CC SR 20200204 K - Vigilant Solutions ALPR Cameras Western Phase 201203.0006/625868.1
RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 02/04/2020
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA DESCRIPTION:
Consideration and possible action to modify the Agreement with Vigilant Solutions, Inc.
for the Phase 2 purchase of ALPR cameras
RECOMMENDED COUNCIL ACTION:
(1) Consider the Contractor’s requested five modifications to the Agreement,
particularly the $500,000 limit on direct damages; and,
(2) If acceptable, approve the requested modifications and enter into an agreement
with Vigilant Solutions, Inc. in a form approved by the City Attorney to purchase
Phase 2 ALPR cameras for Eastview neighborhoods along Western Avenue.
FISCAL IMPACT: Equipment will cost $178,538 (including tax and $715 for shipping),
and is within the City’s budget for these items. This is in addition to
the $179,217.45 that was allocated for the purchase of Phase 1
cameras.
Amount Budgeted: $210,000
Additional Appropriation: $0
Account Number(s): 330-400-8822-8099 (CIP – Western Ave. ALPR/Misc. Expenses)
ORIGINATED BY: Charles Eder, PE, Senior Engineer
REVIEWED BY: Elias Sassoon, PE, Director of Public Works
APPROVED BY: Ara Mihranian, AICP, Interim City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. December 3, 2019, Staff report with attachments (page A-1)
B. Updated Phase 2 Agreement with Vigilant Solutions, Inc. (page B-1)
BACKGROUND AND DISCUSSION:
On December 20, 2016, the City Council authorized $360,000 for automated license
plate recognition (ALPR) camera equipment (not including construction) for the
Eastview neighborhoods along Western Avenue. Phase 1 of the ALPR camera
purchase was authorized by the City Council on June 5, 2018, in the amount of
$179,217.45. Phase 2 was approved by the City Council on December 3, 2019.
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01203.0006/625868.1
Since the City executed the Phase 1 contract, Vigilant was bought out by Motorola and
obtained new legal counsel who is requesting five additional changes to the Agreement
for Phase 2. Specifically, the changes are as follows:
1. Section 1.4 relating to prevailing wages has been amended to note that the
scope of work is not intended to include any work that is subject to prevailing
wages, but that the determination of whether prevailing wages must be paid is a
matter of state law and not agreement between the parties. The consultant is
responsible for ensuring that no prevailing wage work is performed.
2. The language that gives the City the right to review complete insurance policies
has been deleted; Vigilant’s insurance policy is proprietary.
3. Vigilant requested removal of language that states that if it has a higher limit of
insurance than what is required, that the higher limit will apply to the City
because it is providing the required level of insurance.
4. The prohibition on undisclosed policy limitations was deleted and replaced with
language stating that no limitation exists that would affect a claim under this
contract. This is also related to the proprietary nature of the insurance.
5. Limitation of liability: Vigilant’s liability will be limited to $500,000 in direct
damages only. Vigilant will not be liable for special, consequential, indirect or
punitive damages.
The City Attorney’s office has no objections to changes 1 through 4 and believes them
not to be substantive changes to the contract, but rather clarifications and
accommodations for proprietary insurance that the City has provided in the past.
However, the limitation of liability to $500,000 in direct damages is a substantive and
significant change to the Agreement. The City Council needs to consider whether to
approve these changes so that the contract can be executed, or to reject them. The
$500,000 limit of liability amount is substantially higher than the actual cost of the
cameras.
ALTERNATIVES:
In addition to the Staff recommendation, the following alternative action is available for
the City Council’s consideration:
1. Do not approve the Agreement with Vigilant Solutions, Inc. at this time and
direct Staff to further negotiate the terms of the Agreement with the
Contractor.
2. Discuss and direct Staff to take other action related to this item.
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RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 12/03/2019
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA DESCRIPTION:
Consideration and possible action to enter into an agreement with Vigilant Solutions,
Inc. to purchase Phase 2 ALPR cameras for Eastview neighborhoods along Western
Avenue
RECOMMENDED COUNCIL ACTION:
(1) Enter into an Agreement with Vigilant Solutions, Inc. in a form approved by the
City Attorney, to purchase Phase 2 ALPR cameras for Eastview neighborhoods
along Western Avenue.
FISCAL IMPACT: Equipment will cost $178,538 (including tax and $715 for shipping),
and is within the City’s budget for these items. This is in addition to
the $179,217.45 that was allocated for the purchase of Phase 1
cameras.
Amount Budgeted: $210,000
Additional Appropriation: $0
Account Number(s): 330-400-8822-8099 (CIP – Western Ave. ALPR/Misc. Expenses)
ORIGINATED BY: Gabriella Yap, Deputy City Manager
REVIEWED BY: Same as above
APPROVED BY: Ara Mihranian, Interim City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Vigilant Solutions Western Avenue Phase 2 Proposal (page A-1)
B. Phase 2 Agreement with Vigilant (page B-1 - forthcoming)
BACKGROUND AND DISCUSSION:
At the December 20, 2016 City Council meeting, the Council authorized $360,000 for
automated license plate recognition (ALPR) camera equipment (not including
construction) for the Eastview neighborhoods along Western Avenue. At the June 5,
2018 City Council meeting, the Council approved $179,217.45 for the purchase of
Phase 1 ALPR cameras.
As discussed at the August 20, 2019 City Council meeting, Phase 2 of the ALPR
Eastview project involves streetlights purchased from South ern California Edison, which
was completed June 3, 2019 and transferred pole ownership to the City. The City had
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been exploring with Vigilant whether its new, lower-cost ALPR camera for low-speed
areas would be appropriate for the Eastview neighborhoods. Unfortunately, it was
determined that the cameras would not be suitable because they would require
placement closer to the ground and subject to potential vandalism. However, Vigilant
was able to cut the costs on the long-range cameras, enabling the City to stay within
budget for the equipment purchase for both phases.
It is recommended that the Council approve the agreement to purchase Phase 2
cameras from Vigilant in the amount of $178,538. The installation work will be bid out
and Staff will bring back an agreement with the lowest responsive and responsible
bidder for Council’s approval.
ALTERNATIVES:
In addition to the Staff recommendation, the following alternative action is available for
the City Council’s consideration:
1. Do not approve the agreement with Vigilant Solutions, Inc. at this time.
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Quote For:
Rancho Palos Verdes Estates
Attn: Gabi Yapp
Reference:
Fixed Project, Phase 2, No Installation
Quote By:
Vigilant Solutions, LLC
Greg Mills
Date: 11-21-19
Be Smart. Be Safe. Be Vigilant.
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Protecting Officers, Families & Communities www.vigilantsolutions.com
BACKGROUND & FACT SHEET
Facts:
Headquarters: Livermore, California USA Agency Users: > 35,000
Founded: 2005 R & D Staff: > 70 full time
Agency Accounts: > 3,000 LPR Data Managed: >3 billion scans
Company Origin: Vigilant Solutions originated from the race in the 1990′s to produce advanced imaging
systems to support the microchip industry. Founder Shawn Smith recognized an opportunity to re‐
purpose this technological expertise in efforts to enhance officer and community safety while providing
needed law enforcement intelligence to combat broader issues such as narcotics trafficking and
terrorism.
