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2020-23 USGS ShakeAlert - Early Warning System Evaluation LicenseMEMORANDUM DATE: TO: FROM: RE: Please list the Contracting Party / Vendor Name, type of agreement to be executed, including any change orders or amendments, and the type of services to be provided. Make sure to list any related Project No. and Project Name. Authority to execute this agreement is based upon: ___ Approved by City Council on ___________________________________________ ___ City Manager’s signing authority provided under the City’s Purchasing Police [Resolution No. 2019-021] for budget expenditures of $50,000 or less. ___ Department Director’s or Manager’s signing authority provided under the City’s Purchasing Policy [Resolution No. 2019-021] for budget expenditures of $15,000 and $5,000, respectively, or less. Procurement Method (one must apply): ___ Bid ___ RFP ___ RFQ ___ 3 written informal bids ___ Sole Source ___ Select Source ___ Cooperative Procurement Requesting department shall check and attach the items below as appropriate: ___ Agreement payment will be charged to Account No.: _____________________ ___ Agreement term: Start Date ________________ End Date ________________ ___ Amount of Agreement, Amendment, Change Order, etc.: $____________________ REMINDER: Signing authorities listed above are applicable on the aggregate Agreement amount, not individual Amendments or Change Orders! ___ Insurance certificates as required by the Agreement for Risk Manager approval Approved by: ______________________________ Date: _______________ ___ Bonds (originals)as required by the Agreement (Performance, Payment, etc.) ___ Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s) NOTE: Review the “Form 700 Disclosure for Consultants” guidance to determine if a Form 700 is required pursuant FPPC regulation 18701(2) ___ Business License No. __________________; Expires: __________________ ___ Requisition for a Purchase Order has been prepared (Agreements over $5,000) If City or 3rd party is damaged due to act or omission of USGC - City will file a Claim under Federal Tort Claims Act per CJPIA, September 21, 2020 Martha Mendez Zander Johnston ShakeAlert Earthquake Early Warning System Evaluation License Agreement not applicable ✔ ✔ ✔date of last signature by the Parties 36 months later ✔ MR - no insurance required 9/21/2020 SELECT/SOLE SOURCE JUSTIFICATION Select/Sole Source purchases may be made in a non-competitive manner only when in the best interest of the City and when the price is considered reasonable. Attach this form and other supporting documents if available, to the purchase Requisition. Complete responses must be provided for all of the following items. A. THE PURCHASE REQUEST IS RESTRICTED TO ONE VENDOR FOR THE REASONS STATED BELOW: 1. Why is the purchase of goods or services restricted to this vendor? Explain why the purchase cannot be competitively bid. Examples of Single/Sole Source procurements include, but are not limited to: •Compatibility: The commodity or service matches existing brand of equipment for compatibility. •Replacement Part: The item is a replacement part for a specific brand of existing equipment. •Emergency: URGENT NEED for the item or service does not permit soliciting competitive bids. 2. What market research was conducted to substantiate no competition, including evaluation of other items considered? Provide a narrative of your efforts to identify other similar goods/services, including a summary of how the department concluded that such alternatives are either inappropriate or unavailable. The names and addresses of suppliers contacted and the reasons for not considering them must be included OR an explanation of why the survey or effort to identify other goods/services was not performed. B.PRICE ANALYSIS: 3. How was the price offered determined to be fair and reasonable? Explain what the basis was for comparison. For example, if the item/service has been purchased in the past, compare historical pricing. Prepared By Approved By Sole or Select Source: Defined as