3 integrated remote control systems or other components of the system. This CONTRACT does not provide for services mounting or connecting non-compatible loaner equipment to YOUR COVERED EQUIPMENT. Portable systems from OUR inventory shall be considered acceptable substitutes as loaner equipment. CRT based video projectors, LCD based video projectors, DLP based video projectors and LCD light valve video projectors shall be considered interchangeable as loaner equipment. YOU agree to be liable for the repair or replacement cost of the loaner unit due to loss or damage while the loaner equipment is inYOUR possession.
III. YOUR OBLIGATIONS DURING THE CONTRACT
A. Equipment Maintenance and Alteration: YOUmust provideUS with unrestricted access totheCOVERED EQUIPMENT for scheduled preventive maintenance visits. YOU may not alter the wiring interconnections of COVERED EQUIPMENT. YOU may not alter or modify the COVERED EQUIPMENT. YOU may not alter, repair or modify the COVERED EQUIPMENT except as expressly directed by OUR service personnel. YOU must operate the equipment as detailed in the user operations manual provided by the manufacturer with the COVERED EQUIPMENT. YOUmay not addequipment,components,wiring or otherparts totheCOVERED EQUIPMENT withoutwrittennotificationto and acceptance by US.
B. In the Event of the Failure of a Covered Component:
1. YOU must call us at 866-346-9283 or 714-637-7272. YOU must provide US with the Service Contract Number or the model of the equipment in need of service and the nature of the problem.
2. YOUmust giveUS access toallCOVERED EQUIPMENTat atimewithin the following 24hours that ismutually agreeable to bothYOU and US and is during OUR on-site service hours. If such a time cannot be mutually agreed upon, WE will schedule a service call to YOUR EQUIPMENTLOCATION at the first available time beyond the 24hour period during the on-site service hours.
3. YOU must allow US complete and unrestricted access to the COVERED EQUIPMENT during OUR service call for a length of time as requiredtorepairtheCOVEREDEQUIPMENT. YOUmustallocateenoughtimewiththeCOVEREDEQUIPMENTtotroubleshoot,diagnose, and repairthe COVERED EQUIPMENT.
IV. WHAT IS NOT COVERED
A. Parts other than the COVERED EQUIPMENT; projection screens and projection screen control devices; knobs; lamps; bulbs; trim; trim parts; cabinetry; cathode ray tubes (CRT’s); ILA optical units, DMD optical units; DLP//LCD optical units; LCD/Plasma screen panels; or batteries. Such parts will be provided toYOU at a 15% discount from OUR published price; B. Failure due to or caused by fire, failure as a result of utility services, failure as a result of poor, unconditioned or fluctuating electrical power, or natural and environmental causes such as earthquake, tornado, lightning, corrosion, flood, or other acts of God, or other causes beyondOURreasonablecontrol.
C. Failure caused by abuse, misuse, or negligence, or previously installed or used equipment which is not in good operating condition; D. Any actual, consequential or incidental damages incurred or suffered by YOU, directly or indirectly, or for economic loss, including, but not limited to inconvenience, loss of profits, loss of business revenue, loss of time, loss of equipment use, or any other economic loss of any kind whatsoever, even Western has been advised of the possibility thereof; E. Service required to diagnose YOUR complaint, failure or perceived failure if no mechanical or electrical failure was found, or was due to YOUR inability to properly operate the COVERED EQUIPMENT;
4 F. Video projector convergence problems caused by normal electronic fluctuations which occur between scheduled preventive maintenance;
G. Control system or other software programming changes to facilitate control functions not available at the commencement of the CONTRACT.
H. Failures or faults caused by structural, mechanical, electrical, or plumbing systems or devices not installed by US and not specifically covered under this CONTRACT.
I. Inability of the Covered Equipment, due to the manufacturing design of a product or products or the integration of the system, to perform in a manner other than for what it was designed.
K. Convergence of video to a multisynchronus display device (i.e., video projector, video monitor, etc.) other than those that were convergedfor at the start of theCONTRACT. Referto the schedule of convergedsources at the endof this contract for coveredconvergences.
L. Any condition that existed prior to the start date of this CONTRACT that would have been obvious during a pre-inspection of the Covered Equipment.
M. Repairs prohibited by statute, governmental regulation, or any other law.
O. Videoconferencing equipment&softwarewarranties&upgrades (Polycom,Tandberg,Lifesize,Cisco,etc.) P. Owner furnished equipment
V. TRANSFER OF CONTRACT
This CONTRACT may not be transferred to any other party without the express written consent of Western Audio Visual and the payment of a transfer fee equal to not less than ten percent (10%) of the premium amount. Western AudioVisual may, at its sole discretion choose to accept thetransferortoterminatetheCONTRACT.
VI. COMMENCEMENT, EXPIRATION, RENEWAL & CANCELLATION
OF CONTRACT
A. Onor before thirty (30) days following the start date of theCONTRACT:
1. YOU may cancel this CONTRACT and receive refund of the full premium if no benefits have been received or if no service calls or telephone support has been provided toYOU by US.
