BOT Home Automation Inc dba RING - FY2017-007 March 20, 2018
VIA REGISTERED MAIL
City of Rancho Palos Verdes
City Manager
Attn: Gabriella Yap, Deputy City Manager
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
Re: Acquisition of Ring Inc.
Ladies and Gentlemen:
Reference is made to that certain Contract Services Agreement, dated as of May 8, 2017,
as amended as of the date hereof(the"Agreement"),by and between City of Rancho Palos Verdes,
and Ring Inc. (formerly Bot Home Automation, Inc.) ("Ring").
As you may be aware, on February 26, 2018, Ring entered into an agreement and plan of
merger(the"Merger Agreement")with Amazon.com, Inc. (together with its affiliates,"Amazon"),
pursuant to which Ring will become a wholly-owned subsidiary of Amazon (the "Merger"). A
review of the Agreement indicates that the Merger may constitute a change in control of Ring (a
"Change in Control")and/or may be treated as an assignment of the Agreement(an"Assignment")
that may require your consent. The purpose of this letter is to notify you of the Merger and request
your consent to the Merger and any corresponding Change in Control/Assignment pursuant to the
terms of the Agreement. By countersigning this letter, you hereby (i) consent to the Merger and
any corresponding Change in Control/Assignment pursuant to the terms of the Agreement, (ii)
waive any terms and conditions of the Agreement restricting the Change in Control/Assignment
(including, without limitation, any prior notice requirements, acceleration or termination of rights
relating to the Change in Control/Assignment, etc.), (iii) waive any right to terminate, amend,
modify or otherwise alter the Agreement and any right to seek damages as a result of the Merger,
(iv) acknowledge and agree that the Agreement shall remain in full force and effect in accordance
with its terms and without modification and that the Merger will not constitute a breach of the
Agreement or affect the validity or enforceability of the Agreement and (v) acknowledge that you
do not have any additional rights under the Agreement as a result of the Merger.
We kindly ask that you indicate your consent to and your agreement with the matters set
forth in the immediately preceding paragraph by countersigning this letter where indicated below
and returning it via email to legal@ring.com.
This letter may be executed in separate counterparts, each of which shall be deemed to be
an original and all of which taken together shall constitute one and the same instrument.
Additionally, signatures submitted by facsimile or other electronic transmission shall be deemed
to be original signatures.
[Signature Page Follows]
US-DOCS\994$5531.3
Very truly yours,
RING INC.
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a .e: Leila Rouhi
Title: General Counsel,Corporate Secretary
Consented and agreed to by:
CITY OF RANCHO PALOS VERDES
Name: 9 d v C
Title: G 1 TY Mal- ComN� '''�..
[Signature Page to Consent]
• CONTRACT SERVICES AGREEMENT
By and Between
Y.' CITY OF RANCHO PALOS VERDES
and
BOT HOME AUTOMATION,INC. dba RING.
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01203,0001/375698.1
•
AGREEMENT FOR CONTRACT SERVICES
BETWEEN THE CITY OF RANCHO PALOS VERDES AND
BOT HOME AUTOMATION,INC. dba RING
THIS AGREEMENT FOR CONTRACT SERVICES (herein "Agreement") is made and
entered into this 8th day of May, 2017 by and between the City of Rancho Palos Verdes, a
California municipal corporation("City") and Bot Home Automation, Inc. dba Ring, a Delaware
Corporation ("Consultant"). City and Consultant are sometimes hereinafter individually referred
to as"Party"and hereinafter collectively referred to as the"Parties".
RECITALS
A. Pursuant to Municipal Code section 2.44.050, "[tNhe city manager may purchase
services, supplies and equipment for which the city would normally follow its own bid
procedures from a vendor awarded a bid by another public agency if said agency utilized
procedures substantially the same as those normally utilized by the city. The amount of said
purchase shall be based on the price bid in the other jurisdiction."
B. On or around October 18, 2016 the City of Commerce negotiated an agreement
with Consultant to provide discounted products to City of Commerce residents. The City of
Commerce has bidding procedures that are substantially the same as those used by the City of
Rancho Palos Verdes. After reviewing the agreement between the City of Commerce and
Consultant,City desires to enter into substantially the same agreement with Consultant.
C. Pursuant to the City of Rancho Palos Verdes' Municipal Code, City has authority
to enter into and execute this Agreement.
D. The City Council finds that the dedication of public funds under this Agreement
would serve the safety of City residents, an issue of important public purpose. City residents
have experienced increased burglaries and attempted burglaries. Residential burglaries on the
Palos Verdes Peninsula reached their highest point in years in 2015. In response to this uptick in
crime, the City Council adopted a Public Safety Strategic Plan, a component of which was to
encourage the use of security cameras and products. This Agreement will enable residents to
receive a discount on home security products.
E. The City Council further finds that the perpetuation of private security cameras
will help reduce crime going forward. The Sheriff's Department has opined that the perpetuation
of cameras at individual residences will promote neighborhood safety by providing multiple
sources of recording criminal behavior. The more widespread use of camera security technology
could suppress neighborhood and Citywide crime. The benefit to City residents therefore,would
be a public benefit to the City.
F. The Parties desire to formalize the selection of Consultant for performance of
those services defined and described particularly in Article 1 of this Agreement and desire that
the terms of that performance be as particularly defined and described herein.
•
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01203.0001/375698.1
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by
the Parties and contained herein and other consideration, the value and adequacy of which are
hereby acknowledged,the parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, the Consultant shall
provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and
incorporated herein by this reference, which may be referred to herein as the "services" or
"work" hereunder. As a material inducement to the City entering into this Agreement,
Consultant represents and warrants that it has the qualifications, experience, and facilities
necessary to properly perform the services required under this Agreement in a thorough,
competent, and professional manner, and is experienced in performing the work and services
contemplated herein. Consultant shall at all times faithfully, competently and to the best of its
ability, experience and talent,perform all services described herein. Consultant covenants that it
shall follow the highest professional standards in performing the work and services required
hereunder and that all materials will be both of good quality as well as fit for the purpose
intended. For purposes of this Agreement, the phrase "highest professional standards" shall
mean those standards of practice recognized by one or more first-class firms performing similar
work under similar circumstances.
1.2 Consultant's Proposal.
The Scope of Service shall include the Consultant's scope of work or bid which shall be
incorporated herein by this reference as though fully set forth herein. In the event of any
inconsistency between the terms of such proposal and this Agreement, the terms of this
Agreement shall govern.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services hereunder
in accordance with, all ordinances,resolutions, statutes,rules,and regulations of the City and any
Federal, State or local governmental entity having jurisdiction in effect at the time service is
rendered.
1.4 Licenses,Permits,Fees and Assessments.
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals
as may be required by law for the performance of the services required by this Agreement.
Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus
applicable penalties and interest, which may be imposed by law and arise from or are necessary
for the Consultant's performance of the services required by this Agreement, and shall
indemnify, defend and hold harmless City, its officers, employees or agents of City, against any
such fees, assessments, taxes, penalties or interest levied, assessed or imposed against City
hereunder.
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1.5 Familiarity with Work.
By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly
investigated and considered the scope of services to be performed, (ii) has carefully considered
how the services should be performed, and (iii) fully understands the facilities, difficulties and
restrictions attending performance of the services under this Agreement. If the services involve
work upon any site, Consultant warrants that Consultant has or will investigate the site and is or
will be fully acquainted with the conditions there existing, prior to commencement of services
hereunder. Should the Consultant discover any latent or unknown conditions, which will
materially affect the performance of the services hereunder, Consultant shall immediately inform
the City of such fact and shall not proceed except at Consultant's risk until written instructions
are received from the Contract Officer.
