HomeMy WebLinkAboutC35700 - Otocast - Mobile Audio Guide AppCONTRACT NO. C35700
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
REQUEST: APPROVE AGREEMENT IN THE AMOUNT OF $2,250 WITH
OTOCAST, LLC. TO PRODUCE A MOBILE AUDIO GUIDE APP
FOR THE 2017/2018 EL PASEO EXHIBITION.
SUBMITTED BY:
DATE:
CONTENTS:
Recommendation
By Minute Motion:
Deborah S. Glickman, Management Analyst
September 22, 2016
Draft Agreement with Otocast, LLC.
Otocast, LLC. PowerPoint Presentation
1. Approve an agreement with Otocast, LLC. in the amount of $2,250 for
the creation of a mobile audio guide for the 2017/2018 El Paseo
Exhibition. Funds are available in Account No. 4364650-4309202;
2. Authorize staff to finalize the negotiations of the subject contract with
Otocast, LLC. and authorize Mayor to execute same, subject to the
satisfaction of the City Attorney.
Committee Recommendation
At its meeting of July 16, 2015 the City's Social Media and Related Technologies (SMART)
Team reviewed Otocast's app and was in favor of staff moving forward with the app.
Strategic Plan
The 2017/2018 El Paseo Exhibition mobile audio guide contributes to the Tourism and
Marketing element of the City's Envision Palm Desert Strategic Plan. Specifically, the
app creation contributes to:
Priority 1: Improve access to Palm Desert and its attractions to enhance the ease of
lifestyle.
Staff Report
Public Art App
September 22, 2016
Page 2 of 3
Background
Recently, City Council has put an emphasis on increasing the use of technology as a
tool for interacting with the City's citizens, as well as utilizing it as a tool for marketing
the City and its assets. The Otocast mobile app will serve as a test to see how people
interact with the City's public art in a technological capacity.
The app will consist of entries for each sculpture in the 2017/2018 El Paseo Exhibition,
for a total of eighteen (18) entries. For each entry, there will be approximately four (4)
images of the artwork or the artist, text about the art and artist including a link to the
artist's website, and an audio interview with the artist or his/her representative. In
addition to the entries on the artwork, there will be one for an introduction to the public
art program including an audio overview and a link to the website. People can
download the app while on El Paseo and do a self -guided walking tour, or they can
preview the exhibition from anywhere that they have their phones and tablets.
Octocast's app caters to people who are seeking cultural or historical experiences in
their own city, or when they are traveling. The app is free to the user and can be
downloaded for both Apple and Android phones and tablets. All of the apps created by
Otocast are available with the same download, and the fact that they are all in one place
offers a marketing opportunity for Palm Desert. People who have downloaded the app
to view a tour from another city will likely scroll through the list of tours available through
Otocast, and can select to virtually visit Palm Desert and have the opportunity to learn
about the 2017/2018 El Paseo Exhibition and the City's public art collection. These
viewers are those beyond those who are downloading the app specifically to view Palm
Desert's exhibition.
Additionally, there will be signage placed at intervals along El Paseo inviting people to
download the app and letting them know how to do so. There will also be
announcements in the press and on public art advertising. Staff intends for the app to
be launched as part of the 2017/2018 El Paseo Exhibition dedication, which is currently
scheduled to be held as part of First Weekend on Saturday, January 7, 2017.
Staff Report
Public Art App
September 22, 2016
Page 3 of 3
Fiscal Analvsis
There is an initial cost of $125 for each of the eighteen (18) sculptures in the exhibition
for a total of $2,250. After the first year there will be an annual hosting fee of $1,125.
Funds are available in account number 4364650-4309202. No general fund money will
be expended.
Submitted By:
Deborah S. Glickman
Management Analyst
Reviewed:
ao
ore,, Director of Finance
Approval:
ly,
Interim Cit eager
Department Head:
A�b-
Ryan Stendell
Director of Community Development
CITY OF PALM DESERT
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this day of August, 2016 by and
between the City of Palm Desert, a municipal corporation with its principal place of business at
73510 Fred Waring Drive, Palm Desert, CA 92260 ("City") and Otocast, LLC, with its principal
place of business at 72 Underhill Road, Ossining, NY 10562 ("Consultant'). City and
Consultant are sometimes individually referred to as "Party" and collectively as "Parties" in this
Agreement.
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain
professional services required by the City on the terms and conditions set forth in this
Agreement. Consultant represents that it is experienced in developing and designing mobile
applications for narrated audio guides services.
