HomeMy WebLinkAbout07-20-20 City Commission Packet Materials - C7. PSA w Alcohol Monitoring Systems Inc. for Equipment to Use w VETS Court
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Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Renee Boundy, V.E.T.S. Court Coordinator
SUBJECT: Authorize the City Manager to sign the Professional Services Agreement
with Alcohol Monitoring Systems, Inc., for the purchase and use of
continuous alcohol monitoring equipment to use with VETS Court
participants
MEETING DATE: July 20, 2020
AGENDA ITEM TYPE: Consent
RECOMMENDATION: Authorize the City Manager to sign the Professional Services
Agreement with Alcohol Monitoring Systems, Inc., for the purchase and use of continuous
alcohol monitoring equipment to use with VETS Court Participants
BACKGROUND: One of the best practice standards for adult treatment courts which the
Bureau of Justice Assistance Drug Court Implementation Grant (2017-VV-BX-2006) requires is
1) “Drug and alcohol testing provides an accurate, timely and comprehensive assessment of
unauthorized substance use throughout the participants’ enrollment.” (National Association of
Drug Court Professional’s Adult Drug Court Practice Standards) Purchasing this equipment will
allow us to provide a higher level of supervision to those participants that need more frequent
testing.
UNRESOLVED ISSUES: None
ALTERNATIVES: As directed by the commission
FISCAL EFFECTS: The equipment purchase costs will be reimbursable through the Bureau of
Justice Assistance Drug Court Implementation Grant (2017-VV-BX-2006). The testing fees will
be reimbursable by the grant. When the grant ends, testing fees will be paid with participant
fees.
Attachments: Professional Services Agreement for Alcohol Monitoring Services
Report compiled on: July 9, 2020
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Professional Services Agreement for Bozeman VETS Court
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 20 day of July, 2020 (“Effective Date”),
by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation
organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street,
Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter
referred to as “City,” and, Lou Sugo, Alcohol Monitoring Systems, hereinafter referred to as
“Contractor.” The City and Contractor may be referred to individually as “Party” and collectively as
“Parties.”
In consideration of the mutual covenants and agreements herein contained, the receipt and
sufficiency whereof being hereby acknowledged, the parties hereto agree as follows:
1. Purpose: City agrees to enter this Agreement with Contractor to perform for City
services described in the Scope of Services attached hereto as Exhibit A and by this reference made
a part hereof.
2. Term/Effective Date: This Agreement is effective upon the Effective Date and will
expire on the 20 day of July, 2022, unless earlier terminated in accordance with this Agreement.
3. Scope of Services: Contractor will perform the work and provide the services in
accordance with the requirements of the Scope of Services. For conflicts between this Agreement and
the Scope of Services, unless specifically provided otherwise, the Agreement governs.
4. Payment: City agrees to pay Contractor the amount specified in the Scope of Work.
Any alteration or deviation from the described services that involves additional costs above the
Agreement amount will be performed by Contractor after written request by the City, and will become
an additional charge over and above the amount listed in the Scope of Services. The City must agree
in writing upon any additional charges.
5. Contractor’s Representations: To induce City to enter into this Agreement,
Contractor makes the following representations:
a. Contractor has familiarized itself with the nature and extent of this Agreement, the
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Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules,
and regulations that in any manner may affect cost, progress or performance of the Scope of Services.
b. Contractor represents and warrants to City that it has the experience and ability to
perform the services required by this Agreement; that it will perform the services in a professional,
competent and timely manner and with diligence and skill; that it has the power to enter into and
perform this Agreement and grant the rights granted in it; and that its performance of this Agreement
shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark,
privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal,
state and municipal laws. The City will not determine or exercise control as to general procedures or
formats necessary to have these services meet this warranty.
6. Independent Contractor Status/Labor Relations: The parties agree that Contractor
is an independent contractor for purposes of this Agreement and is not to be considered an employee
of the City for any purpose. Contractor is not subject to the terms and provisions of the City’s
personnel policies handbook and may not be considered a City employee for workers’ compensation
or any other purpose. Contractor is not authorized to represent the City or otherwise bind the City in
any dealings between Contractor and any third parties.
Contractor shall comply with the applicable requirements of the Workers’ Compensation Act,
Title 39, Chapter 71, Montana Code Annotated (MCA), and the Occupational Disease Act of
Montana, Title 39, Chapter 71, MCA. Contractor shall maintain workers’ compensation coverage for
all members and employees of Contractor’s business, except for those members who are exempted
by law.
