HomeMy WebLinkAbout4.2 - 1858 Agreement with DS Incorporated
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STAFF REPORT
CITY COUNCIL
DATE: June 18, 2019
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Agreement with DSI for Total Cost of Ownership Program
Prepared by: Dean McDonald, Public Works Maintenance Superintendent
EXECUTIVE SUMMARY:
The City Council will consider an agreement with Dude Solutions Incorporated (DSI) to
complete a Total Cost of Ownership (TCO) project for City buildings, which includes
completion of a condition assessment, creation of a preventative maintenance program,
and implementation of a computerized maintenance management system.
STAFF RECOMMENDATION:
Adopt the Resolution Approving a Contract Services Agreement with DSI for the Total
Cost of Ownership Project.
FINANCIAL IMPACT:
The total cost of the services to be performed by DSI will not exceed $216,597.00,
which includes an initial condition assessment and software implementation and three
years of software fees, customer support, and database management. Suffi cient
funding is available in Fiscal Year 2019-20 Internal Service Fund (Equipment
Replacement) Budget to cover costs associated with the three -year Agreement.
Ongoing annual impact for software fees, customer support, and database management
is estimated to be approximately $50,000 per year beyond the initial three -year term.
For those future budget years, Staff will request a budget appropriation for the ongoing
annual costs.
DESCRIPTION:
The Public Works Department maintains the City of Dublin’s infr astructure, which
includes City buildings, parks, and streets. As the City builds more buildings, parks, and
streets, there is a need to more accurately and efficiently manage City assets and to
understand the cost of owning and maintaining City facilities . To better understand the
City’s ownership and maintenance needs, Staff recommends the completion of a total
cost of ownership (TCO) financial analysis to document the direct and indirect costs of
owning and maintaining the City’s facilities.
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The TCO project will include the following efforts: Condition Assessment, DSI/City
Geographic Information Systems (GIS) integration, Development of a Preventive
Maintenance (PM) Program, and implementation of a Computerized Maintenance
Management System (CMMS). The CMMS will also include a Capital Forecast module
to estimate maintenance budgets, forecast future replacement costs and to integrate
with the City’s finance software system. Included as well is a work order module for
integration with the City’s current service request module. To complete the TCO project,
Staff evaluated consultants that provide project management and software solutions for
evaluating existing assets; determine PM costs; and implement a CMMS compatible
with the City’s existing software platforms.
Staff recommends the services of DSI for the TCO project. DSI is a software -as-a-
service provider of operations management solutions to government, education, and
other industries. DSI provides cloud-based software tools that track assets, improve
workflow, and collect data to help decision -makers allocate funds and resources to
maintain assets and levels of service.
If approved by City Council, DSI will work with Staff to; complete a full asset inventory
and condition assessment of all City buildings; develop a PM program; and implement
the CMMS. The CMMS, together with the PM program, will allow the City to use limited
resources more effectively, with more emphasis on preventive maintenance rather than
reacting to equipment failures. Focusing on preventive maintenance will result in less
disruptions and less expenses due to equipment break downs, increased efficiency in
tracking our contract labor, equipment and material costs; and the ability to provide
better oversight of all contract work.
The scope of the TCO project with DSI is limited, at this time, to City buildings. During
development of the PM program and implementation of the CMMS, Staff will evaluate
the applicability of the system to parks and streets. Expanding the system wou ld
require an increase in contract services.
Facility Condition Assessment and Preventative Maintenance (PM) Program
The condition assessment is the foundation of the program and a key element of the
capital forecasting module. It is necessary to understand the capital investment required
to keep the City facilities and equipment at an acceptable condition and to forecast the
capital replacement costs when the equipment has reached the end of its expected
useful life (EUL). The PM program is the next element, which helps to maximize the use
of limited resources. The goal of the PM program is to prevent equipment failure and
maximize EUL by following industry and manufacturer standards for equipment or
systems maintenance, which is further described in Attachment 3, Facility Condition
Assessment and Preventative Maintenance Program.
Computerized Maintenance Management System (CMMS)
DSI will prepare and provide a CMMS. The CMMS program tracks all work, PM and
unscheduled work for every asset, and provides the capability for better reporting, better
response, better diagnostics tools to identify problem areas, and better tracking of
contractor’s performance.
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The foundation of the system is accurate data of the assets we own and the condition of
those assets. Once all assets are identified, work orders are assigned to the assets.
This builds a history that can show the performance of the asset and provides the
capability to diagnose problem areas and take appropriate steps to correct issues early,
before such issues cause unplanned outages or disruption to facility users.
The CMMS will include a work order system. The process flow for a work order is as
follows:
Managers can edit all work as needed to update the requester. City Staff get notified of
new work orders instantly on their smart phone as work orders get assigned, and status
updates happen immediately as the work order is completed and Staff marks it
complete or as notes are added to request parts or additional support.
Capital Forecast Module:
The CMMS also includes a capital forecast module, which in the first year takes the
initial condition assessment and estimates the capital needs for maintenance, major
repair, or replacement. In the following years it takes the work history, both sche duled
PM and unscheduled work, and adjusts the capital forecast by evaluating how each
facility or system is performing, which provides a better prediction regarding the
longevity of the system. Each year the predictions get better as more data is collect ed
about each facility and system.
The capital forecast module achieves two goals. It provides the true cost of
maintenance for City facilities, equipment, and systems and it improves the forecast
need of internal service funds (ISF) required for the replacement of such facilities,
equipment, and systems. Clear forecast data will aide City Finance Staff in projecting
and protecting necessary monies through ISFs that will be needed in the future to
adequately protect the City’s assets.
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Procurement Process:
DSI has a contract with Sourcewell (formerly National Joint Powers Alliance, NJPA),
which is a municipal contracting government agency that holds hundreds of
competitively solicited cooperative contracts that are ready for use by Sourcewell
members. Sourcewell membership is no cost and allows schools, universities,
nonprofits, and government agencies to purchase goods and services from existing
ready-to-use contracts established through Sourcewell’s competitive request for
proposal (RFP) process.
DSI is a leading software-as-a-service provider of operations management solutions.
DSI’s contract (#110515-SDI), and the City’s membership with Sourcewell (Member
#18177), allows the City to directly contract DSI, thereby saving the City the cost of
solicitation. Staff is recommending DSI services based upon a review of their software,
services, and client recommendations. The cities of Concord, San Leandro, and San
Ramon currently use DSI and find that the system meets their PM needs.
STRATEGIC PLAN INITIATIVE:
N/A
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
1. Resolution Approving the Contract Services Agreement with DSI
2. Exhibit A to Resolution - Contract Services Agreement with DSI
3. Facility Condition Assessment and Preventative Maintenance
RESOLUTION NO. XX- 19
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
APPROVING A CONTRACT SERVICES AGREEMENT WITH DSI FOR THE TOTAL
COST OF OWNERSHIP PROJECT
WHEREAS, Staff researched available options to establish a True Cost of
Ownership (TCO) program; and
WHEREAS, Staff reviewed vendor capabilities and costs and selected the most
qualified firm to provide the most complete TCO package; and
WHERAS, City wishes to enter into an agreement with Dude Solutions
Incorporated (DSI) for a three-year term.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Dublin does hereby approve a Contract Services Agreement with DSI, as attached
hereto as Exhibit “A” to this Resolution; and
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
Agreement, attached hereto, and make any necessary, non-substantive changes to
carry out the intent of this Resolution.
PASSED, APPROVED AND ADOPTED this 18th day of June, 2019, by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
________________________________
Mayor
ATTEST:
_______________________________________
City Clerk
CONTRACTOR SERVICES AGREEMENT BETWEEN
THE CITY OF DUBLIN AND
DUDE SOLUTIONS, INC.
THIS AGREEMENT for contract services is made by and between the City of Dublin ("City") and
Dude Solutions Inc. ('Contractor") (together sometimes referred to as the "Parties) as of May 21, 2019
(the "Effective Date").
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Contractor
shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and
place and in the manner specified therein. In the event of a conflict in or inconsistency between the terms
of this Agreement and Exhibit A, the Agreement shall prevail.
1.1 Term of Services. The tens of this Agreement shall begin on the Effective Date and shall
end on June 30, 2022, the date of completion specked In Exhibit A and Contractor shall
complete the work described in Exhibit A on or before that date, unless the term of the
Agreement is otherwise terminated or extended, as provided for in Section 8. The time
provided to Contractor to complete the services required by this Agreement shall not affect
the City's right to terminate the Agreement, as referenced in Section 8. Notwithstanding
the foregoing this Agreement may be extended on a month to month basis for up to 6
months upon the written consent of the Contractor and the City Manager, provided that: a)
sufficient funds have been appropriated for such purchase, b) the price charged by the
Contractor for the provision of the serves described in Exhibit A does not increase. None of
the foregoing shall affect the City's right to terminate the Agreement as provided for in
Section 8.
1.2 Standard of Performance. Contractor shall perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent
practitioner of the profession in which Contractor is engaged.
1.3 Assignment of Personnel. Contractor shall assign only competent personnel to perform
services pursuant to this Agreement. In the event that City, in its sale discretion, at any
time during the term of this Agreement, desires the reassignment of any such persons,
Contractor shall, immediately upon receiving notice from City of such desire of City,
reassign such person or persons.
1.4 Time. Contractor shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance
provided in Subsection 1.2 above and to satisfy Contractor's obligations hereunder.
1.5 Contractor Terms and Conditions. City and Contractor agree to the Contractor Terns
and Conditions attached hereto as Exhibit C and incorporated as if fully set forth herein. If
there is any inconsistency between the Agreement and the Exhibit, the Agreement will
prevail.
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Section 2. COMPENSATION. City hereby agrees to pay Contractor a sum not to exceed
$216,597,00, notwithstanding any contrary indications that may be contained In Contractor's proposal, for
services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict
between this Agreement and Contractor's proposal, attached as Exhibit A, regarding the amount of
compensation, the Agreement shall prevail. City shall pay Contractor for services rendered pursuant to this
Agreement at the time and in the manner set forth herein. The payments specified below shall be the only
payments from City to Contractor for services rendered pursuant to this Agreement. Contractor shall
submit all invoices to City in the manner specified herein. Except as specifically authorized by City in
writing, Contractor shall not bill City for duplicate services performed by more than one person.
