CONTRACT SUMMARY SHEET - Los Angelesclkrep.lacity.org/onlinecontracts/2014/c-119820_c_05-22...2014/05/22 · SUSTENTO GROUP, LLC . Recitals THIS FIFTH AMENDMENT to Agreement Number

CONTRACT SUMMARY SHEETTO: THE OFFICE OF THE CITY CLERK,

COUNCIL/PUBLIC SERVICES DIVISIONROOM 395, CITY HALL

(PLEASE DO NOT STAPLE THE CONTRACT FOR THE CLERK'S FILE)

DATE: May 27,2014

FORM MUST BE TYPEWRITTEN

FROM (DEPARTMENT): HousinQ and Community Investment Dept (HCIDLA)

CONTACT PERSON: _S_h_el~IY_L_o PHONE:213 808-8957

CONTRACT NO.: C-119820 COUNCIL FILE NO.: 12-0520-S2

DATE

NEW CONTRACTAMENDMENT NO. _5_ADDENDUM NO.SUPPLEMENTAL NO.CHANGE ORDER NO.

ADOPTED BY COUNCIL: 4-11-14

APPROVED BY BPW: _.DATE

CONTRACTOR NAME: Sustento Group, LLC~~~~~~------------------~TERM OF CONTRACT: _1_0-_10_-_20_1_1 THROUGH: _1_2/_3_1/_20_1_4 _

TOTAL AMOUNT: 1,600,315 (623,280 added by this amendment)

PURPOSE OF CONTRACT:Provide oversight of the Los Angeles Commercial Building Performance Partnership Program

NOTE: CONTRACTS ARE PUBLIC RECORDS ~SCANNED AND UPLOADED TO THE INTERNET

FIFTH AMENDMENTTO AGREEMENT NUMBER 119820 OF CITY OF LOS ANGELES CONTRACT

BETWEENTHE CITY OF LOS ANGELES

ANDSUSTENTO GROUP, LLC .

Recitals

THIS FIFTH AMENDMENT to Agreement Number 119820 is made and entered into by and betweenthe City of Los Angeles (the "City"), acting by and through its Housing and Community Investment Department("HCID"), and Sustento Group, LLC, a for-profit California limited liability company ("Contractor").

Whereas, the City and Contractor entered into an Agreement, effective October 10, 2011, whereinContractor agreed to provide certain services related to Energy Upgrade Los Angeles (also known as the LosAngeles Commercial Building Performance Partnership Program ("LACBPP"», including the management andadministration of the Commercial Properties Financing Program ("Program"); and

Whereas, Section PSC-6 of Exhibit H of the Agreement provides for amendments; and

Whereas, the Agreement contemplated that modifications and closeout activities may be required afterthe time set forth in Section 201 of the Agreement; and

Whereas, the City entered into a Sub-award Agreement (Subcontract No. 400-10-004-06) with theLocal Government Commission ("LGClJ) under the Master Agreement between LGC and the EnergyResources Conservation and Development Commission of the State of California ("California EnergyCommission") to receive ARRA funds through the State Energy Program ("SEP") to fund the implementation ofthe Program; and

Whereas, the City also received funding for the Program through an Energy Efficiency andConservation Block Grant from the U.S. Department of Energy, and

a) Extending the term of the agreement for a new ending date of December 31,2014;

b) Increasing compensation in the amount of Six Hundred Twenty Three ThousandTwo Hundred Eighty Dollars ($623,280) of Gas Company funds for a new totalcompensation amount of One Million Six Hundred Thousand Three HundredFifteen Dollars ($1,600,315);

c) Revising Exhibit I to incorporate additional funding and activities to the Scope ofWork and Contractor Responsibilities- and

d) Making such other changes as are required in connection with the foregoing, allas detailed elsewhere in this Amendment; and

Whereas, the City also received funding for the Program through a AARA Funded Finance ProgramsGrant from the Southern California Gas Company ("Gas Company") Grant, and

Whereas, the City and Contractor desire to amend the Agreement as authorized by the City Counciland the Mayor (refer to Council File Number 12-0520-S2 dated April 16, 2014) which authorize the GeneralManager of HCID to prepare and execute an amendment to the Agreement for the purposes of:

1

Whereas, this Amendment is necessary and proper to continue and/or complete certain activitiesauthorized under the Agreement.

