify Stadium Manager upon voluntary or involuntary termination of employment of its employees or contractors and ensure that each such terminated individual is denied further access to the Stadium. In no event shall the Authority, the City, StadCo or Stadium Manager be liable, and Contractor shall indemnify, protect, and hold the Authority, the City, StadCo and Stadium Manager harmless, for Contractor's record keeping (or lack of record keeping), including the legal identification and working status of Contractor's employees and subcontractors, or for any other matters relating to Contractor's employees or subcontractors.
11. COMPENSATION AND PAYMENT.
A. In consideration for Contractor’s complete performance of the Services, Stadium Manager shall pay Contractor for all materials provided and services rendered by Contractor in the amount(s) set forth in Exhibit B, entitled “Contractor Compensation and Fees.” B. Contractor will invoice Stadium Manager for fees as set forth in Exhibit B, subject to verification by Stadium Manager. Except as otherwise expressly provided in Exhibit B, Stadium Manager will pay Contractor within thirty (30) days of Stadium Manager’s receipt of a valid invoice.
12. TERMINATION OF AGREEMENT.
A. In addition to any other rights or reme dies Stadium Manager may have, Stadium Manager may terminate this Agreement by written notice to Contractor if: (i) Contractor fails to DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC 9 correct to the reasonable satisfaction of Stadium Manager any condition created or controlled by Contractor that, in Stadiu m Manager’s reasonable judgment, poses a hazardous condition to occupants of the Stadium Complex, any of the Related Facilities (e.g., offsite parking areas), or any portion thereof, within twenty-four (24) hours after receipt of written notice from Stadium Manager; (ii) Contractor fails to perform any material obligation under this Agreement and such failure continues unremedied for a period of ten (10) days after receipt of written notice from Manager of the particular failure to perform (or thirty (30) days in the case that a remedy has commenced but cannot reasonably be accomplished in ten days); (iii) Contractor is placed into bankruptcy either voluntarily or involuntarily (and such involuntary proceeding is not dismissed within sixty (60) days), becomes financially insolvent, takes the benefit of any present or future insolvency statute, makes a general assignment for the benefit of creditors, or consents to the appointment of a receiver, trustee, or liquidator of all or substantially all of its property; (iv) Contractor transfers or permits a transfer of th is Agreement in violation of Section Error! Reference source not found. 3; (v) Contractor fails to obtain and/ or maintain required licenses and permits under Section 7.D; or (vi) Contractor fails to work cooperatively and in good faith with the Authority, Stadium Manager, any of their respective Affiliates or any of subcontractors of any of the foregoing. Contractor and Stadium Manager acknowledge and agree that termination of this Agreem ent by Stadium Manager pursuant to this Section 11.A shall be “for cause.”
B. Upon the termination or expiration of this Agreement, (1) Contractor shall immediately surrender possession of the Related Facilities, if any (including any and all leasehold and other improvements therein), uniforms, equipm ent (and related manuals and software) to Stadium Manager, (2) Contractor shall imme diately assign to Stadium Manager or its designee(s) all right, title and interest of Contractor in and to all items purchased by Contractor in connection with the Servic es (including uniforms and equipment), (3) Contractor shall make all payments requir ed to be made by Contractor under this Agreement, (4) to the extent permitted by Ap plicable Laws, Contractor shall immediately surrender possession of and assign to Stadium Manager all permits and licenses acquired by Contractor in compliance with Section 7.D and any Applicable Laws, and (5) all matters, rights and liabilities existing on the date of termination between the parties hereto shall be determined as of such termination date (e xcept as described above), and discharged as promptly as possible thereafter, including any known claims for damages either party may have against the other for breach of the terms and conditions hereof. Any such surrender shall require delivery of possession in good condition, reasonable and ordinary wear and tear excepted and otherwise in complian ce with the terms of this Agreement.
Notwithstanding any termination or expirati on of this Agreement, all liabilities and obligations of the parties will survive until they are fully satisfied.
C. If the Stadium is destroyed or otherwise rendered unusable for more than thirty (30) days for any reason (a “Casualty Event”), Stadium Manager shall give Contractor a notice within ninety (90) days after the Casualty Event stating that whether the Authority intends to rebuild or restore the Stadium. If the notice states that the Authority will not rebuild or restore the Stadium, this Agreement shall be terminated. If the notice states that the Authority intends to rebuild or restore the Stadium, the Parties’ obligations hereunder shall be abated during that period. If such notice states that the Authority reasonably believes that it will take longer than two (2) years to restore or rebuild the Stadium or, if a shorter amount of time, such amount of time is longer than the remainder of the Term, either party shall have the option of terminating this Agreement by written notice to the other at any time within one hundred and eighty (180) da ys after Stadium Manager gives such notice, and such termination shall be effective one hundred twenty (120) days after the other party’s receipt of such notice. Contractor shal l not be entitled to any monetary or other damages or compensation from Stadium Manager in the event of a Casualty Event.
