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Vigilant Solutions LLC - FY2020-056 AGREEMENT FOR CONTRACT SERVICES By and Between CITY OF RANCHO PALOS VERDES and VIGILANT SOLUTIONS, LLC ALPR WESTERN AVENUE PHASE 2 01203 0001/628025 1 AGREEMENT FOR CONTRACT SERVICES BETWEEN THE CITY OF RANCHO PALOS VERDES AND VIGILANT SOLUTIONS,LLC aar0 THIS AGREEMENT FOR CONTRrACT SERVICES (herein "Agreement") is made and entered into this ii14' day of ftig cty, 20 by and between the City of Rancho Palos Verdes, a California municipal corporation ("City") and Vigilant Solutions, LLC, a Limited Liability Company ("Consultant") City and Contractor may be referred to, individually or collectively, as "Party" or"Parties " RECITALS WHEREAS, Consultant designs, develops, licenses and services advanced video analysis software technologies for the law enforcement and security markets WHEREAS, Consultant provides access to license plate data as a value-added component of Consultant's law enforcement package of License Plate Recognition (LPR) equipment and software WHEREAS, City has previously installed LPR cameras at certain locations through a joint project with Palos Verdes Peninsula cities WHEREAS, on July 17, 2018, City and Consultant entered into an agreement with Consultant to purchase additional LPR cameras and hardware for the Eastview neighborhood and to license from and receive service for the Software Products (Phase 1) WHEREAS, now City and Consultant with to enter into a further agreement for Phase 2 of the project, which consists of installation and operation of additional LPR cameras and hardware in the same neighborhood (Phase 2) WHEREAS, Consultant is the sole source provider of the LPR equipment and software 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 -1- 01203 0001/628025 1 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 California Labor Law If the Scope of Services includes any "public work" or "maintenance work," as those terms are defined in California Labor Code section 1720 et seq and California Code of Regulations, Title 8, Section 16000 et seq , and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq and 1810 et seq , and all other applicable laws, including the following requirements (a) Public Work The Parties acknowledge that some or all of the work to be performed under this Agreement is a "public work" as defined in Labor Code Section 1720 and that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works contracts and the rules and regulations established by the Department of Industrial Relations ("DIR") implementing such statutes The work performed under this Agreement is subject to compliance monitoring and enforcement by the DIR Contractor shall post job site notices, as prescribed by regulation (b) Prevailing Wages Contractor shall pay prevailing wages to the extent required by Labor Code Section 1771 Pursuant to Labor Code Section 1773 2, copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested party on request By initiating any work under this Agreement, Contractor acknowledges receipt of a copy of the Department of Industrial Relations (DIR) determination of the prevailing rate of per diem wages, and Contractor shall post a copy of the same at each job site where work is performed under this Agreement -2- 01203 0001/628025 1 (c) Penalty for Failure to Pay Prevailing Wages Contractor shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages The Contractor shall, as a penalty to the City, forfeit two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Contractor or by any subcontractor (d) Payroll Records Contractor shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Contractor and each subcontractor to keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776, certify and make such payroll records available for inspection as provided by Section 1776, and inform the City of the location of the records (e) Apprentices Contractor shall comply with and be bound by the provisions of Labor Code Sections 1777 5, 1777 6, and 1777 7 and California Code of Regulations Title 8, Section 200 et seq concerning the employment of apprentices on public works projects Contractor shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations Pnor to commencing work under this Agreement, Contractor shall provide City with a copy of the information submitted to any applicable apprenticeship program Within sixty (60) days after concluding work pursuant to this Agreement, Contractor and each of its subcontractors shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement (f) Eight-Hour Work Day Contractor acknowledges that eight (8) hours labor constitutes a legal day's work Contractor shall comply with and be bound by Labor Code Section 1810 (g) Penalties for Excess Hours Contractor shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours The Contractor shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Agreement by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code Pursuant to Labor Code section 1815, work performed by employees of Contractor in excess of eight (8) hours per day, and forty (40) hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than one and one-half(1'/2) times the basic rate of pay (h) Workers' Compensation California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees if it has employees In accordance with the provisions of California Labor Code Section 1861, Contractor certifies as follows "I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to -3- 01203 0001/628025 1 undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract" Contractor's Authorized Initials (i) Contractor's Responsibility for Subcontractors For every subcontractor who will perform work under this Agreement, Contractor shall be responsible for such subcontractor's compliance with Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code, and shall make such compliance a requirement in any contract with any subcontractor for work under this Agreement Contractor shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor's compliance, including without limitation, conducting a review of the certified payroll records of the subcontractor on a periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages Contractor shall diligently take corrective action to halt or rectify any such failure by any subcontractor 1 5 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 1 6 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 7 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 -4- 01203 0001/628025 1 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 1.8 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 1.9 Additional Services City shall have the right at any time during the performance of the services to amend the Agreement to add, deduct, or alter the services beyond those specified in the Scope of Services In the case of additional services, no such services may be undertaken unless an amendment to the Agreement is first executed between the City and the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the additional services, and/or (ii) the time to perform this Agreement Any amendment for additional services must be approved by the City Manager or by the City Council, in accordance with Chapter 2 14 of the Rancho Palos Verdes Municipal Code 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 nsk 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 Consultants 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 1 10 