119820-5

EECBG-ARRA SEP Funds Gas Co. FundsProgram Funding (CFDA 81.128) (CFDA 81.119) TotalTotal Original $114,000 - - $114,000Total added Amend 1 - $37,935 - $ 37,935Total added Amend 2 $ 30,000 - - $ 30,000Total added Amend 3 - $35,000 $ 95,000 $130,000Total added Amend 4 $665,100 $665,100Total added Amend 5 $623,280 $623,280

Contract Total Amend 4 $144,000 $72,935 .. $1,383,380 $1,600,315

Now, therefore, the City and Contractor, in consideration of the promises and of the recitals, terms, covenantsand representations herein, agree that the Agreement be amended effective March 30, 2014 as follows:

§1. Amend Section 201, Time of Performance, by deleting the ending date of March 29, 2014 and replacingwith the new ending date of December 31,2014.

§2. Amend Section 301A entitled "Compensation and Method of Payment": by deleting the total dollaramount of Nine Hundred Seventy Seven Thousand Thirty Five Dollars ($977,035) and replacing withthe new total dollar amount of One Million Six Hundred Thousand Three Hundred Fifteen Dollars($1,600,315) and the funding tables are deleted and replaced with the table. below:

§3. Delete Section 301 C, which requires that the City withhold 10% of funds.

§4. Amend Exhibit I, entitled "Scope of Work and Contractor Responsibilities": by replacing Section 3.B.,with a revised Fee Schedule that includes additional funding. The revised Exhibit I is attached heretoand incorporated by reference.

§5. Amend to add updated standard contract language by adding the following new section to Exhibit A,Standard Provisions for City Contracts. Compliance with the following City Charter Section and relatedordinances shall commence on the date of the execution of this Amendment.

In accordance with California Public Contract Code Sections 2200-2208, all bidders submittingproposals for, entering into, or renewing contracts with the City of Los Angeles for goods and servicesestimated at $1,000,000 or more are required to complete, sign, and submit the "Iran Contracting Actof 2010 Compliance Affidavit.

§6. Amend and delete all references to the Community Development Department (COD) and replace withthe Housing and Community Investment Department (HCID) of the City of Los Angeles.

§7. Amend Exhibit J, Inventions, Patents and Copyrights, to update standard contract language byrevising replacing with the new Exhibit J which is attached hereto and incorporated by reference.

§8. Except as herein amended, all terms and conditions of the Agreement shall remain in full force andeffect.

This Amendment is executed in three (3) triplicate originals, each of which is deemed to be an original. ThisAmendment includes three (3) pages and two Exhibits which constitute the entire understanding andagreement of the parties.

2119820-5

g. Work with LACBPP participants (property owners) to assist in evaluation of financing options to fund energyand water efficiency/conservation upgrades, and submittal of PACE financing applications.

e. Manage reporting on the DSRF and assist where necessary with proper submittal of LACBPP participantapplication materials.

f. Oversee' and manage Program workflow, including timely review of all applications for energy audits and/orrequests for education on available financing options.

h. Outreach to the financial services community to develop financing opportunities in the private market,including the development of a Directory of Capital Providers interested in funding energy/waterefficiency/conservation upgrades. Educate the Prime Contractor's subcontractors on how to properly explainthe LACBPP Program and the available project financing options to property owners and other stakeholders,such as community groups, industry organizations, contractors, and financial institutions.

1. Prepare and/or present periodic progress reports as required and/or requested by the City, federal, and otherentities overseeing aspects of the Program and/or funding associated with the Program, including monthlyand quarterly reports required by the DOE. Any and all communications between Contractor and DOEpertaining to this Program, including, but not limited to, e-mail, telephonic conversations and writtencorrespondence, shall be provided to HCID's designated officer.

j. Coordinate with HCID, CEC, DOE, and other relevant stakeholders to wind down the Program uponexpiration of the grant funding period.

k. Develop a Program Guidance Package during the funding period.