any contract entered into without a competitive process, based on a justification that only one known source exists or that only one single supplier can fulfill the requirements. The requesting department is responsible for supplying written justification, approved by the department director or designee with signing authority for these purchases. S:\400 FINANCIAL & FISCAL\FINANCE FORMS ĂŶĚĞƌ:ŽŚŶƐƚŽŶ DĂƌƚŚĂDĞŶĚĞǌ dŚŝƐŝƐƚŚĞŽŶůǇǀĞŶĚŽƌŽĨĨĞƌŝŶŐƚŚŝƐƐǇƐƚĞŵ͘^ŚĂŬĞůĞƌƚŝƐƚŚĞĐŽƵŶƚƌǇ͛ƐĨŝƌƐƚƉƵďůŝĐ ĞĂƌƚŚƋƵĂŬĞĞĂƌůǇǁĂƌŶŝŶŐƐǇƐƚĞŵ͘dŚĞƐǇƐƚĞŵŵŽŶŝƚŽƌƐĨŽƌƐŝŐŶŝĨŝĐĂŶƚĞĂƌƚŚƋƵĂŬĞƐĂŶĚ ŝƐƐƵĞƐĂůĞƌƚƐƚŽǁĂƌŶƚŚĂƚƐƚƌŽŶŐƐŚĂŬŝŶŐŝƐĞǆƉĞĐƚĞĚŝŵŵŝŶĞŶƚůǇ͘/ŶƚŚĞhŶŝƚĞĚ^ƚĂƚĞƐ͕ƚŚĞ ^ŚĂŬĞůĞƌƚƐǇƐƚĞŵŝƐďĞŝŶŐĚĞǀĞůŽƉĞĚƚŽĐŽǀĞƌĂůŝĨŽƌŶŝĂ͕KƌĞŐŽŶ͕ĂŶĚtĂƐŚŝŶŐƚŽŶ͘ dŚŝƐĂŐƌĞĞŵĞŶƚŝƐǁŝƚŚƚŚĞŽƌŐĂŶŝǌĂƚŝŽŶǁŚŽŚŽƐƚƐƚŚĞƐĞŶƐŽƌƐƚŚĂƚŽƚŚĞƌĂƉƉůŝĐĂƚŝŽŶƐŽƌ ƉƌŽŐƌĂŵƐƵƐĞƚŽŝƐƐƵĞƚŚĞŝƌĂůĞƌƚƐ͘tŚĞŶĐŚĞĐŬŝŶŐŽƚŚĞƌŽƉƚŝŽŶƐƚŚĞh^'^ĂŶĚĂůŝĨŽƌŶŝĂ /ŶƚĞŐƌĂƚĞĚ^ĞŝƐŵŝĐEĞƚǁŽƌŬĂƌĞůŝƐƚĞĚĂƐƚŚĞĂŐĞŶĐǇǁŚŽŝƐƐƵĞƐƚŚĞĂůĞƌƚƐŽǁĞĐĂŶĂĐĐĞƐƐ ƚŚĞƐĂŵĞŝŶĨŽƌŵĂƚŝŽŶĚŝƌĞĐƚůǇĨƌŽŵƚŚĞƐŽƵƌĐĞ͘ dŚĞƌĞŝƐŶŽĐŽƐƚĂƐƐŽĐŝĂƚĞĚǁŝƚŚƚŚŝƐĂŐƌĞĞŵĞŶƚ͘ Template revision date: July 2020 OPA Review #____________ ShakeAlert Evaluation License Agreement, Application, and Statement of Work - 07/2020 Page 1 of 11 THIS AGREEMENT MAY CONTAIN CONFIDENTIAL AND PROPRIETARY INFORMATION. DO NOT DISSEMINATE OUTSIDE OF THE PARTIES TO THIS AGREEMENT. ShakeAlert® Earthquake Early Warning System California – Oregon – Washington Technical Engagement Program Evaluation License Agreement (Licensee completes sections marked in red) This Evaluation Phase License Agreement (including all attachments and appendices, collectively the “Agreement”) is entered into between the United States Geological Survey (“USGS”), a bureau of the U.S. Department of the Interior, having offices at 12201 Sunrise Valley Drive, Reston, Virginia, 20192, and the City of La Quinta, 78495 Calle Tampico, La Quinta, CA 92253 (“Licensee”) and is effective on the date of last signature below (the “Effective Date”). Each of USGS and Licensee may also be referred to as a “Party” and together, the “Parties.” BACKGROUND a. The USGS is authorized to develop a system capable of providing earthquake warning data to mitigate damage from earthquakes as established by the Disaster Relief Act (P.L. 93-288, popularly known as the Stafford Act) and the National Earthquake Hazard Reduction Program, as enacted by the Earthquake Hazards Reduction Act of 1977, 42 U.S.C. §§ 7701 et seq. The data feed in coordination with state and private entities is used to develop mechanisms to respond to the data to notify the public about the earthquake. The USGS, in partnership with the University of Washington, the California Institute of Technology, the University of California at Berkeley, and the University of Oregon is continuing efforts to develop and maintain this Earthquake Early Warning (EEW) system called ShakeAlert®. USGS’s earthquake reduction plan is to create an infrastructure where the public receives a notification or alert within seconds of the ShakeAlert system detecting an earthquake, thereby providing warning before destructive shaking arrives. b. This Agreement is entered under the authority of the Federal Technology Transfer Act of 1986, codified in 15 U.S.C. § 3710a(a)(2), as amended. The Licensee’s authority to enter into the Agreement is pursuant to the City of La Quinta’s Purchasing and Contracting Policy adopted by La Quinta City Council Resolution No. 2019-021. The purpose of this Agreement is to further the development of the ShakeAlert Materials by granting access to Licensee to evaluate the ShakeAlert Materials’ functionality and compatib ility with Licensee’s products and services. Licensee will provide USGS with feedback regarding the functionality and compatibility of the ShakeAlert Materials, as further detailed below. c. The ShakeAlert Materials licensed under this Agreement include real-time data streams that may include parameters derived from ground motion records, ground motion estimates, or earthquake source information including origin time, location, magnitude, fault rupture description, and duration. These