Begin Regulation
552.238-87 DELIVERY PRICES (MAY 2019)
47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 149 of 155
ATTACHMENT A 686
(a) Prices offered must cover delivery as provided below to destinations located within the 48 contiguous States and the District of Columbia.
(1) Delivery to the door of the specified Government activity by freight or express common carriers on articles for which store-door delivery is provided, free or subject to a charge, pursuant to regularly published tariffs duly filed with the Federal and/or State regulatory bodies governing such carrier; or, at the option of the Contractor, by parcel post on mailable articles, or by the Contractor's vehicle. Where store-door delivery is subject to a charge, the Contractor shall place the notation “Delivery Service Requested” on bills of lading covering such shipments, and pay such charge and add the actual cost thereof as a separate item to his invoice. (2) Delivery to siding at destinations when specified by the ordering office, if delivery is not covered under paragraph (a)(1) of this section.
(3) Delivery to the freight station nearest destination when delivery is not covered under paragraph (a)(1) or (2) of this section.
(b) The Offeror shall indicate in the offer whether or not prices submitted cover delivery f.o.b. destination in Alaska, Hawaii, and the Commonwealth of Puerto Rico. (c) When deliveries are made to destinations outside the contiguous 48 States; i.e., Alaska, Hawaii, and the Commonwealth of Puerto Rico, and are not covered by paragraph (b), above, the following conditions will apply:
(1) Delivery will be f.o.b. inland carrier, point of exportation (FAR 52.247-38), with the transportation charges to be paid by the Government from point of exportation to destination in Alaska, Hawaii, or the Commonwealth of Puerto Rico, as designated by the ordering office. The Contractor shall add the actual cost of transportation to destination from the point of exportation in the 48 contiguous States nearest to the designated destination. Such costs will, in all cases, be based upon the lowest regularly established rates on file with the Interstate Commerce Commission, the U.S. Maritime Commission (if shipped by water), or any State regulatory body, or those published by the U.S. Postal Service; and must be supported by paid freight or express receipt or by a statement of parcel post charges including weight of shipment. (2) The right is reserved to ordering agencies to furnish Government bills of lading.
Begin Regulation
552.238-97 PARTS AND SERVICE (MAY 2019)
(a) For equipment under items listed in the schedule of items or services on which offers are submitted, the Contractor represents by submission of this offer that parts and services (including the performing of warranty or guarantee service) are now available from dealers or distributors serving the areas of ultimate overseas destination or that such facilities will be established and will be maintained throughout the contract period. If a new servicing facility is to be established, the facility shall be established no later than the beginning of the contract period. (b) Each Contractor shall be fully responsible for the services to be performed by the named servicing facilities, or by such facilities to be established, and fully guarantees performance of such services if the original service proves unsatisfactory.
(c) Contractors are requested to provide the Ordering Activity, the names and addresses of all supply and service points maintained in the geographic area in which the Contractor will perform. Please indicate opposite each point whether or not a complete stock of repair parts for items offered is carried at that point, and whether or not mechanical service is available. 47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 150 of 155
ATTACHMENT A 687
Begin Regulation
552.238-98 CLAUSES FOR OVERSEAS COVERAGE (MAY 2019)
(a) 52.214-34 Submission of Offers in the English Language (b) 52.214-35 Submission of Offers in U.S. Currency
(c) 552.238-90 Characteristics of Electric Current
(d) 552.238-91 Marking and Documentation Requirements Per Shipment (e) 552.238-97 Parts and Service
(f) 552.238-99 Delivery Prices Overseas
(g) 552.238-100 Transshipments
(h) 552.238-101 Foreign Taxes and Duties
(i) 52.247-34 FOB Destination
(j) 52.247-38 FOB Inland Carrier, Point of Exportation
(k) 52.247-39 FOB Inland Point, Country of Importation
Begin Regulation
552.238-99 DELIVERY PRICES OVERSEAS (MAY 2019)
(a) Prices offered must cover delivery to destinations as provided as follows:
(1) Direct delivery to consignee. F.O.B. Inland Point, Country of Importation (FAR 52.247-39). (Offeror should indicate countries where direct delivery will be provided.) (2) Delivery to overseas assembly point for transshipment when specified by the ordering activity, if delivery is not covered under paragraph (1), above. (3) Delivery to the overseas port of entry when delivery is not covered under paragraph (a)(1) or (2) of this section.
(b) Geographic area(s)/countries/zones which are intended to be covered must be identified in the offer.
Begin Regulation
552.246-78 INSPECTION AT DESTINATION (JUL 2009)
Inspection of all purchases under this contract will be made at destination by an authorized Government representative.
Begin Regulation
47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 151 of 155
ATTACHMENT A 688
I-FSS-973 PAYMENTS BY NON-FEDERAL ORDERING
ACTIVITIES (DEC 2022)
If eligible non-federal ordering activities are subject to a State prompt payment law, the terms and conditions of the applicable State law apply to the orders placed under this contract by such activities. If eligible non-federal ordering activities are not subject to a State prompt payment law, the terms and conditions of the Federal Prompt Payment Act as reflected in GSAR clause 552.212-4, Contract Terms and Conditions—Commercial Products and Commercial Services, apply to such activities in the same manner as to Federal ordering activities.
47QSMD20R0001 Refresh: 0021 Section III B. Terms and Conditions Related to the Performance of an Order Page: 152 of 155
ATTACHMENT A 689
Section IV. List of Attachments
This section outlines the attachments, templates, and supplemental documents that are part of this solicitation.
The purpose and location of each document is stated below.
Offerors must review and submit the most recent version of the documents with their offer. Offers that do not include the most recent version of attachments will not be accepted.
A. Solicitation Requirements and Informational Documents - Found in FBO and eOffer as part of the solicitation package.
o Consolidation Determination - The senior procurement executive determination that MAS consolidation is necessary and justified as the benefits substantially exceed the benefits that would be derived from alternative approaches.
-This attachment is included in accordance with GSAM 507.107-5 and will only be published with the initial solicitation, the document will not be attached to any subsequent refreshes to the solicitation.
o Available Offerings Summary
o Category Attachments (1 attachment for each large category) - Listing of Special Item Numbers, relevant NAICS and corresponding SIN information. Unique category evaluation criteria or terms and conditions are included in the category attachments. o IBR Full Text Clauses Document
B. Required Offer Documents found at ‘MAS Scope and Templates’ GSA.gov page (www.gsa.gov/masscopeandtemplates)
o Price Proposal Template (excel format only) - The price proposal is a mandatory offer document.
For ease of use, we have divided the price proposal into relevant offering categories. You only need to fill out the price proposal template or templates relevant to your offerings. Each attachment can be found on the ‘MAS Scope and Templates’ GSA.gov page. a) Products
b) Services and Training
c) Travel
d) Transportation and Logistics Services
o CSP-1 (not applicable to TDR)
C. Incorporated by Reference - Found on the GSA.gov ‘MAS Scope and Templates’ page (www.gsa.gov/masscopeandtemplates)
o Wage Determinations are applicable to services that fall under the Service Contract Labor Standards Act. These wage determinations are incorporated by reference into your Schedule contract at the time of award. Wage determinations are updated annually on Schedule contracts via a mass modification.
a. Standard Wage Determinations
b. Non-Standard Wage Determinations
c. Unpublished Wage Determinations
D. Required as Applicable Offer Documents - These documents require action on the part of the offeror.
Some documents are completed directly in eOffer and others are completed offline and uploaded into eOffer prior to offer submission. Requirements are set forth in SCP-FSS-001 and in each large category attachment.
Templates that can be filled out and completed within the eOffer System (if applicable):
o Service Contract Labor Standards (SCLS) also known as the Service Contract Act (SCA) labor 47QSMD20R0001 Refresh: 0021 Section IV. List of Attachments Page: 153 of 155
ATTACHMENT A 690
matrix - Required for SCLS applicable offers.
o Subcontracting Plan - Required for other than small businesses. Information is completed in eOffer, but a copy must be downloaded, signed and also attached to eOffer. Template can be found on the GSA.gov ‘MAS Scope and Templates’ page (www.gsa.gov/masscopeandtemplates) Templates provided on the GSA.gov ‘MAS Scope and Templates’ page (www.gsa.gov/masscopeandtemplates)
o Letter of Supply - required if you are providing products that you do not manufacture o Agent Authorization Letter
E. Category Specific Attachments and Templates - Depending on the products or services your company would like to offer, additional attachments may be required as part of your offer submission. Large categories, subcategories and SINs that require submission of additional attachments with your offer are outlined in the large category attachments.
All category specific attachments, templates and additional requirements can be found on the ‘MAS Scope and Templates’ page (www.gsa.gov/masscopeandtemplates). 47QSMD20R0001 Refresh: 0021 Section IV. List of Attachments Page: 154 of 155
ATTACHMENT A 691
47QSMD20R0001 Refresh: 0021 Section IV. List of Attachments Page: 155 of 155
ATTACHMENT A 692
1 GENERAL SERVICES ADMINISTRATION
Federal Acquisition Service
Authorized Federal Supply Schedule FSS Price List
On-line access to contract ordering information, terms and conditions, up-to-date pricing, and the option to create an electronic delivery order are available through GSA Advantage!®, a menu-driven database system. The INTERNET address GSA Advantage!® is: GSAAdvantage.gov.
Multiple Award Schedule
FSC Group: Large Category F – Information Technology
Contract number: GS-35F-408AA
Contract period: May 31, 2023 through May 30, 2028
e-Builder, Inc.
13450 W. Sunrise Blvd, Suite 600
Sunrise, FL 33323
(P) 754-755-8727
(F) 954-792-5949
http://www.e-Builder.net
Contract administration source [email protected] Business size: Other than Small
For more information on ordering go to the following website: https://www.gsa.gov/schedules.
Price list current as of Modification #PA-0045 effective July 28, 2023 Prices Shown Herein are Net (discount deducted)
ATTACHMENT A 693
2 OVERVIEW
Company Background
e-Builder is the leading provider of fully integrated, cloud-based construction program management software for top facility owners and organizations that act on their behalf. The company’s flagship product, e-Builder Enterprise, improves capital project execution resulting in increased productivity and quality, reduced cost, and faster project delivery. Since 1995, e-Builder’s technology leadership and construction industry focus has provided thousands of global companies, government agencies, and healthcare and educational institutions managing billions of dollars in capital programs with solutions to improve the plan, build and operate lifecycle. The company is privately held and headquartered in Fort Lauderdale, Florida.
Earned Prestige and Trust
e-Builder is trusted by many of the largest facility Owners and Program Managers managing capital construction project portfolios in excess of $100 billion to provide a reliable, cost effective and flexible platform for strategically managing cost, schedule and scope information from planning to occupancy. e-Builder provides these organizations with an auditable control mechanism to meet today’s regulatory requirements.
Accessible and Responsive Team
e-Builder prides itself in being accessible to our clients and responding to their needs as part of our product roadmap definition. More than 75% of our enhancement requests come from clients. e-Builder’s leadership team is available to address issues or concerns quickly.
Experience in the Construction Industry
Our team consists of seasoned experts with vast experience implementing our software throughout the world. The e-Builder team is experienced in the development, implementation, deployment, training and support of complex construction program management systems. We do not subcontract these functions.
Our direct experience affords us a unique understanding of what it takes to deliver a successful implementation and results in our clients achieving their stated goals. e-Builder’s focus and experience has always been on the construction industry, as opposed to generic project management systems. We have not ventured, nor do we plan to venture, outside of this space. e-Builder Enterprise™ Product Overview
e-Builder Enterprise is a fully integrated cloud-based construction program management software system for owners managing capital projects. The system is designed to address the specific needs of these owners from planning stages through occupancy or operation. e-Builder Enterprise connects all of the internal and external stakeholders to efficiently manage documents, schedule, and communications across all of the projects in the organization. Developed and continuously refined since 1995 with input from thousands of users, e-Builder Enterprise is the most innovative, functionally-rich and easiest-to-use construction program management software system of its kind. Whether you are managing a single project, multiple projects, or multiple programs each with several projects, e-Builder Enterprise provides one integrated system to manage the cost, schedule and scope of each project as it moves from planning to occupancy. The system is modular, and entirely accessible and configurable via the Internet making it the fastest system to deploy. More than 5,000 companies and government agencies involved in capital construction planning, design, construction and operations leverage e-Builder to improve capital project execution. The results are increased productivity, accountability, and much tighter control over costs and schedule, which ultimately reduces costs and speeds time to market.
ATTACHMENT A 694
3 CUSTOMER INFORMATION
1a. Table of awarded special item number(s) with appropriate cross-reference to item descriptions and awarded price(s).
SINs SIN Title
54151S Information Technology (IT) Professional
Services
54151ECOM Electronic Commerce and Subscription Services OLM Order-Level Materials (OLM’s)
1b. Identification of the lowest priced model number and lowest unit price for that model for each special item number awarded in the contract. This price is the Government price based on a unit of one, exclusive of any quantity/dollar volume, prompt payment, or any other concession affecting price. Those contracts that have unit prices based on the geographic location of the customer, should show the range of the lowest price, and cite the areas to which the prices apply. See attached GSA Pricelist 1c. If the Contractor is proposing hourly rates, a description of all corresponding commercial job titles, experience, functional responsibility and education for those types of employees or subcontractors who will perform services shall be provided. If hourly rates are not applicable, indicate “Not applicable” for this item. See attached GSA Pricelist
2. Maximum order:
SINs Maximum Order
54151S $500,000
54151ECOM $500,000
OLM $250,000
3. Minimum order: $100
4. Geographic coverage (delivery area). Domestic Delivery
5. Point(s) of production (city, county, and State or foreign country). 13450 W. Sunrise Blvd, Suite 600, Sunrise, FL 33323
6. Discount from list prices or statement of net price. Government Net Prices (discounts deducted.)
7. Quantity discounts. Additional 1% discount on single task orders over $250,000
8. Prompt payment terms. 0%, Net 30 Days. Information for Ordering Offices: Prompt payment terms cannot be negotiated out of the contractual agreement in exchange for other concessions.
9. Foreign items (list items by country of origin). Not Applicable 10a. Time of delivery. (Contractor insert number of days.) To Be Determined at the Task Order level ATTACHMENT A 695
4 10b. Expedited Delivery. Items available for expedited delivery are noted in this price list.
To Be Determined at the Task Order level
10c. Overnight and 2-day delivery. To Be Determined at the Task Order level 10d. Urgent Requirements. Customers are encouraged to contact the contractor for the purpose of requesting accelerated delivery
11. F.O.B. point(s). Destination
12a. Ordering address(es).
e-Builder, Inc.
13450 W. Sunrise Blvd, Suite 600
Sunrise, FL 33323
(P) 754-755-8727
(F) 954-792-5949
12b. Ordering procedures: See Federal Acquisition Regulation (FAR) 8.405-3.
13. Payment address(es).
e-Builder, Inc.
13450 W. Sunrise Blvd, Suite 600
Sunrise, FL 33323
(P) 754-755-8727
(F) 954-792-5949
14. Warranty provision. Refer to e-Builder, Inc.’s Service Agreement as attached
15. Export packing charges, if applicable. Not Applicable
16. Terms and conditions of rental, maintenance, and repair (if applicable). Not Applicable
17. Terms and conditions of installation (if applicable). Not Applicable 18a. Terms and conditions of repair parts indicating date of parts price lists and any discounts from list prices (if applicable). Not Applicable
18b. Terms and conditions for any other services (if applicable). Not Applicable
19. List of service and distribution points (if applicable). Not Applicable
20. List of participating dealers (if applicable). Not Applicable
21. Preventive maintenance (if applicable). Not Applicable ATTACHMENT A 696
5 22a. Special attributes such as environmental attributes (e.g., recycled content, energy efficiency, and/or reduced pollutants). Not Applicable
22b. If applicable, indicate that Section 508 compliance information is available for the information and communications technology (ICT) products and services and show where full details can be found (e.g. contractor’s website or other location.) ICT accessibility standards can be found at:
https://www.Section508.gov/. As Applicable
23. Unique Entity Identifier (UEI) number. XLRUKJJEFMD1
24. Notification regarding registration in System for Award Management (SAM) database. Contractor registered and active in SAM, Cage Code 1XMU0
Service Contract Labor Standards: The Service Contract Labor Standards (SCLS), formerly known as the Service Contract Act (SCA), is applicable to this contract as it applies to the entire Multiple Award Schedule (MAS) and all services provided. While no specific labor categories have been identified as being subject to SCLS/SCA due to exemptions for professional employees (FAR 22.1101,
22.1102 and 29 CRF 541.300), this contract still maintains the provisions and protections for SCLS/SCA eligible labor categories. If and / or when the contractor adds SCLS/SCA labor categories to the contract through the modification process, the contractor must inform the Contracting Officer and establish a SCLS/SCA matrix identifying the GSA labor category titles, the occupational code, SCLS/SCA labor category titles and the applicable WD number. Failure to do so may result in cancellation of the contract.
Attachments to follow:
e-Builder, Inc.’s Service Agreement, as referred to in line 14, pg. 6-7 GSA Awarded Pricelist, as referred to in 1b. and 1c., pg. 8-13 ATTACHMENT A 697
E-BUILDER
SERVICE AGREEMENT
e-Builder, Inc. whose address is 1800 NW 69th Avenue, Suite 201, Plantation, FL 33313 ("e-Builder") and Ordering Activity, as defined in GSA Order ADM4800.2G and as revised from time to time (“Customer”), enter into this e-Builder Service Agreement (the “Service Agreement”). In the event of a conflict between any terms and conditions in this Service Agreement and the terms and conditions of the GSA Schedule 70 contract, the terms and conditions of the MAS contract shall control. The work to be performed for an “Ordering Activity” may be contained in one or more “Task Orders.”
1. TERM. This Agreement shall continue for the period purchased by the Ordering Activity as set forth in the relevant task order.
2 SERVICES.
2.1 Services. e-Builder agrees to provide the services described in the relevant Task Order (the “Services”) to Customer subject to the terms and conditions of this Agreement, in consideration for the payments set out therein. Customer acknowledges that e-Builder Enterprisetm software may be modified or upgraded from time to time, and that “Services” and ‘Customer Support” provided to Customer shall only include the use of the most recent version of e-Builder Enterprisetm.
2.2 License of Software. Customer’s right to use the Services (including, without limitation, the limited license to use eBuilder Enterprisetm software), is limited to the restrictions contained herein, including those related to the number of users, projects, annual capital program expenditures and/or period of use. The Customer acknowledges that title to and copyright in the software applications supplied by e-Builder (including e-Builder Enterprisetm) are reserved by e- Builder.
Customer acquires no right in any software, copyrights, patents or any other intellectual property belonging to or licensed by e-Builder, other than the specific limited rights to the Services. e-Builder is and shall remain the sole owner of all copyrights, trademarks, patents and other proprietary rights in and to all aspects of the Services (including, without limitation, all software, code and designs used in providing theServices).
3. 4. WARRANTIES
4.1 Representations. Customer represents, warrants and covenants the following to e-Builder: (i) Customer currently possesses all necessary licenses, permits, insurance and approvals required validly to execute, deliver and perform its duties under this Agreement and is qualified to do business in all jurisdictions where such qualification is required for Customer's performance of its duties under this Agreement, (ii) To the best of its knowledge and ability, Customer will comply with, and will use its best efforts to cause each subcontractor it may engage to comply with all applicable federal and state laws and regulations in performing its and their respective responsibilities under this Agreement and any subcontracts, and (iii) No information provided to e-Builder or disseminated through its software or systems shall infringe on or violate any trademark, copyright, trade secret, right of publicity or privacy (including but not limited to defamation), patent or other proprietary right of any third party.
4.2 Disclaimer of Warranty and Limitations of Liability. E-BUILDER DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM E-BUILDER’S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW
DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF).
ALTHOUGH E-BUILDER WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT
DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, E-BUILDER CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, E-BUILDER DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCHEVENTS.
EXCEPT FOR THE WARRANTIES SPECIFICALLY AND EXPRESSLY MADE HEREIN AND ANY WARRANTIES SPECIFICALLY PROVIDED IN THE GSA SCHEDULE 70 CONTRACT, E-BUILDER MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED, AND ALL SUCH WARRANTIES ARE DISCLAIMED.
FOR ANY ONE OR MORE BREACH OF THIS AGREEMENT OR DEFAULT HEREUNDER, THE ENTIRE
LIABILITY OF THE PARTY IN BREACH OR DEFAULT, AND THE EXCLUSIVE REMEDY OF THE OTHER
PARTY, SHALL BE PAYMENT OF THE ACTUAL DAMAGES PROXIMATELY CAUSED BY SUCH BREACH OR DEFAULT, WHICH SHALL NOT EXCEED THE AMOUNT OF ONE (1) MONTH’S FEES PAID BY CUSTOMER HEREUNDER. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOSSES, OR EXPENSES,
INCLUDING, WITHOUT LIMITATION, LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS OR
ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT. THESE LIMITATIONS ON THE LIABILITY OF EITHER PARTY SHALL APPLY TO ANY AND
ALL CAUSES OF ACTION THAT EITHER PARTY MAY HAVE AGAINST THE OTHER, IRRESPECTIVE OF
THE NATURE OF THE CAUSE OF ACTION UNDERLYING A CLAIM, DEMAND OR ATTACHMENT A 698
ACTION, INCLUDING, WITHOUT LIMITATION, WHETHER IT SOUNDS IN CONTRACT OR TORT, BUT SHALL NOT APPLY TO OR LIMIT SUMS DUE HEREUNDER TO E-BUILDER FOR SERVICES. This clause shall not impair the U.S. Government’s right to recover for fraud or crimes arising out of or related to this Contract under any federal fraud statute, including the False Claims Act, 31 U.S.C. §§ 3729-3733. Furthermore, this clause shall not impair nor prejudice the U.S. Government’s right to express remedies provided in the GSA Schedule 70 contract (e.g., clause 552.238-75 – Price Reductions, clause 52.212-4(h) – Patent Indemnification, and GSAR 552.215-72 – Price Adjustment – Failure to Provide Accurate Information).
4.3 Indemnity. e-Builder agrees to indemnify and hold harmless the Customer (for services rendered under a Task Order, as applicable), , its officers, directors, employees or agents from and against any claims made upon it by any third party, arising out of information or software provided by it or actions of its employees, agents orinvitees.
5. AUDIT RIGHTS. e-Builder will have the right, during normal business hours and upon at least five (5) days prior written notice, to have an independent audit firm selected by e-Builder audit Customer’s records relating to Customer’s activities pursuant to this Service Agreement in order to verify that Customer has complied with the terms of this Agreement Such audits will be conducted no more than once in any period of twelve (12) consecutive months, and e- Builder will adhere to any security measures required by the OrderingActivity.
6. CONFIDENTIALITY. Confidential Information refers to all nonpublic information provided by one party to the other, but it does not include this Service Agreement. The Parties agree that, except to the extent necessary to implement the terms and conditions of this Agreement, when authorized in writing by the other Party or when otherwise required by law: (i) each Party will preserve and protect the confidentiality of the other Party's Confidential Information; (ii) neither Party will disclose to any third party the existence, source, content or substance of the other Party's Confidential Information, or make copies of such Confidential Information except as required by this Agreement; (iii) neither Party will deliver the other Party's Confidential Information to any third party, or permit such information to be removed from the premises of the Party receiving such information; and (iv) each Party shall advise any of its employees or agents working on or having access to the other Party's Confidential Information of the confidentiality of suchinformation.
7. MISCELLANEOUS
7.1 Governing Law and Venue. This Agreement shall be governed by and interpreted in all respects in accordance with the laws of the United States.
7.2 Notices. All notices required or permitted to be sent pursuant to this Agreement shall, unless otherwise specifically provided, be in writing and shall be deemed given when delivered personally or by facsimile, overnight air courier or certified mail (postage prepaid, return receipt requested), to the addresses shown above or such other substitute address designated in writing.
7.3 Force Majeure. Notwithstanding any other provision of this Agreement, if by reason of Force Majeure, any Party is unable to perform certain of its obligations under this Agreement it shall be automatically relieved of those obligations to the extent, and for the period of time, that such Party is prevented from meeting them by Force Majeure.
E-BUILDER, INC. “Customer”
By: By:
Title: Title:
Date: Date:
ATTACHMENT A 699
e‐Builder, Inc.
Awarded GSA Pricelist
SIN
Labor Category /Service Title Functional Responsibility Minimum
Experience
Minimum
Education UOI GSA PRICE WARRANTY COO
54151S Project Manager II
Coordinate day‐to‐day activities of a project implementation team of business analysts. Manages scope, schedule, and financials for each project. Responsible for measuring and reporting keyimplementation related KPIs to internal and customer stakeholders. 6 Bachelors Hour $ 160.81 Standard
Warranty US
54151S Business Analyst
Responsible for requirements gathering, documentation, andconfiguration of e‐Builder Enterprise. Works with stakeholders to develop and execute UAT strategies. Creates and distributes meeting minutes, status reports, and required documentation to projectstakeholders. 2 Bachelors Hour $ 145.49 Standard
Warranty US
54151S Software Engineer
Participates in all aspects of product and client specific custom software development from requirements analysis through productrelease. Assists with testing strategies and evaluation of expected results. Communicates status, risks, and other issues on software development projects. 2 Bachelors Hour $ 168.46
Standard
Warranty US
54151S Managed Services ‐ 25% FTE ‐ Tier 1
Design, configuration, documentation, and training of e‐Builder Enterprise. Work with stakeholders to develop and execute UAT strategies. 520 hours of service per year included in price. Work willbe done remotely. 2 Bachelors Annual 69,823.68 $ Standard
Warranty US
54151S Managed Services ‐ 50% FTE ‐ Tier 1
Design, configuration, documentation, and training of e‐Builder Enterprise. Work with stakeholders to develop and execute UAT strategies. 1040 hours of service per year included in price. Work willbe done remotely. 2 Bachelors Annual 129,672.54 $ Standard
Warranty US
54151S Managed Services ‐ 75% FTE ‐ Tier 1
Design, configuration, documentation, and training of e‐BuilderEnterprise. Work with stakeholders to develop and execute UAT strategies. 1560 hours of service per year included in price. Work willbe done remotely. 2 Bachelors Annual 179,546.60 $ Standard
Warranty US
54151S Managed Services ‐ 100% FTE ‐ Tier 1
Design, configuration, documentation, and training of e‐Builder Enterprise. Work with stakeholders to develop and execute UAT strategies. 2080 hours of service per year included in price. Work willbe done remotely. 2 Bachelors Annual 219,445.84 $ Standard
Warranty US
ATTACHMENT A
700
e‐Builder, Inc.