2.2 Project.
City desires to engage Consultant to produce and launch a guide for City's mobile
application ("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to
the City all labor, materials, tools, equipment, services, and incidental and customary work
necessary to fully and adequately supply the professional and technical consulting services
necessary for the Project ("Services"). The Services are more particularly described in Exhibit
"A" attached hereto and incorporated herein by reference. All Services shall be subject to, and
performed in accordance with, this Agreement, the exhibits attached hereto and incorporated
herein by reference, and all applicable local, state and federal laws, rules, and regulations.
3.1.2 Term. The term of this Agreement shall be from , 2016
(Effective Date) to December 30, 2016 unless earlier terminated as provided herein. Consultant
shall complete the Services within the term of this Agreement, and shall meet any other
established schedules and deadlines. The Parties may, by mutual, written consent, extend the
term of this Agreement if necessary to complete the Services.
3.2 Responsibilities of Consultant.
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3.2.1 Control and Pavment of Subordinates. Independent Contractor, The
Services shall be performed by Consultant or under its supervision. Consultant will determine
the means, methods and details of performing the Services subject to the requirements of this
Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Consultant retains the right to perform similar or different services for others during the term of
this Agreement. Any additional personnel performing the Services under this Agreement on
behalf of Consultant shall also not be employees of City and shall at all times be under
Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other
amounts due such personnel in connection with their performance of Services under this
Agreement and as required by law. Consultant shall be responsible for all reports and
obligations respecting such additional personnel, including, but not limited to: social security
taxes, income tax withholding, unemployment insurance, disability insurance, and workers'
compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services
expeditiously, within the term of this Agreement, and in accordance with the Scope and Schedule
of Services set forth in Exhibit "A" attached hereto and incorporated herein by reference.
Consultant represents that it has the professional and technical personnel required to perform the
Services in conformance with such conditions. In order to facilitate Consultant's conformance
with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon
request of City, Consultant shall provide a more detailed schedule of anticipated performance to
meet the Schedule of Services.
3.2.3 Conformance to Applicable Ree_uirements. All work prepared by
Consultant shall be subject to the approval of City.
3.2.4 Coordination of Services. Consultant agrees to work closely with City
staff in the performance of Services and shall be available to City's staff, consultants and other
staff at all reasonable times.
3.2.5 Standard of Care. Performance of Emulovees. Consultant shall perform
all Services under this Agreement in a skillful and competent manner, consistent with the
standards generally recognized as being employed by professionals in the same discipline in the
State of California. Consultant represents and maintains that it is skilled in the professional
calling necessary to perform the Services. Consultant warrants that all employees and
subconsultants shall have sufficient skill and experience to perform the Services assigned to
them. Finally, Consultant represents that it, its employees and subconsultants have all licenses,
permits, qualifications and approvals of whatever nature that are legally required to perform the
Services, and that such licenses and approvals shall be maintained throughout the term of this
Agreement. As provided for in the indemnification provisions of this Agreement, Consultant
shall perform, at its own cost and expense and without reimbursement from the City, any
services necessary to correct errors or omissions which are caused by the Consultant's failure to
comply with the standard of care provided for herein. Any employee of the Consultant or its
sub -consultants who is determined by the City to be uncooperative, incompetent, a threat to the
adequate or timely completion of the Project, a threat to the safety of persons or property, or any
employee who fails or refuses to perform the Services in a manner acceptable to the City, shall
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be promptly removed from the Project by the Consultant and shall not be re-employed to
perform any of the Services or to work on the Project.
3.2.9 Period of Performance. Consultant shall perform and complete all Services
under this Agreement within the term set forth in Section 3.1.2 above ("Performance Time").
Consultant shall also perform the Services in strict accordance with any completion schedule or
Project milestones described in Exhibit "A" attached hereto, or which may be separately agreed
upon in writing by the City and Consultant ("Performance Milestones"). Consultant agrees that
if the Services are not completed within the aforementioned Performance Time and/or pursuant
to any such Project Milestones developed pursuant to provisions of this Agreement, it is
understood, acknowledged and agreed that the City will suffer damage.
3.2.10 Laws and Regulations; Emplovee/Labor Certifications. Consultant shall
keep itself fully informed of and in compliance with all local, state and federal laws, rules and
regulations in any manner affecting the performance of the Project or the Services, including all
Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable
for all violations of such laws and regulations in connection with Services. If the Consultant
performs any work knowing it to be contrary to such laws, rules and regulations and without
giving written notice to the City, Consultant shall be solely responsible for all costs arising
therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers,
employees, and agents free and harmless, pursuant to the indemnification provisions of this
Agreement, from any claim or liability arising out of any failure or alleged failure to comply
with such laws, rules or regulations.