I. Continue DSRF monitoring, tracking, and reporting.

m. Assist in the continuation of the LA Commercial Building Performance Partnership as set forth in theagreement between the City and the Gas Company, as follows:

o Program Development, Program/Project Management, Customer Education & Training, Customer Outreach, -In accordance with City procurement requirements, hire at least one additional qualified person /subcontractor to support the follow up efforts of the Sustento Group, including, but not limited to, the followingtasks:

• Conduct energy efficiency financing charreUes to introduce PACE, on-bill financing, energy servicesagreements, and other financing options to main points of contact at participating companies.Organize follow up meetings with' upper management at participating companies to explain financingconcepts

• Facilitate conversations between property owners and capital providers• Begin expansion and enhancement of web-based directory of capital providers

o Website Development, EM&V, Customer Outreach -In accordance with City procurement requirements, hireat least one additional qualified person / subcontractor to:

II Develop a website containing case studies on financed projects, information on available incentives,rebates, and financing options in addition to information on measurement and verification of energysavings to facilitate project underwriting, and lease negotiation tools to align incentives betweenowners and tenants. These resources will be important in helping gain market acceptance.This would serve all 3 financing programs: commercial, municipal, and housing.

R Work with the Los Angeles Department of Water and Power (LA DWP) and the Gas Company tomanage project performance data

o Marketing, Customer Outreach, Administration, Accounting Support - In accordance with City procurementrequirements, hire at least one additional qualified person / subcontractor to:

a Coordinate workshops and events to introduce project financing options, discuss property valuationissues, measurement & verification of savings, and other topics related to financing energy efficiency~~~~ .

• Manage communications with partner organizations and participants, including but not limited tocreating of marketing materials, newsletters, case studies, and fund raising materials

Page 2

• Manage clerical, accounting, and other administrative work

n. Develop, launch and manage the LA Better Buildings Challenge (LABBC), the goal of which is to achieve 20%energy savings across 30 million square feet of existing buildings by the year 2020. In support of this goal, theLABBC will work with LA DWP and So Cal Gas to offer a range of technical support services and other incentivesto participating property owners, and will work closely with the business and non-profit communities to reach outto property owners and drive participation. It is envisioned that the LA Area Chamber of Commerce (Chamber)will serve as the main base of operations for the LABBC, with dedicated Chamber-LABBC staff taking primaryresponsibility for conducting outreach activities to bring more businesses into the program. LA DWP and So CalGas will fund technical support services and other incentives, which will be offered to participating businesses.Sustento Group will serve as the bridge between these two elements of the LABBC: outreach to businesses anddelivery of technical support.

o Program development, program management, and follow up efforts, including but not limited to, thefollowing tasks:

• Oversee all sub-contractors; coordinate with HCID, LA DWP, and So Cal Gas;• Work with LA DWP staff to develop technical services offerings, including but not limited to

energy audits, rebate application support, technology selection assistance, and projectmanagement support;

• Work with LA DWP staff to conduct on boarding and training of technical service providers,including development of general scope of work and deliverables;

• Hire qualified subcontractors to perform support functions such as construction management tosupplement LA DWP technical service providers as needed either on a time-and-materials, lump-sum or other agreed-upon basis;

• Organize and conduct follow up meetings with companies that have received energy audits orother services to explain energy audit findings, business issues, and other information to supportthe implementation of building energy retrofits;

• Oversee and manage provision of technical project development support, such as assistance inevaluating energy audit findings, energy modeling services, tracking and analysis of buildingutility consumption, development of specifications and bid documents, assistance with utilityrebate applications and documentation, and project management support;

• Coordinate communication between the City, the Chamber, LA DWP, So Cal Gas, and otherpartner organizations

• Train Chamber LABBC staff on the LABBC program offerings, benefits of participation, and thebenefits of energy efficiency more generally;

• Provide content for marketing and outreach materials for use by Chamber LABBC staff;• Lead and participate in workshops and other events/meetings;.. Collaborate with the Chamber to bring in additional funding in the form of donations, grants, and

sponsorships from outside entities;" Follow up with property owners who have completed retrofits to ensure that projected savings do

in fact materialize, and if not, take corrective action;• Develop case studies on completed projects;• Fund the cost to enroll all properties that participate in the LA Better Buildings Challenge in

Energy Star portfolio manager and WeGoWise to automate tracking of energy performance overtime;

.. Engage a market research firm to develop a detailed market segmentation study to enabletargeted marketing of program offerings;

• Maintain and update the LABBC website to communicate progress and engage the broadercommunity;

• Reach out to potential project funders to expand and enhance the web-based directory of capitalproviders for the purpose of streamlining project financing and introducing the most competitivefunding options available;

• Conduct EE financing charettes to introduce financing options, PACE, on-bill financing, orRepayment, Energy Services Agreements, and other financing options to main points of contactat participating companies;

AI Facilitate conversations between property owners and capital providers to share information whilemaintaining property owner's confidentiality, until the property owners are ready to engagedirectly with capital providers

Page 3

In witness whereof, the City and Contractor have caused this Agreement to be executed by their dulyauthorized representatives.

