March 13, 2023 – Regular Meeting Agenda – 7:00 p.m.
Printed on Recycled Paper See Reverse
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March 13, 2023 – City Council Regular Meeting – 7:00 p.m.
City Council Chamber
390 Towne Centre Drive
Lathrop, California
(209) 941-7200
www.ci.lathrop.ca.us
City Council
Sonny Dhaliwal, Mayor
Paul Akinjo, Vice Mayor
Minnie Diallo
Diane Lazard
Jennifer Torres-O’Callaghan
City Staff
Stephen Salvatore, City Manager
Salvador Navarrete, City Attorney
Michael King, Assistant City Manager
Teresa Vargas, Government Services
Director / City Clerk
Brad Taylor, City Engineer
Tony Fernandes, Information Systems Director
Cari James, Finance Director
Mark Meissner, Community Development
Director
Todd Sebastian, Parks, Recreation and
Maintenance Services Director
Raymond Bechler, Chief of Police
General Order of Business
1. Preliminary
• Call to Order
• Closed Session
• Roll Call
• Invocation
• Pledge of Allegiance
• Announcements by Mayor/City Mgr.
• Informational Items
• Declaration of Conflict of Interest
2. Presentations
3. Citizen’s Forum
4. Consent Calendar
5. Scheduled Items
• Public Hearings
• Appeals
• Referrals and Reports from
Commissions and Committees
• All Other Staff Reports and/or Action
Items
• Study Sessions
6. Council Communications
7. Adjournment
Order of Discussion
Generally, the order of discussion after introduction
of an item by the Mayor will include comments and
information by staff followed by City Council
questions and inquiries. The applicant, or their
authorized representative, or interested residents,
may then speak on the item; each speaker may only
speak once to each item. At the close of public
discussion, the item will be considered by the City
Council and action taken.
Consent Calendar
Items on the Consent Calendar are considered
routine by the City Council and will be enacted by one
motion and one vote. There will be no separate
discussion of these items unless a Councilmember or
interested resident so requests, in which case the
item will be removed from the Consent Calendar and
considered separately.
1 March 13, 2023 Lathrop City Council Regular Meeting Agenda Page 1 IMPORTANT NOTICE REGARDING THIS MEETING & COVID-19
This public meeting will be conducted in person; all members of the City Council will attend in person. Members of the public are welcomed in person. Please adhere to COVID-19 and social distancing guidelines. This meeting will also be available for public participation by teleconference via ZoomGov at the following link:
https://www.zoomgov.com/j/1603088084?pwd=ajV1YkRxVlVlcVps WTRSMG9LRENuZz09
During the meeting, those joining by ZoomGov, will be allowed to speak prior to the close of public comment on an item. If you are using this method, please “raise the hand” feature to inform the City Clerk (meeting host) you wish to speak on the matter.
Please ensure your computer speaker and microphone are fully functional.
For audio / calling in only, dial: +1 (669) 254-5252 or +1 (669) 216-1590 o To request to speak (same as the “raise hand” feature) press *9 / When the City Clerk calls your name, press *6 to unmute.
Meeting Webinar ID: 160 308 8084 / Passcode: 087795
If you are not able to attend the meeting in person or virtually - Public comment/questions will be accepted by email to City Clerk Teresa Vargas at [email protected] or by calling (209) 941-7230 Questions or comments must be submitted by 4:00 p.m., on the day of the meeting.
To address City Council in person, please submit a purple card to the City Clerk indicating name, address, and number of the item upon which a person wishes to speak.
Council Meetings are live-streamed (with Closed Captioning) on Comcast Cable Channel 97, and on the City Council Webpage: https://www.ci.lathrop.ca.us/citycouncil/page/live-stream Addressing the Council
Any person may speak once on any item under discussion by the City Council after receiving recognition by the Mayor. Purple speaker cards will be available prior to and during the meeting. To address City Council, a card must be submitted to the City Clerk indicating name, address and number of the item upon which a person wishes to speak. When addressing the City Council, please walk to the lectern located in front of the City Council. State your name and address. In order to ensure all persons have the opportunity to speak, a time limit will be set by the Mayor for each speaker (see instructions on speaker form). In the interest of time, each speaker may only speak once on each individual agenda item; please limit your comments to new material; do not repeat what a prior speaker has said. If you challenge the nature of a proposed action in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to, the public hearing. 2 March 13, 2023 Lathrop City Council Regular Meeting Agenda Page 2 Citizen’s Forum
Any person desiring to speak on a matter, which is not scheduled on this agenda, may do so under the Citizen’s Forum section. Please submit your purple speaker card to the City Clerk prior to the commencement of Citizen’s Forum, or submit your request to speak via the “raise hand” feature in ZoomGov. Only those who have submitted speaker cards, or have expressed an interest to speak, prior to the conclusion of Citizen’s Forum will be called upon to speak.