Passion: Protecting Officers, Families & Communities
Technologies & Core Competencies:
License / Number Plate Recognition
Law Enforcement Data Hosting
Public Records Data Fusion
Video Analytics & Surveillance
Facial Cataloguing / CCTV
Facial Recognition
Big Data Analytics
Database Management and Scalability
Innovations and Accomplishments:
One of the largest LPR / ANPR data‐sharing initiative in the world – over 3 Billion records
First to offer hosted LPR / ANPR solution for law enforcement
First to offer LPR / ANPR on a smart phone – Android and iPhone
First to offer LPR / ANPR data harvested from commercial sources for law enforcement
intelligence and analytic purposes
First to incorporate the concept of “visits” for better analytical use of historical LPR data
First to offer “Common Plate”, “Associate Analysis” and “Locate Analysis”
Integrated interoperability via LPRD / NEIM protocol
Proven success integrating with all major LPR / ANPR competitive systems
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Vigilant Solutions, LLC
1152 Stealth Street
Livermore, California 94551
(P) 925-398-2079 (F) 925-398-2113
Issued To: Rancho Palos Verdes Estates - Attention: Gabi Yapp Date: 11-21-19
Project Name: Fixed Project, Phase 2, No Installation Quote ID: GSM-1139-05
PROJECT QUOTATION
We at Vigilant Solutions, LLC are pleased to quote the following systems for the above referenced project:
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
(5) VSBSCSVC-04 Vigilant LPR Basic Service Package for Hosted/Managed LPR Deployments
● Managed/hosted server account services by Vigilant
o 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 Enterprise 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
(13) VS-SHP-02 Vigilant Shipping Charges
● Applies to each fixed camera LPR System
● Shipping Method is FOB Shipping
Subtotal Price (Excluding sales tax) $166,765.00 A-5
Consider the "add" price for the following items:
Qty Item # Description
(1) Tax Tax on hardware at 9.5%
Subtotal Price $11,058.00
Quote Notes:
1. All prices are quoted in USD and will remain firm and in effect for 60 days.
2. Returns or exchanges will incur a 15% restocking fee.
3. Orders requiring immediate shipment may be subject to a 15% QuickShip fee.
4. No permits, start-up, installation, and or service included in this proposal unless explicitly stated above.
5. This Quote does not include anything outside the above stated bill of materials.
6. 5 years of hosting and warranty included.
7. Installation not included.
Quoted by:
Greg Mills - 858-287-0067 - greg.mills@vigilantsolutions.com
Total Price $177,823.00 (Including All Adds)
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01 203 .000 1/62 8025 .1
AGREEMENT FOR CONTRACT SERVICES
By and Between
CITY OF RANCHO PALOS VERDES
and
VIGILANT SOLUTIONS, LLC
ALPR WESTERN A VENUE PHASE 2
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AGREEMENT FOR CONTRACT SERVICES
BETWEEN THE CITY OF RANCHO PALOS VERDES AND
VIGILANT SOLUTIONS, LLC
THIS AGREEMENT FOR CONTRACT SERVICES (herein "Agreement") is made and
entered into this __ day of , 2019 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
WH EREAS, 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 h as previously installed LPR cameras at ce11a in location s 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 rec eive 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 refened to herein as the "services" or
"work" hereunder. As a material inducement to the City entering into th is Agreement, Consultant
represents and wanants that it has the qualifications, experience, and fac ilitie s necessary to
properly perform the services required under this Agreement in a thorough, competent, and
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professional manner, and is experienced in performing the work and services contempl ated
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 firm s 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 fu lly set forth herein. In the event of any
inconsistency between the terms of such proposal and this Agreement, the terms of this
Agreement shall govem.
1.3 Compliance with Law.
Consultant shall keep i tself infmmed concerning, and shall render all services hereunder
in accordance with, all ordinances, reso lution s, statutes, rules , and regulations of the City and
any Federal, State or local governmental entity having jurisdiction in effect at the time service i s
rendered.
1.4 Califomia Labor Law.
If the Scope of Services includes any "public work" or "mainte nance work," as those
terms are defined in California Labor Code section 1720 et seq. and Cal ifomia Code of
Regulations, Ti tl e 8, Section 16000 et seq., and if the total compensation i s $1,000 or more,
Consultant shall pay prevailing wages for such work and comply with the requireme nts 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 Pa1iies 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, Pati 7, Chapter 1
(commencing with Section 1720) of the Califomia Labor Code relating to public works contracts
and the rules and regulations established by the Department of Industrial Relations ("DIR")
implementing su ch s tatutes. The work perfo1med 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 pa1iy 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.
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01203.00011628025 .1
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(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 conc erning 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 prevai l ing rates a s determined by the
DIR for the work or craft in which the worker is empl oyed for any public work done pursuant to
this Agreement by Contractor or by any subcontractor.
(d) Payro ll Records. Contractor sh all comply with and be bound by the
provis ions 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 p erjury, as
sp ecified in Section 1776 ; certify a nd make such payroll records available for inspection as
provided by Section 1776 ; and inform the City ofthe location of the records.
(e) Apprentices . Co ntractor shall comply with and be bound by the provision s
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 w ith these aforementioned Sections for all
apprenticeab le occup atio ns . Prior to commencing work under this Agreement, Contractor shall
provide City with a c opy of the information submitted to any applicable apprenti ceship program.
Within sixty (6 0) days after co ncluding 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 p erfo rmed under this Agreement.
(f) Eight-Hour Work Day. Contractor acknowledges that eight (8) hours labor
co n stitutes a legal day 's work. Contracto r 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 co ncerning penalties for workers who work excess
hours. T he Contractor shall, as a penalty to the C ity, forfeit twenty-five dollars ($25) for each
worker emplo yed in the perfmmance of thi s Agreement by the Contractor or by any
subcontractor for each calendar day during whi ch such worker is requ ired 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, Articl e 3 of the Labor Cod e.
Pursuant to Labor Co de section 1815 , work performed by employees of Contractor in excess of
eight (8) hours per day, and forty ( 40) h ours during any one week shall be pe1mitted upon public
work upon compensati on for all hours worked in excess of 8 hours per day at not les s than one
and one-half (1 'li) times the basic rate of pay.
(h) Worker s' 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 h as employees. In accordance with the provis ions of California Labor Code
Section 18 6 1, Contractor certifies as follows:
"I am aware of the provisions of Section 3700 of the Labor Code which r equi r e
eve1y employer to be insured against liability for workers' compensation or to
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undettake self-insurance in accordance with the provisions of that code, and I will
comply with such provisions befo re commencing the performance of the work of
this contract."
Contractor's Authorized Initials ----
(i) Contractor's Responsibility for Subcontractors. For every subcon tractor
who will perform work under this Agreement, Contractor shall be respons ibl e for such
subcontractor's compliance with Division 2, Part 7, Chapter 1 (commencing with Section 1720)
of the California Labor Code, and shall make s uch compliance a requirement in any contract
w ith any subcontractor for work under th is Agreement. Contractor shall be required to take all
actions necessary to enforce such contractual provisions and ensure subcontractor's complian ce,
including without limitation, conducting a review of the certified payroll records of the
subcontractor on a periodic basis o r upon becoming aware of the fai lure of the subcontractor to
pay hi s or her worker s the spec ifi ed prevailing rate of wages. Contractor sha ll d ili gently take
corrective action to halt o r rectify a ny such failure by any subcontracto r.