For: The City of Los Angeles

APPROVED AS TO FORM·MICHAEL N. FEUER, City Attorney ...

Executed this J 0111 day of MA-y ,2014

RUSHMORE D. CERVANTESInterim General ManagerHousing and Community Investment Department

Deputy City Attorney

Date _---..:5':......-_?.-_._1 _-_1..;,.1 _

ATTEST:

HOLLY L. WOLCOTT, Interim City ClerkExecuted this ~ day of ~ L04-----, 2014

For: Sustento Group, LLC I

(Contractor's Corporate Seal or Notary)

City Business License Number: 0002575946-0001-1

Council File Number: 12-0520-S2 Date of Approval: 4-16-14

Internal Revenue Service Number: 45-3138139

Said Agreement is Number: 119820 of City Contracts, Amendment Number: Five

119820-53

EXHIBIT ISCOPE OF WORK AND CONTRACTOR RESPOSIBILITIES

§1. Definitions

The definitions of words used in this Agreement are as follows:

(a) Los Angeles Commercial Building Performance Partnership (LACBPP) Program (Program): American Recoveryand Reinvestment Act (ARRA)-funded program that offers free energy audits and access to financing to owners of

. commercial buildings within the City of Los Angeles.

(b) Prime Contractor: Willdan Energy Solutions (WES), contractor to establish and administer the LACBPP Program.

(c) Property Assessed Clean Energy Financing (PACE): Financing program in which a local government (LosAngeles County) issues taxable bonds, the net proceeds of which are used to fund an energy/water efficiency project,and which is repaid over time as an assessment on the subject property's property tax bill.

(d) Debt Service Reserve Fund (DSRF): Pool of funds established to provide liquidity support for the PACE bondsuntil collection of the assessments are made and the bond obligations have been met. The DSRF will be held by theCounty of Los Angeles, as trustee for the City.

(e) Directory of Capital Providers: List of capital providers interested in funding energy and water efficiency projectsin existing commercial buildings. The Directory will include a profile for each capital provider including their name,website, product offerings, target project typefsize, and the origination process. .Thls Directory will be posted on theProgram website, with permission from the capital providers. ......

(f) Program Guidance Package: Program Documents (applications, marketingtnaterials, internal processdocuments, scopes of work, slide decks, etc.), along with narrative on process, stakeholder engagement, and lessonslearned in establishing the Proqram, to be used to promote the Program. .:..-.

§2. General Purpose and Requirements of Statement of Work

A. Purpose

b. Work with Prime Contractor to prepare and process required invoices and reports for EECBG and SEPgrantfcontract compliance.

, The Statement of Work is a general description of the services made available by the Contractor. Should theContractor determine a need to alter significantly the services described, approval must be requested in writing. Theapproval must be received from the City before any change is implemented, and may require a contract amendment.

§3. Services to be Provided by the Contractor

The Contractor shall provide contractual services that are identified in this section. All work is subject to prior Cityapproval. Failure to receive approval may result in withholding compensation pursuant to §301.

A. Program Description

The Contractor shall:

a. Oversee and manage Prime Contractor's expenditure of EECBG and SEP funds to establish and administerthe LACBPP Program throughout term of this Agreement.

c. Market the LACBPP Program through presentations, phone calls, and meetings with property owners,community groups, and other media after consulting with and obtaining approval from HCID's AdministrativeServices Division.

d. Work with Los Angeles County to establish and manage deployment of the PACE program in the City of LosAngeles, including the establishment of the DSRF.