D. The Parties acknowledge and agree that in the event that any permit required to be obtained by Stadium Manager for the full performance of the Services is not obtained by DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC 10 within a reasonable amount of time follow ing the Effective Date, Stadium Manager shall have the right in its sole discretion to terminate this Agreement upon written notice to Contractor. Upon such termination, the Parties shall mutually agree upon any remaining payment by or refund to Stadium Manager in good faith. In no event shall Stadium Manager be responsible for any labor or other costs for services not yet performed by Contractor at the time of the notice of termination
13. NO ASSIGNMENT OR SUBCONTRACTING OF AGREEMENT.
A. Stadium Manager and Contractor bind themse lves and their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred by Contractor without the prior written approval of Stadium Manager. Contractor shall not hire subcontractors without express written permission from Stadium Manager.
B. Stadium Manager may sell, assign, pledge an d otherwise transfer or encumber (each, a “transfer”) this Agreement and any or all of its rights and obligation s hereunder to any other Person, including any source of or guaran tor or insurer of financing or any trustee, collateral agent or other Person appointed in connection with such financing (each, a “Manager Assignee”), whether by security agreement, collateral assignment, transfer or otherwise; provided, that such transfer shall not relieve Stadium Manager of its obligations under this Agreement unless such Manager Assignee assumes in writing Stadium Manager’s obligations under this Agreement. Upon reasonable prior notice from Stadium Manager, Contractor shall make any payments due hereunder to such Manager Assignee and shall execute and deliver any document s that Stadium Manager or any Manager Assignee may reasonably request to ackn owledge and confirm that upon any such transfer, this Agreement will remain in full force and effect, will continue to be a legal, valid and binding obligation of Contra ctor enforceable in accordance with its terms (subject to applicable bankruptcy or insolvency laws and general principles of equity), and that (to the extent accurate and correct) neither Contract or, nor to Contractor’s knowledge, Stadium Manager is in material breach or violation of this Agreement.
C. Contractor acknowledges and agrees th at, in the event the Stadium Management Agreement is terminated for any reason, the Authority and StadCo shall, in accordance with the Stadium Lease, employ a replacem ent manager for the Stadium, who shall, following the effective date of such employme nt, constitute the “Stadium Manager” for all purposes under this Agreement, provided, howeve r, that for any period of time before a replacement manager is appointed, this Agre ement may be assigned to the Authority or StadCo.
14. NO THIRD-PARTY BENEFICIARY.
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties, except for the Authority, StadCo, and Team, and no other third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
15. INDEPENDENT CONTRACTOR.
Contractor and all person(s) employed by or cont racted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do not act as agent(s) or employee(s) of Stadium Manager, the Authority or StadCo. Contractor has full rights, however, to manage its employees in their performance of Serv ices under this Agreement. All liabilities that may arise as a result of Contractor's status as an employer shall be borne exclusively by Contractor, including liability relating to payments required to be made under, and documents to be filed with respect to, the Federal Insurance Contribution Act and the Federal Unemployment Tax Act or any similar federal, state, city or local legislation or other Applicable Laws. Contractor is not authorized to bind Stadium Manager, the Authority or StadCo to any contracts or other obligations.
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC 11 16. NO PLEDGING OF STADIUM MANAGER’S CREDIT.
Under no circumstances shall Contractor have the au thority or power to pledge the credit of the Stadium Manager or any other of the Indemnified Parties or incur any obligation in the name of such Persons. Contractor shall save and hold harmless the Authority, StadCo, Stadium Manager, their respective Affiliates, and their respective officers, employees, boards and commissions for expenses arising out of any unauthorized pledges of credit by Contractor under this Agreement.
17. CONFIDENTIALITY OF MATERIAL.
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions, or other information developed or received by or for Contractor and all other written information subm itted to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor and shall not, without the prior written consent of Stadium Manager, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Contractor which is otherwise know n to Contractor shall be deemed confidential.
Notwithstanding the above, the Contractor acknowl edges that the Authority is a California public entity that is subject to the California Public Records Act. Information disclosed to Stadium Manager on behalf of the Authority regarding the Contractor's Services in connection with the performance of this Agreement may be subject to public disclosure in accordance with the Public Records Act, including this Agreement and its terms.