1.5 Licenses, Permits, Fees and Assessments.
Co ns ulta nt shall obtain at its so le cost and expense such licenses, permits and approvals
as may be required by law for the performance of the services required by this Agreement.
Co nsulta nt shall h ave the so le ob li gation to pay for any fees, assessments and taxes, plus
app li cable penalties and interest, w hich may be imposed by law and arise from o r are necessary
for the Consultant's performance of the serv ices required by this Agreement, and shall
indemnify, defend and h old 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 Fam ili arity with Work.
By executing this Agreement, Consu ltant warrants that Consu ltant (i) has tho roughly
investigated and co n sidered the scope of services to be performed, (ii) has carefully considered
how the serv ice s should be performed, and (i ii) fully understands the facilities, d iffic ulties and
restrictions attend ing performance of the ser vices under this Agreement. If the services involve
work upon a ny s ite, Consultant warrants that Consu lt ant has or w ill investigate t he s ite and is or
w ill be fu ll y acquainted with the conditions there existing, prior to commencement of serv ices
hereunder. Should the Consultant discover any latent or unknown conditions, which will
materially affect the performance of the serv ices hereunder, Consultant shall immediately inform
the City of such fact and sha ll not proceed except at Consu ltant's risk until written instructions
are received from the Contract Officer.
1.7 Care of Work.
T he Co n su ltant shall adopt reasonab le methods during the life of the Agreement to
furn is h continuous protection to the work, and the equipment, materials, papers, documents,
plans, stud ies and/or other components t hereof to prevent losses o r damages, and shall be
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responsible for all such damages, to persons or prope1ty, until acceptance of the work by City,
except such losses or damages as may be caused by City's own negligence.
1.8 Fmther Responsibilities of Parties.
Both patties agree to use reasonable care and diligence to p erform 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 CatTy
out the pmposes 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 dming 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 undeliaken 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 b y
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 pmsuant 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. C ity may in its sole and
absolute discretion have similar work done b y other Consultants. No cla ims for an increase in the
Contract Sum or time for performance shall be valid unless the procedmes established in this
Section are followed.
1.10 Special Requirements .
Additional tetms and conditions of this Agreement, if any, which are made a pati 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 fmth in this Agreement, City agrees to pay Consultant t he
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 Smn"), unless additional compensation is approved pmsuant to
Section 1.9 .
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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 serv ices, le ss
contract retention; (iii) payment for time and materials based upon the Consultant's rates as
specified in the Schedule of Compensation, provided that (a) time estimates are provided for the
perfmmance 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 p ursu ant 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 perfmmance of the work with City is a critical component of the serv ices . 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 p erformed
and expenses incuned during the preceding month in a form approved by City's Director of
Finance. By submitting an invo ice for payment under t hi s 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-categmy), travel,
materials, equipment , supplies, and sub -contractor contracts. Sub-contractor charges shall also be
detailed by such categories. Cons ultant shall not invoice City for any duplicate services
perfmmed 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 w ith 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 agree s 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 conection and resubmission. Review and pay ment by City for any invoice
provided by the Consultant shall not constitute a waiver of any right s 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 defect s in work perfmmed by Cons ultant.
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ARTICLE3. PERFORMANCESCHEDULE
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 perfmm all services within the time period(s) established in
the "Schedule of Performance" attached hereto as Exhibit "D" and incorporated herein by this
reference. When requested by the Consultant, extensions to the time period(s) specified in the
Schedule of Perfmmance 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 contro l 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 (1 0) days of the commencement of such delay notify the Contract Officer in
writing of the causes of the delay. The Contract Officer shall ascetiain 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
detetmination shall be final and conclusive upon the parties to this Agreement. In no event shall
Cons ultant 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.
Un less earlier terminated in accordance with Atiicle 7 of this Agreement, this Agreement
shall continue in full force and effect until completion of the services but not exceeding one ( 1)
year fi·om the date hereof, except as otherwise provided in the Schedule of Perfmmance (Exhibit
"D").
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The fo llowing 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 a ll decisions in connection therewith:
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Greg Mills Regional Sales Manage r
(Name) (Title)
It is express ly understood that the experie nce, knowledge, cap ab ility and reputation of the
foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be respons ible during the term of this Agreement for
directing a ll activities of Consultant and devoting sufficient time to p erso nally supervise the
services hereunder. All personnel of Co nsultant, and any authorized agents, shall at all times be
under the excl us ive direction and control of the Principals. For purposes of this Agreement, the
fo regoing Principals m ay not be replaced nor may their re sponsibilities be substanti ally reduced
by Consultant without the express written approval of City. Additionally, Consultant s ha ll ut ilize
only competent personnel to perform se rvi ces pursuant to thi s Agreement. Cons ultant sha ll m ake
every reasonable effmi to m a intain the stability a nd continuity of Cons ultant's st aff and
subcontractors, if any, ass ig ned t o perform the services required under this Agreement.
Consultant sha ll notify City of a ny changes in Consultant's staff a nd s ubcontractors, if any,
assigned to perform the serv ices required under this Agreement, prior to and during any such
performance.
4.2 Status of Cons ultant.
Consultant shall hav e no authority to bind C ity in any manner, or to incur any obli gation,
debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless
s uch authority is expressly conferred under th is Agreement or is otherwise expressly conferred in
writing by City . Consultant s hall not at any time or in a ny m a nner represent that Consultant or
any of Consulta nt's officer s, e mployee s, or agents a re in any manner officials, officers,
employees o r agents of City. Neither Consultant, nor any o f Con su ltant's officers, employees or
agents, sha ll o btain any ri ghts to retirement, health care or any othe r benefi ts which may
otherwise accrue to City's employees. Consultant expressly waives any claim Consultant may
have to a ny such rights.
4.3 Contract Officer.
The Co ntract Office r shall be Gabriella Yap, D eputy C ity Manager. It shall be the
Consultant's responsibility to assure that the Contract Officer is kept informe d of the progress of
the performance of the services and the Consultant sh a ll refer any decisions w hich must be made
by City to the Contract Officer. Unless otherwise specified herein, any approval of City required
hereunder s hall mean the approval of the Contract Officer. T he 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 o ut th e terms of this Agreement.
4.4 Independent Consultant.
Neither the City nor any of its employees shall h ave an y control over the manner, mode
or means by which Consultant, its agents or employees, perform the services required herein,
except as otherwise set fmih herein . City shall have no voice in the selection, di scharge,
supervi sion or control of Consultant's employees, servants, representatives o r agents, or in fixing
their number, compensation or hours of service. Cons ultant shall perform all serv ices requ ired
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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 As signment.