1.6 Care of Work.
The Consultant shall adopt reasonable methods during the life of the Agreement to
furnish continuous protection to the work, and the equipment, materials, papers, documents,
plans, studies and/or other components thereof to prevent losses or damages, and shall be
responsible for all such damages, to persons or property, until acceptance of the work by City,
except such losses or damages as may be caused by City's own negligence.
1.7 Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their respective
obligations under this Agreement. Both parties agree to act in good faith to execute all
instruments, prepare all documents and take all actions as may be reasonably necessary to carry
out the purposes of this Agreement. Unless hereafter specified,neither party shall be responsible
for the service of the other.
1.8 Additional Services.
City shall have the right at any time during the performance of the services, without
invalidating this Agreement, to order extra work beyond that specified in the Scope of Services
or make changes by altering,adding to or deducting from said work. No such extra work may be
undertaken unless a written order is first given by the Contract Officer to the Consultant,
incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra
work, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the
written approval of the Consultant. Any increase in compensation of up to ten percent (10%) of
the Contract Sum or $25,000, whichever is less; or, in the time to perform of up to one hundred
eighty (180) days, may be approved by the Contract Officer. Any greater increases,taken either
separately or cumulatively, must be approved by the City Council. It is expressly understood by
Consultant that the provisions of this Section shall not apply to services specifically set forth in
the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services
to be provided pursuant to the Scope of Services may be more costly or time consuming than
Consultant anticipates and that Consultant shall not be entitled to additional compensation
therefor. City may in its sole and absolute discretion have similar work done by other
contractors. No claims for an increase in the Contract Sum or time for performance shall be
valid unless the procedures established in this Section are followed.
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1.9 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof
are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated
herein by this reference. In the event of a conflict between the provisions of Exhibit"B"and any
other provisions of this Agreement,the provisions of Exhibit"B"shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the
amounts specified in the "Schedule of Compensation" attached hereto as Exhibit "C" and
incorporated herein by this reference. The total compensation, including reimbursement for
actual expenses, shall not exceed One-Hundred Thousand Dollars ($100,000) (the "Contract
Sum"), unless additional compensation is approved pursuant to Section 1.8.
2.2 Method of Compensation.
The method of compensation may include: (i)a lump sum payment upon completion; (ii)
payment in accordance with specified tasks or the percentage of completion of the services, less
contract retention; (iii) payment for time and materials based upon the Consultant's rates as
specified in the Schedule of Compensation, provided that(a)time estimates are provided for the
performance of sub tasks, (b) contract retention is maintained, and (c) the Contract Sum is not
exceeded; or(iv)such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for
reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in
advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5,
and only if specified in the Schedule of Compensation. The Contract Sum shall include the
attendance of Consultant at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If
Consultant is required to attend additional meetings to facilitate such coordination, Consultant
shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Consultant shall furnish to City an original invoice for all work performed
and expenses incurred during the preceding month in a form approved by City's Director of
Finance. By submitting an invoice for payment under this Agreement, Consultant is certifying
compliance with all provisions of the Agreement. The invoice shall detail charges for all
necessary and actual expenses by the following categories: labor (by sub-category), travel,
materials, equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also
be detailed by such categories. Consultant shall not invoice City for any duplicate services
performed by more than one person.
City shall independently review each invoice submitted by the Consultant to determine
whether the work performed and expenses incurred are in compliance with the provisions of this
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Agreement. Except as to any charges for work performed or expenses incurred by Consultant
which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause
Consultant to be paid within forty-five (45) days of receipt of Consultant's correct and
undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run
procedures, the City cannot guarantee that payment will occur within this time period. In the
event any charges or expenses are disputed by City, the original invoice shall be returned by City
to Consultant for correction and resubmission. Review and payment by City for any invoice
provided by the Consultant shall not constitute a waiver of any rights or remedies provided
herein or any applicable law.
2.5 Waiver.
Payment to Consultant for work performed pursuant to this Agreement shall not be
deemed to waive any defects in work performed by Consultant.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt of a
written notice to proceed and shall perform all services within the time period(s) established in
the "Schedule of Performance" attached hereto as Exhibit "D" and incorporated herein by this
reference. When requested by the Consultant, extensions to the time period(s) specified in the
Schedule of Performance may be approved in writing by the Contract Officer but not exceeding
one hundred eighty(180)days cumulatively.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the
services rendered pursuant to this Agreement shall be extended because of any delays due to
unforeseeable causes beyond the control and without the fault or negligence of the Consultant,
including, but not restricted to, acts of God or of the public enemy, unusually severe weather,
fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes,
wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant
shall within ten (10) days of the commencement of such delay notify the Contract Officer in
writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of
delay, and extend the time for performing the services for the period of the enforced delay when
and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's
determination shall be final and conclusive upon the parties to this Agreement. In no event shall
Consultant be entitled to recover damages against the City for any delay in the performance of
this Agreement, however caused, Consultant's sole remedy being extension of the Agreement
pursuant to this Section.
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3.4 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement
shall continue in full force and effect until completion of the services but not exceeding one (1)
years from the date hereof, except as otherwise provided in the Schedule of Performance(Exhibit
“D”).
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The following principals of Consultant ("Principals") are hereby designated as being the
principals and representatives of Consultant authorized to act in its behalf with respect to the
work specified herein and make all decisions in connection therewith:
August Cziment Director of Operations
(Name) (Title)
It is expressly understood that the experience,knowledge,capability and reputation of the
foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Consultant and devoting sufficient time to personally supervise the
services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be
under the exclusive direction and control of the Principals. For purposes of this Agreement,the
foregoing Principals may not be replaced nor may their responsibilities be substantially reduced
by Consultant without the express written approval of City. Additionally,Consultant shall utilize
only competent personnel to perform services pursuant to this Agreement. Consultant shall make
every reasonable effort to maintain the stability and continuity of Consultant's staff and
subcontractors, if any, assigned to perform the services required under this Agreement.
Consultant shall notify City of any changes in Consultant's staff and subcontractors, if any,
assigned to perform the services required under this Agreement, prior to and during any such
performance.
4.2 Status of Consultant.
Consultant shall have no authority to bind City in any manner, or to incur any obligation,
debt or liability of any kind on behalf of or against City,whether by contract or otherwise,unless
such authority is expressly conferred under this Agreement or is otherwise expressly conferred in
writing by City. Consultant shall not at any time or in any manner represent that Consultant or
any of Consultant's officers, employees, or agents are in any manner officials, officers,
employees or agents of City. Neither Consultant,nor any of Consultant's officers, employees or
agents, shall obtain any rights to retirement, health care or any other benefits which may
otherwise accrue to City's employees. Consultant expressly waives any claim Consultant may
have to any such rights.
4.3 Contract Officer.
The Contract Officer shall be [Gabriella Yap or] such person as may be designated by the
City Manager. It shall be the Consultant's responsibility to assure that the Contract Officer is
kept informed of the progress of the performance of the services and the Consultant shall refer
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any decisions which must be made by City to the Contract Officer. Unless otherwise specified
herein, any approval of City required hereunder shall mean the approval of the Contract Officer.
