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HomeMy WebLinkAboutAgenda Report - February 16, 2022 C-19AGENDA ITEM &% CITY OF LODI COUNCIL COMMUNICATION AGENDA TITLE: Adopt Resolution Ratifying Expenditures ($14,351) and Authorizing Automatic Annual Renewal of Agreement with TextPower, Inc. for Electric Outage Notifications ($10,000/Year) MEETING DATE: February 16, 2022 COW/9 PREPARED BY: Electric Utility Director RECOMMENDED ACTION: Adopt a resolution ratifying expenditures in the amount of $14,351 and authorizing the automatic annual renewal of an Agreement with TextPower, Inc. for electric outage notifications in an amount not to exceed $10,000 per year. BACKGROUND INFORMATION: On June 19, 2019, City Council authorized Lodi Electric Utility (LEU) to implement a new Outage Management System (OMS) to help pinpoint outage locations, facilitate dispatch of crews and allow customers to stay informed with outage updates. As part of the OMS system, LEU, under the Director's purchasing authority, executed a two-year Agreement with TextPower, Inc. from February 24, 2020 to February 24, 2022 for software and services to support text messaging capabilities related to system outages. The Agreement includes an automatic annual renewal provision at the end of the two-year term. This automated text messaging function provided by TextPower, Inc. has proven very useful in keeping customers informed on outage updates since execution of the Agreement. Staff therefore recommends City Council ratify expenditures under this Agreement in the amount of $14,351 and authorize the automatic annual renewal of the Agreement with TextPower, Inc. in an amount not to exceed $10,000 per year. Under the terms of the Agreement, LEU has the ability to terminate the Agreement with written notice 30 days prior the renewal date. FISCAL IMPACT: $14,351 has been expended to date. Future costs associated with the Agreement shall not exceed $10,000 per year. FUNDING AVAILABLE: Sufficient funds are available and will continue to be budgeted annually as part of the annual budget process in LEU's Engineering Account No. 50061500.72450. Andrew[ Keys Andrew Keys Deputy City Manager/Internal Services Director Jeff Berkheimer Electric Utility Director APPROVED: Steve Schwabauer Stephen Schwabauer, City Manager AGREEMENT FOR SOFTWARE AND SERVICES ARTICLE 1 PARTIES AND PURPOSE Section 1.1 Parties THIS AGREEMENT is entered into on Apri 1 l5, 2020, by and between the CITY OF LODI, a municipal corporation (hereinafter "CITY"), and TextPower, Inc., a California Corporation (hereinafter "CONTRACTOR"). Section 1.2 Purpose CITY selected the CONTRACTOR to provide the services required in accordance with attached Scope of Services and Mobile Program Services Terms and Conditions, Exhibit A, attached and incorporated by this reference. CITY wishes to enter into an agreement with CONTRACTOR for "Customer notifications via text messages" (hereinafter "Project") as set forth in the Scope of Services attached here as Exhibit A. CONTRACTOR acknowledges that it is qualified to provide such services to CITY. ARTICLE 2 SCOPE OF SERVICES Section 2.1 Scope of Services CONTRACTOR, for the benefit and at the direction of CITY, shall perform the Scope of Services as set forth in Exhibit A pursuant to the terms detailed therein. Section 2.2 Time For Commencement and Completion of Work CONTRACTOR shall commence work pursuant to this Agreement, upon execution of this Agreement and receipt of the necessary information from CITY and shall perform all services diligently and complete work under this Agreement based on a mutually agreed upon timeline or as otherwise designated in the Scope of Services. CONTRACTOR shall not be responsible for delays caused by the failure of CITY staff to provide required data'br review documents within the appropriate time frames. The review time by CITY and any other agendies involved in the project shall not be counted against CONTRACTOR's contract performance period. Also, any delays due to weather, vandalism, acts of God, etc., shall not be counted. CONTRACTOR shall remain in contact with reviewing agencies and make all efforts to review and return all comments. Section 2.3 Reserved Section 2.4 Staffing CONTRACTOR acknowledges that CITY has relied on CONTRACTOR's capabilities as identified in its proposal to CITY. The Scope of Services shall be performed by CONTRACTOR, unless agreed to otherwise by CITY in writing. CONTRACTOR represents it is prepared to and can perform all services within the Scope of Services (Exhibit A) and is prepared to and can perform all services specified therein. CONTRACTOR represents that it has, or will have at the time this Agreement is executed, all licenses, permits, qualifications, insurance and approvals of whatsoever nature are legally required for CONTRACTOR to practice its profession, and that CONTRACTOR shall, at its own cost and expense, keep in effect during the life of this Agreement all such licenses, permits, qualifications, insurance and approvals, and shall indemnify, defend and hold harmless CITY against any costs associated with such licenses, permits, qualifications, insurance and approvals which may be imposed against CITY under this Agreement. Section 2.5 Reserved Section 2.6 Term The term of this Agreement commences on 2020 and terminates pursuant to Exhibit