Please be aware the California Government Code prohibits the City Council from taking any immediate action on an item, which does not appear on the agenda, unless the item meets stringent statutory requirements. The Mayor will limit the length of your presentation (see instructions on speaker form) and each speaker may only speak once on this agenda item.
Please note, the Council Chamber has limited occupancy due to social distancing.
To leave a voice message for all Councilmembers simultaneously, dial (209) 941-7230. To send an e-mail for Councilmembers simultaneously email: [email protected]. This City Council Agenda and meeting materials can be accessed by computer or any smart device at: https://www.ci.lathrop.ca.us/meetings
General Information
For reports citing supplemental documents relating to specific agenda items, these are available for review in the City Clerk’s Office. This agenda was posted at the following locations: City Hall, Community Center, Generations Center, Senior Center, and the LathropManteca Fire District “J" Street and Somerston Parkway Offices. The meetings of the Lathrop City Council are broadcast on Lathrop Comcast Cable Television Channel 97 and live streamed on the City’s website.
Assistance will be provided to those requiring accommodations for disabilities in compliance with the Americans with Disabilities Act of 1990. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility and/or accommodations to this meeting. [28 CFR 35.102-35.104 ADA Title II] Interested persons must request the accommodation at least 2 working days in advance of the meeting by contacting the City Clerk at (209) 941-7230. Information about the City or items scheduled on the Agenda may be referred to:
Teresa Vargas, MMC
Government Services Director / City Clerk
390 Towne Centre Drive
Lathrop, CA 95330
Telephone: (209) 941-7230
3 March 13, 2023 Lathrop City Council Regular Meeting Agenda Page 3
CITY OF LATHROP
CITY COUNCIL REGULAR MEETING
MONDAY, MARCH 13, 2023
7:00 P.M.
COUNCIL CHAMBER, CITY HALL
390 Towne Centre Drive
Lathrop, CA 95330
AGENDA
PLEASE NOTE: There will be a Closed Session commencing at 6:30 p.m. The Regular Meeting will reconvene at 7:00 p.m., or immediately following the Closed Session, whichever is later.
1. PRELIMINARY
1.1 CALL TO ORDER
1.2 CLOSED SESSION
1.2.1 CONFERENCE WITH REAL PROPERTY NEGOTIATORS: Pursuant to Government Code Section 54957.6
Agency Negotiator: Stephen J. Salvatore, City Manager
Employee Organization: Lathrop Police Officer’s Association
RECONVENE
1.2.2 REPORT FROM CLOSED SESSION
1.3 ROLL CALL
1.4 INVOCATION
1.5 PLEDGE OF ALLEGIANCE
1.6 ANNOUNCEMENT(S) BY MAYOR / CITY MANAGER
1.7 INFORMATIONAL ITEM(S) – NONE
1.8 DECLARATION OF CONFLICT(S) OF INTEREST
2. PRESENTATIONS
2.1 CERTIFICATE OF RECOGNITION TO THE LATHROP HIGH SCHOOL
BOYS BASKETBALL TEAM
2.2 PRESENTATION REGARDING THE EAST BAY COMMUNITY ENERGY -
CLEAN ENERGY PROVIDER
4 March 13, 2023 Lathrop City Council Regular Meeting Agenda Page 4
3. CITIZEN’S FORUM
Any person desiring to speak on a matter, which is not scheduled on this agenda, may do so under Citizen’s Forum. Please submit a purple speaker card to the City Clerk prior to the commencement of Citizen’s Forum. Only those who have submitted speaker cards, or have expressed an interest to speak, prior to the conclusion of Citizen’s Forum will be called upon to speak. Please be aware the California Government Code prohibits the City Council from taking any immediate action on an item, which does not appear on the agenda, unless the item meets stringent statutory requirements. The City Council can, however, allow its members or staff to briefly (no more than five (5) minutes) respond to statements made, to ask questions for clarification, make a brief announcement or report on his or her own activities. (See California Government Code Section 54954.2(a)). Unless directed otherwise by a majority of the City Council, all questions asked and not answered at the meeting will be responded to in writing within 10 business days. ALL PUBLIC
COMMENTS MUST BE MADE IN COMPLIANCE WITH THE LATHROP CITY COUNCIL HANDBOOK OF RULES AND PROCEDURES!