Awarded GSA Pricelist
SIN MFR MFR PART NO PRODUCT NAME PRODUCT DESCRIPTION UOI GSA PRICE WARRANTY COO 54151ECOM e‐Builder eB‐Ent‐GSA‐15‐Named eB‐Ent‐GSA‐15‐Named e‐Builder Enterprise GSA Bundle which includes core
platform and up to 15 named users. One year subscription license with auto renewal. Includes e‐Builder Enterprise 15 named, Business Intelligence Add‐on, and Data Warehouse Platform with up to 15 users
/ year $ 28,581.86
Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐15‐Named (on
AWS GovCloud)
eB‐Ent‐GSA‐15‐Named
(on AWS GovCloud)
e‐Builder Enterprise GSA Bundle hosted on AWS GovCloud
(ITAR & FedRAMP compliant) which includes core platform and up to 15 named users. One year subscription license with auto renewal. Includes e‐Builder Enterprise 15
named, AWS GovCloud Hosting, Business Intelligence Add‐ on, and Data Warehouse
Platform with up to 15 users
/ year $ 35,431.99
Standard
Warranty US
54151ECOM e‐Builder eB‐Ent‐GSA‐50‐Named eB‐Ent‐GSA‐50‐Named e‐Builder Enterprise GSA Bundle which includes coreplatform and up to 50 named users. One year subscription license with auto renewal. Includes e‐Builder Enterprise 50 named, Business Intelligence Add‐on, and Data Warehouse Platform with up to 50 users
/ year $ 59,032.75
Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐50‐Named (on
AWS GovCloud)
eB‐Ent‐GSA‐50‐Named
(on AWS GovCloud)
e‐Builder Enterprise GSA Bundle hosted on AWS GovCloud
(ITAR & FedRAMP compliant) which includes core platform and up to 50 named users. One year subscription licensewith auto renewal. Includes e‐Builder Enterprise 50 named, AWS GovCloud Hosting, Business Intelligence Add‐ on, and Data Warehouse
Platform with up to 50 users
/ year $ 75,571.79
Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐20M‐
Capital_Program
eB‐Ent‐GSA‐20M‐
Capital_Program
e‐Builder Enterprise GSA Bundle which includes core
platform and unlimited users for capital programs up to $20 million USD. One year subscription license with auto renewal. Includes e‐Builder Enterprise 20M Capital
Program, Business Intelligence Add‐on, and Data
Warehouse
Platform with unlimitedusers for up to $20 million in
capital program $ 45,843.83
Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐20M‐
Capital_Program (on AWS
GovCloud)
eB‐Ent‐GSA‐20M‐
Capital_Program (on
AWS GovCloud)
e‐Builder Enterprise GSA Bundle hosted on AWS GovCloud
(ITAR & FedRAMP compliant) which includes core platform and unlimited users for capital programs up to $20 million USD. One year subscription license with auto renewal.
Includes e‐Builder Enterprise 20M Capital Program, AWSGovCloud Hosting, Business Intelligence Add‐on, and Data Warehouse
Platform with unlimited
users for up to $20 million incapital program $ 58,186.40 Standard
Warranty US
ATTACHMENT A
701
SIN MFR MFR PART NO PRODUCT NAME PRODUCT DESCRIPTION UOI GSA PRICE WARRANTY COO 54151ECOM e‐Builder
eB‐Ent‐GSA‐50M‐
Capital_Program
eB‐Ent‐GSA‐50M‐
Capital_Program
e‐Builder Enterprise GSA Bundle which includes core
platform and unlimited users for capital programs up to $50 million USD. One year subscription license with autorenewal. Includes e‐Builder Enterprise 50M CapitalProgram, Business Intelligence Add‐on, and Data Warehouse
Platform with unlimited
users for up to $50 million incapital program $ 84,634.76 Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐50M‐
Capital_Program (on AWS
GovCloud)
eB‐Ent‐GSA‐50M‐
Capital_Program (onAWS GovCloud)
e‐Builder Enterprise GSA Bundle hosted on AWS GovCloud
(ITAR & FedRAMP compliant) which includes core platform and unlimited users for capital programs up to $50 million USD. One year subscription license with auto renewal.
Includes e‐Builder Enterprise 50M Capital Program, AWSGovCloud Hosting, Business Intelligence Add‐on, and Data Warehouse
Platform with unlimited
users for up to $50 million incapital program $ 109,319.90 Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐300M‐
Capital_Program
eB‐Ent‐GSA‐300M‐
Capital_Program
e‐Builder Enterprise GSA Bundle which includes core
platform and unlimited users for capital programs up to $300 million USD. One year subscription license with autorenewal. Includes e‐Builder Enterprise 300M Capital Program, Business Intelligence Add‐on, Sandbox, and Data Warehouse
Platform with unlimited
users for up to $300 millionin capital program $ 217,440.81 Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐300M‐
Capital_Program (on AWS
GovCloud)
eB‐Ent‐GSA‐300M‐
Capital_Program (onAWS GovCloud)
e‐Builder Enterprise GSA Bundle hosted on AWS GovCloud
(ITAR & FedRAMP compliant) which includes core platform and unlimited users for capital programs up to $300 million USD. One year subscription license with auto renewal.
Includes e‐Builder Enterprise 300M Capital Program, AWSGovCloud Hosting, Business Intelligence Add‐on, Shared Testing Environment, and Data Warehouse
Platform with unlimitedusers for up to $300 millionin capital program $ 277,425.69 Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐500M‐
Capital_Program
eB‐Ent‐GSA‐500M‐
Capital_Program
e‐Builder Enterprise GSA Bundle which includes core
platform and unlimited users for capital programs up to $500 million USD. One year subscription license with autorenewal. Includes e‐Builder Enterprise 500M Capital Program, Business Intelligence Add‐on, Shared Testing
Environment, and Data Warehouse
Platform with unlimitedusers for up to $500 millionin capital program $ 281,057.93 Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐500M‐
Capital_Program (on AWS
GovCloud)
eB‐Ent‐GSA‐500M‐
Capital_Program (onAWS GovCloud)
e‐Builder Enterprise GSA Bundle hosted on AWS GovCloud
(ITAR & FedRAMP compliant) which includes core platform and unlimited users for capital programs up to $500 million USD. One year subscription license with auto renewal.
Includes e‐Builder Enterprise 500M Capital Program, AWSGovCloud Hosting, Business Intelligence Add‐on, Shared Testing Environment, and Data Warehouse
Platform with unlimitedusers for up to $500 million
in capital program $ 361,284.63
Standard
Warranty US
ATTACHMENT A
702
SIN MFR MFR PART NO PRODUCT NAME PRODUCT DESCRIPTION UOI GSA PRICE WARRANTY COO 54151ECOM e‐Builder
eB‐Ent‐GSA‐1000M‐
Capital_Program
eB‐Ent‐GSA‐1000M‐
Capital_Program
e‐Builder Enterprise GSA Bundle which includes core
platform and unlimited users for capital programs up to $1000 million USD. One year subscription license with auto renewal. Includes e‐Builder Enterprise 1000M Capital
Program, Business Intelligence Add‐on, Shared Testing
Environment, and Data Warehouse
Platform with unlimitedusers for up to $1000 millionin capital program $ 370,277.08 Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐1000M‐
Capital_Program (on AWS
GovCloud)
eB‐Ent‐GSA‐1000M‐
Capital_Program (onAWS GovCloud)
e‐Builder Enterprise GSA Bundle hosted on AWS GovCloud
(ITAR & FedRAMP compliant) which includes core platform and unlimited users for capital programs up to $1000
million USD. One year subscription license with autorenewal. Includes e‐Builder Enterprise 1000M Capital Program, AWS GovCloud Hosting, Business Intelligence Add‐ on, Shared Testing Environment, and Data Warehouse
Platform with unlimitedusers for up to $1000 million
in capital program $ 478,891.69
Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐2000M‐
Capital_Program
eB‐Ent‐GSA‐2000M‐
Capital_Program
e‐Builder Enterprise GSA Bundle which includes core
platform and unlimited users for capital programs up to $2000 million USD. One year subscription license with auto renewal. Includes e‐Builder Enterprise 2000M Capital
Program, Business Intelligence Add‐on, Shared Testing
Environment, and Data Warehouse
Platform with unlimitedusers for up to $2000 million
in capital program $ 478,891.69
Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐2000M‐
Capital_Program (on AWS
GovCloud)
eB‐Ent‐GSA‐2000M‐
Capital_Program (onAWS GovCloud)
e‐Builder Enterprise GSA Bundle hosted on AWS GovCloud
(ITAR & FedRAMP compliant) which includes core platform and unlimited users for capital programs up to $2000
million USD. One year subscription license with auto
renewal. Includes e‐Builder Enterprise 2000M Capital
Program, AWS GovCloud Hosting, Business Intelligence Add‐ on, Shared Testing Environment, and Data Warehouse
Platform with unlimitedusers for up to $2000 million
in capital program $ 622,065.49
Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐3000M‐
Capital_Program
eB‐Ent‐GSA‐3000M‐
Capital_Program
e‐Builder Enterprise GSA Bundle which includes core
platform and unlimited users for capital programs up to $3000 million USD. One year subscription license with auto renewal. Includes e‐Builder Enterprise 3000M Capital
Program, Business Intelligence Add‐on, Shared Testing
Environment, and Data Warehouse
Platform with unlimitedusers for up to $3000 million
in capital program $ 575,869.02
Standard
Warranty US
54151ECOM e‐Builder
eB‐Ent‐GSA‐3000M‐
Capital_Program (on AWS
GovCloud)
eB‐Ent‐GSA‐3000M‐
Capital_Program (onAWS GovCloud)
e‐Builder Enterprise GSA Bundle hosted on AWS GovCloud
(ITAR & FedRAMP compliant) which includes core platform and unlimited users for capital programs up to $3000
million USD. One year subscription license with auto
renewal. Includes e‐Builder Enterprise 3000M Capital
Program, AWS GovCloud Hosting, Business Intelligence Add‐ on, Sandbox, and Data Warehouse
Platform with unlimitedusers for up to $3000 million
in capital program $ 749,899.24
Standard
Warranty US
ATTACHMENT A
703
SIN MFR MFR PART NO PRODUCT NAME PRODUCT DESCRIPTION UOI GSA PRICE WARRANTY COO 54151ECOM e‐Builder EB‐APPX‐SUB‐Platform EB‐APPX‐SUB‐Platform e‐Builder AppXchange platform subscription which includes up to 5 integatrion points. One year subscription license.
Requires EB‐APPX‐SVC‐1IP
e‐Builder AppXchange
Platform with up to 5
Integration Points $ 9,571.79
Standard
Warranty US
54151ECOM e‐Builder EB‐APPX‐SUB‐1IP EB‐APPX‐SUB‐1IP
Additional e‐Builder AppXchange subscription for 1
additional points. Requires EB‐APPX‐SVC‐1IP
Additional 1 Integration
Point $ 957.18
Standard
Warranty US
54151ECOM e‐Builder EB‐APPX‐SVC‐1IP EB‐APPX‐SVC‐1IP
One‐Time Fee For Implementation of for all AppXchange
Integration Points EA $ 2,010.08
Standard
Warranty US
54151ECOM e‐Builder eB‐FedRAMP‐15‐Named eB‐FedRAMP‐15‐Named e‐Builder FedRAMP which access up to 15 named users.
One year subscription license with auto renewal.
Includes e‐Builder FedRAMP 15 named, and Business
Intelligence Add-on.
Platform with up to 15 users/ year $ 46,214.11
Standard
Warranty US
54151ECOM e‐Builder eB‐FedRAMP‐50‐Named eB‐FedRAMP‐50‐Named e‐Builder FedRAMP which access up to 50 named users.
One year subscription license with auto renewal.
Includes e‐Builder FedRAMP 50 named, and Business
Intelligence Add-on.
Platform with up to 50 users/ year $ 82,659.95
Standard
Warranty US
54151ECOM e‐Builder
eB‐FedRAMP‐20M‐
Capital_Program
eB‐FedRAMP‐20M‐
Capital_Program
e‐Builder FedRAMP which access for unliimted named
users for capital programs up to $20 Million.
One year subscription license with auto renewal.
Includes e‐Builder FedRAMP 20M Capital Program,
and Business Intelligence Add‐on.
Platform with unlimitedusers for up to $20 million incapital program $ 63,476.07 Standard
Warranty US
54151ECOM e‐Builder
eB‐FedRAMP‐50M‐Capital_Program
eB‐FedRAMP‐50M‐
Capital_Program
e‐Builder FedRAMP which access for unliimted namedusers for capital programs up to $50 Million.
One year subscription license with auto renewal.
Includes e‐Builder FedRAMP 50M Capital Program,
and Business Intelligence Add-on.
Platform with unlimitedusers for up to $50 million in
capital program $ 119,899.24
Standard
Warranty US
ATTACHMENT A
704
SIN MFR MFR PART NO PRODUCT NAME PRODUCT DESCRIPTION UOI GSA PRICE WARRANTY COO 54151ECOM e‐Builder
eB‐FedRAMP‐300M‐
Capital_Program
eB‐FedRAMP‐300M‐
Capital_Program
e‐Builder FedRAMP which access for unliimted named
users for capital programs up to $300 Million.
One year subscription license with auto renewal.
Includes e‐Builder FedRAMP 300M Capital Program,
Business Intelligence Add‐on, and Shared Test Environment.
Platform with unlimited
users for up to $300 millionin capital program $ 314,065.49 Standard
Warranty US
54151ECOM e‐Builder
eB‐FedRAMP‐500M‐
Capital_Program
eB‐FedRAMP‐500M‐
Capital_Program
e‐Builder FedRAMP which access for unliimted named
users for capital programs up to $500 Million.
One year subscription license with auto renewal.
Includes e‐Builder FedRAMP 500M Capital Program,
Business Intelligence Add‐on, and Shared Test Environment.
Platform with unlimitedusers for up to $500 millionin capital program $ 406,599.50 Standard
Warranty US
54151ECOM e‐Builder
eB‐FedRAMP‐1000M‐
Capital_Program
eB‐FedRAMP‐1000M‐
Capital_Program
e‐Builder FedRAMP which access for unliimted namedusers for capital programs up to $1000 Million.
One year subscription license with auto renewal.
Includes e‐Builder FedRAMP 1000M Capital Program,
Business Intelligence Add‐on, and Shared Test Environment.
Platform with unlimitedusers for up to $1000 millionin capital program $ 536,372.80 Standard
Warranty US
54151ECOM e‐Builder
eB‐FedRAMP‐2000M‐
Capital_Program
eB‐FedRAMP‐2000M‐
Capital_Program
e‐Builder FedRAMP which access for unliimted named
users for capital programs up to $2000 Million.
One year subscription license with auto renewal.
Includes e‐Builder FedRAMP 2000M Capital Program,
Business Intelligence Add‐on, and Shared Test Environment.
Platform with unlimitedusers for up to $2000 millionin capital program $ 694,357.68 Standard
Warranty US
54151ECOM e‐Builder
eB‐FedRAMP‐3000M‐
Capital_Program
eB‐FedRAMP‐3000M‐
Capital_Program
e‐Builder FedRAMP which access for unliimted named
users for capital programs up to $3000 Million.
One year subscription license with auto renewal.
Includes e‐Builder FedRAMP 3000M Capital Program,
Business Intelligence Add‐on, and Shared Test Environment.
Platform with unlimited
users for up to $3000 millionin capital program $ 835,415.62 Standard
Warranty US
ATTACHMENT A
705
REV 2024-03-25
Exhibit B:
Insurance Requirements
(Information Technology)
Vendor/Consultant shall procure and maintain for the duration of the contract insurance against claims for security breaches, system failures, injuries to persons, damages to software, or damages to property (including computer equipment) which may arise from or in connection with the performance of the work hereunder by the Vendor, its agents, representatives, or employees. Vendor shall procure and maintain for the duration of the contract insurance claims arising out of their services and including, but not limited to loss, damage, theft or other misuse of data, infringement of intellectual property, invasion of privacy and breach of data.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
(Not required if consultant provides written verification it has no employees)
4. Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic ATTACHMENT A 706
REV 2024-03-25
information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses.
Technology Professional Liability Errors & Omissions
Technology Professional Liability Errors and Omissions Insurance appropriate to the Consultant’s profession and work hereunder, with limits not less than $2,000,000 per occurrence. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by the Vendor in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses. a. The Policy shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the Agency in the care, custody, or control of the Vendor.
If the Vendor maintains broader coverage and/or higher limits than the minimums shown above, the City of Stockton requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Stockton.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City of Stockton, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Vendor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used). Additional insured Name of Organization shall read “City of Stockton, its officers, officials, employees, and volunteers.” Policy shall cover City of Stockton, its officers, officials, employees, and volunteers for all locations work is done under this contract.
Primary Coverage
ATTACHMENT A 707
REV 2024-03-25
For any claims related to this contract, the Vendor’s insurance coverage shall be primary and non-contributory. Coverage for commercial liability shall be at least as broad as ISO CG 20 01 04 13 as respects the City of Stockton, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City of Stockton, its officers, officials, employees, or volunteers shall be excess of the Vendor’s insurance and shall not contribute with it. This requirement shall also apply to any Excess policies. The City of Stockton does not accept endorsements limiting the Vendor’s insurance coverage to the sole negligence of the Named Insured.
Umbrella or Excess Policy
The Vendor may use Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Vendor’s primary and excess liability policies are exhausted.
Notice of Cancellation
Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the City of Stockton.
Waiver of Subrogation
Vendor hereby grants to City of Stockton a waiver of any right to subrogation which any insurer of said Vendor may acquire against the City of Stockton by virtue of the payment of any loss under such insurance. Vendor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Stockton has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City of Stockton. The City of Stockton may require the Vendor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City of Stockton. The CGL and any policies, including Excess liability policies, may not be subject to a self-insured retention (SIR) or deductible that exceeds ATTACHMENT A 708
REV 2024-03-25
$25,000 unless approved in writing by City of Stockton. Any and all deductibles and SIRs shall be the sole responsibility of Vendor or subcontractor who procured such insurance and shall not apply to the Indemnified Additional Insured Parties. City of Stockton may deduct from any amounts otherwise due Vendor to fund the SIR/deductible. Policies shall NOT contain any self-insured retention (SIR) provision that limits the satisfaction of the SIR to the Named Insured. The policy must also provide that Defense costs, including the Allocated Loss Adjustment Expenses, will satisfy the SIR or deductible. City of Stockton reserves the right to obtain a copy of any policies and endorsements for verification.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A-:VII, unless otherwise acceptable to the City of Stockton.
Claims Made Policies (Professional & Pollution only)
If any of the required policies provide coverage on a claims-made basis:
1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Vendor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work.
Verification of Coverage
Vendor shall furnish the City of Stockton with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements and copies of the Declarations & Endorsements pages are to be received and approved by the City of Stockton before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Vendor’s obligation to provide them. The City of Stockton reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City of Stockton reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
ATTACHMENT A 709
REV 2024-03-25
Subcontractors
Vendor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Vendor shall ensure that City of Stockton is an additional insured on insurance required from subcontractors.
Special Risks or Circumstances
City of Stockton reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Certificate Holder Address
The address for mailing certificates, endorsements and notices shall be:
City of Stockton
Its Officers, Officials, Employees and Volunteers
400 E Main Street, 3rd Floor – HR
Stockton, CA 95202
ATTACHMENT A 710
ORDER FORM
Order Date: Date of the last signature below
Contract: Information Technology, Large Category, Contract Number GS-35F-408AA Trimble Entity Name
(“Trimble”) and Address:
e-Builder Inc. a Trimble company
13450 West Sunrise Blvd Suite 600, Sunrise, FL
Customer Entity Name
(“Customer”) and Address:
City of Stockton
Billing Contact Name and email Address:
Is a Purchase Order
Required?
Yes or No
Purchase orders issued by Customer are issued for administrative purposes only; terms and conditions contained in any such purchase order shall be null and void.
Is Customer Tax Exempt?
Is Customer a Public Entity?
Yes or No
Yes or No
Initial Term for the Annual
Software Subscription:
Twelve (12) months from the Order Date
Initial Term for the Annual
Managed Services Resource
Twelve (12) months from the Start Date of the Resource
Validity This Order Form shall expire on 12/01/2024 (the “Validity Date”). If this Order Form is not executed by the Customer by the Validity Date, Trimble reserves the right to not offer the pricing found in the Order Form.
Miscellaneous: The Addendums to this Order Form are in addition to the terms and conditions found in the Contract, GS-35F-408AA. In the event of a conflict between the Addendums and the Contract, the Addendums shall prevail.
Post-Termination Customer Data Extract. Upon termination or expiration of this Agreement, Trimble will retain Customer Data for 90 days (the “Retention Period”). During the Retention Period and upon Customer’s written request, Trimble will provide Customer with one (1) extract of all documents and files stored within its e-Builder instance free of charge via an S3 Bucket or other mutually agreeable format. After the Retention Period, all Customer Data will be sanitized in accordance with NIST 800-88 standards.
Roadmap Disclaimer. CUSTOMER AGREES THAT ITS PURCHASES ARE NOT CONTINGENT ON THE
DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, OR DEPENDENT ON ANY ORAL OR
WRITTEN PUBLIC COMMENTS MADE BY TRIMBLE REGARDING FUTURE FUNCTIONALITY OR FEATURES.
ATTACHMENT A 711
Annual Software Subscription:
SIN Part Number Product Description UOI Total Amount
54151ECOM eB‐Ent‐GSA‐50‐
Named
e‐Builder Enterprise GSA Bundle which includes core
platform and up to 50 named users. One year subscription license with auto renewal. Includes e‐Builder Enterprise 50 named, Business Intelligence Add‐on, and Data Warehouse
1.5 (75 Total
Users)
$88,549.13
N/A Open Market Automation Step Maintenance NA $6,000.00 1% GSA Discount ($945.49)
Total Annual Software Subscription $93,603.64
Professional Services
SIN Part Number Rate UOI Total Amount
54151S Project Manager II $160.81 179 Hours $28,784.99
54151S Business Analyst $145.49 631 Hours $91,804.19
54151S Software Engineer $168.46 4 Hours $673.84
1% GSA Discount ($1,212.63)
Total One Time Professional Services $120,050.39
Total Annual Managed Services:
SIN Part Number Product Description UOI Annual Amount
54151S Managed Services ‐ 25%
FTE ‐ Tier 1
Design, configuration, documentation, and training of e‐ Builder Enterprise. Work with stakeholders to develop
and execute UAT strategies. 520 hours of service per year included in price. Work will be done remotely.
1 $69,823.68
1% GSA Discount ($698.24)
Total Annual Managed Services $69,125.44
Addendums:
1. Annual Software Subscription Details
2. Trimble General Transaction Terms (the “General Terms”)
3. Supplemental Terms for Software and Subscriptions (the “Software Terms”)
4. Supplemental Terms for Support and Maintenance (the “Support Terms”)
5. Supplemental Terms for Services (the “Services Terms”)
6. Supplemental Terms for Hardware (the “Hardware Terms”)
7. Supplemental Terms for U.S. Public Entities
ATTACHMENT A 712
8. Availability Service Level Agreement; Data Security and Restoration
9. Statement of Work
TERMS AND CONDITIONS
1. Terms and Conditions. All offerings are made available by Trimble subject to the terms and conditions set forth in this Order and the above referenced Addendums.
2. AUTOMATIC RENEWALS. This Order will automatically renew for subsequent 12 month term(s) at then-current pricing, unless either party provides the other with notice of cancellation at least 30 days prior to the expiration of the then-current term.
3. Payment Terms. All fees are due net 30 from the date of the Trimble invoice. ● Annual Software Subscription: Trimble will invoice the amount of $93,603.64 execution of this Order Form and will invoice 30 days in advance of each successive anniversary date. ● One-Time Implementation Services: 25% due upon execution of this Kickoff, 25% due upon completion of Design, 25% due upon completion of configuration, and 25% due upon completion of Training. ● Managed Services: 25% due quarterly in arrears. The first 25% payment is due upon the completion of the first quarter of Managed Servies.
● Travel: Travel is not expected for the scope of work described in the SOW. Thus, all work will be done by Trimble remotely.
If Customer requires that Trimble travel, a separate Order Form will be executed to reflect the updated scope and pricing.
4. Annual Price Increase.
• For items with SIN 54151ECOM, Trimble has a right to increase the annual fees by the fees found on the Contract at the time of Renewal.
• For items with SIN Open Market, Trimble has a right to increase the annual fees by the greater of (a) CPI plus two percent (2%) or (b) eight (8%). "CPI" shall mean for all Urban Consumers, the U.S. City Average, for all items, 1982-84=100 (the “CPIU”), as published by the Bureau of Labor Statistics, U.S. Department of Labor, and shall be for the prior twelve months as of the date the calculation is made.
5. Electronic Invoices. Customer hereby consents to the receipt of invoices electronically at the indicated e-mail address(es) and accepts such invoices as if received by mail. Customer's e-mail address may be changed by written notice given by Customer to Trimble at: [email protected]. Customer is responsible for maintaining a current e-mail address and shall under no circumstances be excused from payment of applicable charges by its failure to access its designated e-mail address.
6. Due Authority. By signing below, the signatory represents that he/she (i) is an authorized representative of Customer and (ii) has the authority to legally and functionally commit the Customer. [Signature Page to Follow]
ATTACHMENT A 713
ACCEPTANCE
Accepted and agreed:
CUSTOMER:
Signature:
Print Name:
Title:
Date:
TRIMBLE:
Signature:
Print Name:
Title:
Date:
ATTACHMENT A 714
Addendum #1
Annual Software Subscription Details
Annual Software Subscription Details:
SaaS
SaaS includes:
● Unlimited Projects
● Unlimited Document Storage
● 24x7 Help Desk
● Quarterly Enhancement/Upgrades
● Maintenance Releases
● Data Warehouse – The Customer has elected to implement Data Warehouse ● Business Intelligence*
*Business Intelligence is included in the Customer’s subscription. This subscription item is not considered active as activation, configuration, and training is not in scope in Addendum #9. If activation of Business Intelligence is desired, Customer agrees to pay for activation via an amendment to the Order Form.
ATTACHMENT A 715
Addendum #2
Trimble General Transaction Terms
Version 1.1 (Last updated: October 7, 2023)
Trimble's provision of Offerings is governed exclusively by these Trimble General Transaction Terms (the “General Terms”). The Order, the SOW, these General Terms, any applicable Supplemental Terms, and all other terms referenced or incorporated therein, collectively constitute the “Agreement”. Any conflict or inconsistency in the Agreement will be resolved in the following order of precedence: (1) the Order, (2) any applicable Supplemental Terms, (3) these General Terms, (4) the SOW, and (5) the Documentation.
1. Definitions. Capitalized terms have the meaning associated with them in this Section 1 (Definitions) or with the definition provided elsewhere in the Agreement.
1.1.“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by or is under common ownership or control with a party, where “ownership” means the direct or indirect ownership of more than fifty percent (50%) of an entity’s outstanding voting rights or other equivalent voting interests.
1.2.“Customer”is the entity or person identified in the Order or SOW.
1.3.“Dispute(s)” means any dispute, claim, or controversy arising from or related to the Agreement.
1.4.“Documentation” means Trimble’s then-current usage guidelines, standard technical documentation, acceptable use policies, support policies, service level commitments, or other policies referenced in the Agreement.
1.5.”Hardware" means hardware products specified in the Order.
1.6.“High Risk Activities” means any mission critical, hazardous, strict liability, or other activity(ies) where use or failure of the Offerings could lead to death, personal injury, or physical or environmental damage. Examples of High Risk Activities include, but are not limited to: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, autonomous vehicles, air traffic control, emergency services, or weaponry systems. High Risk Activities do not include utilization of Offerings for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function.
1.7.“Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity, database rights and similar rights of any type, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority, and the right to sue for, settle and release past, present and future infringement of any of the foregoing.
1.8.“Law(s)” means all applicable local, state/provincial, federal and international laws, rules, regulations, directives, ordinances and conventions, including, but not limited to, those related to data privacy and data transfer, international communications and export of technical or personal data.
1.9.“Licensed Software” means the object code form of Trimble’s proprietary installed software product for deployment on premises or on a device, as well as any Documentation, maintenance releases, and features and functionality enhancements, and application programming interfaces (APIs), in each case as as may be made available pursuant to the Order. For clarity, Licensed Software excludes firmware.
1.10.“Offerings” means Trimble’s Hardware, Software, Services, Support, and other Trimble goods or services specified on an Order or SOW.