1

B. Fee Structure - Program Management

Amend 5.Services provided under Sections 3Aa fhrouoh 3Ak above:Rate I hour $ 95 $ 95Total hours 1,812 3,000Total Proorarn Manaqernent Compensation $172,140 $285,000Energy Conference pursuant to Section 3Ac above (includes costs of facility andequipment rentals, supplies, and other incidentals essential to carry out the

$ 9,795 $10,135conference and which are not otherwise disallowed under 48 FAR Part 31-Contract Cost Principles and Procedures, and other applicable requlations)Total compensation pursuant to Sections 3Aa through 3Ak: $181,935 $295,135

Services provided under Section 3AI above:Rate I hour $ 95 $ 95

Total hours 368 600

Total compensation pursuant to Section 3AI: $35,000 $57,150

Services provided under Section 3Am above:Rate / hour $ 95 $ 95

Total hours 1,283 2,021

Total compensation pursuant to Sections 3Am: $121,900 $192,000

Services provided under section 3A n above:Rate/hour - David Hodgins, President, Sustento Group $ 150 $ 150


Total compensation $252,000 $435,200

Rate/hour - Project Development Manager $ 125 $ 125



Rate/hour - Project Developer $ 30 $ 30

Total hours 960 1,828


Rate/hour - Marketing Coordinator $ 30 $ 30



Rate/hour - Accounting / Administration $ 20 $ 20


Total compensation $ 9,600 $29,230

Rate/hour- Website Developer $ 150 $ 150

Total hours 90 203

Total compensation $13,500$30,500

Page 4

Rate/hour - Data Management Firm $ 150 $ 150

Total hours 90 203


Rate/hour- Supplemental Technical Resources $150 $ 150

Total hours 480 802


Total compensation pursuant to Sections 3An $638,200 $1,305,180

Total Contract Amount: $977,035 1,600,315

Page 5

EXHIBIT JINVENTIONS, PATENTS AND COPYRIGHTS

A. Reporting Procedure for Inventions

1. If any project produces any invention or discovery (Invention) patentable or otherwise under title35 of the U.S. Code, including, without limitation, processes and business methods made in thecourse of work under this Agreement, Contractor shall report the fact and disclose the Inventionpromptly and fully to the City. The City shall report the fact and disclose the Invention to theGrantor (U.S. Department of Labor.) Unless there is a prior agreement between the City and theGrantor, the Grantor shall determine whether to seek protection on the Invention. The Grantorshall determine how the rights in the Invention, including rights under any patent issued thereon,will be allocated and administered in order to protect the public interest consistent with the policy("Policy") embodied in the Federal Acquisition Regulations System, which is based on Ch. 18 oftitle 35 U.S.C. §§200 et seq. (Pub. L. 95-517, Pub. L. 98-620, 37 CFR part 401); PresidentialMemorandum on Government Patent Policy to the Heads of the Executive Departments andAgencies, dated 2/18/1983); and Executive Order 12591, 4/10/87,52 FR 13414,3 CFR, 1987Comp., p. 220 (as amended by Executive Order 12618,12/22/87,52 FR 48661,3 CFR, 1987Comp., p. 262). Contractor hereby agrees to be bound by the Policy, and will contractuallyrequire its personnel to be bound by the Policy.

B. Rights to Use Inventions

1. City/State shall have an unencumbered right, and a non-exclusive, irrevocable, royalty-freelicense, to use, manufacture, improve upon, and allow others to do so for all governmentpurposes, any Invention developed under this Agreement.

C. Copyright Policy

1. For purposes of this Agreement when copyrightable material (Material) is developed under thisAgreement, ownership of the Material shall be governed by the provisions set forth below inSections E through J. Notwithstanding such ownership rights, the Grantor, State, City andContractor shall each have an unencumbered right, and a non-exclusive, irrevocable, royalty-freelicense, to use, access, manufacture, improve upon, and allow others to do so for all governmentpurposes, any Material developed under this Agreement.

2. The Grantor shall have an unencumbered right, and a non-exclusive, irrevocable, royalty-freelicense, to use, manufacture, improve upon, and allow others to do so for all governmentpurposes, any Material developed under this Agreement or any Copyright purchased under thisAgreement. Contractor shall comply with 29 CFR 97.34

D. Rights to Data

1. The Grantor and the City shall have unlimited rights or copyright license to any data firstproduced or delivered under this Agreement. "Unlimited rights" means the right to use, disclose,reproduce, prepare derivative works,distribute copies to the public, and perform and displaypublicly, or permit others to do so; as required by 48 CFR 27.401. Where the data are not firstproduced under this Agreement or are published copyrighted data with the notice of 17 U.S.C.Section 401 or 402, the Grantor acquires the data under a copyright license as set forth in 48CFR 27.404(f)(2) instead of unlimited rights. (48 CFR 27.404(a».