Contractor and City acknowledge and agree that compensation paid by City to Contractor under this
Agreement is based upon Contractors estimated costs of providing the services required hereunder,
including salaries and benefits of employees and subcontractors of Contractor. Consequently, the Parties
further agree that compensation hereunder is intended to include the costs of contributions to any pensions
and/or annuities to which Contractor and its employees, agents, and subcontractors may be eligible. City
therefore has no responsibility for such contributions beyond compensation required under this Agreement.
2.1 Invoices. Contractor shall submit invoices, not more often than once a month during the
tens of this Agreement, based on the cost for services performed and reimbursable costs
incurred prior to the invoice date.
2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for
services satisfactorily performed, and for authorized reimbursable costs incurred. City
shall have 30 days from the receipt of an invoice that complies with all of the requirements
above to pay Contractor.
2.3 Total Payment. City shall pay for the services to be rendered by Contractor pursuant to
this Agreement. City shall not pay any additional sum for any expense or cost whatsoever
incurred by Contractor in rendering services pursuant to this Agreement. City shall make
no payment for any extra, further, or additional service pursuant to this Agreement.
In no event shall Contractor submit any invoice for an amount in excess of the maximum
amount of compensation provided above either for a task or for the entire Agreement,
unless the Agreement is modified prior to the submission of such an invoice by a property
executed change order or amendment.
2.4 Hourly Fees. Fees for work performed by Contractor on an hourly basis shall not exceed
the amounts shown on the compensation schedule attached hereto as Exhibit B.
2.5 Reimbursable Expenses. Reimbursable expenses are specified in Exhibit B. Expenses
not listed in Exhibit B are not chargeable to City. Reimbursable expenses are included in
the total amount of compensation provided under this Agreement that shall not be
exceeded.
2.7 Payment of Taxes. Contractor is solely responsible for the payment of employment taxes
incurred under this Agreement and any similar federal or state taxes.
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2.8 Payment upon Termination. In the event that the City or Contractor terminates this
Agreement pursuant to Section 8, the City shall compensate the Contractor for all
outstanding costs and reimbursable expenses incurred for work satisfactorily completed as
of the date of written notice of termination. Contractor shall maintain adequate logs and
timesheets to verify costs incurred to that date.
2.9 Authorization to Perform Services. The Contractor is not authorized to perform any
services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
2.10 Liquidated Damages. Failure of Contractor to respond to problems referred to it by City
within the time limits established in Subsection 1.2 of this Agreement shall result in
liquidated damages as set forth in Exhibit A.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Contractor shall, at its sole
cost and expense, provide all facilities and equipment that may be necessary to perform the services
required by this Agreement. City shall make available to Contractor only the facilities and equipment listed
in this section, and only under the terms and conditions set forth herein. Contractor shall make a written
request to City to use facilities or equipment not otherwise listed herein.
3.1 Safety Requirements. In accordance with generally accepted construction practices and
state law, Contractor shall be solely and completely responsible for conditions on the
jobsite, including safety of all persons and property during performance of the work. This
requirement shall apply continuously and not be limited to normal working hours.
Contractor shall take all necessary precautions and provide all necessary safeguards to
prevent personal injury and property damage. Contractor shall provide protection for all
persons including, but not limited to, its employees and employees of its subcontractors;
members of the public; and employees, agents, and representatives of the City and
regulatory agencies that may be on or about the work.
The services of the City in conducting review and inspection of Contractors performance is
not intended to include review of the adequacy of Contractor's work methods, equipment,
bracing or scaffolding, or safety measures, in, on, or near any Contractor jobsite.
All work and materials shall be in strict accordance with all applicable state, city, county,
and federal rules, regulations and codes, with specific attention to the United States
Department of Labor Occupational Health and Safety Administration (OSHA)
requirements. Contractor shall be solely responsible for compliance with all city, county,
and state explosive transport, storage, and blasting requirements and for any damages
caused by such operations.
Contractor is hereby informed that work on City property could be hazardous. Contractor
shall carefully instruct all personnel working on City property that all conditions of the
property are potentially hazardous work areas as to potential dangers and shall provide
such necessary safety equipment and instructions as are necessary to prevent injury to
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personnel and damage to property. Special care shall be exercised relative to work
underground.
In addition to complying with all other safety regulations, Contractor shall abide by any and
all other City requirements contained in any specifications, special conditions or manuals,
which shall be made available by City upon request.
Contractor shall provide and maintain all necessary safety equipment such as fences,
barriers, signs, lights, walkways, guards, and fire prevention and fire -fighting equipment
and shall take such other action as is required to fulfill its obligations under this section. It
is the intent of the City to provide a safe working environment under normal conditions.
CONTRACTOR IS ADVISED THAT CITY'S OPERATIONS AND PROPERTY ARE
INHERENTLY HAZARDOUS BECAUSE OF CONDITIONS SUCH AS CONFINED
SPACES, POTENTIALLY EXPLOSIVE ATMOSPHERES, AND POSSIBLE EXPOSURE
TO PATHOGENS.
Contractor shall maintain all portions of the jobsite in a neat, clean, and sanitary condition
at all times. If required by the City, toilets shall be furnished by Contractor where needed
for use of its employees and their use shall be strictly enforced. Contractor shall not use
the City's existing sanitary facilities, unless previously authorized by the City.
Contractor shall keep adequate first aid facilities and supplies available and instruction in
first aid for its employees shall be given.
City reserves the right to require that Contractor bring onto the project or engage the
services of a licensed safety engineer at anytime during the term of this Agreement. If
Contractor does not have a licensed safety engineer on staff, then City may require that
Contractor engage a subcontractor or subconsuttant as the project's safety engineer.
Contractor shall bear all costs in connection with meeting the requirements of this section.
Section 4. INSURANCE REQUIREMENTS. Before fully executing this Agreement, Contractor, at its
own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance
listed below against claims for injuries to persons or damages to property that may arise from or in
connection with the performance of the work hereunder by the Contractor and its agents, representatives,
employees, and subcontractors. Consistent with the following provisions, Contractor shall provide proof
satisfactory to City of such insurance that meets the requirements of this section and under forms of
insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work.
Contractor shall maintain the insurance policies required by this section throughout the tern of this
Agreement. The cost of such insurance shall be included in the Contractor's bid. Contractor shall not allow
any subcontractor to commence work on any subcontract until Contractor has obtained all insurance
required herein for the subcontractor(s) and provided evidence to City that such insurance is in effect.
VERIFICATION OF THE REQUIRED INSURANCE SHALL BE SUBMITTED AND MADE PART OF THIS
AGREEMENT PRIOR TO EXECUTION. Contractor shall maintain all required insurance listed herein for
the duration of this Agreement.
4.1 Workers' Compensation.
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4.1.1 General Requirements. Contractor shall, at its sole cost and expense, maintain Statutory
Workers' Compensation Insurance and Employer's Liability Insurance for any and all
persons employed directly or indirectly by Contractor. The Statutory Workers'
Compensation Insurance and Employers Liability Insurance shall be provided with limits of
not less than $1,000,000 per accident. In the alternative, Contractor may rely on a self-
insurance program to meet these requirements, but only if the program of self-insurance
complies fully with the provisions of the California Labor Code. Determination of whether a
self-insurance program meets the standards of the California Labor Code shall be solely in
the discretion of the Contract Administrator.
4.1.2 Submittal Requirements. To comply with Subsection 4.1. Contractor shall submit a
certificate of Workers' Compensation Insurance in the amounts specified in the section.
4.2 Commercial General and Automobile Liability Insurance.
4.2.1 General Requirements. Contractor, at its own cost and expense, shall maintain
commercial general liability insurance for the term of this Agreement in an amount
not less than $1,000,000 and automobile liability insurance for the tens of this
Agreement in an amount not less than $1,000,000 per occurrence, combined
single limit coverage. If a Commercial General Liability Insurance or an
Automobile Liability form or other form with a general aggregate limit is used,
either the general aggregate limit shall apply separately to the work to be
performed under this Agreement or the general aggregate limit shall be at least
twice the required occurrence limit. Such coverage shall include but shall not be
limited to, protection against claims arising from bodily and personal injury,
including death resulting therefrom, and damage to property, including the use of
owned and non -owned automobiles.
4.22 Minimum Scope of Coverage. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form
CG 0001 (most recent edition) covering comprehensive General Liability on an
.occurrence" basis. Automobile coverage shall be at least as broad as Insurance
Services Office Automobile Liability form CA 0001, Code 1 (any auto).
4.2.3 Additional Requirements. Each of the following shall be included in the
insurance coverage with an attested endorsement to the policy:
a. The Insurance shall cover on an occurrence basis, and not on a claims -
made basis.
b. City, its officers, officials, employees, and volunteers are to be covered as
additional insureds as respects: liability arising out of work or operations
performed by or on behalf of the Contractor; or automobiles owned,
leased, hired, or borrowed by the Contractor.
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Contractor hereby agrees to waive subrogation which any insurer or
contractor may require from vendor by virtue of the payment of any loss.
Contractor agrees to obtain any endorsements that may be necessary to
affect this waiver of subrogation.
For the work hereunder, the Contractors insurance coverage shall be
primary insurance as respects the City, its officers, officials, employees,
and volunteers. Any insurance or self-insurance maintained by the City,
its officers, officials, employees, or volunteers shall be excess of the
Contractor's insurance and shall not contribute with it.
4.2.4 Submittal Requirements. To comply with Subsection 4.2, Contractor shall
submit the following:
a. Certificate of Liability Insurance in the amounts specified in the section;
b. Additional Insured Endorsement as required by the section;
C. Waiver of Subrogation Endorsement as required by the section; and
d. Primary Insurance Endorsement as required by the section.
4.3 All Policies Requirements.
4.3.1 Acceptability of Insurers. All insurance required by this section is to be placed
with insurers with a Bests' rating of no less than A:VII.