1.11.“Order” means the quotation, proposal, sales agreement or similar documents provided by Trimble and accepted by Customer.
1.12.“Services” means any services described in the Order or a Statement of Work, including, without limitation, training, enablement, implementation, configuration, hosting, or content provision.
1.13."Software" means the Licensed Software and/or Software-as-a-Service specified on an Order.
1.14.“Software-as-a-Service” or “SaaS” means a Trimble proprietary cloud service, as well as any Documentation, features and functionality enhancements, and application programming interfaces, in each case as may be made available pursuant to the Order.
1.15.“Statement of Work” or “SOW” means a statement of work or similar agreement governing the provision of Services.
1.16.“Supplemental Terms” are any additional Trimble terms and conditions referenced in the Order as “Supplemental Terms.”
1.17.“Support” means support and/or maintenance for Software, and as may be further described in the applicable Supplemental Terms, Documentation, or otherwise as specified by Trimble in writing.
1.18.“Trimble” means Trimble Inc. or its Affiliate identified on the Order or SOW, or if none is specified, as set forth in Exhibit A (Trimble Entities; Governing Law; Exclusive Venue/Jurisdiction) based on the applicable Customer location.
1.19.“Trimble IP” means the Offerings, Documentation, and any written and electronic materials, proprietary information, documentation, code, technology, systems, infrastructure, equipment, and trade secrets developed, provided or used by Trimble or its subcontractors to produce and provide the Offerings together with all Intellectual Property Rights therein, together with all modifications, improvements, changes thereto or derivative works thereof, including without limitation: (a) proprietary electronic architecture and other non-literal elements of the Offerings developed by Trimble, (b) functional and technical specifications and other technical, training, reference or service information, documentation and manuals and updates thereto, (c) APIs, customized applications and computer programs, (d) processes, methods, algorithms, ideas, and other “know how,” (e) data and information provided or sourced by Trimble, (f) Offerings which Customer has the right to use via a subscription, and (g) network equipment and architecture.
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2. Orders; Validity. An Order is valid for acceptance by Customer within the period indicated in the Order and if no such period is provided, for thirty (30) calendar days from the issue date. The Agreement is formed by Customer’s execution of the Order. Changes to an Order or belated acceptance by Customer are not valid unless Trimble accepts them in writing, and Trimble’s partial or complete delivery against an Order modified by Customer, or acceptance of payment, shall not be deemed to be an acceptance of the modification. Orders that Customer has accepted cannot be canceled for any reason without Trimble’s prior written consent.
3. Payment Terms; Invoicing
3.1.Fees are as set forth in the Order or SOW. Fees do not include applicable sales taxes, value added taxes, goods and services taxes, export or import charges, transportation or insurance charges, customs and duty fees, personal property taxes, surcharges and fees, or similar charges, all of which are Customer’s responsibility to pay. Unless Customer provides Trimble with direct payment authority or a valid exemption certificate for the appropriate jurisdiction, Customer will pay Trimble all such taxes, charges, and fees invoiced by Trimble in connection with the Offerings. Customer will pay any foreign exchange transaction fees and any foreign exchange profits or losses incurred on such transactions.
3.2.Trimble will issue invoices in accordance with the billing frequency stated in the Order or SOW. Customer consents to the receipt of invoices electronically at the email address(es) it provided to Trimble for billing purposes, and accepts such invoices as if received by mail. Customer is responsible for maintaining current email address(es) with Trimble. Trimble’s transmission of an invoice to the provided billing email address(es) (regardless of whether actually received by Customer) shall be considered delivery of that invoice by Trimble. Trimble’s failure to issue an invoice in accordance with this Section 3 (Payment Terms; Invoicing) shall not be deemed to be a waiver by Trimble of its right to receive payment pursuant to the Agreement, but Customer shall not be obligated to make such payment until an invoice for such payment is issued by Trimble to Customer.
3.3.Unless otherwise set forth in the Order or SOW, payments are due net 30 days from the date of invoice. Customer will make payment in the currency indicated on the Order or SOW. Trimble is entitled to offset payments against prior debt balances in Customer's account. Subject to any Laws to the contrary or as otherwise expressly stated in the Agreement, payments are not refundable.
No credit, carryover, or refund will be given for any unused Offerings (e.g., services hours, data usage) allocated or available for use during an indicated period of time.
3.4.Delinquent payments not subject to a bona fide dispute will bear interest at the lesser of 1.5% per month or the maximum rate permitted by applicable Law. If Customer does not object in writing to an invoiced amount by the invoice due date, Customer will be deemed to have acknowledged the correctness of that invoice and to have waived its right to dispute that invoice. A dispute as to a portion of any invoice or amount owed will give Customer the right to withhold or delay payment of the disputed portion only. Customer will be liable for all costs of collection of past due amounts (including attorneys’ fees).
3.5.Trimble may suspend Customer’s access to or Trimble’s provision of Offerings, as applicable, on five (5) business days prior notice if Customer fails to timely pay any invoice not subject to a bona fide payment dispute or fails to use diligent good faith efforts to resolve a bona fide payment dispute (unless cured during the notice period).
3.6.For any breach of Customer’s payment obligations under any Order(s), Trimble may, without limiting Trimble’s other rights and remedies, declare Customer’s unbilled future fees under any and all Orders immediately due and payable.
3.7.Trimble has the continuing right to review Customer's credit and, if reasonably determined necessary by Trimble, change Customer's payment terms, and may at any time demand advance payment, satisfactory security (such as, but not limited to, a confirmed, irrevocable letter of credit acceptable to Trimble), or a guarantee of prompt payment prior to shipment or service activation.
3.8.Offerings purchased or licensed under Trimble’s United States General Services Administration ("GSA") Schedules are subject to all of the pricing and other terms and conditions described in the applicable GSA Schedule.
4.Term and Termination
4.1.Term. The term and any renewals thereof applicable for an Offering (collectively, the “Term(s)”) shall be as set forth in the Order, SOW, or Supplemental Terms. Different Offerings may have different Terms.
4.2.Termination. Either party may terminate the Agreement if the other party (a) fails to cure a material breach of the Agreement (including a failure to pay fees), or fails to provide a written plan of cure reasonably acceptable to the non-breaching party, within thirty (30) days after the non-breaching party’s receipt of written notice specifying such breach or failure, (b) becomes designated by an applicable governmental entity as a business with which a party is prohibited from doing business with (e.g., via governmental sanctions program), or (c) seeks protection under insolvency or comparable proceeding, or if such proceedings are instituted against that party and not dismissed within sixty (60) days.
4.3.Survival. These Sections survive expiration or termination of the Agreement: 1 (Definitions), 3 (Payment Terms; Invoicing), 4.3 (Survival), 6 (Warranty Disclaimers), 7 (Limitations of Liability), 8 (Indemnification), 9 (Confidentiality), 11 (Personal Information; Data Protection), 12 (Miscellaneous), any other provisions identified in any applicable Supplemental Terms referencing this provision, and any other term or provision in the Agreement that applies to events occurring following termination or expiration.
Except where an exclusive remedy is provided, exercising a remedy under the Agreement, including termination, does not limit other remedies a party may have.
5.Customer Obligations
5.1.High Risk Activities. Customer will not use the Offerings for High Risk Activities. Customer acknowledges that the Offerings are not intended to meet any legal obligations for High Risk Activities. Trimble and its suppliers specifically disclaim any responsibility for, and will not be liable in any manner arising from, any use of the Offerings in connection with High Risk Activities.
5.2.Compliance with Laws. Customer shall comply with all Laws in connection with its use or receipt of the Offerings.
5.3.Dependencies and Compatibilities.
(a) Offerings may (i) require certain dependencies, including, without limitation, internet connection, electronic communications, hardware, data connections, operating systems, third-party products and services, other Trimble products and services, satellite ATTACHMENT A 717
signals, etc. (collectively, “Dependencies”), and (ii) allow compatibility and/or interoperability with other products or services made available by Trimble, Customer, or a third party (collectively, “Compatibilities”). (b) Dependencies and Compatibilities may require payment of a separate fee and are governed by their respective terms of service, end user license agreement, or other agreement, and not by the Agreement. Unless otherwise expressly agreed upon by the parties in writing, Customer is responsible for all Dependencies and Compatibilities. Trimble may modify the Offerings from time to time, and Trimble does not guarantee that the Offerings will continue to operate or be compatible with any Dependencies or Compatibilities. Trimble makes no warranty or guarantee, and will have no liability or obligations under the Agreement, with respect to any Dependencies, Compatibilities, or other factors outside of Trimble’s control. (c) Customer represents and warrants that it shall, and shall use best efforts to require any provider of any Dependencies and Compatibilities to: (i) establish and maintain industry standard technical, organizational, physical, and administrative safeguards designed to ensure the security and integrity of the Offerings; and (ii) comply with the security controls, configuration requirements, and access limitations imposed by Trimble, as may be modified by Trimble from time to time.
6.WARRANTY DISCLAIMERS.
THE LIMITED WARRANTY TERMS, IF ANY, EXPRESSLY SET FORTH IN ANY APPLICABLE SUPPLEMENTAL TERMS ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON TRIMBLE’S PART ARISING OUT OF, OR IN CONNECTION WITH, THE OFFERINGS, AT ANY TIME EITHER DURING OR AFTER EXPIRATION OF THE APPLICABLE WARRANTY, AND STATE TRIMBLE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES RELATING TO THEM. EXCEPT FOR ANY LIMITED WARRANTY TERMS EXPRESSLY PROVIDED IN ANY APPLICABLE SUPPLEMENTAL TERMS, THE OFFERINGS ARE PROVIDED "AS-IS'' AND WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NONINFRINGEMENT. SUPPLEMENTAL TERMS MAY HAVE ADDITIONAL DISCLAIMERS. SOME
JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION(S) MAY NOT APPLY OR FULLY APPLY TO CUSTOMER.
7.Limitations of Liability.
7.1.Waiver; Liability Cap.
(a) EXCEPT FOR EXCLUDED CLAIMS, (i) NEITHER PARTY (OR ITS SUPPLIERS) SHALL BE LIABLE FOR DAMAGES FOR LOSS OF PROFIT
OR REVENUE, DATA THAT IS LOST OR CORRUPTED, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL, OR ANY SPECIAL, INCIDENTAL, RELIANCE, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND; AND (ii) EACH PARTY’S (AND EACH OF ITS SUPPLIER’S) ENTIRE LIABILITY FOR ANY AND ALL DAMAGES ARISING OUT OF OR
RELATED TO THE AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO TRIMBLE DURING THE PRIOR 12 MONTHS UNDER THE AGREEMENT FOR THE APPLICABLE OFFERING(S) GIVING RISE TO THE LIABILITY. (b) “EXCLUDED CLAIMS” MEANS (i) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE AGREEMENT, (ii) DAMAGES PAYABLE TO A THIRD PARTY (I.E., NOT AN INDEMNIFIED PARTY) EITHER AWARDED BY A COURT OF COMPETENT JURISDICTION OR
INCLUDED IN A SETTLEMENT AGREED TO BY THE INDEMNIFYING PARTY, WHICH DAMAGES ARE SUBJECT TO A PARTY'S INDEMNIFICATION OBLIGATIONS IN SECTION 8 (INDEMNIFICATION), AND (iii) ANY ADDITIONAL “EXCLUDED CLAIMS” EXPRESSLY IDENTIFIED IN ANY APPLICABLE SUPPLEMENTAL TERMS. (C) THE ABOVE LIMITATIONS OF LIABILITY WILL APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF
SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF A PARTY HAS BEEN APPRAISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN BREACH OF ANY ONE OR MORE WARRANTIES, NONCONFORMITY, IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY, OR OTHERWISE. (D) SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT
MISREPRESENTATIONS, CERTAIN INTENTIONAL OR NEGLIGENT ACTS, VIOLATION OF SPECIFIC STATUTES, OR THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH AN EVENT, THE FOREGOING LIMITATION(S) WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
7.2.Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 7 (Limitations of Liability) are agreedupon allocations of risk constituting in part the consideration for Trimble’s performance under the Agreement, and will survive and apply even if any limited remedy in the Agreement fails of its essential purpose.
8.Indemnification. Customer will defend, indemnify, and hold harmless Trimble from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (a) use or modification of any Offerings in breach of the Agreement, or in any manner not authorized by the Agreement or (b) Customer’s violation of Laws or the rights of a third party. Trimble will give Customer prompt written notice of any claim hereunder and will cooperate in relation to the claim at Customer’s expense. Customer will have the exclusive right to control and settle any claim, except that Customer may not settle a claim without Trimble’s prior written consent (not to be unreasonably withheld) if the settlement requires Trimble to admit any liability or take any action or refrain from taking any action (other than ceasing use of infringing materials). Trimble may participate in the defense of any claim at its expense.
9.Confidentiality.
9.1.Definition. “Confidential Information” means information disclosed to the receiving party under the Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Trimble’s Confidential Information includes, without limitation, the ATTACHMENT A 718
terms and conditions of the Agreement, and any technical or performance information about the Offerings, including the Documentation.
9.2.Obligations. As a receiving party, each party (a) will protect the confidentiality of the disclosing party’s Confidential Information using the same degree of care it uses for its own information of like importance (but not less than reasonable care), (b) will not share the disclosing party’s Confidential Information with third parties except as permitted in the Agreement or with the disclosing party’s prior written or electronic consent, and (c) will only use Confidential Information to fulfill its obligations and exercise its rights in the Agreement. The receiving party may disclose Confidential Information to its employees, agents, Affiliates, contractors, and other representatives (collectively, “Representatives”) having a legitimate need to know (including, for Trimble, its subcontractors), provided (i) the Representatives are subject to confidentiality obligations no less protective than those in this Section 9 (Confidentiality), and (ii) the receiving party is responsible for any breach of this Section 9 (Confidentiality) by the acts or omissions of its Representatives.
9.3.Exclusions. These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party or its Representatives, (b) it rightfully knew or possessed on a nonconfidential basis prior to receipt under the Agreement, (c) it rightfully received from a third party without obligation of confidentiality, or (d) it independently developed without using the disclosing party’s Confidential Information. Supplemental Terms may have additional exclusions.
9.4.Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which remedies at law (e.g., monetary damages) alone are an insufficient remedy. In the event of such actual or threatened breach by a party, the other party may seek injunctive relief, in addition to other available rights and remedies, for breach or threatened breach of this Section 9 (Confidentiality), without proof of actual damages or the requirement of posting a bond or other security.
9.5.Required Disclosures. Nothing in the Agreement prohibits either party from making disclosures if required by Law or government or court order, provided (if permitted by Law) it notifies the other party in advance and reasonably cooperates in any effort by the other party to obtain confidential treatment.
10.Intellectual Property Rights.
10.1.Trimble IP. As between the parties, except for any limited usage rights set forth in any Supplemental Terms, Trimble and its suppliers have and will retain all Intellectual Property Rights in and to Trimble IP and all copies, modifications, and derivative works thereof.
No Intellectual Property Rights are granted by Trimble to Customer except as expressly provided under the Agreement.
10.2.Feedback. Customer may from time to time provide suggestions, comments, or other feedback (collective, “Feedback”) to Trimble with respect to the Offerings. Both parties agree that all Feedback is and will be given entirely voluntarily, and shall not be considered Confidential Information of Customer. Customer shall not provide any Feedback that is subject to license terms that seek to require any of Customer’s products, technology, service, or documentation incorporating or derived from such Feedback, or any of Customer’s intellectual property to be licensed or otherwise shared with any third party. Customer hereby grants to Trimble and its Affiliates a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and otherwise exploit the Feedback.
11.Personal Information; Data Protection.
11.1.This Section 11 (Personal Information; Data Protection) applies if Customer is a legal person (i.e., a business or legal entity). All Laws relating to the protection of privacy and data protection are referred to as “Data Protection Legislation”. “Personal Information” is defined as in the Applicable Data Protection Legislation, or if no definition is provided, any personally identifiable information which is either (a) provided by Customer or on its behalf, or (b) automatically collected through the Offering on Customer’s behalf. “Applicable”, in this context, means the Data Protection Legislation applicable to Customer at Customer’s principal place of business or to Trimble at Trimble’s principal place of business, and such Laws that the parties mutually agree apply.
11.2.Each party will comply with all Applicable requirements of the Data Protection Legislation. This Section 11 (Personal Information; Data Protection) is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the applicable Data Protection Legislation.
11.3.The parties acknowledge that: (a) when performing its obligations under the Agreement, Trimble processes Personal Information on Customer's behalf, except for user registration and software licensing and usage data, for which Trimble acts as responsible party, and (b) the Personal Information may be transferred or stored, and/or accessed from outside of the country where Customer’s principal place of business is located in order to provide the Software and Trimble's other obligations under the Agreement.
11.4.Customer will ensure that it has all necessary appropriate consents and notices in place to enable (a) lawful transfer of the Personal Information to Trimble for the duration and purposes of the Agreement and (b) Trimble to lawfully use, process and transfer the Personal Information in accordance with the Agreement, including on Customer's behalf.
11.5.If the processing of Personal Information by Trimble is subject to the General Data Protection Regulation ((EU) 2016/679) or the Data Protection Act 2018 of the United Kingdom, then, in addition, at the written request of Customer, the parties will execute an applicable data processing addendum, available at https://www.trimble.com/privacy/DPA-TI-EuroSubs (or any successor url).
Transfers of Personal Information from Trimble entities located in Europe, acting as data exporter, to Trimble entities in the USA, acting as data importer, are governed, for the benefit of Customer, by the Standard Contractual Clauses available at the same url or upon written request to Trimble.
11.6.If the processing of Personal Information by Trimble is subject to US data protection laws, rules or regulations, then the US Data Processing Addendum for Customer Personal Information (available at https://dl.trimble.com/www/us_dpa_customer.pdf or any successor url) is herein incorporated by reference.
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12.Miscellaneous.
12.1.Assignment. Trimble may assign the Agreement upon notice to Customer. Customer may not assign or transfer the Agreement (by operation of law or otherwise) without the prior written consent of Trimble. Any non-permitted assignment is void. The Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
12.2.Amendments. Trimble may amend the Agreement from time to time with written notice to Customer. Such amendments shall take effect upon the next renewal, if any, of the Agreement, unless Trimble indicates an earlier effective date. If Trimble requires amendments with an earlier effective date and Customer objects in writing, then Trimble may permit such amendments to take effect upon the next renewal; provided, however, if Trimble declines to permit such later effective date, Customer’s exclusive remedy is to terminate the Agreement with notice to Trimble, in which case Trimble will provide Customer a refund of any applicable pre-paid fees for the terminated portion of the current Term. To exercise this termination right, Customer must notify Trimble of its objections within thirty (30) days after Trimble’s notice of the amended Agreement. Once the amended Agreement takes effect, Customer’s continued use of the Offerings constitutes its acceptance of the modifications. Notwithstanding the foregoing, Trimble may modify Documentation upon written notice to Customer to reflect new features or changing practices, provided that the modifications will not materially decrease Trimble’s overall obligations with respect to such Offering(s).
12.3.Waiver and Severability. No waiver of any provision or breach of the Agreement (a) will be effective unless made in writing, or (b) will operate as or be construed to be a continuing waiver of such provision or breach. In the event any portion of the Agreement is held to be invalid or unenforceable, such portion will be construed as nearly as possible to reflect the original intent of the parties, or if such construction cannot be made, such provision or portion thereof will be severable from the Agreement, provided that the invalidity, illegality, or unenforceability in whole or in part of any provision does not affect the validity of other provisions.
12.4.Force Majeure. Neither party will be liable for any default, delay, or non-performance of its obligations under the Agreement (except for payment obligations) due to causes beyond its reasonable control, including, without limitation, strikes, blockades, war, terrorism, riot, internet or utility failures, governmental orders or actions, national or regional emergency, pandemics, or natural disasters, provided that such party promptly notifies the other in writing of such occurrence and uses commercially reasonable efforts to resume performance of its affected obligations as soon as feasible. Delays or failures that are excused as provided in this Section 12.4 (Force Majeure) will result in automatic extensions of dates for performance for a period of time equal to the duration of the events excusing such delay or failure.
12.5.Notices. Any notice or other communication given by either party to the other regarding the Agreement will be deemed given and served when personally delivered or delivered by reputable international courier requiring signature for receipt addressed to the party at its notice address. Notice will be deemed effective upon delivery or refused delivery attempt. Either party may change its notice address by written notice to the other. Customer's notice address will be the address appearing on the Order or SOW. Trimble's notice address will be the applicable address on Exhibit A (Trimble Entities; Governing Law; Exclusive Venue/Jurisdiction), or if the Trimble entity is not listed there, then on the Order. In addition, any valid notice to Trimble shall include a required copy to: Trimble Inc., Attn: General Counsel - Important Legal Notice, 510 De Guigne Drive, Sunnyvale, CA 94085, USA. Trimble may send operational notices to Customer by email or through the Offering, including, without limitation, modifications of the Agreement or Documentation, suspension, collection, and termination notices related to overdue fees.
12.6.Export Control. Customer acknowledges that the Offerings are subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer will not, and will not allow any third party to, remove or export from the United States or allow the export or re-export of any part of the Offerings or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, Laws of any United States or foreign agency or authority.
Customer warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Offerings are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government. Customer will defend, indemnify, and hold Trimble harmless against any liability (including attorneys’ fees) arising out of Customer’s failure to comply with the terms of this Section. Customer’s obligations under this Section 12.6 (Export Control) will survive the termination of the Agreement for any reason whatsoever.
12.7.Anti-Corruption Compliance. Each party, and any third party acting on its behalf, will comply with all applicable United States and international anti-corruption and anti-bribery laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and others (collectively, “Anti-Corruption Laws”). Each party, and any third party acting on its behalf, will not directly or indirectly offer, promise, or give any payment or anything of value to a government official, or any other individual or entity, where the intent is to improperly influence any act or decision of the government official, or other individual or entity, to obtain or retain business or some other benefit or commercial advantage for either party. Each party, and any third party acting on its behalf, also will not solicit or accept any sort of payment or anything of value from anyone, where the intent is to improperly influence any acts of a party or any third party acting on its behalf.
12.8.GSA. Offerings purchased or licensed under Trimble’s United States General Services Administration ("GSA") Schedules are subject to all of the pricing and other terms and conditions described in the applicable GSA Schedule.
12.9.Governing Law and Venue. The sole and exclusive governing Law, jurisdiction, and venue for the Agreement and all Disputes shall be:
(1) as set forth in the Order, if any, or (2) otherwise, as set forth on Exhibit A (Trimble Entities; Governing Law; Exclusive Venue/Jurisdiction), in each case to the exclusion of all others; provided that Trimble may elect to bring action in courts with jurisdiction for Customer’s location. The United Nations Convention on Contracts for the International Sale of Goods and any conflicts of laws provisions giving rise to a different result do not apply. No Dispute may be brought by either party more than one (1) year after such Dispute accrued, except that an action for nonpayment may be brought within two (2) years after the due ATTACHMENT A 720
date. Each party hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum non conveniens, to the bringing of any such proceeding in such jurisdiction.
12.10.WAIVER OF JURY TRIAL – UNITED STATES CLAIMS. FOR ANY CLAIM BROUGHT IN A STATE, FEDERAL, OR OTHER COURT IN ANY
JURISDICTION WITHIN THE UNITED STATES, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF
ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT BE ENFORCED OR ENFORCEABLE TO THE EXTENT A WAIVER
OF THE RIGHT TO A TRIAL BY JURY IS PROHIBITED BY, OR CONTRARY TO, THE PUBLIC POLICY OF THE STATE IN WHICH SUCH LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM IS FILED.
12.11.Region-Specific Terms. Additional terms and conditions for specified regions are as set forth in Exhibit B (Region-Specific Terms).
12.12.Publicity. Customer agrees that (a) Trimble may issue a press release in the form approved by the parties regarding the parties' entry into the Agreement, and (b) Trimble may identify Customer (including through use of its name and logo) as Trimble’s customer, including on Trimble’s website, and may include Customer in its customer list and marketing materials, but will cease this use upon Customer’s written request.
12.13.Headings; Language. The headings in the Agreement have been inserted for convenience only and shall have no substantive effect.
The language of all parts of the Agreement shall in all cases be considered as a whole, according to its fair meaning, and not strictly for or against any of the parties. The parties hereby acknowledge and agree that the language of the Agreement shall be considered jointly drafted.
12.14.Subcontractors. Trimble may use subcontractors in the performance of its obligations under the Agreement, and will be responsible for the acts and omissions of its subcontractors in their performance of Trimble’s obligations in the Agreement.
12.15.No Third-Party Beneficiaries. Except as may be expressly stated in any Supplemental Terms, there are no third-party beneficiaries under the Agreement.
12.16.Independent Contractors. Each party is an independent contractor of, and is not an employee, agent, fiduciary, or authorized representative of, the other party.
12.17.Entire Agreement. The Agreement sets forth the entire understanding between the parties in connection with its subject matter, and supersedes all prior or contemporaneous proposals, communications, agreements, negotiations, and representations, whether written or oral, regarding the subject matter thereof. Any additional, contrary, and/or pre-printed terms or conditions appearing on Customer’s acceptance, orders, or associated purchase documentation are hereby rejected and will be of no effect.
12.18.Counterparts. The Agreement, or portions thereof, may be executed in several counterparts and, if applicable, by each party on a separate counterpart, each of which, when so executed and delivered will be an original, but all of which together will constitute but one and the same instrument. A signature, digital signature, or electronic signature delivered through other means (e.g., email) shall have the same force and effect as an original ink signature.
ATTACHMENT A 721
Exhibit A
Trimble Entities; Governing Law; Exclusive Venue/Jurisdiction Customer Location* Trimble Entity and Notice
Address**
Governing Law Exclusive
Venue/Jurisdiction
United States
Trimble Inc.
10368 Westmoor Drive
Westminster, CO 80021 USA
State of Delaware State and Federal Courts
located in Wilmington,
Delaware, USA
Belgium Trimble Belgium BV,
Geldenaaksebaan 329 3001
Leuven, Belgium
Belgium Courts in Brussels,
Belgium
Canada Trimble Canada Corporation
600-1741 Lower Water Street
Halifax, Nova Scotia B3J 0J2,
Canada
Province of Ontario, and the
federal laws of Canada
applicable therein
Provincial and federal
courts located in
Toronto, Ontario
France Trimble France S.A.S.
1 quai Gabriel Péri
94340 Joinville-le-Pont,
France
France Courts in Paris, France
Any other country or
geography not
specified above
Trimble Europe B.V.
Industrieweg 187a,
5683 CC Best,
The Netherlands
The Netherlands Courts of Amsterdam,
the Netherlands
* Customer location is Customer’s billing address specified on the Order, or if none, then the address provided by Customer to Trimble when registering its online account. ** Addresses for Trimble entities not listed shall be as set forth on the Order or SOW. See additional required notice address for Trimble in Section 12.5 (Notices).
ATTACHMENT A 722
Exhibit B
Region-Specific Terms
Table of Contents
● Australia
● France
● The Netherlands
Australia
For Customer who purchase Offerings in Australia, the following provisions apply:
(a) For the purposes of this section, “Australian Consumer Law” means the Australian Consumer Law set out at Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended from time to time, and “Non-excludable Condition” means the consumer guarantees, warranties, rights, or remedies under the Australian Consumer Law that cannot be limited, excluded, restricted, or modified, and to which Customer may be entitled. (b) To the extent permitted by Law, Trimble’s liability in relation to breach of any such Non-excludable Condition shall be limited, at its option, as follows: (i) in the case of the goods, to repairing or replacing the goods, supplying equivalent goods, or paying the costs of repairing or replacing the goods or acquiring equivalent goods; and (ii) in the case of the services, to re-supplying the services or paying the cost of re-supplying the services. (c) Nothing in the Agreement excludes, restricts or modifies any Non-excludable Condition.