2. Obligations Binding on Subcontractors Contractor shall require all subcontractors to comply withthe obligations of this section by incorporating the terms of this section into all subcontracts.

E. Intellectual Property Provisions for California Sub-Grants - IF APPLICABLE

1. This Agreement is funded in part with federal "pass through" funds from the State of California(State). The following requirements are applicable to this Agreement. In any Contract funded inwhole or in part by the federal government, City/State may acquire and maintain the IntellectualProperty rights, title, and ownership, which result directly or indirectly from the Contract, except asprovided in 37 Code of Federal Regulations Part 401.14. However, pursuant to 29 CFR Part97.34 the federal government shall have a royalty-free, non-exclusive, irrevocable, paid-uplicense throughout the world to use, duplicate, or dispose of such Intellectual Property throughoutthe world in any manner for governmental purposes and to have and permit others to do so.

F. Ownership

1. Except where City/State has agreed in a signed writing to accept a license, City/State shall beand remain, without additional compensation, the sole owner of any and all rights, title andinterest in all intellectual property, from the moment of creation, whether or not jointly conceived,that are made, conceived, derived from, or reduced to practice by Contractor or City/State andwhich result directly or indirectly from this Agreement.

2. For the purposes of this Agreement, Intellectual Property means recognized protectable rightsand interest such as: patents, (whether or not issued) copyrights, trademarks, service marks,applications for any of the foregoing, inventions, trade secrets, trade dress, logos, insignia, colorcombinations, slogans, moral rights, right of publicity, author's rights, contract and licensingrights, works, mask works, industrial design rights, rights of priority, know how, design flows,methodologies, devices, business processes, developments, innovations, good will, any data orinformation maintained, collected or stored in the ordinary course of business by City/State, andall other legal rights protecting intangible proprietary information as may exist now and/orhereafter come into existence, and all renewals and extensions, regardless of whether thoserights arise under the laws of the United States, or any other state, country or jurisdiction.

3. For the purposes of the definition of Intellectual Property, "works" means all literary works,writings and printed matter including the medium by which they are recorded or reproduced,photographs, art work, pictorial and graphic representations and works of a similar nature, film,motion pictures, digital images, animation cells, and other audiovisual works including positivesand negatives thereof, sound recordings, tapes, educational materials, interactive videos,computer software and any other materials or products created, produced, conceptualized andfixed in a tangible medium of expression. It includes preliminary and final products and anymaterials and information developed for the purposes of producing those final products. "Works"does not include articles submitted for peer review or reference journals or independent researchprojects.

4. In the performance of this Agreement, Contractor may exercise and utilize certain of itsIntellectual Property in existence prior to the effective date of this Contract. In addition, under thisAgreement, Contractor may access and utilize certain of City's/State's Intellectual Property inexistence prior to the effective date of this Contract. Except as otherwise set forth herein,Contractor shall not use any of City's/State's Intellectual Property now existing or hereafterexisting for any purposes without the prior written permission of City/State. Except as otherwiseset forth herein, neither Contractor nor City/State shall give any ownership interest in or rights toits Intellectual Property to the other Party. If, during the term of this Agreement, Contractoraccesses any third-party Intellectual Property that is licensed to City/State, Contractor agrees toabide by all license and confidentiality restrictions applicable to City/State in the third-party'slicense agreement.

5. Contractor agrees to cooperate with City/State in establishing or maintaining City/State'sexclusive rights in the Intellectual Property, and in assuring City's/State's sole rights against thirdparties with respect to the Intellectual Property. If Contractor enters into any agreements orsubcontracts with other parties in order to perform this Contract, Contractor shall require theterms of the agreement(s) to include all Intellectual Property provisions herein. Such terms mustinclude, but are not limited to, the subcontractor assigning and agreeing to assign to City/State allrights, title and interest in Intellectual Property made, conceived, derived from, or reduced topractice by the subcontractor, Contractor or City/State and which result directly or indirectly fromthis Contract or any subcontract.