4.32 Verification of Coverage. Prior to beginning any work under this Agreement,
Contractor shall fumish City with complete copies of all Certificates of Liability
Insurance delivered to Contractor by the insurer, including complete copies of
required endorsements by the contract. All copies of Certificates of Liability
Insurance shall show the signature of a person authorized by that insurer to bind
coverage on its behalf. If the City does not receive the required insurance
documents prior to the Contractor beginning work, it shall not waive the
Contractors obligation to provide them. The City reserves the right to require
complete copies of all required insurance policies at any time.
4.3.3 Deductibles and Self -Insured Retentions. Contractor shall disclose to and
obtain the written approval of City for the self -insured retentions and deductibles
before beginning any of the services or work called for by any term of this
Agreement.
4.3.4 Wasting Policies. No policy required by this Section 4 shall include a "wasting'
policy limit (i.e. limit that is eroded by the cost of defense).
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4.3.5 Endorsement Requirements. Each insurance policy required by Section 4 shall
be endorsed to state that coverage shall not be canceled by the insured or the
insurance company except after 30 days' prior written notice has been provided to
the City.
4.3.6 Subcontractors. Contractor shall include all subcontractors as insureds under its
policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.
4.4 Remedies. In addition to any other remedies City may have if Contractor fails to provide
or maintain any insurance policies or policy endorsements to the extent and within the time
herein required, City may, at its sole option exercise any of the following remedies, which
are alternatives to other remedies City may have and are not the exclusive remedy for
Contractor's breach:
• Obtain such insurance and deduct and retain the amount of the premiums for such
insurance from any sums due under the Agreement;
• Order Contractor to stop work under this Agreement or withhold any payment that
becomes due to Contractor hereunder, or both stop work and withhold any payment,
until Contractor demonstrates compliance with the requirements hereof; andlor
• Terminate this Agreement.
Section 5. INDEMNIFICATION AND CONTRACTOR'S RESPONSIBILITIES. To the maximum
extent allowed by law, Contractor shall indemnify the City, and City Council members, officers, agents and
employees against any suits, claims or actions arising out of any injury to persons or property, including
death, that may occur, or that may be alleged to have occurred, in the course of the performance of this
Agreement by a negligent act or omission or wrongful misconduct of the Contractor or its employees,
subcontractors or agents. Contractor further agrees to defend any and all such actions, suits or claims and
pay all charges of attorneys and all other costs and expenses arising therefrom or incurred in connection
therewith; and if any judgement be rendered against the City or any of the other individuals enumerated
above in such action, Contractor shall, at its expense, satisfy and discharge the same. Contractors
responsibility for such defense and indemnity obligations shall survive the termination or completion of this
Agreement for the full period of time allowed by law. The defense and indemnification obligations of this
Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations
contained in this Agreement.
In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services
under this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Contractor shall
indemnity, and defend City for the payment of any employee and/or employer contributions for PERS
benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of
any penalties and interest on such contributions, which would otherwise be the responsibility of City.
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Contractor/Subcontractor's responsibility for such defense and indemnity obligations shall survive the
termination or completion of this Agreement for the full period of time allowed by law.
Section 6. STATUS OF CONTRACTOR.
6.1 Independent Contractor. At all times during the term of this Agreement, Contractor shall
be an independent contractor and shall not be an employee of City. City shall have the
right to control Contractor only insofar as the results of Contractor's services rendered
pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.3;
however, otherwise City shall not have the right to control the means by which Contractor
accomplishes services rendered pursuant to this Agreement. Notwithstanding any other
City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Contractor
and any of its employees, agents, and subcontractors providing services under this
Agreement shall not quality for or become entitled to, and hereby agree to waive any and
all claims to, any compensation, benefit, or any incident of employment by City, including
but not limited to eligibility to enroll in the California Public Employees Retirement System
(PERS) as an employee of City and entitlement to any contribution to be paid by City for
employer contributions and/or employee contributions for PERS benefits.
6.2 Contractor Not an Agent. Except as City may specify in writing, Contractor shall have no
authority, express or implied, to act on behalf of City in any capacity whatsoever as an
agent. Contractor shall have no authority, express or implied, pursuant to this Agreement
to bind City to any obligation whatsoever.
Section 7. LEGAL REQUIREMENTS.
7.1 Goveming Law. The laws of the State of Califomia shall govern this Agreement.
7.2 Compliance with Apolicabie Laws. Contractor and any subcontractors shall comply with
all laws applicable to the performance of the work hereunder.
7.3 Other Governmental Regulations. To the extent that this Agreement maybe funded by
fiscal assistance from another governmental entity, Contractor and any subcontractors
shall comply with all applicable rules and regulations to which City is bound by the terms of
such fiscal assistance program.
7.4 Licenses and Permits. Contractor represents and warrants to City that Contractor and its
employees, agents, and any subcontractors have all licenses, permits, qualifications, and
approvals of whatsoever nature that are legally required to practice their respective
professions. Contractor represents and warrants to City that Contractor and its
employees, agents, any subcontractors shall, at their sole cost and expense, keep in effect
at all times during the term of this Agreement any licenses, permits, and approvals that are
legally required to practice their respective professions. In addition to the foregoing,
Contractor and any subcontractors shall obtain and maintain during the term of this
Agreement valid Business Licenses from City.
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City of Dublin and Dude Solutions Inc.
7.5 Nondiscrimination and Equal Opportunity. Contractor shall not discriminate, on the
basis of a person's race, sex, gender, religion (including religious dress and grooming
practices), national origin, ancestry, physical or mental disability, medical condition
(including cancer and genetic characteristics), marital status, age, sexual orientation, color,
creed, pregnancy, genetic information, gender identity or expression, political affiliation or
belief, militarylveteran status, or any other classification protected by applicable local,
state, or federal laws (each a "Protected Characteristic"), against any employee, applicant
for employment, subcontractor, bidder for a subcontract, or participant In, recipient of, or
applicant for any services or programs provided by Contractor under this Agreement.
Contractor shall include the provisions of this Subsection in any subcontract approved by
the Contract Administrator or this Agreement.
Section 8. TERMINATION AND MODIFICATION.
8.1 Termination. Termination shall be governed by Section 7.0 of the Contractor Terms and
Conditions set forth in Exhibit C.
8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this
Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a
written amendment to this Agreement, as provided for herein. Contractor understands and
agrees that, if City grants such an extension, City shall have no obligation to provide
Contractor with additional compensation for'implementation" as defined in section 1.14 of
Exhibit C to this Agreement. Similarly, unless authorized by the Contract Administrator,
City shall have no obligation to reimburse Contractor for any otherwise reimbursable
expenses incurred during the extension period.
8.3 Amendments. The Parties may amend this Agreement only by a writing signed by all the
Parties.
8A Assignment and Subcontracting. City and Contractor recognize and agree that this
Agreement contemplates personal performance by Contractor and is based upon a
determination of Contractor's unique personal competence, experience, and specialized
personal knowledge. Moreover, a substantial inducement to City for entering into this
Agreement was and is the professional reputation and competence of Contractor.
Contractor may not assign this Agreement or any interest therein without the prior written
approval of the Contract Administrator. Contractor shall not subcontract any portion of the
performance contemplated and provided for herein, other than to the subcontractors noted
in the proposal, without prior written approval of the Contract Administrator.
8.5 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between City and Contractor shall survive
the termination of this Agreement.
Services Agreement between May 21, 2019
City of Dublin and Dude Solutions Inc. Page 9 of 14
8.6 Options upon Breach by Contractor. If Contractor materially breaches any of the terms
of this Agreement, City's remedies shall include, but not be limited to, the follovnng:
8.6.1 Terminate the Agreement if Contractor fails to cure such breach within fifteen (15)
days after written notice of such breach is given by the City;
8.6.2 Retain the any work product described in Exhibit A prepared by Contractor
pursuant to this Agreement;
8.6.3 Retain a different contractor to complete the work described in Exhibit A not
finished by Contractor; or
8.6.4 Charge Contractor the difference between the cost to complete the work described
in Exhibit A that is unfinished at the time of breach and the amount that City would
have paid Contractor pursuant to Section 2 if Contractor had completed the work
in an amount not to exceed the fees established under this Agreement for such
uncompleted work.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Contractor's Performance. Excluding the allocation
intellectual property rights as defined in section 2.2 of Exhibit C, all reports, data,
maps, models, charts, studies, surveys, photographs, memoranda, plans, studies,
specifications, records, files, or any other documents or materials, in electronic or
any other form, that Contractor prepares or obtains pursuant to this Agreement
and that relate to the matters covered hereunder shall be the property of the
City. Contractor hereby agrees to deliver those documents to the City upon
termination of the Agreement. It is understood and agreed that the documents and
other materials, including but not limited to those described above, prepared
pursuant to this Agreement are prepared specifically for the City and are not
necessarily suitable for any future or other use. City and Contractor agree that,
until final approval by City, all data, plans, specifications, reports and other
documents are confidential and will not be released to third parties without prior
written consent of both Parties.
9.2 Contractor's Books and Records. Contractor shall maintain any and all ledgers, books
of account, invoices, vouchers, canceled checks, and other records or documents
evidencing or relating to charges for services or expenditures and disbursements charged
to the City under this Agreement for a minimum of 3 years, or for any longer period
required by law, from the date of final payment to the Contractor to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Subsection 9.2 of this
Agreement requires Contractor to maintain shall be made available for inspection, audit,
andlor copying at any time during regular business hours, upon oral or written request of
the City. Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds $10,000,00, the Agreement shall be subject to
Dublin
Solo Page 10 of 14
City of Dublin and Dude Solutions Inc.
the examination and audit of the State Auditor, at the request of City or as part of any audit
of the City, for a period of 3 years after final payment under the Agreement. Any such
inspection or audit shall not occur more than one (1) timer per calendar year unless
otherwise required by law.
Section 10. MISCELLANEOUS PROVISIONS.