2. If benefits have been received or if service calls or telephone support has been provided by US,YOU may cancel this CONTRACT for a refund less the cost of the service performed, based on OUR published rate schedule.
B. Afterthirty (30) days following the start date of the CONTRACT,YOU may cancel this CONTRACT. The refundshall be a proration based upon the time expired on the CONTRACT calculated to the start of the month following the notice of cancellation. All cancellations after thirty (30) days are subject to a cancellation fee of ten percent (10%) of the refund amount. To cancel this CONTRACT, YOU must submit a notice of cancellation in writing and return the complete CONTRACT to US. WE will then issue a check for the refund amount.
5 C. If theCOVERED EQUIPMENT is not new and was not provided, installed or serviced by US,WEreserve the right toinspect the equipment within thirty (30) days of the commencement of this CONTRACT to determine if WE wish to provide the services covered in this CONTRACT. If WE determine that the equipment is not operating correctly, properly, or requires service to bring the equipment to good operating condition, WE will forward an estimate to YOU regarding the cost of such service. This service is not covered by this CONTRACT. If YOU decline to have US perform the work required to bring the COVERED EQUIPMENT up to good operating condition within fourteen (14) days of the date of the estimate,WE may, at OUR sole option,refund the full amount of the premium and cancel this CONTRACT.
D. WE may cancel this CONTRACT at any time for non-payment of the premium or if YOU do not meet YOUR obligations under Article III. If YOU do not meet YOUR obligations under Article III or do not pay the premium within thirty (30) days of OUR invoice, WE have the right to cancel this CONTRACT upon forwarding written notice toYOU. In the event of cancellation due to non-payment,YOU agree to be liable for the full cost of services and parts provided to YOU at the rates published in OUR most current rate schedule. In the event that YOU do not meet YOUR obligations underArticle III, we will provide a portioned refund based on the time expired on the CONTRACT.
E. The CONTRACT shall commence upon the receipt of a purchase order or other acceptable payment guarantee, or on the date identified on the first page of this CONTRACT, whichever is later. No CONTRACT on the COVERED EQUIPMENT work may be performed prior to the commencement of the CONTRACT.
F. TheCONTRACTshallrenew365daysafterthedateofcommencement. RepairworkontheCOVEREDEQUIPMENTwhichwasbegunprior tothe expiration of theCONTRACTshall becompleted by US.
G. ThisCONTRACTshallautomaticallyrenew. EitherYOU orWEmay decline toenterinto anewcontract.
VII. DEFINITIONS
Thewords listed below havethe following meanings inthis CONTRACT:
COVERED EQUIPMENT
Meansthe equipment for whichWE will provide service, as listed on the first page of this CONTRACT.
CONTRACT
Means this Service CONTRACT which specifies, among other things, YOURCoverage,theCONTRACTPERIOD,theCoveredEquipment.
YOU, YOUR(S)
ELECTRONIC OR MECHANICAL FAILURE AND BREAKDOWN
Means the inability of a properly maintained and operated piece of COVEREDEQUIPMENTtoperformthefunction(s)forwhichit was
designed, due solely to defects in material or faulty workmanship.
Without limitation,ElectronicorMechanicalBreakdownandFailure does not include damage due tonegligence,caused by accident,or the gradual reduction in performance due to wear and tear.
CONTRACT PERIOD
Means the period which begins on the date shown on page one of this agreement, or the receipt by us of an acceptable payment guarantee and ends on the expiration of the time limitation as set forth in thisCONTRACT.
WE, US, OUR(S)
Means Western Audio Visual
This CONTRACT is not a manufacturer’s warranty or an extension of a manufacturer’s warranty. This Service CONTRACT may provide duplicate coverage while manufacturer’s warranties are in force. This CONTRACT is not an express, implied or general warranty and is not a condition of the purchase of the COVERED EQUIPMENT.
2671/012225-0101
18679307.4 a10/09/24
EXHIBIT B
Insurance Requirements
A. Insurance Required
(1) Commercial General Liability insurance in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage.
(2) Automobile Insurance covering bodily injury and property damage for all activities of Consultant arising out of or in connections with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned, or rented vehicles in an amount not less than $1,000,000 combined single limit for each accident. (3) Workers’ Compensation Insurance providing statutory benefits as required by California law.
(4) Employer’s Liability Insurance with limits in an amount not less than $1,000,000.
(5) Professional Liability or Errors and Omissions Insurance designed to protect against acts, errors, or omissions of Consultant and “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. Any 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.
B. All insurance policies required hereunder, except the workers’ compensation insurance, shall comply with the following requirements:
(1) All insurance shall be written by insurers that are admitted and licensed to do business in the State of California and with A.M. Best’s rating of A- or better and a minimum financial size VII in accordance with the latest edition of Best’s Key Rating Guide. (2) The policies shall be endorsed to name City and its officers, officials, employees, agents, and volunteers as additional insureds. (3) All of Consultant’s insurance: (i) shall contain no special limitations on the scope of protection afforded to the additional insureds; (ii) shall be primary insurance and any insurance or self-insurance maintained by the additional insureds or any of them shall be in excess of Consultant’s insurance and shall not contribute with it; (iii) shall be “occurrence” rather than “claims made” insurance; (iv) shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability; (v) shall prohibit Consultant from waiving the right of subrogation prior to a loss except for professional liability;
2671/012225-0101
18679307.4 a10/09/24 -2-
and (vi) shall not contain any provision or definition that would serve to eliminate so-called “third party action over” claims, including any exclusion for bodily injury to an employee of the insured. (4) City reserves the right at any time during the term of this Agreement to change the amounts and types of insurance required by giving Consultant ninety (90) days’ advance written notice of such change.