A. ARTICLE 3 COMPENSATION Section 3.1 Compensation CONTRACTOR's compensation for all services under this Agreement shall conform to the provisions of Exhibit A as well as the Fee Proposal, attached hereto as Exhibit B and incorporated by this reference. CONTRACTOR shall not undertake any work beyond the scope of this Agreement and the services specified in Exhibit A unless such additional work or services is approved in advance and in writing by CITY. Section 3.2 Method of Payment CONTRACTOR shall submit invoices for its services pursuant to the pricing and invoicing terms detailed in Exhibit A. Section 3.3 Costs Exhibit A and Exhibit B shall include all reimbursable costs required for the performance of the Scope of Services. Payment of additional reimbursable costs considered to be over and above those inherent in the original Scope of Services shall be approved in advanced and in writing, by CITY. Section 3.4 AuditO CITY reserves the right to periodically audit all charges made by CONTRACTOR to CITY for services under this Agreement at City's cost. Upon request, CONTRACTOR agrees to furnish CITY, or a designated representative, with necessary information and assistance needed to conduct such an audit. CONTRACTOR agrees that CITY or its delegate will have the right to review, obtain and copy all records pertaining to performance of this Agreement specifically related to CITY. CONTRACTOR agrees to provide CITY or its delegate with any relevant information requested related to such specific performance and shall permit CITY or its delegate access for inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with this requirement. CONTRACTOR further agrees to maintain such records for a period of three (3) years after final payment under this Agreement. ARTICLE 4 MISCELLANEOUS PROVISIONS Section 4.1 Nondiscrimination In performing services under this Agreement, CONTRACTOR shall not discriminate in the employment of its employees or in the engagement of any sub -CONTRACTOR on the basis of race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, age, or any other criteria prohibited by law. Section 4.2 ADA Compliance In performing services under this Agreement, CONTRACTOR shall comply with applicable provisions of the Americans with Disabilities Act (ADA) of 1990, and all amendments thereto, as well as all applicable regulations and guidelines issued pursuant to the ADA. Section 4.3 Indemnification and Responsibility for Damage Indemnification and damages shall be governed by the provisions in Exhibit A Mobile Program Services Terms and Conditions. Section 4.4 No Personal Liability Neither the City Council, nor any other officer or authorized assistant or agent or City employee shall be personally responsible for any liability arising under this Agreement. Section 4.5 Responsibility of CITY CITY shall not be held responsible for the care or protection of any material or parts of the work described in the Scope of Services prior to use of the Services by CITY, except as expressly provided herein. Section 4.6 Insurance Requirements for CONTRACTOR CONTRACTOR shall take out and maintain during the life of this Agreement, insurance coverage as set forth in Exhibit C attached hereto and incorporated by this reference. Section 4.7 Successors and Assign CITY and CONTRACTOR each bind themselves, their partners, successors, assigns, and legal representatives to this Agreement without the written consent of the others. CONTRACTOR shall not assign or transfer any interest in this Agreement without the prior written consent of CITY, such consent not to be unreasonably withheld. Section 4.8 Notices Any notice required to be given by the terms of this Agreement shall be in writing signed by an authorized representative of the sender and shall be deemed to have been given when the same is personally served or upon receipt by express or overnight delivery, postage prepaid, or three (3) days from the time of mailing if sent by first class or certified mail, postage prepaid, addressed to the respective parties as follows: To CITY: City of Lodi 221 West Pine Street P.O. Box 3006 Lodi, CA 95241-1910 Attn: Hasan Shahriar To CONTRACTOR: TextPower, Inc. 27134-A Paseo Espada, Suite 324 San Juan Capistrano, CA 92675 Attn; Mark Nielsen, Executive Chairman Section 4.9 Cooperation of CITY CITY shall cooperate fully and in a timely manner in providing relevant information it has at its disposal relevant to the Scope of Services. Section 4.10 CONTRACTOR is Not an Employee of CITY CONTRACTOR agrees that in undertaking the duties to be performed under this Agreement, it shall act as an independent contractor for and on behalf of CITY and not an employee of CITY. CITY shall not direct the work and means for accomplishment of the services and work to be performed hereunder. CITY, however, retains the right to require that work performed by CONTRACTOR meet specific standards as set forth herein without regard to the manner and means of accomplishment thereof. Section 4.11 Termination Termination of this Agreement shall be in accordance with the terms in Exhibit A. Section 4.12 Confidentiality CONTRACTOR acknowledges that CITY is subject to the California Public Records Act. Section 4.13 Applicable Law, Jurisdiction, Severabili and Attorney's Fees This Agreement shall be governed by the laws of the State of