10.1 Attorney's Fees. The Parties acknowledge and agree that each Party shall bear its own
costs, expenses, claims to interest, and attorneys' fees incurred in or arising out of, or in
any way connected wth the matters which are referenced or covered in this Agreement,
including preparation and execution of this Agreement. However, such limitation shall not
apply to any effort by any Party to enforce the terms of this Agreement, and the prevailing
Party in such effort shall be entitled to recovery of its attorney's fees and costs as may be
awarded by the Court.
10.2 Venue. In the event that either party brings any action against the other under this
Agreement, the Parties agree that trial of such action shall be vested exclusively in the
state courts of California in the County of Alameda or in the United States District Court for
the Northern District of California
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that tens or any other term
of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the Parties.
10.6 Conflict of Interest. Contractor may serve other clients, but none whose activities within
the corporate limits of City or whose business, regardless of location, would place
Contractor in a "conflict of interest, as that term is defined in the Political Reform Act,
codified at California Government Code Section 81000 at seq.
Contractor shall not employ any City official in the work performed pursuant to this
Agreement. No officer or employee of City shall have any financial interest in this
Agreement that would violate California Government Code Section 1090 at seq.
Contractor hereby warrants that it is not now, nor has it been in the previous 12 months, an
employee, agent, appointee, or official of the City. If Contractor was an employee, agent,
appointee, or official of the City in the previous 12 months, Contractor warrants that it did
not participate in any manner in the forming of this Agreement. Contractor understands
Services Agreement between
City of Dublin and Dude Solutions Inc.
May 21, 2019
Page 11 of 14
that, tt this Agreement is made in violation of California Government Code Section 1090 at
seq., the entire Agreement is void and Contractor will not be entitled to any compensation
for services performed pursuant to this Agreement, including reimbursement of expenses,
and Contractor will be required to reimburse the City for any sums paid to the Contractor.
Contractor understands that, in addition to the foregoing, it may be subject to criminal
prosecution for a violation of California Government Code Section 1090 at seq., and, if
applicable, will be disqualified from holding public office in the State of California.
10.7 Solicitation. Contractor agrees not to solicit business at any meeting, focus group, or
interview related to this Agreement, either orally or through any written materials.
10.8 Contract Administration. This Agreement shall be administered by City Manager
("Contract Administrator"). All correspondence shall be directed to or through the Contract
Administrator or his or her designee.
10.9 Notices. Any written notice to Contractor shall be sent to:
Dude Solutions Inc.
Attention: General Counsel
11000 Regency Pkwy., Ste. 110
Cary, NC 27518
Any written notice to City shall be sent to:
City of Dublin
Public Works Department
Attention: Lowell Dean McDonald
100 Civic Plaza
Dublin, CA 94568
10.10 Integration. This Agreement, including the scope of work attached hereto and
incorporated herein as Exhibits A. B. and C represents the entire and integrated
agreement between City and Contractor and supersedes all prior negotiations,
representations, or agreements, either written or oral.
Exhibit A
Scope of Services
Exhibit S
Compensation Schedule & Reimbursable Expenses
Exhibit C
Contractor Terms and Conditions
10.11 Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be an original and all of which together shall constitute one agreement.
10.12 Certification per Iran Contracting Act of 2010. In the event that this contract is for
one million dollars ($1,000,000.00) or more, by Contractor's signature below Contractor
certifies that Contractor, and any parent entities, subsidiaries, successors or subunits of
Contractor are not identified on a list created pursuant to subdivision (b) of Section 2203 of
Services Agreement between May 21, 2019
City of Dublin and Dude Solutions Inc. Page 12 of 14
the California Public Contract Code as a person engaging in investment activities in Iran as
described in subdivision (a) of Section 2202.5, or as a person described in subdivision (b)
of Section 2202.5 of the California Public Contract Code, as applicable.
SIGNATURES ON FOLLOWING PAGE
Services Agreement between May 21, 2019
City of Dublin and Dude Solutions Inc. Page 13 of 14
The Parties have executed this Agreement as of the Effective Date. The persons whose signatures appear
below certify that they are authorized to sign on behalf of the respective Party.
CITY OF DUBLIN
Christopher L. Foss, City Manager
Attest:
Caroline Soto, City Clerk
Approved as to Form:
City Attorney
3070365.1
Services Agreement between May 21. 2019
City of Dublin and Dude Solutions Inc. Page 14 of 14
EXHIBIT A
SCOPE OF SERVICES
Quick Start Online support and training is standard with each subscription and includes:
QuickStart is Contractor's product implementation service. Contractor's Client Advisor provides guidance
needed to ensure a smooth transition and implementation. This service includes goal setting, timeline
planning, and online training sessions.
Support
• Contractor shall be available Monday through Friday, excluding holidays, Sam - Slim EST.
• After hours inquiries shall be responded to the next business day.
• Contractor shall answer smalls within one hour, or instantly via live chat.
• Best practices webinars and podcasts which share new trends, popular reports, and tips.
• Training review webcasts,
Facility Condition Assessment with Narrative Report
Includes Data Gathering and Import of Data into DSI Software
Purpose:
The purpose of the facility condition assessment is to assess the facilities based on the following scope,
provide narratives that summarize assessment observations and comments, and to import the data into the
City's DSI Software for capital forecasting & maintenance solutions.
All condition assessments shall include a bound deliverable containing
• Narrative report with description of systems and corresponding conditions.
• Digital photos of key components and deficiencies as an Appendix in the narrative.
• 20-year Capital Reserve table with systems and component replacement costs and dates
• Import of systems level detail into City's capital forecasting solution.
• Import major equipment level detail into City's DSI Software maintenance solution.
Field data collection and condition assessment
A. Condition Assessment and Asset Inventory
The field data collection and condition assessment is meant to capture information of all major building
systems to the individual component level, including all components considered capital repair items (as
opposed to maintenance level items). This includes site paving, HVAC, roofing, electrical, plumbing, vertical
transportation systems, building envelope, and structural systems.
A Certified Dude Solutions Partner (DSI Partner) shall collect, document, and analyze the facilities
assessment data to achieve the following'.
Services Agreement between May 21. 2019
City of Dublin and Dude Solutions Inc. Exhibit A— Page 1 of 7
• At the start of each building or facility assessment Contractor shall interview City's staff to understand what
Improvements have been made in the last three years, what improvements are planned in the next three
years and to identify any known problems.
• Inventory all major building equipment including quantity, size, asset tag number, manufacturer, model,
and serial number.
• Identify deficient conditions in terms of deferred maintenance and building condition.
• Provide a reasonable cost analysis for the above -mentioned efforts,
• For single building projects, provide a report for the property that details the assessment data.
• For multi -building projects, data shall be collected from every building in City's portfolio.
Reports shall be prepared as follows:
• Major buildings (generally defined as 25,000 square feet or greater and approximately 10% of the project
portfolio), a separate report shall be prepared.
• Smaller buildings shall be grouped into reports by building type, geography or other logical grouping (for
example maintenance structures, parks assets, fire stations...)
• Provide individual cost tables and digital photographs to document the deficient conditions at each property.
Based on observations and information obtained from available on -site personnel, the DSI partner shall
visually inspect all facilities and properties. Specifically, the assessment shall focus on the following details:
Facility Condition Assessment Scope -of -Work:
Type
System Level or
Individual
Location Info
Make, Model,
Serial q
HVAC
Boiler
Individual
Yes
Yes
Deaerators
Individual
Yes
Yes
Radiators
I NOT
INCLUDED
IN SERVICE
HEATING SYSTEM
Hot water pumps I
Individual
Yes
Yes
Furnaces
Individual
Yes
Yes
Unit
Heaters
Individual
Yes
Yes
VENTILATION SYSTEM
Exhaust
hoods
Individual
Yes
Yes
Fans
Individual
Yes
Yes
MakeU Air Units
Individual
Yes
Yes
Ener Recove Units
Individual
Yes
Yes
Chillers
Individual
Yes
Yes
Chilled Water u s
Individual
Yes
Yes
Conlin
Tower um s
Individual
Yes
Yes
Buildin Automation S stem
Individual
Yes
Yes
Package AC Units (rooftop
and round
Individual
Yes
Yes
Services Agreement between May 21, 2019
City of Dublin and Dude Solutions Inc. Exhibit A— Page 2 of 7
Units (rooftop
ndtems
Individual
Yes
Individual
Yes
s
Individual
Yes
lHandlinging
es (from City
where available
System Level
Yes
qNo
Units (from City
where available
System Level
Yes
Unit Ventilators (from City
drawin s where available
System Level
Yes
Window
Units
NOT
INCLUDED
IN SERVICE
Main Distribution Panels
Individual
Yes
Yes
Switch ear
Individual
Yes
Yes
Motor
Control Centers
Individual
Yes
Yes
Transformers
Individual
Yes
Yes
Emergency Generators
Individual
Yes
Yes
Automatic Transfer
Switch
Individual
Yes
V-
Ememency Lights
Air
Conditioning System I
No
No
Secondary
Electrical
Panels
NOT INCLUDED IN SERVICE
VFDs
NOT INCLUDED IN SERVICE
Motors
NOT INCLUDED IN SERVICE
Individual light fixtures
(emergency, exterior, etc.