Contractor shall furnish the City with copies showing one of the following: (1) a binder for
workers’ compensation coverage by an insurer licensed and authorized to provide workers’
compensation insurance in the State of Montana; or (2) proof of exemption from workers’
compensation granted by law for independent contractors.
In the event that, during the term of this Agreement, any labor problems or disputes of any
type arise or materialize which in turn cause any services to cease for any period of time, Contractor
specifically agrees to take immediate steps, at its own expense and without expectation of
reimbursement from City, to alleviate or resolve all such labor problems or disputes. The specific
steps Contractor shall take shall be left to the discretion of Contractor; provided, however, that
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Contractor shall bear all costs of any related legal action. Contractor shall provide immediate relief
to the City so as to permit the services to continue at no additional cost to City.
Contractor shall indemnify, defend, and hold the City harmless from any and all claims,
demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in
connection with any labor problems or disputes or any delays or stoppages of work associated with
such problems or disputes.
7. Indemnity/Waiver of Claims/Insurance: For other than professional services
rendered, to the fullest extent permitted by law, Contractor agrees to release, defend, indemnify, and
hold harmless the City, its agents, representatives, employees, and officers (collectively referred to
for purposes of this Section as the City) from and against any and all claims, demands, actions, fees
and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses,
expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or
damages of whatever kind or nature connected therewith and without limit and without regard to the
cause or causes thereof or the negligence of any party or parties that may be asserted against,
recovered from or suffered by the City occasioned by, growing or arising out of or resulting from or
in any way related to: (i) the negligent, reckless, or intentional misconduct of the Contractor; or (ii)
any negligent, reckless, or intentional misconduct of any of the Contractor’s agents.
For the professional services rendered, to the fullest extent permitted by law, Contractor
agrees to indemnify and hold the City harmless against claims, demands, suits, damages, losses, and
expenses, including reasonable defense attorney fees, to the extent caused by the negligence or
intentional misconduct of the Contractor or Contractor’s agents or employees.
Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations
of indemnity that would otherwise exist. The indemnification obligations of this Section must not be
construed to negate, abridge, or reduce any common-law or statutory rights of the City as
indemnitee(s) which would otherwise exist as to such indemnitee(s).
Contractor’s indemnity under this Section shall be without regard to and without any right to
contribution from any insurance maintained by City.
Should the City be required to bring an action against the Contractor to assert its right to
defense or indemnification under this Agreement or under the Contractor’s applicable insurance
policies required below, the City shall be entitled to recover reasonable costs and attorney fees
incurred in asserting its right to indemnification or defense but only if a court of competent
jurisdiction determines the Contractor was obligated to defend the claim(s) or was obligated to
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indemnify the City for a claim(s) or any portion(s) thereof.
In the event of an action filed against the City resulting from the City’s performance under
this Agreement, the City may elect to represent itself and incur all costs and expenses of suit.
Contractor also waives any and all claims and recourse against the City, including the right of
contribution for loss or damage to person or property arising from, growing out of, or in any way
connected with or incident to the performance of this Agreement except “responsibility for [City’s]
own fraud, for willful injury to the person or property of another, or for violation of law, whether
willful or negligent” as per 28-2-702, MCA.
These obligations shall survive termination of this Agreement and the services performed
hereunder.
In addition to and independent from the above, Contractor shall at Contractor’s expense secure
insurance coverage through an insurance company or companies duly licensed and authorized to
conduct insurance business in Montana which insures the liabilities and obligations specifically
assumed by the Contractor in this Section. The insurance coverage shall not contain any exclusion
for liabilities specifically assumed by the Contractor in this Section.
The insurance shall cover and apply to all claims, demands, suits, damages, losses, and
expenses that may be asserted or claimed against, recovered from, or suffered by the City without
limit and without regard to the cause therefore and which is acceptable to the City. Contractor shall
furnish to the City an accompanying certificate of insurance and accompanying endorsements in
amounts not less than as follows:
Workers’ Compensation – statutory;
Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate;
Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual
aggregate;
Automobile Liability - $1,000,000 property damage/bodily injury per accident; and
Professional Liability - $1,000,000 per claim; $2,000,000 annual aggregate.
The above amounts shall be exclusive of defense costs. The City shall be endorsed as an
additional or named insured on a primary non-contributory basis on both the Commercial General
and Automobile Liability policies. The insurance and required endorsements must be in a form
suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal.
