Santa Barbara Metropolitan Transit District AIM System MASTER AGREEMENT with CLEVER DEVICES LTD. THIS AGREEMENT is entered into by and between Santa Barbara Metropolitan Transit District, an incorporated transit district under Sections 95000, et seq. of the California Public Utilities Code ("MTD"), and Clever Devices Ltd., a New York corporation ("Contractor"), at Santa Barbara, California, as of the later date set forth below the signatures executing this Agreement. WHEREAS: A. MTD desires to engage Contractor for acquisition, implementation, and maintenance of various Intelligent Transportation Systems (ITS) which are collectively referred to as the AVL & ITS Management System or the AIM System (the "Project"); B. Contractor represents that it has the knowledge and experience to carry out the Project, and desires to carry out the Project pursuant to the terms and conditions hereof, and; C. Based upon the representations made by Contractor, MTD desires to retain the services of Contractor to carry out the aforesaid Project, upon the within terms and conditions. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: 1. Effect of Recitals. The foregoing recitals are hereby made express provisions of this Agreement. 2. FTA Provisions. Not applicable to this agreement. 3. Public Works Provisions. This Project is subject to the State of California Provisions for Public Works Projects, which is attached hereto as Exhibit A and incorporated herein by this reference. 4. Technical Specifications. MTD issued on October 2, 2013, the AVL & ITS Management (AIM) System Specifications (the "Technical Specifications") contained in the Request for Proposals for AVL & ITS Management Systems (AIM). Such Technical Specifications have been modified through MTD addenda and discussion between the parties resulting in a final version dated July 2, 2014, a true copy of which is attached hereto as Exhibit B and incorporated herein by this reference. 5. Other Agreement Exhibits. The following documents are included as exhibits to this Agreement and incorporated herein by these references. a. Contractor submitted to MTD on December 4, 2013, a Proposal to carry out the Project. Such Proposal, excluding the Price Proposal forms, is attached hereto as Exhibit G. b. Contractor developed a Compliance Matrix dated July 2, 2014, that further clarifies how Contractor’s Proposal shall comply with the Technical Specifications which is attached hereto as Exhibit C. c. Contractor submitted to MTD a Best & Final Price Proposal (the “Price Proposal”) dated May 22, 2014, that specifies the total contract price for carrying out the Project which is attached hereto as Exhibit F (also see paragraph 7 Contract Price). (Note: the Price Proposal detail sheets contain proprietary Contractor information that is considered confidential. Only the Price Proposal Summary Sheet included in the Price Proposal is considered public information). d. Based upon a difference in the interpretation between the parties of the Technical Specifications and the Price Proposal, MTD and Contractor agreed to an increase of $75,000 to the contract price specified in Exhibit F. A copy of the e-mail between the parties dated June 6, 2014, authorizing the price increase is attached hereto as Exhibit E. e. MTD and Contractor agree to the Milestone Progress Payment Schedule dated July 3, 2014, which is attached hereto as Exhibit D (also see paragraph 8 Payment). AIM System Page 1 of 9 Version 201407031858 MTD Master Agreement Clever Devices Ltd. f. Contractor submitted to MTD on June 16, 2014, an End User Software License Agreement containing the terms and conditions that Contractor grants to MTD licenses to use the Contractor’s software products for a period of five years which is attached hereto as Exhibit H. g. Contractor submitted to MTD on June 13, 2014, a Standard Maintenance Agreement containing the terms and conditions of the three year warranty on all Contractor-provided hardware products and five years of maintenance service on all Contractor-provided software products which is attached hereto as Exhibit I. 6. Order of Control. All work and services shall be performed according to and controlled by the terms and provisions of this Agreement and the exhibits attached hereto. In the event of any conflict between the contract documents, the following order of control shall prevail: MTD Master Agreement; followed by Exhibits A through I in descending order (i.e., A controls B through I, B controls C through I, etc.). 7. Contract Price. Contractor shall carry out the Project for a total fixed price of $3,574,959.16 which is in accordance with Exhibits D, E, and F. Such price includes all specified warranty, license, and maintenance fees. 8. Payment. Contractor shall submit invoices to MTD in accordance with the Milestone Progress Payment Schedule (Exhibit D). Payment from MTD shall be made to Contractor no later than thirty (30) days after receipt of a valid invoice, which shall be sent to: Santa Barbara MTD, Attn: Brad Davis, 550 Olive Street, Santa Barbara, CA 93101. 9. Taxes. MTD is exempt from the payment of Federal Excise and Transportation taxes. Unless specified otherwise in the Agreement, MTD is subject to applicable California Sales Tax for Santa Barbara County which shall have been included in the Contractor’s proposal price and shall be included on the Contractor’s invoice. 