The Contract Officer shall have authority, if specified in writing by the City Manager,to sign all
documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Consultant.
Neither the City nor any of its employees shall have any control over the manner,mode or
means by which Consultant, its agents or employees,perform the services required herein,except
as otherwise set forth herein. City shall have no voice in the selection,discharge, supervision or
control of Consultant's employees, servants, representatives or agents, or in fixing their number,
compensation or hours of service. Consultant shall perform all services required herein as an
independent contractor of City and shall remain at all times as to City a wholly independent
contractor with only such obligations as are consistent with that role. Consultant shall not at any
time or in any manner represent that it or any of its agents or employees are agents or employees
of City. City shall not in any way or for any purpose become or be deemed to be a partner of
Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise
with Consultant.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability and reputation of Consultant, its principals and
employees were a substantial inducement for the City to enter into this Agreement. Therefore,
Consultant shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of the City. In addition, neither this
Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or
encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise,
without the prior written approval of City. Transfers restricted hereunder shall include the
transfer to any person or group of persons acting in concert of more than twenty five percent
(25%) of the present ownership and/or control of Consultant, taking all transfers into account on
a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy
proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or
any surety of Consultant of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages.
The Consultant shall procure and maintain, at its sole cost and expense, in a form and
content satisfactory to City, during the entire term of this Agreement including any extension
thereof, the following policies of insurance which shall cover all elected and appointed officers,
employees and agents of City:
(a) Commercial General Liability Insurance (Occurrence Form CG0001 or
equivalent). A policy of comprehensive general liability insurance written on a per occurrence
basis for bodily injury,personal injury and property damage. The policy of insurance shall be in
an amount not less than $1,000,000.00 per occurrence or if a general aggregate limit is used,
then the general aggregate limit shall be twice the occurrence limit.
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(b) Worker's Compensation Insurance. A policy of worker's compensation
insurance in such amount as will fully comply with the laws of the State of California and which
shall indemnify, insure and provide legal defense for the Consultant against any loss, claim or
damage arising from any injuries or occupational diseases occurring to any worker employed by
or any persons retained by the Consultant in the course of carrying out the work or services
contemplated in this Agreement.
(c) Automotive Insurance(Form CA 0001 (Ed 1/87)including"any auto"and
endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance
written on a per occurrence for bodily injury and property damage in an amount not less than
$1,000,000. Said policy shall include coverage for owned,non-owned, leased,hired cars and any
automobile.
(d) Professional Liability. Professional liability insurance appropriate to the
Consultant's profession. This coverage may be written on a "claims made" basis, and must
include coverage for contractual liability. The professional liability insurance required by this
Agreement must be endorsed to be applicable to claims based upon, arising out of or related to
services performed under this Agreement. The insurance must be maintained for at least 5
consecutive years following the completion of Consultant's services or the termination of this
Agreement. During this additional 5-year period, Consultant shall annually and upon request of
the City submit written evidence of this continuous coverage.
(e) Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall include all of the requirements stated
herein.
(f) Additional Insurance. Policies of such other insurance,as may be required
in the Special Requirements in Exhibit"B".
5.2 General Insurance Requirements.
All of the above policies of insurance shall be primary insurance and shall name the City,
its elected and appointed officers,employees and agents as additional insureds and any insurance
maintained by City or its officers, employees or agents may apply in excess of, and not
contribute with Consultant's insurance. The insurer is deemed hereof to waive all rights of
subrogation and contribution it may have against the City,its officers, employees and agents and
their respective insurers. Moreover, the insurance policy must specify that where the primary
insured does not satisfy the self-insured retention, any additional insured may satisfy the self-
insured retention.
All of said policies of insurance shall provide that said insurance may not be amended or
cancelled by the insurer or any party hereto without providing thirty(30)days prior written notice
by certified mail return receipt requested to the City. In the event any of said policies of
insurance are cancelled,the Consultant shall, prior to the cancellation date, submit new evidence
of insurance in conformance with Section 5.1 to the Contract Officer.
No work or services under this Agreement shall commence until the Consultant has
provided the City with Certificates of Insurance, additional insured endorsement forms or
appropriate insurance binders evidencing the above insurance coverages and said Certificates of
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Insurance or binders are approved by the City. City reserves the right to inspect complete,
certified copies of and endorsements to all required insurance policies at any time. Any failure to
comply with the reporting or other provisions of the policies including breaches or warranties
shall not affect coverage provided to City.
All certificates shall name the City as additional insured (providing the appropriate
endorsement)and shall conform to the following"cancellation"notice:
CANCELLATION:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL
THIRTY (30)-DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE HOLDER
NAMED HEREIN.
[to be initialed]
Consultant Initials
City, its respective elected and appointed officers, directors, officials, employees, agents
and volunteers are to be covered as additional insureds as respects: liability arising out of
activities Consultant performs; products and completed operations of Consultant; premises
owned, occupied or used by Consultant; or any automobiles owned,leased, hired or borrowed by
Consultant. The coverage shall contain no special limitations on the scope of protection afforded
to City, and their respective elected and appointed officers, officials, employees or volunteers.
Consultant's insurance shall apply separately to each insured against whom claim is made or suit
is brought,except with respect to the limits of the insurer's liability.
Any deductibles or self-insured retentions must be declared to and approved by City. At
the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects City or its respective elected or appointed officers,officials,employees and
volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related
investigations, claim administration, defense expenses and claims. The Consultant agrees that
the requirement to provide insurance shall not be construed as limiting in any way the extent to
which the Consultant may be held responsible for the payment of damages to any persons or
property resulting from the Consultant's activities or the activities of any person or persons for
which the Consultant is otherwise responsible nor shall it limit the Consultant's indemnification
liabilities as provided in Section 5.3.
In the event the Consultant subcontracts any portion of the work in compliance with
Section 4.5 of this Agreement, the contract between the Consultant and such subcontractor shall
require the subcontractor to maintain the same policies of insurance that the Consultant is
required to maintain pursuant to Section 5.1, and such certificates and endorsements shall be
provided to City.
5.3 Indemnification.
To the full extent permitted by law, Consultant agrees to indemnify, defend and hold
harmless the City, its officers, employees and agents ("Indemnified Parties") against, and will
hold and save them and each of them harmless from, any and all actions, either judicial,
administrative, arbitration or regulatory claims, damages to persons or property, losses, costs,
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penalties, obligations, errors,omissions or liabilities whether actual or threatened(herein"claims
or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in
connection with the negligent performance of the work, operations or activities provided herein
of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or
entity for which Consultant is legally liable ("indemnitors"), or arising from Consultant's or
indemnitors' reckless or willful misconduct, or arising from Consultant's or indemnitors'
negligent performance of or failure to perform any term, provision,covenant or condition of this
Agreement,and in connection therewith:
(a) Consultant will defend any action or actions filed in connection with any
of said claims or liabilities and will pay all costs and expenses, including legal costs and
attorneys' fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the City, its
officers, agents or employees for any such claims or liabilities arising out of or in connection
with the negligent performance of or failure to perform such work, operations or activities of
Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, and
employees harmless therefrom;
(c) In the event the City, its officers, agents or employees is made a party to
any action or proceeding filed or prosecuted against Consultant for such damages or other claims
arising out of or in connection with the negligent performance of or failure to perform the work,
operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers,
agents or employees, any and all costs and expenses incurred by the City, its officers, agents or
employees in such action or proceeding, including but not limited to, legal costs and attorneys'
fees.