3.2.10.1 Employment Eligibility; Consultant. By executing this
Agreement, Consultant verifies that it fully complies with all requirements and restrictions of
state and federal law respecting the employment of undocumented aliens, including, but not
limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to
time. Such requirements and restrictions include, but are not limited to, examination and
retention of documentation confirming the identity and immigration status of each employee of
the Consultant. Consultant also verifies that it has not committed a violation of any such law
within the five (5) years immediately preceding the date of execution of this Agreement, and
shall not violate any such law at any time during the term of the Agreement. Consultant shall
avoid any violation of any such law during the term of this Agreement by participating in an
electronic verification of work authorization program operated by the United States Department
of Homeland Security, by participating in an equivalent federal work authorization program
operated by the United States Department of Homeland Security to verify information of newly
hired employees, or by some other legally acceptable method. Consultant shall maintain records
of each such verification, and shall make them available to the City or its representatives for
inspection and copy at any time during normal business hours. The City shall not be responsible
for any costs or expenses related to Consultant's compliance with the requirements provided for
in Section 3.2.10 or any of its sub -sections.
3.2.10.2 Emolovment Eliaibility. Subcontractors. Consultants. Sub -
subcontractors and Subconsultants. To the same extent and under the same conditions as
Consultant, Consultant shall require all of its subcontractors, consultants, sub -subcontractors and
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subconsultants performing any work relating to the Project or this Agreement to make the same
verifications and comply with all requirements and restrictions provided for in Section 3.2.10.1.
3.2.10.3 Employment Elijzibility; Failure to Comply. Each person
executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer
of Consultant, and understands that any of the following shall be grounds for the City to
terminate the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants,
sub -subcontractors or subconsultants to meet any of the requirements provided for in Sections
3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with
such requirements (including in those verifications provided to the Consultant under Section
3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in
compliance with such requirements.
3.2.10.4 Labor Certification. By its signature hereunder, Consultant
certifies that it is aware of the provisions of Section 3700 of the California Labor Code which
require every employer to be insured against liability for Workers' Compensation or to undertake
self-insurance in accordance with the provisions of that Code, and agrees to comply with such
provisions before commencing the performance of the Services.
3.2.10.5 Eaual Opportunity Emplovment. Consultant represents
that it is an equal opportunity employer and it shall not discriminate against any subconsultant,
employee or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities
related to initial employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff or termination. Consultant shall also comply with all relevant provisions of
City's Minority Business Enterprise program, Affirmative Action Plan or other related programs
or guidelines currently in effect or hereinafter enacted.
3.2.10 Insurance.
(a) Time for Compliance.
Consultant shall not commence Work under this Agreement until it has provided
evidence satisfactory to the City that it has secured all insurance required under this section. In
addition, Consultant shall not allow any subcontractor to commence work on any subcontract
until it has provided evidence satisfactory to the City that the subcontractor has secured all
insurance required under this section.
(b) Minimum Requirements
Consultant shall, at its expense, procure and maintain for the duration of the
Agreement insurance against claims for injuries to persons or damages to property which may
arise from or in connection with the performance of the Agreement by the Consultant, its agents,
representatives, employees or subcontractors. Consultant shall also require all of its
subcontractors to procure and maintain the same insurance for the duration of the Agreement.
Such insurance shall meet at least the following minimum levels of coverage:
(c) Minimum Scope of Insurance.
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Coverage shall be at least as broad as the latest version of the following: (A)
General Liability: Insurance Services Office Commercial General Liability coverage (occurrence
form CG 0001); (B) Automobile Liability: Insurance Services Office Business Auto Coverage
form number CA 0001, code 1 (any auto); and (C) Workers' Compensation and Employers'
Liability: Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
(d) Minimum Limits of Insurance.
Consultant shall maintain limits no less than: (A) General Liability: $1,000,000
per occurrence for bodily injury, personal injury and property damage. If Commercial General
Liability Insurance or other form with general aggregate limit is used, either the general
aggregate limit shall apply separately to this Agreement/location or the general aggregate limit
shall be twice the required occurrence limit; (B) Automobile Liability: $1,000,000 per accident
for bodily injury and property damage; and (C) Workers' Compensation and Employer's
Liability: Workers' compensation limits as required by the Labor Code of the State of California.