10. Project Schedule. Contractor agrees to complete the project in 18 months following issuance by MTD of the Notice to Proceed, which is in accordance with Section 1.3 of the Technical Specifications. Contractor shall submit to MTD a detailed project schedule which shall be subject to review and approval by MTD which is in accordance with Section 8.3.1 of the Technical Specifications. 11. Delivery & Freight. Unless specified otherwise in the Technical Specifications, any item provided under this Agreement shall be delivered FOB Santa Barbara to 550 Olive Street, Santa Barbara, CA 93101. Any Project freight and delivery charges shall have been already included in the Contractor’s proposal price and shall not be paid otherwise by MTD. 12. Title & Risk of Loss. The Contractor shall have title to and bear the risk of any loss of or damage to any item provided hereunder until delivered and, if applicable pursuant to this Agreement or standard industry practice, installed or otherwise set up for usage. Upon such delivery and applicable installation and setup, title shall pass from the Contractor to MTD, and the Contractor's responsibility for loss or damage shall cease, except for loss or damage resulting from the Contractor's negligence. Such passing of title shall not constitute acceptance of an item by MTD. The Contractor shall further warrant that the title to any item provided hereunder is free from all claims, encumbrances and liens. 13. Damages. All losses or damages arising from any unforeseen circumstances, either natural or artificial, which may be encountered by the Contractor during the performance of the Project under this Agreement shall be sustained solely by the Contractor. This provision shall also apply to losses or damages resulting from any act or omission not authorized by this Agreement on the part of the Contractor or any agent or person employed by the Contractor. 14. Defective, Damaged or Noncompliant Work. Any items, services, work or systems acquired pursuant to this Agreement found to be defective, damaged or non-compliant with the Technical Specifications at the time of delivery or installation shall be replaced by the Contractor without additional cost to MTD. If the Contractor should fail to promptly comply with any order to replace or repair any defective items, services, work or systems, MTD shall have the authority to deduct the cost of such replacement or repair from any compensation due or to become due to the Contractor. Nothing in this section shall limit or restrict any warranty provisions of this Agreement or any exhibits hereto. 15. Acceptance. Terms of Acceptance are contained in the Technical Specifications. AIM System Page 2 of 9 Version 201407031858 MTD Master Agreement Clever Devices Ltd. 16. Warranty. Pursuant to the warranty provisions contained in the Technical Specifications (Exhibit C) and the Standard Maintenance Agreement (Exhibit I), the Contractor shall warrant to MTD that, for the specified period after MTD's full acceptance of items, services, work or systems, each shall conform with the requirements hereof and be free of defects. The rights of MTD hereunder are in addition to, and not limited by, the Contractor's standard warranties. Acceptance of items, services, work or systems by MTD, or payment therefor, shall not relieve the Contractor of its obligations thereunder. 17. Changes. Any changes or modifications to this Agreement must be in writing, and agreed to by both parties. 18. Insurance. a. Contractor’s Insurance Representations to MTD. i. It is expressly understood and agreed that the insurance coverages required herein: A. represent MTD’s minimum requirements and are not to be construed to void or limit Contractor’s indemnity obligations as contained in this Agreement nor represent in any manner a determination of the insurance coverages Contractor should or should not maintain for its own protection; and B. are being, or have been, obtained by Contractor in support of Contractor’s liability and indemnity obligations under this Agreement. Irrespective of the requirements as to insurance to be carried as provided for herein, the insolvency, bankruptcy, or failure of any insurance company carrying insurance of Contractor, or the failure of any insurance company to pay claims accruing, shall not be held to affect, negate, or waive any of the provisions of this Agreement. ii. Failure to obtain and maintain the required insurance shall constitute a material breach of, and default under this Contract. If Contractor shall fail to remedy such breach within five (5) business days after written notice by MTD, Contractor will be liable for any and all costs, liabilities, damages and penalties resulting to MTD from such breach, unless a written waiver of the specific insurance requirement(s) is provided to Contractor by MTD. In the event of any failure to Contractor to comply with the provisions of this portion of the Agreement, MTD may, without in any way compromising or waiving any right or remedy at law or in equity, on notice to Contractor, purchase such insurance, at Contractor’s expense, provided that MTD shall have no obligation to do so and if MTD shall do so, Contractor shall not be relieved of or excused from the obligation to obtain and maintain such insurance amounts and coverages. b. Conditions Affecting All Insurance Required Herein. i. Cost of Insurance. All insurance coverage shall be provided at Contractor’s sole expense. ii. Maintenance of Insurance. All insurance