C. Consultant shall renew the required coverage annually as long as City or its employees or agents face an exposure from Consultant’s operations pursuant to this Agreement.
Termination of this obligation shall survive the termination or expiration of this Agreement and shall not be effective until City executes a written statement to that effect.
2731/012225-0101
20582965.1 a10/11/24
ASSIGNMENT OF RIGHTS TO
PUBLIC, EDUCATIONAL, AND GOVERNMENTAL FEES
THIS ASSIGNMENT OF RIGHTS TO PUBLIC, EDUCATIONAL, AND
GOVERNMENTAL FEES (“Assignment”) is made as of _____________, 2024, by the CITY OF DUARTE, a municipal corporation acting in its limited capacity as the recipient of public, educational, and governmental programming fees (“PEG Fees”) as authorized by the Federal Cable Television Consumer Protection and Competition Act of 1992, as amended (the “Cable Act”) the California Digital Infrastructure and Video Competition Act of 2006 (“DIVCA”), and City of Duarte Ordinance No. 794, as codified in Chapter 5.10 of the Duarte Municipal Code (hereinafter the “PEG Fees Collection Entity”), in favor of the CITY OF DUARTE, a municipal corporation acting in its general capacity as a public body charged with the protection and advancement of the public health, safety, and welfare (hereinafter “City”), with reference to the following recitals:
A. PEG Fee Collection Entity has collected, and continues to collect PEG Fees as authorized by the Cable Act, DIVCA, and Duarte Municipal Code section 5.10.020.
B. The total amount of PEG Fees currently held by PEG Fee Collection Entity is approximately $66,000 (“Existing PEG Fees”).
C. City, by and through the City Council of the City of Duarte, has authorized the purchase and installation of certain audio visual equipment (the “Facilities”) which comprises capital facilities to be used on the broadcast and other dissemination of public, educational, and governmental programming in and for the City of Duarte.
D. The total estimated cost of the Facilities is $101,876 plus a fifteen percent contingency (the “Estimated Facilities Cost”). Hereinafter, the “Total Facilities Cost” shall mean and refer to the Estimated Facilities Cost, plus (or minus) any City-authorized adjustments due to change orders, unforeseen conditions, or as otherwise necessary to accomplish the purchase and installation of the Facilities.
E. PEG Fee Collection Entity shall contribute the Existing PEG Fees toward the Facilities, and City shall contribute from other City funds the difference between Existing PEG Fees and the Total Facilities Cost (the “General Fund Contribution”) toward the purchase of the Facilities.
F. Through this Assignment, PEG Fee Collection Entity shall commit to reimburse the amount of the General Fund Contribution to the City from future-collected PEG Fees.
NOW, THEREFORE, in view of the recitals set forth above, PEG Fee Collection Entity agrees as follows:
1. Reimbursement. PEG Fee Collection Entity shall promptly reimburse to City, for use by City as general funds, any and all PEG Fees collected from and after the date of this Assignment, until the amount of funds so reimbursed is equal to the General Fund Contribution.
2. Entire Agreement. This Assignment contains the entire understanding and agreement of PEG Fee Collection Entity and City with respect to the subject matter hereof and may not be altered or amended in any way except by the written agreement of said parties. No provision of this Assignment or right of City hereunder can be waived nor shall PEG Fee Collection Entity be released from its obligations hereunder except by a writing duly executed by the City Manager. Where necessary herein, all terms used in the singular shall apply to the plural and all terms used in the neuter shall apply to the masculine and feminine genders.
3. Term; Binding Effect. This Assignment shall be and remain in full force and effect until each of the obligations secured hereby has been fully performed or paid.
4. Severability. If any provision of this Assignment, as applied to any party or to any circumstance, shall be adjudged by a court of competent jurisdiction to be void, invalid or unenforceable, then the same shall in no way affect any other provisions of this Assignment, the application of any such provision in any other circumstance, or the validity or enforceability of the other provisions of this Assignment.
5. Governing Jurisdiction. This Assignment shall be governed by and construed in accordance with the laws of the State of California.
IN WITNESS WHEREOF, PEG Fee Collection Entity has executed this Assignment of Rights to Public Educational, and Governmental Programming Fees as of the date first appearing hereinabove.
“PEG FEE COLLECTION ENTITY”
CITY OF DUARTE
Date: __________________ By: ________________________________ Vinh Truong, Mayor
ATTEST:
__________________________
Annette Juarez, City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
__________________________
Thai Viet Phan, City Attorney