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 $216,760 (Two Hundred Sixteen Thousand Seven Hundred Sixty Dollars) (the "Contract Sum"), unless additional compensation is approved pursuant to Section 1 9 -5- 01203 0001/628025 1 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 matenals 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 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 -6- 01203 0001/628025 1 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 penod(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 penod(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 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) year from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit «l-y) 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 -7- 01203 0001/628025 1 Greg Mills Regional Sales Manager (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, Deputy 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 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 -8- 01203 0001/628025 1 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 Without limiting Consultant's indemnification of City, and prior to commencement of any services under this Agreement, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City (a) General liability insurance Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage The policy must include contractual liability that has not been amended Any endorsement restricting standard ISO "insured contract" language will not be accepted (b) Automobile liability insurance Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non- owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident (c) Professional liability (errors & omissions) insurance Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of$1,000,000 per claim and in the aggregate Any -9- 01203 0001/628025 1 policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a penod no less than three (3) years after completion of the services required by this Agreement (d) Workers' compensation insurance Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000) (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 (a) Proof of insurance Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance Current certification of insurance shall be kept on file with City at all times during the term of this Agreement City reserves the right to require complete, certified copies of all required insurance policies, at any time (b) Duration of coverage Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Services hereunder by Consultant, its agents, representatives, employees or subconsultants (c) Primary/noncontributing Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non- contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect it as a named insured (d) City's rights of enforcement In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments In the alternative, City may cancel this Agreement (e) Acceptable insurers All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or that is on the List of Approved Surplus Line Insurers in the State of California, with an -10- 01203 0001/628025 1 assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager (f) Waiver of subrogation All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants (g) Enforcement of contract provisions (non-estoppel) Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder (h) Requirements not limiting Requirements of specific coverage features or limits contained in this section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City (i) Notice of cancellation Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage 0) Additional insured status General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies This provision shall also apply to any excess/umbrella liability policies (k) Prohibition of undisclosed coverage limitations None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing (1) Separation of insureds A severability of interests provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer's limits of liability The policy(ies) shall not contain any cross-liability exclusions (m) Pass through clause Consultant agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto or involved in -11- 01203 0001/628025 1 the project by Consultant, provide the same minimum insurance coverage and endorsements required of Consultant Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section Consultant agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review (n) Agency's right to revise specifications The City reserves the right at any time dunng the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance wntten notice of such change If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant's compensation (o) Self-insured retentions Any self-insured retentions must be declared to and approved by City City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible Self-insurance will not be considered to comply with these specifications unless approved by City (p) Timely notice of claims Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies (q) Additional insurance Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work 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, 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 -12- 01203 0001/628025 1 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 ARTICLE 6 RECORDS, REPORTS, AND RELEASE OF INFORMATION 61 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 -13- 01203 0001/628025 1 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 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 -14- 01203 0001/628025 1 (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 attorney's 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 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 -15- 01203 0001/628025 1 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 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 Liquidated Damages Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City the sum of Five Hundred Dollars ($500) as liquidated damages for each working day of delay in the performance of any service required hereunder The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages -16- 01203 0001/628025 1 7.8 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 penod 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 9 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 7.10 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 deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment -17- 01203 0001/628025 1 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 § 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 -18- 01203 0001/628025 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 , Rancho Palos Verdes, 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 -19- 01203 0001/628025 1 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 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 represents that (s)he/it has not engaged in any act(s), omission(s), or other conduct or collusion that would result in the payment of any money, consideration, or other thing of value to any third 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 Initials A4, 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, and (iv) that 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 ON FOLLOWING PAGE] -20- 01203 0001/628025 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 mun ipal co 1..r.tion John C sh. l ,Mayor ATTEST\ Emil faMillrity Clerk APPROVED AS TO FORM ALESHIRE & WYNDER,LLP ( William W Wynder, ttomey CONSULTANT VIGILANT SOLUTIONS, LLC By e Bill Quinlan Title Vice President Sales Opeiation By - Name Steven Cintron Title Treasurer Addiess 1152 Stealth Stiect Liveimore, CA 94551 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 -21- 01203 0001/628025 I 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 isk COUNTY OF I30S-ATUQ[LES C lvoTAaY e•+171-8 c) On I" -9 . •a 2020 before me,ie-Ply f.?I 7 personally appeared SWOvrn1aproved to me on the basis of satisfactory evidence to be the person($')whose names(')) is/aro.subscribed to the within instrument and acknowledged to me that he/sive/Hwy executed the same in his/$ /tlmr authorized capacity(w), and that by his/heF/thegr signatures) on the instrument the person(y), or the entity upon behalf of which the person) acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct �.� KMBHATT WITNESS my hand and official seal „ ` Commission # 2143124 A:3 Notary Public California z Z ”' Alameda County Signature � My Comm Expires Feb 19 2°2°— OPTIONAL 070JOPTIONAL Though 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 ATTACHED DOCUMENT B INDIVIDUAL " .aeL4MuT ►+ giy Con*ad Service CORPORATE OFFICER V i Ce Prr$'dent Sc.leo Op en4rTifl TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ti 8 ped'`'' ❑ GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR O 1 - 2 - 20 ❑ OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING Cir n (NAME OF PERSON(S)OR ENTITY(IES)) SIGNER(S)OTHER THAN NAMED ABOVE V. ;,Qafa sol„*0(74 L1,C- 01203 0001/628025 1 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 (WWI o COUNTY OFl WAN0.49k1G) On I 'l 'l_o , 2020 before me, OffAti \�trnel►t personally appeared kf .1r*YO(i, proved to me on the basis of satisfactory evidence to be the person(e)whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/slae/they executed the same in hisnierAlvair authorized capacity(aes), and that by his/he/444u signature( on the instrument the person(, or the entity upon behalf of which the person(s) acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and official seal DANAMARIE LOGA4 JIMEVEZ � •_Notary Public Ca'Ionia Alameda Co-ity Signature = Commission+2299268 LtMYC0mue6J.. 2c 2023 OPTIONAL Though 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 ATTACHED DOCUMENT ❑ INDIVIDUAL CORPORATE OFFICER ra1�`Qi1� TITLE OR TYPE OF DOCUMENT TITLE(S) 11 ❑ PARTNER(S) El ,,KLIMITED S• fo,w ❑ GENERAL NUMBER OF PAGES ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ' 2-4) `202o ❑ OTHER DATE OF DOCUMENT SIGNER IS REPRESENTING �j�I 1 (W nV (NA„ME OF PER O )OR ENTITY(IES) SIGNER(S)OTHER THAN NAMED ABOVE V\%\\OAt groA001\c , 01203 0001/628025 1 EXHIBIT "A" SCOPE OF WORK I Consultant will provide ALPR cameras and related infrastructure to City, will install the cameras and infrastructure, and provide hardware and software maintenance A Hardware Purchase Manufacturing and shipping of 13 Automated License Plate Recognition (ALPR) cameras (See Exhibit C-1 for technical specifications ) B. Installation 13 Automated License Plate Recognition (ALPR) fixed cameras (installation of cameras on existing poles will be provided by a separate contractor) i. System startup and commissioning of fixed ALPR cameras ii User and Agency Manager training C. Software License Consultant hereby grants City an Enterprise License to the Software Products for the Term provided in Section 3 4 of this Agreement (see Exhibit "B") D Software Support, Warranty, and Maintenance i City will receive technical support by submitting a support ticket to Consultant's support website or by sending an email to Consultant's support team ii Updates, patches, and bug fixes of the Software Products will be made available to City at no additional charge iii Consultant will provide Software Products support to City's Technical Support Agents through e-mail, fax, and telephone iv Basic LPR Service Package 1 Consultant Managed/Hosted LPR server LEARN Account 2 Access to all Consultant Software including all upgrades and updates 3 Unlimited user licensing for the following applications a LEARN, CarDetector and TAS b Mobile Companion 01203 0001/628025 1 A-1 v Camera License Keys (CLKs) City is entitled to use of the Software Products during the term of this Agreement to set up and install the Software Products on an unlimited number of media centers within City's agencies in accordance with selected Service Options As a City installs additional units of the Software Products and connects them to LPR cameras, City is required to obtain a CLK for each camera installed and considered in active service A CLK can be obtained by a City by going to Contractor's support website and completing the online request form to Contractor's technical support staff Within two (2) business days of a City's application for a CLK, City's Technical Support Agent will receive the requested CLK that is set to expire on the last day of the Initial Term or the then-current Service Period, as the case may be E Hardware maintenance. Consultant will provide hardware maintenance in conformance with the warranty provisions of Article 10 of the Agreement (see Exhibit B) II All work is subject to review and acceptance by the City, and must be revised by the Consultant without additional charge to the City until found satisfactory and accepted by City III During installation, Consultant shall provide safe and continuous passage for pedestrian and vehicular traffic in accordance with the Work Area Traffic Control Handbook(WATCH), latest edition. IV.As part of the Services, Consultant will prepare and deliver the following tangible work product to the City A 13 ALPR fixed cameras and associated hardware and software V. In addition to the requirements of Section 6.2, during performance of the Services, Consultant will keep the City apprised of the status of performance by delivering the following status reports. A. Site Specific Preparation Sheet- Provides pertinent system planning information required for the deployment of our fixed ALPR systems B. System Startup and Commissioning Report - System Commissioning is a systematic process of ensuring that City's Vigilant Solutions ALPR system performs interactively according to the design intent and the end-user's operational needs The process provides City with a periodic commissioning report consisting of sample images to ensure the camera is working within parameters VI All work product is subject to review and acceptance by the City, and must be revised by the Consultant without additional charge to the City until found satisfactory and accepted by City. 01203 0001/628025 1 A-2 VII Consultant will utilize the following personnel to accomplish the Services A Jacques Lilavois B Electrician from subcontractor Bear Electncal, TBD C Greg Mills 01203 0001/628025 1 A-3 EXHIBIT "B" SPECIAL REQUIREMENTS (Superseding Contract Boilerplate) All new text is marked in bold italics and deleted text is marked in strrlreugh Section 1.4, California Labor Law, is amended to read• 1 4 California Labor Law The Scope of Services for this Agreement, as articulated in Exhibit A, does not include work that requires payment of prevailing wages under California state law. Consultant acknowledges, however, that work subject to prevailing wages is determined by state law, and not by the parties pursuant to agreement, and that Ifif any of the Scope of Serviceswork performed under this Agreement includes any "public work" or "maintenance work," as those terms are defined in California Labor Code section 1720 et seq and California Code of Regulations, Title 8, Section 16000 et seq , and if the total compensation is $1,000 or more, Consultant shall pay prevailing wages for such work and comply with the requirements in California Labor Code section 1770 et seq and 1810 et seq , and all other applicable laws., including the following (a) Public Work The Parties acknowledge that some or all of the work to be performed under this Agreement is a "public work" as defined in Labor Code Section 1720 and that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works contracts and the rules and regulations established by the Department of . _ " r" - .. - _ .. (b) Prevailing Wages Contractor shall pay prevailing wages to the extent required by Labor Code Section 1771 Pursuant to Labor Code Section 1773 2, copies of the prevailing rate of per diem wages are on file at City Hall and will be made available to any interested party on request By initiating any work under this Agreement, Contractor acknowledges receipt of a copy of the Department of Industrial Relations (DIR) determination of the prevailing rate of per diem wages, and Contractor shall post a (c) Penalty for Failure to Pay Prevailing Wages Contractor shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages The Contractor shall, as a penalty to the City, forfeit two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than 01203 0001/628025 1 B-1 subcontractor (d) Payroll Records Contractor shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Contractor and each penalty of perjury, as specified in Section 1776, certify and make such payroll records of the records of Labor Code Sections 1777 5, 1777 6, and 1777 7 and California Code of Regulations Title 8, Section 200 et seq concerning the employment of apprentices on public works Sections for all apprenticeable occupations Prior to commencing work under this applicable apprenticeship program Within sixty (60) days after concluding work Agreement . . . . . . . . . .. . . . . . .. . . . . .. .- - Section 1 4 1 0 (g) Penalties for Excess Hours Contractor shall comply with and be bound by _-- . - - , . in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code Pursuant to Labor Code section 1815, work performed by employees of Contractor in excess of tight (8) hours per day, and forty (10) hours during worked in excess of 8 hours per day at not less than one and one half(11/2) times the basic rate of pay (h) Workers' Compensation California Labor Code Sections 1860 and 3700 employees if it has employees In accordance with the provisions of California Labor Code Section 1861, Contractor certifies as follows "I am aware of the provisions of Section 3700 of the Labor Code which require 01203 0001/628025 1 B-2 this contract " Contractor's Authorized Initials perform work under this Agreement, Contractor shall be responsible for such - - . - -- - .. of wages Contractor shall diligently take corrective action to halt or rectify any such failure by any subcontractor II Section 1 5, Licenses, Permits, Fees and Assessments, is amended to read. 1 5 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 anse 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 Notwithstanding the foregoing, Consultant shall only be required to obtain from the City the following permits • Rancho Palos Verdes Business License ($384 for Contractors and $190 for Subcontractors)A State fee for Certified Disability access Specialist Program of $4 is also required for each license • Permit (no fee) — all required permits, including Encroachment and Electrical Traffic Control required if Encroaching on Western Ave • Trust Deposit in order to cover Inspections III Section 1 9,Additional Services, is amended to read: 1 9 Additional Services City shall have the right at any time during the performance of the services to amend the Agreement to add, deduct, or alter the services beyond those specified in the 01203 0001/628025 I B-3 Scope of Services However, no alterations or deductions from said work shall be made involving equipment that is ordered from and already delivered by Consultant In the case of additional services, no such services may be undertaken unless an amendment to the Agreement, based on a written quote provided by Consultant, is first executed between the City and the Consultant, incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the additional services, and/or (ii) the time to perform this Agreement Any amendment for additional services must be approved by the City Manager or by the City Council, in accordance with Chapter 2 14 of the Rancho Palos Verdes Municipal Code 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 Consultants 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 IV Section 3 4, Term, is amended to read 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)five (5) years from the date hereof (the `Initial Term"), except as otherwise provided in the Schedule of Performance (Exhibit ` D") Sixty (60) days prior to the expiration of the Initial Term and each subsequent Service Period, Consultant will provide City with an invoice for the Service Fee due for the subsequent Service Period This Agreement and the Enterprise License granted under this Agreement will be extended for a Service Period upon City's payment of that Service Period's Service Fee, which is due thirty (30) days prior to the expiration of the Initial Term or the existing Service Period, as the case may be If the City chooses not to make payment on the invoice for the subsequent Service Period, this Agreement and all services and licenses under this Agreement will terminate at the end of the then-current term or service period V Section 4 1, Representatives and Personnel of Consultant, is amended to read 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 Greg Mills Regional Sales Manager (Name) (Title) 01203 0001/628025 1 B-4 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, as long s the Principal(s) continue to be employed by Consultant 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 VI Section 4 5, Prohibition Against Subcontracting or Assignment, is amended to read 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 Consultant will subcontract with Bear Electrical for the electrical work 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 VII Subsection (g) of Section 5 1, Insurance Coverages, is added to read. 5 1 Insurance Coverages [ ] (g) Excess Liability A policy of excess liability for liability coverage in excess of the Commercial Liability in an amount not less than $3,000,000 per occurrence/aggregate VIII Section 5.2, General Insurance Requirements, is amended to read. 5 2 General Insurance Requirements 01203 0001/628025 1 B-5 (a) Proof of insurance Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance Current certification of insurance shall be kept on file with City at all times during the term of this Agreement City reserves the right to require complete, certified (b) Duration of coverage Consultant shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Services hereunder by Consultant, its agents, representatives, employees or subconsultants (c) Primary/noncontributing General liability coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect it as a named insured (d) City's rights of enforcement In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments In the alternative, City may