information streams begin shortly after an earthquake is detected and update as the earthquake develops. d. The ShakeAlert Materials licensed under this Agreement include an application, the UserDisplay demonstration module that may run on a LICENSEE’S computer. The UserDisplay presents visual and audio information about an earthquake, and when and how shaking may arrive at the user’s location. No user actions are permitted based on outputs of the UserDisplay module or from the real-time data stream. Failure to comply may result in the termination of this agreement. In consideration of the mutual promises set forth herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. License. 1.1 Grant. Template revision date: July 2020 OPA Review #____________ ShakeAlert Evaluation License Agreement, Application, and Statement of Work - 07/2020 Page 2 of 11 THIS AGREEMENT MAY CONTAIN CONFIDENTIAL AND PROPRIETARY INFORMATION. DO NOT DISSEMINATE OUTSIDE OF THE PARTIES TO THIS AGREEMENT. a. USGS grants Licensee a non-exclusive, revocable (as provided in Section 11.2, Termination), non-transferable (except as expressly permitted in this Agreement), royalty-free license to access ShakeAlert Materials, for the limited purpose of the LICENSEE’S internal evaluatio n of the real-time ShakeAlert data stream only, subject to this Agreement’s terms and conditions. 1.2 License Restrictions. a. Licensee will not PUBLICLY RELEASE, DISTRIBUTION, or RESPOND, whether public or internal response, to distributed ShakeAlert Materials. b. Licensee will not advertise, sell, copy, modify, reverse engineer, publish, rent, lease, loan, sublicense, or distribute ShakeAlert Materials or derivative works based on ShakeAlert Materials to the public or any other third-party without the prior written consent of USGS. c. Access to the ShakeAlert Materials will be solely governed by terms and conditions of this Agreement; d. Licensee, including its employees and (or) USGS approved Licensee third-party, will not interfere with or disrupt USGS or ShakeAlert Materials servers or networks, and will comply with the USGS requirements, procedures, policies, and regulations for the ShakeAlert servers or networks, as set forth on Attachment B (License to Operate Amendments). Upon USGS written consent of any Licensee third-party, Licensee will take all reasonable steps, including flow down provisions, to ensure that terms required by Licensee under this agreement are passed to its contactors to the extent necessary for the performance of its contractor’s work. e. Unless otherwise agreed by USGS in writing, Licensee is limited to 3 concurrent connections to ShakeAlert servers. The users of each connection are listed in Appendix A. 1.3 No Other Restrictions. Nothing in this Agreement: a. requires Licensee to use any ShakeAlert Materials in Licensee products or services; b. restricts Licensee from using content it obtains elsewhere; or c. restricts Licensee from exercising any rights it has at law (including under the U.S. Copyright Act). 2. Confidential Information. 2.1. Confidential Information. “Confidential Information” means information that one Party discloses to the other Party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that: a. becomes public through no fault of the receiving Party; b. is rightfully given to the receiving Party without a confidentiality obligation; c. is independently developed by the receiving Party without reference to or use of information provided under this Agreement; Template revision date: July 2020 OPA Review #____________ ShakeAlert Evaluation License Agreement, Application, and Statement of Work - 07/2020 Page 3 of 11 THIS AGREEMENT MAY CONTAIN CONFIDENTIAL AND PROPRIETARY INFORMATION. DO NOT DISSEMINATE OUTSIDE OF THE PARTIES TO THIS AGREEMENT. d. required to be disclosed as a matter of court order or law, including but not limited to disclosure required pursuant to the United States Freedom of Information Act (5 U.S.C. § 552 et seq.) and the California Public Records Act (Cal. Gov. Code § 6250 et seq.); or e. permitted to be