Employers Liability limits of $1,000,000 per accident for bodily injury or disease.
(e) Professional Liability.
Consultant shall procure and maintain, and require its sub -consultants to procure
and maintain, for a period of five (5) years following completion of the Project, errors and
omissions liability insurance appropriate to their profession. Such insurance shall be in an
amount not less than $1,000,000 per claim, and shall be endorsed to include contractual liability.
(f) Insurance Endorsements.
The insurance policies shall contain the following provisions, or Consultant shall
provide endorsements on forms supplied or approved by the City to add the following provisions
to the insurance policies:
(g) General Liability.
The general liability policy shall be endorsed to state that. (A) the City, its
directors, officials, officers, employees, agents and volunteers shall be covered as additional
insured with respect to the Work or operations performed by or on behalf of the Consultant,
including materials, parts or equipment furnished in connection with such work; and (B) the
insurance coverage shall be primary insurance as respects the City, its directors, officials,
officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of
coverage excess of the Consultant's scheduled underlying coverage. Any insurance or self-
insurance maintained by the City, its directors, officials, officers, employees, agents and
volunteers shall be excess of the Consultant's insurance and shall not be called upon to
contribute with it.
(h) Automobile Liability.
The automobile liability policy shall be endorsed to state that: (A) the City, its
directors, officials, officers, employees, agents and volunteers shall be covered as additional
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insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any
auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is
responsible; and (B) the insurance coverage shall be primary insurance as respects the City, its
directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an
unbroken chain of coverage excess of the Consultant's scheduled underlying coverage. Any
insurance or self-insurance maintained by the City, its directors, officials, officers, employees,
agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon
to contribute with it.
(i) Workers' Compensation and Employers Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its
directors, officials, officers, employees, agents and volunteers for losses paid under the terms of
the insurance policy which arise from work performed by the Consultant.
0) All Coverages.
Each insurance policy required by this Agreement shall be endorsed to state that:
(A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days
prior written notice by certified mail, return receipt requested, has been given to the City; and (B)
any failure to comply with reporting or other provisions of the policies, including breaches of
warranties, shall not affect coverage provided to the City, its directors, officials, officers,
employees, agents and volunteers.
(k) Separation of Insureds; No Special Limitations.
All insurance required by this Section shall contain standard separation of
insureds provisions. In addition, such insurance shall not contain any special limitations on the
scope of protection afforded to the City, its directors, officials, officers, employees, agents and
volunteers.
(1) Deductibles and Self -Insurance Retentions.
Any deductibles or self -insured retentions must be declared to and approved by
the City. Consultant shall guarantee that, at the option of the City, either; (A) the insurer shall
reduce or eliminate such deductibles or self -insured retentions as respects the City, its directors,
officials, officers, employees, agents and volunteers; or (B) the Consultant shall procure a bond
guaranteeing payment of losses and related investigation costs, claims and administrative and
defense expenses.
(m) Acceptability of Insurers.
Insurance is to be placed with insurers with a current A.M. Best's rating no less
than A:VIII, licensed to do business in California, and satisfactory to the City;
(n) Verification of Coverage.
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Consultant shall furnish City with original certificates of insurance and
endorsements effecting coverage required by this Agreement on forms satisfactory to the City.
The certificates and endorsements for each insurance policy shall be signed by a person
authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the
City if requested. All certificates and endorsements must be received and approved by the City
before work commences. The City reserves the right to require complete, certified copies of all
required insurance policies, at any time.
3.2.12 Safety. Consultant shall execute and maintain its work so as to avoid
injury or damage to any person or property. In carrying out its Services, the Consultant shall at
all times be in compliance with all applicable local, state and federal laws, rules and regulations,
and shall exercise all necessary precautions for the safety of employees appropriate to the nature
of the work and the conditions under which the work is to be performed. Safety precautions as
applicable shall include, but shall not be limited to: (A) adequate life protection and lifesaving
equipment and procedures; (B) instructions in accident prevention for all employees and
subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks,
confined space procedures, trenching and shoring, equipment and other safety devices,
equipment and wearing apparel as are necessary or lawfully required to prevent accidents or
injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety
measures.