California. Jurisdiction of litigation arising from this Agreement shall be venued with the San Joaquin County Superior Court. If any part of this Agreement is found to conflict with applicable laws, such part shall be inoperative, null, and void insofar as it is in conflict with said laws, but the remainder of this Agreement shall be in force and effect. In the event any dispute between the parties arises under or regarding this Agreement, the prevailing party in any litigation of the dispute shall be entitled to reasonable attorney's fees from the party who does not prevail as determined by the Court. Section 4.14 City Business License Requirement CONTRACTOR acknowledges that Lodi Municipal Code Section 3.01.020 requires CONTRACTOR to have a city business license and CONTRACTOR agrees to secure such license and pay the appropriate fees prior to performing any work hereunder. Section 4.15 Captions The captions of the sections and subsections of this Agreement are for convenience only and shall not be deemed to be relevant in resolving any question or interpretation or intent hereunder. Section 4.16 Integration and Modification This Agreement represents the entire understanding of CITY and CONTRACTOR as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may not be modified or altered except in writing, signed by both parties. Section 4.17 Contract Terms Prevail All exhibits and this Agreement are intended to be construed as a single document. Should any inconsistency occur between the specific terms of this Agreement and the attached exhibits, the terms of this Agreement shall prevail, except for Sections 2, 4, 5 and 8 of Exhibit A; which shall prevail. Section 4.18 Severability 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. Section 4.19 Ownership of Documents All documents or data, which have been provided to CONTRACTOR by the CITY under this Agreement, shall be deemed the property of CITY. Upon termination of this Agreement, all such data and documents shall be delivered by CONTRACTOR to CITY within ten (10) calendar days of CITY's request. CONTRACTOR may retain copies of such material as required for compliance with its record retention and archive requirements under cellular carrier or other government rules. CITY agrees to indemnify, defend and hold CONTRACTOR harmless from any liability resulting from CITY's use of such documents for any purpose other than the purpose for which they were intended. Section 4.20 Authority The undersigned hereby represent and warrant that they are authorized by the parties to execute this Agreement. Section 4.21 Federal Transit Funding Conditions ❑ If the box at left is checked, the Federal Transit Funding conditions attached as Exhibit D apply to this Agreement. In the event of a conflict between the terms of this Agreement or any of its other exhibits, and the Federal Transit Funding Conditions, the Federal Transit Funding Conditions will control. IN WITNESS WHEREOF, CITY and CONTRACTOR have executed this Agreement as of the date first above written. CITY OF LODI, a municipal corporation ATTEST: EN IFER M PFS"IG ^ J F + D. BERKHEIMER yL.l rrr £-i#pfl�tir M. lectric Utility Director l�ssst�-,t efy G',�-K APPROVED AS TO FORM: TextPower, Inc. JANICE D. MAGDICH, City Attorney a California Corporation /`7 . r y: By: Name: Mark Nleisen A VN Title: Executive Chairman Attachments: Exhibit A — Scope of Services Exhibit B — Fee Proposal Exhibit C — Insurance Requirements Exhibit D — Federal Transit Funding Conditions (if applicable) Funding Source: 50061000.72450 (Business Unit & Account No.) &PIR T - AV5 ,...,...,Power 27134-A Paseo Espada Suite 324 San Juan Capistrano, CA 92675-6704 Mobile Program Services Order Form Client Information Company Name --_ J_ - - _­ - - Lodi Electric Utility i Fax + --�- — Company Email hshahriar@lodi.gov Business Address 1331 S Ham Lane, PO Box 3006, Lodi, CA 95240 Phone ; 209-333-6762 Service Terms of Order Effective Date _-- �--' 2/24/2020 � -- T— .- � - ----�- - -- --- --- ---- � -� -- Monthly Plan Fee $474,00 Messages Included in j X The monthly plan includes the following number of included Monthly Plan messages each month: 5,000 texts Per -Message Fees First 10,000 Msgs $0.045 (initial 5,000 included) Text -enabled Toll -Free number 10,001 - 25,000 $0.042 I Included 25,001 - 50,000 $0.038 Included plus 50,001 - 100,000 $0.033 into your "opt -in" database) 100,001 - 250,000 $0.029 250,001 - 500,000 $0.025 500,001 - 1,000,000 $0.019 Text -Enabled Toll -Free # TBD arranged by TextPower Technical Support Technical support above normally provided initial and continuing support (e.g., for custom applications, API/SOAP interface assistance, etc.) is available at a rate of $175.00 per hour. Term Two-year plan commencing on the Effective Date, which shall automatically renew thereafter pursuant to the terms of this Agreement. Service Specifications . Domestic (United States) messaging only. T Additional Services ■ Enable unlimited emails sent through Client's email server that mirror the text messages for $499 setup.. • Text -enabled Toll Free # - setup is $449 plus $99/month _ ■ Download of all phone numbers to identify mobiles and populate database is included.pius $0.02/number Miscellaneous Carrier Lookups for mobiles are billed at $0,02 per lookup, if required. Service Initial Fees Recurring Fees Initial