18. NO USE OF STADIUM MANAGER NAME OR EMBLEM.
Contractor shall have no right to use the trademar ks, symbols, trade names or other intellectual property of the Authority, Stadium Manager, Levi’s Stadium®, the San Francisco 4 9ers, or their respective Affiliates, or Stadium tenants or their Affiliates or other Event performers directly or indirectly, in connection with any production, prom otion, service or publication, without the written approval of Stadium Manager.
19. OWNERSHIP OF MATERIAL.
All material, including information developed on computer(s), which shall include, but not be limited to, data, sketches, tracings, drawings, plans, di agrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports, and other material developed, collected, prepared, or caused to be prepared under this Agreement shall be the property of Stadium Manager, but Contractor may retain and use copies thereof. Stadium Manager shall not be limited in any way or at any time in its use of said material. However, Contractor shall not be responsible for damages resulting from the use of said material for work other than the Services, including, but not limited to, the release of this material to third parties.
20. RIGHT OF STADIUM MANAGER TO INSPECT RECORDS OF CONTRACTOR.
Stadium Manager, through its authorized employees, representatives, or agents shall have the right during the term of this Agreement and for three (3) years from the date of final payment for Services, to audit the books and records of Contractor for the purpose of verifying any and all charges made by Contractor in connection with Contractor compensation under this Agreement, including termination of Contractor. Contractor agrees to maintain sufficient books and records in accordance with generally accepted accounting pr inciples to establish the correctness of all charges submitted to Stadium Mana ger. Any expenses not so recorded shall be disallowed by Stadium Manager.
Contractor shall submit to Stadium Manager any and all reports concerning its performance under this Agreement that may be requested by Stadium Manager in writing. Contractor agrees to assist Stadium Manager in meeting Stadium Manager’ s reporting requirements with respect to Contractor’s Services hereunder.
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC 12 21. FAIR EMPLOYMENT.
Contractor shall not discriminate against any empl oyee or applicant for employment because of race, color, creed, national origin, gender, sexual orientation, age, disability, religion, ethnic background, or marital status, in violation of Applicable Law.
22. HOLD HARMLESS/INDEMNIFICATION.
A. Contractor shall indemnify, defend and hold harmless the Authority, Stadium Manager and the Additional Indemnitees, and their respective officers, directors, managers, members, partners, owners and employees (“ Indemnified Parties ”) from and against all losses, costs, suits, actions, claims, damages, amou nts paid in settlement, liabilities, costs and expenses, including reasonable attorneys’ fees (collectively, “ Losses”), resulting to, imposed upon, asserted against or incurred by any of them (including in any action between the parties) in connection with or arising out of (i) any breach by Contractor under this Agreement, (ii) any activity, inactivity, work or thing done or permitted by Contractor or its employees, agents or contractors in or upon the Stadium or Related Areas, including the performance of the Services, or (iii) any injury or damage to any Person or to the property of any Person caused by any action or omission of Contractor or its employees, agents or contractors.
B. If any claim, demand, action or proceeding is made or commenced by any third party (a “Third Party Claims ”) against any Indemnified Party, the Indemnified Party shall give Contractor prompt notice thereof; the failure to give such notice shall not affect the liability of Contractor under this Agreement except to the extent the failure materially and adversely affects the ability of Contractor to defend the Third Party Claim. Contractor shall have the right to assume the defense and resolution of the Third Party Claim, provided that (i) the Indemnified Party shall have the right to participate in the defense of the Third Party Claim at its own expense through counsel of its choice (control of the defense will remain with Contractor), (ii) Contractor shall not consent to the entry of any judgment or enter into any settlement that would require any act or forbearance on the part of the Indemnified Party or which does not unconditionally release the Indemnified Party from all liability in respect of the Third Party Claim or would otherwise bring dishonor or disrepute upon Authority, Stadium Manager, any of their respective Affiliates, without the prior written consent of the Indemnified Party, and (iii) the Indemnified Party may undertake the defense of the Third Party Claim, at Contractor’s expense, if Contractor fails to (A) assume the defense within ten (10) business days after notice from the Indemnified Party or (B ) diligently prosecute the defense.
23. INSURANCE REQUIREMENTS.
During the term of this Agreement, and for any time period set forth in Exhibit C, Contractor shall purchase and maintain in full force and effect, at no cost to Stadium Manager insurance policies with respect to employees and vehicles assigned to the performance of Services under this Agreement with coverage amounts, required en dorsements, certificates of insurance, and coverage verifications as defined in Exhibit C.
24. AMENDMENTS.
This Agreement may be amended only with the written consent of both Parties.
25. INTEGRATED DOCUMENT.
This Agreement represents the entire agreemen t between Stadium Manager and Contractor. No other understanding, agreements, conversations, or otherwise, with any representative of Stadium Manager prior to execution of this Agreement shall affect or modify any of the terms or obligations of this Agreement. Any verbal agreement shall be considered unofficial information and is not binding upon Stadium Manager.