3.2.13 AceountinR Records. Consultant shall maintain complete and accurate
records with respect to all costs and expenses incurred under this Agreement. All such records
shall be clearly identifiable. Consultant shall allow a representative of City during normal
business hours to examine, audit, and make transcripts or copies of such records and any other
documents created pursuant to this Agreement. Consultant shall allow inspection of all work,
data, documents, proceedings, and activities related to the Agreement for a period of three (3)
years from the date of final payment under this Agreement.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including
authorized reimbursements, for all Services rendered under this Agreement at the rates set forth
in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation
shall not exceed Two Thousand Two Hundred and Fifty Dollars ($2,250), the equivalent of One
Hundred Twenty Five Dollars ($125) each for a total of Eighteen (18) entries without written
approval of City's Management Analyst II . Extra Work may be authorized, as described below,
and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Pavment of Compensation. Consultant shall submit to City a monthly
itemized statement which indicates work completed and hours of Services rendered by
Consultant. The statement shall describe the amount of Services and supplies provided since the
initial commencement date, or since the start of the subsequent billing periods, as appropriate,
through the date of the statement. City shall, within 45 days of receiving such statement, review
the statement and pay all approved charges thereon.
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3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any
expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreement, City may
request that Consultant perform Extra Work. As used herein, "Extra Work" means any work
which is determined by City to be necessary for the proper completion of the Project, but which
the parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization
from City's Representative.
3.4 Termination of Agreement.
3.4.1 Grounds for Termination. City may, by written notice to Consultant,
terminate the whole or any part of this Agreement at any time and without cause by giving
written notice to Consultant of such termination, and specifying the effective date thereof, at
least seven (7) days before the effective date of such termination. Upon termination, Consultant
shall be compensated only for those services which have been adequately rendered to City, and
Consultant shall be entitled to no further compensation. Consultant may not terminate this
Agreement except for cause.
3.4.2 Effect of Termination. If this Agreement is terminated as provided herein,
City may require Consultant to provide all finished or unfinished Documents and Data and other
information of any kind prepared by Consultant in connection with the performance of Services
under this Agreement. Consultant shall be required to provide such document and other
information within fifteen (15) days of the request.
3.4.3 Additional Services. In the event this Agreement is terminated in whole
or in part as provided herein, City may procure, upon such terms and in such manner as it may
determine appropriate, services similar to those terminated.
3.5 Ownership of Materials and Confidentiality.
3.5.1 Licensing of Intellectual Property. Consultant shall own and retain full
title to all Consultant's Intellectual Property Rights. City acknowledges that the Consultant's
Intellectual Property Rights shall remain the property of Consultant. City acknowledges that it is
not authorized to make any use of the Consultant's Intellectual Property Rights in any way and at
any time except as expressly provided for under this Agreement. City shall own and retain full
title to all City's Intellectual Property Rights and is the owner of all City Content. Consultant
acknowledges that the City's Intellectual Property Rights shall remain the property of City.
Consultant acknowledges that it is not authorized to make any use of the City's Intellectual
Property Rights in any way and at any time except as expressly provided for under this
Agreement. Consultant grants to City for the duration of the Term a non-exclusive worldwide
license of the Consultant's Intellectual Property Rights to the extent necessary for City to operate
and use the App during the Term. City may not sub -license, sub -contract or otherwise make
available the Consultant's Intellectual Property Rights to third parties without the prior written
permission of Consultant. City grants to Consultant for the duration of the Term a non-exclusive
worldwide license of the City's Intellectual Property Rights to the extent necessary for
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Consultant to perform the Services. For the avoidance of doubt, Consultant may not sub -license
or sub -contract the City's Intellectual Property Rights to third parties, save insofar as it is
necessary for Consultant to perform the Services. Each Party sub -licenses to the other such Third
Party Intellectual Property Rights as the other requires in order that the Deliverables are
performed in accordance with this Agreement and that all provisions of this Agreement are
fulfilled. For the avoidance of doubt, such Third Party Intellectual Property Rights shall not be
deemed to be transferred or assigned or otherwise affected by virtue of this Agreement or the
Parties' actions pursuant to this Agreement.
3.5.4 Indemnification. Consultant shall defend, indemnify and hold the City, its
directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the
indemnification provisions of this Agreement, for any alleged infringement of any patent,
copyright, trade secret, trade name, trademark, or any other proprietary right of any person or
entity in relation to this Agreement, and the Services set forth in this Agreement, including any
method, process, product, or concept specified or depicted.