Account Setup Y - _ T �- _ $3,449.00 T N/A Interface with Milsoft IVR/Outage Management System Included _ Monthly Service Fee $474.00 $474.00 Text -enabled Toll -Free number Included I Included Communications Assurance Program (lookup of all phone numbers and loading mobiles Included plus into your "opt -in" database) $0.02/lookup Per -Message -Fee: Price per massage is dependent upon volume (see above) Subtotal: $3,923.00 $474.00 plus msgs. Total Initial Fees Due: X3,923.00 This Mobile Marketing Services Order Form (the "Form") is a binding agreement and shall be effective as of the Effective Date included above when signed by Client (listed above) and TextPower, Inc. The Form may be executed in counterparts and delivered by email or facsimile transmission. The undersigned represents he/she is duly authorized to execute this Form. The attached Mobile Marketing Terms and Conditions are incorporated into this Form by this reference, Any provision in the Mobile Marketing Terms and Conditions that conflicts with a provision in this Form is invalid to the extent of such conflict. Agreed by Client [Agreed by TextPower, Inc. Signature Signature Name: Mark Nielsen Name: Title: Executive Chairman Title: TextPower, Inc. • 27134-A Paseo Espada Suite 324, San Juan Capistrano, CA 92675-6704 Ph: 888.818.1808 • sales@TextPower.com * www.TextPower.com Date Mobile Program Services Terms & Conditions These Terms and Conditions ("Terms) are entered into by the Client ("Client") signing the Mobile Messaging Services Order Form ("Form") and TextPower, Inc ("TextPower"), whereby Client has ordered certain mobile messaging services ("Services") from TextPower. The Form and these Terms are collectively referred to as the "Agreement" Client and TextPower each agrees and acknowledges: 1. MOBILE MESSAGING SERVICES. Subject to the terms of this Agreement. TextPower agrees to provide the Services designated on the Form and such other mobile messaging services as may be requested by Client and accepted by TextPower pursuant to the terms of this Agreement. 1.1 Cellular Binary Content. WAP PUSH supports transmission of binary content to supported carriers. At present, tight restrictions exist with most carriers as to the acceptable applications of binary content with respect to premium or standard rate messaging. Binary content is not included and additional costs may apply. 1.2 Short Codes. If Client is using a shared short code, TextPower has the right, in its sole discretion, to move Client campaigns to alternative short codes. 2. CLIENT RESPONSIBILITIES. 2.1 No International Messaging, International messaging is not allowed without advanced approval by TextPower. Unless otherwise approved in writing signed by TextPower, Client acknowledges and agrees to be responsible and ensure that all messages delivered through the Service are to phone numbers that are based in the United States. 2,2 Compliance with Carrier Guidelines, Client agrees to comply with all carrier guidelines, best practices and the Mobile Marketing Association and CTIA Playbook guidelines (to which TextPower fully subscribes). See the Mobile Marketing Association's Policies and Guidelines at www.mmMglobal.comiCies/bespracdces.odt and the CTIA Best Practices at ht s:1/a i.ctia.or t -con en u loads/2018111/ctia- messa in - rinci I and -best- r dices -01192 17, df. It is Client's responsibility to abide by these rules, as updated from time to time. Failure to do so may result in the carriers turning off short code and/or keywords after which Client will continue to be bound to pay the fees committed to under this Agreement. In addition, Client agrees to use TextPower's Web - enabled documentation and "snippets" for its website advertising of the short code. TextPower will handle any carrier audits based on the website language provided by TextPower at no additional cost Should Client use its own advertising material for the short code on its website (including Twitter feeds, Facebook posts, etc.), any subsequent audits will be charged on a Time & Materials basis at TextPower's then -current hourly rates (Minimum of 2 hours per occurrence). In addition, Client agrees to make the necessary changes to its website and any online postings within twenty- four (24) hours of notification by TextPower that a carrier audit has been initiated or have its service suspended. 2.3 Compliance with Federal, State and Local Laws. Client is responsible for, and agrees to comply with, all federal, state and local laws, rules and regulations governing any Services provided by TextPower for Client's benefit. 