Nothing in the Agreement is intended to derogate from Trimble’s obligations under the Privacy Act 1988 (Cth) as amended from time to time.
(e) Where Order(s) are a “Small Business Contract” within the meaning of the Australian Consumer Law:
(i) Trimble shall not accelerate Customer’s unbilled future fees under any Order(s); (ii) Customer’s indemnification obligations under the Agreement are reduced to the extent Trimble’s acts or omissions contributed to or caused the claims, costs, damages, losses, liabilities, and expenses suffered by Customer;
(iii) Trimble’s liability in relation to breach of any Non-excludable Condition will be an Excluded Claim; and (iv) No dispute or legal action arising under the Agreement may be brought by either party more than three years after such cause of action accrued.
France
Section 3.4 is hereby amended and restated to read as follows:
Section 3.4 Late payments will bear interest at the rate of 1.5% per month or the minimum rate allowed by Law (currently three (3) times the legal interest rate), whichever is higher, measured from the date on which the sums concerned became due until the date on which full payment is received. Collection fees of a minimum amount of 40 € will be added in accordance with Article L. 441-10.II of the Commercial Code. Customer will be liable for all other costs of collection of past due amounts (including court costs and attorney's fees incurred by Trimble). If the Customer does not dispute an invoice amount in writing by the due date of the invoice, the Customer shall be deemed to have acknowledged the accuracy of such invoice and waived its right to dispute it.
A dispute over part of an invoice or amount due shall entitle the Customer to withhold or delay payment of the disputed part only.
The following is hereby added as Section 7.1 (e ):
(e) EACH PARTY HEREBY HAS AN OBLIGATION TO LIMIT THE DAMAGES IT MAY SUFFER IN THE EVENT OF A BREACH OF ITS OBLIGATIONS BY THE OTHER PARTY.
ATTACHMENT A 723
The Netherlands
The provisions of Section 4.2 (Termination) are the sole grounds for the termination of the Agreement, and to the extent permitted by Law, the right of Customer to rescind the Agreement and claim damages on the basis of statutory Law (including but not limited to sec. 6:265 Dutch Civil Code) is excluded.
THE LIMITATION OF LIABILITY IN SECTION 7 FOR A PERIOD OF 12 MONTHS EXPRESSLY INCLUDES ANY OBLIGATION TO PAY
COMPENSATION UNDER A WARRANTY MENTIONED IN THESE TERMS OR RELATED CONTRACTS OR DOCUMENTS AND THE RESTITUTION OBLIGATIONS (ONDEDAANMAKINGSVERPLICHTINGEN) AND INDEMNIFY FOR DAMAGES. LIABILITY FOR DEATH OR PERSONAL INJURY SHALL NOT EXCEED EUR 1.250.000.
The applicability of section 6:227b subsection 1 and section 6:227c subsection 1 of the Dutch Civil Code are excluded in any Agreement between Trimble and any person who is not a consumer.
ATTACHMENT A 724
Addendum #3
Supplemental Terms for Software and Subscriptions
Version 1.1 (Last Updated: October 7, 2023)
1. Definitions. Capitalized terms not defined herein have the meanings given in the General Terms.
1.1. “Active Project” means any Project on which the Software may be used by Customer during any Annual Subscription Term.
1.2. “Annual Subscription Term” means each 12-month period of a Subscription Term.
1.3. “Anonymized Data” means any data collected in connection with the Offerings (including Customer Data) that has been aggregated and/or deidentified in such a manner that neither Customer nor any of its Authorized Users or any other individual can be identified from the data when it is shared outside of Trimble or its Affiliates.
1.4. “Authorized User” means any employee of Customer or third-party user authorized by Customer to access and use the Offerings on Customer’s behalf in accordance with the Agreement, including, without limitation, Section 6.6 (Third-Party Access).
1.5. “Correction Services” means subscription-based services that provide GNSS position correction data.
1.6. “Concurrent User” means any type of User authorized by Customer to access and use the Offerings on Customer’s behalf simultaneously at a given point in time.
1.7. “Customer Data” means any information, documents, materials, or other data of any type that is input by or on behalf of Customer into the Offerings or that is created or generated by Customer through Customer’s use of the Offerings, including without limitation information or data that is submitted manually by Authorized Users or through a Third-Party Platform. For clarity, Customer Data expressly excludes Usage Data.
1.8. “Customer Group” means Customer’s business units, Affiliates, or Joint Ventures, if any, listed in the Order that may authorize Authorized Users to use the Offerings on behalf of those business units, Affiliates, or Joint Ventures.
1.9. “Gross Annual Revenue” or “GAR” means Customer's (and Customer Group's, if applicable) income and revenue from all sources, before expenses or taxes, calculated on an annual basis according to generally accepted accounting principles and as reported in company financial statements. The various equivalent definitions may be used interchangeably.
1.10. “Joint Venture” means a business arrangement in which Customer and one or more other third parties agree to pool their resources to accomplish a Project or other commercial enterprise.
1.11. “License Keys” means electronic passwords, authorization codes, or other enabling mechanisms provided for use with the Offerings.
1.12. “Named User” means any type of Authorized User designated by Customer by name or other identifier to access and use the Offerings on Customer’s behalf.
1.13. “Prohibited Data” means any (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (b) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS); (c) information subject to regulation or protection under the Children’s Online Privacy Protection Act or GrammLeach Bliley Act, or (d) any other information which is regulated under Laws and is not required for use of the Software for its intended purpose.
1.14. “Project” means the initiation, delivery, operations, and maintenance of a construction project.
1.15. “Provision Date” means the date on which Trimble first provides access to the Offerings. For an Offering bundle comprised of multiple Software, the Provision Date will be the date on which the entire Offering bundle becomes fully provisioned.
1.16. “Subscription” means access to any Software, Support, Correction Services, content, data, or other information, in each case made available for the applicable Subscription Term(s).
1.17. “Support Terms” means the then-current Supplemental Terms for Support and Maintenance available at https://www.trimble.com/en/legal/customer-terms or any successor url.
1.18. “Third-Party Materials” means any third-party data, content, or proprietary software. Third-Party Materials is not part of Software.
1.19. “Project Budget” means the total projected cost allocated to carry out, manage, and complete one or more Active Project(s) over the entire Subscription Term. The various defined terms are equivalent and may be used interchangeably, including in other defined terms.
1.20. “Total Project Value” or “Project Value” means Project Budget divided by the number of Annual Subscription Terms in the Subscription Term (and not any renewal). The various defined terms are equivalent and may be used interchangeably, including in other defined terms.
1.21. “Usage Limitations” means Customer’s authorized scope of use for the Offerings as specified in the applicable Order, Supplemental Terms, or Documentation, which may include any user (e.g., Named User, Concurrent User, etc.), seat, copy, instance, data storage, CPU, computer, field of use, location, project, or other restrictions.
1.22. “Usage Data” means Trimble’s technical logs, data, and learnings about Customer’s use of the Offerings, excluding Customer Data.
2. Generally
2.1 Offerings.
(a) Subscriptions (other than Licensed Software). Customer may access and use the Subscriptions during the Subscription Term only for its internal business purposes in accordance with the Documentation, Usage Limitations, and the Agreement. Unless otherwise specified by Trimble, any Licensed Software provided with a Subscription is subject to the terms applicable to Licensed Software under the Agreement. (b) Licensed Software. Trimble hereby grants Customer a non-transferable, non-sublicensable, non-exclusive license, during Term, to install, copy, and use the Licensed Software on systems or devices under Customer’s control only for its internal business purposes in accordance with the Documentation, Usage Limitations, and the Agreement. Licensed Software is licensed, not sold. Any Licensed Software deployed through hosting services delivered by Trimble are subject to the terms and conditions applicable to Licensed Software.
2.2 Authorized Users. Only Authorized Users may access or use the Offerings. User IDs are granted to individual, named persons, and each Authorized User will keep login credentials confidential and not share them with anyone else. Customer is responsible for its Authorized Users’ compliance with the Agreement and actions taken through their accounts. In the event an Authorized User is no longer authorized to use an Offering on Customer’s behalf, Customer will promptly de-activate such Authorized User’s access. Unless expressly permitted in the Order, Supplemental Terms, or Documentation, Customer may not transfer Authorized User status from one individual to another. Customer will promptly notify Trimble if it becomes aware that any of its Authorized User login credentials have been compromised.
ATTACHMENT A 725
2.3. Restrictions. Customer will not (and will not permit, encourage, or assist anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense the Offerings to a third party; (b) use the Offerings on behalf of, or to provide any product or service to, third parties; (c) use the Offerings to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to any element of the Offerings, except to the extent expressly permitted by Law (and then only after providing prior written notice to Trimble); (e) modify or create derivative works of the Offerings or copy any element of the Offerings (other than in connection with making copies of Licensed Software authorized under the Agreement); (f) remove or obscure any proprietary notices in the Offerings; (g) publish benchmarks or performance information about the Offerings, except to the extent expressly permitted by Law; (h) interfere with the Offerings’ operation or its use by others, circumvent its access restrictions or, without the prior written permission of Trimble, conduct any security or vulnerability test of the Offerings; (i) transmit any viruses or other harmful materials to the Offerings; (j) submit to the Offerings any information that is inappropriate, defamatory, obscene, salacious, or unlawful, or use the Offerings to defame, harass, stalk, threaten, or otherwise violate the rights of others; (k) use the Offerings to advertise, offer to sell or buy goods, or otherwise for business promotional purposes; (l) for Licensed Software, unless expressly permitted in the Order, Supplemental Terms, or the Documentation, use or host any Licensed Software in a virtual server environment, or (m) for Corrections Services, re-broadcast the Corrections Services without the prior written consent of Trimble.
2.4 Free Versions; Trials and Betas. “Free Versions” means any Offerings made available to Customer for use without a fee. “Trials and Betas” means any Offerings or any features thereof made available on a evaluation or trial basis or as an alpha, beta, or early access offering, in any case free or otherwise. Unless otherwise set forth in the Documentation or the Agreement, Customer may only use Free Versions in a non-production environment and for non-commercial purposes, and Trials and Betas may only be used solely for Customer’s internal evaluation to determine whether to purchase a license or subscription to the Offerings. The evaluation term for Trials and Betas shall be 30 days unless otherwise designated by Trimble in writing. Free Versions and Trials and Betas are optional, and Trimble may cease making available such Offerings at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Trimble may never release, and their features and performance information are Trimble’s Confidential Information. In the event Customer has purchased Services related to any Free Version or Trial and Beta, any unused Services upon any termination or expiration of the applicable term for the Free Version or Trial and Beta shall be forfeit. Notwithstanding anything else in the Agreement: (a) Trimble has no obligation to retain Customer Data used with Free Versions and Trials and Betas; (b) Trimble provides the Free Versions and Trial and Betas “AS-IS” with no warranty, indemnity, service levels, or support; (c) Trimble’s liability for Free Versions and Trials and Betas will not exceed US$50, and (d) either party may terminate access to a Free Version or Trial and Beta, for any reason or no reason, immediately upon written notice to the other party.
2.5 Educational Versions. For any version of the Offerings designated as “educational,” or a similar term, Customer may use the Offerings solely for educational purposes - e.g., by an instructor or a student at an educational institution and while engaged in educational work. Such educational versions may not be used (a) by any other person; (b) by any educational institution for any non-educational purposes; or (c) for any for-profit purpose, including professional work or training offered for a fee, or by commercial entities.
2.6 Delivery. Offerings and License Keys, if any, will be delivered by electronic means unless otherwise specified on the applicable Order. Delivery is deemed to occur on the date on which the Offering and License Key, if any, are first made available to Customer.
2.7 Software Activation and Metering; Audits.
(a) Offerings may gather and transmit to Trimble license usage, compliance, and activation data. Customer will not disable, modify, or interfere with the operation of any such functionality of the Offerings. Trimble may use the foregoing information to validate the authenticity of Authorized Users, to confirm Customer’s compliance with the Agreement, to register the Offerings, to monitor and validate compliance with Usage Limitations, for license metering, and to protect Trimble against unlicensed or illegal use of the Offerings. (b) Upon Trimble’s written request, Customer shall certify in writing that its use of the Offerings is in full compliance with the Agreement (including any Usage Limitations). In addition to the other license compliance monitoring rights in the Agreement, Trimble, or its authorized representative, may, upon prior reasonable notice of at least ten (10) days, inspect and audit Customer’s records and use of the Offerings to confirm Customer’s compliance with the Agreement. All such inspections and audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with Customer’s business activities. Customer is responsible for such audit costs only in the event the audit reveals that the use is not in accordance with the Usage Limitations or other licensed scope of use and for unpaid fees. Customer shall promptly pay all unpaid fees.
3. Data Usage and Ownership.
3.1 Ownership. Except for Trimble’s limited rights set forth in the Agreement, as between the parties, Customer retains all Intellectual Property Rights in Customer Data. Trimble owns all Intellectual Property Rights in Anonymized Data and Usage Data.
3.2. Limited Usage Rights. Customer hereby grants to Trimble and its Affiliates the non-exclusive, worldwide, irrevocable, royalty-free right: (i) to use Customer Data during the Term to provide the Offerings, Support, and Services to Customer; (ii) to use and disclose Customer Data as otherwise permitted pursuant to the Agreement or any written consent or instructions of Customer; and, (iii) subject to Trimble’s confidentiality obligations in Section 9 (Confidentiality) of the General Terms and all applicable Data Protection Legislation, to use Customer Data in perpetuity to develop, maintain, and improve the products, software, and services of Trimble or its Affiliates, including, without limitation, analytics, model training, and machine learning.
3.3 Access. Customer will not have access to Customer Data after termination or expiration of the Term, unless otherwise indicated in the Order, Supplemental Terms, or the Documentation, or the parties agree otherwise in writing.
3.4 Confidentiality. In the event of any conflict between the terms of Section 9 (Confidentiality) of the General Terms and this Section 3 (Data Usage and Ownership), the terms of this Section 3 (Data Usage and Ownership) will control.
4. Customer Obligations.
4.1 Dependencies and Compatibilities. If Customer enables Dependencies or Compatibilities with an Offering, Trimble may access and exchange Customer Data with the Dependencies or Compatibilities on Customer’s behalf. Trimble will have no liability or obligations under the Agreement with respect to how any Dependencies or Compatibilities uses or processes Customer Data. If Trimble hosts any Dependency or Compatibilities at Customer’s request, Customer represents and warrants to Trimble that Customer has all rights necessary. Trimble may charge additional fees for such hosting services.
ATTACHMENT A 726
4.2 No Prohibited Data. Customer will not use the Offerings with Prohibited Data. Customer acknowledges that the Offerings are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Trimble is not a Business Associate as defined under HIPAA.
4.3 Customer Data. Customer is responsible for its Customer Data, including its content, accuracy, and compliance with Laws. Customer represents and warrants that it has made all disclosures and has all rights, consents, and permissions necessary to use its Customer Data with the Offerings and grant Trimble the rights in Section 3 (Data Use and Ownership), all without violating or infringing Laws, third-party rights (including intellectual property, publicity, or privacy rights), or any terms or privacy policies that apply to its Customer Data. If Customer utilizes data fields available in the Offerings to store data not required for the normal use and operation of the Offerings for their intended purpose, Customer agrees that Trimble is not responsible for, and will not be liable in any manner for such data, and Customer assumes all risks associated with, and agrees to hold Trimble harmless from and against any and all claims, losses, damages, liabilities, and expenses (including reasonable attorneys’ fees) related to or arising from, Customer’s use of data fields to store such data.
4.4 Excluded Claims. In addition to the Excluded Claims stated Section 7 (Limitation of Liability) in the General Terms, the following shall also be Excluded Claims for purposes of the Agreement: Section 10 (Indemnification) of these Software Terms and any breaches of Sections 2.3 (Restrictions) or Section 4 (Customer Obligations) of these Software Terms.
4.5 License Compliance. Customer shall promptly notify Trimble if Customer become aware of (i) any breach of confidentiality obligations regarding the Offerings, or (ii) any infringement (whether actual or alleged) of Trimble's intellectual property rights in the Offerings, or (iii) any unauthorized use of the Offerings by any person, and provide reasonable assistance to Trimble in connection with any suit or proceeding relating to such events.
4.6. Usage Limitations. Customer will comply with all Usage Limitations. If Customer exceeds the Usage Limitations during the Term, Trimble may invoice Customer for the use that exceeded the applicable Usage Limitations at Trimble’s then-current list price, and Customer shall pay in accordance with the Agreement. The parties may also agree on a Usage Limitation adjustment, in which case Customer must sign a new Order and pay the applicable fees.
4.7 Fee Criteria. If the Order states Software is made available based on GAR, Project Budget, Total Project Value, population, specific-department usage, Affiliate-limitations, or similar criteria (any such criteria, the “Fee Criteria”), the fees for that Software are calculated based on that Fee Criteria as of the date of Order issuance by Trimble. Unless otherwise provided the Order, if the Fee Criteria increases by more than 10% during the Subscription Term, (i) Customer shall promptly notify Trimble in writing, (ii) Trimble has the right to adjust such fees based on changes in the Fee Criteria and its then-current list price for that Software (including on a prorated basis for the current term), and (iii) Customer shall pay any applicable additional fees upon receipt of the invoice in accordance with the Agreement. At the request of Trimble, Customer will promptly provide documentation satisfactory to Trimble evidencing Customer’s then-applicable Fee Criteria.
5. Suspension of Access. Trimble may suspend Customer’s access to an Offering, without liability, and in whole or in part, if (a) Customer breaches any Usage Limitations, Sections 2.2 (Authorized Users), 2.3 (Restrictions), 4 (Customer Obligations) or 6.2 (Offering Content); (b) Customer’s account is five (5) business days or more overdue; or (c) immediately if Customer or any of its Authorized Users’ acts or omissions threaten the integrity, availability, or security of the Offerings or Trimble’s systems, products, or infrastructure (provided Trimble will use commercially reasonable efforts to provide Customer with advance notice of such suspension where Trimble determines exigent circumstances do not exist). Trimble will lift such suspension once the related issue or failure is cured to Trimble’s reasonable satisfaction. Fees will continue to apply during the suspension period.
Customer may be prohibited from entering new Customer Data or processing or accessing existing Customer Data and data reports during the suspension period. If Customer attempts to access or manipulate Customer Data utilizing third-party software during suspension, Trimble disclaims and Customer holds Trimble harmless from any responsibility or liability relating to lost or altered Customer Data or related damages.
6. Certain Features. The following provisions apply to the extent applicable to the Offerings.
6.1 Third-Party Materials. The Offerings may provide Customer with access to Third-Party Materials. Third-Party Materials are not part of the Offerings. To the extent specified by Trimble (including in any Supplemental Terms or Documentation), use of the Third-Party Materials may be subject to additional terms or restrictions (“Third-Party Terms”). Customer is solely responsible for its compliance with any Third-Party Terms, and failure to comply with such terms may result in termination of Customer’s right to access any features of the Offerings that utilize such Third-Party Materials. If no Third-Party Terms are specified, Customer may use Third-Party Materials solely in support of Customer’s authorized use of the Offerings in accordance with the Agreement.
6.2 Offering Content. “Offering Content” shall be any Trimble IP or Third-Party Materials made available as data or information through the Offering, whether included as part of the Offering or as a separate subscription. Any Offering Content that is Trimble IP will be deemed part of the Offering.
Any Offering Content that is Third-Party Materials shall be subject to any applicable Third-Party Terms. If no Third-Party Terms apply, then unless otherwise authorized by Trimble in writing or the applicable Documentation, such Third-Party Materials, and any derivative thereof, may only be used or accessed by an Authorized User. Third-Party Materials will be used solely for Customer’s internal purposes during the Term and must be accessed pursuant to a manual Authorized User request. Customer will not: (i) access, extract, or download any Third-Party Materials, or portions thereof, in batch or en masse by any means; (ii) use any device, software, or routine to bypass any hardware or software that prohibits volume requests for information; (iii) sell, offer to sell, rent, sublicense, or transfer any copies of theThird-Party Materials, or portions thereof, to a third party or allow a third party to use the Third-Party Materials; (iv) use the Third-Party Materials to develop services or products for sale or include any portion of the Third-Party Materials in any product or service; (v) use any portion of the Third-Party Materials to create a competitive service, product, or technology; (vi) recreate the Third-Party Materials or create otherwise a separate database or other repository of Third-Party Materials; (vii) use Third-Party Materials to train, augment, or correct another database or information repository; (viii) unless other specified in the Documentation, permit any individual other than an Authorized User to access or use the Offering Content and any derivative thereof, or (ix) make any portion of the Third-Party Materials available to the public in any manner. Upon notice from Trimble and/or any termination or expiration of the Term, Customer will immediately cease using and delete/destroy all electronic and physical copies of Third-Party Materials.
6.3 Open Source. The Offerings may incorporate third-party open source software (“Open Source”), as listed in the Documentation or otherwise made available by Trimble. To the extent the terms of the Open Source license prohibit the terms of the Agreement from applying to the Open Source, the terms of the Open Source license will apply to the Open Source on a stand-alone basis instead of the Agreement.
6.4 Third-Party Application Stores.
ATTACHMENT A 727
(a) Purchase from Application Store. If Customer obtains the Offering (or portions thereof) through a third-party application store, marketplace, or other site or service (each, an “Application Store”), such Application Store is considered a reseller. All fees are non-refundable once paid. Customer’s download of the Offering may be subject to other terms as specified by the operator of the Application Store from which Customer downloaded the Offering.
(b) Apple-Specific Terms. If Customer downloaded the Offering from Apple Inc.’s (“Apple”) Application Store, the following terms are part of the Agreement. The Agreement is between Customer and Trimble, and not with Apple. However, as required by Apple, Apple and its subsidiaries will be third-party beneficiaries of the Agreement and will have the right (and will be deemed to have accepted the right) to enforce the Agreement against Customer as a third-party beneficiary. To the maximum extent permitted by Law, Apple will have no warranty obligation with respect to the Offering, and, as between Apple and Trimble, any other claims, losses, liabilities, damages, costs, or expenses attributable to a failure to conform to a warranty will be Trimble’s responsibility. Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Offering. As between Trimble and Apple, Trimble is solely responsible for the Offering and for addressing any claims Customer or any third parties have about the Offering or Customer’s possession or use of the Offering, including without limitation (i) product liability claims; (ii) any claim that the Offering fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. In the event of any third-party claim that the Offering or Customer’s possession or use of the Offering infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement, or discharge of such claim.
6.5 Security for SaaS or Hosting Services for Licensed Software. This Section 6.5 (Security for SaaS or Hosting Services for Licensed Software) applies to Offerings that are SaaS or hosting services for Licensed Software. During the Term, Trimble or its third party hosting provider(s) will use commercially reasonable efforts to establish and maintain reasonable administrative, physical, and technical safeguards designed to protect (a) the security, confidentiality, and integrity of Customer Data; (b) against anticipated threats or hazards to the security, confidentiality, and integrity of Customer Data; (c) against unauthorized access to or use of Customer Data; and (d) against unlawful processing, accidental destruction, or loss of Customer Data. In the event Trimble is not in breach of the foregoing obligations and an unauthorized third party nonetheless gains access to the Customer Data, such disclosure of Customer Data in such circumstances shall not be a breach of Section 9 (Confidentiality) of the General Terms. In the event of any conflict between the terms of Section 9 (Confidentiality) of the General Terms and this Section 6.5 (Security for SaaS or Hosting Services for Licensed Software), the terms of this Section 6.5 (Security for SaaS or Hosting Services for Licensed Software) will control.
6.6 Third-Party Access.
(a) Contractors and Affiliates. Unless prohibited by Trimble in the Order, Documentation, any Supplemental Terms, or otherwise by Trimble in writing, Authorized Users may include individuals who are contractors or consultants of Customer or employees, contractors, or consultants of its Affiliates; provided, however, any such access and usage may require additional fees as described in Section 4.7 (Fee Criteria), if applicable. (b) Other Third-Parties. If expressly authorized by Trimble in the Order, Documentation, any Supplemental Terms, or otherwise by Trimble in writing, the Offerings may allow Customer to invite other third parties to become Authorized Users and/or access Customer Data. (c) Generally. Customer authorizes Trimble to share Customer Data with any third-party Authorized Users or as otherwise instructed by Customer.
Customer is solely responsible for such third-parties’ compliance with the Agreement and for any and all acts or omissions of any such third parties.
Such third parties are not intended third-party beneficiaries under the Agreement. Trimble shall have no liability for any act or omission of any such third party, including by way of access or use of Customer Data. Such third-party access or use of the Offerings must be solely and exclusively for the benefit of Customer, and any other purpose is prohibited. For clarity, as between Customer and any such third parties, any data or other information uploaded by such third party to the Offerings on Customer’s behalf will be deemed Customer Data of Customer. (d) Customer as a Third-Party. In the event that Customer is invited to access an Offering as a third party, any data or other information uploaded by Customer on behalf of such third party shall be deemed “Customer Data” of such third party.
7. Support. If Customer is eligible for Support and pays any applicable fees, Trimble will make such Support available in accordance with the Support Terms or as Trimble may otherwise expressly provide in writing. Unless otherwise set forth in writing by Trimble, Support is not available for Free Versions or Trials and Betas.
8. Term and Termination.
8.1 Perpetual License. If Customer purchases a perpetual license to Licensed Software, Customer’s license to the Licensed Software will continue in perpetuity subject to the terms and conditions of the Agreement. Support for Licensed Software is purchased separately unless otherwise indicated by Trimble in writing or on an Order.
8.2 Subscriptions.
(a) Subscription Term. If Customer purchases access to a SaaS or a license to Licensed Software for a limited period of time, the duration of the initial term and any renewals are as set forth in the Order (collectively, the “Subscription Term(s)”). Notwithstanding anything to the contrary in the Order, the start date for each Subscription Term for each Offering will begin on the Provision Date for that Offering. For clarity, each Offering may have a different Provision Date.
(b) Additional Subscriptions. If Customer previously purchased one or more Subscriptions for a particular Offering (“Existing Subscription(s)”) and subsequently purchases one or more additional Subscriptions (for any Offering) while the Existing Subscription(s) is in effect (the “Additional Subscription(s)”), the duration of the Subscription Term for the Additional Subscription will be as set forth in the Order. Unless otherwise set forth by Trimble in writing, all Customer’s Subscriptions shall have the same end date and Trimble may invoice all fees for all such Subscriptions on a single invoice.
8.3 Effect of Termination. Upon expiration or termination of the Agreement or the Order, Customer’s right to use the Offerings will cease and Customer will immediately cease any and all use of and access to the Offerings and will delete (or, upon request, return) all copies of any Offerings.
At the disclosing party’s request upon expiration or termination of the Agreement, the receiving party will delete all of the disclosing party’s Confidential Information (excluding Customer Data, which is addressed in Section 3 (Date Usage and Ownership)). Customer Data and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to the Agreement’s confidentiality restrictions.
8.4 Survival. In reference to Section 4.3 of the General Terms (Survival), the following Sections of these Software Terms survive any expiration or termination of the Agreement: 1 (Definitions), 2.3 (Restrictions), 3.1 (Data Usage and Ownership), 4 (Customer Obligations), 8.3 (Effect of ATTACHMENT A 728
Termination), 8.4 (Survival), 9.3 (Additional Disclaimers), and 10 (Indemnification). Except where an exclusive remedy is provided, exercising a remedy under the Agreement, including termination, does not limit other remedies a party may have.