3.5.5 Confidentialitv. All confidential information, either created by or
provided to Consultant in connection with the performance of this Agreement, shall be held
confidential by Consultant. All confidential information shall not, without the prior written
consent of City, be used or reproduced by Consultant for any purposes other than the
performance of the Services. Consultant shall not disclose, cause or facilitate the disclosure of
confidential information to any person or entity not connected with the performance of the
Services or the Project. Nothing furnished to Consultant that is otherwise known to Consultant
or is generally known, or has become known, to the related industry shall be deemed
confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any
publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper,
television or radio production or other similar medium without the prior written consent of City.
3.6 General Provisions.
3.6.1 Delivery of Notices. All notices permitted or required under this
Agreement shall be given to the respective parties at the following address, or at such other
address as the respective parties may provide in writing for this purpose:
Consultant:
City:
OTOCAST, LLC
72 Underhill Road
Ossining, NY 10562
Attn: Eric S. Feinstein
City of Palm Desert
73510 Fred Waring Dr.
Palm Desert, CA 92260
Attn: Deborah Glickman
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Such notice shall be deemed made when personally delivered or when mailed,
forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to
the party at its applicable address. Actual notice shall be deemed adequate notice on the date
actual notice occurred, regardless of the method of service.
3.6.2 Indemnification.
3.6.2.1 Scope of Indemnitv. To the fullest extent permitted by law,
Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees,
volunteers and agents free and harmless from any and all claims, demands, causes of action,
costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or
persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any
alleged acts, errors or omissions of Consultant, its officials, officers, employees, subcontractors,
consultants or agents in connection with the performance of the Consultant's Services, the
Project or this Agreement, including without limitation the payment of all consequential
damages, expert witness fees and attorneys' fees and other related costs and expenses.
Notwithstanding the foregoing, to the extent Consultant's Services are subject to Civil Code
Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code
Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or
willful misconduct of the Consultant.
3.6.2.2 Additional Indemnitv ObliEiations. Consultant shall defend, with
Counsel of City's choosing and at Consultant's own cost, expense and risk, any and all claims,
suits, actions or other proceedings of every kind covered by Section 3.6.2.1 that may be brought
or instituted against City or its directors, officials, officers, employees, volunteers and agents.
Consultant shall pay and satisfy any judgment, award or decree that may be rendered against
City or its directors, officials, officers, employees, volunteers and agents as part of any such
claim, suit, action or other proceeding. Consultant shall also reimburse City for the cost of any
settlement paid by City or its directors, officials, officers, employees, agents or volunteers as part
of any such claim, suit, action or other proceeding. Such reimbursement shall include payment
for City's attorney's fees and costs, including expert witness fees. Consultant shall reimburse
City and its directors, officials, officers, employees, agents, and/or volunteers, for any and all
legal expenses and costs incurred by each of them in connection therewith or in enforcing the
indemnity herein provided. Consultant's obligation to indemnify shall survive expiration or
termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received
by the City, its directors, officials officers, employees, agents, or volunteers.
3.6.3 Governinh Law: Government Code Claim Compliance. This Agreement
shall be governed by the laws of the State of California. Venue shall be in Los Angeles County.
In addition to any and all contract requirements pertaining to notices of and requests for
compensation or payment for extra work, disputed work, claims and/or changed conditions,
Consultant must comply with the claim procedures set forth in Government Code sections 900 et
seq. prior to filing any lawsuit against the City. Such Government Code claims and any
subsequent lawsuit based upon the Government Code claims shall be limited to those matters
that remain unresolved after all procedures pertaining to extra work, disputed work, claims,
and/or changed conditions have been followed by Consultant. If no such Government Code
claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as
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72500.00000\29213034.1
specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit
against the City.
3.6.4 Time of Essence. Time is of the essence for each and every provision of
this Agreement.
3.6.5 Citv's Rialit to Em0ov Other Consultants. City reserves right to employ
other consultants in connection with this Project.
3.6.6 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties.
3.6.7 Assignment or Transfer. Consultant shall not assign, hypothecate or
transfer, either directly or by operation of law, this Agreement or any interest herein without the
prior written consent of the City. Any attempt to do so shall be null and void, and any assignees,
hypothecates or transferees shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer.
3.6.8 Construction; References, Captions. Since the Parties or their agents have
participated fully in the preparation of this Agreement, the language of this Agreement shall be
construed simply, according to its fair meaning, and not strictly for or against any Party. Any
term referencing time, days or period for performance shall be deemed calendar days and not
work days. All references to Consultant include all personnel, employees, agents, and
subconsultants of Consultant, except as otherwise specified in this Agreement. All references to
City include its elected officials, officers, employees, agents, and volunteers except as otherwise
specified in this Agreement. The captions of the various articles and paragraphs are for
convenience and ease of reference only, and do not define, limit, augment, or describe the scope,
content or intent of this Agreement.