4. CONSENT CALENDAR
Items on the Consent Calendar are considered routine by the City Council and will be enacted by one motion and one vote. There will be no separate discussion of these items unless the Mayor, Councilmember, or citizen so requests, in which event the item will be removed from the Consent Calendar and considered separately.
4.1 WAIVING OF READING OF ORDINANCES AND RESOLUTIONS
Waive the Reading in Full of Ordinances and Resolutions on Agenda and Adopt by Reading of Title Only, Unless Otherwise Requested by the Mayor or a Councilmember
4.2 OPPOSE 2024 BALLOT INITIATIVE 21-0042A1 “THE TAXPAYER PROTECTION AND GOVERNMENT ACCOUNTABILITY ACT”
Adopt Resolution to Oppose Initiative 21-0042A1 “The Taxpayer Protection and Government Accountability Act” State Ballot Measure Restricting Voters’ Input and Local Taxing Authority
4.3 APPROVE FACILITY FEE WAIVER REQUESTS FROM NATIVE C.O.R.E AND
ALCOHOLICS ANONYMOUS
Adopt Resolutions Approving the Facility Fee Waiver Requests from Native C.O.R.E for the Use of Scott Brooks Gymnasium for a Pow-Wow Event and Alcoholics Anonymous for the Use of the Lathrop Community Center Multi-Purpose Room for Weekly Meetings
5 March 13, 2023 Lathrop City Council Regular Meeting Agenda Page 5
4.4 APPROVE A PROFESSIONAL SERVICE AGREEMENT WITH PEREGRINE TECHNOLOGIES, INC. FOR INTEGRATED SOFTWARE AS A SERVICE AND
DATA VISUALIZATION PLATFORM
Adopt Resolution Approving a Professional Service Agreement with Peregrine Technologies, Inc. for the Peregrine Platform
4.5 APPROVE THE PURCHASE OF CITY NETWORK ROUTER AND FIREWALL UPGRADES WITH SOLID NETWORKS, INC.
Adopt Resolution Approving the Purchase of City Network Router and Firewall Upgrades with Solid Networks, Inc. and Related Budget Amendment
4.6 APPROVE THE PURCHASE OF HARDWARE AND SOFTWARE LICENSES WITH SOLID NETWORKS, INC. TO EXPAND THE CITY’S INFORMATION
SYSTEMS INFRASTRUCTURE
Adopt Resolution Approving the Purchase of Hardware and Software Licenses with Solid Networks, Inc. to Expand the City’s Information Systems Infrastructure and Related Budget Amendment
4.7 APPROVE AMENDED AND RESTATED AGREEMENT WITH VEOLIA WATER WEST OPERATING SERVICES, INC., FOR THE OPERATION AND
MAINTENANCE OF THE LATHROP CONSOLIDATED TREATMENT FACILITY
AND APPROVE BUDGET AMENDMENT
Adopt Resolution Approving the Amended and Restated Agreement with Veolia Water West Operating Services, Inc., for Wastewater Plant Operation and Maintenance of the Lathrop Consolidated Treatment Facility and Approve Budget Amendment
4.8 APPROVE PURCHASE FROM ROTO-LITE, INC. FOR LANDSCAPE
IMPROVEMENT LIGHTING ON LATHROP ROAD, LOUISE AVENUE, AND
GOLDEN VALLEY PARKWAY
Adopt Resolution Approving the Purchase from Roto-Lite, Inc., for Streetscape Median Lighting on Lathrop Road from South Harlan Road to Fifth Street; Louise Avenue from South Harlan Road to Fifth Street; and Golden Valley Parkway from Towne Centre Drive to River Islands Parkway
4.9 APPROVE CONTRACT CHANGE ORDER NO. 1 WITH TIM PAXIN’S PACIFIC EXCAVATION, INC. DBA PACIFIC EXCAVATION FOR STREETLIGHTS FOR LOUISE AVENUE LANDSCAPE, CIP GG 21-15