Consultant shall incorporate similar indemnity agreements with its subcontractors and if
it fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and
failure of City to monitor compliance with these provisions shall not be a waiver hereof. This
indemnification includes claims or liabilities arising from any negligent or wrongful act, error or
omission, or reckless or willful misconduct of Consultant in the performance of professional
services hereunder. The provisions of this Section do not apply to claims or liabilities occurring
as a result of City's sole negligence or willful acts or omissions, but, to the fullest extent
permitted by law, shall apply to claims and liabilities resulting in part from City's negligence,
except that design professionals' indemnity hereunder shall be limited to claims and liabilities
arising out of the negligence, recklessness or willful misconduct of the design professional. The
indemnity obligation shall be binding on successors and assigns of Consultant and shall survive
termination of this Agreement.
5.4 Sufficiency of Insurer.
Insurance required by this Agreement shall be satisfactory only if issued by companies
qualified to do business in California, rated "A" or better in the most recent edition of Best
Rating Guide,The Key Rating Guide or in the Federal Register, and only if they are of a financial
category Class VII or better, unless such requirements are waived by the Risk Manager of the
City("Risk Manager")due to unique circumstances. If this Agreement continues for more than 3
years duration, or in the event the risk manager determines that the work or services to be
performed under this Agreement creates an increased or decreased risk of loss to the City, the
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Consultant agrees that the minimum limits of the insurance policies may be changed accordingly
upon receipt of written notice from the Risk Manager.
ARTICLE 6. RECORDS,REPORTS,AND RELEASE OF INFORMATION
6.1 Records.
Consultant shall keep, and require subcontractors to keep, such ledgers, books of
accounts, invoices,vouchers, canceled checks, reports, studies or other documents relating to the
disbursements charged to City and services performed hereunder (the "books and records"), as
shall be necessary to perform the services required by this Agreement and enable the Contract
Officer to evaluate the performance of such services. Any and all such documents shall be
maintained in accordance with generally accepted accounting principles and shall be complete
and detailed. The Contract Officer shall have full and free access to such books and records at all
times during normal business hours of City, including the right to inspect, copy, audit and make
records and transcripts from such records. Such records shall be maintained for a period of three
(3) years following completion of the services hereunder, and the City shall have access to such
records in the event any audit is required. In the event of dissolution of Consultant's business,
custody of the books and records may be given to City, and access shall be provided by
Consultant's successor in interest. Notwithstanding the above, the Consultant shall fully
cooperate with the City in providing access to the books and records if a public records request is
made and disclosure is required by law including but not limited to the California Public Records
Act.
6.2 Reports.
Consultant shall periodically prepare and submit to the Contract Officer such reports
concerning the performance of the services required by this Agreement as the Contract Officer
shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost
of work and services to be performed pursuant to this Agreement. For this reason, Consultant
agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that
may or will materially increase or decrease the cost of the work or services contemplated herein
or, if Consultant is providing design services, the cost of the project being designed, Consultant
shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the
estimated increased or decreased cost related thereto and, if Consultant is providing design
services,the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes,
computer files, reports, records, documents and other materials (the "documents and materials")
prepared by Consultant, its employees, subcontractors and agents in the performance of this
Agreement shall be the property of City and shall be delivered to City upon request of the
Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim
for further employment or additional compensation as a result of the exercise by City of its full
rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any
use, reuse or assignment of such completed documents for other projects and/or use of
uncompleted documents without specific written authorization by the Consultant will be at the
City's sole risk and without liability to Consultant, and Consultant's guarantee and warranties
- 12-
01203.0001375698.1
shall not extend to such use, reuse or assignment. Consultant may retain copies of such
documents for its own use. Consultant shall have the right to use the concepts embodied therein.
All subcontractors shall provide for assignment to City of any documents or materials prepared
by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify
City for all damages resulting therefrom. Moreover, Consultant with respect to any documents
and materials that may qualify as "works made for hire" as defined in 17 U.S.C. § 101, such
documents and materials are hereby deemed"works made for hire"for the City.
6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant
in performance of this Agreement shall be considered confidential,unless such information is in
the public domain or already known to Consultant. Consultant shall not release or disclose any
such information or work product to persons or entities other than City without prior written
authorization from the Contract Officer.
(b) Consultant, its officers, employees, agents or subcontractors,
shall not, without prior written authorization from the Contract Officer or unless requested by the
City Attorney, voluntarily provide documents, declarations, letters of support, testimony at
depositions, response to interrogatories or other information concerning the work performed
under this Agreement. Response to a subpoena or court order shall not be considered"voluntary"
provided Consultant gives City notice of such court order or subpoena.
(c) If Consultant, or any officer,employee,agent or subcontractor of
Consultant, provides any information or work product in violation of this Agreement, then City
shall have the right to reimbursement and indemnity from Consultant for any damages, costs and
fees,including attorneys fees,caused by or incurred as a result of Consultant's conduct.
(d) Consultant shall promptly notify City should Consultant, its
officers,employees, agents or subcontractors be served with any summons, complaint, subpoena,
notice of deposition, request for documents, interrogatories, request for admissions or other
discovery request,court order or subpoena from any party regarding this Agreement and the work
performed there under. City retains the right,but has no obligation,to represent Consultant or be
present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully
with City and to provide City with the opportunity to review any response to discovery requests
provided by Consultant. However,this right to review any such response does not imply or mean
the right by City to control,direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted, construed and governed both as to validity and to
performance of the parties in accordance with the laws of the State of California. Legal actions
concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be
instituted in the Superior Court of the County of Los Angeles, State of California, or any other
appropriate court in such county, and Consultant covenants and agrees to submit to the personal
jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District
Court, venue shall lie exclusively in the Central District of California, in the County of Los
Angeles, State of California.
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01203.0001/375698.1
7.2 Disputes;Default.
In the event that Consultant is in default under the terms of this Agreement,the City shall
not have any obligation or duty to continue compensating Consultant for any work performed
after the date of default. Instead, the City may give notice to Consultant of the default and the
reasons for the default. The notice shall include the timeframe in which Consultant may cure the
default. This timeframe is presumptively thirty (30) days, but may be extended, though not
reduced, if circumstances warrant. During the period of time that Consultant is in default, the
City shall hold all invoices and shall, when the default is cured, proceed with payment on the
invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the
outstanding invoices during the period of default. If Consultant does not cure the default, the
City may take necessary steps to terminate this Agreement under this Article. Any failure on the
part of the City to give notice of the Consultant's default shall not be deemed to result in a waiver
of the City's legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant
(whether or not arising out of this Agreement) (i) any amounts the payment of which may be in
dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or
damages suffered by City, and (ii) all amounts for which City may-be liable to third parties, by
reason of Consultant's acts or omissions in performing or failing to perform Consultant's
obligation under this Agreement. In the event that any claim is made by a third party,the amount
or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear
to be the basis for a claim of lien, City may withhold from any payment due,without liability for
interest because of such withholding, an amount sufficient to cover such claim, The failure of
City to exercise such right to deduct or to withhold shall not, however, affect the obligations of
the Consultant to insure, indemnify,and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any party to this Agreement of any term, condition, or covenant of this
Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by
any party of any breach of the provisions of this Agreement shall not constitute a waiver of any
other provision or a waiver of any subsequent breach or violation of any provision of this
Agreement. Acceptance by City of any work or services by Consultant shall not constitute a
waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any
right or remedy by a non-defaulting party on any default shall impair such right or remedy or be
construed as a waiver. Any waiver by either party of any default must be in writing and shall not
be a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this
Agreement, the rights and remedies of the parties are cumulative and the exercise by either party
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other party.