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC 13 26. SEVERABILITY CLAUSE.
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal, or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.
27. WAIVER
Contractor agrees that waiver by Stadium Manager of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement
28. NOTICES.
All notices to the Parties shall, unless otherwise requested in writing, be sent to Stadium Manager addressed as follows:
Attention: Jim Mercurio, Vice President
Address: Forty Niners Stadium Management Company LLC
4900 Marie DeBartolo Way
Santa Clara, CA 95054
With a copy to: Legal Affairs
Forty Niners Stadium Management Company LLC
4949 Marie P. DeBartolo Way
Santa Clara, CA 95054
And to Contractor as follows:
Attention: Legal Department
Address: ICS Integrated Communication Systems
6680 Via del Oro
San Jose, CA 95119
If notice is sent via email, a signed, hard copy of the material shall also be mailed. The workday the email was sent shall control the date notice was deemed given if there is a computer-generated confirmation of receipt returned to the sender on the date of transmissi on. An email transmitted after 1:00 p.m. on a Friday shall be deemed to have been transmitted on the following Monday.
29. CAPTIONS.
The captions of the various sections, paragraphs, and subparagraphs of this Agreement are for convenience only and shall not be considered or referred to in resolving questions of interpretation.
30. LAW GOVERNING CONTRACT AND VENUE.
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.
31. DISPUTE RESOLUTION.
A. Unless otherwise mutually agreed to by the Parties, any controversies between Contractor and Stadium Manager regarding the constructi on or application of this Agreement, and claims arising out of this Agreement or its br each, shall be submitted to mediation within DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC 14 thirty (30) days of the written request of one Party after the service of that request on the other Party.
B. The Parties may agree on one mediator. If they cannot agree on one mediator, the Party demanding mediation shall request the Superior Court of Santa Clara County to appoint a mediator. The mediation meeting shall not ex ceed one day (eight (8) hours). The Parties may agree to extend the time allowed for mediation under this Agreement.
C. The costs of mediation shall be borne by the Parties equally.
D. For any contract dispute, mediation under this section is a condition precedent to filing an action in any court. In the event of mediation which arises out of any dispute related to this Agreement, the Parties shall each pay their re spective attorney’s fees, expert witness costs, and cost of suit through mediation only. In the event of litigation, the prevailing Party shall recover its reasonable costs of suit, expert’s fees, and attorney’s fees. If mediation does not resolve the dispute, the Parties agree that the matter shall be litigated in a court of law, and not subject to the arbitration provisions of the Public Contracts Code.
32. COMPLIANCE WITH ETHICAL STANDARDS.
Contractor shall:
A. Read Exhibit D, entitled “Ethical Standards for Contractors Seeking to Enter into an Agreement with Stadium Manager”; and
B. Execute Exhibit E, entitled “Affidavit of Compliance with Ethical Standards.”
33. CONFLICT OF INTERESTS.
This Agreement does not prevent either Party from entering into similar agreements with other parties. To prevent a conflict of interest, Contractor certifies that to the best of its knowledge, no Stadium Manager, StadCo, Team, Authority, or City officer, employee, or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Contractor is familiar with th e provisions of California Government Code Section 87100 and following, and certifies that it does not know of any facts which would violate these code provisions. Contractor will advise Stadium Manager if a conflict arises.
34. SUPPLEMENTAL PROVISIONS.
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives. Any terms contained in the attached Schedule 1 that contradict with terms contained elsewhere in this Agreement shall be resolved against the term contained in Schedule 1. It is the intent of the Parties that this Agreement shall become operative on the Effective Date.
[Signatures continued on next page]
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC
15 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly appointed representatives as of the Effective Date.
STADIUM MANAGER:
FORTY NINERS STADIUM MANAGEMENT COMPANY LLC, a Delaware limited liability company
By: _________________________________
Name: Jim Mercurio
Title: General Manager and VP, Stadium Operations
CONTRACTOR:
ICS INTEGRATED COMMUNICATION SYSTEMS a California corporation
By: _________________________________
Name:
Title:
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC
16 AGREEMENT FOR THE PERFORMANCE OF SERVICES
ADDENDUM ONE
DEFINITIONS
The following terms shall have the meanings set forth below:
Affiliate: shall mean any Person directly or indirectly controlling or controlled by or under direct or indirect common control with a Person. For purposes of this definition, “control” when used with respect to any entity means the power to direct the management an d policies of such entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and “controlling” and “controlled” have meanings correlative to the foregoing.