coverage shall be maintained in effect with limits not less than those set forth below at all times during the term of this Agreement. iii. Status and Rating of Insurance Company. All insurance coverage shall be written through insurance companies admitted to do business in California and with a Best’s Financial Strength Rating of A- or better, as shown in the on-line version of Best’s Rating & Criteria Center. iv. Restrictive, Limiting, or Exclusionary Endorsements. All insurance coverage shall be provided to Contractor Parties in compliance with the requirements herein and shall contain no endorsements that restrict, limit, or exclude coverage in any manner without the prior express written approval of MTD. v. Limits of Liability. The limits of liability may be provided by a single policy of insurance or by a combination of primary and umbrella policies, but in no event shall the total limits of liability available for any one occurrence or accident be less than the amount required herein. vi. Notice of Cancellation, Nonrenewal, or Material Reduction in Coverage. In the event of cancellation, nonrenewal, or material reduction in coverage affecting the certificate holder, thirty (30) days prior written notice shall be given to the certificate holder by certified mail, return receipt requested, except in the event of cancellation for nonpayment, in which event fifteen (15) days prior written notice shall be given. If insurer will not include in its coverage such written notifications, it shall be incumbent upon Contractor to comply with such written notification requirements. vii. Additional Insured Status. Additional insured status shall be provided in favor of MTD and its officers, employees and agents, including consultants, on all liability insurance required herein except AIM System Page 3 of 9 Version 201407031858 MTD Master Agreement Clever Devices Ltd. workers’ compensation/employer’s liability and the certificate of insurance shall reflect same. Such additional insured coverage shall be primary to and shall seek no contribution from all insurance available to MTD, with MTD’s insurance being excess, secondary, and noncontributing. viii. Waiver of Subrogation. All insurance coverage carried by Contractor required herein shall provide a waiver of subrogation in favor of MTD for all loss covered by such insurance, and Contractor waives all rights of action against MTD for such loss. ix. Primary Liability. All insurance coverage required herein shall be primary to and shall seek no contribution from all insurance available to MTD, with MTD’s insurance being excess, secondary, and noncontributing. Where necessary, coverage shall be endorsed to provide such primary liability, and the certificate of insurance shall reflect same. x. Deductible/Retention. All insurance required for this project shall have a maximum deductible or self-insured retention of $10,000 per policy. xi. Claims Against Aggregate. MTD must be notified in writing by Contractor at MTD’s address set forth herein immediately upon knowledge of possible claims against Contractor that might cause a reduction below seventy-five (75%) of any aggregate limit of any primary policy. c. Commercial General Liability Insurance. i. Coverage. Such insurance shall cover liability arising out of all locations and operations of Contractor, including but not limited to liability assumed under this Agreement (including the tort liability of another assumed in a business contract). Defense shall be provided as an additional benefit and not included within the limit of liability. ii. Form. Commercial General Liability Occurrence form, at least as broad as an unmodified ISO CG 00 01 10 93 or its equivalent. iii. Amount of Insurance. Coverage shall be provided with limits of not less than: A. Each Occurrence Limit $1,000,000 B. General Aggregate Limit $2,000,000 C. Product-Completed Operations Aggregate Limit $2,000,000 D. Personal and Advertising Injury Limits $1,000,000 E. Fire Damage (any one fire) $50,000 F. Medical Expense (any one person) $5,000 iv. Required Endorsements. A. Additional Insured status as required in 18(b)(vii), above. B. Notice of Cancellation, Nonrenewal, or Material Reduction in Coverage, as required in 18(b)(vi), above. C. Personal Injury Liability: The personal injury contractual liability exclusion shall be deleted. D. Primary Liability, as required in 18(b)(ix), above. E. Waiver of Subrogation, as required in 18(b)(viii), above. F. Continuing Commercial General Liability Insurance: Contractor shall maintain such insurance in identical coverage, form, and amount, including required endorsements, for at least three (3) years following the date of acceptance by MTD of the last bus built pursuant to this Agreement. d. Auto Liability Insurance. i. Coverage. Such insurance shall cover liability arising out of any auto (including owned, hired, and non-owned). ii. Form. Business Auto Form (at least as broad as an unmodified ISO CA 0001 or its equivalent). iii. Amount of Insurance. Coverage shall be provided with a limit of not less than $1,000,000, combined single limit. iv. Required Endorsements. A. Additional Insured status as required in 18(b)(vii), above. AIM System Page 4 of 9 Version 201407031858 MTD Master Agreement Clever Devices Ltd. B. Notice of Cancellation, Nonrenewal, or Material Reduction in Coverage, as required in 18(b)(vi), above. C. Waiver of Subrogation, as required in 18(b)(viii), above. e. Workers’ Compensation/Employer’s Liability Insurance. i. Coverage. Such insurance shall cover liability arising out of Contractor’s employment of workers and anyone for whom Contractor may be liable for workers’ compensation claims. Workers’ compensation insurance is required, and no “alternative” forms of insurance shall be permitted. ii. Amount of Insurance. Coverage shall be provided with a limit of not less than: A. Workers’ Compensation: Statutory limits B. Employer’s Liability: $1,000,000 each accident and disease. iii. Required Endorsements. A. Notice of Cancellation, Nonrenewal, or Material Reduction in Coverage, as required in 18(b)(vi), above. B. Waiver of Subrogation, as required in 18(b)(viii), above. f. Excess Liability Insurance. i. Coverage. Such insurance shall be excess over and be no less broad than all coverages described above and shall include a drop-down provision. ii. Form. This policy shall have the same inception and expiration dates and the commercial general liability insurance required above. iii. Amount of Insurance. Coverage shall be provided with a limit of not less than $5,000,000. g. Professional Errors & Omissions Liability Insurance. i. Coverage. Such insurance shall cover claims alleged to arise out of the negligent performance of Contractor’s professional services. ii. Amount of Insurance. Coverage shall be provided with a limit of not less than $1,000,000 annual aggregate. 19. Bonding. Not applicable to this agreement. 20. Termination. Termination for Convenience. MTD may terminate this Agreement, in whole or in part, upon ten (10) calendar days written notice to the Contractor when it is in MTD's best interest, at MTD’s sole discretion. Upon the effective date of the written notice of termination, the Contractor shall cease performance of the Project or the applicable portion thereof to the extent specified in the notice. MTD shall pay the Contractor allowable costs and applicable profit thereon incurred to the specified date of termination, plus any costs deemed reasonably necessary to effectuate such termination. The Contractor shall promptly submit to MTD its termination claim for such costs. Waiver of Remedies for any Breach. In the event that MTD elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this Agreement, such waiver by MTD shall not limit MTD's remedies for any succeeding breach of that or of any other term, covenant, or condition of this Agreement. MTD Property. If, at termination, the Contractor has in its possession any property, whether completed or in progress, associated with the Project belonging to MTD, the Contractor shall return such property to MTD or otherwise dispense with in the manner MTD directs. 21. Liquidated Damages. Not applicable to this agreement. 22. Infringement of Patents. The Contractor agrees that it will, at its own expense, defend all suits and proceedings instituted against MTD and pay any award of damages assessed against MTD in such suits or proceedings, insofar as the same are based upon any claim that the items, services, work, systems, or any part thereof, or any tool, or process used in or for the Project, constitutes an infringement of any legal United States copyright or patent. MTD agrees that it will give the Contractor prompt notice in writing of the institution of the suit or proceeding and permits the Contractor through its counsel to defend the same and gives the Contractor all information, assistance and authority necessary for the Contractor to do so. In case said items, services, work, systems, or any part thereof, or any tool, or process used in or for the Project, is in such suit held to constitute AIM System Page 5 of 9 Version 201407031858 MTD Master Agreement Clever Devices Ltd. infringement and use of same is enjoined, the Contractor shall, at its own expense and at its option, either procure for the MTD the right to continue using said items, services, work, systems, or any part thereof, or any tool, or process used in or for the Project, or replace same with non-infringing equipment, or modify it so it becomes non- infringing. 23. Rights in Data. Definitions. The term "subject data" used in this clause means recorded information, whether or not copyrighted, that is delivered or specified to be delivered under this Agreement. Subject data includes graphic or pictorial delineation in media such as drawings or photographs; text in specifications or related performance or design-type documents; machine forms such as punched cards, magnetic tape, or computer memory printouts; and information retained in computer memory. Examples include, but are not limited to: computer software (including, but not limited to, source codes), engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identifications, and related information. The term "subject data" does not include financial reports, cost analyses, and similar information incidental to contract administration. MTD Rights. MTD reserves a royalty-free, non-exclusive and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use, for MTD purposes, any subject data or copyright. As used in the previous sentence, "for MTD purposes," means use only for the direct purposes of MTD. Without the copyright owner's consent, MTD may not extend its license to any other party. Public Information. When MTD awards a contract for experimental, developmental, or research work, it is MTD’s general intention to increase transportation knowledge available to the public, rather than to restrict the benefits resulting from the work to participants in that work. Therefore, unless MTD determines otherwise, MTD and the Contractor performing experimental, developmental, or research work required by the contract agrees to permit MTD to make available to the public, either MTD's license in the copyright to any subject data developed in the course of that contract, or a copy of the subject data first produced under the contract for which a copyright has not been obtained. If the experimental, developmental, or research work, which is the subject of the underlying contract, is not completed for any reason whatsoever, all data developed under that contract shall become subject data and shall be delivered as MTD may direct. 