- 14-
01203.0001/375698.1
7.6 Legal Action.
In addition to any other rights or remedies,either party may take legal action,in law or in
equity, to cure, correct or remedy any default, to recover damages for any default, to compel
specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain
any other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary
provision herein, Consultant shall file a statutory claim pursuant to Government Code Sections
905 et. seq. and 910 et. seq.,in order to pursue a legal action under this Agreement.
7.7 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically provided
in the following Section for termination for cause. The City reserves the right to terminate this
Contract at any time, with or without cause, upon thirty (30) days' written notice to Consultant,
except that where termination is due to the fault of the Consultant, the period of notice may be
such shorter time as may be determined by the Contract Officer. In addition, the Consultant
reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60)
days' written notice to City, except that where termination is due to the fault of the City, the
period of notice may be such shorter time as the Consultant may determine. Upon receipt of any
notice of termination, Consultant shall immediately cease all services hereunder except such as
may be specifically approved by the Contract Officer. Except where the Consultant has initiated
termination,the Consultant shall be entitled to compensation for all services rendered prior to the
effective date of the notice of termination and for any services authorized by the Contract Officer
thereafter in accordance with the Schedule of Compensation or such as may be approved by the
Contract Officer, except as provided in Section 7.3. In the event the Consultant has initiated
termination, the Consultant shall be entitled to compensation only for the reasonable value of the
work product actually produced hereunder. In the event of termination without cause pursuant to
this Section, the terminating party need not provide the non-terminating party with the
opportunity to cure pursuant to Section 7.2.
7.8 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this
Agreement, City may, after compliance with the provisions of Section 7.2, take over the work
and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable
to the extent that the total cost for completion of the services required hereunder exceeds the
compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate
such damages),and City may withhold any payments to the Consultant for the purpose of set-off
or partial payment of the amounts owed the City as previously stated.
7.9 Attorneys' Fees.
If either party to this Agreement is required to initiate or defend or made a party to any
action or proceeding in any way connected with this Agreement, the prevailing party in such
action or proceeding, in addition to any other relief which may be granted, whether legal or
equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's
fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and discovery and all other
necessary costs the court allows which are incurred in such litigation. All such fees shall be
- 15 -
01203.00011375698.1
deemed to have accrued on commencement of such action and shall be enforceable whether or
not such action is prosecuted to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Consultant, or any
successor in interest, in the event of any default or breach by the City or for any amount which
may become due to the Consultant or to its successor, or for breach of any obligation of the terms
of this Agreement.
8.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall
acquire any interest, directly or indirectly, which would conflict in any manner with the interests
of City or which would in any way hinder Consultant's performance of services under this
Agreement. Consultant further covenants that in the performance of this Agreement, no person
having any such interest shall be employed by it as an officer, employee, agent or subcontractor
without the express written consent of the Contract Officer. Consultant agrees to at all times
avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City
in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in
this Agreement nor shall any such officer or employee participate in any decision relating to the
Agreement which affects her/his financial interest or the financial interest of any corporation,
partnership or association in which (s)he is, directly or indirectly, interested, in violation of any
State statute or regulation. The Consultant warrants that it has not paid or given and will not pay
or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons
claiming under or through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of race, color, creed, religion, sex, gender, sexual
orientation,marital status, national origin, ancestry or other protected class in the performance of
this Agreement. Consultant shall take affirmative action to insure that applicants are employed
and that employees are treated during employment without regard to their race, color, creed,
religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other
protected class.
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal
Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection
therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ
such unauthorized aliens for the performance of work and/or services covered by this Agreement,
and should any liability or sanctions be imposed against City for such use of unauthorized aliens,
Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or
sanctions imposed,together with any and all costs, including attorneys'fees,incurred by City.
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01203.0001/375698.1
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
Any notice,demand,request,document,consent,approval, or communication either party
desires or is required to give to the other party or any other person shall be in writing and either
served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager
and to the attention of the Contract Officer (with her/his name and City title), City of Rancho
Palos Verdes, 30940 Hawthorne Blvd., California 90275 and in the case of the Consultant,to the
person(s) at the address designated on the execution page of this Agreement. Either party may
change its address by notifying the other party of the change of address in writing. Notice shall
be deemed communicated at the time personally delivered or in seventy-two(72) hours from the
time of mailing if mailed as provided in this Section.
9.2 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship of
this Agreement or any other rule of construction which might otherwise apply.
9.3 Counterparts.
This Agreement may be executed in counterparts,each of which shall be deemed to be an
original, and such counterparts shall constitute one and the same instrument.
9.4 Integration:Amendment.
This Agreement including the attachments hereto is the entire, complete and exclusive
expression of the understanding of the parties. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels
any and all previous negotiations, arrangements,agreements and understandings, if any, between
the parties, and none shall be used to interpret this Agreement. No amendment to or
modification of this Agreement shall be valid unless made in writing and approved by the
Consultant and by the City Council. The parties agree that this requirement for written
modifications cannot be waived and that any attempted waiver shall be void.
9.5 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or
sections contained in this Agreement shall be declared invalid or unenforceable by a valid
judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall
not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this
Agreement which are hereby declared as severable and shall be interpreted to carry out the intent
of the parties hereunder unless the invalid provision is so material that its invalidity deprives
either party of the basic benefit of their bargain or renders this Agreement meaningless.
9.6 Warranty&Representation of Non-Collusion.
No official, officer, or employee of City has any financial interest, direct or indirect, in
this Agreement, nor shall any official, officer, or employee of City participate in any decision
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01203.0001/375698.1
CALIFORNIA CERTIFICATE OF ACKNOWLEDGMENT
II A notary public or other officer completing this certificate verifies only the identity of
I the individual who signed the document to which this certificate is attached,and not
I the truthfulness,accuracy,or validity of that document.
State of California )
ivit '
County of `,8Sti ' )
On 27 ` before me, C1 rn / ,(
{here insert name and title of the officer) U 101.4 E
personally appeared C e ( l CA U k%r.
r
r
who proved to me on the basis of satisfactory evidence to belie person )whose namAs9a)tsubscribed to
the within instrument and acknowledgot to me that1T/sE/ttafy executed the same in his/ er their
authorized capacityjef, and that by his er their signature{5f on the instrument the person), or the entity
upon behalf of which the persolacted,executed the instrument.
I certify under PENALTY OF P •t' RY under the laws of the
State of California that the f•,regoing paragraph is true and correct. 1,...--:_,....-,— -
'\ .lMlA ^= " ' -d
WITNESS my han•• :nd official sea ` #� t4'f
- :t t rn
-
4 Lrt
Signatur- � k 1 j
(Seal)
Optional Information
Although the information in this section Is not required by law,it could prevent fraudulent removal and reattachment of this acknowledgment to a
unauthorized document and may prove useful to persons relying on the attached document.