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 sha ll not contract with any other entity to p erfmm 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 transfe1Ted, 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 fmm CG 00 01,
in an amount not less than $1,000,000 per occmTence , $2,000,000 general aggregate, for bodily
injury, personal injmy, 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 Ins urance 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 perfmmed 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 (elTors & omissions) insurance. Consultant sha ll
maintain professional liability insmance that covers the Services to be perfmmed in connection
with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any
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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 period no less than
three (3) years after completion of the services required by this Agreement.
(d) Workers ' compensation insurance. Consultant shall maintain Workers'
Compensation Ins urance (Statutmy Limits) and Employer's Liability In surance (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 s uch 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 ce1tificates of insurance to
City as evidence of the insurance coverage required herein, along with a waiver of su brogation
endorsement for workers' compensation. Insurance certificates and endorsements must be
approved by City's Risk Manager prior to commencement of performance. Current ce1tification
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
prope1ty, 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 ins urance 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-
contributmy 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 r equired
under this Agreement does not comply with these specifications or is canceled and no t replaced,
City has the right but not the duty to obtain the insurance it deems necessary and any p remium
paid by City will be promptly reimbursed by Consultant or City will withhold amounts s ufficient
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 Ins urers in the State of California, with an
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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
th e City's Risk Manager.
(f) Waiver of subrogation. All insurance coverage maintained or procured
pursuant t o this agreement shall be endorsed to waive subrogation against City, its elected or
appointed officers, agents, officials, employees and volunteers or shall specificall y allow
Consultant or others providing insurance evi dence in compliance with these specifications to
waive their right of recove1y pri or to a loss. Co n sultant hereby waives its own right of recovery
against City, and shall require similar written express waivers and insurance clauses from each of
its subcon su ltants.
(g) Enforcement of contract provlSlons (non-estoppel). Consultant
acknowledges and agrees that any actual or alleged fa ilure on the part of the City to inform
Consultant of non-compliance w ith 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 nmmally 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 insure d 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 (1 0) day notice is required) or nomenewal of coverage for each
required coverage.
G) Additional insured status. General li ability 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 li abi lity 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 b een 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 li mits 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
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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 s uch 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 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 sub stantial additional cost to the Consultant, the City and Consultant may renegotiate
Consultant's compensation.
( o) Self-insured retentions. Any sel f-insured retentions must be declared to
and approved by City. City reserves the right to require that self-ins ured retentions be eliminated,
lowered, or replaced by a deductible. Self-insurance will not be cons ider ed 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
necessaty 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
hatmless 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, ru·bitration or regulatmy claims, damages to persons or propetty, 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 ac tiv ities prov ided herein
of Consultant, its officers, employees, agents, subcontractors, or inv itees, or any indiv idual or
entity for which Consultant i s legally liable ("indemnitors"), or arising from Consultant's or
indemnitors ' reckless or willful misconduct, or ari sing from Consultant's or indemnitors'
negligent performance of or failure to perform any te1m, 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
attomeys' 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 perfmmance of or fai lure to perform such work, operations or activities of
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Consultant hereunder; and Consultant agrees to s ave and hold the City, its officers, agents, and
employees harmles s therefrom;
(c) In the event th e City, its officers, agents or employees is made a party to
any action or proceeding filed or prosecuted again st Consultant for such damages or other claims
ari sing out of or in connection with the negli gent performance of or failure to perfmm the work,
operation or activities of Consultant hereunder, Consultant agree s to p ay to the City, its officers,
agents or employees, any and all costs and expenses incuned by the City, its officers, agents or
employees in such action or proceeding, including but not limited to , l egal 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 C ity to monitor compli ance with these prov is ions shall not be a waiver hereof. This
indemnification includes claims or liabil ities arising from any negligent or wrongful act, enor or
omi ss ion, or r eckless or w illful misconduct of Consultant in the perform ance of professional
services hereunder. The prov isions of this Section do not apply to claims or liabilities occuning
as a re sult of City's sole negligence or will fu l acts or omissions , but, to the fu ll est extent
permitted by law, sha ll apply to cl aims a nd liabilities resulting in part from City's negligence,
except that des ign professionals' indemnity hereunder sha ll b e limited to claims an d l iabilities
arising out of the negligence, reckle ssn ess or will ful misconduct of the de sign 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
6.1 R ecords .
Cons ultant shall keep , and r equire su bcontracto rs t o keep, such led ger s, books of
accounts, invo ices, vo uchers, cancel ed ch ecks, r eports, studie s or other documents r el ating to the
disbursements charged to City and services per fo rmed he reund er (the "books and records"), as
shall be necessary to p erform the services r equired by this Agreement and enabl e the Contract
Officer to evalu ate the perfmmance of suc h serv ices. Any and all such documents sh all be
mai ntai ne d in accordance with gen er a lly accepte d accounting principles and shall be complete
and detailed . The Contract Officer sh all have full and free acc ess to su ch books and records at all
times during normal business hours of City, including the right to in spect, copy, audit and ma ke
records and transcripts from su ch records. Such records shall b e maintained for a period of three
(3) year s follow ing co mpl etion of the servic es h ereunder, and the City sh all have access to such
records in the eve~t any audit is required. In the event of dissolution of Consultant's business,
custody of the books and records may be g iven to City, and access shall be provided by
Con sultant's successor in inter es t. Notwithstanding the above, the Consultant shall fully
cooperate with the City in providing access to the books and records if a public recor ds re quest is
made and di sclosure is required by law including but not limited t o the Cal ifornia Public Records
Act.
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6.2 Reports.
Consultant shall periodically prepare and submit to the Contract Officer such reports
conceming the performance of the services required by this Agreement as the Contract Officer
shall require. Consultant hereby acknowledges that the City is greatly concemed 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 incre ase 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.
A ll 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 u se of
uncompleted documents without specific written authorizati on 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 document s 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 sha ll 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
Attomey, voluntarily provide documents, declarations, letters of supp011, testimony at
depositions, response to interrogatories or other information concerning the work performed
under this Agreement. Response to a subpoena or cowi order shall not be considered "voluntary"
provided Consultant gives City notice of such court order or subpoena.
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(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 admi ssions 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 oppmtunity to review any re sponse to discovery requests
provided by Consultant. However , this right to review any such respon se 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
perfmmance 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 subm it to the personal
jurisdiction of s uch 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 thi s 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 timefi-ame in which Consultant may cme the
default. This timeframe is presumptively thilty (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 so le discretion , elect to pay some or all of the
outstanding invoices dming the period of default. If Consultant does not cme the default, the
City may take necessary steps to te1minate this Agreement under this Article. Any failme on the
part of the City to give notice of the Consultant's default shall not be deemed to re sult 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
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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 va lidity 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, af fect the obligations of
the Consultant to insure, indemnify, and protect City as el sewhere 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 r emedy 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 provisi on 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 patties are cumulativ e and the exercise by either patty
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 defau lt by the
other patty.
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, conect or remedy any default, to recover damages for any default, to compel
specific performance of this Agreement, to obtain declaratoty or injunctive relief, or to obtain
any other remedy consistent with the purposes of this Agreement. Notwithstanding any contraty
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 thi s 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 detetmine 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 l iquidated damages.