2.4 Third Party Compliance, Client agrees that any and all third parties using the Services on behalf of the Client in connection with the Services, or otherwise involved in Client's campaigns that uses the Services, will comply with the provisions of this Agreement and all applicable laws, rules and regulations, including without limitation any applicable carrier rules and regulations 3. PLANS AND FEES. 3.1 Plans. Client shall be responsible for paying each month as invoiced the "Monthly Plan Fee" designated on the Form. Monthly Plan Fees are paid in advance, at the beginning of each billing period for which the fee covers. TextPower offers two types of monthly plans to its customers, either a monthly plan that includes a number of included messages per month, or a plan that does not include included messages. The Form indicates what type of plan Client has. (a) P#an with Inciuded Messages. If Client has a plan that includes messages, the appropriate box on the Form will be checked and the number of included messages will be designated. Included messages are only available in the billing period for which they are offered and unused included messages do not roll over into subsequent billing periods. If in any given billing period Client uses more than the allotted number of included messages, then in addition to the monthly plan fee, Client shall be charged for each non -included message at the applicable "Per -Message Fee" designated on the Form. Included messages count towards determining the applicable Per -Message Fee (e.g. if Client has 5,000 included messages, message 5,001 will be at the applicable Per -Message Fee for message 5,001, not message 1). Client will be invoiced for such messages on the first invoice following the billing period in which such messages were used. (b) Plan with No Included Messages. If no messages are included in Client's plan (as designated on the Form), then in addition to the Monthly Plan Fee, Client shall be charged for actual messages used by Client at the applicable Per -Message Fee indicated on the Form for each message, Client will be invoiced for such messages on the first invoice following the billing period in which such messages were used. 3.2 Initial Fees. Unless otherwise indicated on the Form, Client shall pay TextPower the "Total Initial Fees Due" amount committed to on the Form by check, credit card or wire within ten (10) business days following signature of this Agreement by TextPower and Client, This initial payment shall include all set-up fees together with the first payment of each recurring fee_ 3.3 Other Fees. If Client delivers international messages through the TextPower software interface without advance notice to TextPower and without TextPower's permission to do so, Client will be responsible for all surcharges, costs, fees and related expenses incurred by TextPower. 3.4 Additional Technical Support Services. If Client requires technical support to assist its staff with the TextPower software interface or other requests, TextPower may provide development work or custom support. In such cases, Client will be invoiced for the actual time spent providing such services at the rate designated under "Technical Support" on the Form, Client is entitled to one standard training session. Additional training is available on a per -session or hourly fee basis. 3.5 Upgrade Option. The fees designated on the Form are offered to Client in exchange for Client's commitment for the Services for the duration of the Term designated on the Form. If during the Term Client chooses to upgrade the monthly plan, the then current Term for such upgraded service shall remain the same. 3.6 Invoices; Billing. TextPower agrees to invoice monthly for amounts due (including any overage fees and additional services requested by Client), and Client agrees to pay said amounts within 30 days from the date of said invoice. Recurring fees are generally invoiced in advance. Other fees will be invoiced as incurred by Client. All fees paid to TextPower by Client are non-refundable. 3.7 Reserved 3.8 Fee Increases. All fees for the Services are subject to adjustment upon each renewal of the Term. If at any time during the Term any carrier or Tier 1 aggregator increases the fees that such carrier or aggregator charges to TextPower, such fee increases shall be passed through to Client. This includes surcharges from individual carriers. 4. TERM AND TERMINATION. 4.1 Initial Term; Renewal Terms. The initial term of this Agreement is set forth on the Form ("Term"), and unless otherwise indicated on the Form or under Section 3.5, shall automatically renew for one (1) year every year thereafter (at the then current rates designated by TextPower) unless prior written notice is provided by either party thirty (30) days prior to the renewal of the Term. Notwithstanding the foregoing, if TextPower raises the rates for the Services for any renewal period, Client will have the option for thirty (30) days after the commencement of any renewal period to terminate this Agreement with no further commitment or obligation to TextPower. 4.2 Termination for Cause. TextPower may suspend performance and/or terminate this Agreement immediately upon written notice at any time if and after Client is in material breach of any warranty, term, condition or covenant of this Agreement and Client fails to cure that breach within ten (10) business days after written notice thereof. 4.3 Immediate Termination. TextPower shall have the right to immediately terminate this Agreement if, as determined by TextPower in TextPower's sole discretion, Client breaches Section 2.2 above. If this Agreement is terminated by TextPower because Client Failed to perform its obligations under Section 2.2, Client shall remain obligated to pay the remainder of the fees committed to under this Agreement. Each party shall have the right, exercisable in its sole discretion, to terminate this Agreement immediately if the other party ceases business, becomes insolvent, makes an assignment for the benefit of creditors (or takes other similar actions under state insolvency laws), becomes the subject of a voluntary petition for bankruptcy, or becomes the subject of involuntary bankruptcy proceedings (and such proceedings are not dismissed within sixty (60) days of filing). 