3.6.9 Amendment. Modification. No supplement, modification or amendment
of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.10 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, benefit,
privilege, or service voluntarily given or performed by a Party shall give the other Party any
contractual rights by custom, estoppel or otherwise.
3.6.11 No Third Partv Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.6.12 Invalidity; Severabilitv. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
3.6.0 Prohibited Interests. Consultant maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working solely
for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide employee working
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72500.00000\29213034.1
solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. Consultant further
agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic
Interest with the City's Filing Officer as required under state law in the performance of the
Services. For breach or violation of this warranty, City shall have the right to rescind this
Agreement without liability. For the term of this Agreement, no member, officer or employee of
City, during the term of his or her service with City, shall have any direct interest in this
Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.6.14 Cooperation. Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be necessary,
appropriate or convenient to attain the purposes of this Agreement.
3.6.15 Atoornev's Fees. If either party commences an action against the other
party, either legal, administrative or otherwise, arising out of or in connection with this
Agreement, the prevailing party in such litigation shall be entitled to have and recover from the
losing party reasonable attorney's fees and all other costs of such action.
3.6.16 Citv to Enter Agreement. Consultant has all requisite power and City to
conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants
that the individuals who have signed this Agreement have the legal power, right, and City to
make this Agreement and bind each respective Party.
3.6.17 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
3.6.18 Entire Agreement, This Agreement contains the entire Agreement of the
parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified by a writing signed by
both parties.
[SIGNATURES ON NEXT TWO PAGES]
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72500.00000\29213 034.1
CITY'S SIGNATURE PAGE
CITY OF PALM DESERT
Justin McCarthy
Interim City Manager
Approved as to Form:
Robert Hargreaves, Esq.
Best Best & Krieger, LLP
City Attorney
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72500 00000124213034.1
CONSULTANT'S SIGNATURE PAGE
OTOCAST, LLC
By:
Signature
Eric S. Feinstein
Chief Executive Officer
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72500.00000\29213034.1
EXHIBIT "A"
SCOPE AND SCHEDULE OF SERVICES
1. General
Otocast provides a mobile app platform for audio guides. These guides facilitate discovery of
recommended "points of interest" in any geography and encourage exploration of the surrounding
area,
In brief, the app allows visitors to:
• Choose a desired tour.
• See a list of stops (`points of interest') in a tour, both as a list and on an interactive map.
• Follow a prescribed path through the tour, or access points of interest in an order that best suits
their interests.
• Read about a point of interest, see photos, get directions and hear an audio clip.
• Share information about a point of interest via email or social media.
• Easily access web -based information about the tour, artists or other relevant information.
In addition, analytics are included to gain an understanding of how people use and interact with the app.
Some examples of available data include duration of sessions, listening times, and total access counts for
each tour and point of interest.
The following details are specific to the implementation of a guide for Application for the City of Pahn
Desert's 201712018 El Paseo Exhibition.
2. ROLES and RESPONSIBILITIES
The primary contact for Otocast shall be Eric Feinstein.
Email: erie.feinstein@otocast.com
Phone: 914-923-4626
The primary contact for City shall be Deborah S. Glickman, Management Analyst II.
Email: dglickman@cityofpalmdesert.org
Phone: 760-837-1664
3. APP CONTENT
The following information is required and may be provided to Otocast in an electronic format other than
PDF. Dropbox, Google Drive, WeTransfer, and email are acceptable methods for transferring the
required information.
a) Title of "point of interest" (e.g., sculpture/artist, titleladdress)
a. Text information
b) Specific location for each of the designated points of interest
a. Longitude / latitude if possible, else street address is acceptable.
c) Photos (at least 1, up to 5)
a. JPG format
d) Information about artists, sculptures, historic locations, , including websites, etc.
a. Text information may also contain embedded video from YouTube or Vimeo
e) Audio commentary - by a "voice of authority"
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72500.00000\29213034.1
a. Otocast will manage the acquisition of audio content.
b. City will notify associated artists that their participation is required for inclusion in the
audio guide.
c. City will provide contact information for all artists.
d. Otocast will coordinate with City to contact "voices of authority" to provide recording
information about the app implementation as well as instructions for recording audio
files.