9. Warranties and Additional Disclaimers.
9.1 Limited Warranty. Subject to the Agreement and any mandatory Laws to the contrary, Trimble warrants to Customer that during the Warranty Period, the Offerings will perform materially as described in the Documentation. The “Warranty Period” is (a) 90 days for Licensed Software licensed on a perpetual basis, and (b) for the duration of the applicable Subscription Term, for any Subscriptions. Notwithstanding the foregoing, Trimble makes no warranties with respect to Correction Services, which are provided as-is and as-available.
9.2 Warranty Remedy.
(a) If the Offering fails to conform to Section 9.1 (Limited Warranty) during the Warranty Period, Customer may make a reasonably detailed warranty claim within 30 days of discovering the issue. For any such claims reported by Customer within such period that Trimble determines are valid, Trimble will correct such non-conformity by issuing corrected instructions, a restriction, or a bypass, or by replacing the Offerings, at Trimble’s option. Subject to any mandatory Laws to the contrary, these procedures are Customer’s exclusive remedy, and Trimble’s entire liability, for the failure of the Offerings to conform to the warranty in Section 9.1 (Limited Warranty). (b) The foregoing limited warranty only applies if and to the extent that (i) any Offering associated with the warranty is properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with the Documentation, and (ii) any Offerings associated with the warranty is not modified or misused. The foregoing limited warranty does not apply to (1) issues caused by unauthorized use or modifications; (2) unsupported or unauthorized versions of any Offerings; (3) operating the Offerings under any specification other than, or in addition to, the Documentation; (4) issues in or resulting from Dependencies, Compatibilities, or third-party systems, products, or services; or (5) Free Versions, Trials and Betas or other similar versions.
9.3 Additional Disclaimers. Trimble makes the following disclaimers in addition to Section 6 (Warranty Disclaimer) in the General Terms. (a) General. TRIMBLE MAKES NO EXPRESS WARRANTY THAT CUSTOMER’S USE OF THE OFFERINGS WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF VIRUSES OR OTHER MALWARE OR PROGRAM LIMITATIONS; THAT TRIMBLE WILL REVIEW CUSTOMER DATA FOR ACCURACY; OR THAT TRIMBLE WILL MAINTAIN CUSTOMER DATA OR OTHER DATA WITHOUT LOSS. TRIMBLE IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET, SATELLITES, ELECTRONIC COMMUNICATIONS, OR OTHER SYSTEMS OUTSIDE TRIMBLE’S CONTROL. TRIMBLE WILL NOT BE LIABLE IN ANY MANNER FOR THE OUTPUT OBTAINED THROUGH USE OF THE OFFERINGS OR CUSTOMER’S RELIANCE ON SUCH OUTPUT. CUSTOMER IS RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF CUSTOMER’S USE OF THE OFFERINGS. THIS
RESPONSIBILITY INCLUDES THE DETERMINATION OF APPROPRIATE USES FOR THE OFFERINGS AND THE SELECTION OF THE OFFERINGS TO ACHIEVE INTENDED RESULTS. ANY FORMS, POLICIES, OR OTHER MATERIALS PROVIDED BY TRIMBLE THROUGH THE OFFERINGS OR DOCUMENTATION ARE NOT INTENDED AND SHOULD NOT BE RELIED UPON AS LEGAL ADVICE OR LEGAL OPINION. CUSTOMER SHOULD CONSULT ITS OWN LEGAL COUNSEL REGARDING THE USE OF ANY SUCH MATERIALS. CUSTOMER IS ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY OUTPUT OF THE OFFERINGS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD. (b) Correction Services Disclaimers. Customer acknowledges that the Correction Services and related network access are subject to transmission limitations caused by a variety of factors such as atmospheric conditions, topographical obstructions, limitations or lack of coverage of the underlying carrier service and other natural or manmade conditions. Additionally, motor and ignition noise, metal shielding, and interference by users of the same or adjacent radio channels may limit or interfere with Correction Services. Trimble is not responsible for the operation or failure of operation of GNSS satellites or the availability of GNSS satellite signals. (c) Third-Party Materials. Third-Party Materials are provided “AS IS” and Customer assumes all risk and liability regarding any use of (or results obtained through) Third-Party Materials. Trimble and its suppliers make no warranty or guarantee with respect to any Third-Party Materials, including regarding their accuracy or continued availability or compatibility. (d) Dependencies and Compatibilities. Trimble makes no warranty or guarantee with respect to any Dependencies, Compatibilities, or other factors outside of Trimble’s control, including their continued availability or compatibility. (e) Prohibited Data. Trimble and its suppliers specifically disclaim any responsibility for, and will not be liable in any manner arising from, any use of the Offerings in connection with Prohibited Data.
10. Indemnification. Customer will defend, indemnify, and hold harmless Trimble from and against any and all third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (a) any Customer Data, Dependencies, or Compatibilities, or (b) Customer’s breach of Sections 2.3 (Restrictions), 4 (Customer Obligations), 6.1 (Third-Party Materials), 6.2 (Offering Content), or 6.4 (Third-Party Application Stores) (each, a “Claim”). Trimble will give Customer prompt written notice of any Claim and will cooperate in relation to the Claim at Customer’s expense. Customer will have the exclusive right to control and settle any Claim, except that Customer may not settle a Claim without Trimble’s prior written consent (not to be unreasonably withheld) if the settlement requires Trimble to admit any liability, pay any amounts or take any action or refrain from taking any action (other than ceasing use of infringing materials). Trimble may participate in the defense of any Claim at its expense.
11. Government End-Users. Elements of the Offerings are commercial computer software. If the user or licensee of the Offerings is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Offerings or any related documentation of any kind, including technical data and manuals, is restricted by the terms of the Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Offerings were developed fully at private expense. All other use is prohibited.
12. Region-Specific Terms - France. Solely for purposes of Customers who’s billing address is in France, the following shall apply: Prohibited Data included any patient, medical or other protected health information regulated by the French Public Health Code and the GDPR; and Customer’s grant of rights in Section 3.1 (Generally) shall be for so long as the Customer Data is protected by intellectual property law.
ATTACHMENT A 729
Addendum #4
Supplemental Terms for Support and Maintenance
Version 1.0 (Last Updated: April 3, 2023)
Capitalized terms not defined herein have the meanings given in the General Terms and the Software Terms.
1. Scope. Provided that Customer has paid the applicable fees, Trimble shall provide the Support described in these Support Terms during the Maintenance Term (as defined below). The “Maintenance Term” shall be: (a) for Support for SaaS or Licensed Software licensed for a limited term, the applicable Subscription Term, and (b) for Support for Licensed Software licensed on a perpetual basis, the term specified in the Order, or if not specified, for a period of one (1) year.
2. Support.
2.1 During the applicable Maintenance Term, Trimble shall use reasonable efforts to correct or provide a workaround for any reproducible programming error in the Software attributable to Trimble with a level of effort commensurate with the severity of the error, as reasonably determined by Trimble. Upon identification of any programming error, Customer shall promptly notify Trimble of such error and shall provide Trimble with enough information to reproduce the error, including a listing of output and any other data that Trimble may reasonably request in order to reproduce the error and operating conditions under which the error occurred or was discovered. Trimble shall not be responsible for correcting any errors not attributable to Trimble.
2.2 For certain Software, Trimble may provide additional or different support services or procedures as set forth in the applicable Documentation, support handbook, or other written documentation provided by Trimble, if any (collectively, the “Additional Support Documentation”). If there is any conflict between these Support Terms and such Additional Support Documentation with respect to the description of support services, requirements or procedures, the provisions of such Additional Support Documentation will prevail. Customer agrees and acknowledges that Trimble may use third parties to provide Support on its behalf. Customer expressly consents to Trimble permitting such third parties to access Customer’s information and data to perform the Support for Customer.
3. Licensed Software Updates and Upgrades. During the applicable Maintenance Term, Customer shall be entitled to receive all upgrades and updates to the Software that are publicly released by Trimble. The contents and timing of all upgrades and updates will be decided by Trimble in its sole discretion. Any such updates and upgrades will be deemed to be “Software” and licensed under the terms and conditions of the Agreement, including any applicable software end user terms or license agreement. Updates and upgrades exclude (a) new versions of the Software (e.g., a change to the left of the decimal in the version number [e.g., 1.x to 2.x] or otherwise designated by Trimble), and (b) any separate modules and other functionality for which Trimble charges a separate fee.
4. Limitations and Exceptions. The following matters are not covered (and Trimble will not have any obligations with respect to such matters) pursuant to these Support Terms:
4.1. Any Software for which applicable fees have not been paid;
4.2. Any problem resulting from the misuse, improper use, alteration, or damage of the Software;
4.2. Any problem resulting from improper or inadequate installation, maintenance, or storage of the Software;
4.3. Any problem caused by modifications of the Software not made or authorized by Trimble;
4.4. Any problem resulting from any hardware or software in either case not developed or supported by by Trimble, including, without limitation:
any computers, tablets, disk drives, operating systems, network hardware or software, database, or any other hardware or third-party software;
4.5. Any problem resulting from the combination of the Software with other programming or equipment to the extent that such combination has not been approved by Trimble; and
4.6. Errors in any version of the Software other than the most recent release, provided that Trimble will continue to provide Support for superseded releases for a reasonable period (not to exceed ninety (90) days).
Support excludes on-site visits, installation and training, file conversion, optional products and services, directories, consulting services, shipping charges, or any recommended hardware.
5. Termination or Expiration. Support will automatically terminate with respect to any Software that is no longer licensed for use as a result of expiration or termination of the Agreement, or replacement of the applicable Software with new releases.
ATTACHMENT A 730
Additional Support Documentation
Version 1.1
1. Generally.
1.1. Trimble shall use the applicable level of effort to correct or provide a workaround for any reproducible error in the Offering attributable to Trimble commensurate with the severity of the error, as reasonably determined by Trimble in accordance with Section 3 (Severity Priority Levels) below.
1.2. For certain Offerings as set forth in Section 2 below, Trimble may provide a customer support portal (the “Support Portal”), which may allow Customer to submit support requests, report issues, view case histories, search the general knowledge database, and other features, as applicable. In the event of any conflicts between the terms set forth herein and any set forth in the applicable Supportal Portal, the terms herein shall govern.
1.3. For certain Offerings as set forth in Section 2 below, Trimble will provide support to Customer only by communication with the contacts designated by Customer in the Support Portal or otherwise as instructed by Trimble (each, a "Authorized Support Contact"). Customer may update Authorized Support Contact(s) from time to time as instructed by Trimble. Trimble may require the Authorized Support Contact(s) to have the relevant technical knowledge regarding the Offerings necessary to assist Trimble as needed.
1.4. Upon identification of any error that cannot be resolved by Customer as first line of support (e.g., via the Support Portal, its internal staff, etc.), then Customer (through its Authorized Support Contact(s)) shall promptly notify Trimble of such error and shall provide Trimble with enough information, assistance, and cooperation to reproduce the error, including a listing of output and any other data that Trimble may reasonably request in order to reproduce the error and operating conditions under which the error occurred or was discovered. Trimble shall not be responsible for correcting any errors not attributable to Trimble.
2. Support Portals. Support portals with information about reporting and general availability are described below.
Offering Support Portal*
Authorized
Support Contacts
Only?**
AgileAssets https://agileassets.com/techsupport Yes
Cityworks https:mycityworks.force.com Yes
e-Builder
(non-Fed Ramp)
https://www.e-builder.net/customer-center No
e-Builder
(Fed Ramp)
None.*** Yes
Trimble
Water
https://mytrimblewater.force.com/s/login No
* Additional phone numbers and hours of availability for contacting Trimble with support requests may be listed in the Support Portal.
** For any Products that do not require an Authorized Support Contact, any Authorized User of Customer may contact support. *** Authorized Users of e-Builder Enterprise Government Edition may submit support requests by phone (866-254-1531) or email ([email protected] ). Hours of operation are Monday through Friday 8:00 AM to 6:00 PM Eastern Time. Non-urgent and after-hours support requests should be submitted via email. All support requests submitted via email must include the following information: 1) Authorized User name and email address, 2) Phone number, 3) Account Name, and 4) Brief description of the issue. eBuilder Community and Salesforce are not currently available for the Government Edition.
3. Severity Priority Levels. As soon as reasonably practicable after Customer submits the relevant case information, Trimble will collect additional information and categorize the issue into one of four classifications as set forth below in good faith. Upon Customer submission of the case information, Trimble will use commercially reasonable efforts to issue a Response (as defined below) by the indicated target response goal set forth below. Once the priority level is determined, Trimble will use the level of effort for resolution described below.
Priority Level* Priority Criteria Target Response
Goal**
Level of Effort for Resolution
ATTACHMENT A 731
P1 most urgent and impactful ½ hour Trimble and Customer will prioritize any reasonably available resources to resolve
the situation or identify a work around.
P2 urgent and impactful, but usually has
an acceptable temporary
workaround
½ hour Trimble and Customer will prioritize any
reasonably available resources during
standard business hours to resolve the
situation or identify a work around.
P3 important, but not urgent and
impactful
4 hrs Trimble and Customer will use generally
available resources during standard
business hours to resolve the situation or
identify a work around.
P4 a low priority, informational, or an
enhancement request
24 hrs Trimble and Customer are willing to use
generally available resources during
standard business hours to provide
information or assistance.
* See Priority Matrix and definitions below. The main factors in determining priority level are urgency and impact. Trimble will also consider in good faith any additional relevant facts and circumstances in consultation with Customer that may result in a mutually agreed upon change in priority level.
** The use of the term “hour(s)” refers to business hours based on Trimble’s regular business schedule, and excludes nights, weekends and locallyobserved holidays (e.g., 24 hrs equals 3 business days at 8 hrs a day). “Response” means acknowledgment of the issue via the creation of a case number. Determination of priority level will occur as soon as practicable thereafter.
Priority matrix
Impact
Widespread Large Localized Individualized
Urgency Critical P1 P1 P2 P2
High P1 P2 P2 P3
Medium P2 P3 P3 P3
Low P4 P4 P4 P4
Definitions
Impact
Impact is a measure of the number of users,
sites, or devices affected.
Widespread. More than three quarters of users or devices are affected.
Large. (1) Multiple sites are affected or (2) between one-half and three-quarters of users or devices are affected.
ATTACHMENT A 732
Definitions
Localized. (1) A single site is affected or (2) less than one half of users or devices are affected.
Individualized. A single or a small number of users or devices are affected.
Urgency Urgency is a measure of the severity of the issue on the Customer’s operations.
Critical. Use of Offering as a whole or core functionality is stopped with no work around and with severe immediate impact to the Customer’s operations (e.g., outage).
High. Use of Offering as a whole or core functionality is severely degraded or a work around is available, and with immediate impact to the Customer’s operations.
Medium. Use of Offering or any functionality is not working as expected, and can be addressed through education, training, work around, work order, or a future enhancement.
Low. All other requests that are not the above.
4. Additional Limitations and Conditions.
(a) Unless otherwise expressly provided by Trimble in writing, Trimble does not support: (i) use of the Offering in a manner other than as authorized in the Agreement; (ii) conversions of Customer’s databases to accommodate new hardware or software, (iii) Customer Data debugging or manipulation, (iv) recurring support issues where Customer failed to initiate corrective actions previously recommended by Trimble or to provide information requested by Trimble, (v) implementation, report creation, onsite support, customizations (e.g., scripting or integration), or assistance with server migrations are not included as part of Support, but such services but may be purchased separately, (vi) any Offering where Customer has failed to meet its obligations with respect to the Agreement, including, without limitation, as set forth below.
(b) Customer must (i) require its personnel to obtain adequate training to operate the Offering, (ii) if required by Trimble for the particular Offering, designate Authorized Support Contacts who will submit all support cases to Trimble, (iii) provide internet and/or network access for Trimble when requesting support; and (iv) provide all information and assistance reasonably requested by Trimble related to the support request.
(c) For Licensed Software not hosted by Trimble, Customer is responsible for (i) securing the server environment, local network, and system security and protocols, including having staff qualified to assume responsibility for management administration and support for Customer’s hardware, database, and any Third-Party Materials, Dependencies, or Compatibilities, (ii) maintaining regular and frequent data backups, and recovering such data if necessary from backups maintained by Customer, (iii) establishing a secure method of access to Customer’s network as well as maintaining security protocols for Customer’s network; and (iv) incorporating Releases and any associated data migration.
(d) If any Customer support request is subject to any of the foregoing, then Trimble reserves the right to impose support fees at its then standard commercial time and materials rates for all such services, including pre-approved travel and per diem expenses to be reimbursed consistent with Customer’s policies. Trimble will notify Customer in advance of incurring any such fees.
ATTACHMENT A 733
Addendum #5
Supplemental Terms for Services
(Training, e-learning content, implementation, configuration, and other services) Version 1.0 (Last Updated: April 3, 2023)
Capitalized terms not defined herein have the meanings given in the General Terms.
1. Generally. Trimble or its authorized service providers will use commercially reasonable efforts to provide Services to Customer as described in an Order or SOW. Any changes in scope must be made in writing and approved by authorized representatives of Customer and Trimble.
2. Training and E-Learning. For any Services consisting of delivery of training or e-learning (e.g., videos, manuals, etc.), any content made available by Trimble shall not be deemed a Deliverable (as defined below), notwithstanding anything in an Order or SOW to the contrary, and no Intellectual Property Rights therein are assigned or transferred to the Customer. Unless an Order or Documentation states otherwise, prepaid training and e-learning content will expire if not completed within six months from the effective date of the Order or SOW. Trimble reserves the right to reschedule training if it determines in good faith that attendance is not sufficient or the originally scheduled time or location are no longer feasible. If the Order states a date that Services must be completed by, such date is presented for illustrative purposes. The actual completion date for such Services will be provided on the invoice.
3. Customer Materials. Customer shall provide Trimble with reasonable access to Customer’s technical data, computer programs, files, documentation, and/or other materials (collectively, “Customer Materials”) and to Customer’s resources, personnel, equipment, and facilities to the extent necessary for the performance of Services. Customer will be responsible for, and assumes the risk of any problems resulting from the content, accuracy, completeness, competence, or consistency of Customer Materials or its personnel. To the extent that Customer does not timely provide the foregoing access required for Trimble to perform the Services, Trimble shall be excused from performance until such items or access are provided. Customer hereby grants Trimble a limited and revocable right to use the Customer Materials for the purpose of performing the Services. Customer owns and will retain ownership (including all intellectual property rights) in the Customer Materials.
4. Customer Premises. Customer shall provide Trimble with safe access to Customer’s premises as reasonably required for Trimble to perform the Services, if onsite performance of Services is needed and agreed to by Customer. Trimble personnel shall comply with the reasonable written rules and regulations of Customer related to use of its premises, provided that such written rules and regulations are provided to Trimble prior to commencement of the Services.
5. Customer Dependencies. Customer is responsible for taking all actions identified or described in the Agreement which are a condition for Trimble to provide Services. Should Customer’s failure to take such actions result in a delay of Trimble against a delivery schedule, or result in additional provable costs incurred by Trimble, Trimble shall not be considered to be delayed in its obligations, and Trimble shall be entitled to payment of such additional costs.
6. Deliverables. “Deliverable(s)” shall mean any Trimble deliverables as expressly set forth on a SOW or Order. Trimble hereby grants Customer a worldwide, royalty-free, non-exclusive license to use the Deliverables for its internal business purposes in connection with the Offerings associated with such Deliverables and only for the period of time that Customer has ownership or authorized use of such Offerings. Unless expressly stated otherwise in the applicable Order or SOW, Trimble owns and will retain ownership (including all intellectual property rights) in and to the Deliverables (excluding any Customer Materials) and any modifications, improvements, and derivative works thereof (including to the extent incorporating any Feedback). If the parties have agreed that Trimble will assign ownership of Deliverables to Customer, the relevant SOW must set forth the terms and conditions regarding such assignment.
7. Limited Warranty. Trimble will perform Services in a professional and workmanlike manner. If notified of a nonconformity within ten (10) days of delivery of the applicable Services, and if Customer provides a sufficiently detailed justification to Trimble to allow Trimble to identify the non-conforming Services, Trimble will, as its sole liability and obligation for failure to provide Services meeting this warranty, either (a) re-perform the non-conforming Services at no additional cost to Customer, or (b) issue a credit for any Services which Trimble identifies as non-conforming.
8. Travel Expenses. Trimble will invoice Customer for reasonable and pre-approved out-of-pocket travel expenses incurred in connection with performing Services. Expenses may be invoiced separately from fees and may include, but are not limited to, airfare and other transportation, lodging, and incidentals. Expenses may also include meals reimbursable per a flat per diem rate, available upon request.
ATTACHMENT A 734
9.Other Offerings. These Services Terms only apply to Services, and not to any other Offerings, even if such other Offerings are referenced in an Order or SOW. For clarity, all such other Offerings shall not be considered a Deliverable hereunder, and the provision thereof shall be governed by one or more separate agreements between Trimble and Customer.
10. Non-Solicitation. During the Term and for a period of 12 months thereafter, Customer, shall not, directly or indirectly, solicit, hire, engage, or attempt to do any of the foregoing, any person who was an employee or independent contractor of Trimble who provided Services to Customer, without Trimble’s express prior written consent.
ATTACHMENT A 735
Addendum #6
Supplemental Terms for Hardware
Version 1.0 (Last Updated: April 3, 2023)
Capitalized terms not defined herein have the meanings given in the General Terms.
1. Delivery. Delivery times for Hardware are established when an Order is received and accepted by Trimble. Trimble will use commercially reasonable efforts to meet Customer’s requested delivery dates, unless Customer is in default under the Agreement or Trimble’s performance is otherwise excused (e.g., force majeure, etc.). Late delivery is not a basis for Customer’s cancellation of any Order.
Title and risk of loss or damage to the Hardware will pass to Customer upon delivery to Trimble’s shipping carrier..
Trimble will deliver any shipment FCA (Incoterms 2020) from its warehouse. Customer will pay or reimburse Trimble for all costs of carriage, freight, insurance (if applicable), taxes, duty and other related shipping charges. Trimble may fulfill its delivery obligations for Hardware through an Affiliate and/or authorized reseller. Trimble reserves the right to make partial deliveries.
2. Acceptance, Inspection, Notice of Nonconformance. All Hardware will be deemed accepted by Customer upon delivery to Trimble’s shipping carrier, subject to Customer’s right to inspect and reject damaged Hardware or Hardware that do not conform to the Order within 10 days of delivery. It is Customer’s responsibility to give Trimble prompt written notice of identified damage or non-conformance to the Order. If Customer retains the Hardware without giving notice within the designated period, it will be deemed to waive its right of rejection. The foregoing will not, however, prejudice Customer’s warranty remedies as described in the applicable Hardware Terms.
3. Limited Warranty. Unless the Hardware comes with a limited warranty that provides otherwise, Trimble warrants to Customer, and only to Customer, that the Hardware is designed and manufactured to conform in all material respects to Trimble's specifications and all parts are and will be free from defects in material and workmanship for a period of twelve (12) months from date of shipment. During the warranty period, Trimble's obligations in Section 7 (Sole Remedy; Warranty Procedure) are Customer’s only and exclusive remedy for Hardware that Trimble reasonably determines does not meet the limited warranty, and is made subject to these Hardware Terms.
4. Firmware. Trimble hereby grants Customer a personal, non-exclusive, revocable, non-assignable right to access and use firmware solely as necessary to use the Hardware in accordance with the Documentation. During the limited warranty period, Customer will be entitled to receive such Fixes (as defined below) to the firmware that Trimble releases and makes commercially available and for which it does not charge separately, subject to the procedures for delivery to purchasers of Trimble products generally. Minor Updates (as defined below), Major Upgrades (as defined below), new products, or substantially new software releases, as identified by Trimble, are expressly excluded from this fix process and limited warranty. Receipt of software fixes will not serve to extend the limited warranty period. "Fix(es)" means an error correction or other update created to fix a previous software version that does not substantially conform to its Trimble specifications; "Minor Update" occurs when enhancements are made to current features in software; and "Major Upgrade" occurs when significant new features are added to software, or when a new product containing new features replaces the further development of a current product line. Trimble reserves the right to determine, in its sole discretion, what constitutes a Fix, Minor Update, Major Upgrade, new products, or substantially new software releases.
5. Non-Trimble Manufactured Products. Trimble will extend to Customer the manufacturer's warranty, if any, for all equipment and/or software products manufactured by another manufacturer and furnished by Trimble to Customer under such other manufacturer’s brands. Customer acknowledges and agrees that Trimble shall not be responsible for separately warranting or supporting the equipment or software products of such other manufacturers.
6. Warranty Exclusions. The foregoing Hardware limited warranty will only apply in the event and to the extent that (a) the Hardware is properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with the Documentation, and (b) the Hardware is not modified or misused. This limited warranty does not apply to, and Trimble shall not be responsible for defects or performance problems resulting from (i) the combination or use of the Hardware with hardware or software products, information, data, systems, interfaces or devices not made, supplied or specified by Trimble; (ii) the operation of the Hardware under any specification other than, or in addition to, the Documentation; (iii) the unauthorized installation, modification, repair or use of the Hardware; (iv) damage caused by accident, lightning or other electrical discharge, fresh or salt water immersion or spray (outside Hardware specifications), or exposure to environmental ATTACHMENT A 736
conditions for which the Hardware is not intended; (v) normal wear and tear on consumable parts (e.g., batteries) or (vi) cosmetic damage. Trimble does not warrant or guarantee the results obtained through the use of the Hardware. TRIMBLE
MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO SERVICES, WHICH IF PROVIDED HEREUNDER ARE PROVIDED "AS-IS."
7. Sole Remedy; Warranty Procedure. If the Hardware fails during the warranty period for reasons covered by this limited warranty and Customer notifies Trimble of such failure during the warranty period, Trimble will at its option repair or replace the nonconforming Hardware with new, equivalent to new, or reconditioned parts or Hardware or, if either of the foregoing is commercially impractical in Trimble’s determination, refund the Hardware purchase price paid by Customer (excluding separate costs of installation, if any) upon Customer’s return of the Hardware in accordance with Trimble's product return procedures then in effect. Any repaired or replaced Hardware will be warranted for a period of thirty (30) days or the remainder of the original warranty period, whichever is longer. Warranty service will be provided at a designated Trimble service center or by an authorized Trimble service provider. Except as otherwise agreed by the parties, Customer shall be responsible for all shipping charges to the designated Trimble service center or authorized Trimble service provider.
8. Determination of Warranty Applicability: Trimble reserves the right to refuse warranty services if the Hardware date of purchase cannot be proven, if a claim is made outside the warranty period or if a claim is excluded from the warranty pursuant to the Terms. Following Trimble’s examination of Customer’s claim, Trimble will notify Customer of warranty status and the repair cost of any out-of-warranty Hardware. At such time Customer must issue a valid purchase order to cover the cost of the non-warranted Hardware repair and return freight, or authorize return shipment of the Hardware at Customer’s expense as-is.
9. Non-responsibility for Lost Data. Trimble shall not be responsible for any modification or damage to, or loss of any programs, data, or other information stored on any media or any part of any Hardware serviced by it or an authorized Trimble service provider, or for the consequence of such damage or loss, e.g., business loss in the event of system, program or data failure. It is Customer’s responsibility, prior to servicing, to backup data and remove all features, parts, alterations, and attachments not covered by warranty prior to releasing the Hardware to Trimble. The Hardware will be returned to Customer configured as originally purchased.