Approve Contract Change Order No. 1 with Tim Paxin’s Pacific Excavation, Inc. dba Pacific Excavation for Streetlights for Louise Avenue Landscape, CIP GG 21-15
6 March 13, 2023 Lathrop City Council Regular Meeting Agenda Page 6
4.10 APPROVE PURCHASE AGREEMENT FROM JAM SERVICES, INC. FOR
TRAFFIC SIGNAL EQUIPMENT FOR THE LOUISE AND MCKINLEY AVENUE INTERSECTION IMPROVEMENTS, CIP PS 15-02 AND APPROVE BUDGET
AMENDMENT
Adopt Resolution to Approve Purchase Agreement from Jam Services, Inc. for Traffic Signal Equipment for the Louise Ave and McKinley Ave Intersection Improvements, CIP PS 15-02 and Approve Budget Amendment
4.11 APPROVE PARCEL MAP 22-09 AND OFFSITE IMPROVEMENT AGREEMENT
WITH LATHROP LAND ACQUISITION, LLC FOR TWO COMMERCIAL AND
HIGH DENSITY RESIDENTIAL LOTS LOCATED IN THE CLSP
COMMERCIAL AREA
Adopt Resolution Approving Parcel Map 22-09 and Offsite Improvement Agreement with Lathrop Land Acquisition, LLC for Two Commercial and High Density Residential Lots Located in the Central Lathrop Specific Plan Commercial Area
4.12 REINSTATE AND EXTEND MASTER AGREEMENT AND APPROVE TASK ORDER NO. 9 WITH INTERWEST CONSULTING GROUP, INC. FOR
PROFESSIONAL PROJECT SPECIFIC SERVICES IN THE BUILDING
DEPARTMENT
Adopt Resolution Reinstating and Extending Master Consulting Agreement with Interwest Consulting Group, Inc. and Approving Task Order No. 9 to Provide Project Specific Plan Check and Inspection Services in the Building Department
4.13 ACCEPT THE GENERAL PLAN HOUSING ELEMENT ANNUAL PROGRESS REPORT FOR CALENDAR YEAR 2022
Adopt Resolution Accepting the General Plan Housing Element Annual Progress Report for Calendar Year 2022 and Authorize Staff to Submit the Report to the Governor’s Office of Planning and Research and State Department of Housing and Community Development
CEQA STATUS: Not a Project as Defined in Article 20 § 15379 of the California Environmental Quality Act (CEQA) Guidelines
4.14 ACCEPT LINEAR PARK IMPROVEMENTS ASSOCIATED WITH SIA FOR TRACT 4062 AND EP NO. 2022-16 FROM LATHROP LAND ACQUISITION, LLC, LOCATED WITHIN CLSP NEIGHBORHOOD 1C (TRACT 4062) AND
APPROVE BUDGET AMENDMENT FOR MAINTENANCE
Adopt Resolution Accepting Linear Park Improvements Associated with Subdivision Improvement Agreement for Tract 4062 and Encroachment Permit No. 2022-16 from Lathrop Land Acquisition, LLC, Located within CLSP Neighborhood 1C (Tract 4062) and Approving Budget Amendment for Maintenance
7 March 13, 2023 Lathrop City Council Regular Meeting Agenda Page 7
4.15 ACCEPT PUBLIC IMPROVEMENTS WITH ASSOCIATED CONDITION FOR TRACT 4105, PHASE 1D, LOCATED IN THE CENTRAL LATHROP SPECIFIC
PLAN FROM LATHROP LAND ACQUISITION, LLC AND APPROVE BUDGET
AMENDMENT FOR MAINTENANCE
Adopt Resolution Accepting Public Improvements with Associated Condition for Tract 4105, Phase 1D Located in the Central Lathrop Specific Plan from Lathrop Land Acquisition, LLC and Approving Budget Amendment for Maintenance
4.16 ACCEPT PUBLIC IMPROVEMENTS, PUBLIC RIGHT-OF-WAY AND PUBLIC UTILITY EASEMENTS ASSOCIATED WITH EP NO. 2020-67, LOCATED AT 15299 MCKINLEY AVENUE FROM SUNRISE TRUCKING INC.