24. Indemnification. The Contractor shall, to the extent permitted by law protect, indemnify, defend, and hold MTD and its officers, employees and agents, including consultants, harmless from and against any and all liabilities, damages, claims, demands, liens, encumbrances, judgments, awards, losses, costs, expenses, and suits or actions or proceedings, including reasonable expenses, costs and attorneys' fees incurred by MTD and its officers, employees and agents, including consultants, in the defense, settlement or satisfaction thereof, for any injury, death, loss or damage to persons or property of any kind whatsoever, arising out of, or resulting from, the acts, errors or omissions of the Contractor, including acts, errors or omissions of its officers, employees, servants, agents, subcontractors and suppliers; and upon receipt of notice and if given authority, shall settle at its own expense or undertake at its own expense the defense of any such suit, action or proceeding, including appeals, against MTD and its officers, employees and agents, including consultants, relating to such injury, death, loss or damage. Each party shall promptly notify the other in writing of the notice or assertion of any claim, demand, lien, encumbrance, judgment, award, suit, action or other proceeding hereunder. The Contractor shall have sole charge and direction of the defense of such suit, action or proceeding. MTD shall not make any admission which might be materially prejudicial to the Contractor unless the Contractor has failed to take over the conduct of any negotiations or defense within a reasonable time after receipt of the notice and authority above provided. MTD shall at the request of the Contractor furnish to the Contractor all reasonable assistance that may be necessary for the purpose of defending such suit, action or proceeding, and shall be repaid all reasonable costs incurred in doing so. MTD shall have the right to be represented therein by advisory counsel of its own selection at its own expense. The obligations of the Contractor under this clause shall not extend to circumstances where the injury, or death, or damages is caused solely by the negligent acts, errors or omissions of MTD, its officers, employees, agents or consultants, including negligence in the preparation of the Contract documents, or the giving of directions or instructions with respect to the requirements of the Contract by written order. The Contractor’s indemnification shall be limited to the greater of the dollar value of this agreement as indicated in paragraph 7 above or the required dollar coverage of the excess liability insurance indicated in paragraph 18(f)(iii) above. 25. Notice. Notices in connection with this Agreement shall be made in writing and may be delivered either personally, by governmental postal service (regular, certified or registered), by private delivery service, or by AIM System Page 6 of 9 Version 201407031858 MTD Master Agreement Clever Devices Ltd. electronic facsimile. Receipt shall be deemed to have occurred when actually made to the party or its designated agent. Such notices shall be properly addressed to the intended party as follows: MTD: CONTRACTOR: Sherrie Fisher, General Manager (or GM at time) Francis J. Ingrassia, President Santa Barbara Metropolitan Transit District Clever Devices Ltd. 550 Olive Street 300 Crossways Park Drive Santa Barbara, CA 93101 Woodbury, NY 11797 E-Mail: [email protected] E-Mail: [email protected] 26. Attorneys' Fees and Costs. In the event of a controversy (including, but not limited to arbitration or an criminal or civil filing in a Federal Court or a court of any of the United States) between the parties with respect to the enforcement or interpretation of this Agreement, the prevailing party in such controversy shall be entitled to receive, in addition to such other award as the court may deem appropriate, full reimbursement for its court costs and reasonable attorneys' fees incurred therein. 27. Negation of Partnership. This Agreement creates a relationship between two independent contractors and does not, nor may it be interpreted to, create the relationship of joint venturers, partners, employee/employer, or any other business relationship. 28. No Assignment. This Agreement is not assignable by either party, and any attempt by either party to assign its obligations hereunder shall be void ab initio at the election of the other party, which election may be made by written notice within ten (10) days of the non-assigning party's receipt of actual knowledge of such attempted assignment. Notwithstanding the foregoing, however, at the election of the other party, the obligations and burdens of a party shall bind and apply to any permitted successor in interest or assignee of the business and/or operations of a party. 