NOT INCLUDED IN SERVICE
EQUIPMENT
Trash
Compactors
Individual
Yes
Yes
Commercial Laundry
washers, dryers)
Individual
Yes
Yes
Residential type appliances,
Shop Tool & Equipment
NOT INCLUDED IN SERVICE
Trash Compactors
Individual
Yes Yes
PLUMBING
Main
Backflow
Pre center
Individual
Yes
Yes
Domestic Water Booster
Pumps
Individual
Yes
Yes
Sum Pumps
Individual
Yes
Yes
Domestic Hot Water heaters
>SO al
Individual
Yes
Yes
Valves
NOT
INCLUDED
IN
SERVICE
Filters
NOT
INCLUDED IN SERVICE
Fixtures
NOT INCLUDED
IN SERVICE
Strainers
NOT INCLUDED
IN SERVICE
Freezer Walk In, Reach In
Individual
Yes
Yes
FOOD SERVICE
Services Agreement between May 21, 2019
City of Dublin and Dude Solutions Inc. Exhibit A — Page 3 of 7
Freezer Walk
In, Reach In Individual
Yes
Yes
Refrigerator (Walk In, Individual
Reach In
Yes
Yes
Oven, Stoves Individual
Broilers, Grills, F ers Individual
Yes
Yes
Yes
Yes
Dishwashers Individual
Grease Tra s Individual
Yes
Yes
Yes
Yes
Large Kitchen Equipment Individual
>$2000 value
Yes
Yes
Counterto a liances
Culls
Tables,
Racks
LIFE SAFETYISECURITY
Fire Alarm S stem
Individual
Yes
Yes
S rinkler S tem I
Individual
Yes
No
Fire Panel I
Individual
Yes
Yes
Fire Suppression System
Individual
Yes
Yes
Fire Pump
Individual
Yes
Yes
Fire Extinguishers
S stem Level
No
No
Lighted Exit Signs
S tem Level
No
No
Eyewash I Safety Showers
S tem Level
No
No
AEDs
S stem Level
No
No
ADA Baseline Evaluation
Sucre
System Level
Yes
No
Smoke detectors, hom
strobes
NOT INCLUDED IN SERVICE
Fire valves, hydrants
NOT
INCLUDED
IN SERVICE
Individual fire extinguishers
I NOT INCLUDED IN SERVICE
VERTICAL TRANSPORTATION
Elevators
Individual
Yes
Yes
Escalators I
Individual
Yes
Yes
Dumb Waiter I
Individual
I Yes
Yes
BUILDING ENVELOPE COMPONENT
LEVEL CAPTURE
(INTERIOR AND EXTERIOR)
Electrical
S tem Level
Yes
No
Exterior doors
S tem Level
Yes
No
Exterior walls
framin
S temLevel
Yes
No
Exterior walls finish
S temLevel
Yes
No
Exterior windows
S tem Level
Yes
No
Foundation
S stem Level
Yes
No
HVAC (other than
ui meri tured
System Level
Yes
No
Interior finish ceilin
System
Level
Yes
No
Interior finish Boar
System Level
Yes
No
Services Agreement between May 21, 2019
City of Dublin and Dude Solutions Inc. Exhibit A — Page 4 of 7
Interior finish walls I
Svstem Level
Yes
No
Plumbing (other than
equipment ca tured
System Level
Yes
No
RoofingS
tem
Level
Yes
No
B. Evaluation
At the conclusion of the assessment(s), Certified DSI partner shall prepare reports as described above that
include:
• A general description of the property and improvements and comment generally on observed conditions.
• Comments for components that are exhibiting deferred maintenance issues and provide estimates for
"immediate" and 'capital repair costs based on observed conditions, available maintenance history and
industry -standard useful life estimates. If applicable, this analysis shall include the review of any available
documents pertaining to capital improvements completed within the last three years, or currently under
contract. Certified DSI partner shall also inquire about available maintenance records and procedures and
shall interview current available on -site maintenance staff.
• A schedule for recommended replacement or repairs (schedule of priorities).
• Address critical repairs separately from repairs anticipated over the term of the analysis.
• An FCI index number for each building.
• A twenty-year capital plan with an Executive Summary with graphic presentation of results to provide a
quick, "user-friendly" summary of the propertys observed condition and estimated costs assigned by
category.
C. Cost Estimating
Each single building report shall include an estimated cost for each system or component repair or
replacement anticipated during the evaluation term. The capital needs analysis shall be presented as an
Excel -based costtable that includes a summary ofthe description of each component, the age and estimated
remaining useful life, the anticipated year of repair or replacement, quantity, unit cost, and total cost for the
repair of each line item.
A consolidated Capital Needs Analysis shall be presented that includes ail anticipated capital needs for all
buildings.
In addition to the detailed description of the deficiencies, Consultant shall provide cost estimates for the
deficiencies noted. The cost estimate for capital deficiencies shall be based on the estimate for maintenance
and repair. Project management costs, construction fees, and design fees shall be derived using actual costs
from previous projects, if available.
DSI partners use the Uniformat system and the Whitestone Research model for cost estimating. Contractor
also maintains and updates our cost estimating system with information received from the field. Through our
construction monitoring work, we have current cost data from hundreds of in -progress construction and
rehabilitation projects. This allows us to project costs based on local conditions and to maintain a cost
database that in most cases is more current than published models.
City of Dublin and Dude Solutions Inc. Exhibit A— Page 5 of 7
D. Building Systems Equipment Inventory
An asset survey of major building systems shall be conducted for the purpose of noting remaining useful
life of major building equipment. A complete equipment inventory for each system shall be recorded with
information populated to City's account including:
• Building name
• System name (classification)
• Subsystem name (type)
• Component name (description)
• Unit of measure
• Quantity
• Asset tag number
• Manufacturer
• Model
• Serial Number
• Date put in service (if available)
• Condition
• Remaining useful life
• Replacement cost
• Notes
E. Report I Data review and import to City's DSI Solutions account
Completed report(s) and data files shall be provided to City following site visit, typically 3-4 weeks after end
of onsite activity. City shall have up to 30 days following receipt of reports/data files to review and request
revisions. The DSI Partner is available to do a "Page Turn Review' of the reports/data files via web -based
conference call meeting during this period. At conclusion of the 30-day review time, the Certified DSI
Partner shall prepare final import files and submit them to Contractor where the information shall be
imported to the City's account.
After a successful import, City will have five business days to review the system data for completeness and
accuracy. If there is no feedback or requested updates to the system data, then the data import will be
deemed complete and the "Import Complete" task will be closed and considered accepted by the City.
Should any revisions be identified or required upon City review of system data during the 5-day review
period, Contractor will engage the City and the Certified DSI Partner to review requested revisions and
determine the nature, level of effort, and feasibility of correcting the data in question. Contractor will work
with the Certified DSI Partner to validate the requested changes to incorporate them into the system. Once
the changes are completed, the City shall have an opportunity to do a final pass and validation of the data
for completeness.
Any further changes requested by City at this point shall be reviewed. Contractor reserves the right to
charge an additional consulting fee to make any further changes not deemed to be in scope of the original
project.
Services Agreement between
City of Dublin and Dude Solutions Inc.
May 21, 2019
Exhibit A — Page 6 of 7
Preventative Maintenance Schedule Creation
Delivered through a Certified DSI Partner.
Confirm the asset Inventory collected:
• The asset inventory collected shall be reviewed with City staff and then imported into City's DSI
Solutions account.
• Preventative Maintenance (PM) Schedule Gathering
• The DSI Partner shall review PM Task Check -Off Lists with City.
• PM Schedules shall be generated off the asset inventory collected by the DSI Partner
• City shall provide technicians or contractors that PM Schedules should be linked to and confirm the
frequency and start date for PM Schedules.
• The DSI Partner shall provide a list of PM Schedules to be generated to confirm the load balancing for
City staffing.
• PM Schedule Creation
• Contractors Staff shall import the agreed upon PM Schedules into City's account.
• Maximum PM Schedules Created = 40 per building (focused on main buildings).
• PM Training
• Contractor shall provide any extra online training needed for City staff to run reports and to update PM
Schedules based on future updates to the existing schedules being created.
Milestone Definitions
Mobilization:
Activity that occurs from project initiation with the service partner until the service partner arrives at job site.
On -Site Field Activity:
Field work that occurs while the service partner is at job site.
Data Management:
Data activity, including quality assurance and control, that occurs after field work is completed to produce
the data file. The Data Gathering service shall include a data upload.
Report:
Report generation and delivery.
services Agreemem oetween
City of Dublin and Dude Solutions Inc. Exhibit A —Page 7 of 7
EXHIBIT B
COMPENSATION SCHEDULE & REIMBURSABLE EXPENSES
City shall pay Contractor an amount not to exceed amounts listed below for each Fiscal Year. The base
contract amount and additional services in total constitute the annual not -to -exceed figure.
Fiscal
Year
18119g123,6O9
20@1
21R2
Software Subscd lion
$
$ 45,360
$ 47,628
Implementation Services
$
Subtotal
$
$45,360
S 47628
Total3YearTom
$
'Milestone Billing Schedules:
Mobilization —15%
On -Site Field Activity — 35%
Data Management — 35%
Report —15%
Please note, reimbursable expenses are built into rates as identified above.
Invoices shall be submitted electronically to: owinvoicesCcDdublin.ca.aov no more than once monthly and as
work is completed.
Services Agreement between May 21. 2019
City of Dublin and Dude Solutions Inc. Exhibit B — Page 1 of 1
EXHIBIT C
CONTRACTOR TERMS AND CONDITIONS
ONLINE SUBSCRIPTION AGREEMENT
This Online Subscription Agreement (this "Agreement") shall govern Customers (as defined below) access and use
of the Service (as defined below) provided by Smartware Group, Inc. ('Provider), an Affiliate (as defined below) of
Dude Solutions, Inc. (including its successors and assigns, "DSI"). BY ACCEPTING THIS AGREEMENT, EITHER
BY CLICKING A BOX INDICATING ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS
AGREEMENT OR BY OTHERWISE ACCESSING AND USING THE SERVICE, YOU AGREE TO THE TERMS OF
THIS AGREEMENT. AS A RESULT, PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT
CAREFULLY.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY,
YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE
TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU' OR'YOUW SHALL
REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT
AGREE W ITH THE TERMS AND CONDITIONS SET FORTH HEREIN, YOU MUST NOT ACCEPT THIS
AGREEMENT AND MAY NOT USE THE SERVICE.
Section 1.0 Definitions
As used in this Agreement, the following terms shall have the meanings set forth below.
"Account" means Customer's specific account where Customer subscnbes to access and use the Service
1.2 "Account Use means each employee, consultant and contractor specified by Customer to access and use
the Customers Account; and III) with respect to a Named User Application, each unique Named User for which
Customer has paid an applicable fee to Provider (or its sales agent) for such Named User Application.