5. CONFIDENTIAL". Each party shall preserve the confidential nature of, and will not disclose any information, knowledge or data of or pertaining to the other party and which is not in the public domain, including without limitation trade secrets, proprietary software, pricing lists, names and lists of licensors, suppliers and customers, programs, statistics, processes, techniques, marketing, or any other matters, and all other confidential information (collectively the "Confidential Information") of the other party. The restrictions on the disclosure of Confidential Information imposed by this paragraph shall not apply to any Confidential Information that was part of the public domain at the time of its receipt by recipient or becomes part of the public domain in any manner and for any reason other than an act by recipient, unless recipient is legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose such Confidential Information, in which event recipient shall exercise reasonable efforts in good faith to obtain assurance that confidential treatment will be accorded such Confidential Information. 6. WARRANTIES. Each of the parties hereto represents and warrants, for itself, that it has the full power and authority to enter into this Agreement and agrees to the terms set forth herein. 7. INDEMNIFICATION BY CLIENT. Client shall, at its own expense, indemnify, defend and hold harmless TextPower and its directors, officers, employees and agents from and against any and all third party claims, costs, fees (including reasonable attorneys' fees), expenses, demands, suits, or causes of action (hereinafter "Claims") which result or are claimed to result in whole or in part from any (i) grossly negligent or willful misconduct of Client or its employees, agents or contractors; (ii) breach of a representation or warranty made hereunder by Client, (iii) Client's failure to comply with any of Client's responsibilities under Section 2 of this Agreement; and/or (iv) failure by Client, or any other party using the Service or otherwise involved in Client's messaging campaigns that uses the Services, to adhere to the provisions of this Agreement or any applicable laws, rules or regulations, including without limitation any applicable carrier rules and regulations. 8. WARRANTY DISCLAIMER; DAMAGE LIMITATION. 8.1 Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, TEXTPOWER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES OR THE PERFORMANCE THEREOF. TEXTPOWER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR THAT THE SERVICES WILL BE PROVIDED FREE OF ERRORS OR OMISSIONS. 8.2 No Incidental or Consequential Damages. IN NO EVENT WILL TEXTPOWER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, SUFFERED BY CLIENT, WHETHER OR NOT TEXTPOWER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, INJURY, OR DAMAGES, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TEXTPOWER SHALL NOT BE LIABLE TO CLIENT FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, OR WHETHER CAUSED BY TEXTPOWER'S FAULT, OMISSION OR NEGLIGENCE, OR BY TEXTPOWER'S EMPLOYEES, AGENTS, OR SUBCONTRACTORS. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. 8.3 Limitation of Liability. In no event is TextPower responsible for Client's compliance with any laws, regulations or rules of any applicable jurisdiction, governing bodies or by any organization (e.g., carriers). TextPower shall not be liable for any amounts under this Agreement, including without limitation any amounts that Client may be responsible for as referenced in Section 3.3. If, for any reason, TextPower is found to be liable, TextPower's liability to Client or any third party is limited to the greater of (a) the total fees paid by Client to TextPower in the 12 months prior to the action giving rise to the liability, or (b) $500.00. 9. GENERAL. 9.1 Reserved 9,2 Reserved 9.3 Reserved 9.4 Severability, Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be or becomes prohibited or invalid under applicable law, such provisions shall become ineffective to the extent of such prohibition or invalidity without validating the remainder of such provision or the remaining provisions of this Agreement. 9.5 No Waiver. Waiver by either of the parties of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereof. 9.6 Reserved 9,7 Interpretation. The various captions of this Agreement are for reference only and shall not be considered or referred to in resolving questions or interpretation of this Agreement. This Agreement shall be construed in accordance with the plain meaning of the language contained herein; it shall not be construed in favor or against any party by virtue of which party may have drafted (or may be deemed to have drafted) this Agreement. 