cancel this Agreement (e) Acceptable insurers All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or that is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager (f) Waiver of subrogation All insurance coverage maintained or procured pursuant to this agreement except professional liability shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants 01203 0001/628025 1 B-6 (g) Enforcement of contract provisions (non-estoppel) Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder (h) Requirements not limiting Requirements of specific coverage features or limits contained in this section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type If--the-Consultant (i) Notice of cancellation Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage (1) Additional insured status General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies This provision shall also apply to any excess/umbrella liability policies (k) ' - - - - - - - -. Coverage limitations None of the coverages required herein will be in compliance with these requirements if they include any non-typical limiting endorsement that would have the practical effect of negating such coverageof any kind that has not been first submitted to City and approved of in �g (1) Separation of insureds A severability of interests provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer's limits of liability The policy(ies) shall not contain any cross- liability exclusions (m) Pass through clause Consultant agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage and endorsements required of Consultant Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section Consultant agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to City for review 01203 0001/628025 1 B-7 (n) Agency's right to revise specifications The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant's compensation (o) Self-insured retentions Any self-insured retentions must be declared to and approved by City City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible Self-insurance will not be considered to comply with these specifications unless approved by City (p) Timely notice of claims Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies (q) Additional insurance Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work IX Section 5 3, Indemnification, is amended to read to read. 5 3 Indemnification and Limitation of Liability To the full extent permitted by law, Consultant agrees to indemnify and defend 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 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) Provided that the Indemnified Party has provided timely notice to Consultant and cooperates in the defense of the action, 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, Consultant shall have sole control over the defense and settlement of any indemnified claim,provided that the selection of defense counsel and the terms of any settlement are subject to the reasonable approval of the City, which may not be unreasonably withheld. Any Indemnified Party shall be entitled to participate in the defense of such claim at its own expense, and with counsel of its own choosing 012030001/628025 1 B-8 (b) Provided that the Indemnified Party has provided timely notice to Consultant and has cooperated in the defense of the action, 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 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, the City agrees to promptly notify Consultant and Consultant agrees to defend such claime the City, its officers, agents or employees, any and all costs and expenses incurred by the , . - , _ - . - . . - - . - . . . . . - . ., - .. .. • 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 . .. - - .. - . . . . - - - 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 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 (d) Consultant shall not be liable under any theory for any special, consequential, indirect or punitive damages related to this agreement, even if Consultant is advised of the possibility of such damages Notwithstanding anything to the contrary in this Agreement, Consultant's total liability related to this agreement, regardless of theory, shall not exceed$500,000 (five hundred thousand dollars) X. Section 6 3, Ownership of Documents, is amended to read. 6 3 Ownership of Documents (a) Except as otherwise limited by the language below, Allall 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 01203 0001/628025 1 B-9 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 matenals 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 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 A 1l subcontractors and materials that may qualify as "works made for hire" as defined in 17 U S C § 101, (b) Ownership of Software Products. The Software Products are copyrighted by Consultant and remain the property of Consultant The license granted under this Agreement is not a sale of the Software Products or any copy thereof City owns the physical media on which the Software Products are Installed, but Consultant retains title and ownership of the Software Products and all other materials included as part of the Software Products. City acknowledges that Software Products contain valuable and proprietary Information of Consultant and City will not disassemble, decompile, or reverse engineer any Software Products to gain access to confidential or proprietary Information of Consultant. (c) Rights in Software Products Consultant represents and warrants that (1) it has title to the Software and the authority to grant license to use the Software Products, (2) it has the corporate power and authority and the legal right to grant the licenses contemplated by this Agreement, and (3) it has not and will not enter into agreements and will not take or fail to take action that causes its legal right or ability to grant such licenses to be restricted (d) Ownership of LPR Data Consultant retains all title and rights to Commercial LPR Data City retains all rights to LEA LPR Data generated by the City Should City terminate this Agreement, a copy of all LEA LPR Data generated by the City will be created and provided to the City After the copy is created, all LEA LPR Data generated by the City will be deleted from LEARN at the written request of an authorized representative of the City XI. Subsections (e) and (f) of Section 6 4, Confidentiality and Release of Information, are added to read. (e) Any use, copy or disclosure of Software Products by the U S Government is subject to restrictions as set forth in this Agreement and as provided by DFARS 227 7202-1(a) and 227 7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (Oct 1988), FAR 12 212(a)(1995), FAR 52 227-19, or FAR 52 227(ALT III), as applicable. 01203 0001/628025 1 B-10 (f) City acknowledges that Software Products contain valuable and proprietary information of Consultant and City will not disassemble, decompile or reverse engineer any Software Products to gain access to confidential information of Consultant XII. Section 7 7, Liquidated Damages, is deleted in its entirety XIII Section 7 8,Termination Prior to Expiration of Term, is amended as follows: 7 8 Termination Prior to Expiration of Term This Section shall govern any termination of this Contract except as specifically . .