Contractor shall notify City within two (2) business days of Contractor’s receipt of notice that any
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required insurance coverage will be terminated or Contractor’s decision to terminate any required
insurance coverage for any reason.
The City must approve all insurance coverage and endorsements prior to the Contractor
commencing work.
8. Termination for Contractor’s Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or fails
to perform any of its obligations under this Agreement, or otherwise breaches any terms or
conditions of this Agreement, the City may, by written notice, terminate this Agreement and
the Contractor’s right to proceed with all or any part of the work (“Termination Notice Due
to Contractor’s Fault”). The City may then take over the work and complete it, either with its
own resources or by re-letting the contract to any other third party.
b. In the event of a termination pursuant to this Section 8, Contractor shall be
entitled to payment only for those services Contractor actually rendered.
c. Any termination provided for by this Section 8 shall be in addition to any other
remedies to which the City may be entitled under the law or at equity.
d. In the event of termination under this Section 8, Contractor shall, under no
circumstances, be entitled to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
9. Termination for City’s Convenience:
a. Should conditions arise which, in the sole opinion and discretion of the City,
make it advisable to the City to cease performance under this Agreement, the City may
terminate this Agreement by written notice to Contractor (“Notice of Termination for City’s
Convenience”). The termination shall be effective in the manner specified in the Notice of
Termination for City’s Convenience and shall be without prejudice to any claims that the City
may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City’s Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease performance under
this Agreement and make every reasonable effort to refrain from continuing work, incurring
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additional expenses or costs under this Agreement and shall immediately cancel all existing
orders or contracts upon terms satisfactory to the City. Contractor shall do only such work as
may be necessary to preserve, protect, and maintain work already completed or immediately
in progress.
c. In the event of a termination pursuant to this Section 9, Contractor is entitled
to payment only for those services Contractor actually rendered on or before the receipt of the
Notice of Termination for City’s Convenience.
d. The compensation described in Section 9(c) is the sole compensation due to
Contractor for its performance of this Agreement. Contractor shall, under no circumstances,
be entitled to claim or recover consequential, special, punitive, lost business opportunity, lost
productivity, field office overhead, general conditions costs, or lost profits damages of any
nature arising, or claimed to have arisen, as a result of the termination.
10. Limitation on Contractor’s Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor’s damages shall be limited to contract damages and each party hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity, lost productivity, field office overhead, general conditions costs, or lost profits
damages of any nature or kind against the other.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the
claim. In the event Contractor fails to provide such notice, Contractor shall waive all rights
to assert such claim.
11. Representatives and Notices:
a. City’s Representative: The City’s Representative for the purpose of this
Agreement shall be The Honorable J. Colleen Herrington or such other individual as City
shall designate in writing. Whenever approval or authorization from or communication or
submission to City is required by this Agreement, such communication or submission shall be
directed to the City’s Representative and approvals or authorizations shall be issued only by
such Representative; provided, however, that in exigent circumstances when City’s
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Representative is not available, Contractor may direct its communication or submission to
other designated City personnel or agents as designated by the City in writing and may receive
approvals or authorization from such persons.
b. Contractor’s Representative: The Contractor’s Representative for the
purpose of this Agreement shall be David Brit, Regional Sales Manager or such other
individual as Contractor shall designate in writing. Whenever direction to or communication
with Contractor is required by this Agreement, such direction or communication shall be
directed to Contractor’s Representative; provided, however, that in exigent circumstances
when Contractor’s Representative is not available, City may direct its direction or
communication to other designated Contractor personnel or agents.
c. Notices: All notices required by this Agreement shall be in writing and
shall be provided to the Representatives named in this Section. Notices shall be deemed given
when delivered, if delivered by courier to Party’s address shown above during normal business
hours of the recipient; or when sent, if sent by email or fax (with a successful transmission
report) to the email address or fax number provided by the Party’s Representative; or on the
fifth business day following mailing, if mailed by ordinary mail to the address shown above,
postage prepaid.
12. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of Bozeman
business license, and inspections from applicable governmental authorities, and pay all fees and
charges in connection therewith.
13 Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers’
compensation laws, all environmental laws including, but not limited to, the generation and disposal
of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and
provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and
State building and electrical codes, the Americans with Disabilities Act, and all non-discrimination,
affirmative action, and utilization of minority and small business statutes and regulations.