Additional Indemnitees : shall mean the Authority’s Affiliates (including without limitation, the Authority’s Board of Directors, t he City, its City Council, and all City or Agency commissions, officers, employees, volunteers and agents), the Bayshore North Project Enhancement Authority, the Successor Agency to the Santa Clara Redevelopment Agency, StadCo and its Affiliates, the Team and any Additional Team (i.e., an additional NFL franchise that plays its “home” games at the Stadium) (and their respective Affiliates), Manager’s Affiliates (if not any of the previously mentioned Persons), each other tenant of the Stadium and each Event promoter, and any mortgagee, bond trustee or other financial institution from time to time holding a lien or indenture upon Manager’s interest in the Stadium, the Stadium Lease or the Stadium Management Agreement.
Default Rate: shall mean a rate per annum equal to th e lesser of (i) fifteen percent (15.0%) and (ii) the maximum non-usurious rate permitted by applicable law.
Fiscal Year: shall mean the twelve (12) month period commencing April 1 of each year after the execution of this Agreement, except that the first Fi scal Year will commence on the Commencement Date of the Stadium Lease and end on the next following Marc h 31. If this Agreement expires or terminates on a date other than March 31 of a particular year, there shall be a partial last Fiscal Year ending on the date of such termination.
Hazardous Substance : shall mean, as of any date: (a) any petroleum or petroleum products, flammable explosives, radioactive mate rials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, and transformers or othe r equipment that contain dielectric fluid containing polychlorinated biphenyls (PCBs); (b) any chemicals or other materials or substances which as of such date are defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants,” “infectious wastes,” “pollutants” or words of similar import under any environmental law; and (c) any other chemical or other material or substance, exposure to which or use of which as of such date is prohibited, limited or regulated under any environmental law.
Person: shall mean any individual, corporation, partnership, limited liability company, association, trust or other entity whatsoever.
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC
17 EXHIBIT A
SCOPE OF SERVICES
Contractor shall provide the following services at the Stadium during the Term, as directed by Stadium Manager:
A. Overview
a. Contractor will provide Stadium Manager fire alarm testing, inspections, and maintenance services as specified in this Exhibit A and at the rates contained in Exhibit B, both of which are attached and incorporated into the Agreement, at Levi’s Stadium for a multiyear period beginning November 1, 2019 through March 31, 2023, as requested by Stadium Manager; provided however, if the services extend beyond a single fiscal year, the term for subsequent fiscal years shall be conditioned upon approval of the Santa Clara Stadium Authority budget for the applicable fiscal year that includes the amounts due under this Agreement. b. Testing, maintenance and inspection work will occur throughout the year at Levi’s Stadium located at 4900 Marie P. DeBartolo Way in Santa Clara, CA 95054. Testing, inspection and maintenance services are required on a recurring schedule. The Parties shall mutually agree upon the time and date for Contractor or a subcontractor of Contractor to perform and complete the Services at the Stadium during of the Term.
B. General Requirements
a. Contractor must possess the appropriate certif ication(s), and experience with the EST3 fire alarm systems to perform the Services. Contractor’s responsibilities will include performing fire alarm testing, inspection, and maintenance in ac cordance with both NFPA-72, California Fire Code, as they may be amended from time to time, and other applicable guidelines. Contractor’s will coordinate in advance with Stadium Manager all testing, inspection, and maintenance that Contractor performs under this Agreement.
b. Contractor will adhere to the prevailing wage and reporting requirements referenced in the Agreement and Exhibit G (“Prevailing Wage”), which is attached and incorporated into this Agreement.
c. Contractor shall perform the work described here in and shall furnish all labor, equipment, tools, special skills and materials required to perform the Services. d. Contractor shall provide Stadium Manager and maintain a current list of emergency numbers for 24-hour emergency response. Contractor shall in itiate remedial action with one (1) hour of notification. Stadium Manager will determine what circumstances constitute an emergency in its sole discretion.
C. Minimum Qualifications
a. Contractor must possess, and continue to possess throughout the Term, the following minimum qualifications to be perform the Services under this Agreement:
i. Current C-10 Electrical Contractor License;
ii. EST3 Fire Alarm certification;
iii. Knowledge regarding all other current alarm systems defined below; iv. State of California Fire/Life/Safety technician certification; v. State of California el ectrician certification;
vi. Knowledge regarding NFPA-72 and California Fire Code; vii. Successfully have provided similar Fire Alarm Testing, Maintenance and Inspection services for a minimum of five (5) years for public assembly venues with a capacity of at least 20,000 patrons utilizing EST3 fire alarm systems. viii. Contractor’s personnel providing onsite service must have a minimum of three (3) years’ experience in providing similar Fire Alarm Testing, Maintenance and Inspection DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC
18 services to public assembly venues referenced in item 7 above.