9,8 Survival. The following provisions shall survive termination or expiration of this Agreement: Articles 2.2, 5, 6, 7, 8 and 9. Unless otherwise indicated herein, any payment obligations of Client shall also survive. li, . -- Power 27134-A Paseo Espada Suite 324, San Juan Capistrano, CA 92675-6704 Credit Card Pavment Authorization Form Instructions Please complete this credit card authorization form and either scan to PDF and return to us at by email at Sales@TextPower.com or fax to 818-459-3700. Credit card payment required on all new accounts. This section must be executed by authorized employee who is authorized on credit card. Credit Card Information Cardholder Name Fax Email Phone Billing Address Credit Card Type ❑ MasterCard ❑ Discover ❑ Visa ❑ American Express Credit Card Number Expiration Date Security Number* *Located on the back of the credit card, usually the three digits next to the last four digits of your credit card number (or 4 digits on front forAmexl Charge Amount Amount to Charge Credit Card Initial Amount: $3,923.00 ^ T Monthly Amount: $474.00 plus excess message fees. The undersigned hereby authorizes TextPower, Inc. to charge the credit card listed above for the charge amount designated above. The undersigned hereby represents he/she is the person authorized to use this credit card. Authorized Signature Date Name Title TextPower, Inc. • 27134-A Paseo Espada Suite 324, San Juan Capistrano, CA 92675-6704 Ph: 888.818.1808 • sales@TextPower.com • www.TextPower.com WO __�x `Power 27134-A Paseo Espada Suite 324, San Juan Capistrano, CA 92675-6704 Client Contact Form Cellular carrier compliance regulations require TextPower to maintain specific contact information for various positions within your company. Please fill out the online form here: htt s: text ower.wu o -n orins text o er- ew-c stonier -seta - inLormationl Ifyou intend to use one contact name, number and email address for all of the various departments (admin, billing, emergency, technical) there is a convenient way to select "Use primary contact for all" to avoid repetitive entries. The team at TextPower, Inc., thanks you for your assistance in complying with these regulations. TextPower, Inc. • 27134-A Paseo Espada Suite 324, San Juan Capistrano, CA 92675-6704 Ph: 888.818.1808 • sales@TextPower.com • www.TextPower.com EXHIBIT C NOTE. The City of Lodi is now using the online insurance program PINS Advantage. Once you have been awarded a contract you will receive an email from the City's online insurance program requesting you to forward the email to your insurance provider(s) to submit the required insurance documentation electronically Insurance Requirements for IT Vendor Services Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Contractor, his agents, representatives, employees or subcontractors. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: ISO Form Number CA 00 01 covering any auto or if Contractor has no owned autos, then hired, and non - owned autos with limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation: as required by the State of California, with Statutory Limits, and Employers Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 4. Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. Other Insurance Provisions: (a) Additional Named Insured Status The City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and volunteers are to be covered as additional insureds on the CGL and auto policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor's insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used (b) Primary and Non -Contribute Insurance Endorsement The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or excess insurance. For any claims related to this contract, the Contractor's insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the Entity, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the Entity, its officers, officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. (c) Waiver of Subrogation Contractor hereby grants to City of Lodi a waiver of any right to subrogation which any insurer of said Contractor may acquire against the City of Lodi by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardfess of whether or not the City of Lodi has received a waiver of subrogation endorsement from the insurer NOTE: (1) The street address of the CITY OF LODI must be shown along with (a) and (b) and (c) above: 221 West Pine Street, Lodi, California, 95240; (2) The insurance certificate must state, on its face or as an endorsement, a description of therp oiect that it is insuring. (d) Severability of Interest Clause The term "insured" is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to (e) Notice of Cancellation or Chane in Coverage Endorsement This policy may not be canceled nor the coverage reduced by the company without 30 days' prior written notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine St., Lodi, CA 95240. (f) Continuity of Coverage All policies shall be in effect on or before the first day of the Term of this Agreement. At least thirty (30) days prior to the expiration of each insurance policy, Contractor shall furnish a certificate(s) showing that a new or extended policy has been obtained which meets the minimum requirements of this Agreement. Contractor shall provide proof of continuing insurance on at least an annual basis during the Term. If Contractor's insurance lapses or is discontinued for any reason, Contractor shall immediately notify the City and immediately obtain replacement insurance. Contractor agrees and stipulates that any insurance coverage provided to the City of Lodi shall provide for a claims period following termination of coverage which is at least consistent with the claims period or