Description of Attached Document
-- ___ Additional Information
The preceding Certificate of Acknowledgment is attached to a document I Met •. of Signer Identification
titled/for the purpose of Proved to me on the basis of satisfactory evidence:
; )form(s)of identification `j credible witness(es)
_— — Notarial event is detailed in notary journal on:
containing _ pages,and dated _ _ Page# Entry#
The signer(s)capacity or authority is/are as: Notary contact:
Individual(s) Other
Attorney-in-Fact
LI Corporate Officer(s) 1 [ Additional Signer(s) C Signer(s)Thumbprint(s)
Titles) C
E Guardian/Cons. ..tor
II Partner-1: ited/General
-]Trustee(s)i•
2 Other:
representing: _ __ ___
Names)of Person(s)or Entity(iesl Signer is Representing
0 Copyright 2007-2016 Notary Rotary,Inc-PO Box 41400,Des Maines,iA 50311-0507.Al!Rights Reserved Item Number 101772, Please contact your Authorized Reseller to purchase copies of this form.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
htrkviAl
On 1401 1 Z , 2017 before me, Lim; >Q� personally app_eare_d �j144- CZ , proved to me on
the basis of satisfactory evidence to be the person(4 whose namms( j 6 subscribed to the within instrument and
acknowledged to me that del'she executed the same in(h4/hir authorized capacity(iese'and that by
is emir signature(e'jon the instrument the person(SS, or the entity upon behalf of which the person0 acted,
executed the instrument.
I certify under PEN• / Y OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hr. and official seal /
_ j, 1 . LtMI B 1-E-;,1.
Signatur , i �.a J ' a R �: - comm ,e18 i 1..,) 6
=� '` "Y"..." (�i.F..i$A 1
OPTIONAL
Tho _a the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form. •
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHE I : • UMENT
❑ INDIVIDUAL
❑ CORPORATE OFFICER
' LE OR TYPE OF DOCUMENT
TITLE(S)
❑ PARTNER(S) ❑ LIMITED
❑ GENE' • NUMBER OF PAGES
❑ ATTORNEY-IN-FACT
❑ TRUSTEE(S)
❑ GUARDIAN/CONSER TOR
0 OTHER DATE OF DOCUMENT
SIGNER IS RE' • SENTING:
(NAME OF , 'SON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE
01203.0001/375698.1
relating to this Agreement which may affect his/her financial interest or the financial interest of
any corporation, partnership, or association,in which (s)he is directly or indirectly interested, or
in violation of any corporation, partnership,'or association in which (s)he is directly or indirectly
interested, or in violation of any State or municipal statute or regulation. The determination of
"financial interest" shall be consistent with State law and shall not include interests found to be
"remote" or "noninterests" pursuant to Government Code Sections 1091 or 1091.5. Consultant
warrants and represents that it has not paid'or given, and will not pay or give, to any third party
including,but not limited to, any City official,officer, or employee, any money, consideration, or
other thing of value as a result or consequence of obtaining or being awarded any agreement.
Consultant further warrants and represer is that (s)he/it has not engaged in any act(s),
omission(s), or other conduct or collusionthat would result in the payment of any money,
consideration, or other thing of value to athird party including, but not limited to, any City
official, officer, or employee, as a result of consequence of obtaining or being awarded any
agreement. Consultant is aware of and understands that any such act(s), omission(s) or other
conduct resulting in such payment of money, consideration, or other thing of value will render
this Agreement void and of no force or effect.
Consultant's Authorized Initialsl���::r
9.7 Corporate Authority.
The persons executing this Agreement on behalf of the parties hereto warrant that(i)such
party is duly organized and existing, (ii) they are duly authorized to execute and deliver this
Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally
bound to the provisions of this Agreement,I and (iv) the entering into this Agreement does not
violate any provision of any other Agreement to which said party is bound. This Agreement shall
be binding upon the heirs,executors,administrators, successors and assigns of the parties.
[SIGNATURES O, FOLLOWING PAGE]
Ii
- 18 -
01203.0001/375698.1
IN WITNESS WHEREOF,the parties hereto have executed this Agreement on
the date and year first-above written.
CITY:
CITY OF RANCHO PALOS VERDES,a
municipal corp •likapr,44— s‘
t' n
,Mayor
AT ittik
4161111
_.moi,►_
, 'ty Clerk
APPROVED AS TO FORM:
ALESHIRE&WYNDER,LLP
David J. eshire, City Attorney
CONSULTANT:
o
Name: t c da41"'
Title: C` iefevt C+M-"`
By • .
N. 4 r �'z t
Title: O.,‘tc,b-' oµ 07e. /-,1,.t S
Address: /S0)3 aC t.4 Sf
/ ,`c A> CA Qoleoy
Two corporate officer signatures required when Consultant is a corporation, with one signature required
from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2)
Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT'S
SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE
INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY.
- 19-
01203.0001/375698.1
EXHIBIT "A-1"
[insert Ring's warrantvl
01203.0001/375698.1
EXHIBIT "A"
SCOPE OF SERVICES
The purpose of this Agreement is to enhance the public safety in the City in response to a rise in
the number of residential burglaries on the Palos Verdes Peninsula. In an effort to prevent future
residential burglaries and to assist in the investigation of those that occur, the City has increased
the number of cameras in the public right-of-way. Consultant produces security cameras and
video doorbells for residential use. These products include the Video Doorbell, Stick Up Cam,
and Video Doorbell Pro. The City desires to partner with Consultant to establish a grant program
whereby City residents can purchase Consultant's security cameras and video doorbells for use at
residences within the City at a discounted price. The grant program will be operated on a first-
come-first-served basis.
I. Consultant will perform the following Services:
A. Collaborate on the distribution and marketing of the Ring Video Doorbell, Ring
Video Doorbell Pro, and Ring Stick Up Cam or other products determined by Ring
(each, a"Product"and collectively,the"Products")to residents of the City of Rancho
Palos Verdes("Residents").
B. Provide codes to the City to be used for a discount on Products (Promotional
Codes) during the Promo Period (defined below), which City will provide to
Residents.
C. Residents will be able to apply their unique Promotional Codes to an order for
Products. Each Promotional Code(s) will enable a Resident Household to purchase
up to three of the following devices at the prices set forth below,up to a maximum of
2,000 units in the aggregate under clause(i):
i. One of the following:
1. Stick Up Cam: $99;
2. Ring Video Doorbell: $99; or
3. Ring Video Doorbell Pro: $75;
ii. Up to two of the following:
1. Stick Up Cam: $149;
2. Ring Video Doorbell: $149; and/or
3. Ring Video Doorbell Pro: $199.
01203.0001/375698.1
iii. For the avoidance of doubt,the Promotional Code is only applicable to the
first three Products purchased,and not to any additional Products. Further,any
such second or third Product must be part of the same order.
D. Fulfill orders for Products when Residents provide information and payment
required.
E. Provide 30 days of Free Cloud Service to Residents who purchase Products
immediately after activation.
F. Provide user support to Residents who purchase Products.
G. Provide marketing support and materials for City to distribute to Residents. The
City is not required to undertake any marketing efforts.
H. Invoice the City for the $50 City incentive (the "City Contribution Amount") per
Resident Household that makes an eligible Product,not to exceed 2,000 incentives or
$100,000. Each Resident Household is only entitled to one City Contribution
Amount. The City Contribution Amount will be reimbursed to Consultant by City.