1.3 'Affiliate " means, with respect to any legal entity, any other legal entity that (I) controls,(t)
is controlled by or (ti) is under common control of such legal entity. A legal entity shall be deemed to "control"
another legal entity if it has the power to direct or cause the direction of the management or policies of such legal entity,
whether through the ownership of voting securities, by contract, or otherwise.
1.4 "Annual Fee" means the annual fee invoiced to Customer by Provider (or its sales agent) prior to the Initial
Tern and each applicable Renewal Term, which is required to be paid In order for Customer to be permitted to
access and use the Service.
1.5 "Confidential Information" means any non-public information andlor materials disclosed in writing or orally by
a party under this Agreement (the "Disclosing Part v))to the other party (the 'Receiving Part"), which (i) is designated
in writing as confidential at the time of disclosure, or (ii) with respect to non-public information disclosed orally, the
Disclosing Party sends the Receiving Party a written notice to Receiving Party within 15 days after oral disclosure
Identifying the non-public information that was disclosed as its confidential information, including when, where, how
and to whom such non-public information was disclosed. For avoidance of doubt, Provider's Confidential Information
shall include the source code, data structure, algorithms and logic of the Applications and Service. Notwithstanding
the foregoing, Confidential Information shall not include any information that (i) is or becomes generally known to the
DubliDude..__.. —PageExhibitC 1of10
City of Dublin and Dude Solutions Inc.
public without breach of any obligation owed to the Disclosing Party, (ii) was known to the
Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing
Party, (iii) is received from a Third Party without breach of any obligation owed to the Disclosing Party, or (iv) was
independently developed by the Receiving Party.
1.6 'Content' means all of the audio and visual information, documents, content, materials, products andlor
software contained in, or made available through, the Service.
1.7 "Customef means the legal entity identified on the Account.
1.6 "Customer Data means all data, information and other content provided by or on behalf of Customer to the
Service, including that which the Account Users input or upload to the Service.
1.9 "Documentationmeans the user documentation relating to the Service, including but not limited to descriptions
of the functional, operational and design characteristics of the Service.
1.10 "DSI Data" means all data, information and other content provided by or on behalf of DSI
customers to any of the DSI Services.
1.11 "DSI Services" means DSI's suite of facility management software -as -a -service applications, solution and
services, as updated, enhanced or otherwise modified from lime -to -time.
1.12 'Highly -Sensitive Personal Information" means an Account Users (i) govemment-issued identification number
(including social security number, drivers license number or state -issued identified number), (ii) financial account
number, credit card number, debit card number, credit report information, In each use with or without any required
security code, access code, personal identification number or password that would permit access to such Account
User's financial account; and/or (iii) biometric data.
1.13 "HIPAA" means the Health Insurance Portability and Accountability Act of 1996 (Pub. L.
104-191) and all regulations promulgated thereunder (45 CF.R. §§ 160-164), as amended by Subtitle D of the Health
Information Technology for Economic and Clinical Health Act and all regulations promulgated thereunder, as Title XIII
of Division A and Title IV of Division B of the Amencan Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), as
amended from time to time.
1.14 "Implementation Service" means Provider's unique implementation service that is provided to Customer
with respect to the Service. A Provider advisor is provided by Provider to Customer in connection with such
implementation service in order to help facilitate smooth transition and boost Customer adoption of the Service.
1.15 "Intellectual Property Rights" means all ideas, concepts, designs, drawings, packages, works of authorship,
processes, methodologies, information, developments, materials, inventions, improvements, software, and all
intellectual property rights woddwide arising under statutory or common law, including without limitation, all (i) patents
and patent applications owned or licensable by a party hereto; (ii) rights associated with works of authorship, including
copyrights, copyright applications, copyright registrations, mask work rights, mask work applications and mask work
registrations; (iii) rights related to protection of trade secrets and Confidential Information; (iv) trademarks, trade names,
service marks and logos; (v) any right analogous to those set forth in clauses (1) through (iv); and (vi) divisions,
continuations, renewals, reissues and extensions of the foregoing (as and to the extent applicable) now existing,
hereafter fled, issued or acquired.
1.16 "Service' means the "Asset Essentials" SaaS-based application or the 'Asset Essentials Enterprise' SaaS-
based application, as applicable, which Customer subscribes to pursuant to this Agreement, in each use as updated,
enhanced or otherwise modified from time -to -time.
Services Agreement between May 21, 2019
City of Dublin and Dude Solutions Inc. Exhibit C — Page 2 of 10
1.17 "Third Pa means a parry other than Customer. Provider or DSI
Section 2.0 Use of the Service; Proprietary Rights
2.1 Use of Service.
(a) Subscription. Subject to the tens of this Agreement (including, without limitation, the responsibilities,
limitations and restrictions set forth in this Seclion 2.1 and payment of the Annual Fees required hereunder), Provider
permit Customers Account Users to access and use the Service during the Term, including access and use of all
of the Content contained in or made available through the Service, Customer agrees that it shall use the
Service solely for internal business purposes, and access and use of the Service shall be limited to Account Users.
(b) Account Setup. To subscribe to the Service, Customer must establish its Account, which may only be
accessed and used by its Account Users. To setup an Account User, Customer must provide Provider (and agree to
maintain, promptly update and keep) true, accurate, current and complete information for such Account User. If
Customeror any applicable Account User provides any information that is untrue, inaccurate, not current or incomplete,
Provider has the right to immediately suspend or terminate Customers Account and usage of the Service and refuse
any and all future use. Each Account User must establish and maintain a personal, non -transferable password, which
shall not be shared with, or used by, any other Third Party. Customer may not transfer an Account Users right to
access and use the Service to a different user. Customer shall be solely responsible for any and all activities that
occur under its Account, including all acts and omissions of its Account Users. Customer shall notify Provider
immediately of any unauthorized use of its Account andlor any other breach of security of the Service that it suspects
or becomes aware of.
(c) Customer Responsibilities. Customer shall: (i) take appropriate action to ensure that non- Account Users do
not access or use the Service; (ii) ensure that all Account Users comply with all of the terms and conditions of this
Agreement, including the limitations and restrictions set out in Section 2.1(d); (iii) be solely responsible for the accuracy,
integrity, legality, reliability and appropriateness of all Customer Data created by Account Users using the Service; (iv)
access and use the Service solely in compliance with the Documentation and all applicable local, state, federal, and
foreign laws, rules, directives and regulations (including those relating to export, homeland security, anti -terrorism,
data protection and privacy); (v) allow e-mail notifications generated by the Service on behalf of Customers Account
Users to be delivered to Customers Account Users; and (vi) promptly update and upgrade its system as requested or
required in order to ensure continued performance and compatibility with upgrades to the Service. Customer shall be
responsible for any breach of this Agreement by Account Users and any access or Use of the Service by persons other
than Account Users.
(d) Limitations and Restrictions. Customer agrees that 1 shall not, and shall not permit any Third Parry to,
directly or indirectly: (I) modify, alter, revise, decompile, disassemble, reverse engineer, create derivative works or
attempt to derive the source code of the Service; (ii) assign, transfer, lease, rent, sublicense, distribute or otherwise
make available the Service, in whole or in part, to any Third Parry, including on a timesharing, software -as -a -service
or other similar basis; (iii) share Account login
information or otherwise allow access or use the Service to provide any service bureau services or any services on
a similar basis; (iv) use the Service in a way not intended by Provider or for any unlawful purpose; (v) use the
Service to store ortransmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material
in violation of Third Party privacy rights; (vi) attempt to tamper with, alter, disable, hinder, by-pass, override, or
circumvent any security, reliability, integrity, accounting or other mechanism, restriction or requirement of the Service;
(vii) remove, obscure or alter any copyright, trademark, patent or proprietary notice affixed or displayed by or in the
Service; (viii) perform load tests, network scans, penetration tests, ethical hacks or any other security auditing
procedures on the Service; (ix) interfere with ordisrupt the integrity or performance of the Service or the data contained
Services Agreement between May 21. 2019
City of Dublin and Dude Solutions Inc. Exhibit C — Page 3 of 10
therein; (x) access the Service in order to build a competitive product or service, copy any features, functions or
graphics of the Service or monitor the availability and/or functionality of the Service for any benchmarking or
competitive purposes; (xi) store, manipulate, analyze, reformat, print, and display the Content for personal use; (xii)
upload or insert code, scripts, batch files or any other form of scripting or coding into the Service; and (xiii) store
Highly -Sensitive Personal Information, Highly-Sensibve Personal Informabon should riot be entered into the Service,
as there are no data fields requesting this type of information. Provider reserves the right in the future to scan input
data and block certain Information such as social security numbers or credit card numbers
(a) Additional Guidelines. Provider reserves the right to establish or modify general practices and limits concerning
use of the Service, including without limitation, the maximum number of days that Customer Data shall be retained by
the Service and the maximum disk space that shall be allotted on Provider servers on Customer's behalf. Provider
shall provide at least sixty (60) days' prior notice of any such modification. Provider also reserves the right to block
IP addresses originating a Denial of Service (DoS) attack or IP addresses causing excessive amounts of data to be
sent to Provider servers. Provider shall notify Customer should this condition exist and inform Customer of its action.
Once blocked, an IP address shall not be able to access the Service and the block maybe removed once Provider is
satisfied corrective action has taken place to resolve the issue.
(1) Third Party Software. The Service may incorporate and/or embed software and other technology owned and
controlled by Third Parties. Any such Third Party software or technology that is incorporated and/or embedded into
any Service shall be provided to Customer on the license terms set forth this Agreement, unless additional or separate
license terns apply as indicated by Provider To the extent that the Service links to any Third Party website,application
or service, the terms and conditions thereof shall govern Customer's rights with respect to such website, application
or service, unless otherwise expressly provided Provider. Provider shall have no obligations or liability arising from
Customer's access and use of such linked Third Party websites, applications and services.