Adopt Resolution Accepting Public Improvements, Public Right-of-Way and Public Utility Easements Associated with Encroachment Permit No. 2020-67 from Sunrise Trucking Inc., located at 15299 McKinley Avenue
4.17 ACCEPT PUBLIC IMPROVEMENTS CONSTRUCTED BY DSS COMPANY DBA
KNIFE RIVER CONSTRUCTION FOR THE RIVER ISLANDS PARKWAY
WIDENING – PHASE 2, CIP PS 06-06
Adopt Resolution Accepting Public Improvements Constructed by DSS Company dba Knife River Construction for River Islands Parkway Widening Project – Phase 2, CIP PS 06-06, Authorize the Filing of a Notice of Completion, Release of Contract Retention, and Release of Performance and Payment Bonds
4.18 ACCEPT PUBLIC IMPROVEMENTS CONSTRUCTED BY AMERICAN PAVEMENT SYSTEMS, INC. FOR THE CITYWIDE PAVEMENT
MAINTENANCE AND REHABILITATION, CIP PS 21-12
Adopt Resolution Accepting Public Improvements Constructed by American Pavement Systems, Inc. for the Citywide Pavement Maintenance and Rehabilitation, CIP PS 21-12, and Authorizing the Filing of a Notice of Completion, Release of Contract Retention, and Release of Performance and Payment Bonds
4.19 AWARD CONSTRUCTION CONTRACT TO STOCKBRIDGE GENERAL CONTRACTING, INC. FOR MILESTONE MANOR PARK IMPROVEMENTS, CIP PK 20-02 AND APPROVE BUDGET AMENDMENT
Adopt Resolution Awarding a Construction Contract to Stockbridge General Contracting, Inc. for the Milestone Manor Park Improvements, CIP PK 20-02 and Approving Budget Amendment
4.20 CREATE CIP PS 23-15, ROAD AND LEVEE ACCESS GATES, AWARD CONSTRUCTION CONTRACT TO PISOR FENCE DIVISION, INC. AND
APPROVE BUDGET AMENDMENT
Adopt Resolution Approving the Creation of CIP PS 23-15, Road and Levee Access Gates, Awarding a Construction Contract to Pisor Fence Division, Inc. and Approving Budget Amendment
8 March 13, 2023 Lathrop City Council Regular Meeting Agenda Page 8
4.21 APPROVE COMMUNITY PARTNERSHIP AGREEMENT BETWEEN THE CITY
OF LATHROP AND THE JUNETEENTH COMMITTEE TO CELEBRATE THE
JUNETEENTH NATIONAL INDEPENDENCE DAY FEDERAL HOLIDAY
Adopt Resolution Approving a Community Partnership Agreement between the City of Lathrop and the Juneteenth Committee in Order to Better Serve the Community and Celebrate the Juneteenth National Independence Day Federal Holiday
RIVER ISLANDS DEVELOPMENT CONSENT ITEM(S)
4.22 AUTHORIZE THE FORMATION OF COMMUNITY FACILITIES DISTRICT NO. 2023-1 (RIVER ISLANDS PUBLIC SERVICES AND FACILITIES #2) Adopt Resolution of Intention to Establish City of Lathrop Community Facilities District No. 2023-1 (River Islands Public Services and Facilities #2) and a Future Annexation Area to Finance Public Services and Facilities
5. SCHEDULED ITEMS
5.1 PUBLIC HEARING (PUBLISHED NOTICE) TO CONSIDER AN
ORDINANCE AMENDING THE SPEED LIMITS IN THE CITY OF LATHROP, TITLE 10 VEHICLES AND TRAFFIC, CHAPTER 10.08 SPEED LIMITS, SECTION 10.08.030 SPEED LIMITS OF THE LATHROP MUNICIPAL CODE City Council to Consider the Following:
1. Hold a Public Hearing; and
2. Introduction and First Reading of an Ordinance of the City Council of the City of Lathrop Amending Section 10.08.030 “Speed Limits” of the Lathrop Municipal Code
5.2 PUBLIC HEARING (PUBLISHED NOTICE) TO CONSIDER APPROVAL OF
NEW FEES AND UPDATE FEES IN THE PUBLIC SAFETY SECTION OF THE CITY OF LATHROP’S MASTER FEE SCHEDULE
City Council to Consider the Following:
1. Hold a Public Hearing; and
2. Adopt Resolution Approving the New Fees and Updated Fees in the Public Safety Section of the City of Lathrop's Master Fee Schedule
5.3 BIENNIAL BUDGET FISCAL YEAR (FY) 2022 – 2023 MID-YEAR REPORT (YEAR 2)
Adopt Resolution Approving the Mid-Year Budget Report for Year 2 of the Biennial Budget Fiscal Year 2022-23 and Related Budget Augmentation Request
9 March 13, 2023 Lathrop City Council Regular Meeting Agenda Page 9
6. COUNCIL COMMUNICATIONS
6.1 COUNCILMEMBER DIALLO REFERRAL: Discussion to Consider Student Internship Program for High School Students