disclosed per the terms of this agreement. Subject to the above, Confidential Information shall include: x For the Licensee: o Non-public information related to Licensee’s products and services, including metrics and findings related to Licensee’s use of the ShakeAlert Materials; and o Information related to Licensee’s operations, products, and services provided in the Evaluation Agreement. x For USGS: NONE, unless described below 2.2. Obligations. The recipient will not disclose the other party’s Confidential Information, except to employees, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will use the other party’s Confidential Information only to exercise rights and fulfill obligations under this Agreement while using reasonable care to protect the Confidential Information. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the other party, if permitted by law. 2.3. Public Statements a. Subject to Section 2.3.b., public statements or commercial advertisements issued by Licensee after verification shall not refer to this Agreement in a manner which states or implies that the products or services of Licensee are endorsed by the Government, or are considered by the Government to be superior to other products or services. This restriction is intended to avoid the appearance of preference by the Government toward any product or service. The Licensee may ask USGS to make a determination as to the propriety of promotional material. b. Licensee may refer to this Agreement in any public statements or commercial advertisements using language agreed upon by both Parties. 3. Intellectual Property and Endorsements. 3.1 No Endorsement. USGS does not directly or indirectly endorse any product or service provided, or to be provided, by Licensee in connection with this Agreement. 3.2 Retention of Rights. As between the parties: a. USGS retains all rights in the ShakeAlert Materials and USGS’ patents, trademarks, logos, and domain names; and b. Licensee retains all rights in Licensee’s products and services independently made. Template revision date: July 2020 OPA Review #____________ ShakeAlert Evaluation License Agreement, Application, and Statement of Work - 07/2020 Page 4 of 11 THIS AGREEMENT MAY CONTAIN CONFIDENTIAL AND PROPRIETARY INFORMATION. DO NOT DISSEMINATE OUTSIDE OF THE PARTIES TO THIS AGREEMENT. 3.3 Trademarks. Licensee, including its employees, third-parties, and agents, will not use any trademarks, domain names, social media account names or handles, any independent development, or seek any trademark registration that are the same or confusingly similar to any USGS trademarks including its tradename(s), logo(s), brand(s), or seal(s), whether registered or not, without first obtaining written permission from USGS. Permission to use USGS’ trademark(s) will not be unreasonably withheld, so long as Licensee’s use does not state or imply any endorsement, suggest any other relationship than the one established by the license or a pending agreement with the USGS, or that the mark is not placed on or in connection with any Licensee or third-party goods. Furthermore, Licensee agrees to use due diligence when selecting or using domain names, a trademark or seeking state or Federal trademark rights related, in any way, to this License Agreement, the ShakeAlert Materials, or for any good or service offered by Licensee, so that reasonable efforts are made to ensure that any of Licensee’s trademark do not include, or are confusingly similar to, the names, trademarks, official insignia, or logos of the USGS. 3.4 Copyrights. By virtue of this Agreement and Licensee’s relationship with USGS, Licensee will be granted access to subject matter that may qualify for copyright protection in accordance with 17 U.S.C. §102. Without the prior written consent of USGS, Licensee shall not claim, file for, or otherwise acquire an interest in any copyrights in the ShakeAlert Materials, including software or any other material that Licensee has access to by virtue of this Agreement. 