II. As part of the Services,Consultant will prepare and deliver the following tangible
work products to the City and/or Resident:
A. Promotional Code. Ring agrees to provide Residents with a Promotional Code,
more specifically defined in section I. B. and I.C. above, that will be valid for a
period of sixty (60) days commencing on a date mutually agreed by the City and
Consultant (the "Promo Period"). The Promotional Code may be used for up to
2,000 units of Products in the aggregate, and up to one time per order. In order to
apply the Promotional Code,the zip code of the shipping address for the Products
must be 90275. Ring reserves the right to cancel or change the Promotional Code
or limit the number of orders per household in the event it suspects that the
Promotional Code is being abused (including bulk purchases). Consultant shall
notify City in writing when 1,200 of Codes have been redeemed.
B. Order Fulfillment. Each Resident shall provide Ring with the information required
for Ring to complete delivery of the Product (including name, address, email,
etc.). Standard delivery is included with each Product free of charge. Ring will use
commercially reasonable efforts to ship the Products within three business days.
C. Free Cloud Services. Ring will provide its Cloud Video Recording services to
each Resident purchasing a Product free of charge for 30 days immediately
following Product activation. After the 30-day period expires, Resident may
continue to receive such service at the then applicable price or cancel the service
and incur no further charges.
01203.0001/375698.1
D. User Support. Ring shall provide its customary end user support and product
warranty(available at ring.com/warranty)for all Products purchased by Residents.
E. Marketing Support. Ring will provide the City with internal product support
(namely, product education) and will provide the City with access to marketing
materials prepared by Ring that the City may use in its marketing efforts,if any.
F. Accounting. Within 30 days after the end of the end of each month, Ring will
provide the City with an accounting statement (the "Accounting Statement")
setting forth the number of Products purchased using the Code during the Promo
Period, and such other information reasonably requested by City to enable the
parties to determine the City's required City Contribution Amount, as defined
above.
01203.0001/375698.1
EXHIBIT "B"
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
1.4 Licenses.Permits.Fees and Assessments is amended as follows:
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may
be required by law for the performance of the services required by this Agreement. Consultant
shall have the sole obligation to pay for any fees,assessments and taxes,plus applicable penalties
and interest, which may be imposed by law and arise from or are necessary for the Consultant's
performance of the services required by this Agreement, and shall indemnify, defend and hold
harmless City, its officers, employees or agents of City,against any such fees,assessments,taxes,
penalties or interest levied, assessed or imposed against City hereunder, other than to the extent
arising solely from City's acts or omissions.
1.6 Care of Work is replaced in its entirety as follows:
The Consultant shall provide the warranty attached hereto as Exhibit A-1 to any City residents
who purchase products from Consultant.
1.8 Additional Services is amended as follows:
The Parties shall have the right upon their mutual written agreement at
any time during the performance of the services, without invalidating this Agreement, to order
extra work beyond that specified in the Scope of Services or make changes by altering,adding to
or deducting from said work. No such extra work may be undertaken unless a written order is
first given by the Contract Officer to the Consultant, incorporating therein any adjustment in (i)
the Contract Sum for the actual costs of the extra work, and/or (ii) the time to perform this
Agreement, which said adjustments are subject to the written approval of the Consultant. Any
increase in compensation of up to ten percent(10%) of the Contract Sum or$25,000, whichever
is less; or, in the time to perform of up to one hundred eighty(180)days,may be approved by the
Contract Officer. Any greater increases, taken either separately or cumulatively, must be
approved by the City Council. It is expressly understood by Consultant that the provisions of this
Section shall not apply to services specifically set forth in the Scope of Services. Consultant
hereby acknowledges that it accepts the risk that the services to be provided pursuant to the
Scope of Services may be more costly or time consuming than Consultant anticipates and that
Consultant shall not be entitled to additional compensation therefor. City may in its sole and
absolute discretion have similar work done by other contractors. No claims for an increase in the
Contract Sum or time for performance shall be valid unless the procedures established in this
Section are followed.
2.4 Invoices is amended as follows:
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Each month Consultant shall furnish to City an original invoice for all work performed and
expenses incurred during the preceding month in a form approved by City's Director of Finance.
By submitting an invoice for payment under this Agreement, Consultant is certifying compliance
with all provisions of the Agreement. The invoice shall detail charges for all necessary and
actual expenses by the following categories: labor (by sub-category), travel, materials,
equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed
by such categories. Consultant shall not invoice City for any duplicate services performed by
more than one person.
City shall independently review each invoice submitted by the Consultant to determine whether
the work performed and expenses incurred are in compliance with the provisions of this
Agreement. Except as to any charges for work performed or expenses incurred by Consultant
which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause
Consultant to be paid within forty-five (45) days of receipt of Consultant's correct and
undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run
procedures, the City cannot guarantee that payment will occur within this time period; provided
further than Consultant may suspend or terminate the Services in the event any undisputed
invoice is not paid within ninety (90) days of receipt. Consultant must give the City written
notice pursuant to Section 7.7 if it intends to terminate the Services. In the event any charges or
expenses are disputed by City, the original invoice shall be returned by City to Consultant for
correction and resubmission. Review and payment by City for any invoice provided by the
Consultant shall not constitute a waiver of any rights or remedies provided herein or any
applicable law.
4.1 Rearesentatives and Personnel of Consultant is amended in part as follows:
It is expressly understood that the experience, knowledge, capability and reputation of the
foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Consultant and devoting sufficient time to personally supervise the
services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be
under the exclusive direction and control of the Principals. Fer purposes of is ..n t
e
` `".. .` - - = Consultant shall notify the City in
the event the Principal is replaced. Additionally, Consultant shall utilize only competent
personnel to perform services pursuant to this Agreement. Consultant shall make every
reasonable effort to maintain the stability and continuity of Consultant's staff and subcontractors,
if any, assigned to perform the services required under this Agreement. Consultant shall notify
City of any changes in Consultant's staff and subcontractors, if any, assigned to perform the
services required under this Agreement,prior to and during any such performance.
5.2 Insurance is amended as follows:
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All of said the above policies of insurance shall provide that said insurance may not be amended
or cancelled by the insurer or any party hereto without providing thirty ten (381Q) days prior
written notice by certified mail return receipt requested to the City. In the event any of said
policies of insurance are cancelled, the Consultant shall, prior to the cancellation date, submit
new evidence of insurance in conformance with Section 5.1 to the Contract Officer.
No work or services under this Agreement shall commence until the Consultant has provided the
City with . .. • • . .._-, , - •,„ .. _ .: -. .. ..- . . . . . .
evidence of insurance. City reserves the right to inspect
complete, certified copies of all required insurance policies at any time.
Any failure to comply with the reporting or other provisions of the policies including breaches or
warranties shall not affect coverage provided to City.
All certificates . . - - _ -•- -.__ - , •- - : : . e
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arid-shall conform to the following"cancellation"notice: . . .
CANCELLATION:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATED THEREOF, THE ISSUING COMPANY SHALL MAIL
THIRTY TEN (39 10)-DAY ADVANCE WRITTEN NOTICE TO CERTIFICATE
HOLDER NAMED HEREIN.
[to be initialed]
Consultant Initials
City, its respective elected and appointed officers, directors, officials, employees, agents and
volunteers are to be covered as respects: liability arising out of activities
Consultant performs; products and completed operations of Consultant; premises owned,
occupied or used by Consultant; or any automobiles owned, leased, hired or borrowed by
Consultant. The coverage shall contain no special limitations on the scope of protection afforded
to City, and their respective elected and appointed officers, officials, employees or volunteers.
Consultant's insurance shall apply separately to each insured against whom claim is made or suit
is brought,except with respect to the limits of the insurer's liability.