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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 te1mination for cause. The City reserves the right to terminate this
Contract at any time, with or without cause, upon thirty (30) days' written notice to Consultant,
except that where termination is due to the fault of the Consultant, the period of noti ce may be
such shorter time as may be dete1mined 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 specifica lly 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 te1mination and for any services authoriz ed by the Contract Officer
thereafter in accordance with the Schedule of Compensation or such as may be app r oved 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 te1minating 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 te1mination is due to the failure of the Consultant to fulfill its obligations under this
Agreement, City may, after compli ance 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 rea sonable efforts to mitigate
such damages), and City may withho ld 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 Attomeys' 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 patty entitled to attomey's fees shall be entitled to all other
reasonable costs for investigating such action, taking depositions and discovery and all other
necessaty costs the court allows which are incuned 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.
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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
tetms 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 wou ld conflict in any manner with the interests
of City or which would in any way hinder Consultant's perfmmance 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 intere st 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 intere st 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 wan·ants that it has not paid or given and will not pay
or g ive 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 affitmative action to insure that applicants are employed
and that employees are treated during emp loyment 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 a lien s for the performance of work and/or services covered by this
Agreement, and should any liability or sanctions be imposed again st City for such use of
unauthorized aliens, Consultant hereby agrees to and shall reimburs e City for the cost of all such
liabilities or sanctions imposed, together with any and all costs, including attomeys ' fee s,
incuned by City.
-18-
01203.0001 /62 802 5.1
B-19
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 pers on sh all 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 patty of the change of
address in writing. Notice shall be deeme d 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 te1m s of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either patty by reaso n 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 counterpa1ts, each of which shall be deemed to be an
original , and s uch counterparts shall constitute one and the same instrument.
9.4 Inte gration; Amendment.
This Agreement including the attachments hereto is the entire , complete and exclusive
expression of the understanding of the patties. It is understood that there a re no oral agreements
between the parties hereto affecting this Agreement and this Agreement s upersedes and cancels
any and all previous negotiations, aiTangements, agreements and understandings , if any, between
the patties, 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 Con sultant and by
the City Council. The patties agree that this requirement for written modification s 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 inval id or unenforceable by a valid
judgment or decree of a court of competent jurisdicti on, such inval idity or unenforceability shall
not affect any of the r emaining phrases, sentences, clauses, paragraphs, or sections of this
Agreement which are hereby declared as severable and shall be interpreted to catTy out the intent
of the patties 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
B-20
9.6 Wananty & Representation ofNon-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 o r 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 regulat ion. 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
wanants 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 ~
9.7 Corporate Authority.
The persons executing this Agreement on behalf of the parties h ereto wanant that (i) such
party is duly organized and existing, (ii) they are duly authorized to execute and deliver thi s
Agreement on behalf of said party, (iii) by so executing this Agreement, such pmiy i s 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
B-21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first-above written.
ATTEST:
Emily Colb orn, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
William W. Wynder, City Attorney
CITY:
CITY OF RANCHO PALOS VERDES, a
municipal corporation
John Cruikshank, Mayor
CONSULTANT:
VIGILANT SOLUTIONS, LLC
By:~~
e: Bill Qum lan
Title: Vice President Sales Operation
By: _____________ _
Name: Steven Cintron
Title: Treasurer
Address : 1152 Stealth Street
Livetmore, CA 94551
Two corporate officer signatures required when Consultant is a corporation, with one s ignature 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 .1
B-22
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other office r completing thi s certificate verifies on ly the identity of the ind ividual who signed
th e document to which this certificate is attached, and not the truthfulness, accuracy or va li dity of that document.
STATE OF CALIFORNIA __Ahrvt~O...
COUNTY OF .b@S-ANGELES C "'~r~rr.t r..~f1L' c)
On I <L? -;2.0 2020 before me,fc:'·M · r:n-I~Tr , personally appeared 131'11 {pvii,J~~oved to me on
the basis of sati sfactory evidence to be the person (I.) whose names(l) is/a!!Oo subscribed to the within instrument and
acknowledged to me that he/~/tl:w!:y executed the same in his/Jset:/t~i:r authorized capacity(U:d), and that by
his/hcf/tlwff signature(fl) on the instrument the person(/), or the entity upon behalf of which the person!j-) acted,
executed the instrument.
I cettify under PENALTY OF PERTIJRY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and officia l sea l.
Signature: ___ @~.L~---,;.-..c;.. ________ _
JAA+e e e e e e o a o S 6 a e o -~
• ~ •• K. M. BHATT
•• ...... • Commission # 2 1 4312~
~ ; · Notary Public -Cal iforn ia ~
z ' Alameda County ~ t • ··e •· ; 4M~ =~•!x ~r~s l cz ~?!f
OPTIONAL
Th ough the data be low is not required by law, it may prove valu able to persons relying on the document and could
prevent fraudu lent reattachment of thi s form
0
0
0
0
0
CAPA CITY CLAIMED BY SIGNER
INDIVIDUAL
CORPORATE OFFICER v.· ce. f~.a··Jlj)"t srJ~.o ope..~'~~'()
T IT LE(S)
PARTNER(S) 0 LIMITED
0 GENERAL
ATTORNEY -IN-FACT
TRUSTEE(S)
G UARDIAN/CONSERVATOR
OTHER~-----------
SI GNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES)) \f,·~ ,'Ja.rd Solv--h'orz.J , t_.{.,<:-
01203.00011628025.1
DESCRIPTION OF ATTACHED DOCUMENT
Ag-~ ~+ f;.r Cotl1r411. d ~erv,C ~
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGN ER(S) OTHER THAN NAMED ABOVE
B-23
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On , 2020 before me, , personally appeared , proved to me on
the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), 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.
Signature: ______________ _
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
D INDIVIDUAL
0 CORPORATE OFFICER
TITLE(S)
PARTNER(S) D
D
ATTORNEY -IN-FACT
TRUSTEE(S)
LIMITED
GENERAL
D
D
D
D
D
GUARDIAN/CONSERVATOR
OTHER" _____________________ _
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
01203.00011628025.1
DESCRIPTION OF ATTACHED DOCUMENT
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
B-24
EXHIBIT "A"
SCOPE OF WORK
I. Consultant will provide ALPR cameras and related infrastr ucture 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 Reco gnition (ALPR) fixed cameras.
(installation of cameras on existing poles will be provided by a separate
contractor).
i. System s tartup and co mmissioning of fixed ALPR cameras.
ii. User and Agency Manager training.
C. Software License. Consultant hereby grants City an Enterprise Licen se to the
Software Products for the Term prov ided in Section 3.4 of this Agre ement (see
Exhibit "B").
D. Software Support, Warranty, and Maintenance.
01203.000 1/628025.1
1. City w ill r ece ive technical supp ort by submitting a support ticket to
Consultant's support website or by sending an email to Consultant's
support team.
11 . Updates, pat ches, and bug fi xes of the Software Products wi ll be made
avai lable to City at n o a dd iti onal charge.
m. Consultant will provide Software Products support to City's Technical
Supp01t Agents through e-mail , fa x, and tel ephone.
1v. Basic LPR Service Package .
1. Con sultant Managed/Hosted LPR server LEARN Account
2. Access to a ll Consultant Software including all upgrades and
updates
3. Unlimited user l icensing for the fo llowing applications :
a. LEARN, CarD etector and T AS
b. Mobile Companion
A-1 B-25
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 C ity'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 wananty 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 i nformation
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 desi gn intent and the end-u ser'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.