3.5 Patents. Licensee by virtue of its use of the ShakeAlert Materials under this Agreement may generate patentable materials and (or) trade secrets of the Licensee. If Licensee uses federal funding and the ShakeAlert Materials provided under this Agreement to develop a patentable invention, Licensee grants to the USGS a perpetual, worldwide, nonexclusive, nontransferable, irrevocable, royalty-free license to practice or have practiced such invention, throughout the world by or on behalf of the Government for research or other Government purposes. 4. Maintenance and Support. 4.1. Updates. Subject to Section 4.2 (Notice): a. USGS is under no obligation to provide maintenance for the ShakeAlert Materials. If, in its sole discretion, USGS makes an update available to Licensee, it will be deemed incorporated into the ShakeAlert Materials and subject to this Agreement. b. USGS reserves the right to make any and all changes to ShakeAlert Materials that it deems necessary to maintain and improve the function of the system. 4.2. Notice. USGS will use best efforts to: a. provide at least 14 days’ advance written notice to Licensee of any of any changes, fixes, patches, or updates that it makes to ShakeAlert API; and b. notify Licensee within 24 hours of any unexpected disruptions or malfunctions that occur and affect the ShakeAlert Materials. 5. Feedback. Template revision date: July 2020 OPA Review #____________ ShakeAlert Evaluation License Agreement, Application, and Statement of Work - 07/2020 Page 5 of 11 THIS AGREEMENT MAY CONTAIN CONFIDENTIAL AND PROPRIETARY INFORMATION. DO NOT DISSEMINATE OUTSIDE OF THE PARTIES TO THIS AGREEMENT. As consideration for this Agreement, the Licensee will provide suggestions and feedback regarding the ShakeAlert Materials, including, but not limited to, functionality, design, usability, bugs, and results of any testing performed by Licensee on a quarterly basis or upon the request by the USGS. The USGS is free to share feedback not classified as proprietary or confidential with ShakeAlert Partners to use and incorporate any feedback in USGS’ products, without payment of royalties or other consideration to the Licensee, so long as adoption by USGS does not infringe any active patents, copyrights, or trade secret of the Licensee. 6. Passwords and Security. Licensee is required to register as an authorized user for access to ShakeAlert Materials. Registration will include a username, password and contact information (“User Credentials”). For convenience, usernames will reasonably reflect the name of the Licensee. User Credentials must be kept accurate and up to date. Licensee is responsible for maintaining the confidentiality of its User Credentials and will not share its User Credentials with anyone or use the User Credentials of others. While USGS will use its best efforts to provide advance notice, USGS reserves the right to disable, delete, or change Authorized User Credentials at any time if USGS reasonably believes that doing so is in the best interests of the government or serves the public’s interest , immediately without any advance notice. 7. Attribution. If Licensee publishes research or otherwise publicly discloses information related to the ShakeAlert Materials that is permitted by this Agreement, then Licensee upon written approval by USGS, shall give appropriate credit to the USGS as the source of the ShakeAlert Materials. Licensee is permitted to use the name, USGS, in black and white, non-stylized text for limited purpose of USGS attribution in a scientific publication. For use of actual “USGS” mark, Licensee shall follow USGS Office of Communications and Publishing recommendations regarding appropriate format. Licensee shall send notice to USGS as indicated in Section 17 (Notices) of this Agreement for file and requested color. Guidance may also be found at https://www.usgs.gov/information- policies-and-instructions/usgs-visual-identity-system. 8. Prohibition on the Distribution of Warning Signals. Licensee is not authorized to transmit messages, notifications, alerts, or warnings derived from the ShakeAlert Materials to unauthorized clients or to the public under this Agreement. 