29. Partial Invalidity. In the event that any portion of this Agreement or any provision hereof shall be deemed as invalid as contrary to applicable law, the balance of this Agreement shall be enforced according to its term, and that portion found unenforceable shall be interpreted and enforced to the extent that it may be within said applicable laws. 30. Disputes. This Agreement shall be construed and all disputes arising therefrom shall be settled in accordance with the laws of the State of California. Venue for any dispute arising under this Agreement shall be in Santa Barbara, California. Any controversy or claim arising out of or relating to this Agreement shall be resolved by binding arbitration before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then pertaining (available at www.adr.org), except where those rules conflict with this provision, in which case this provision controls. Any court with jurisdiction shall enforce this clause and enter judgment on any award. The arbitrator shall be selected within twenty business days from commencement of the arbitration from the AAA’s National Roster of Arbitrators pursuant to agreement or through selection procedures administered by the AAA. Within 45 days of initiation of arbitration, the Parties shall reach agreement upon and thereafter follow procedures, including reasonable limits on discovery, assuring that the arbitration will be concluded and the award rendered within no more than eight months from selection of the arbitrator or, failing agreement, procedures meeting such time limits will be designed by the AAA and adhered to by the Parties. The arbitration shall be held in Santa Barbara, California and the arbitrator shall apply the substantive law of California, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. Prior to commencement of arbitration, emergency relief is available from any court to avoid irreparable harm. THE ARBITRATOR SHALL NOT AWARD EITHER PARTY PUNITIVE, EXEMPLARY, MULTIPLIED OR CONSEQUENTIAL DAMAGES. Prior to commencement of arbitration, however, the Parties must attempt to mediate their dispute using a professional mediator from AAA, the CPR Institute for Dispute Resolution, or like organization selected by agreement or, absent agreement, through selection procedures administered by the AAA. Within a period of 45 days after the request for mediation, the Parties agree to convene with the mediator, with business representatives present, for at least one session to attempt to resolve the matter. In no event will mediation delay commencement of the arbitration for more than 45 days absent agreement of the Parties or interfere with the availability of emergency relief. AIM System Page 7 of 9 Version 201407031858 MTD Master Agreement Clever Devices Ltd. 31. Prohibited Interest. The parties hereto covenant and agree that to their knowledge no board member, officer, or employee of MTD, during his/her tenure or for one year thereafter, has any interest, whether contractual, non contractual, financial or otherwise, in this transaction, or in the business of a contracting party other than MTD. If any such interest comes to the knowledge of either party at any time, a full and complete disclosure of all such information will be made in writing to the other parties, even if such interest would not be considered a conflict of interest under Article 4, Chapter 1, Divisions 4 and 4.5, Title I of the Government Code of the State of California. 32. Compliance with Laws and Regulations. Contractor shall warrant that in the performance of work under contract to MTD that they shall comply with all applicable federal, state and local laws and ordinances, and all lawful orders, rules, and regulations thereunder. 33. Audit and Inspection of Records. The Contractor shall agree that all materials supplied and services performed under the Project, facilities used in connection therewith, and records and documentation thereunto appertaining shall be subject to inspection, test, or audit by duly authorized representatives of MTD and the State of California. The Contractor agrees to maintain all required records relating to the Project for at least three years after MTD makes final payment and all other pending matters are closed. 34. Equal Employment Opportunity. The Contractor shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, or national origin. The Contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during their employment, without regard to their race, religion, color, sex, or national origin. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation, and; selection for training, including apprenticeship. The Contractor shall agree to post in conspicuous places available to employees and applicants for employment notices setting forth the provisions of the above paragraph. The Contractor shall insert a similar article to the above in all subcontracts entered into in connection with the contract governing this project, except subcontracts for standard commercial supplies or raw materials. 35. Entire Agreement. This Agreement and its attached exhibits constitute the entire agreement between the parties and shall be deemed to supersede and cancel any and all previous representations, understandings, or agreements between MTD and Contractor as to the subject matter hereof. This Agreement may only be amended by an instrument in writing signed by the parties. 