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Any deductibles or self-insured retentions must be declared to and approved by City. At the
option of City, either the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects City or its respective elected or appointed officers,officials,employees and
volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related
investigations, claim administration, defense expenses and claims. The Consultant agrees that
the requirement to provide insurance shall not be construed as limiting in any way the extent to
which the Consultant may be held responsible for the payment of damages to any persons or
property resulting from the Consultant's activities or the activities of any person or persons for
which the Consultant is otherwise responsible nor shall it limit the Consultant's indemnification
liabilities as provided in Section 5.3.
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City. .- :.. .... . , •• - - - -= -• -• ... - - - - : - ., :- : . :_. ..
5.3 Indemnification is amended in part as follows:
To the full extent permitted by law, Consultant agrees to indemnify, defend and hold harmless
the City, its officers, employees and agents ("Indemnified Parties") against, and will hold and
save them and each of them harmless from, any and all actions, either judicial, administrative,
arbitration or regulatory claims, damages to persons or property, losses, costs, penalties,
obligations, errors, omissions or liabilities whether actual or threatened (herein "claims or
liabilities")that may be asserted or claimed by any third party person, firm or entity arising out of
or in connection with the negligent performance of the work, operations or activities provided
herein of Consultant, its officers,employees,agents,subcontractors, or invitees, or any individual
or entity for which Consultant is legally liable ("indemnitors"), or arising from Consultant's or
indemnitors' reckless or willful misconduct, or arising from Consultant's or indemnitors'
negligent performance of or failure to perform any term, provision, covenant or condition of this
Agreement, and in connection therewith:
(a) Consultant will defend any action or actions filed in connection with any of said
claims or liabilities and will pay all reasonable costs and expenses, including legal costs and
attorneys' fees incurred in connection therewith;
6.2 Reports is removed.
6.3 Ownership of Documents is removed.
6.4 Confidentiality and Release of Information is amended in part as follows:
(a) Removed.
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(b) Consultant, its officers, employees, agents or subcontractors, shall not, without
prior written authorization from the Contract Officer or unless requested by the City Attorney,
voluntarily provide documents, declarations, letters of support, testimony at depositions,
response to interrogatories or other information concerning the work performed under this
Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided
Consultant gives City notice of such court order or subpoena unless said notice is otherwise
prohibited by law.
(c) If Consultant, or any officer, employee, agent or subcontractor of Consultant,
provides any information or worlpreduet in violation of this Agreement,then City shall have the
right to reimbursement and indemnity from Consultant for any damages, costs and fees,
including attorneys fees, caused by or incurred as a result of Consultant's conduct.
(d) Unless prohibited by law, Consultant shall promptly notify City should
Consultant, its officers, employees, agents or subcontractors be served with any summons,
complaint, subpoena, notice of deposition, request for documents, interrogatories, request for
admissions or other discovery request, court order or subpoena from any party regarding this
Agreement and the work performed there under. City retains the right, but has no obligation, to
represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant
agrees to cooperate fully with City and to provide City with the opportunity to review any
response to discovery requests provided by Consultant. However, this right to review any such
response does not imply or mean the right by City to control, direct,or rewrite said response.
7.2 Disputes;Default is amended as follows:
- = : - = '- : - -•" - '- Either Party may give notice to Gensultant other Party
of the any default under this Agreement and the reasons for the default. The notice shall include
the timeframe in which Eefisultaitt the defaulting Party may cure the default. This timeframe is
presumptively thirty (30) days, but may be extended, though not reduced, if circumstances
warrant. During the period of time that Consultant is in default, the City shall hold all invoices
and shall,when the default is cured,proceed with payment on the invoices. In the alternative,the
City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the
period of default. If feztstkItant the defaulting Party does not cure the default, the City other
Party may take necessary steps to terminate this Agreement under this Article. Any failure on the
part of the City non-defaulting Party to give notice of the defaulting Party's default
shall not be deemed to result in a waiver of the City's non-defaulting Party's legal rights or any
rights arising out of any provision of this Agreement.
7.7 Termination Prior to Expiration of Term is amended as follows:
This Section shall govern any termination of this Contract except as specifically provided in the
following Section for termination for cause. The City reserves the right to terminate this
Contract at any time, with or without cause, upon thirty (30) days' written notice to Consultant,
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except that where termination is due to the fault of the Consultant, the period of notice may be
such shorter time as may be determined by the Contract Officer. In addition, the Consultant
reserves the right to terminate this Contract at any time, with or without cause, upon sixty(60)
days' written notice to City, except that where termination is due to the fault of the City, the
period of notice may be such shorter time as the Consultant may determine. Upon receipt of any
notice of termination, Consultant shall immediately cease all services hereunder except such as
may be specifically approved by the Contract Officer. - - : - . _ . :
termination the Upon termination. Consultant shall be entitled to compensation for all services
rendered prior to the effective date of the notice of termination and for any services authorized by
the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may
be approved by the Contract Officer, except as provided in Section 7.3. In-the-event-the
-:•;-; -: ` - :. - - - - - - •- - -- - - In the event of termination
without cause pursuant to this Section, the.terminating party need not provide the non-
terminating party with the opportunity to cure pursuant to Section 7.2.
7.8 Termination for Default of Consultant is removed.
9.6 Warrant&Representation of Non-Collusion is amended to add
To Consultant's knowledge,no official,officer. . .
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EXHIBIT"C"
SCHEDULE OF COMPENSATION
RATE TIME BUDGET
A. City $50/Resident N/A $100,000
Contribution Household
Amount
Consultant shall offer a Promotional Code to City Residents which provides a discount
during the Promo Period,as described more fully in Exhibit"A"Scope of Services.
City Contribution Amount. Within 30 days of its receipt of the Account Statement, City
shall pay Ring an amount equal to SfQ (the "City Contribution Amount") for the first
Product sold to each Resident Household during the Promo Period using the Promotional
Code. No other Product is eligible for a City Contribution Amount. Without limiting
City's obligation to pay the Sales Contribution Amount within 30 days, City may, at its
own cost and expense, audit Ring's applicable sales data to confirm the amount of the
Sales Contribution Amount within one year of the end of the Promo Period.
The total compensation for the Services shall not exceed$100,000 as provided in
Section 2.1 of this Agreement.
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EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Consultant shall deliver the following tangible work products to the City and/or
Residents by the following dates.
A. Promotional Code. Ring agrees to provide Residents a Promotional Code as
described in Exhibit "A" that will be valid for a period of sixty (60) days
commencing on the date mutually agreed by the parties(the"Promo Period").
B. Order Fulfillment. Ring will use commercially reasonable efforts to ship the
Products within three business days from date of order.
C. Free Cloud Services. Ring will provide its Cloud Video Recording services to
each Resident purchasing a Product free of charge for 30 days immediately
following Product activation.
D. User Support. Provide user support to Residents who purchase Products
E. Marketing Support. Ring will provide the City with internal product support
(namely, product education) and will provide the City with access to marketing
materials prepared by Ring that the City may use in its marketing efforts, if any,
by February 1, 2017 (or within 5 business days of the execution of this
Agreement,if later).
F. Accounting. Within 30 days after the end of the end of each month, Ring will
provide the City with an accounting statement (the "Accounting Statement")
setting forth the number of Products purchased using the Code during the Promo
Period, and such other information reasonably requested by City to enable the
parties to determine the City's required Sales Contribution Amount.
II. The Contract Officer may approve extensions for performance of the services in
accordance with Section 3.2.
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