01203.000 1/628025.1 A-2 B-26
VII. Consultant will utilize the following personnel to accomplish the Services:
A. Jacques Lilavois
B. E le ct rician from subcont r actor B ear El ectrical, TBD
C. G reg Mills
0 1203.000 1/628025 .1 A -3 B-27
EXHIBIT "B"
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
All new text is marked in bold italics and deleted t ext is marked in strikethrough.
I. 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 agreem ent, and that Jiif any
of the Scope of Serviceswork p erformed under this Agreement includes any "public
work" or "maintenance work," as those tetms are defined in Cal ifornia Labor Code
section 1720 et seq . and Califomia Code of Regulations, T itle 8, Section 16000 et seq.,
and if the total compensation is $1,000 or more, Consultant shall pay prevail ing wages
for such wo rk and comply with the requirements in Califomia Labor Code section 1770
et seq. and 1810 et seq., and all other applicable laws., includ ing the follow ing
requirements:
(a) Public Work. T he Parties acknowledge that some or all of the work to be
performed under this l.rgreement is a "public v1ork" 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 ("DI R") implementing such statutes. The work performed under this
Agreement is subject to complian ce monitoring and enforcement by the DIR. Co ntractor
shall post job site notices, as prescribed by regulation.
(b) Prevailing Wages. Contractor shall pay prevailing \vages to the eJctent
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 '.vages, and C ontra ctor shall pest--a
copy of the same at each job site where work is perfo1med under this Agreement.
(c) Penalty for Failure to Pay Prevailing Wages. C ontracto r 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
do llars ($200) fo r each calendar day , or porti on th ereof, for each worker paid less than
the prevailing rates as determined by the DI R for the work or craft in which the worker is
01203.0001162 8025 .1 B -1 B-28
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
ofthe records.
(e) 1\:pprentices. 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 vt'ith these aforementioned
Sections for all apprenticeable occupations. Prior to commencing work under this
Agreement, Contractor shall provide City with a copy of the information submitted to any
applicable apprenticeship program. 1.Vithin 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 j oumeyman and apprentice how·s performed under this
Agreement.
(f) Eight Hour Work Day. Contractor acknovlledges 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 E>wess Hours. Contractor shall comply v1ith and be bound by
the provisions of Labor Code Section 1 813 conceming penalties for workers who work
excess hours. The Contractor shall, as a penalty to the City, forfeit twenty five dollars
($25) for each v1orker employed in the perfo1mance 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 (4 0) 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 1 8 15, '.Vork perfo1med by
employees of Contractor in excess of eight (8) hours per day, and forty (4 0) hours during
any one week shall be permitted upon public '.vork upon compensation for all hems
worked in excess of 8 hours per day at not l ess than one and one half (1 ~'i) times the basic
rate ofpay.
(h) Workers' Compensation. Califomia Labor Code Sections 1860 and 3700
provide that every employer '.Vill 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:
0 1203.000 1/628025 .1
"I am aware of the provisions of Section 3700 of the Labor Code which require
every employer to be insured against liability for '.vorkers' compensation or to
undertake self insurance in accordance '>vith the provisions of that code, and I will
B-2 B-29
comply with such provisions before commencing the performance of the '.v ork of
this contract."
Contractor's Authorized Initials
(i) Contractor's Responsibility for Subcontractors. For every subcontractor vffio will
p erform work under this Agreement, Contractor shall be responsible for such
subcontractor's compliance vrith Division 2, Part 7, Chapter 1 (commencing vrith Section
1720) of the Cali fornia Labor Cod e, and shall make such compliance a requirement in
any contract vrith any subcontractor for \Vork under this Agreement. Contractor shall be
required to take all actions necessary to enforce such contractual provisions and ensure
subcontractor's compliance, including without l imitation, 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. Contract or shall diligently take conective 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 so le 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 r equired by this
Agreement, a nd sha ll indemnifY, defend and hold h atmless City, its officers, employees
or agents of City, against any such fees, assessments, taxes, penalties or interest l evie d ,
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
Subcontracto1·s) A State fee for Certified Disability access Specialist Progmm of
$4 is also required for each license.
• Permit (no fee) -all required p ermits, 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, ded uct, or a lter the services beyond those specified in the
01203.0001/628025 .1 B-3 B-30
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 o f additional services, no s uch serv ice s may be undertaken unless· a n a mendment to
the Agreement, based on a written quote provided by Consultant, is first executed
betwee n the City and the Consultant, incorporating therein any adjustment in (i) the
Contract Sum for the actual cost s of the additional se rvices, and/or (ii) the time to
perform this Agreement. Any a mendment for additional services must be appr oved 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 n ot apply t o services specifically set forth in the Scope of
Services: Consultant hereby acknowled ges that it accepts the risk that t he ser vices to be
provided pursuant t o the Scope of Services may be more costly or time consuming than
Consultant anticipates and that Consu ltant shall not be entitled to additional
compensation therefor. City may in its sole and absolute discretion h ave s imilar work
done by other Consultants. No cl a ims for a n increase in the Contract Sum or time for
p e rformance s hall 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 t he ser vi ces but not
exceeding one (1) five (5) years from the date hereof (th e "Initial Term'~, except as
othe twise provided in the Schedule of Performance (Exhibit "D"). Sixty (60) days prior
to th e expiration of the Initial Term and each subsequent S ervic e P eriod, Consultant
will provide City with an invoice for th e S ervice Fee du e for the subsequent S ervic e
P eriod. This Agreement and th e Ente1prise License granted under this Agreement will
be extemledfor a Service Period upon City's payment of that S ervice Period's Service
Fee, which is due thirty (30) days prior to the expiration of th e Initial Term or th e
existing Service Period, as th e case may be. If the City chooses not to make payment on
th e invoice for the subsequent Service P eriod, this Agreem ent and all services and
licenses under this Agreement will terminate at the end of th e th en-current term or
service period.
V. Section 4.1, Representatives and Personnel of Consultant, is amended to read :
4.1 R e presentatives and Personnel o f Consultant.
T he following principals of Consultant ("Principals") are hereby desig nated as
being the principals and representatives of Cons ultant authorized to act in it s behalf with
respect to the work spec ifi ed he rein a nd make all decisions in connectio n therewith:
Greg Mill s Reg iona l Sales Manager
(Name) (Title)
01 203.000 1/628 025 .1 B-4
B-31
It is expressly understood that the experience, knowledge, capabi li ty and
reputation of the foregoing principa ls were a substantial inducement for City to enter into
this Agreement. Therefore, the foregoing principals shall be responsi ble during the term
of this Agreement for directing all activ iti es of Consultant and devoting sufficient time to
personally superv ise 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 emp loyed 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 Co nsultant's staff and subcontractors, if any,
assigned to perform the services required under this Agreement. Consultant shall notify
City of any changes in Consu ltant's staff and subcontractors, if any, assigned to perfmm
the services required under this Agreement, prior to and during any such performance .