10. Return of Hardware: All Hardware returns are subject to Trimble’s prior written consent and must comply with its product return (RMA) procedures then in effect. Before returning or exchanging Hardware, Customer must contact Trimble directly to obtain an authorization number to include with the return. Customer must return Hardware to Trimble in their original or equivalent packaging, and Customer is responsible for risk of loss, as well as shipping fees back to Trimble. Hardware received but not eligible for return will be sent back to Customer freight collect. For approved returns, Customer will receive credit equal to the lesser of the Hardware invoice price or its current replacement value, less any applicable charges or fees.
ATTACHMENT A 737
Addendum #7
Supplemental Terms for U.S. Public Entities
Version 1.0 (Last Updated: October 7, 2023)
Capitalized terms not defined herein have the meanings given in the General Terms and the Software Terms.
1. Scope. To the extent Customer is a public or governmental entity, these Supplemental Terms provisions apply to the extent Customer is a public or governmental entity in the United States.
2. Intellectual Property Indemnification by Trimble. Trimble shall defend Customer from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark asserted against Customer by a third party based upon Customer’s use of the Offerings in accordance with the terms of this Agreement, and pay any resulting settlement or final judgment. If Customer’s use of any of the Offerings are, or in Trimble’s opinion are likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Trimble may, in its sole discretion: (a) substitute for the Offerings substantially functionally similar programs and documentation; (b) procure for Customer the right to continue using the Offerings; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to Customer the fee paid by Customer as reduced to reflect a five year straight-line depreciation from the applicable purchase date. The foregoing indemnification obligation of Trimble will not apply: (1) if the Offerings are modified by any party other than Trimble; (2) if the Offerings are combined with other non-Trimble products, but solely to the extent that the alleged infringement is caused by such combination; (3) to any unauthorized use of the Offerings; (4) to any unsupported release of the Offerings; or (5) to any third-party code, content, and/or data contained in and/or delivered with the Offerings.
3. Tax Exemption. If Customer is a tax-exempt entity and provides evidence of a tax-exempt certificate prior to executing this Agreement, then Section 3.1 of the General Terms regarding Customer’s responsibility to pay taxes shall be inapplicable.
4. No Indemnification by Customer. Section 8 (Indemnification) and the second to last sentence of Section 12.6 (Export Control) of the General Terms shall be inapplicable.
5. Public Records Law. Customer’s confidentiality obligations in Section 9 (Confidentiality) of the General Terms may be subject to applicable public records law.
6. Limited Publicity. Provision (b) in Section 12.11 (Publicity) of the General Terms shall be inapplicable.
7. Termination for Convenience. Customer may terminate this Agreement for convenience on not less than sixty (60) days’ written notice to Trimble. If Customer terminates this Agreement under this paragraph, all fees for the Term shall immediately become due and payable.
All previously paid fees (both used and unused) shall be non-refundable and forfeited. Furthermore, all earned, but unpaid, fees for professional services, if any, must be paid in full before the termination becomes effective.
8. Non-Appropriation of Funds. The Customer’s funds for future and ongoing purchases are contingent on the availability of future appropriations of funds. If funds are not appropriated for any payments due under this Agreement, the Customer will promptly notify Trimble in writing and the applicable Order will terminate as of the date of the notice in accordance with Section 7 (Termination for Convenience) above and the Customer will have no further obligation to make any payments with respect to the affected Order, provided however that the Customer shall pay for any goods or services ordered prior to the date of the Customer’s notice.
9. Piggyback. Trimble does business with many government entities whose applicable laws permit them to join an existing contract between another governmental agency and vendor to acquire goods and services thereunder. In such circumstances and if allowable by applicable law and contract, Customer expressly agrees to allow the other governmental agencies to acquire goods and services using this Agreement (“Piggyback”), subject to applicable pricing of the Trimble offerings at the time of the piggyback purchase.
10. Governing Law. Notwithstanding Section 12.9 (Governing Law and Venue) of the General Terms, the Laws of the jurisdiction required by applicable law shall exclusively govern this Agreement.
ATTACHMENT A 738
Addendum #8
Service Level Agreement; Data Security and Restoration
Version 1.0
1. Availability Service Level Agreement
For any Offering that is either (i) Software-as-a-Service or (ii) Licensed Software hosted by Trimble, the following will apply.
1.1. Target Availability. Trimble will use commercially reasonable efforts to make the Offering available with an uptime availability (time periods during which Customer has general connectivity to the Offering) (the “Target Availability”) as follows:
Offering
Target
Availability*
Cityworks 99.9%*
AgileAssets / Pavement Express 99%
e-Builder 99.95%
Trimble Water - Trimble Unity Work Management/ Trimble Unity Remote Monitoring 99.5%
*Target Availability is generally for a calendar month; provided that Cityworks target availability will be calculated on a quarterly basis.
1.2. Exclusions. The calculation of uptime will not include unavailability to the extent due to: (a) Customer’s use of the Offering in a manner not authorized in the Agreement or Documentation, (b) general Internet problems, force majeure events or other factors outside of Trimble’s reasonable control, including without limitation interruption or failure of telecommunications or digital transmission links, hostile network attacks, network congestion, denial of service attack, (c) Customer’s equipment, software, network connections or other infrastructure, (d) any acts or omissions of Customer or any third-party that is not a service provider of Trimble, (e) failure by Customer to pay any applicable fees under the Agreement, or (f) Scheduled Maintenance or emergency maintenance.
1.3. Scheduled Maintenance. “Scheduled Maintenance” means Trimble’s scheduled, routine, or other maintenance which (1) occurs at such times as may be listed on Trimble’s websites or Support Portal, or (2) Trimble notifies Customer with at least two (2) days advance notice, which can be via the Support Portal, e-mail, or in the Offering. Trimble reserves the right to schedule other maintenance periods on an as needed basis and will notify Customer in advance. Trimble will use commercially reasonable efforts to perform Scheduled Maintenance during low usage times.
1.4. Service Credits. If there is a verified failure of the Offering to meet Target Availability in a particular month and Customer makes a request for service credit within thirty (30) days after the end of such month, Customer will be entitled to a credit based on the monthly fees due for the affected Offering in such month (“Service Credit”). The Service Credit will be calculated as follows:
Service Credit = Pro Rata Fee * percentage of time that the Offering did not meet the Target Availability The "Pro Rata Fee" means (1) for Target Availability measured monthly, one-twelfth of the total annual fee for the Offering (excluding taxes, etc.), and (2) for Target Availability measured quarterly, one-fourth of the total annual fee for the Offering (excluding taxes, etc).
The Service Credit will be calculated to the nearest 30-minute interval. The total Service Credits in a month may not exceed 20% of the Monthly Fee.
Trimble will apply each Service Credit to Customer’s next invoice, provided that Customer’s account is fully paid up, without any outstanding payment issues or disputes. Customer will not receive any refunds for any unused Service Credits.
1.5. Sole Remedy. Service Credits constitute liquidated damages and are not a penalty. The Service Credits set forth in this Section are Customer’s sole and exclusive remedy for any failure to meet the Target Availability.
2. Data Security and Restoration
2.1. Software-as-a-Service and Hosted License Software. a) Trimble or its third-party hosting provider(s) shall use commercially reasonable efforts to establish and maintain reasonable administrative, physical, and technical safeguards designed to (a) protect the security, confidentiality, and integrity of Customer Data, (b) protect against anticipated threats or hazards to the security, confidentiality, and integrity of Customer Data; (c) protect against unauthorized access to or use of Customer Data; and (d) protect against unlawful processing, accidental destruction, or loss of Customer Data.
b) Trimble will use reasonable efforts to restore lost or damaged Customer Data for Offerings deployed through Trimble hosting services or as Software-as-a-Service, as described in this paragraph, if the loss or damage was caused by Trimble. Trimble will consult with ATTACHMENT A 739
Customer and provide information to Customer regarding the availability of backups and the potential limitations of data restoration.
Customer understands that some data loss may result upon restoration based on the frequency and availability of backups. If Customer Data loss or damage is not caused by Trimble, Trimble will provide support and technical assistance for data restoration subject to Trimble’s availability and payment of applicable fees at Trimble’s then-current hourly rates.
On Premises Licensed Software. Trimble does not provide regular support or technical assistance for the repair or restoration of lost or damaged Customer Data as part of support for Licensed Software not hosted by Trimble, regardless of the cause. Assistance for restoration may be available subject to Trimble’s availability and payment of applicable fees at Trimble’s then-current hourly rates.
ATTACHMENT A 740
Addendum #9
Statement of Work
This Statement of Work (“SOW”) describes the professional services that Customer has engaged Trimble (collectively “Parties’’) to perform on behalf of Customer. This SOW is integrated into a quote that incorporates the terms and conditions governed by the Parties (the “Agreement”). In the event of any inconsistency or conflict between the terms and conditions of this SOW and the Agreement, the terms and conditions of the Agreement shall govern, unless the SOW expressly identifies the term of the Agreement to be modified. This SOW may not be modified or amended except in writing signed by a duly authorized representative of each Party.
1 One-Time Implementation Services
Trimble to provide the following firm fixed price services under this SOW:
Phase & Deliverables Scope Comments
Project Kickoff & Cost Discovery
Kickoff Meeting Included 2 weeks after contract execution Implementation Goals Included Defined during Kickoff
Initial Project Schedule Included Defined during Kickoff. Total implementation timeline will take approximately 8 weeks.
Cost Discovery Included Identification of Customer cost configuration requirements
Project Design & Requirements
Solution Document Included Standard Requirements & Solution Design Document will be provided with the cost
configuration decisions made during Cost
Discovery. The Customer is responsible for
updating this documentation for additional
configuration changes performed by the
Customer outside of this implementation.
Project Configuration
Core Modules
Home
Projects
Calendar
Contacts
Setup
The roles and permissions are preconfigured and
recommended based on best practice. The
Customer will be trained to modify or add roles
and permissions.
One (1) project custom field will be configured
within the e-Builder Projects Module. The
Customer will be trained to modify or add project
custom fields.
Cost Module 3-Templates • Budget
• Funding
• Cashflow
Portfolio Management Level Cost Standard • Management of Master Commitments Process Module 7-Processes • Project Intake
• Budget Change Approval
• Commitment Approval
• Potential Change Order
• Change Order
ATTACHMENT A 741
Phase & Deliverables Scope Comments
• Consultant Invoice Approval
• Construction Pay App Approval
Planning Module 1-Template
Automation Step 3-Automation
Steps
• Project Creation
• PCO Bundling
• Schedule Import
Schedule Module 1-Preconfigured
Template
The Customer will be trained to modify or add
schedule templates.
Document Module 1-Preconfigured
Template
The Customer will be trained to modify or add
document templates.
Submittal Module Preconfigured
Import Toolkit Standard Per the Data Import/Export Toolkit section found in Additional Detail section of this SOW
EZ File Transfer Tool Standard Per the EZ File Transfer Tool (EZ File) section found in Additional Detail section of this SOW
Data Warehouse Standard Per the Data Warehouse section found in Additional Detail section of this SOW
Single Sign-On Standard Per the Single Sign-On (SSO) section found in Additional Detail section of this SOW
Integration Workshop Standard Per the Discovery Workshop section found in Additional Detail section of this SOW
ATTACHMENT A 742
2 Managed Services
Trimble will provide One (1/4) Quarter Time (the “Trimble Managed Services Resource”). The Trimble Managed Services Resource to be assigned to perform Professional Services tasks which include:
● e-Builder Enterprise administration
○ Creation of new user accounts
○ Setting up permissions
○ New process Rollouts
○ General user support
○ Project administration
○ Account maintenance (e.g. role and user clean up)
● e-Builder Enterprise Training and Education
○ Creating and maintaining training materials
○ New user basic training
○ Workflow training
○ Administrator training
○ Training on new features
● Data Analysis
○ Evaluate use of cost management
○ Leverage best practices
● Process Improvement and process roll-outs
○ Provide training on process design
○ Conduct design sessions and requirements documentation ○ Process testing
○ Reporting assistance
○ Report cleanup
○ Create reports and report subscription
○ Dashboard creation and modification
Place of Performance: The Trimble Managed Services Resource will perform the above Professional Services tasks Remotely Schedule:
● When Customer purchases its Trimble Managed Services Resource under this SOW, The Trimble Managed Services Resource is dedicating 25% of its time to support Customer. Customer is not allowed to transfer any “unused” time from the thencurrent month to future months, assuming the Trimble Managed Services Resource is directed to work by the Customer to work less hours than allotted.
● Scheduled time off for the Trimble Managed Services Resource will be requested and approved according to Trimble’s time off process and policies. The Customer will be notified of scheduled time off requests upon approval. Scheduled time off includes paid time off (“PTO”), holidays, and Trimble sponsored employee events. Customer agrees that the fee includes time for scheduled time off.
● Unscheduled time off for The Trimble Managed Services Resource will be requested and approved according to Trimble’s procedures and policies. The Customer will be informed of unscheduled time off upon approval. Unscheduled time off includes sick leave, medical leave, etc.
Disclaimer and Non-solicitation:
● The Trimble Managed Services Resource does not include any development hours. If custom development is needed to support the Trimble Managed Services Resource, a separate Order Form will be created. Common custom development items include custom reporting and integration.
● Trimble reserves the right to change the assigned resource and provide a satisfactory replacement. ● During the Term and for a period of two (2) years thereafter, Customer will not, directly or indirectly, employ, offer employment to, or otherwise retain the services of the Trimble Managed Services Resource, without the prior written consent of Trimble.
ATTACHMENT A 743
Term:
● Trimble shall be afforded ninety (90) days from the time of the full execution of the Order Form (and Purchase Order receipt, if applicable) to provision The Trimble Managed Services Resource. The Term shall be one (1) year from the Start of Work.
Start of Work will occur before project kickoff as there is preparation work needed (such as a project plan). Trimble and Customer will agree on the Start of Work date after execution of the Order Form. ● This Managed Services Scope of Work assumes that, upon execution of this Order Form, Trimble will begin the provision period described above so that the Managed Service resource will be able to train Customer on Customer's initial Implementation described elsewhere in this Order Form.
● Sixty (60) days notice prior to the expiration of this SOW is required if Customer wishes to: (1) expire the Trimble Managed Services Resource or (2) change the scope of work of the Trimble Managed Services Resource. Otherwise, the Trimble Managed Services Resource will automatically renew in one-year periods.
ATTACHMENT A 744
3 Additional Detail
EZ File Transfer Tool (EZ File)
e-Builder Enterprise provides an Easy File Transfer tool (EZ File) for the movement of document files. The EZ File tool makes it easier for our clients to upload and download many files on a frequent basis. For example, clients that wish to support the BIM file coordination process within e-Builder Enterprise would find value with this service. The EZ File is a supported file transfer service built into the e-Builder Enterprise architecture. It provides a “doorway” into the folders and files stored on the e-Builder servers. Using the e-Builder EZ File, our clients can upload and download files and folders between e-Builder and their computers without having to work directly within the e-Builder application in a browser. EZ File utilizes an industry standard file transfer method called WebDAV (Webbased Distributed Authoring and Versioning). WebDAV is commonly used to publish and manage files and directories on a remote web server. EZ File requires the client to use a 3rd party WebDAV user interface client to manage the upload and download process. eBuilder’s EZ File tool includes one (1) license to Syncovery. Any additional licenses or any additional upgrades to Syncovery required by Customer are not included and are Customer’s responsibility. For both manual uploads and automated using the EZ File, the folder location(s) is determined by the user.
Automation Step(s)
Automation Steps are provided under the following assumptions:
● One (1) round of User Acceptance Testing (UAT) will be performed by the Customer when directed by Trimble Professional Services. The Customer will complete UAT of the functionality within one UAT (1) testing round. Testing of functionality not explicitly described within this Order Form is out of scope and will require an additional Order Form providing for additional scope of work and pricing.
● Trimble Professional Services will not configure new processes or make changes to existing processes which are not explicitly stated in this Order Form. Process creation or process changes will be completed by the Customer prior to commencement of the work described within this Order Form.
Data Import/Export Toolkit
To understand the data that needs to be migrated from the Customer’s legacy systems to e-Builder Enterprise, Trimble is including a 1-day Data Migration Workshop for the Customer as detailed below. The Data Migration Workshop will help the Customer’s team identify the scope of the data that needs to be migrated by addressing the following questions:
● Identify and document the various sources and volumes of legacy data to be migrated:
● How many systems will data be migrated from?
● What formats does this data come in?
● What is the data structure?
● How many legacy projects will data be migrated for?
● How many data objects are associated with each project? ● How many project files must be migrated?
● What is the size of the data (i.e., 500 GB, 2TB, etc.)? ● Identify and document the strategy for each data type to be migrated.
At the completion of the 1-day Data Migration Workshop, the Trimble Data Migration Team will produce a data migration framework document for the Customer. The framework document summarizes the e-Builder Enterprise data configuration methodology and provides a structural framework and recommended approach for data migration. The Trimble implementation team will also provide the Customer with the Data Import/Export Toolkit for the Customer’s team to perform the import of data to e-Builder Enterprise.
ATTACHMENT A 745
Due to the highly technical and varying resource requirements associated with data migrations, the Proposed Scope of Work and Services does not include the actual migration of any Customer data into e-Builder Enterprise. We often find that data migration services are not necessary as our customers are able to leverage the Import Toolkit quickly and easily as described below.
If the Customer wants Trimble to perform any of the data migration activities identified in the 1-day Data Migration Workshop, the Trimble Implementation and Trimble Account Management teams will provide the Customer with a detailed data migration plan and executable actions with a proposed contractual amendment detailing the cost proposal to achieve these data migration objectives and services. Trimble will perform the agreed upon data migration activities after the full execution of the amendment. e-Builder Enterprise Data Import/Export Toolkit includes data import wizards for virtually all modules in the product, including cost, schedule, forms and workflow processes, bidding, submittals, projects, contacts, and users. These wizards guide the user through the import process, allowing them to easily map the data in the import file to the data fields in e-Builder Enterprise and preview the results prior to finalizing the import. Data exports leverage the same powerful query builder used by the Reporting and Business Intelligence modules available as part of the e-Builder Enterprise platform. With the export wizards, users can easily construct complex filters, choose which fields to include, and then retrieve and save just the desired information to a file that can be imported into another system. The e-Builder Data Import/Export Toolkit is ideal for initial data loads when new e-Builder Projects are brought online and/or migration of project data is necessary from other systems.
Data Warehouse
Trimble is offering a Data Warehouse as a Companion Product (A Companion Product is defined as an add-on application that is purchased separately from the core e-Builder Enterprise. It’s not “an embedded feature” or a “module” in e-Builder Enterprise) to eBuilder Enterprise which provides capital project performance data for use in enterprise reporting. It allows you to combine data with other enterprise data sets, including Enterprise Resource Planning, Customer Relationship Management, Human Capital Management, and other public or proprietary data for actionable intelligence or decision making. Most organizations will use best in class Business Intelligence solutions such as Tableau, Power BI, Qlik, Hyperion, Cognos or other platforms on top of or in concert with the e-Builder Data Warehouse. With e-Builder Enterprise Data Warehouse, you can leverage your own experts to extract value from capital improvement data, visualize information, publish dashboards through top Business Intelligence tools, and build trust through data democratization.
When you purchase e-Builder Enterprise Data Warehouse, Trimble will provide the Customer’s e-Builder Administrator with an endpoint and credentials (Schema, User name and Password). Through our Professional Services organization, e-Builder will test to ensure you are connected and onboard your delegates (description below). Professional Services are required as per the description below. How you connect to the Data Warehouse is dependent upon the Business Intelligence (BI) and Modeling tool that your organization chooses.
The Customer expressly understands that this offering by Trimble is a Client Access License, and although it will be billed with your existing Annual Software Subscription, this Client Access License does not affect your current Annual Software Subscription to eBuilder Enterprise.
Connectivity to Data Warehouse
Trimble provides you with an endpoint and credentials (Schema, User name and Password).
ATTACHMENT A 746
Services and Support
Services: Trimble’s support is limited to the actions found in yellow boxes above.
Availability: The e-Builder Enterprise Data Warehouse is refreshed one time in a 24 hour period, generally overnight Support: The Customer’s e-Builder Enterprise Administrator will follow the same process to request support by logging a ticket for Data Warehouse with e-Builder Support.
Discovery Workshop
Trimble will provide a discovery workshop for Integrations. The deliverable(s) for the discovery workshop includes:
● Existing Conditions Assessment document
● Design Recommendations
● Implementation Recommendations
The agenda and specific dates for this workshop will be confirmed during the project planning and kickoff.
If Customer would like Trimble to perform any of the Recommendations, an additional SOW containing a defined scope of work and funding shall be mutually executed prior to Trimble commencing work on the Recommendations.
ATTACHMENT A 747
4 Assumptions
The following responsibilities and assumptions are necessary for the successful completion of the scope of work found in this SOW.
In the event that an item below does not occur in the manner or time-frame defined, Trimble may request to meet with the Customer and mutually agree upon an adjustment to the schedule, work activities and fees. ● The Customer will make best efforts to ensure the committed participation of all appropriate technical and user personnel throughout the project, including but not limited to periodic status reviews. Customer resources provided during the technical and functional sessions must be empowered to make decisions on project direction. ● The Trimble Professional Services team will work jointly with the Customer team to resolve all issues including those impacting the scope and timeline. Issues that may impact the progress and the schedule will be documented. If the issue is critical, Trimble will present the issue to the Customer in writing as quickly as possible. Once the issue is presented in writing the Customer is expected to respond within two (2) business days. If the issue cannot be resolved within two days, they will notify Trimble and arrange a meeting with all relevant personnel to resolve this issue. Failure to do so could impact the cost and schedule of the Trimble implementation project. Trimble may suspend the SaaS Services or terminate this SOW unless Customer signs a SOW providing for additional funding. For purposes of clarity, the delays covered by this Paragraph include only those for which Customer has discretion and control, and specifically excludes matters that are beyond Customer’s discretion and control.
● All necessary content (data, text and graphics) will be provided to Trimble prior to the creative processes (if applicable). ● Unless specifically identified as deliverables within this document, Customer will enter any historical data from past projects to enable historical analysis.
● Unless specifically identified as deliverables within this document, data migration, system integrations or custom development of any kind is not included within the scope of the Trimble implementation project. These items can be included through the change management process if identified as required items. ● All change requests received and approved will be listed on a separate SOW. Each additional SOW must be signed and accepted prior to initiating additional work by Trimble.
ATTACHMENT A 748
City of Stockton
Legislation Text
File #: 24-0792, Version: 1
ADOPT RESOLUTION TO APPROPRIATE FUNDS AND AWARD A PROFESSIONAL SERVICES
CONTRACT FOR THE HAMMER LANE TRAFFIC SAFETY IMPROVEMENTS PROJECT
RECOMMENDATION
It is recommended that the City Council adopt a resolution to:
1. Appropriate Highway Safety Improvement Program funds in the amount of $256,500 to the Hammer Lane Traffic Safety Improvements, Project No. WT23040/State Project No. HSIPSL5008(211).
2. Approve findings pursuant to Stockton Municipal Code section 3.68.070 in support of an exception to the competitive bidding process.
3. Award a Professional Services Contract to W-Trans of Oakland, CA, in the amount of $198,637.48, for design services for the Hammer Lane Traffic Safety Improvements, Project No. WT23040/State Project No. HSIPSL-5008(211).
It is also recommended that the City Manager be authorized to take appropriate and necessary actions to carry out the purpose and intent of this resolution.
Summary
The Highway Safety Improvement Program (HSIP) is a core federal-aid program established to achieve a significant reduction in fatalities and serious injuries on all public roads. Caltrans, Division of Local Assistance, manages California's local agency share of HSIP funds. The Hammer Lane Traffic Safety Improvements project was awarded Cycle 11 HSIP funding. The project will improve pedestrians/bicyclists’ safety with the installation of a buffered Class II bicycle lane, radar speed signs, pedestrian-scale lighting, Americans with Disabilities Act (ADA) ramps, and other safety features.
On April 15, 2024, the City advertised a Request for Proposals (RFP) for design services for the Hammer Lane Traffic Safety Improvements, Project No. WT23040/State Project No. HSIPSL-5008 (211). On May 14, 2024, three firms submitted proposals for this project. The Selection Committee evaluated the proposals and found Kimley-Horn of Oakland, CA, to be the most qualified and highest ranked firm; however, negotiations were not successful with respect to scope and fee. W-Trans of Oakland, CA, was the next most qualified firm. Staff negotiated a fee in the amount of $198,637.48 with W-Trans for design services.
It is recommended that Council adopt a resolution appropriating funds and authorizing the City Manager to execute a Professional Services Contract in the amount of $198,637.48 with W-Trans for design services. Design is anticipated to be completed by December 2025.
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DISCUSSION
Background
HSIP is a federal-aid program administered by Caltrans and established to achieve a significant reduction in traffic fatalities and serious injuries on all public roads. Caltrans, Division of Local Assistance, manages California's local agency share of HSIP funds. HSIP focuses on infrastructure projects with nationally recognized crash reduction factors. HSIP projects are prioritized based on crash experience, benefit from counter measures, or other data-supported means.
Senate Bill 137 (Chapter 639 of the 2019 Statues), effective October 8, 2019, added Section 182.85 to the Streets and Highways Code that authorizes Caltrans to allow up to $100 million of federal local assistance funds to be exchanged for non-federal State Highway Account (SHA) funds. The city, county, or other eligible recipients receiving exchanged funding (federal to State) must use the funding on projects for purposes for which the federal local assistance funds were originally intended.
As a result, some of the Cycle 11 HSIP projects are State funded.
In September 2022, the City submitted six grant applications to Caltrans for Cycle 11 of the HSIP grant program. One of the applications was for the Hammer Lane Traffic Safety Improvements project. The project will improve pedestrians/bicyclists’ safety by reducing collisions between motorists and pedestrians/bicyclists and increase visibility along Hammer Lane between Lower Sacramento Road and Tam O’Shanter Drive (Attachment A). These improvements include installing radar speed feedback signs along the travel corridor, pedestrian-scale lighting at the intersections, reflective signal backplates on the signal heads, and signage and striping along the roadway.
Improvements will also modify existing non-ADA ramps to meet ADA standards that will provide an accessible pedestrian access route and convert the existing Class II bicycle lane into a buffered Class II bicycle lane to enhance bicyclists’ safety.
In March 2023, the Hammer Lane Traffic Safety Improvements, Project No. WT23040/State Project No. HSIPSL-5008(211), was approved for State Cycle 11 HSIP funding in the amount of $1,757,800 for design and construction. This project is 90 percent State funded and requires a 10 percent local match in the amount of $175,780.
Since this project is funded with SHA funds, Disadvantaged Business Enterprise program rules do not apply.
Present Situation
On April 15, 2024, the City advertised an RFP for design services for the Hammer Lane Traffic Safety Improvements, Project No. WT23040/State Project No. HSIPSL-5008(211). On May 14, 2024, three proposals were received from the following firms:
· W-Trans (Oakland, CA)
· Kimley-Horn (Oakland, CA)
· TJKM (Pleasanton, CA)
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The Selection Committee evaluated and ranked all proposals based on each firm’s understanding of work, experience with similar kinds of work, qualifications of proposed team, capability of developing innovative or advanced techniques, familiarity with State procedures, and demonstrated technical ability.
Kimley-Horn received the highest ranking, based on the noted criteria, and was determined to be the most qualified firm for this project. However, negotiations with Kimley-Horn were not successful with respect to scope and fee. Staff proceeded to negotiate with the next most qualified consultant, WTrans of Oakland, CA. Staff negotiated a fee in the amount of $198,637.48 with W-Trans for design services.