6. The requirement for Contractor to include all Intellectual Property Provisions in all agreementsand subcontracts it enters into with other parties does not apply to agreements or subcontractsthat are for customized and on-the-job training as authorized under 20 CFR 663.700-730.

7. Contractor further agrees to assist and cooperate with City/State in all reasonable respects, andexecute aUdocuments and, subject to reasonable availability, give testimony and take all furtheracts reasonably necessary to acquire, transfer, maintain, and enforce City's/State's IntellectualProperty rights and interests.

G. Retained Rights/License Rights

1. Except for Intellectual Property made, conceived, derived from, or reduced to practice byContractor or City/State and which result directly or indirectly from this Agreement, Contractorshall retain title to all of its Intellectual Property to the extent such Intellectual Property is in

2

existence prior to the effective date of this Contract. Contractor hereby grants to City/State,without additional compensation, a permanent, non-exclusive, royalty free, paid-up, worldwide,irrevocable, perpetual, non-terminable license to use, reproduce, manufacture, sell, offer to sell,import, export, modify, publicly and privately display/perform, distribute, and dispose ofContractor's Intellectual Property with the right to sublicense through multiple layers, for anypurpose whatsoever, to the extent it is incorporated in the Intellectual Property resulting from thisAgreement, unless Contractor assigns all rights, title and interest in the Intellectual Property asset forth herein.

2. Nothing in this provision shall restrict, limit, or otherwise prevent Contractor from using any ideas,concepts, know-how, methodology or techniques related to its performance under thisAgreement, provided that Contractor's use does not infringe the patent, copyright, trademarkrights, license or other Intellectual Property rights of City/State or third party, or result in a breachor default of any provisions herein or result in a breach of any provisions of law relating toconfidentiality.

H. Copyright

1. Contractor agrees that for purposes of copyright law, all works made by or on behalf of Contractorin connection with Contractor's performance of this Contract shall be deemed "works for hire."Contractor further agrees that the work of each person utilized by Contractor in connection withthe performance of this Contract will be a "work made for hire," whether that person is anemployee of Contractor or that person has entered into an agreement with Contractor to performthe work. Contractor shall enter into a written agreement with any such person that: (i) all workperformed for Contractor shall be deemed a "work made for hire" under the Copyright Act and (ii)that person shall assign all right, title, and interest to City/State to any work product made,conceived, derived from or reduced to practice by Contractor or City/State and which resultdirectly or indirectly from this Contract.

All materials, including, but not limited to, computer software, visual works or text, reproduced ordistributed pursuant to this Agreement that include Intellectual Property made, conceived, derivedfrom, or reduced to practice by Contractor or City/State and which result directly or indirectly fromthis Agreement may not be reproduced or disseminated without prior written permission fromCity/State.

Patent Rights

1. With respect to inventions made by Contractor in the performance of this Contract, which did notresult from research and development specifically included in the Agreement's scope of work,Contractor hereby grants to City/State a license for devices or material incorporating, or madethrough the use of such inventions. If such inventions result from research and developmentwork specifically included within the Agreement's scope of work, then Contractor agrees to assignto City/State, without additional compensation, all its right, title and interest in and to suchinventions and to assist City/State in securing United States and foreign patents with respectthereto.

2.

I.

J. Third-Party Intellectual Property

1. Except as provided herein, Contractor agrees that its performance of this Agreement shall not bedependent upon or include any Intellectual Property of Contractor or third party without first: (i)obtaining City/State's prior written approval; and (if) granting to or obtaining for City/State's,without additional compensation, a license, as described in §:iL18Fo3SectionG. above, for any ofContractor's or third-party's Intellectual Property in existence prior to the effective date of thisAgreement. If such a license upon these terms is unattainable, and City/State determines thatthe Intellectual Property should be included in or is required for Contractor's performance of thisAgreement, Contractor shall obtain a license under terms acceptable to City/State.