9. Disclaimers; Warranties; Limitation of Liability. 9.1. Disclaimers. During the evaluation phase, ShakeAlert Materials are licensed under this Agreement for the purpose of continued research and development. The Parties make no express or implied warranty as to any matter whatsoever, including the conditions of the research or any invention or ShakeAlert Material, whether tangible or intangible, made or developed under or outside the scope of this Agreement, or the ownership, merchantability, or fitness for a particular purpose of any research, invention or material, or that a technology used by a Party in connection with the ShakeAlert Materials, or the ShakeAlert Materials, do not infringe any third-party patent rights. Furthermore, USGS does not warrant that the ShakeAlert Materials will always function, in all geographic areas, without interruption, be error-free or that any errors will be corrected. All ShakeAlert Materials are provided “AS IS” and without any warranty, express, implied, or otherwise, regarding its accuracy or performance. Any reliance upon ShakeAlert Materials is at the express and sole risk of the Licensee, including its employees, assigns, and insurers. Licensee shall provide the following disclaimer to all Clients that receive and distribute data about earthquakes: Template revision date: July 2020 OPA Review #____________ ShakeAlert Evaluation License Agreement, Application, and Statement of Work - 07/2020 Page 6 of 11 THIS AGREEMENT MAY CONTAIN CONFIDENTIAL AND PROPRIETARY INFORMATION. DO NOT DISSEMINATE OUTSIDE OF THE PARTIES TO THIS AGREEMENT. LICENSEE MAKES NO WARRANTY WITH RESPECT TO ANY TECHNOLOGY, GOODS, OR SERVICES USING THE DATA AND HEREBY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 9.2. Licensee Warranties. The Licensee warrants that: a. it has authority to enter into this Agreement; b. the signatory has the authority to sign on behalf of the Licensee; and c. as of the Effective Date and to the best of its knowledge, the Licensee is not debarred or suspended by any agency of the U.S. government. 9.3. USGS Warranties. USGS warrants that it has and will retain all necessary rights to grant the licenses in this Agreement and deliver ShakeAlert Materials to Licensee during the term of this Agreement. 9.4. Liability. a. Liability. In this Section 10.4, “Liability” means any liability, whether under contract, tort (including negligence), or otherwise and whether or not foreseeable or contemplated by the parties. b. Limited Liabilities. Subject to Subsection (c) (Unlimited Liabilities) and any amendment, neither Party will have any Liability arising out of or relating to this Agreement or the ShakeAlert Materials for: i. lost revenues, profits, savings, or goodwill; ii. indirect or consequential losses; iii. special or incidental losses; or iv. punitive damages. c. Unlimited Liabilities. Nothing in this Agreement excludes or limits either party’s Liability for: i. death or personal injury resulting from its negligence or the negligence of its employees or agents; ii. willful misconduct or a lack of good faith; iii. fraud or fraudulent misrepresentation; iv. breach of Section 2 (Confidential Information); or v. matters for which liability cannot be excluded or limited under applicable law. 10. Independent Development. The USGS understands that the Licensee may currently or in the future develop information internally or receive information from other parties that may be similar to the delivered ShakeAlert Materials. Accordingly, nothing in this Agreement will be construed as a representation or inference that the Licensee will not develop Template revision date: July 2020 OPA Review #____________ ShakeAlert Evaluation License Agreement, Application, and Statement of Work - 07/2020 Page 7 of 11 THIS AGREEMENT MAY CONTAIN CONFIDENTIAL AND PROPRIETARY INFORMATION. DO NOT DISSEMINATE OUTSIDE OF THE PARTIES TO THIS AGREEMENT. products, or have products developed for it, that compete with or are similar to the ShakeAlert Materials. Licensee shall ensure that no Independent Development breaches the terms of this Agreement. 