14. Nondiscrimination and Equal Pay: The Contractor agrees that all hiring by
Contractor of persons performing this Agreement shall be on the basis of merit and qualifications.
The Contractor will have a policy to provide equal employment opportunity in accordance with all
applicable state and federal anti-discrimination laws, regulations, and contracts. The Contractor will
not refuse employment to a person, bar a person from employment, or discriminate against a person
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in compensation or in a term, condition, or privilege of employment because of race, color, religion,
creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation,
gender identity, physical or mental disability, except when the reasonable demands of the position
require an age, physical or mental disability, marital status or sex distinction. The Contractor shall
be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United
States Code, and all regulations promulgated thereunder.
Contractor represents it is, and for the term of this Agreement will be, in compliance with the
requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay Act).
Contractor must report to the City any violations of the Montana Equal Pay Act that Contractor has
been found guilty of within 60 days of such finding for violations occurring during the term of this
Agreement.
Contractor shall require these nondiscrimination terms of its subcontractors providing services
under this Agreement.
15. Intoxicants; DOT Drug and Alcohol Regulations/Safety and Training: Contractor
shall not permit or suffer the introduction or use of any intoxicants, including alcohol or illegal drugs,
by any employee or agent engaged in services to the City under this Agreement while on City property
or in the performance of any activities under this Agreement. Contractor acknowledges it is aware of
and shall comply with its responsibilities and obligations under the U.S. Department of Transportation
(DOT) regulations governing anti-drug and alcohol misuse prevention plans and related testing. City
shall have the right to request proof of such compliance and Contractor shall be obligated to furnish
such proof.
The Contractor shall be responsible for instructing and training the Contractor's employees
and agents in proper and specified work methods and procedures. The Contractor shall provide
continuous inspection and supervision of the work performed. The Contractor is responsible for
instructing its employees and agents in safe work practices.
16. Modification and Assignability: This Agreement may not be enlarged, modified or
altered except by written agreement signed by both parties hereto. The Contractor may not
subcontract or assign Contractor’s rights, including the right to compensation or duties arising
hereunder, without the prior written consent of the City. Any subcontractor or assignee will be bound
by all of the terms and conditions of this Agreement.
17. Reports/Accountability/Public Information: Contractor agrees to develop and/or
provide documentation as requested by the City demonstrating Contractor’s compliance with the
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requirements of this Agreement. Contractor shall allow the City, its auditors, and other persons
authorized by the City to inspect and copy its books and records for the purpose of verifying that the
reimbursement of monies distributed to Contractor pursuant to this Agreement was used in
compliance with this Agreement and all applicable provisions of federal, state, and local law. The
Contractor shall not issue any statements, releases or information for public dissemination without
prior approval of the City.
18. Non-Waiver: A waiver by either party of any default or breach by the other party of
any terms or conditions of this Agreement does not limit the other party’s right to enforce such term
or conditions or to pursue any available legal or equitable rights in the event of any subsequent default
or breach.
19. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to
retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice
required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable
attorney's fees and costs, including fees, salary, and costs of in-house counsel including the City
Attorney’s Office staff.
20. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings.
21. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator to assist
in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from the
date the dispute was first raised, then such dispute may only be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this Agreement.
22. Survival: Contractor’s indemnification shall survive the termination or expiration of
this Agreement for the maximum period allowed under applicable law.
23. Headings: The headings used in this Agreement are for convenience only and are not
be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to
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which they refer.
24. Severability: If any portion of this Agreement is held to be void or unenforceable, the
balance thereof shall continue in effect.
25. Applicable Law: The parties agree that this Agreement is governed in all respects by
the laws of the State of Montana.
26. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs,
legal representatives, successors, and assigns of the parties.
27. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
28. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
29. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained herein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties other
than as set forth in this Agreement. All communications, either verbal or written, made prior to the
date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this
Agreement by reference.
30. Consent to Electronic Signatures: The Parties have consented to execute this
Agreement electronically in conformance with the Montana Uniform Electronic Transactions Act,
Title 30, Chapter 18, Part 1, MCA.
31. Extensions: This Agreement may, upon mutual agreement, be extended for a period
of one year by written agreement of the Parties. In no case, however, may this Agreement run longer
than three (3) years.
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**** END OF AGREEMENT EXCEPT FOR SIGNATURES ****
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written or as recorded in an electronic signature.