6.2 COUNCILMEMBER TORRES-O’CALLAGHAN REFERRAL: Discussion Regarding Implementing an Acquisition and Cataloging System of Community Member Donated Collection Pieces in Anticipation of a Future City of Lathrop Historical Museum
6.3 MAYOR & COUNCILMEMBER COMMITTEE REPORT(S)
• Central Valley Executive Committee/LOCC (Akinjo/Diallo) • Council of Governments (Lazard/Diallo)
• Integrated Waste Management Solid Waste Division (Akinjo/TorresO’Callaghan) • Reclamation District 17 Joint Powers Authority (Salvatore) • San Joaquin Partnership Board of Directors (Salvatore) • San Joaquin County Commission on Aging (Zavala)
• San Joaquin Valley Air Pollution Control District (Akinjo/Dhaliwal) • Water Advisory Board (Torres-O’Callaghan/Lazard)
• Tri Valley-San Joaquin Valley Regional Rail Authority (Akinjo) • San Joaquin Area Flood Control Agency (Akinjo & Lazard) • LAFCo (Diallo)
6.4 MAYOR & COUNCILMEMBER COMMENT(S)
7. ADJOURNMENT
/Teresa Vargas/
Teresa Vargas, MMC
Government Services Director/
City Clerk
10 ITEM 4. 2
CITY MANAGER' S REPORT
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
ITEM: OPPOSE 2024 BALLOT INITIATIVE 21- 0042A1 THE
TAXPAYER PROTECTION AND GOVERNMENT
ACCOUNTABILITY ACT"
RECOMMENDATION: Adopt Resolution to Oppose Initiative 21- 0042A1 The Taxpayer Protection and Government
Accountability Act" State Ballot Measure Restricting
Voters' Input and Local Taxing Authority
SUMMARY:
The proposed Taxpayer Protection and Government Accountability Act limits voters' authority and input, adopts new and stricter rules for raising taxes and fees, and makes it more difficult to hold violators of state and local laws accountable. Cal Cities is requesting Cities to adopt a resolution demonstrating how harmful this measure would be to communities and people of the State of California.
The measure puts billions of local government tax and fee revenues at risk statewide with related core public service impacts. The measure would have significant negative impacts on the City of Lathrop operations and core service delivery. The proposed constitutional initiative is sponsored by the California Business Roundtable.
On February 14, 2022, City Council approved the initial opposition letter, however the League of California Cities, has requested that Cities approve the updated resolution language and oppose this measure.
BAC KG ROU N D:
On January 4, 2022, the California Business Roundtable filed the" Taxpayer Protection and Government Accountability Act" or AG# 21- 0042A1. On Feb. 1, 2023, the measure qualified for the November 2024 ballot.
The League of California Cities, along with a broad coalition of local governments, labor and public safety leaders, infrastructure advocates, and businesses, strongly opposes this initiative.
Local government revenue- raising authority is currently substantially restricted by state statute and constitutional provisions, including the voter approved provisions of Proposition 13 of 1978, Proposition 218 of 1996, and Proposition 26 of 2010. The Taxpayer Protection and Government Accountability Act adds and expands restrictions on voters and local government tax and fee authority.
Staff is requesting City Council adopt a Resolution to oppose Initiative 21- 0042A1 The Taxpayer Protection and Government Accountability Act" and state ballot measure restricting voters' input and local taxing authority. If adopted, this resolution will be submitted to Cal Cities Ballot Measures Department. 11 CITY MANAGER' S REPORT PAGE 2
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
OPPOSE 2024 BALLOT INITIATIVE 21- 0042A1 THE TAXPAYER
PROTECTION AND GOVERNMENT ACCOUNTABILITY ACT"
REASON FOR RECOMMENDATION:
Effective date
All new or increased taxes or fees adopted by the Legislature, a city council, or the local voters after Jan. 1, 2022, must comply with the Act' s new rules.