-. -- _ _ --- . . . . - 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 penod 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 without fault of the City, 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 Notwithstanding any language in this Agreement to the contrary, the City shall not be entitled to a refund of any Service Fees in the event this Agreement is terminated prior to the expiration of the Initial Term or any subsequent service period except as set forth below 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 All licenses granted to the City by Consultant shall immediately terminate upon termination of this Agreement, provided that if Consultant initiates termination without fault of the City, or the City initiates termination due to the fault of Consultant, (a) the City's license for CarDetector software (and the terms of this Agreement applicable to such license) shall remain in effect for the remainder of the then-current term as if the Agreement had not been terminated, and (b) Consultant shall continue to provide access to LEARN for at least ninety (90) days following the notice of termination and the City shall be entitled to a pro rata refund of the applicable Service Fees attributable to LEARN access as set forth on Exhibit C for the remainder of the then-current term. XIV Section 7 9, Termination for Default of Consultant, is deleted in its entirety. 01203 0001/628025 1 B-11 XV Section 9 4, Integration, Amendment, in amended as follows. 9 4 Integration, Amendment This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the parties with regard to the subject matter hereof 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 This Agreement does not replace any prior agreements of the Parties covering other installations XVI. Article 10, Software License and Hardware Limited Warranty, is added to read. ARTICLE 10. SOFTWARE LICENSE AND HARDWARE LIMITED WARRANTY 10 1 Enterprise License Grant, Duplication and Distribution Rights. (a) This Agreement allows City to install the Software Products on an unlimited number of devices, in accordance with the selected Service Package(s), and allow benefits of all rights granted hereunder (b) Subject to the terms and conditions of this Agreement, Consultant hereby grants City an Enterprise License to the Software Products for the Term provided in Section 3.4 of this Agreement Except as expressly permitted by this Agreement, City or any third party acting on behalf of City shall not copy, modify, distribute, loan, lease, resell, sublicense or otherwise transfer any right in the Software Products Except as expressly permitted by this Agreement, no other rights are granted by implication, estoppels or otherwise City shall not eliminate, bypass, or in any way alter the copyright screen (also known as the "splash"screen) that may appear when Software Products are first started on any computer. Any use or redistribution of Software Products in a manner not explicitly stated in this Agreement, or not agreed to in writing by Consultant, is strictly prohibited. This Enterprise License authorizes City to share Software Product and data with the Los Angeles County Sheriff's Department, pursuant to LASD's own enterprise license Consultant acknowledges that City has no control over LASD or its use of the Software Products (c) In the event that LASD's enterprise license expires or is terminated for any reason, Consultant will notify the City in writing forthwith and City will, upon receipt of the notice, immediately cease sharing Software Products and data with LASD. 10 2 Warrant), and Disclaimer, Infringement Protection; Use of Software Products Interface 01203 0001/628025 1 B-12 (a) Warranty Policy and Disclaimer (Hardware) This policy warrants Hardware distributed by Consultant and sold to the City. This warranty extends to the City only and commences on the date of the Hardware is commissioned for a period of five (5)years, unless City and Consultant agree to an Extended Warranty This policy warrants that all materials be free of material defect for a period extended beyond the standard warranty period as entitled by the purchasing documents between Consultant and LASD. The purchasing documents are attached hereto in Exhibit B-1, and incorporated by reference. Consultant will either replace or repair any Hardware, or component thereof, that has been determined by Consultant to be defective throughout the extended warranty period Consultant reserves the right to replace any Hardware found to be defective with re-certified Consultant Hardware in accordance to the terms and conditions of this policy. Only qualifying items returned to an authorized Consultant return center will be warranted under this limited policy If City's Hardware was purchased as a component integrated within a system by a system manufacturer, the limited warranty provided by Consultant is limited to only Hardware provided by Consultant. City must contact the place of purchase or the system manufacturer directly for warranty service There are no warranties which extend beyond the face of the limited warranty Consultant disclaims all other warranties, express or implied, regarding the Hardware, including implied warranties of merchantability, fitness for a particular purpose, or non- infringement In the United States, some states do not allow the exclusion of implied warranties, so the above exclusion may not apply (i) Limitation of Warranty Consultant may elect which remedy or combination of remedies to provide in its sole discretion Consultant shall have a reasonable time after determining that defective Hardware exists to repair or replace such defective Hardware. Consultant's replacement Hardware under its limited warranty will be manufactured from new and/or serviceable used or re-certified parts. Consultant's warranty applies to repaired or replaced Hardware for the balance of the applicable period of the original warranty. Consultant's warranty does not cover Hardware which has been received from the City by Consultant improperly packaged, altered, or physically damaged All Hardware is subject to Consultant inspection upon receipt. (ii) Recertified Hardware. Consultant recertified Hardware may consist of customer return units and may be repaired All replacement Hardware components are tested and determined to meet Consultant's stringent quality standards before they are sold or replaced as re- certified Please note that some re-certified items may have marks, scratches, or other slight signs of wear All recertified Hardware carries a manufacturer's limited warranty throughout the extended warranty period as measured from the original date of purchase 01203 0001/628025 1 B-13 (iii) Return Material Authorization. Consultant warranty claims must be initiated on the Consultant website for a Return Material Authorization ("RMA") number at Vigilant RMA Request (http.