CITY OF BOZEMAN, MONTANA ____________________________________
CONTRACTOR (Type Name Above)
By________________________________ By__________________________________
Jeff Mihelich, City Manager
Print Name: Lou Sugo
Print Title: VP
APPROVED AS TO FORM:
By_______________________________
Greg Sullivan, Bozeman City Attorney
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Exhibit A
Scope of Work
AGENCY: City of Bozeman
This EXHIBIT A to the Professional Services Agreement (the "Agreement") is entered into on the
Effective Date by and between ALCOHOL MONITORING SYSTEMS, INC., ("AMS") and the
City identified above. This Schedule is incorporated by reference into the Agreement dated and
executed by the parties. The effective date of this Exhibit A is July 20, 2020.
GENERAL SCOPE OF AGREEMENT: Subject to the terms and conditions of the Agreement,
City shall have the option to purchase or rent SCRAM Continuous Alcohol Monitoring Equipment
and receive Monitoring Services from AMS to enable City to acquire and track information about
alcohol use of participants in the Bozeman Veteran Eligible Treatment Services Court.
COMMERCIAL TERMS FOR EQUIPMENT AND SERVICES
1.1 Definitions
1.1.1 Equipment is defined as SCRAM Continuous Alcohol Monitoring Set (Bracelet and
Base Station) (Cellular Wi-Fi)
1.1.2 Client is defined as an active participant in VETS Court required to wear
equipment
1.1.3 User is defined as someone designated by the City to monitor Equipment
assigned to a Client
2.1 Terms and Pricing of Products
2.1.1 Equipment- City may purchase Equipment at the prices set forth herein. Daily
Services Fees for the Services apply to this Equipment when it is in use. City may also
rent Equipment for the Active Unit Daily Fees specified on this Schedule. Active Unit
Daily Fees include the Services specified herein. Any Daily Services Fees for purchased
Equipment and any Active Unit Daily Fees will be invoiced to City for all Equipment in
use during any portion of a day during the month. For purposes of this Schedule, the term
"Active" is defined as any Equipment that is assigned to a Client and accessing the
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Monitoring Software (currently SCRAMNET and INSIGHT). City shall use the AMS
Equipment Order Form for additional Equipment ordered by City during the Term.
2.1.2 Spare Equipment Fees - Active Unit Pricing. For agencies with any Equipment in
inventory acquired under Active Unit pricing, an agency is allowed to maintain up to a
specified percentage of its Equipment in use for the month as spare inventory as
identified in this document. After the first sixty (60) days from the Effective Date of this
Schedule, if it is determined by AMS, based on the City’s utilization rate for the month,
the City’s unused inventory is in excess of the Spare Allowance amount, AMS will
invoice and the City will pay a Daily Shelf Fee. The Daily Shelf fee will be calculated as
the number of active Equipment units per day, per month as compared to the average
Equipment in inventory per day, per month. The Spare Allowance and Daily Shelf Fee
are as specified in this document. The City must return any excess Equipment inventory
in order to avoid being charged a Daily Shelf Fee.
2.1.3 Shipment and Delivery Terms- Products ordered by the City shall be delivered
FOB to the City’s designated facility. AMS shall determine the type of packaging, mode
and time of transportation. The City shall be responsible for all shipping fees related to
any shipments of the Equipment or Parts, including new orders and returns.
2.2 Fees for Services.
City shall pay AMS for the Services described in Section 3 and for the right to access the Monitoring
Software at the current per diem rate for each SCRAM GPS Kit in use on a Client, (collectively, the
"Daily Services Fee"), The current per diem rate as of the Effective Date is specified herein.
3.1 General Scope of Services ("Services"). In consideration of the payment by City of the Daily
Services Fee or Active Unit Daily Fee for the Equipment, AMS shall provide City with the Services
and support functions set forth herein (the "Services"). Further, unless otherwise expressly agreed
to by the parties, AMS is not obligated to and will not provide Services for any Equipment not
purchased or rented by City directly from AMS. The Services shall consist of: I) the remote
collection and compilation of reports and data from the Equipment via the Monitoring Software; (ii)
the provision of training and certification for City personnel as described in 3.2; (iii) the provision
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of technical support and telephone assistance from AMS professionals;(iv) the scheduled
maintenance of the Equipment; (v) the provision of reasonable disaster recovery and backup
Services for Client data stored on the Monitoring Software; and (vi) the provision of such other
services and support functions as may be agreed to in writing by the parties from time to time.