36. No Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party's right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision. 37. Counterparts: Facsimile/E-mail. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that a facsimile or scanned and e-mailed signature may substitute for and have the same legal effect as the original signature. 38. Qualifications. Contractor or Contractor’s representative (Contractor) certifies that Contractor is qualified to do business and is in good standing in the State of California, and that Contractor has authority to enter into and perform its obligations under this Agreement, which constitutes a valid and binding obligation of Contractor. 39. Proprietary Information. MTD takes no position on information deemed to be confidential/proprietary/trade secret by Clever Devices. MTD relies solely on the information provided to it by Clever Devices that such information is properly identified as such. Therefore, should any challenge to the proper identification of this information be raised by any third party/member of the public, Clever Devices agrees to defend, indemnify and hold MTD harmless for any and all costs associated with such challenge. MTD will provide notice to Clever Devices of any such challenge within seven (7) business days of receiving notification of the challenge. AIM System Page 8 of 9 Version 201407031858 MTD Master Agreement Clever Devices Ltd. IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed. SANTA BARBARA MTD CLEVER DEVICES LTD. _________________________________ __________________________________ Sherrie Fisher, General Manager Francis J. Ingrassia, President _________________________________ __________________________________ Date Date AIM System Page 9 of 9 Version 201407031858 Santa Barbara Metropolitan Transit District State of California Provisions For Public Works Projects Last Updated January 23, 2013 The following terms and conditions of the California Public Contract Code and the California Labor Code are incorporated into the agreement between the Santa Barbara Metropolitan Transit District (MTD) and the Contractor. In the provisions that follow, “public agency,” “awarding authority,” or similar terms other than “city,” “county,” or “state” shall be the equivalent of using the term “MTD;” and “prime contractor” or similar terms other than “subcontractor” shall be the equivalent to using “Contractor.” Public Contract Code Provisions §4103 (Rights Limitations). Nothing in this chapter limits or diminishes any rights or remedies, either legal or equitable, which: (a) An original or substituted subcontractor may have against the prime contractor, his or her successors or assigns. (b) The state or any county, city, body politic, or public agency may have against the prime contractor, his or her successors or assigns, including the right to take over and complete the contract. §4104 (Subcontractor Listing). Any officer, department, board or commission taking bids for the construction of any public work or improvement shall provide in the specifications prepared for the work or improvement or in the general conditions under which bids will be received for the doing of the work incident to the public work or improvement that any person making a bid or offer to perform the work, shall, in his or her bid or offer, set forth: (a) The name and the location of the place of business of each subcontractor who will perform work or labor or render service to the prime contractor in or about the construction of the work or improvement, or a subcontractor licensed by the State of California who, under subcontract to the prime contractor, specially fabricates and installs a portion of the work or improvement according to detailed drawings contained in the plans and specifications, in an amount in excess of one-half of 1 percent of the prime contractor's total bid or, in the case of bids or offers for the construction of streets or highways, including bridges, in excess of one-half of 1 percent of the prime contractor's total bid or ten thousand dollars ($10,000), whichever is greater. (b) The portion of the work that will be done by each subcontractor under this act. The prime contractor shall list only one subcontractor for each portion as is defined by the prime contractor in his or her bid. §4104.5 (Receipt of Bids). (a) The officer, department, board, or commission taking bids for construction of any public work or improvement shall specify in the bid invitation and public notice the place the bids of the prime contractors are to be received and the time by which they shall be received. The date and time shall be extended by no less than 72 hours if the officer, department, board, or commission issues any material changes, additions, or deletions to the invitation later than 72 hours prior to the bid closing. Any bids received after the time specified in the notice or any extension due to material changes shall be returned unopened. (b) As used in this section, the term "material change" means a change with a substantial cost impact on the total bid as determined by the awarding agency. (c) As used in this section, the term "bid invitation" shall include any documents issued to prime contractors that contain descriptions of the work to be bid or the content, form, or manner of submission of bids by bidders.