VI. Section 4.5, Prohibition Against S ubcontracting or Assignment, is amended to read:
4.5 Prohibition Against Subcontracting or Assignm ent.
The experience, knowledge, capabi lity and reputation of Consultant, its princip als
and emplo yees 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 B ear 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 perso n or group of persons acting in concert of
more than twenty five percent (25%) of the present ownership and/o r control of
Consultant, taking all transfers into account on a cumulative ba sis. In the event of any
such unapproved transfer, including any bankruptcy proceeding, thi s Agreement shall be
void. No approved transfer shall release the Consultant or any surety of Consu ltant of any
li ability hereunder w ithout 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 $3,000,0 00 per
occurrence/aggregate.
VIII. Section 5.2, General Ins urance Requirements, is amended to read:
5.2 Gen eral Insurance Requirements.
0 1203.00011628025.1 B-5 B-32
(a) Proof of insurance. Consultant shall provide certificates of
insurance to City as evidence of the in surance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation. Insurance certificates and
endorsements must be approved by City's Ri sk Manager prior to commencement of
performance. Current certification of in surance 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 perfmmance 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 in surance. Any
umbrella or excess insurance shall contain or be endorsed to contain a provi sion 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 b e 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
ins urance company cunently authorized by the Insurance Commissioner to transact
busine ss 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-(o r higher) and Financial Size
Category Class VI (or larger) in accordance with the late st 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 los s. Consultant hereby waives its own right of recovery against City,
and shall require similar written express waivers and in surance clauses from each of its
subconsultants.
01203.0001/628025.1 B-6 B-33
(g) Enforcement of contract provlSlons (non-estoppel). Consultant
acknowledges and agrees that any actual or a lleged failure on the pa1t of the City to
infmm 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 shovm above, the City requires and shall be
entitled to coverage for the higher limits maintained by the Consultant. Any available
insurance proceeds in e>ccess 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.
G) Additional in sured status. General liability policies shall provide or
be endorsed to provide that City and its officer s, officials, employees, and agents, and
volunteers shall be additional insureds under such policies. This provision shall al so
apply to any excess/umbrella liability policies.
(k) Prohibition of undisclosed cCoverage limitations. None of the
coverages required herein w ill 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
writing.
(1) Separation of insureds. A severability of interests provision must
apply for all additional insureds ensuring that Consultant's in surance shall apply
separately to each insured against whom claim is made or suit i s brought, except with
respect to the insurer's limits of liabi lity . 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 patty 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 a ll such coverage and ass umes all responsibility fo r 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 w ill be submitted to City for review.
01203.000 1/628025.1 B-7 B-34
(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 add itional 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 ari se 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 o(Liabilitv.
To the full extent permitted by law, Consultant agrees to indemnify and 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, el1'ors, omissions or liabilities whether
actual or threatened (herein "claims or liabilities") that may be asserted or claimed by any
person, fi1m 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, s ubcontractors, 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 lzas 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 attomeys' fees incmTed 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.
01203.0001/628025.1 B-8 B-35
(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 judgme nt r endered against the City, its officers, agents or employees fo r any
s uch claims or liabilities arising out of or in connection with the negligent performance of
or failure to p erform s uch work, operations or activities of Con sultant hereunder-;----and
Consultant agrees to save and hold the C ity, its officers, agents, and employees harmless
therefrom;
(c) In the event the C ity , its officers, agent s or empl oyees is made a
p arty to any action or proceeding filed or prosecuted against Consultant for such damages
or other claims arising out of o r in connection with the negligent perfmmance of or
failure to p erfmm the work, operation or activities of Consultant hereunder, the City
agrees to promptly notify Consultant and Consultant agrees to defend such claim pay to
the C ity, its officers, agents or empl oyees, any and all costs and e>cpenses inouned by the
City, its officers, agents or employees in such action or pro ceeding, including but not
limited to , l egal costs and attorneys' fees.
Con s ulta nt sh a ll incorporate s imilar indemnity agreements w ith its subcontractors
and if it fails to do so Con sultant shall b e fully responsible to indemnify C ity hereunder
therefore, and failure of C ity t o monitor compliance with these provis ions shall not be a
waiver hereof. This indemnificati on include s 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 cla ims or liabilities occmTi ng as a result of C ity's sel&-negligence
or w illful acts or omissions, but, to the fullest extent petmitted by lav.·, shall apply to
c la ims and liabilities r esulting in part from City's negligence, except that design
professionals ' indemnity h ereunder s hall be limited to claims and li abilit ies arising out of
the negligence, recklessness or '.villful misconduct of the d esi gn professional. The
indemnity obligation sh all b e binding on su c cessors and assigns of Consultant and shall
s urv ive termination of this agreement.
(d) Consultant shall not be liable under any th e01 y for any special,
consequential, indirect or punitive damages related to this agreement, even if
Consultant is advis ed of th e possibility of such damages. Notwithstanding anything to
the contrmy in this Agreement, Consultant's total liability related to this agre ement,
regardless oftheOJy, shall not excee d $500,000 (fiv e hundred thousand dollars).
X. Section 6.3, Ownership of Documents, is amended to read:
6.3 Ownership ofDocuments.
(a) Except as otherwise limited by th e language below, Allall drawin gs,
specification s, m aps, desig ns, photographs, studies, s urveys, data, notes, computer fil es,
reports, records, documents an d other materials (the "documents and materials") p r epared
by Con sultant, its employees, s ubcontractors and agents in the per formance of thi s
Agreem ent shall be the property of City and sh a ll be delivered to City upon request of the
Contract Officer or upon the t ermination of this Agreem ent, and Consu lt ant sh all h a ve no
01203.0001/628025.1 B-9 B-36
claim for futther employment or additional compensation as a result o f the exercise by
City of its full rights of ownership use, reuse, or assignment of the documents and
materials hereunder. Any use, reus e 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 wananties shall not extend to such u se, 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 h ereby deemed "works made for hire" for the City.
(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, deco mpile, 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 orfail 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 tlte City. After the copy is created, all LEA LPR
Data generated by th e City will be deleted from LEARN at th e 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 th e U.S.
Govemment is subject to restrictions as set forth in this Agreement and as provided by
DFARS 227.7202-1(a) and 227.7202-J(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.
0 1203.0001/628025.1 B-10 B-37
(/) 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 ofTe1m.
This Section shall govern any termination of this Contract except as specifically
provided in the followin g £ection for te1mination for caus e. 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 fau lt of the Consultant,
the period of notice may be s uch shmter time as may be dete1mined by the Contract
Officer. In addition, the Consultant reserves the right to te1minate t hi s Co ntract at any
time , with or without cause, upon s ixty (60) days' written notice to City, except th at
where termination is due to the fault of the City, the period of no tice may be such shorter
time as the Consultant may determine. Upon receipt of any notice of te1mination,
Con sultant shall immediately cease all services hereunder except such as may be
specifically approved by the Co ntrac t Offic er. Except where the Con sultant has initiated
termination without fault of the City, the Consultant shall b e entitl ed to compensation for
all serv ice s rendered prior to the effecti ve date of the notice of termination and for any
services authorized by the Contract Officer thereafter in accordance w ith the Schedule of
Compens ation 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
entitl ed to compensation only for the reasonable value of the work p roduct actually
produced hereunder. Notwithstanding any lang uage in this Agreement to the contrary, the
City shall not be entitled to a refun d of any Service Fees in the event thi s Agreement is
terminated prior to the exp iration of the Initial Te1m or any sub sequent service period
excep t as set forth below. In the eve nt of termination without cau se pursuant to this
Section, the terminating pa1ty n eed not provide the non-terminating pruty with the
oppmtunity to cure pursuant to Sectio n 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) th e City's licens e 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 Agreem ent /tad not been
terminated, and (b) Consultant shall continue to provide access to L EARN 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 F ees attributable to LEARN access as set
forth on Exhibit C for th e remainder of the then-current term.