3.2 Training and Certification. AMS will provide City with personnel training certification in the
use of the Equipment. In addition, AMS will provide City with access to a reasonable number of
copies of the SCRAM Continuous Alcohol Monitoring Kit Quick Reference Guide and training
modules on AMS University.
3.3 Equipment Maintenance. AMS and City shall establish a routine maintenance program designed
to keep the Equipment in good repair, working order and condition in accordance with AMS'
then-published specifications, including establishing a schedule that will ensure the return of the
Equipment to AMS at approximately annual intervals. Unless otherwise agreed, City shall be
responsible for (I) collecting any Equipment from Clients that is scheduled for maintenance and
(ii) shipping it to AMS having first obtained a Return Merchandise Authorization (RMA) number
from AMS. Such maintenance program shall not cover Equipment damaged or rendered
inoperative for any cause not due to defects covered by the service and repair policy in this
Agreement. City shall not, without prior approval from AMS, send to AMS for maintenance any
Equipment not then scheduled for maintenance. Equipment returned to AMS for any reason,
including rental returns, damages, and scheduled repairs, that are not accompanied with a
properly issued RMA may be assessed a returned administrative charge.
3.4 Monitoring Service Availability. AMS shall use commercially reasonable efforts to make the
Monitoring Services available for twenty-four (24) hours a day, seven (7) days a week. City
agrees that from time to time the Monitoring Services may be inaccessible or inoperable for
reasons beyond the reasonable control of AMS, including: (I) equipment malfunctions; (ii)
periodic maintenance procedures or repairs which AMS may undertake; or (iii) interruption or
failure of telecommunication or digital transmission links, hostile network attacks, network
congestion or other similar failures.
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City will not be entitled to any setoff, discount, refund or other credit as a result of unavailability
of the Monitoring Services unless expressly provided in this Agreement.
3.5 Monitoring Software Security. AMS shall use commercially reasonable efforts to prevent
unauthorized access to restricted areas of the Monitoring Software and any databases or other
sensitive material. AMS reserves the right to deactivate or suspend access to the Monitoring
Software by a User if such User is found or reasonably suspected to be using his/her access to
facilitate illegal, abusive or unethical activities. Such activities include pornography, obscenity,
violations of law or privacy, hacking, computer viruses, or any harassing or harmful materials or
uses.
3.6 Access to Monitoring Software. City agrees to limit requests for access to the Monitoring
Software to City personnel who are authorized to enroll Clients, set notification options and
otherwise access the information residing within the Monitoring Software. AMS will provide to
City User names, passwords and other information necessary to access the Monitoring Software.
City is responsible for keeping its User names and passwords protected as Confidential
Information as defined in and per the terms of Section 8 of this Exhibit and for any
communications or transactions made using its User names and passwords. City personnel are
responsible for changing their respective User names and passwords if they believe that either
have been stolen or might otherwise be misused. City shall provide written notice to AMS within
ten (10) days if any previously authorized personnel’s status changes such that access should no
longer be allowed, including but not limited to termination or resignation of any City personnel
who had access to the Monitoring Software. These requirements are subject to change based on
periodic review by AMS of its information security needs.
3.7 Equipment and Utilities. City is responsible and shall bear the costs associated with providing
and maintaining internet access and all necessary telecommunications equipment, software and
other materials necessary for accessing the Monitoring Software. City agrees to notify AMS of
any changes in the foregoing, including any system configuration changes or any hardware or
software upgrades, which may affect City's ability to access the Monitoring Software.
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3.8 Additional or Changes to Services. From time-to time, AMS may revise the scope of the
Services, subcontract or delegate to a third party some or all of the provision of the Services, or
make substitutions, additions, modifications and improvements to Services. AMS shall inform
the City of any changes to the Services, or delegations to or third parties within ten (10) business
days. City may terminate agreement if changes or delegations are found to be unsatisfactory.
3.9 Monitoring Software and/or Services. Additionally, as a part of these changed Services, AMS
also may determine, at its sole option, to discontinue providing Services hereunder for specific
versions of the Products upon a minimum of one (1) year prior notice to City.