State taxes
All new or increased state taxes will require majority voter approval.
Local taxes
New requirements for voter approval;
o Existing tax is applied to a newly annexed territory. o Existing tax is applied to a new service or product, for example when a utility user tax is applied to a new service.
All new or increased taxes adopted after Jan. 1, 2022, must include a sunset date.
Fees and charges
Requires that charges for access, use and rental of government property be reasonable" such as fees charged for use of government facilities and public works infrastructure to oil companies, utilities, gas companies, cable companies, and other corporations.
Fees and charges for services and permits may not exceed the ' actual cost" of providing the product or service for which the fee is charged. " Actual cost" is the minimum amount necessary." Examples include planning services, excavation and encroachment permits, preparation of candidate statement, and permit parking.
State and cities have burden of proving by ' clear and convincing evidence" that a fee/ charge is not a tax, that the amount is reasonable, and that it does not exceed the " actual cost."
No fee or charge or exaction regulating vehicle miles traveled can be imposed on new development.
12 CITY MANAGER' S REPORT PAGE 3
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
OPPOSE 2024 BALLOT INITIATIVE 21- 0042A1 THE TAXPAYER
PROTECTION AND GOVERNMENT ACCOUNTABILITY ACT"
Fines and penalties [ administrative enforcement of state law and municipal codes]
May require voter approval of fines and penalties for corporations and property owners that violate state and local laws unless a new, undefined adjudicatory process is used to impose the fines and penalties. Examples include nuisance abatement, organic waste reduction requirements, and failure to maintain a vacant property.
FISCAL IMPACT:
The Taxpayer Protection and Government Accountability Act would significantly impact local government municipal finances and services which puts billions of dollars currently dedicated to state and local services at risk, and could force cuts to public schools, fire and emergency response, law enforcement, public health, parks, libraries, affordable housing, services to support homeless residents, mental health services, and more.
ATTAC H M E NTS:
A. Resolution opposing Initiative 21- 0042A1 " The Taxpayer Protection And Government Accountability Act" State Ballot Measure restricting voters' input and Local Taxing Authority
B. Initiative 21- 0042A1 " The Taxpayer Protection And Government Accountability Act"
C. Draft letter opposing Initiative 21- 0042A1
13 CITY MANAGER' S REPORT PAGE 4
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
OPPOSE 2024 BALLOT INITIATIVE 21- 0042A1 THE TAXPAYER
PROTECTION AND GOVERNMENT ACCOUNTABILITY ACT"
APPROVALS:
a
T resa argas Date
irector of Governme Services/
City Clerk
G . zd z --
Salvador Navarrete Date
City Attorney
3• • 23
Stephen J. Salvatore Date
City Manager
14 RESOLUTION NO. 23-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP OPPOSING INITIATIVE 21- 0042A1 THE TAXPAYER PROTECTION AND GOVERNMENT ACCOUNTABILITY ACT" STATE BALLOT MEASURE RESTRICTING VOTERS'
INPUT AND OCAL TAXING AUTHORITY
WHEREAS, an association representing California' s wealthiest corporations and developers is spending millions to push a deceptive proposition aimed for the November 2024 statewide ballot; and
WHEREAS, the measure includes undemocratic provisions that would make it more difficult for local voters to pass measures needed to fund local services and infrastructure, and would limit voter input by prohibiting local advisory measures where voters provide direction on how they want their local tax dollars spent; and WHEREAS, the measure creates new constitutional loopholes that allow corporations to pay far less than their fair share for the impacts they have on our communities, including local infrastructure and our environment; and WHEREAS, the measure may make it much more difficult for state and local regulators to issue fines and levies on corporations that violate laws intended to protect our environment, public health and safety, and our neighborhoods; and WHEREAS, the measure puts billions of dollars currently dedicated to local services at risk and could force cuts to fire and emergency response, law enforcement, public health, parks, libraries, affordable housing, services to support homeless residents, mental health services, and more; and NOW, THEREFORE, BE IT RESOLVED that the City of Lathrop, opposes Initiative 21- 0042A1; and
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the City of Lathrop will join the NO on Initiative 21- 0042A1 coalition, a growing coalition of public safety, education, labor, local government, infrastructure advocates, and other organizations throughout the state.