2.2 Proonetary Rights.
(a) Customer acknowledges and agrees that (as between Customer and Provider) Provider retains all ownership
right, title, and interest in and to the Service, the Documentation and the Content, including without limitation all
corrections, enhancements. improvements to, or derivative works thereof (collectively, "Derivative Works°), and in all
Intellectual Property Rights therein or thereto. To the extent any Derivative Work is developed by Provider based upon
ideas or suggestions submitted by Customer to Provider, Customer hereby irrevocably assigns all rights to modify or
enhance the Service using such ideas or suggestions or pint contributions to Provider, together with all Intellectual
Property Rights related to such Derivative Works. Nothing contained in this Agreement shall be construed to convey
to Customer
(or to any party claiming through Customer) any Intellectual Property Rights in or to the Service, the
Documentation and the Content, other than the rights expressly set forth in this Agreement.
(b) Provider acknowledges and agrees that (as between Customer and Provider) Customer retains all ownership
right, title, and interest in and to the Customer Data, including all Intellectual Property Rights therein or thereto.
Notwithstanding the foregoing, Customer hereby grants Provider and its Affiliates a nonexclusive, royalty -free license
t¢ (i) access, display, copy, distribute, transmit, publish, disclose and otherwise use all or any portion of the Customer
Data to improve the Service and the performance of Provider, including without limitation, submitting and sublicensing
the Customer Data to Third Parties for analytical purposes, Provided that (x) such Third Parties have entered into
a written agreement with Provider to maintain the confidentiality of the Customer Data and (y) Provider shall not
specifically identity the Customer Data as originating from Customer when providing the Customer Data to such Third
Parties; (ii) integrate and incorporate the Customer Data with and into the DSI Data (collectively, the "Combined Data");
(iii) access, copy, view, analyze, process and use the Combined Data for the purpose of hosting, operating and
providing the DSI Services; and (iv) use, copy and publish, and disclose, transmit and re -distribute all orany portion of
the Combined Data to DSI customers in connection with their access and use of the DSI Services.
Services Agreement between May 21, 2019
City of Dublin and Dude Solutions Inc. Exhibit C — Page 4 of 10
Section 3.0 Provider Responsibilities
3A Implementation and Su000rt.
(a) Provider (or its agent, representative or designee) shall provide the Implementation Service for the
Service. Customer is responsible for scheduling the timing and delivery of the Implementation Service with
Provider. The Implementation Service must be performed within the three (3) month period immediately following the
date Customer initially subscribes to the Service. Provider shall not be obligated to provide the Implementation
Service with respect to the Service after the expiration of such 3-month period. Implementation Services shall be
performed in accordance with Providers Implementation Services policy, as amended from time -to -time, a copy of
which shall be provided to Customer upon request.
(b) During the Tenn Provider (through DSI, as its agent and designee) shall, as part of Customers Annual Fees,
provide telephone and e-mail support ('Support Services") to Customer during the hours of 800 a.m. (Eastern time)
to 6:00 p.m. (Eastern time), Monday through Friday, excluding holidays. Customer will direct all Support Services
inquiries to DSI and not to Provider directly using the DSI-specific telephone and e-mail contact information provided
to Customer. Support Services shall be performed in accordance with Providers Support Services policy, as
amended from time -to -lime, a copy of which shall be provided to Customer upon request.
3.2 Professional Services. Provider shall provide and perform professional, technical, consulting and/or other
services (collectively, "Professional Services") that are mutually agreed upon and described in one or more statements
of work that expressly reference this Agreement. Each statement of work shall be effective, incorporated into and
form a part of this Agreement when duly executed by an authorized representative of each of the parties. Each
statement of work shall (i) describe the fees and payment terms with respect the Professional Services being provided
pursuant to such statement of work, (if) identify any work product that will be developed pursuant to such statement of
work, and (iii) set forth each party's respective ownership and proprietary rights with respect to any work product
developed
pursuant to such statement of work. Provider represents and warrants that all such Professional Services shall be
performed in a professional and workmanlike manner.
3.3 Customer Data. Provider shall not edit or disclose any information regarding Customers Account, including
any Customer Data, without Customer's prior permission, except in accordance with this Agreement. Notwithstanding
the foregoing, Provider is hereby permitted to provide certain statistical information (e.g., usage, average costs or
time values, or user traffic patterns) in aggregated and de -identified form to Third Parties or to other subscribers.
3.4 Availability, Provider shall use commercially reasonable efforts to make the Service available (i) 99.99/.of the
time during the hours of 6:00 a.m. (Eastern time) to 10:00 p.m. (Eastern time), Monday through Friday, excluding
holidays ("Business Hours"), and (ii) 99.5%of the time, determined on a twenty-four (24) hours a day, seven (7) days
a week basis. Availability shall be calculated on a monthly basis. For purposes of calculating availability, the Service
shall not be deemed unavailable during any period arising from: (i) routine system maintenance that is performed
weekly during non -Business Hours; (k) scheduled downtime for extended system maintenance (of which Provider shall
give at least 8 fours' prior notice and which Provider shall schedule to the extent reasonably practicable outside of
Business Hours); and (III) any unavailability caused by circumstances beyond Providers reasonable control, including,
for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor
problem (other than one involving Our employees), Internet service provider failure or delay, non -Provider software or
hardware, or denial of service attack.
3.5 Protection of Customer Data. Provider shall maintain commercially reasonable administrative, physical, and
technical safeguards for protection of the security, confidentiality and integrity of Customer Data. In addition, if
Customer is a "Covered Entity under HIPAA, Provider shall be Customers "Business Associate' under HIPAA, and
Services Agreement between May 21, 2019
City of Dublin and Dude Solutions Inc. Exhibit C — Page 5 of 10
any Customer Data provided by Customer to Provider in their capacities as a Covered Emily and Business Associate,
respectively, Provider and Customer shall enter into a Business Associate Agreement (the form of which shall be
reasonably satisfactory to Provider).
Section 4.0 Third Party Interactions
4.1 Relationship to Third Parties. In connection with Customers use of the Service, Customer may: (i) enter into
correspondence with and/or participate in promotions of advertisers or sponsors showing their goods and/or services
through the Service) (ii) purchase goods and/or services, including implementation, customization, content, forms,
schedules, integration and other services; (iii) exchange data, integrate, or interact between Customers Account, the
Service and a Third Party provider; (iv) be offered additional functionality within the user interface of the Service
through use of the Service's application programming interface; and/or (v) be provided content, knowledge, subject
matter expertise in the creation of forms, content and schedules. Any such activity, and any terms, conditions,
warranties or representations associated with such activity, shall be solely between Customer and the applicable
Third Party. Provider shall have no liability, obligation or responsibility for any such correspondence, purchase,
promotion, data exchange, integration or interaction between Customer and any such Third Party.
4.2 Ownership. Customer is the owner of all Third Party content and data loaded into the Customer Account.
As the owner, it is Customers responsibility to make sure its meets its particular needs. Provider shall not comment,
edit or advise Customer with respect to such Third Party content and data in any manner.
4.3 No Warranty or Endorsement. Provider does not warrant any Third Parry providers or any of their products or
services, whether or not such products or services are designated by Provider as "certified; 'validated; "premier"
and/or any other designation. Provider does not endorse any sites on the Internet which are linked through the Service.
Provider is providing these links to Customer only as a matter of convenience, and in no event shall Provider be
responsible for any content products, or other materials on or available from such sites.
4.4 Additional Terms, The Disclaimer of Warranties (Section 8.1) and Limitation of
Liability
(Section 8.3) set forth herein shall apply to all Third Party interactions.
Section 5.0 Provider's Sales Agent
5.1 Sales Agent. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees
that DSI has acted on Providers behalf under this Agreement in DSI's limited capacity as Providers sales agent.
Customer acknowledges and agrees that (i) Customer will process payment for all Annual Fees or expenses owing to
Provider under this Agreement through DSI, as Provider's collection agent, and not through Provider directly, (ii) except
as provided in clause (iii), Customer will direct all Support Services inquiries to DSI and not to Provider directly, and
(iii) DSI did not design, develop or create the Service purchased by Customer under this Agreement and DSI has not
itself provided any warranties with respect to the Service, and therefore Customer will direct any warranty claims
with respect to the Service directly to Provider and not to DSI,
5.2 Third -Party Beneficiary. Customer acknowledges and agrees that DSI is third -party beneficiary to this
Agreement and this Agreement shall not be amended in any manner that affects DSI's rights hereunder without DSI's
prior written consent.
Section 6.0 Annual Fees
6.1 Annual Fees. Customer shall, on or before the commencement of the Initial Term of a Service subscription.
pay to DSI (as Providers collection agent) the Annual Fee for such Service subscription. Thereafter, DSI (as
Services Agreement between May 21. 2019
City of Dublin and Dude Solutions Inc. Exhibit C — Page 6 of 10
Providers collection agent) shall invoice Customer for each applicable Annual Fee at least sixty (60) days prior to
the commencement of the applicable Renewal Term. Unless Customer provides written notice of non -renewal in
accordance with Section 7,1, Customer agrees to pay all Annual Fees no later than thirty (30) days after
the receipt of DSI's applicable invoice therefor. Customer is responsible for providing complete and accurate
billing and contact information to DSI and Provider and notifying DSI and Provider of any changes to such information.
6.2 RESERVED
6.3 Renewal Charges. Provider maintains the right to increase Annual Fees and other applicable fees and charges
in connection with each Renewal Tenn.
6.4 Taxes. Provider's fees do not include any fazes, levies, duties or similar governmental assessments of any
nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction
whatsoever (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases
hereunder. If Provider has the legal obligation to pay or collect Taxes for which Customer is responsible under this
Section 6.4, DSI (as Provider's collection agent) shall invoice Customer and Customer shall pay that amount unless
Customer provides DSI with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer
agrees to indemnify and hold Provider harmless from any encumbrance, fine, penalty or other expense which Provider
may incur as a result of Customers failure to pay any Taxes required hereunder. For clarity, Provider is solely
responsible for taxes assessable against Provider based on its income, property and employees.
Section 7.0 Term and Termination
7.1 [RESERVED]
7,2 Termination of Agreement for Breach. Either party may terminate this Agreement (including its Service
subscription and Account) prior to the expiration of the Term if the other party commits a material breach of this
Agreement and fails to cure such breach within thirty (30) days after written notice of such breach is given by the non -
breaching party; provided that ff the breach involves a failure of Customer to pay any of the fees required under this
Agreement, the cure period shall be reduced to ten (10) days.