3.10 Equipment Responsibilities. The City shall be solely responsible for the management and
supervision of the monitoring equipment and any personnel using the monitoring equipment and
the monitoring software, as well as the selection and implementation of the client enrollment,
monitoring and notification options provided for the monitoring software. For avoidance of
doubt, City is solely responsible for the response to any Client violations reported by AMS or its
third party providers. Contactor is not responsible or liable for City's failure to properly fulfill its
foregoing responsibilities
3.11 Agreements with Clients. City is solely responsible for notifying Clients in writing of any
restrictions or limitations on the use of the Equipment of which it is made aware by AMS. These
mandatory restrictions and prohibitions to be communicated to Clients are available on
SCRAMNET in the form of a "Participant Agreement". This Participant Agreement is not
intended to cover all possible requirements of the relationship between City and its Clients and
should be reviewed by
City's legal advisors prior to use.
4. ACCESS RIGHTS: In consideration of the payment of the Daily Services Fees set forth
below and subject to the terms and restrictions set forth herein, AMS grants the City limited,
nonexclusive right to access the Monitoring Software for the purpose of monitoring Client data.
5. TERRITORY: Gallatin County
6. GENERAL EQUIPMENT LIMITATIONS
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Alcohol Detection. The SCRAM Equipment is not designed to give immediate
notification of alcohol detection.
Tamper Efforts. AMS makes no assurances that the any equipment worn by a Client will
detect all tamper efforts.
Submerqence in Water or Other Liquid. Equipment is not designed for submergence in
liquids. The SCRAM Remote Breath Equipment is not waterproof and should not be
immersed in or exposed in any way to liquids. Equipment damaged by Clients or by
exposure to water will not be repaired and is subject to the lost/damaged Equipment unit
replacement fee.
Failure by the Agency to Adhere to Maintenance Schedules. City is responsible to adhere
to equipment maintenance notifications and/or schedules related to equipment and
calibration.
Set Up. The City is responsible for entering and updating schedules for each Client and
setting up all relevant notifications, including all methods and events. Further, The City is
responsible for establishing a program providing the necessary criteria to interpret all
testing results provided by AMS. The Equipment is intended to be used to determine if a
Client has consumed alcohol. The Equipment is a professional device designed to be used
by trained City personnel in conjunction with a routine Agency-run equipment
maintenance and calibration oversight program. Use by untrained personnel or without
periodic maintenance or calibration may result in invalid results or incorrect
interpretation of results.
ADDITIONAL MONITORING SERVICES - 24/7 REQUIREMENTS. Additional monitoring
services are supported by a separate Service Level Agreement (SLA) document.
Each SLA specifies, among other things, the type, description and price of the Monitoring Services
to be provided. Any modifications of the terms of the SLA shall be made solely in writing and
mutually executed by the City and AMS and any other attempt to modify the terms of the SLA
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shall be void. AMS is not liable for; (I) the actions or inactions of The City or its employees, AMSs
and agents that result in delay or error in the Services; (i) failure to report Client non-compliant
activities to appropriate supervising authorities when potential bond, parole or probation violations
have occurred; or (iii) inaccurate information provided or input into the Monitoring Software,
including Client or other contact information, GPS inclusion/exclusion zone set up and offender
schedule information and associated protocols.
WIRELESS EQUIPMENT AND NETWORK LIMITATIONS. AMS provides a choice of data
network providers as a part of its services for the Wireless Multi-connect Device, Wireless Base
Station and other equipment. AMS accepts no responsibility or liability for wireless data
coverage or lack thereof, or for equipment being located in an area not covered by appropriate
wireless coverage, or if the monitoring equipment fails to establish a connection with the
monitoring software or the monitoring services are disabled due to network connection with the
monitoring software, or the monitoring services are disabled due to network related issues. No
data will be transmitted when a data network that is supporting the equipment is not available,
Wireless Multi-connect Devices do not provide caller location or caller identification.
7 MAINTENANCE AND REPAIR
7.1 Maintenance and Repair Policy, Provided City; (i) pays to AMS the Service fee(s)
for Equipment, and (ii) installs the Equipment in accordance with AMS's instructions, for all
Equipment manufactured by and ordered directly from AMS, AMS will provide the necessary
maintenance and repair for such Equipment at AMS's expense to enable it to function with the
Monitoring Software in a manner substantially in accordance with the performance parameters
specified in the documentation for the specific Equipment. For any Parts manufactured by third
parties and sold by AMS, any service or repair commitment for that Part shall be solely as described
in the relevant Schedule for that Part, Products returned to AMS under warranty must be returned
within thirty (30) days of issuance of the RMA. City must returned damaged or defective Products
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by using the label or freight carrier information provided by AMS to City at the time of RMA
issuance.