11. Term and Termination. 11.1. Term. The term of this Agreement will commence on the Effective Date and continue for a period of 36 months from the last date of signature by the Parties. 11.2. Termination. Either Party may terminate this Agreement for any reason with 30 days prior written notice. However, if USGS reasonably believes that immediate termination is in the best interests of the government or serves the public’s interest, then USGS may terminate this Agreement immediately without any advance notice. 11.3. Effects of Termination. Upon termination: a. Licensee will stop utilizing ShakeAlert Materials (subject to any wind-down provisions agreed to by the parties in writing) and return to USGS or destroy all copies of the ShakeAlert Materials in accordance with instructions from USGS; and b. Within ten (10) business days of receipt of a Party’s written request, and at the second Party’s option, the second Party will use commercially reasonable efforts to return or destroy all tangible Confidential Information of the first Party, including, but not limited to, all electronic files, documentation, notes, plans, drawings, and copies thereof. 12. Governing Law. This Agreement shall be governed by and interpreted in accordance with United States Federal Law. Prior to seeking a court of competent jurisdiction for any outstanding dispute, the parties agree to resolve such matters through submission of their dispute to USGS’ and Licensee’s respective signatories for an agreed resolution between the parties. 13. Assignment. This license and the rights or obligations of any Party hereunder may not be assigned or otherwise transferred by any Party without the written consent by the appropriate delegated official of the other Party. USGS’ consent shall not be unreasonably withheld where: a. the assignee has agreed in writing to be bound by the terms of this Agreement; b. the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; c. the assigning party has provided notice of the assignment to the other party; and d. any Licensee assignee has completed all training required by USGS regarding the use of the ShakeAlert Materials. If assigned in accordance with this Section, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assignees. Any other attempt to assign is void. 14. Export Controls and Special 301 Report. Template revision date: July 2020 OPA Review #____________ ShakeAlert Evaluation License Agreement, Application, and Statement of Work - 07/2020 Page 8 of 11 THIS AGREEMENT MAY CONTAIN CONFIDENTIAL AND PROPRIETARY INFORMATION. DO NOT DISSEMINATE OUTSIDE OF THE PARTIES TO THIS AGREEMENT. 14.1. Export Control. Licensee agrees to comply with U.S. export laws and regulations including obtaining licenses as needed from the Bureau of Industry and Security for export and re-export(s). 14.2. Special 301 Report. Licensee further agrees to not allow any foreign personnel that is engaged by the Licensee as a contractor, consultant, grantee, or third-party collaborator (“Foreign Contractor”) whose country of origin is listed on the current annual Office of the U.S. Trade Representative (USTR) Special 301 Report (Report) to access the ShakeAlert API (e.g., by providing ShakeAlert API developer credentials or an API access key to the Foreign Contractor) for the performance of any work under this Agreement. The Report must be consulted annually throughout the term of the Agreement for compliance. For avoidance of doubt, employees of a United States Licensee are not Foreign Contractors, and this Section 14.2 does not apply to them. 15. Severability. If a provision of this Agreement is found illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby and such provision will be ineffective only to the extent of such invalidity, illegality, or unenforceability. 