//vigilantsolutions.com/support/return- material-authorization-request form) If Consultant determines that the Hardware may be defective, an RMA number will be issued with instructions for Hardware return Unauthorized returns will be returned to the City at the City's expense Authorized returns are to be shipped prepaid and insured to the address on the RMA in an approved shipping container. To request an RMA, City must contact its local authorized Vigilant dealer. (iv) Warranty Limitations. Consultant's limited warranty provides that, subject to the following limitations, Hardware will be free from defects in material and workmanship and will conform to Consultant's specification(s) (v) No Consequential or Other Damages. Notwithstanding anything else in this policy or otherwise, Consultant will not be liable with respect to the Hardware under any contract, negligence, strict liability or other legal or equitable theory for any consequential, punitive, incidental or special damages These include loss of recorded data, interruption of use, the cost of recovery of lost data, lost profits and the cost of installation, or removal of any Hardware, the installation of replacement Hardware, and any inspection, testing, or redesign caused by any defect or by the repair or replacement of Hardware arising from a defect in any Hardware This section does not limit liability for bodily injury of a person In the United States, some states do not allow exclusion for limitation if incidental or consequential damages, so the limitation above may not apply to City This warranty gives City specific legal rights, and you may also have other rights which may vary from state to state (vi) Use of Hardware. Consultant's limited extended warranty shall not apply to the following. • Hardware not sold by Consultant or one of its distribution partners, • Hardware found to be stolen from Consultant; • Asserted defect(s)found to not be present; • Asserted defect(s) cannot reasonably be fixed because of damage which occurred when the Hardware was in possession of someone other than Consultant or Consultant's agent, • Asserted defect(s) are attributable to misuse, improper installation by someone other than Consultant or Consultant's agent, or, alteration (including removing or obliterating labels and opening or removing external covers unless authorized to do so by Consultant or authorized Consultant agent), • Asserted defect(s) are the result of accident, mishandling, misuse or misapplied application use while in the possession of someone other than Consultant or Consultant's agent, 01203 0001/628025 1 B-14 • The Hardware was not sold as new (except Hardware replaced under this warranty) (v) Disclaimer EXCEPT FOR THE WARRANTY PROVIDED IN THIS VIGILANT LIMITED EXTENDED WARRANTY, THE VIGILANT HARDWARE, AND RELATED SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND,AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, VIGILANT DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, OR QUIET ENJOYMENT, OR ANY IMPLIED WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VIGILANT IS NOT RESPONSIBLE FOR ANY INCOMPATIBILITY OF THE SOFTWARE WITH HARDWARE NOT PROVIDED BY VIGILANT. VIGILANT DOES NOT WARRANT THAT VIGILANT SOFTWARE SUPPLIED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE VIGILANT DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE FUTURE SUCCESS OF THE VIGILANT HARDWARE OR THE VOLUME OF ANY PURCHASES THAT MAY BE MADE UNDER THIS AGREEMENT. TO THE EXTENT THAT VIGILANT MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW (b) Warranty and Disclaimer (Software Products) Consultant warrants that the Software Products will be free from all Significant Defects during the lesser of the term of this Agreement (the "Warranty Period') or five (5)years "Significant Defect" means a defect in a Software Product that impedes the primary function of the Software Product This warranty does not include products not manufactured by Consultant Consultant will repair or replace any Software Product with a Significant Defect during the Warranty Period; provided, however, if Consultant cannot substantially correct a Significant Defect in a commercially reasonable manner, City may terminate this Agreement and Consultant shall refund to City an amount calculated by multiplying the total amount of Service Fees paid by City for the then- current Service Period by the percentage resulting from dividing the number of days remaining in the then-current Service Period, by 365 The foregoing remedies are City's exclusive remedy for defects in the Software Product Consultant shall not be responsible for labor charges for removal or reinstallation of defective software, charges for transportation, shipping or handling loss, unless such charges are due to Consultant's gross negligence or intentional misconduct Consultant disclaims all warranties, expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose In no event shall Consultant be liable for any damages whatsoever arising out of the use of or inability to use, the Software Products. 012030001/628025 1 B-15 (c) Infringement Protection. If an infringement claim is made against City by a third party in a court of competent jurisdiction regarding City's use of any of the Software Products, Consultant shall indemn fy City, and assume all legal responsibility and costs to contest any such claim. If City's use of any portion of the Software Products or documentation provided to City by Consultant in connection with the Software Products is enjoined by a court of competent jurisdiction, Consultant shall do one of the following at its option and expense within sixty (60) days of such enjoinment. (1) Procure for City the right to use such infringing portion; (2) replace such infringing portion with a non-infringing portion providing equivalent functionality; or (3) modify the infringing portion so as to eliminate the infringement while providing equivalent functionality Consultant shall not charge Service Fees during the period of enjoinment until one of the options is implemented. 10 3 Data Sharing If the City is a generator as well as a consumer of LPR Data, the City at its option may share its LEA LPR Data with similarly situated LEAs who contract with Consultant to access LEARN(for example, LEAs who share LEA LPR Data with other LEAs). Consultant will not share any LEA LPR Data generated by a City without the permission of a City XVII Article 11, Definitions, is hereby added to read. ARTICLE 11. DEFINITIONS The following definitions apply to this Agreement. "Agency Manager"shall have the same meaning a City's Contract Officer "CLK"or "Camera License Key"means an electronic key that will permit each license of Consultant's CarDetector brand LPR software or LineUp brand facial recognition software (one CLK per camera) to be used with other Consultant LPR hardware components and Software Products "Enterprise License"means a non-exclusive, non-transferable license to install and operate the Software Products, on any applicable media, without quantity or limitation "Extended Warranty"refers to the extended warranty attached hereto as part of Exhibit `B-1 " "Hardware" means Consultant's License Plate Recognition Cameras, Communications Boxes, Steel Poles, Specialty Utility Boxes and required ancillary components "LEA"refers to a Law Enforcement Agency 01203 0001/628025 1 B-16 "LEA LPR Data" refers to LPR data collected by LEAs and available on LEARN for use by other LEAs LEA LPR Data is freely available to LEAs at no cost and is governed by the contributing LEA's retention policy "LEARN" refers to Consultant's Law Enforcement Archival & Reporting Network Software Product. "Commercial LPR Data" refers to LPR data collected by private commercial sources and available on LEARN with a paid subscription. "Service Package" means the City designated service option(s) which defines the extent of use of the Software Products, in conjunction with any service and/or benefits therein granted as rights hereunder this Agreement, as fully articulated in Exhibit "A'. "Service Fee" means the amount due from City prior to the renewal of this Agreement as consideration for the continued use of the Software Products and Service Package benefits according to Exhibit C of this Agreement. "Service Period"has the meaning set forth in Section 3 4 of this Agreement "Software Products"means Consultant's Law Enforcement & Security suite of Software Products including CarDetector, Law Enforcement Archival & Reporting Network (LEARN), Mobile Companion for Smartphones, Target Alert Service (TAS) server/client alerting package, FaceSearch, LineUp and other software applications considered by Consultant to be applicable for the benefit of law enforcement and security practices. "Technical Support Agents" means Sergeant John Gaw, LASD, Technology and Support Division (TSD), Communications and Fleet Management Bureau (CFMB),Advanced Surveillance and Protection Unit(ASAP), who shall be responsible for administering the Software Products and acting as City's Software Products support contact. "User"means the City of Rancho Palos Verdes. "User License" means a non-exclusive, non-transferable license to install and operate the Software Products, on any applicable media, limited to a single licensee. 