7.2 Maintenance and Repair Policy Exclusions. The above policy does not cover
Equipment that is obtained from sources outside of AMS or is defective due to (i) improper use or
installation, damage, accident, abuse or alteration; (ii) failure to comply with the operating and
maintenance instructions set forth in the documentation for the specific Equipment; (iii) servicing
of the Equipment by anyone not authorized by AMS; (iv) failure of City to obtain reasonable and
necessary maintenance of the Equipment as contemplated under the Agreement; (v) use of Parts in
the repair of the Equipment that have not been approved in writing by AMS for use in the
Equipment; or (vi) use in connection with a third party product other than that as approved in
writing by AMS.
8. EQUIPMENT AND SERVICES FEES FOR SCRAM GPS:
Purchase Pricing:
Item Quantity Purchase Price Daily Service Fees
SCRAM Continuous
Alcohol Monitoring
Set (Bracelet and
Base Station)
(Cellular Wi-Fi)
1-49 $1561.50 $5.27
SCRAM Continuous
Alcohol Monitoring
Bracelet
1-49 $1108.35 $4.27
Active Rental Pricing
Item Quantity Active Unit Daily
Fees
Daily Shelf Fees
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SCRAM Continuous
Alcohol Monitoring
Set (Bracelet and
Base Station)
(Cellular Wi-
Fi___33)
1-49 $7.55 $1.82
SCRAM Continuous
Alcohol Monitoring
Bracelet
1-49 $6.35 $1.82
*Active Unit pricing is inclusive of both the rental of the Equipment and Daily Services Fees. City
is allowed a 20% shelf stock allowance. This means that 20% of its total inventory (both in use
and not in use may sit on the shelf (not in use), at no charge for Shelf Fees.
9. ADDITIONAL TERMS:
Pricing is in accordance with that offered in the U.S. General Services Administration (GSA)
Schedule Contract #GS-07F0003Y.
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EXHIBIT B
USE RESTRICTIONS; FIRMWARE LICENSE; OWNERSHIP; LIMITED
LICENSE; DISCLAIMER
Use Restrictions• No Modification. The City shall not do any of the following acts: i) willfully
tamper with the security of the monitoring software or equipment; (ii) access data on the
Monitoring Software not intended for the City; (iii) log into an unauthorized server or account on
the Monitoring Software; (iv) attempt to probe, scan or test the vulnerability of the monitoring
software or to breach the security or authentication measures without proper authorization; (v)
willfully render any part of monitoring software unusable; (vi) reverse engineer, de-compile,
disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of
the Monitoring Software; (vii) modify, translate, or create derivative works based on the
monitoring software; (viii) rent, lease, distribute, license, sublicense, sell, resell, assign, or
otherwise commercially exploit the monitoring software or make the monitoring Software
available to a third party other than as contemplated in this Agreement; (ix) use the Monitoring
Software for timesharing or service bureau purposes or otherwise for the benefit of a third party;
(x) publish or disclose to third parties any evaluation of the monitoring software without AMS's
or its third party supplier's prior written consent; (xi) remove, modify, obscure any copyright,
trademark, patent or other proprietary notice that appears on the monitoring software; or (xii)
create any link to the monitoring software or frame or mirror any content contained or accessible
from the monitoring software. Except as expressly provided in this agreement, no right or license
is granted hereunder, by implication, estoppel or otherwise.
Firmware License. The equipment and parts contain firmware developed and owned by AMS or
its third party supplier. The City is hereby granted a limited, non-exclusive, non-transferable,
royalty-free license to use the firmware in the equipment or parts. Use of the parts may be subject
to third party license agreements. AMS and its third party suppliers shall retain all rights to the
firmware contained in the Products. Any applicable license shall be deemed to be in effect upon
delivery of the equipment or parts.
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Ownership: Limited License. The City acknowledges that all right, title and interest in any
software or firmware provided under this agreement and all modifications and enhancements
thereof, including all rights under copyright and patent and other intellectual property rights,
belong to and are retained solely by Contactor or its third party suppliers. This agreement
provides the City only the rights expressly granted in this agreement. Further, if the City
suggests any new features or functionality for the equipment, monitoring software or parts that
AMS or its third party suppliers subsequently incorporate into the equipment or monitoring
software, any such new features or functionality shall be the sole and exclusive property of
AMS or its third party suppliers and shall be free from any confidentiality restrictions that
might otherwise be imposed upon AMS.
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