statutes of limitations found in the California Tort Claims Act (California Government Code Section 810 et seq.). (g) Failure to Comply If Contractor fails or refuses to obtain and maintain the required insurance, or fails to provide proof of coverage, the City may obtain the insurance. Contractor shall reimburse the City for premiums paid, with interest on the premium paid by the City at the maximum allowable legal rate then in effect in California. The City shall notify Contractor of such payment of premiums within thirty (30) days of payment stating the amount paid, the name(s) of the insurer(s), and rate of interest. Contractor shall pay such reimbursement and interest on the first (1st) day of the month following the City's notice. Notwithstanding any other provision of this Agreement, if Contractor fails or refuses to obtain or maintain insurance as required by this agreement, or fails to provide proof of insurance, the City may terminate this Agreement upon such breach Upon such termination, Contractor shall immediately cease use of the Site or facilities and commence and diligently pursue the removal of any and all of its personal property from the site or facilities. (h) Verification of Coverage Consultant shall furnish the City with a copy of the policy declaration and endorsement page(s), original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time Failure to exercise this right shall not constitute a waiver of the City's right to exercise after the effective date. (i) Self -Insured REtentions Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. (j) Insurance Limits The limits of insurance described herein shall not limit the liability of the Contractor and Contractor's officers, employees, agents, representatives or subcontractors. Contractor's obligation to defend, indemnify and hold the City and its officers, officials, employees, agents and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement in the Agreement for Contractor to procure and maintain a policy of insurance. (k) SubGpntractors Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors (1) Claims Made Policies If any of the required policies provide coverage on a claims -made basis: 1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. (m) Qualified Insurer(sl All insurance required by the terms of this Agreement must be provided by insurers licensed to do business in the State of California which are rated at least "A-, VI" by the AM Best Ratings Guide, and which are acceptable to the City. Non -admitted surplus lines carriers may be accepted provided they are included on the most recent list of California eligible surplus lines insurers (LESLI list) and otherwise meet City requirements. Page 2 1 of 2 pages `� Risk: rev. 3/1/2018 RESOLUTION NO. 2022-39 A RESOLUTION OF THE LODI CITY COUNCIL RATIFYING EXPENDITURES AND AUTHORIZING AUTOMATIC ANNUAL RENEWAL OF AGREEMENT WITH TEXTPOWER, INC., OF SAN JUAN CAPISTRANO, FOR ELECTRIC OUTAGE NOTIFICATIONS WHEREAS, on June 19, 2019, City Council authorized Lodi Electric Utility (LEU) to implement a new Outage Management System (OMS) to help pinpoint outage locations, facilitate dispatch of crews, and allow customers to stay informed with outage updates; and WHEREAS, as part of the OMS system, LEU, under the Director's purchasing authority, executed a two-year Agreement with TextPower, Inc., from February 24, 2020 to February 24, 2022 for software and services to support text messaging capabilities related to system outages; and the Agreement includes an automatic annual renewal provision at the end of the two-year term; and WHEREAS, this automated text messaging function provided by TextPower, Inc., has proven very useful in keeping customers informed on outage updates since execution of the Agreement; and WHEREAS, staff recommends City Council ratify expenditures under this Agreement in the amount of $14,351 and authorize the automatic annual renewal of the Agreement with TextPower, Inc., in an amount not to exceed $10,000 per year; and WHEREAS, under the terms of the Agreement, LEU has the ability to terminate the Agreement with written notice 30 days prior the renewal date. NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby ratify expenditures in the amount of $14,351 and authorize the automatic annual renewal of the Agreement for Software and Services with TextPower, Inc., of San Juan Capistrano, California, for electric outage notifications in an amount not to exceed $10,000 per year; and BE IT FURTHER RESOLVED, pursuant to Section 6.3q of the City Council Protocol Manual (Res. No. 2019-223), the City Attorney is hereby authorized to make minor revisions to the above -referenced document(s) that do not alter the compensation or term, and to make clerical corrections as necessary. Dated: February 16, 2022 ------------------------------------------------------------------------ ------------------------------------------------------------------------ I hereby certify that Resolution No. 2022-39 was passed and adopted by the City Council of the City of Lodi in a regular meeting held on February 16, 2022 by the following vote: AYES: COUNCIL MEMBERS — Hothi, Khan, Kuehne, Nakanishi, and Mayor Chandler NOES: COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — None ABSTAIN: COUNCIL MEMBERS — None PAMELA M. FARRIS Assistant City Clerk 2022-39