01203 0001/628025 1 B-17 EXHIBIT "C" SCHEDULE OF COMPENSATION 1. Contractor shall perform all work at the rates listed below: A Purchase of Equipment, Installation, and Commissioning, and Initial Term (Service Fee included), payment to be made 80% upon shipment and 20% upon acceptance Qty Item# Description (13) VSF-100-RXD ReaperXD Fixed LPR Camera System • Vigilant Solutions High Definition Fixed LPR camera(standard wavelength) • Varifocal lens for capture up to 120' • Requires Vigilant Intel Box, sold separately • Includes Vigilant Solutions Pole Mount (12) BCAI1F2 Vigilant Fixed Camera Intelligence Box- Primary • Primary Intelligence Box to manage power and communications for up to two(2) Vigilant fixed LPR cameras and up to(3) Secondary Intelligence Boxes (13) CDFS-4HWW Fixed Camera LPR System -Extended Hardware Warranty -Year 2 through 5 • Fixed LPR System LPR hardware component replacement warranty • Applies to 1-Channel hardware system kit • Valid for 4 years from standard warranty expiration (1) Installation Installation per the 3-28-18 Site Survey (5) VSBSCSVC-04 Vigilant LPR Basic Service Package for Hosted/Managed LPR Deployments • Managed/hosted server account services by Vigilant Includes access to all LEARN or Client Portal and CarDetector software updates • Priced per camera per year for over 60 total camera units • Requires new/existing Enterpnse Service Agreement(ESA) (13) SSU-SYS-COM Vigilant System Start Up & Commissioning of'In Field' LPR system • Vigilant technician to visit customer site • Includes system start up, configuration and commissioning of LPR system • Applies to mobile(1 System)and fixed (1 Camera) LPR systems (1) VS-TRVL-01 Vigilant Travel via Client Site Visit • Vigilant certified technician to visit client site • Includes all travel costs for onsite support services 01203 0001/628025 1 C-1 (13) VS-SHP-02 Vigilant Shipping & Handling Charges • Applies to each fixed camera LPR System • Shipping Method is FOB Shipping TOTAL (before $216,765 tax) B Renewal of Service Period Following Termination of Initial Term 1 Service Fee Payment of each Service Fee entitles City to all rights granted under this Agreement, including without limitation, use of the Software Products for the relevant Service Period, replacement of CLKs, and access to the updates and releases of the Software Products and associated equipment driver software to allow the Software Products to remain current and enable the best possible performance The annual Service Fee due for a particular Service Period is based on the number of current Consultant issued CLK's at the time of Service Fee invoicing, and which will be used by City in the upcoming Service Period A schedule of annual Service Fees for subsequent Service Periods are shown below Annual Service Fee Schedule (multiplied by number of LPR Cameras) Service Fee $250 x5 $1,250 Payment of the Service Fee is due thirty (30) days prior to the renewal of the then- current Service Period All Service Fees are exclusive of any sales, use, value- added or other federal, state or local taxes (excluding taxes based on Consultant's net income) and City agrees to pay any such tax Service Fees may increase by no higher than 4%per year for Service Periods subsequent to the Initial Term 2 Extended Warranty Consultant and City may agree to an Extended Warranty period for Hardware Due to the unavailability of Hardware, Consultant provides no guarantee that an Extended Warranty will be available Should Consultant and City agree to the Extended Warranty, the annual fees are as follows 01203 0001/628025 1 C-2 Annual Extended Warranty Fee Schedule (multiplied by number of LPR Cameras) Camera Warranty $500 x 5 $2,500 II. A retention of five percent (5%) shall be held from each payment as a contract retention to be paid as part of the final payment upon satisfactory completion of services. NOT APPLICABLE III. Within the budgeted amounts for each item on the Bid Sheet, and with the approval of the Contract Officer, funds may be shifted from one item's subbudget to another so long as the Contract Sum is not exceeded per Section 2 1, unless Additional Work is approved per Section 1 9 IV The City will compensate Consultant for the Services performed upon submission of a valid invoice Each invoice is to include A. Line items for all materials and equipment properly charged to the Services B Line items for all other approved reimbursable expenses claimed, with supporting documentation C. Line items for all approved subcontractor labor, supplies, equipment, materials, and travel properly charged to the Services V The total compensation for the Services in the Initial Term shall not exceed the amount provided in Section 2.1 of this Agreement. VI Pro Rata Refund of Service Fee in the event of early termination of the Agreement initiated by, or due to the fault of, Consultant 1 During Initial Term If Consultant initiates termination of the Agreement, or the City initiates termination due to the fault of Consultant, during the initial term, the City shall be entitled to a refund of the Service Fees calculated as follows as of the termination date Number of months remaining in term/60 * $12,500 01203 0001/628025 1 C-3 EXHIBIT "D" SCHEDULE OF PERFORMANCE I. Contractor shall perform all work timely in accordance with the following schedule. A. Manufacturing and Shipping of hardware within 45 days after receipt of a Purchase Order B Installation of ALPR fixed cameras within 30 days of City's Notice to Proceed C. System startup and commissioning of fixed and mobile ALPR cameras within 30 days of City's Notice to Proceed D User and Agency Manager training within 30 days of City's Notice to Proceed E Software Support, Warranty and Maintenance is ongoing per the Term of the Agreement City will receive technical support by submitting a support ticket to Consultant's company support website or by sending an email to Consultant's support team Consultant shall respond as soon as reasonably possible and in any event no later than twenty-four(24) hours II Contractor shall deliver the following tangible work products to the City by the following dates A Site Specific Preparation Sheet by 30 days of receipt of a Purchase Order B System Startup and Commissioning Report by 90 days of receipt of a Purchase Order III. The Contract Officer may approve extensions for performance of the services in accordance with Section 3 2 01203 0001/628025 1 D-1