3

K. Warranties

1. Contractor represents and warrants that

a. It has secured and will secure all rights and licenses necessary for its performance of thisAgreement. Neither Contractor's performance of this Agreement, nor the exercise by eitherParty of the rights granted in this Agreement, nor any use, reproduction, manufacture, sale,offer to sell, import, export, It modification, public and private display/performance,distribution, and disposition of the Intellectual Property made, conceived, derived from, or

reduced to practice by Contractor or City/State and which result directly or indirectly from thisAgreement will infringe upon or violate any Intellectual Property right, non-disclosureobligation, or other proprietary right or interest of any third-party or entity now existing underthe laws of, or hereafter existing or issued by, any state, the United States, or any foreigncountry. There are currently no actual or threatened claims by any such third party based onan alleged violation' of any such right by Contractor.

b. Neither Contractor's performance nor any part of its performance will violate the right ofprivacy of, or constitute a libel or slander against any person or entity.

c. It has secured and will secure all rights and licenses necessary for Intellectual Propertyincluding, but not limited to, consents, waivers or releases from all authors of music orperformances used, and talent (radio, television and motion picture talent), owners of anyinterest in and to real estate, sites locations, property or props that may be used or shown.

d. It has not granted and shall not grant to any person or entity any right that would or mightderogate, encumber, or interfere with any of the rights granted to City/State in thisAgreement.

e. It has appropriate systems and controls in place to ensure that state funds will not be used inthe performance of this Agreement for the acquisition, operation or maintenance of computersoftware in violation of copyright laws.

f. It has no knowledge of any outstanding claims, licenses or other charges, liens, orencumbrances of any kind or nature whatsoever that could affect in any way Contractor'sperformance of this Agreement.

2. City/State make no warranty that the intellectual property resulting from this subgrant Agreementdoes not infringe upon any patent, trademark, copyright or the like, now existing or subsequentlyissued.

L. Intellectual Property Indemnity

1. Contractor shall indemnify, defend and hold harmless City/State and its licensees and assignees,and its officers, directors, employees, agents, representatives, successors, and users of itsproducts, ("Indemnities") from and against all claims, actions, damages, losses, liabilities (oractions or proceedings with respect to any thereof), whether or not rightful, arising from any andall actions or claims by any third party or expenses related thereto (including, but not limited to, alllegal expenses, court costs, and attorney's fees incurred in investigating, preparing, serving as awitness in, or defending against, any such claim action, or proceeding, commenced orthreatened) to which any of the Indemnities may be subject, whether or not Contractor is a partyto any pending or threatened litiga'tion, which arise out of or are related to (i) the incorrectness orbreach of any of the representations, warranties, covenants or agreements of Contractorpertaining to Intellectual Property; or (ii) any Intellectual Property infringement, or any other typeof actual or alleged infringement claim, arising out of City/State's use, reproduction, manufacture,sale, offer to sell, distribution, import, export, modification, public and private performance/display,license, and disposition of the Intellectual Property made, conceived, derived from, or reduced topractice by Contractor or City/State and which result directly or indirectly from this Agreement.This indemnity obligation shall apply irrespective of whether the infringement claim is based on apatent, trademark or copyright registration that was issued after the effective date of this Contract.City/State reserves the right to participate in and/or control, at Contractor's expense, any suchinfringement action brought against City/State.

2. Should any Intellectual Property licensed by Contractor to City/State under this Agreementbecome the subject of an Intellectual Property infringement claim, Contractor will exercise itsauthority reasonably and in good faith to preserve City/State's right to use the licensed IntellectualProperty in accordance with this Agreement at no expense to City/State. City/State shall havethe right to monitor and appear through its own counsel (at Contractor's expense) in any suchclaim or action. In the defense or settlement of the claim, Contractor may obtain the right forCity/State to continue using the licensed Intellectual Property Of, replace or modify the licensedIntellectual Property so that the replaced or modified Intellectual Property becomes non-infringingprovided that such replacement or modification is functionally equivalent to the original licensedIntellectual Property. If such remedies are not reasonably available, City/State may be entitled to

4

a refund of all monies paid under this Agreement, without restriction or limitation of any otherrights and remedies available at law or in equity.

3. Contractor agrees that damages alone would be inadequate to compensate City/State for breachof any term of these Intellectual Property provisions herein by Contractor. Contractoracknowledges City/State would suffer irreparable harm in the event of such breach and agreesCity/State shall be entitled to obtain equitable relief, including without limitation an injunction, froma court of competent jurisdiction, without restriction or limitation of any other rights and remediesavailable at law or in equity.

M. Survival

1. The provisions set forth herein shall survive any termination or expiration of this Agreement orany project schedule.

5