XIV. Section 7.9, Termination for Default of Consultant, is deleted in its entirety.
01 203.000 1/628025.1 B-11 B-38
XV. Section 9.4, Integration; Amendment, in amended as follows:
9.4 Integration; Amendment.
Thi s Agreement including the attachments hereto is the entire, complete an d
exclu sive expression of the understanding of the patiies with regard to tlte subject matter
hereof It is understood that there are no oral agreements between the patiies hereto
affecting this Agreement and this Agreement supersedes and cancel s any and all previous
negotiations, arrangements, agreements and understandin gs, if any, b etween the parties,
and none shall be used to interpret this Agreement. No amendment to or modification of
this Agreement shall be valid unles s made in writing and approved by the Consultant and
by the City Council. T he patiies agree that thi s requ irement for written mod ificati ons
cannot be waived and that any attempted waiver shall b e voi d. 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.
WARRANTY
SOFTWARE LICENSE AND HARDWARE LIMITED
10.1 Enterprise License Grant,· Duplication and Distribution Rights.
(a) This Agreement allows City to install th e 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 tlte 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, rese ll, 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 Warranty and Disclaim eri Infringement Protection,· Use of
So{tware Products Interface.
0 1203.000 1/628025.1 B-12 B-39
(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 bey ond 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 repla ce 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 defectiv e 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 th e
applicable period of the original warranty. Consultant's warranty does not cover
Hardware which has been rece ived from th e City by Consultant improperly packaged,
altered, or physically damaged. All Hardware is subject to Consultant insp ection upon
receipt.
(ii) Recertified Hardware. Consultant recertified Han/ware may
consist of customer return units and may be repaired. All replacem ent 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 rec ertified Hardware
carries a manufacturer's limited warranty throughout the extended warranty p eriod as
measuredfrom the original date ofpurclzase.
01203.0001 /628 025.1 B -13 B-40
(iii) Return Material Authorization. Consultant warranty claims must
be initiated 011 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) Warrantv 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 caus ed 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 sp ecific legal
rigflts, 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 fix ed 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, improp er installation by
someone other titan 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 th e possession of someon e oth er titan Consultant
or Consultant's agent;
0 1203.000 1/62 8025 .1 B -14 B-41
• 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
HARJJWARE, 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.
(h) Warranty and Disclaimer (So(tware 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 iii a Software Product that impedes th e 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 Consu ltant 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 hut 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.
01203.000 1/628025 .1 B-15 B-42
(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 indemnify 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 tlte 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 wfto share LEA LPR Data with other
LEAs). Consultant will not share any LEA LPR Data generated by a City without the
p ermission 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 Licen se 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 p er 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 h ereto as part of
Exhibit "B-1."
"Hardware" means Consultant's Liceuse Plate R ecognition Cameras,
Communications Boxes, Steel Poles, Specialty Utility Boxes and required ancillmy
components.
"LEA" refers to a Law Enforcement Agency.
0 1203.0001/628025 .1 B-16 B-43
"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 Smartplwnes, Target Alert Service (TAS)
server/client alerting package, FaceSearclz, 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.
0 1203.000 1/628025.1 B-17 B-44
Qty
(13)
(12)
(13)
(1)
(5)
(13)
(1)
EXHIBIT "C"
SCH E DULE OF C OMPE NSATION
I . C ontractor shall p erform a ll work at the rates lis ted b elow:
A. Purchase of E quipment, Installation, and Commiss ioning, and Initial Term
(Service F e e included), payment to b e made 80 % upon shipment and 20 % upon
acceptance.
Item# Description
VSF-100-RXD ReaperXD Fixed LPR Camera System
• Vigilant So lutions Hi gh Definitio n Fixed LP R camera (st andard wavelen gth)
• Varifocallens f or capture up to 120'
• Requires Vigilant Inte l Box, sold s eparat ely
• Includes Vigila nt Solutions Pole Mount
BCAI 1F2 Vigilant Fixed Camera Intelligence Box-Primary
• Prim ary Intelli gence Box to manage power and communications for up to two (2)
V igila nt fi xed LP R came ras an d up to (3) Secondary Intelligen ce Boxes
CDFS-4HWW Fixed Camera LPR System-Extended Hardware Warranty-Year 2 through 5
• Fixed L PR System LPR h ardware component replacement warranty
• A p p lies to 1-C h an nel h ardware system kit
• Valid f or 4 yea rs from standard warranty expiration
In stallat ion Installation per the 3-28-18 Site Survey
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 Porta l an d CarDetector software updates
• Pri ced per cam era per yea r f or over 60 tota l camera u nits
• Requires ne w/exi stin g Ente r p ri se Service A greement (ESA)
SS U-SYS-COM Vigilant System Start Up & Commissioning of 'In Field' LPR system
• V igil ant technic ia n to v isit c u stom er site
• Includes syst em s tart u p, config uration and commission ing of L PR system
• Applies to mobile (1 Syst em) and fi xed (1 Camera) L PR system s
VS-TRV L-0 1 Vigilant Travel via Client Si te Visit
• Vig ilant certified technician to visit cl ient site
• In cludes all travel costs fo r onsite su pport services
01203.00011628025.1 C-1 B-45
(13) VS-SHP-02 Vigilant Shipping & Handling Charges
• Applies to each fixed camera LPR System
• Shipping Method is FOB Shipping
TOTAL (before
tax)
$216,765
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 cunent and enable the best possible
perfmmance . The annual Service Fee due for a particular Service Period is base d
on the number of cunent 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 subsequ ent Service Periods are shown
below:
Dl
Annual Service Fee Schedule
(multiplied by number ofLPR Cameras)
Service Fee $250 x5 II $1,250 ID
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 incre ase by no
higher than 4% per year for Service Periods subsequent to the Initial Te1m.
2. Extended Wananty. Consultant and City may agree to an Extended Wananty
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 Wananty, the annual fees are as follows:
o i 203.oooli628025.I C-2 B-46
Dl
Annual Extended Warranty Fee Schedule
(multiplied by number ofLPR Cameras)
Camera Wananty $500 x 5 II $2,500 ID
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 sub budget 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 terrn/60 * $12,500 ____ _
01203.0001 /6280 25.1 C-3 B-47
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 fi x ed 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 suppmi by submitting a suppmi ticket to
Consultant's company support website or by sending an email to Consultant's
supp01i 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.
Ill. The Contract Officer may approve extensions for performance of the services in
accordance with Section 3.2 .
01203.00011628025.1 D-1 B-48