D. System Description
a. Contractor must be, and remain throughout the Term, knowledgeable regarding, and familiar with, EST3 fire alarm systems, including: modular hardware and software components, network components and rail modules (LRMs).
E. Preventive Maintenance
a. Contractor will be responsible for performing the work detailed in the Preventive Maintenance section of the EST3 Installation and Service Manual, referenced as Exhibit H (“Preventive Maintenance”), which is attached and incorporated into this Agreement . Contractor may propose additional testing and maintenance work to Stadium Manager based on contractor’s experience with similar systems, but such work will be subject to prior authorization by Stadium Manager. Contractor is responsible for being thoroughly familiar with the EST3 preventative maintenance requirements, as well as any other requiremen ts from the NFPA, and the California Fire Code, as they may be amended from time to time.
b. Unless Stadium Manager has existing stock or replacement parts, Contractor will provide necessary replacement of deficient or inoperable devices, including for those deficient or inoperable devices found during the course of system testing, inspection or preventative maintenance, or those devices that have failed during operation in connection with its maintenance responsibilities. Contractor must only use original replacement components manufactured by the original equipment manufacturer or other compatible components to preserve U.L. Listings and meet NFPA requirements.
F. Emergency Services & Onsite Response
a. Contractor will make emergency service respon se between scheduled tests available 24 hours a day/seven (7) days a week to minimize system down time. Stadium Manager will determine what circumstances constitute an emergency in its sole discretion. Contractor will provide support via a telephone response within (thirty) 30 minutes of being notified of an emergency, and Contractor’s service technicians shall be onsite within four (4) hours. Contractor will handle non-emergency calls, as determined by Stadium Manger, the next business day.
G. Levi’s Stadium Alarm Detail
a. Contractor will provide the Services, including fire alarm testing, inspection and maintenance work, for the fire alarm system devices referenced below and included as Exhibit F (“Levi’s Stadium Fire Alarm System Devices”), which is attached and incorporated into this Agreement, as well as for any other fire alarm system devices as directed by Stadium Manager.
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC
19 EXHIBIT B
CONTRACTOR COMPENSATION AND FEES
The pricing list below sets out the various services with corresponding prices that Contractor agrees to offer Stadium Manager during the term of this Agreement.
Item
#
Description November 1, 2019 –
March 31, 2021
Pricing
April 1, 2021 –
March 31, 2022
Pricing
April 1, 2022 –
March 31, 2023
Pricing
1 Semi-annual
inspection
$10,560.00 $11,232.00 $11,808.00
2 Annual fire alarm
inspection
$77,250.00 $81,900.00 $86,100.00
3 Hourly rates $150 / hour $155 / hour $160 / hour
6 Parts MSRP less 10% MSRP less 10% MSRP less 10%
The pricing list above will govern al l of services provided by Contractor to Stadium Manager during the Term. In no event shall the total fees paid under this Agreement during the Term exceed Two Hundred Thousand dollars ($200,000.00) during any fiscal year (ending each March 31) and Contractor shall have no obligation to provide the Services which would caus e the fees to exceed such amount unless mutually agreed upon by the Parties in writing. Notwithstanding the foregoing, the Parties acknowledge and agree that the pricing listed above may be required to change in accordance with applicable law.
Any and all additional costs, including taxes, shipping , handling, and any subcontractor costs, shall be at Contractor’s sole expense and Contractor shall have no right to invoice Stadium Manager or any third-party for any additional costs incurred by Contractor in the performance of the Services under this Agreement
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC
20 EXHIBIT C
INSURANCE REQUIREMENTS
At all times during the term hereof, Contractor shall keep and maintain in full force and effect the following types of insurance coverage and/or bonds:
1. Commercial general liability insurance, includin g property damage, against liability for personal injury, bodily injury, death and damage to property occurring in or about the property in the amount of One Million Dollars ($1,000,000) per occurren ce and Two Million Dollars ($2,000,000) in the aggregate.
2. Automobile liability in the amount of One Millio n Dollars ($1,000,000) with respect to owned, hired and non-owned vehicles.
3. Workers compensation insurance, as required by applicable law.
4. E mployer’s liability in the amount of One Million Dollars ($1,000,000) each accident, One Million Dollars ($1,000,000) each employee, by disease, and One Million Dollars ($1,000,000) policy aggregate by disease.
5. Liability insurance covering claims arising ou t of errors and omissions by vendors rendering professional services, in the amount of One Million Dollars ($1,000,000) each occurrence including contractual liability coverage, with all coverage retroactive to the earlier of the date of agreement or commencement of Contractor’s services.