7.3 Termination for Convenience. Customer may terminate this Agreement (including its Service subscription
and Account) at any time for convenience by providing DSI (as Providers sales agent) thirty (30) days' prior written
notice to the following email address: notice(ftudesolutions.com. Upon termination by Customer pursuant to this
Section 7.3, Customer may request in writing and be granted a refund in accordance with the following: (i) ff Provider
receives Customers wriften notice of termination within the first sixty (60) days after the commencement of the Initial
Term, Provider shall refund to Customer eighty percent (60%) of the Annual Fee prepaid for the Initial Term (the"Initial
Year Subscription Fee"); (ii) if Provider receives Customers written notice of termination during the Initial Term but
after the first sixty (60) days thereof, Provider shall refund to Customer a pro rate portion of the Initial Year Subscription
determined based upon the number of full months remaining in the initial Term (based upon the effective date of
termination); (iii) if Provider receives Customers written notice of termination during a Renewal Tenn, Provider shall
refund to Customer a pro rate portion of the Annual Fee prepaid for such Renewal Term determined based upon the
number of full months remaining in such Renewal Ten (based upon the effective date of termination). For avoidance
of doubt, no refund shall be granted with respect to fees for training, import or project management and/or other
Professional Services,
7A Effect of Termination. Upon termination of this Agreement, (i) Customer's access and use of the Service shall
automatically cease, and (ii) Provider shall have no obligation to maintain the Customer Data or to forward the Customer
Data to Customer or any Third Party.
Services Agreement between 'v1Oy .......
City of Dublin and Dude Solutions Inc. Exhibit C — Page 7 of 10
7.5 Survival. The following portions of this Agreement shall survive termination of this Agreement and continue in
full force and effect. Sections 2.1(d), 2.2. 7.4, 8, 9 and 10. Termination of this Agreement, or any of the obligations
hereunder, by either party shall be in addition to any other legal or equitable remedies available to such party, except
to the extent that remedies are otherwise limited hereunder.
Section 8.0 Disclaimers and Indemnification
8.1 Disclaimer of Warranties. PROVIDER, DSI AND EACH OF THEIR LICENSORS MAKE NO REPRESENTATION,
WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH,
AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. PROVIDER, DSI AND
EACH OF THEIR LICENSORS DO NOT REPRESENT OR WARRANT THAT; (I) THE USE OF THE SERVICE WILL
BE SECURE, TIMELY, UNINTERRUPTED OR ERROR -FREE OR OPERATE IN COMBINATION WITH ANY OTHER
HARDWARE, SOFTWARE, SYSTEM OR DATA; (11) THE SERVICE WILL MEET YOUR REQUIREMENTS OR
EXPECTATIONS; (ill) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY
PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU
THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; IV) ERRORS OR
DEFECTS WILL BE CORRECTED; (VI) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE
AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT
IS PROVIDED TO YOU STRICTLY ON AN 'AS -IS' BASIS. ALL CONDITIONS, REPRESENTATIONS AND
WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FORA PARTICULAR PURPOSE, OR
NON- INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW BY PROVIDER, DSI AND THEIR LICENSORS.
8.2 [RESERVED]
8.3 Limitabon of Liability. IN NO EVENT SHALL PROVIDER, IN THE AGGREGATE, BE LIABLE FOR DAMAGES
TO CUSTOMER IN EXCESS OF THE AMOUNT OF ANNUAL FEES PAID BY CUSTOMER TO PROVIDER
(INCLUDING
PROVIDERS
PURSUANT TO THIS AGREEMENT URINGHEETWELVE O LRAGENT,LECTION MONTHHS OR TO T E SERVICE)R USE OF THE
LAST ACTOR OMISSION
GIVING RISE TO THE LIABILITY. UNDER NO CIRCUMSTANCES SHALL PROVIDER HAVE ANY LIABILITY WITH
RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS, OR
CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF PROVIDER HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS
BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
FOR AVOIDANCE OF DOUBT, CUSTOMER ACKNOWLEDGES AND AGREES THAT DSI IS NOT A PARTY TO
THIS AGREEMENT AND, THEREFORE, IN NO EVENT SHALL DSI BE LIABLE FOR DAMAGES TO CUSTOMER
HEREUNDER.
Section 9.0 Confidentiality
9.1 Protection of Confidential Information. The Receiving Party agrees that it shall (1) hold the Disclosing Party's
Confidential Information in strict confidence and shall use the same degree of care in protecting the confidentiality of
the Disclosing Party's Confidential Information that it uses to protect its own Confidential Information, but in no event
less than reasonable care, (ii) not use the Confidential Information of the Disclosing Party for any purpose not
permitted by this Agreement; (iii) not copy any pad of the Disclosing Party's Confidential Information except as
expressly permitted by this Agreement, IN) limit access to the Confidential information of the Disclosing Party to those
of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who
have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those
herein.
Services Agreement between May 21, 2019
City of Dublin and Dude Solutions Inc. Exhibit C — Page 8 of 10
9.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party it
it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled
disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, 9 the Disclosing
Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's
Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing
Party is not contesting the disclosure, the
Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure
access to such Confidential Informafon.
9.3 Remedies. Recipient acknowledges that Disclosing Party would have no adequate remedy at law should
Receiving Party breach its obligations relating to Confidential Information and agrees that Disclosing Party shall be
entitled to enforce fts rights by obtaining appropriate equitable relief, including without limitation a temporary restraining
order and an injunction,
Section 10.0 Miscellaneous
10.1 [RESERVED]
10.2 [RESERVED]
10.3 (RESERVED]
10.4 [RESERVED]
10.5 [RESERVED]
10.6 [RESERVED]
10.7 Force Mel Sure. Subject to the limitations set forth below and except with respect to any payment obligations
of Customer, nedher parry shall be held responsible for any delay or default, including any damages arising therefrom,
due to any act of God, act of governmental entity or military authority, explosion, epidemic casualty, flood, not or civil
disturbance, war, sabotage, unavailability of or interruption or delay in telecommunications or Third Party services,
failure of Third Party software, insurrections, any general slowdown or inoperability of the Intemet (whether from a virus
or other cause), or any other similar event that is beyond the reasonable control of such party (each, a 'Force Maieure
Event"). The occurrence of a Force Majeure Event shall not excuse the performance by a party unless that
party promptly notifies the other party of the Force Majeure Event and promptly uses its best efforts to provide
substitute performance or otherwise mitigate the force majeure condition.
10.6 [RESERVED]
10.9 Interpretation of Agreement. The Section headings contained in this Agreement are solely for the purpose of
reference, are not pad of the agreement of the parties, and shall not affect in any way the meaning or interpretation
of this Agreement. Any reference to any federal, state, local or foreign statute or law shall be deemed to refer to all
rules and regulations promulgated thereunder, unless the context requires otherwise.
10.10 Third Party Beneficiaries. Customer acknowledges and agrees that DSI is third -party beneficiary to this
Agreement and this Agreement shall not be amended in any manner that affects DSI's rights hereunder without DSI's
prior written consent, Except as expressly provided in the foregoing sentence, no person or entity not a party to this
Agreement will be deemed to be a third -party beneficiary of this Agreement or any provision hereof.
Services Agreement behveen May 21, 2019
City of Dublin and Dude Solutions Inc. Exhibit C — Page 9 of 10
10.11 Severability. The invalidity of any portion of this Agreement shall not invalidate any other portion of this
Agreement and, except for such invalid portion, this Agreement shall remain in full force and effect.
10.12 [RESERVED]
10.13 [RESERVED]
2933802.1
Services Agreement between May 21, 2019
City of Dublin and Dude Solutions Inc. Exhibit C — Page 10 of 10
Facility Condition Assessment and Preventative Maintenance (PM) Program
The condition assessment is the foundation of the program and a key element of the
capital forecasting module. It is necessary to understand the capital investment required
to keep the City facilities and equipment at an acceptable condition and to forecast the
capital replacement costs when the equipment has reached the end of its expected useful
life (EUL). The PM program is the next element, which helps to maximize the use of
limited resources. The goal of the PM program is to prevent equipment failure and
maximize EUL by following industry and manufacturer standards for equipment or
systems maintenance.
The condition assessment will begin with collecting data about the City’s existing facilities.
The data collection process will then shift into a data analysis process, particularly in
future years. The data collection and analysis process will answer the following questions
and complete the following tasks:
Year 1
• What do we have?
• How old is it?
• What is the EUL?
• What is the working condition?
• What will it cost to replace?
• Establish a PM program
• Estimate initial budget forecast for replacement or major repairs
Year 2 and Beyond
• Review the work history for the system or equipment
• What did we do? PM activities and unplanned service calls
• Major repairs
• Are we spending money in the right place?
• Review priorities and update as needed, some equipment might be
reaching the end of EUL but if it has no issues the replacement can b e
postponed, at the same time other equipment might be new but with many
service calls indicating significant problems that will require replacement
sooner than planned.
The following are examples of equipment and or systems that will be inventoried and o r
evaluated:
• Heating System
• Ventilation System
• Air Conditioning System
• Roofing System
• Electrical System
• Plumbing
• Vertical Transportation
• Building Envelope
• Structural Components
• Site Paving
• Commercial Kitchen
• Life Safety/Security
• IT systems
PM Schedule Gathering:
• DSI will review PM Task Check-Off Lists with City Staff
• PM Schedules will be generated off the asset inventory collected by DSI
• DSI will provide a list of PM Schedules to be generated to confirm the load
balancing for City staffing
• City Staff will provide technicians or contractors that PM Schedules will be
linked to and will confirm the frequency and start date for PM Schedules
• PM Schedule Creation
• DSI Staff will import the agreed upon PM Schedules into the City’s account
• Maximum PM Schedules Created = 40 per building (focused on main
buildings)
PM Training:
• DSI will provided extra online training needed for City staff to run reports
and to update PM Schedules based on future updates to the existing
schedules being created