e. In the event that a primary "voice of authority", cannot provide audio content, a City
representative will provide audio to accompany the entry in the Otocast app.
f. Audio may be provided in any format and will be converted to MP3 by Otocast for
inclusion in the app
f) City and Otocast will collaborate to determine the best presentation for the collection. Options
include:
a. Map -type (i.e., satellite view, street view, hybrid)
b. Push -pin color(s)
c. Route (i.e., designating a suggested path by connecting pushpin locations with a solid
line)
g) Otocast will host and manage the server -side data used to provide content to the mobile app.
a. Hosting services are provided by a 3`d-party, cloud -based solution, which provides a
99.99% uptime SLA around network, power and virtual server availability.
h) Otocast will provide features that will make the app accessible to users with disabilities, including
but not limited to:
a. Available transcription of the audio content for users.
b. Providing audio content describing or relaying all written or photographic content, or
providing written content and pictures captions that is compatible with screen reading
software.
c. Develop additional accessible features as recommended by Otocast or as requested by
City.
4. CHANGE REQUESTS
Content — Any content associated with the Application for the City of Palm Desert's 201712018 El Paseo
Exhibition (i.e., text, photos, audio, location) may be changed throughout the term of this agreement. To
request a change, an email documenting the specific of the change must be sent to the primary Otocast
contact.
Upon review of the requested change, Otocast will notify City of estimated work effort, complication, if
any, and an expected delivery date.
Upon delivery of the change, City will review the revised content and if approved, signify acceptance, in
writing, via email.
Otocast App — the core features and functionality of the Otocast app are available to all guides with the
app platform. Any changes to the app, to increase performance or enhance functionality will be
immediately available to all users upon release of the app in the associated App Stores.
City requests for specific functional enhancements will require analysis and a resulting fee schedule for
implementation. Depending on the nature of the enhancement, there may be a charge to the City.
5.ACCEPTANCE
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72500.00000\29213034.1
Upon receipt of all content and material associated with the Application for the Citv of Palm Desert's
201712018 El Paseo Exhibition, Otocast will make a preliminary version of the guide available for review
by City. Any changes must be communicated in writing and will be implemented within one business
day.
If no changes or modifications are required, City must communicate its acceptance via email and the
guide will be published to the app on a date specified by City. This date will become the "Anniversary
Date" for future notifications and maintenance and support purposes.
17 (BB&K: 6.16)
72500.00000\29213034.1
EXHIBIT "B"
PRICE AND PAYMENT SCHEDULE
L FEE STRUCTURE
Setup/confieuration
This includes everything needed to put the guide(s) together — it is priced per POI, regardless of how
many guides are created to manage the user experience.
Fee:
$125 per POI (for guides with 59 or fewer points of interest).
$100 per POI (for guides with 60 or greater points of interest).
Annual Maintenance
This begins one year after the guide is published in the app. As before, all changes and updates to
existing content are included.
The annual fee is based on the number of POT in the guide at the one-year anniversary date. For clarity, if
the initial guide contained 13 (ten) POI, and an additional two were added during the first year, the annual
maintenance would be based on the new total of 15 (fifteen) POI.
Fee:
$60 per POI maximum (for guides with 59 or fewer points of interest).
$50 per POI maximum (for guides with 60 or greater points of interest).
For details on "maximum", please see the following section "Sponsorship".
Sponsorship
If sponsors are included in the guide as additional POI, they will appear with a different push -pin color to
differentiate them from the primary POI, but they will receive the same set of core features (audio,
photos, text info). City may include as many sponsors as desired, but Otocast recommends maintaining a
high ratio of POI to sponsors which a) provides some exclusivity to the sponsors and b) doesn't confuse
the app users with many entries that are non-themed.
40% of received sponsorship fees will be credited against the annual maintenance.
2. FEE SCHEDULE
Projected Delivery
Deliverable
Date
Price
Comments
Initial deposit, 50% of setup fee, based on
agreed rate per point if interest,
Contract Signature
MM DD, 2016
$ XX
estimated at XX points.
ENTITY tour publicly available in
TBD, based on
Balance of setup/configuration fee. This
Otocast app. Setup and
availability of audio
date is to be known as the "anniversary
configuration
recording
$ XX
date".
Anniversary date,
Maximum support/maintenance fee,
Annual Maintenance
2017
$ XX
based on rate of $XX per point of interest.
18
(BB&K: 6:16)
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