Because the negotiated fee exceeded the available HSIP funding programmed for design, staff requested additional HSIP funding from Caltrans. Caltrans awarded an additional $153,000 in HSIP funding that required a local match of $17,000. With the additional HSIP funding and match requirement, the total design, construction, administration, and contingency funding is $1,927,800 with a 10 percent local match of $192,780.
It is recommended that Council adopt a resolution appropriating funds and authorizing the City Manager to execute a Professional Services Contract in the amount of $198,637.48 to W-Trans for design services for the Hammer Lane Traffic Safety Improvements, Project No. WT23040/State Project No. HSIPSL-5008(211). It is anticipated that the design will be completed by December 2025.
Findings
Pursuant to Stockton Municipal Code (SMC) section 3.68.070, Council may approve findings which support an exception to the competitive bidding process. These findings include:
1. The City does not have sufficient staff and expertise to design this project.
2. Use of the RFP process is appropriate for this Professional Services Contract because it relies on the evaluation of professional qualifications and performance as the basis for selection of a vendor. Use of the criteria helps ensure selection of a vendor that will provide the highest quality professional service, which is in the public interest.
3. The City negotiated a contract following solicitation of competitive proposals in accordance with SMC section 3.68.070.A.3.
FINANCIAL SUMMARY
With the appropriation of HSIP funding, there is sufficient budget in the HSIP 11 - Hammer Lane Traffic Safety Improvements, Project No. WT23040/State Project No. HSIPSL-5008(211), to award a Professional Services Contract in the amount of $198,637.48 to W-Trans for the project.
There is no impact to the City’s General Fund or any other unrestricted fund as a result of taking the recommended actions.
Attachment A - Vicinity Map
City of Stockton Page 3 of 3 Printed on 9/13/2024
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Vicinity Map ATTACHMENT A
Hammer Lane Traffic Safety Improvements from Lower Sacramento Road to Tam O'Shanter Drive
City Project No. WT23040/State Project No. HSIPSL-5008(211)
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752
Resolution No.
STOCKTON CITY COUNCIL
RESOLUTION APPROPRIATING FUNDING AND AWARDING A PROFESSIONAL
SERVICES CONTRACT FOR THE HAMMER LANE TRAFFIC SAFETY
IMPROVEMENTS, PROJECT NO. WT23040/STATE PROJECT NO. HSIPSL5008(211) On April 15, 2024, the City advertised a Request for Proposals (RFP) for design services for the Hammer Lane Traffic Safety Improvements, Project No. WT23040/State Project No. HSIPSL-5008(211). Three proposals were received; and Kimley-Horn was the most qualified and highest ranked firm; however, negotiations with Kimley-Horn were not successful with respect to scope and fee. Staff proceeded to negotiate with the next most qualified consultant, W-Trans. Staff negotiated a fee in the amount of $198,637.48 with W-Trans for design services. This fee was more than the project available funds of $1,927,800.00 with a 10 percent local match of $192,780.00; and
In June 2024, staff requested additional Highway Safety Improvement Program (HSIP) funding from Caltrans to fully fund administrative and contingency costs for design.
Caltrans awarded the City an additional $153,000.00 in State HSIP funding for design of the project; and
Appropriation of funds is needed to fund all remaining costs to complete the design services and staff costs; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF STOCKTON, AS FOLLOWS:
1. The City Council approves the appropriation of HSIP funds in the amount of $256,500.00 to the Hammer Lane Traffic Safety Improvements, Project No.
WT23040/State Project No. HSIPSL-5008(211).
2. The City Council approves findings pursuant to Stockton Municipal Code (SMC) Section 3.68.070 in support of an exception to the competitive bidding process.
These findings include:
A. The City does not have sufficient staff and expertise to design this project.
B. Use of the RFP process is appropriate for this Professional Services Contract because it relies on the evaluation of professional 753
qualifications and performance as the basis for selection of a vendor.
Use of the criteria helps ensure selection of a vendor that will provide the highest quality professional service, which is in the public interest.
C. The City negotiated a contract following solicitation of competitive proposals in accordance with SMC Section 3.68.070.A.3.
3. The City Council awards a Professional Services Contract between the City of Stockton and W-Trans, in the amount of $198,637.48, and the City Manager is authorized and directed to execute same, a copy of which is attached as Exhibit 1 and incorporated by this reference.
4. The City Manager is hereby authorized to take whatever actions are necessary and appropriate to carry out the purpose and intent of this Resolution.
PASSED, APPROVED, and ADOPTED September 17, 2024 .
KEVIN J. LINCOLN II
Mayor of the City of Stockton
ATTEST:
KATHERINE ROLAND, CMC, CPMC
Interim City Clerk of the City of Stockton
754
Professional Services Contract – W-Trans - HAMMER LANE TRAFFIC SAFETY IMPROVEMENTS, PROJECT NO. WT23040 / STATE PROJECT NO. HSIPSL-5008(211) (Updated 010/18/23)
PROFESSIONAL SERVICES CONTRACT
(for State funded projects)
THIS CONTRACT is entered into this day of 2024, between the CITY OF STOCKTON, a municipal corporation (“City”), and W-TRANS whose address is 414 13TH STREET, 5TH FLOOR, OAKLAND, CA 94612 (“Consultant”) for the HAMMER LANE TRAFFIC SAFETY IMPROVEMENTS, PROJECT NO. WT23040 / STATE PROJECT NO. HSIPSL-5008(211) hereinafter referred to as “Project”.
RECITALS
A. Consultant represents that it is licensed in the State of California and is qualified, willing and able to provide the services proposed in the SCOPE OF WORK section of this Contract.
B. City finds it necessary and advisable to use the services of the Consultant for the purposes provided in this Contract.
NOW THEREFORE, in consideration of the mutual promises, covenants and conditions in this Contract, City and Consultant agree as follows:
1. SCOPE OF SERVICES. Subject to the terms and conditions set forth in this Contract, Consultant shall undertake and complete the services described in Exhibit A. Consultant shall provide said services at the time, place, and in the manner specified in Exhibit C and compatible with the standards of the profession. Consultant agrees that it shall produce a fully complete project that is acceptable to the City.
2. COMPENSATION. City shall pay Consultant for services outlined in Exhibit A according to the fee not to exceed the schedule detailed in Exhibit B, which is attached to this Contract and incorporated by this reference. Consultant agrees this fee is for full remuneration for performing all services and furnishing all staffing and materials called for in the scope of services. The payments shall be made on a monthly basis upon receipt and approval of Consultant’s invoice. Total compensation for services and reimbursement for costs shall not exceed $198,637.48 or as otherwise mutually agreed to in a Contract Amendment.
3. INSURANCE. During the term of this Contract, Consultant shall maintain in full force and effect at its own cost and expense the insurance coverage as set forth in the attached Exhibit D and shall otherwise comply with the other provisions of Exhibit D.
4. INDEMNITY AND HOLD HARMLESS. Pursuant to the full language of California Civil Code §2782, design Professional agrees to indemnify, including the cost to defend, City of Stockton and its officers, officials, employees, and volunteers from and against any and all claims, demands, costs, or liability that arise out of, or pertain to, or relate to the negligence, recklessness, or willful misconduct of Design Professional and its employees or agents in the performance of services under this contract, but this
EXHIBIT 1
755
Professional Services Contract – W-Trans - HAMMER LANE TRAFFIC SAFETY IMPROVEMENTS, PROJECT NO. WT23040 / STATE PROJECT NO. HSIPSL-5008(211) (Updated 010/18/23) indemnity does not apply to liability for damages arising from the sole negligence, active negligence, or willful acts of the City of Stockton; and does not apply to any passive negligence of the City of Stockton unless caused at least in part by the Design Professional. The City of Stockton agrees that in no event shall the cost to defend charged to the Design Professional exceed that professional’s proportionate percentage of fault.
This duty to indemnify shall not be waived or modified by contractual agreement or acts of the parties.
5. SCHEDULE AND TERM. Consultant shall perform the scope of work as described in Exhibit A according to the schedule detailed in Exhibit C, which is attached to this Contract and incorporated by this reference. This contract shall commence on the date written above and shall expire on DECEMBER 31, 2027, unless extended by mutual agreement through the issuance of a Contract Amendment.
A. Invoices submitted by Consultant to City must contain a brief description of work performed, time used and City project number. Payment shall be made within thirty (30) days of approval of invoice by City.
B. Upon completion of work and acceptance by City, Consultant shall have sixty (60) days in which to submit final invoicing for payment. An extension may be granted by City upon receiving a written request thirty (30) days in advance of said time limitation. City shall have no obligation or liability to pay any invoice for work performed which Consultant fails or neglects to submit within sixty (60) days, or any extension thereof granted by the City, after work is accepted by City.
6. CONFORMANCE TO APPLICABLE LAWS. Consultant shall comply with all applicable Federal, State, and Municipal laws, rules, and ordinances. Consultant shall not discriminate in the employment of persons or in the provision of services under this Contract on the basis of any legally protected classification, including race, color, national origin, ancestry, sex or religion of such person.
A. TITLE VI
Title VI of the Civil Rights Act of 1964 requires that “no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” (42 USC Section 2000d). http://www.dol.gov/oasam/regs/statutes/titlevi.htm.
The City of Stockton requires compliance with the requirements of Title VI in all of its programs and activities regardless of funding source.
B. DISCRIMINATION AND HARASSMENT POLICY
The City of Stockton has a Discrimination and Harassment Policy (Exhibit F).
The purpose of this policy is to reaffirm the City’s commitment to demonstrating
Professional Services Contract – W-Trans - HAMMER LANE TRAFFIC SAFETY IMPROVEMENTS, PROJECT NO. WT23040 / STATE PROJECT NO. HSIPSL-5008(211) (Updated 010/18/23) respect for all individuals by strictly prohibiting discrimination and harassment, including sexual harassment in the workplace, to define the types of behavior and conduct prohibited by this policy, and to set forth a procedure for reporting, investigating, and resolving complaints of discrimination and harassment in the workplace.
C. LABOR STANDARDS PROVISIONS/CALIFORNIA LABOR CODE
The bidder shall understand that conditions set forth in Chapter 1, Part 7, Division 2 of the California Labor Code shall be considered part of the contract agreement.
https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=LA B&division=2.&title=&part=7.&chapter=1.&article=2.
D. PREVAILING WAGE RATES
Consultant and any subcontractor shall pay each employee engaged in the trade or occupation not less than the prevailing hourly wage rate. In accordance with the provisions of Section 1770 of the Labor Code, the Director of Department of Industrial Relations of the State of California has determined the general prevailing rates of wages and employer payments for health and welfare, pension, vacation, travel time, and subsistence pay as provided for in Section 1773.1, apprenticeship or other training programs authorized by Section 3093 and similar purposes applicable to the work to be done.
Consultant performing the work under this contract shall obtain a copy of the wage rate determination and shall distribute copies to each subcontractor. As the wage determination for each craft reflects an expiration date, it shall be the prime Consultant and each subcontractor's responsibility to ensure that the prevailing wage rates of concern is current and paid to the employee. i. The Consultant performing the work shall be responsible for obtaining a copy of the State wage rate determination. State wage rates may be obtained at
http://www.dir.ca.gov/OPRL/pwd/Determinations/Northern/Northern.pdf.
The Consultant shall be responsible for posting said wage rates at a prominent location at the work site and shall maintain same in a good readable condition for the duration of the work.
ii. Should the Consultant choose to work on a Saturday, Sunday or on a holiday recognized by the Labor Unions, the Consultant shall reimburse the City the actual cost of engineering, inspection, superintendence, and or other overhead expenses which are directly chargeable to the contract. Should such work be undertaken at the request of the City, reimbursement will not be required. To conform strictly with the provisions of Division 2, Part 7, Chapter 1, Article 2, of the Labor Code of the State of California. To forfeit as a penalty to City the sum of TWENTY FIVE AND NO/100 DOLLARS ($25.00) for each laborer, worker, or
Professional Services Contract – W-Trans - HAMMER LANE TRAFFIC SAFETY IMPROVEMENTS, PROJECT NO. WT23040 / STATE PROJECT NO. HSIPSL-5008(211) (Updated 010/18/23) mechanic employed by Consultant, or by any subcontractor under Consultant, in the execution of this contract, for each calendar day during which any laborer, worker, or mechanic is required or permitted to work more than eight (8) hours and who is not paid the general prevailing rate of per diem wages for holiday and overtime work in violation of the provisions of Sections 1770 to 1781 of the Labor Code of the State of California. That all sums forfeited under the provisions of the foregoing sections shall be deducted from the payments to be made under the terms of this contract.
iii. PAYROLL RECORDS The Consultant to whom the contract is awarded shall ensure that the prime and each subcontractor will, in accordance with Section 1776 of the Labor Code, maintain certified payroll records.
A copy of said records shall be provided with each invoice to the Public Works Department, Attention: Contract Compliance Officer. It shall be the Consultant’s responsibility to obtain copies of the current prevailing wage rate determination for all subcontractors. Additionally, certified payroll records must be uploaded to the DIR website as required by labor code.
iv. APPRENTICESHIP STANDARDS The Consultant shall comply with the provisions established in Section 1777.5 of the Labor Code concerning the 1) certified approval by local joint apprenticeship committees for the employment and training of apprentices, and 2) contribution of funds to administer and conduct apprenticeship programs, if applicable to the job.
E. APPENDIX E OF THE TITLE VI ASSURANCES
During the performance of this contract, the contractor, for itself, its assignees, and successors in interest agrees to comply with Appendix E of the Title VI Assurances attached as Exhibit G.
F. SANCTIONS
Deliverables must conform with all applicable federal, state, and local laws. Such conformity includes compliance with federal sanctions, and Contractor certifies that it has not and will not engage in prohibited transactions with sanctioned persons or entities.
7. RIGHTS AND DUTIES OF CITY. City shall make available to Consultant all data and information in the possession of City which both parties deem necessary to complete the work, and City shall actively aid and assist Consultant in obtaining such information as may be deemed necessary from other agencies and individuals.
8. OBLIGATIONS OF CONSULTANT. Throughout the term of this Contract, Consultant represents and warrants that it has or will have at the time this Contract is executed, all licenses, permits, qualifications, insurance, and approvals of whatsoever
Professional Services Contract – W-Trans - HAMMER LANE TRAFFIC SAFETY IMPROVEMENTS, PROJECT NO. WT23040 / STATE PROJECT NO. HSIPSL-5008(211) (Updated 010/18/23) nature which are legally required for the Consultant to practice its professions, and Consultant shall, at its own cost and expense, keep in effect during the life of this Contract all such licenses, permits, qualifications, insurance, and approvals. Consultant shall meet with the Public Works Director or other personnel of City or third parties as necessary on all matters connected with the carrying out of Consultant’s services. Such meetings shall be held at the request of either party hereto. 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.
9. OWNERSHIP OF WORK. All reports, drawings, designs, plan review comments, work product, and all other documents completed or partially completed by Consultant in the performance of this Contract shall become and remain the property of the City. Any and all copyrightable subject matter in all materials is hereby assigned to the City and the Consultant agrees to execute any additional documents that may be necessary to evidence such assignment. All materials shall be delivered to the City upon completion or termination of the work under this Contract. If any materials are lost, damaged, or destroyed before final delivery to the City, the Consultant shall replace them at its own expense. Consultant shall keep materials confidential. Materials shall not be used for purposes other than performance of services under this Contract and shall not be disclosed to anyone not connected with these services unless the City expressly provides prior written consent.
10. CONTRACT AMENDMENTS. City reserves the right to make such alterations as may be deemed necessary or advisable and to require such extra work as may be required for the proper completion of the work contemplated by Consultant.
Any such changes will be set forth in a Contract Amendment which will specify, in addition to the work done in connection with the change made, adjustment of contract time, if any, and the basis of compensation for such work. A Contract Amendment will not become effective until approved by the authorized City official.
11. TERMINATION. The City may terminate this Contract upon thirty (30) calendar days written notice to Consultant with the reason for termination stated in the notice. The Contract shall then be deemed terminated and no further work shall be performed by Consultant. If the Contract is so terminated, the Consultant shall be paid for that percentage of work actually completed at the time the notice of termination is received.
12. CONSULTANT STATUS. In performing the obligations set forth in this Contract, Consultant shall have the status of an independent contractor and Consultant shall not be considered to be an employee of the City for any purpose. All persons working for or under the direction of Consultant are its agents and employees, and are not agents of the City. Subcontractors shall not be recognized as having any direct or contractual relationship with the City. The persons engaged in the work, including employees of subcontractors and suppliers, will be considered employees of Consultant.
The Consultant shall be responsible for the work of subcontractors, which shall be subject
Professional Services Contract – W-Trans - HAMMER LANE TRAFFIC SAFETY IMPROVEMENTS, PROJECT NO. WT23040 / STATE PROJECT NO. HSIPSL-5008(211) (Updated 010/18/23) to the provisions of this Contract. The Consultant is responsible to the City for the acts and omissions of its subcontractors and persons directly or indirectly employed by them.
A. If in the performance of this Contract 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 Consultant.
i. 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.
ii. As an independent contractor, Consultant hereby indemnifies and holds City harmless from any and all claims that may be made against the City based upon any contention by any third party that employer-employee relationship exists by reason of this Contract.
13. ASSIGNMENT. Consultant shall not assign, sublet, or transfer this Contract or any interest or obligation in the Contract without the prior written consent of the City, and then only upon such terms and conditions as City may set forth in writing. Consultant shall be solely responsible for reimbursing subcontractors.
14. HEADINGS NOT CONTROLLING. Headings used in the Contract are for reference purposes only and shall not be considered in construing this Contract.
15. NOTICES. Any and all notices herein required shall be in writing and shall be sent by certified or registered mail, postage prepaid, addressed as follows:
To Consultant: W-Trans To City: Public Works Director
414 13TH Street City of Stockton
5 TH Floor 22 E. Weber Ave., Rm. 301
Oakland, CA 94612 Stockton, CA 95202
16. LICENSES, CERTIFICATIONS, AND PERMITS. Prior to the City’s execution of this Contract and prior to the Consultant’s engaging in any operation or activity set forth in this Contract, Consultant shall obtain a City of Stockton business license, which must be kept in effect during the term of this Contract. Consultant covenants that it has obtained all certificates, licenses, permits and the like required to perform the services under this Contract.
17. RECORDS AND AUDITS. City reserves the right to periodically audit all charges made by Consultant to City for services under this Contract. Upon request, Consultant agrees to furnish City, or a designated representative, with necessary information and assistance.
Professional Services Contract – W-Trans - HAMMER LANE TRAFFIC SAFETY IMPROVEMENTS, PROJECT NO. WT23040 / STATE PROJECT NO. HSIPSL-5008(211) (Updated 010/18/23) Consultant agrees that City or its delegate shall have the right to review, obtain, and copy all records pertaining to performance of the Contract. Consultant agrees to provide City or its delegate with any relevant information requested, and shall permit City or its delegate access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purposes of determining compliance with this Contract. Consultant agrees to maintain such records for a period of three years from the date that final payment is made.
18. CONFIDENTIALITY. Consultant shall exercise reasonable precautions to prevent the unauthorized disclosure and use of City reports, information or conclusions.
19. CONFLICTS OF INTEREST. Consultant covenants that other than this Contract, Consultant has no financial interest with any official, employee, or other representative of the City. Consultant and its principals do not have any financial interest in real property, sources of income or investment that would be affected in any manner or degree by the performance of Consultant’s services under this Contract. If such an interest arises, Consultant will immediately notify City.
20. WAIVER. In the event either City or Consultant at any time waive any breach of this Contract by the other, such waiver shall not constitute a waiver of any other or succeeding breach of this Contract, whether of the same or of any other covenant, condition, or obligation.
21. GOVERNING LAW. California law shall govern any legal action pursuant to this Contract with venue for all claims in the Superior Court of the County of San Joaquin, Stockton Branch or, where applicable, in the federal District Court of California, Eastern District, Sacramento Division.
22. NO PERSONAL LIABILITY. No official or employee of City shall be personally liable to Consultant in the event of any default or breach by City or for any amount due Consultant.
23. INTEGRATION AND MODIFICATION. The response by Consultant to the Request for Proposals and the Request for Proposals on file with the City Clerk are hereby incorporated herein by reference to the extent that such documents do not differ from the provisions and terms of this Contract that shall supersede such response to Request for Proposals. This Contract represents the entire integrated agreement between Consultant and City, supersedes all prior negotiations, representations, or agreements, either written or oral, between the parties, and may be amended only by written instrument signed by Consultant and City. All exhibits and this contract are intended to be construed as a single document. Should any inconsistency occur between the specific terms of this Contract and the attached exhibits, the terms of this Contract will prevail.
24. FEDERAL PROVISIONS. Consultant shall comply with the Federal Aid Consultant Contract Provisions which are attached hereto as Exhibit “E” and incorporated herein by this reference.
762
A Detailed Work Plan for the Hammer Lane Improvements
July 2024
Detailed Work Plan
Task 1 Background Research
Task 1.1 Field Review
W-Trans Team will conduct field reconnaissance of the project area, review and verify the location and type of existing improvements, equipment, bus zone locations, intersection geometrics, posted speed limits, and bus route movements.
Task 1.2 Background Research, Survey, Assessment
W-Trans team will create base mapping for the project design based on the topographic data received from Siegfried. The research will consist of reviewing all City provided record documents, assessors maps, parcel maps, records of survey , and utility block book provided by the utility purveyors. Said research will be incorporated into a topographic survey of the project areas that is surveyed on the City of Stockton local datum. The information will be shared with the team in AutoCAD format.
Task 1.3 Technical Memo
Turning movement counts will be collected for the a.m. and p.m. peaks at all five intersections. Spot speed surveys will be conducted at four locations along the corridor. Existing conditions will be documented based on the counts obtained and observations during the site visit. These results will be presented in text, including a Level of Service table. Post-project conditions will be assessed with the removal of the existing fourth through lanes to determine resulting operation for existing traffic. Potential traffic signal modifications will be reviewed should the intersections drop below an acceptable service level with the removal of a through lane, including but not limited to right-turn overlaps.
Collision records for the study intersections and study segment of Hammer Lane will be reviewed for any trends or patterns, and the collision rates calculated in the before and after construction condition.
Sight distance and approach speeds will be reviewed in the field for potential issues and documented.
Included in this will be a lighting analysis of the pedestrian facilities for the portion of Hammer lane that is raised above grade.
This information will be provided in a draft memo that provides details of the analysis and findings, together with tables and copies of calculations, and submitted for the City to review. City comments will be addressed, and a finalized memo will be prepared.
1.4 Right of Way Certificate Documentation
Siegfried will research available maps and deeds to plot the street right of way in the area of the improvements.
Said right of way will be provided in CAD and tied via surveyed monuments to the topographic survey. The field survey and drawings will allow Siegfried to sign the right of way certification. The scope does not include title reports, records or survey, corner records, or mapping.
EXHIBIT A Page 9 of 56 EXHIBIT 1 763
B Detailed Work Plan for the Hammer Lane Improvements
July 2024
Task 2 Environmental Services (CEQA Analysis)
Task 2.1 Project Kick-off and Environmental Project Description ESA will meet with the project team to review the key project issues, collect additional background information, such as preliminary engineering reports, figures, maps/plans, etc., confirm communication protocols, etc. As part of project initiation, ESA will provide input on the environmental elements of the project schedule.
ESA will coordinate with the project team to support their preparation of the project description (PD) for use in completing CEQA documentation. The PD will include project location, proposed schedule, applicable engineering design information, and other relevant information.
Task 2.1 Deliverables:
• Environmental elements of project schedule
Task 2.2: CEQA Documentation
ESA will review the project for application of a CEQA Categorical Exemption (CE). To support issuance of the CE, ESA will prepare a CE Support Memo that describes why a CE is the appropriate level of documentation for the project, documents the investigations completed during the review, and includes statements confirming absence of exceptions to the categorical exemption.
To inform the CE Support Memo, ESA will review the EnviroStor database maintained by the Department of Toxic Substances Control (DTSC) to confirm absence of known contamination or sites in the project area.
To confirm absence of known cultural and historic resources in the project area, ESA will complete background research at the California Historical Resources Information System Central California Information Center (CCIC) and review the project corridor and adjacent structures to identify known historic properties.
The results of these investigations will be documented in the CE Support Memo, which will be provided to the City for inclusion in the project files.
Upon completion of environmental review, ESA will prepare a Notice of Exemption (NOE) in the City’s preferred format and provide it to the City for their signature and posting at the County Clerk-Recorder’s office.
Task 2.2 Deliverables:
• Draft Categorical Exemption Support Memo
• Final Categorial Exemption Support Memo
• Notice of Exemption
KEY ASSUMPTIONS:
This scope of work has been prepared with consideration of the following assumptions:
• The project would qualify as categorically exempt from CEQA. If completion of an Initial Study to support a Negative Declaration or a Mitigated Negative Declaration would be required, then ESA is available to complete these services under an amended agreement.
• Consultation with Native American tribes pursuant to AB 52 is not included in this scope of work, based on the expectation that the project would be exempt from CEQA. If the City wishes ESA to support them in notifying interested tribes or to support City consultation with tribes, ESA is available to provide those services under an amended contract.
• Cultural Resources records searches will be completed for a 1/8-mile radius around the project site.
EXHIBIT A Page 10 of 56 EXHIBIT 1 764
C Detailed Work Plan for the Hammer Lane Improvements
July 2024
• Hazardous Materials testing and characterization is not included. • Because the project area is highly developed with very limited to no unpaved surfaces, it is expected that natural habitat that would support wildlife and/or special-status plant species is absent from the project area, and investigations related to biological resources would not be required. • The City will be responsible for payment of CEQA filing fees and posting CEQA notices on the City’s website and/or other locations of the City’s choosing.
• NEPA review will not be required for the project.
• The design team will provide a Project Description for use in completing the environmental review. • No new right of way would be acquired to accommodate the project. • This scope of work does not include a tree survey for trees that would be trimmed or removed to accommodate the project.
• It is assumed that no public meetings would be required to support CEQA approval.
Task 3 Utility Coordination
Task 3.1 Utility Letters
Siegfried will perform utility investigations and coordination with utility owners throughout the project development process. They will be present at all necessary meetings with each utility owner. This includes the following:
A. A project limits map will be prepared and utility information requested from each utility owner within the area of work.
B. Utility Letters “A” will be prepared during the preliminary design phase for City to review and approve prior to transmitting to the affected utility owners. Information on existing utilities obtained as a result of the “A” letters will be transferred to base maps in both plan and profile view. A copy of the utility data obtained from utility owners will be provided to the City.
C. Utility Letters “B” will be prepared during the 60% design phase for City to review and approve prior to transmitting to the affected utility owners. Two sets of half-sized 60% plans will be provided to each utility owner as an attachment to the letter. The letter will request that utility owners verify any utility conflicts with proposed improvements and indicate whether any future utilities are proposed in the area that may require accommodation through the improved area. Information on existing utilities obtained as a result of the “B” letters will be used to determine potential utility conflicts and to resolve the conflicts identified.
A copy of the utility data obtained from utility owners will be provided to the City.
D. Utility Letters “C” will be prepared during the 100% design phase for City to review and approve prior to transmitting to the affected utility owners. Two sets of half-sized 100% plans will be provided to each utility owner as an attachment to the letter. The letter will indicate to the utility owners whether any changes have been made to the project plans since the Utility Letter “B” and will request written confirmation of utility relocations and utility relocation schedule. A copy of the utility data obtained from utility owners will be provided to the City.
E. Utility companies will be met with as needed to ensure that conflicts are identified, and relocations performed if necessary.