6. Umbrella or excess liability insurance in the am ount of Two Million Dollars ($2,000,000) providing excess coverage over general liability, auto liability, and employer’s liability specified above.
The above stated limits may be achieved by a combination of primary and excess/umbrella coverage. Any deductible or self-insured retentio n amounts are the sole responsibility of the Contractor. Contractor is responsible for insuring any equipment brought to Stad ium. Stadium Manager shall have no liability for such equipment.
All insurance policies and bonds required to be maintain ed by Contractor shall be issued by insurers or sureties (as the case may be) reasonably satisfactory to client, authorized to do business in the state of California and having an AM Best rating and financial si ze category of A-/VII or better. All policies of the vendor shall be (i) primary and non-contributing with respect to any policies carried by client; (ii) with respect to liability insurance only, a provision including St adium Manager, Santa Clara Stadium Authority, Forty Niners SC Stadium Company LLC and Forty Niners Foot ball Company LLC as Additional Insured; (iii) a waiver by the insurer of any right to subrogate against Stadium Manager (iv) a severability of interest or endorsement; (v) a provision that the insurer will not cancel or change the coverage provided by such without giving the Stadium Manager thirty (30) days' pr ior written notice; and (vi) general liability be an "occurrence form" policy. Any policy of insurance required to be carried by Contractor that names Stadium Manager as Additional Insured shall not be subject to a deductible or self-insured retention, it being the intent of the parties that such insurance shall fully and completely insure such additional insured entities for all loss or expense; if any such policy has a deductible or self-insured retention clause applicable to these operations, Contractor shall provide evidence that insurance carrier shall pay without regard to such deductible or self-insured retention.
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC
21 EXHIBIT D
ETHICAL STANDARDS FOR CONTRACTORS SEEKING TO ENTER INTO AN AGREEMENT WITH
STADIUM MANAGER
Termination of Agreement for Certain Acts.
A. Stadium Manager may, at its sole discretion, terminate this Agreement in the event any one or more of the following occurs:
1. If a Contractor 1 does any of the following:
a. Is convicted 2 of operating a business in violation of any Applicable Law; b. Is convicted of a crime punishable as a felony involving dishonesty 3; c. Is convicted of an offense involving dishon esty or is convicted of fraud or a criminal offense in connection with: (1) obtaining; (2) attempting to obtain; or, (3) performing a public contract or subcontract;
d. Is convicted of any offense which indicates a lack of business integrity or business honesty which seriously and directly affects the present responsibility of a Stadium Manager contractor or subcontractor; and/or,
e. Made (or makes) any false statement(s) or representation(s) with respect to this Agreement.
2. If fraudulent, criminal or other seriously improper conduct of any officer, director, shareholder, partner, employee or other indi vidual associated with Contractor can be imputed to Contractor when the conduct occurred in connection with the individual’s performance of duties for or on behalf of Contractor, with Contractor’s knowledge, approval or acquiescence, Contractor’s acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval or acquiescence.
1 For purposes of this Agreement, the word “Consultant” (whether a person or a le gal entity) also refers to “Contractor” and means any of the following: an owner or co-own er of a sole proprietorship; a person who controls or who has the power to control a business entity; a general partner of a partnership; a principal in a joint venture; or a primary corporate stockholder [i.e., a person who owns more than ten percent (10%) of the outstanding stock of a corporation] and who is active in the day to day operations of that corporation.
2 For purposes of this Agreement, the words “convicted” or “conviction” mean a judgment or conviction of a criminal offense by any court of competent jurisdiction, wh ether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere within the past five (5) years.
3 As used herein, “dishonesty” includes, but is not limited to, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, failure to pay tax obligations, receiving stolen property, collusion or conspiracy.
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC
22 B. Stadium Manager may also terminate this Agreemen t in the event any one or more of the following occurs:
1. Stadium Manager determines that Contract or no longer has the financial capability 4 or business experience5 to perform the terms of, or operate under, this Agreement; or
2. If Stadium Manager determines that Contractor fails to submit information, or submits false information, which is required to perform or be awarded a contract with Stadium Manager, including, but not limited to, Contractor’s failure to maintain a required State-issued license, failure to obtain a Stadium Manager business license (if applicable), or failure to purchase and maintain bonds and/or insurance policies required under this Agreement.
C. In the event a prospective Contractor (or bidder) is ruled ineligible (debarred) to participate in a contract award process or a contract is terminated pursuant to these provisions, Contractor may appeal the action to the Authority by filing a wri tten request with the Authority Secretary within ten (10) days of the notice given by Stadium Manager to have the matter heard. The matter will be heard within thirty (30) days of the filing of the appeal request with the Authority Secretary.