16. Notices. All notices of termination or breach must be in writing and addressed to the other party’s Legal Department. Additionally, termination and (or) breach notices from Licensee to USGS must also be addressed to the USGS Primary Contact. All other notices must be in writing and addressed to the other party’s primary contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable). USGS Primary Contact: Douglas Given USGS Earthquake Early Warning Coordinator 525 S. Wilson Ave Pasadena, CA 91106 626-583-7812 doug@usgs.gov USGS Agreements Department: Office of Policy and Analysis Technology Transfer 12201 Sunrise Valley Drive Mail Stop 153 Reston, VA 22033 (703) 684-7550 Gs-a_opa@usgs.gov Licensee’s Primary Contact: Zander Johnston Sr. Emergency Management Coordinator 78495 Calle Tampico La Quinta, CA 92253 zjohnston@laquintaca.gov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igitally signed by Martha Mendez DN: cn=Martha Mendez, o=City of La Quinta, ou=Community Resources, email=mmendez@laquintaca.gov, c=US Date: 2020.09.23 10:50:59 -07'00' 7HPSODWHUHYLVLRQGDWH-XO\ 23$5HYLHZBBBBBBBBBBBB 6KDNH$OHUW(YDOXDWLRQ/LFHQVH$JUHHPHQW$SSOLFDWLRQDQG6WDWHPHQWRI:RUN3DJHRI 7+,6$*5((0(170$<&217$,1&21),'(17,$/$1'35235,(7$5<,1)250$7,21 '2127',66(0,1$7(2876,'(2)7+(3$57,(6727+,6$*5((0(17 3ULQWHG1DPHRI6LJQDWRU\ 3XEOLF6DIHW\0DQDJHU&LW\RI/D4XLQWD BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB 7LWOHDQG1DPHRI2UJDQL]DWLRQ BBBBBBBBBBBBBBBBBBBBBBBBBBBPPHQGH]#ODTXLQWDFDJRYBBBBBBBBBB 3KRQH(PDLO 86*6 BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB 6LJQDWXUH 'DWH BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB 3ULQWHG1DPHRI6LJQDWRU\ BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB 7LWOHDQG1DPHRI2UJDQL]DWLRQ BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB 3KRQH(PDLO STEPHEN HICKMAN Digitally signed by STEPHEN HICKMAN Date: 2020.10.02 14:37:55 -07'00' Template revision date: July 2020 OPA Review #____________ ShakeAlert Evaluation License Agreement, Application, and Statement of Work - 07/2020 Page 11 of 11 THIS AGREEMENT MAY CONTAIN CONFIDENTIAL AND PROPRIETARY INFORMATION. DO NOT DISSEMINATE OUTSIDE OF THE PARTIES TO THIS AGREEMENT. Appendix A List of Users for Connections Zander Johnston, Sr. Emergency Management Coordinator, zjohnston@laquintaca.gov Martha Mendez, Public Safety Manager, mmendez@laquintaca.gov Lisa Chaudhry, Administrative Technician, lchaudhry@laquintaca.gov INSURANCE INFO WAS REQUESTED & RESPONSE FROM USGS: The United States Government does not maintain any private insurance, but rather is self-insured to the extent provided for under the Federal Tort Claims Act, 28 U.S.C §§ 2671-80. The Federal Tort Claims Act provides the exclusive remedy for any party who may be injured as the result of an action of a Federal Employee and any claim for damages arising from the acts of a Federal Employee. This Act applies to all agencies of the United States Department of the Interior (DOI), including the U.S. Geological Survey (USGS). By law, in the absence of express statutory authority to the contrary, Federal appropriations are not available for the purchase of commercial liability insurance. The USGS has found no such statutory authority applicable to this situation. The Congress, however, has provided liability protection through various laws. For example, claims against the Federal Government for the negligence of its employees acting within the scope of employment can be filed under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. To the extent authorized by applicable federal law, including the Federal Tort Claims Act, the USGS will be liable for the negligent or wrongful acts or omissions of its officers or employees while acting within the scope of their office or employment. If you require an official memo with the above statement, please let me know. Thanks. ______________________________ Esther Eng Technology Transfer Officer Office of Policy and Analysis U.S. Geological Survey (703) 648-7550 RESPONSE FROM JPIA: This is acceptable. If the city is damaged (or a third party is damaged and files a claim against the city) due to an act or omission of the USGS or other federal government agency, your recourse is to file a claim under the Federal Tort Claims Act. Thanks