Task 3.2 Utility Locating
F. A potholing budget for utilities has been included for one of the two following scenarios:
EXHIBIT A Page 11 of 56 EXHIBIT 1 765
D Detailed Work Plan for the Hammer Lane Improvements
July 2024
o Siegfried will deploy nondestructive utility locating for 2 full days focusing on the areas where improvements are planned to be built below the subgrade of the sidewalks. o Siegfried will deploy a utility locating company at specific high risk areas of concern and provide up to 4 shallow (less than 6 feet deep potholes in AC or soil. Potholes in concrete will require additional fees or a reduction of the number of potholes.
Task 4 Plans, Specifications, and Estimate
Tasks 4.1-4.2 Engineering Design PS&E
Base plans will be prepared using the survey data supplemented by field notes and measurements. Plans will be prepared for the various aspects of the design at the 50% and 90% completion levels, as indicated below.
Submissions will be via electronic media only, formatted for printing on paper 11 x 17 inches or a full-sized 22 x 34 inches plan sheet.
A. Existing and new poles, cabinets, vehicle and pedestrian heads, vehicle and bicycle detection, preemption equipment, and streetlights will be included on the plans for the traffic signal modifications.
B. Striping and signing plans will be prepared to show the new buffered bike lanes, any additional signage and radar feedback signs as well as any other modifications needed to accommodate the traffic signal modifications. Details, notes, and legends will be provided on the striping and signing plans.
C. Siegfried will prepare a set of civil engineering construction drawings based on their topographic survey and civil improvement work. The drawings will incorporate the contact information and general notes required to perform the work for the improvements, a site Grading and Drainage Plan reflecting the plan view location of curb lines and accessible ramps, and an Erosion and Sediment Control Plan containing temporary measures to protect stormwater during construction. The Civil Plans will contain stationing and control based on the topography and an assumed baseline.
D. Technical specifications will be prepared based on the Caltrans Special Provisions and customized to meet the City’s requirements using boilerplate text provided by the City, including a cover sheet with the project engineer’s approving stamp and signature. Contract bid documents are specifically excluded from this task.
E. A cost estimate will be provided based on the quantities identified in each plan set.
F. A matrix of comments will be developed, including the comment, commenter, responder, and response.
G. The plans and cost estimate will be submitted electronically. Plan sheets to be submitted include a Title Sheet, traffic signal plan sheets, traffic signal equipment schedules sheets, striping sheets, civil design sheets, grading and drainage, and erosion and sediment control.
H. W-Trans will prepare traffic handling and pedestrian detour plans. The assumption is that a one lane closure is sufficient for temporary traffic control for the construction work required. Sheet T11 from the Caltrans Standard Plans will be added to the plans for the contractor to abide by.
Task 4.3 100% Design PS&E
Final (100% submittal) PS&E will be prepared, including all information previously identified and modified to incorporate changes based on comments from City staff on the Semi-Final (90%) plans. The plans will be submitted electronically in native format as well as pdf and on full-size (24”x36”) plots; the plots will be on mylar EXHIBIT A Page 12 of 56 EXHIBIT 1 766
E Detailed Work Plan for the Hammer Lane Improvements
July 2024
and will be signed. A cover sheet will be provided for the specifications with the engineer’s stamp and signature, and the cost estimate will be provided electronically.
Task 4.4 Quality control
The Principal in Charge will provide the City with a signed Quality Control checklist at the time of each deliverable submittal, which will ensure conformance to Caltrans Standard Plans and City Standards.
Task 5 Coordination/Meetings
Meetings will be held with City Staff at the following milestones: project initiation/kick-off, pre-construction, during construction and post construction. Meetings will be held via Microsoft Teams with a schedule being sent out to all participants at least two (2) days prior. Microsoft Project will be used to track each the project schedule which will include tasks, duration, milestones, assignments, critical paths, successors, predecessors, and other relevant data. The project schedule will be maintained and updated monthly throughout the PS&E phase of the project.
Task 6 Design Support During Construction
Task 6.1 Services Prior to Construction
The Project Engineer will be available to respond to questions and requests for information during the bidding phase of the project.
Task 6.2 Services During to Construction
The Project Engineer will respond to issues that arise during the bid process and prepare addendums to the bid documents if necessary.
The Project Engineer will be available to review submittals to determine if materials meet the specifications and respond to questions from the Contractor and altering project plans to address any design changes needed. Note that no field visits are included in this scope of work. We have allocated 30 hours of the Project Engineer to assist the City during construction.
Task 7 As-built Drawings
The Project Engineer will prepare a complete set of as built drawings in AutoCAD upon receipt of red-lines from the contractor. Changes will also be reflected on the mylars by a new printed sheet.
Task 8 Preserving and Perpetuating Survey Monuments
Siegfried will identify, list and show existing survey monuments on the construction plans. The PS&E package will contain language about preserving all monumentation affected by the work being performed in accordance with Section 8771 of the Professional Land Surveyors Act in the Business and Professionals Code of the State of California.
EXHIBIT A Page 13 of 56 EXHIBIT 1 767
Project Number: STO026 Client: City of Stockton
Contact: Jiandong Lin
Email: [email protected]
Hammer Lane Traffic Safety Improvements
TIME ESTIMATES BY PERSON AND TASK
CN Admin Admin Siegfried ESA
TASK Total DJW AP SMF AM JF 3 1 Miles Misc
Dollars 357.50 $ 291.78 $ 240.27 $ 196.05 $ 132.82 $ 134.08 $ 134.08 $ 0.74 $ LS Task 1 Background Research
1.1 Field Review 1,942.05 $ 9 240
1.2 Background Research, Survey, Assessment 32,102.29 $ 5 22 28,200 $
1.3 Traffic Tech Memo 10,094.32 $ 1 4 20 35
1.3.1 Data Collection 3,901.58 $ 1 3767.5
1.4 Right of Way Certificate Document 1,000.00 $ 1,000 $ Task 2 Environmental Services
2.1 NOE/CATEx 6,910.24 $ 6,910.24 $
Task 3 Utility Coordination
3.1 Utility A, B & C letters 2,000.00 $ 2,000 $
3.2 Utility Locating 15,000.00 $ 15,000 $
Task 4 PS&E
4.2 50% Design 42,597.50 $ 20 2 70 85 2 11,000 $
4.3 90% Design 34,643.74 $ 1 8 2 42 60 2 15,000 $
4.4 100% Design 21,012.40 $ 8 2 30 66 550 3,000 $
4.5 Quality Control 5,127.75 $ 6 1 16
Task 5 Coordination/Meetings
5.1 Kickoff meeting 755.99 $ 1 1 2
5.2 Coordination/Meetings 3,123.03 $ 6 7
Task 6 Design Support During Construction
6.1 Services Prior to Construction 975.66 $ 2 2
6.2 Services During Construction 10,391.36 $ 2 36 2,750 $ Task 7 As-Built Drawings
7.1 Final as-built drawings 3,451.10 $ 1 4 16 250 $
Task 8 Preserving and Perpetuating Survey Monuments
8.1 Survey Monument Preservation Form 1,500.00 $ 1,500 $ Total hrs 2 58 7 242 284 6 1 240 4,317.50$ 79,700.00 $ 6,910.24 $ Subtotal 196,529.01 $
Year 1 = 50% Work
Year 2 = 50% Work. Amount of Labor difference with 4% escalation in W-Trans labor rates 2,108.47 $ W-Trans 112,027.24 $ Total Fee Estimate 198,637.48 $ Siegfried 79,700.00 $
ESA 6,910.24 $
198,637.48 $
Expenses
EXHIBIT B
EXHIBIT 1
768
17 Proposal to Provide Professional Services for the
Hammer Lane Traffic Safety Improvements Project (Project No. WT23040) Schedule
The schedule below illustrates our tasks and durations for each task listed in our work scope. We expect to begin within two weeks of a notice to proceed authorization and complete the final design by Fall 2025.
ID Task
Mode
Task Name Duration
1 Project Management 531 days
2 Kickoff meeting 1 day
3 Background Research 75 days
4 Review topo, ROW, assessor maps, as builts 15 days
5 Field Reconnaissance 15 days
6 Traffic Counts 15 days
7 Synchro Analysis 15 days
8 Prepare Draft Tech memo 15 days
9 City review tech memo 15 days
10 Finalize Tech memo 15 days
11 Topographic Surveying 20 days
12 Potholing 10 days
13 Prepare PS&E 265 days
14 Utility and Basemapping 35 days
15 Utility "A" letter requests 15 days
16 Prepare basemapping 15 days
17 30% Plans and Estimate 40 days
18 Prepare 30% Plans and Estimate 20 days
19 City review 30% submittal 15 days
20 Response to comments 5 days
21 60% PS&E Submittal 60 days
22 Utility "B" Letters 15 days
23 Prepare 65% PS&E 30 days
24 City review 65% PS&E 15 days
25 90% PS&E Submittal 55 days
26 Respond to comments from previous round 10 days
27 Prepare 95% PS&E 30 days
28 City review 95% PS&E 15 days
29 100% PS&E Submittal 55 days
30 Respond to comments from previous round 10 days
31 Utility "C" Letters 10 days
32 Prepare 100% PS&E Submittal 30 days
33 City review Final submittal 15 days
34 Bid PS&E Submittal 20 days
35 W‐Trans prepare Bid PS&E 20 days
36 Bid Support 65 days
37 City advertise project 15 days
38 City Council award project 30 days
39 Notice to Proceed for Construction to Contractor 20 days 40 Construction Support 200 days
41 Construction support 180 days
42 After evaluation collision analysis 10 days
43 Project closeout 10 days
9/2
Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct er 4th Quarter 1st Quarter 2nd Quarter 3rd Quarter 4th Quarter 1st Quarter 2nd Quarter 3rd Quarter 4th Quarter Task
Split
Milestone
Summary
Project Summary
Inactive Task
Inactive Milestone
Inactive Summary
Manual Task
Duration-only
Manual Summary Rollup
Manual Summary
Start-only
Finish-only
External Tasks
External Milestone
Deadline
Progress
Manual Progress
City of Stockton
Hammer Lane Traffic Safety Improvements Project
Project: [Project Title]
Date: Mon 5/6/24
EXHIBIT C Page 15 of 56 EXHIBIT 1 769
REV 2024-03-25
Insurance Requirements for Professional Services
Hammer Lane Traffic Safety Improvements,
Project No. WT23040 / HSIPSL-5008(211)
Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
(Not required if consultant provides written verification it has no employees)
4. Professional Liability (Errors and Omissions) Insurance appropriates to the Consultant’s profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate.
If the Consultant maintains broader coverage and/or higher limits than the minimums shown above, the City of Stockton requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Stockton.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
EXHIBIT D Page 16 of 56 EXHIBIT 1 770
REV 2024-03-25
Additional Insured Status
The City of Stockton, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used). Additional insured Name of Organization shall read “City of Stockton, its officers, officials, employees, and volunteers.” Policy shall cover City of Stockton, its officers, officials, employees, and volunteers for all locations work is done under this contract.
Primary Coverage
For any claims related to this contract, the Contractor’s insurance coverage shall be primary and non-contributory and at least as broad as ISO CG 20 01 04 13 as respects the City of Stockton, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City of Stockton, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies. The City of Stockton does not accept endorsements limiting the Contractor’s insurance coverage to the sole negligence of the Named Insured.
Umbrella or Excess Policy
The Contractor may use Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Contractor’s primary and excess liability policies are exhausted.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City of Stockton.
Waiver of Subrogation
Contractor hereby grants to City of Stockton a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City of Stockton by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Stockton has received a waiver of subrogation endorsement from the insurer.
EXHIBIT D Page 17 of 56 EXHIBIT 1 771
REV 2024-03-25
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City of Stockton. The City of Stockton may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City of Stockton. The CGL and any policies, including Excess liability policies, may not be subject to a self-insured retention (SIR) or deductible that exceeds $25,000 unless approved in writing by City of Stockton. Any and all deductibles and SIRs shall be the sole responsibility of Contractor or subcontractor who procured such insurance and shall not apply to the Indemnified Additional Insured Parties. City of Stockton may deduct from any amounts otherwise due Contractor to fund the SIR/deductible. Policies shall NOT contain any self-insured retention (SIR) provision that limits the satisfaction of the SIR to the Named. The policy must also provide that Defense costs, including the Allocated Loss Adjustment Expenses, will satisfy the SIR or deductible. City of Stockton reserves the right to obtain a copy of any policies and endorsements for verification.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City of Stockton.
Claims Made Policies (Professional & Pollution only)
If any of the required policies provide claims-made coverage:
1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Contractor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
Verification of Coverage
Contractor shall furnish the City of Stockton with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements and copies of the Declarations & Endorsements pages are to be received and approved by the City of Stockton before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the EXHIBIT D Page 18 of 56 EXHIBIT 1 772
REV 2024-03-25
Contractor’s obligation to provide them. The City of Stockton reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City of Stockton reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City of Stockton is an additional insured on insurance required from subcontractors.
Duration of Coverage
CGL & Excess liability policies for any construction related work, including, but not limited to, maintenance, service, or repair work, shall continue coverage for a minimum of 5 years for Completed Operations liability coverage. Such Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
Special Risks or Circumstances
City of Stockton reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Certificate Holder Address
The address for mailing certificates, endorsements and notices shall be:
City of Stockton
Its Officers, Officials, Employees, and Volunteers
400 E Main St, 3rd Floor – HR
Stockton, CA 95202
EXHIBIT D Page 19 of 56 EXHIBIT 1 773
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
State Funded Consultant Contract Provisions
HAMMER LANE TRAFFIC SAFETY IMPROVEMENTS
City Project No. WT23040 / HSIPSL-5008(211)
TABLE OF CONTENTS
Page
ARTICLE I INTRODUCTION .................................................................................................................... 3 ARTICLE II CONSULTANT’S REPORTS OR MEETINGS ....................................................................... 4 ARTICLE III STATEMENT OF WORK ...................................................................................................... 4 ARTICLE IV PERFORMANCE PERIOD ................................................................................................... 5 ARTICLE V ALLOWABLE COSTS AND PAYMENTS ............................................................................. 5 ARTICLE VI TERMINATION ................................................................................................................... ..6 ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS ..................................... ..7 ARTICLE VIII RETENTION OF RECORD/AUDITS ................................................................................ ..7 ARTICLE IX AUDIT REVIEW PROCEDURES ....................................................................................... ..8 ARTICLE X SUBCONTRACTING .......................................................................................................... ..9 ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES .............................. 10 ARTICLE XII STATE PREVAILING WAGE RATES ............................................................................... 11 ARTICLE XIII CONFLICT OF INTEREST ............................................................................................... 14 ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION ......................... 15
ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR FEDERAL FUNDS FOR LOBBYING ..................................................................................................................................... 15 ARTICLE XVI NON-DISCRIMINATION CLAUSE AND STATEMENT OF COMPLIANCE .................... 15 ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION .................................................... 17 ARTICLE XVIII NONE ............................................................................................................................ 17 ARTICLE XIX INSURANCE .................................................................................................................... 17 ARTICLE XX FUNDING REQUIREMENTS ............................................................................................ 17 ARTICLE XXI CHANGE IN TERMS ........................................................................................................ 17
EXHIBIT E
774
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ARTICLE XXII CONTINGENT FEE ......................................................................................................... 18 ARTICLE XXIII DISPUTES ..................................................................................................................... 18 ARTICLE XXIV INSPECTION OF WORK ............................................................................................... 18 ARTICLE XXV SAFETY ......................................................................................................................... 18 ARTICLE XXVI OWNERSHIP OF DATA ................................................................................................ 19 ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION CONTRACTOR .............. 19 ARTICLE XXVIII CONFIDENTIALITY OF DATA .................................................................................... 20 ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION....................................... 20 ARTICLE XXX EVALUATION OF CONSULTANT ................................................................................. 20 ARTICLE XXXI PROMPT PAYMENT ..................................................................................................... 20 ARTICLE XXXII TITLE VI ASSURANCES ............................................................................................. 21 ARTICLE XXXIII NOTIFICATION ........................................................................................................... 21 ARTICLE XXXIV CONTRACT ................................................................................................................ 21 ARTICLE XXXV SIGNATURES .............................................................................................................. 21
EXHIBIT E
775
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
ARTICLE I INTRODUCTION
A. This AGREEMENT is between the following named, hereinafter referred to as, CONSULTANT and the following named, hereinafter referred to as, LOCAL AGENCY:
The name of the “CONSULTANT” is as follows:
W-TRANS
Incorporated in the State of California
The Project Manager for the “CONSULTANT” will be
ALLISON MOSER
The name of the “LOCAL AGENCY” is as follows:
CITY OF STOCKTON
The Contract Administrator for LOCAL AGENCY will be JIANDONG LING.
B. The work to be performed under this AGREEMENT is described in Article III Statement of Work and the approved CONSULTANT’s Cost Proposal dated July 17, 2024. The approved CONSULTANT’s Cost Proposal is attached hereto “Exhibit B” and incorporated by reference. If there is any conflict between the approved Cost Proposal and this AGREEMENT, this AGREEMENT shall take precedence.
C. CONSULTANT agrees to the fullest extent permitted by law, to indemnify, protect, defend, and hold harmless LOCAL AGENCY, its officers, officials, agents, employees and volunteers from and against any and all claims, damages, demands, liability, costs, losses and expenses, including without limitation, court costs and reasonable attorneys’ and expert witness fees, arising out of any failure to comply with applicable law, any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise arising out of the performance of the work described herein, to the extent caused by a negligent act or negligent failure to act, errors, omissions, recklessness or willful misconduct incident to the performance of this AGREEMENT on the part of CONSULTANT, except such loss or damage which was caused by the sole negligence, or willful misconduct of LOCAL AGENCY, as determined by a Court of competent jurisdiction. The provisions of this section shall survive termination or suspension of this AGREEMENT.
D. CONSULTANT in the performance of this AGREEMENT shall act in an independent capacity. It is understood and agreed that CONSULTANT (including CONSULTANT's employees) is an independent contractor and that no relationship of employer-employee exists between the Parties hereto. CONSULTANT's assigned personnel shall not be entitled to any benefits payable to employees of City.
E. LOCAL AGENCY is not required to make any deductions or withholdings from the compensation payable to CONSULTANT under the provisions of the AGREEMENT and is not required to issue W-2 Forms for income and employment tax purposes for any of CONSULTANT's assigned personnel. CONSULTANT, in the performance of its obligation hereunder, is only subject to the control or direction of the LOCAL AGENCY as to the designation of tasks to be performed and the results to be accomplished.
F. Any third-party person(s) employed by CONSULTANT shall be entirely and exclusively under the direction, supervision, and control of CONSULTANT. CONSULTANT hereby indemnifies and holds LOCAL AGENCY 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.
EXHIBIT E
776
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
G. Except as expressly authorized herein, CONSULTANT's obligations under this AGREEMENT are not assignable or transferable, and CONSULTANT shall not subcontract any work, without the prior written approval of the LOCAL AGENCY. However, claims for money due or which become due to CONSULTANT from City under this AGREEMENT may be assigned to a financial institution or to a trustee in bankruptcy, without such approval. Notice of any assignment or transfer whether voluntary or involuntary shall be furnished promptly to the LOCAL AGENCY.
H. CONSULTANT shall be as fully responsible to the LOCAL AGENCY for the negligent acts and omissions of its contractors and subcontractors or subconsultants, and of persons either directly or indirectly employed by them, in the same manner as persons directly employed by CONSULTANT.
I. No alteration or variation of the terms of this AGREEMENT shall be valid, unless made in writing and signed by the parties authorized to bind the parties; and no oral understanding or agreement not incorporated herein, shall be binding on any of the parties hereto.
J. The consideration to be paid to CONSULTANT as provided herein, shall be in compensation for all of CONSULTANT’s expenses incurred in the performance hereof, including travel and per diem, unless otherwise expressly so provided.
ARTICLE II CONSULTANT’S REPORTS OR MEETINGS
A. CONSULTANT shall submit progress reports at least once a month. The report should be sufficiently detailed for the LOCAL AGENCY’s Contract Administrator to determine, if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.
B. CONSULTANT’s Project Manager shall meet with LOCAL AGENCY’s Contract Administrator, as needed, to discuss progress on the AGREEMENT.
ARTICLE III STATEMENT OF WORK
A. CONSULTANT Services
See Exhibit “A”, Scope of Services of the Professional Services Contract.
B. Right of Way
See Exhibit “A”, Scope of Services of the Professional Services Contract.
C. Surveys
See Exhibit “A”, Scope of Services of the Professional Services Contract.
D. Subsurface Investigations
See Exhibit “A”, Scope of Services of the Professional Services Contract.
E. Local Agency Obligations
All data applicable to the project and in possession of LOCAL AGENCY, another agency, or government agency that are to be made available to CONSULTANT are referred to in the AGREEMENT. Any other assistance or services to be furnished to CONSULTANT are to be stated clearly. See “Rights and Duties of City” of the Professional Services Contract.
EXHIBIT E
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Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
F. Conferences, Site Visits, Inspection of Work
This AGREEMENT provides for conferences as needed, visits to the site, and inspection of the work by representatives of the LOCAL AGENCY, State, and/or FHWA. Costs incurred by CONSULTANT for meetings, subsequent to the initial meeting shall be included in the fee.
G. Checking Shop Drawings
[For AGREEMENTs requiring the preparation of construction drawings, make provision for checking shop drawings. Payment for checking shop drawings by CONSULTANT may be included in the AGREEMENT fee, or provision may be made for separate payment.] H. CONSULTANT Services During Construction
The extent, if any of CONSULTANT’s services during the course of construction as material testing, construction surveys. etc., are specified in the AGREEMENT together with the method of payment for such services.
I. Documentation and Schedules
AGREEMENTs where appropriate, shall provide that CONSULTANT document the results of the work to the satisfaction of LOCAL AGENCY, and if applicable, the State and FHWA. This may include preparation of progress and final reports, plans, specifications and estimates, or similar evidence of attainment of the AGREEMENT objectives.
J. Deliverables and Number of Copies
The number of copies or documents to be furnished, such as reports, brochures, sets of plans, specifications, or Right of Way parcel maps shall be specified. Provision may be made for payment for additional copies.
ARTICLE IV PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect on October 1, 2024, contingent upon approval by LOCAL AGENCY, and CONSULTANT shall commence work after notification to proceed by LOCAL AGENCY’S Contract Administrator. The AGREEMENT shall end on December 31, 2027, unless extended by AGREEMENT amendment.
B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on LOCAL AGENCY until the AGREEMENT is fully executed and approved by LOCAL AGENCY.
ARTICLE V ALLOWABLE COSTS AND PAYMENTS
A. The method of payment for this AGREEMENT will be based on actual cost plus a fixed fee. LOCAL AGENCY will reimburse CONSULTANT for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other direct costs) incurred by CONSULTANT in performance of the work. CONSULTANT will not be reimbursed for actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rental, overhead, and other estimated costs set forth in the approved CONSULTANT’S Cost Proposal, unless additional reimbursement is provided for by AGREEMENT amendment. In no event will CONSULTANT be reimbursed for overhead costs at a rate that exceeds LOCAL AGENCY’s approved overhead rate set forth in the Cost Proposal. In the event, that LOCAL AGENCY determines that a change to the work from that specified in the Cost Proposal and AGREEMENT is required, the AGREEMENT time or actual costs reimbursable by LOCAL AGENCY shall be adjusted by AGREEMENT amendment to accommodate the changed work. The maximum total cost as specified in Paragraph “I” of this Article shall not be exceeded, unless authorized by AGREEMENT amendment.
B. The indirect cost rate established for this AGREEMENT is extended through the duration of this specific AGREEMENT. CONSULTANT’s agreement to the extension of the 1-year applicable period shall not be a condition or qualification to be considered for the work or AGREEMENT award.
EXHIBIT E
778
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
C. In addition to the allowable incurred costs, LOCAL AGENCY will pay CONSULTANT a fixed fee of $198,637.48. The fixed fee is nonadjustable for the term of the AGREEMENT, except in the event of a significant change in the scope of work and such adjustment is made by AGREEMENT amendment.
D. Reimbursement for transportation and subsistence costs shall not exceed the rates specified in the approved Cost Proposal.
E. When milestone cost estimates are included in the approved Cost Proposal, CONSULTANT shall obtain prior written approval for a revised milestone cost estimate from the Contract Administrator before exceeding such cost estimate.
F. Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. A pro rata portion of CONSULTANT’s fixed fee will be included in the monthly progress payments. If CONSULTANT fails to submit the required deliverable items according to the schedule set forth in Article III Statement of Work, LOCAL AGENCY shall have the right to delay payment or terminate this AGREEMENT.
G. No payment will be made prior to approval of any work, nor for any work performed prior to approval of this AGREEMENT.
H. CONSULTANT will be reimbursed promptly according to California Regulations upon receipt by LOCAL AGENCY’s Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing. Invoices shall detail the work performed on each milestone and each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number and project title. Final invoice must contain the final cost and all credits due LOCAL AGENCY including any equipment purchased under the provisions of Article XI Equipment Purchase. The final invoice should be submitted within sixty (60) calendar days after completion of CONSULTANT’s work. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:
CITY OF STOCKTON PUBLIC WORKS DEPARTMENT
22 E. WEBER AVENUE, ROOM 301
STOCKTON, CA 95202
I. The total amount payable by LOCAL AGENCY including the fixed fee shall not exceed $198,637.48.
J. For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result of changes in the prevailing wage rates are reimbursable.
ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, (See Section 11 of the Professional Services Contract).
B. LOCAL AGENCY may temporarily suspend this AGREEMENT, at no additional cost to LOCAL AGENCY, provided that CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If LOCAL AGENCY gives such notice of temporary suspension, CONSULTANT shall immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination.
EXHIBIT E
779
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
C. Notwithstanding any provisions of this AGREEMENT, CONSULTANT shall not be relieved of liability to LOCAL AGENCY for damages sustained by City by virtue of any breach of this AGREEMENT by CONSULTANT, and City may withhold any payments due to CONSULTANT until such time as the exact amount of damages, if any, due City from CONSULTANT is determined.
D. In the event of termination, CONSULTANT shall be compensated as provided for in this AGREEMENT. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS A. The CONSULTANT agrees that 48 CFR 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
B. The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR 31 or 2 CFR 200 are subject to repayment by the CONSULTANT to LOCAL AGENCY.
D. When a CONSULTANT or Subconsultant is a Non-Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
ARTICLE VIII RETENTION OF RECORD/AUDITS
For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and LOCAL AGENCY shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of administering the AGREEMENT. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT and records for real property and equipment acquired with federal funds must be retained for three (3) years after final disposition. LOCAL AGENCY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the CONSULTANT, Subconsultants, and the CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
ARTICLE IX AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by AGREEMENT, shall be reviewed by LOCAL AGENCY’S Chief Financial Officer.
B. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by LOCAL AGENCY’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
EXHIBIT E
780
Local Assistance Procedures Manual Exhibit 10-R
A&E Boilerplate Agreement Language
May 2023
D. CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, LOCAL AGENCY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by LOCAL AGENCY Contract Administrator to conform to the audit or review recommendations. CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by LOCAL AGENCY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, LOCAL AGENCY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
E. CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the CONSULTANT and approved by the LOCAL AGENCY Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report. Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
1. During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review. Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, LOCAL AGENCY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) compliant ICR (e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit Guide; and other applicable procedures and guidelines) is received and approved by IOAI.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate. b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy-five percent (75%) of the proposed rate.
2. If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require CONSULTANT to submit a revised independent CPA-audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
3. If the CONSULTANT fails to comply with the provisions of this paragraph E, or if IOAI is still