Contractor will have the burden of proof on the appeal. Contractor shall have the opportunity to present evidence, both oral and documentary, and argument.
4 Contractor becomes insolvent, tran sfers assets in fraud of creditors, makes an assignment for the benefit of creditors, files a petition under any section or chapter of the federal Bankruptcy Code (11 U.S.C.), as amended, or under any similar law or statute of the United States or any state thereof, is adjudged bankrupt or insolvent in proceedings under such laws, or a receiver or trustee is appointed for all or substantially all of the assets of Contractor.
5 Loss of personnel deemed essential by Stadium Manage r for the successful performance of the obligations of Contractor to Stadium Manager.
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC
EXHIBIT E
AFFIDAVIT OF COMPLIANCE WITH ETHICAL STANDARDS
I, ____________________, being first duly sworn, de pose and state I am ___________________ of ICS Integrated Communication Systems and I hereby stat e that I have read and understand the language, entitled “Ethical Standards” set forth in Exhibit D. I have the authority to make these representations on my own behalf or on behalf of the legal entity identified herein. I have examined appropriate business records, and I have made appropriate inquiry of those individu als potentially included within the definition of “Contractor” contained in Ethical Standards at footnote 1.
Based on my review of the appropriate documents an d my good-faith review of the necessary inquiry responses, I hereby state that neither the business entity nor any individual(s) belonging to said “Contractor” category (i.e., owner or co-owner of a sole propriet orship, general partner, pe rson who controls or has power to control a business entity, etc.) has been convicted of any one or more of the crimes identified in the Ethical Standards within the past five (5) years.
The above assertions are true and correct and are ma de under penalty of perjury under the laws of the State of California.
ICS INTEGRATED COMMUNICATION SYSTEMS a California corporation
By:
Name:
Title:
NOTARY’S ACKNOWLEDGMENT TO BE ATTACHED
Please execute the affidavit and attach a notary public ’s acknowledgment of execution of the affidavit by the signatory. If the affidavit is on behalf of a corpor ation, partnership, or other legal entity, the entity’s complete legal name and the title of the person signin g on behalf of the legal entity shall appear above.
Written evidence of the authority of the person executing this affidavit on behalf of a corporation, partnership, joint venture, or any other legal entity, other than a sole proprietorship, shall be attached.
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC
Exhibit F
LEVI’S STADIUM FIRE ALARM SYSTEM DEVICES
A. Contractor will perform the Services for the fi re alarm system devices listed below, as well as for any other fire alarm system devices as directed by Stadium Manager.
FIRE ALARM SYSTEM DEVICES LEVEL 100 BOWL SIDE TOWER SIDE Smoke Det. 54 61 231
Duct Det. 73 25 91
Heat Det. 0 12 10
Pull Station 0 0 0
Water Flow 6 12 8
PIV Valve 0 0 0
Valve Tamper 15 14 8
Control Relay 132 85 147
Monitor Module 24 34 58
TOTAL DEVICES - 1100 304 243 553
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC
EXHIBIT G
PREVAILING WAGE
The general prevailing rate of wage shall apply to this contract in accordance with the latest wage scale determination as set forth by the Department of Labor, Section 1770 to 1781 inclusive and section 1818 and 1817 inclusive of the Labor Code of the State of California and local laws thereto applicable, in the manner required by law, as ascertained, the general prevailing rate of wages and also the hourly rates for Saturday, Sunday, Holiday and overtime work, in the locality where this work is to be performed, for each craft, classification and type of workman or mechanic needed to perform the work of this project, as adopted by Resolution 79-83, and has published this wage scale in accordance with Section 1773 and 1773.2 of the said Labor Code, which scale will become a part of the contract. A copy of this wage scale may also be obtained from the office of the Director of Industrial relations, State of California, or http://www.dir.ca.gov/DLSR/PWD/mer.xls.
It shall be mandatory upon the Vendor to whom the contract is awarded, and upon all subcontractor under him, to ascertain and pay not less than the latest general prevailing hourly rates for Saturday, Sunday, Holidays, and overtime work for each workman or mechanic employed in the execution of the work of this project as per determination made by the Director of Industrial Relations, California Labor Code, Part 7, Chapter 1, Article 2, Sections 1770, 1773, and 1773.1.
No Bidder or Subcontractor may be listed on a bid proposal for a public works project (submitted on or after March 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)]. No Bidder or Subcontractor may be awarded a contract for public work on a public works project (awarded on or after April 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC
EXHIBIT H
PREVENTIVE MAINTENANCE
DocuSign Envelope ID: 49B8C668-8591-4FC1-9CD3-F655DE75F9AC