15 The foregoing resolution was passed and adopted this 13t'' day of March 2023, by the following vote of the City Council, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS TO FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney 16 ATTACHMENT B
BELL, McANDREWS & HILTACHK, LLP
ATtORNEYS AND GOUNSELOR$ AT LAW
466 CAPITOL MALL, SUITE BOO
SAGRAMENTO, CALIFOiiNIA 99814
9161 442' 7757
FAX ( 916) 442' 7759 2 Q O
www. bmhlaw. com
January 4, 2022 R IV D
Anabel Renteria JAN 0 4 2pz2
Initiative Coordinator
Office of the Attorney General II IITIATIVE CofJRDINATOR State of California ATTORNBY C3BNERAL' S OFFICE
PO Bax 994255
Sacramento, CA 94244- 25550
Re: Initiative 21- Q042- Amendment Number One
Dear Initiative Coordinator:
Pursuant# o subdivision( b} of Section 9002 of the Etections Code, enclosed please find Amendment # 1 to Initiative No. ZI-0042 " The Taxpayer Pratection and Government Accountabzlity Act." The arnendments are reasonably germane to the theme, purpose or subject of the initiative measure as originally proposed.
I am the proponent of the measure and request that the Attorney General prepare a circulating title and summary of the measure as provided by law, using the amended language.
Thank you for your time and attention processing my request.
Sincerely,
tiiK./
TilOITi18 W. H11tdC1' liC
17 21 - 0042 Am t.
The Taxpayer Protection and Government Accountability Act Deleted codified text is denoted in st+ kee. Added codified text is denoted by rtalia and underline.] Section 1. Title
This Act shall be known, and may be crted as, the Taxpayer Protection and Government Accountability Act.
SecEion 2. Findings and Declarations
a Califarnians are overtaxed. We pay the nation' s highest state intome tax, sales tax, and gasoline tax. Acconiing to the U. S. Census Bureau, California' s combined state and local tax burden is the highest in the nation. Despite this, and despite two consecutive years of obscene revenue surpluses, state politicians in 2021 alone introduced legislation to raise more than $ 234 billion in new and higher taxes and fees.
b) Taxes are only part of the reason for California' s rising cost-of-living crisis. Californians pay billions more in hidden " fees" passed through to consumers in the price they pay for products, services, food, fuel, utitities and housing. Since 2010, government revenue from state and loca) " fees" has more than doubled.
c) California' s high cost of living not only contributes to the state' s skyrocketing rates of poverty and homelessness, they are the pushing working families and job- providing businesses out of the state. The most recent Census showed that Califarnia' s population dropped for the first time in history, costing us a seat in Congress. In the past four years, nearly 300 major carporations relocated to other states, not counting thousands more small businesses that were forced to move, sell or close. d) California voters have tried repeatedly, at great expense, to assert control aver whether and how taxes and fees are raised. We have enacted a series of ineasures to make taxes more predictable, to limit what passea as a " fee," ta require voter approvai, and to guarantee transparency and accountability. These measures include Proposition 13 ( 1978), Proposition 62 ( 1986), Proposition 218 ( 1996), and Proposition 26( 2010j.
ej Contrary to the voters' intent, these measures that were designed to control taxes, spending and accountability, have been weakened and hamst ung by the Legislature, government lawyers, and the courts, making it necessary to pass yet another initiative to close loophales and reverse hostile court decisians.
Section 3. Statement of Purpose
ay In enacting this measure, the voters reassert their right to a voice and a vote on new and higher taxes by requiring any new or higher tax to be put before voters for approval. Voters also intend that all fees and other tharges are passed or rejected by the voters themselves or a governing body elected by voters and not unelected and unaccountable bureaucrats.
b) Furthermore, the purpose and intent ofthe vaters in enacting this measure is to increase transparency and accountability over higher taxes and charges by requiring any tax measure placed on the ballot— 1 18
eithe at the state o local level-- to clearly state the type and rate of any tax, how long it will be in effect, and the use of the revenue generated by the tax.
c) Furthermore, the purpose and intent ofthe voters in enacting this measure is to clarify that any new or increased form of state government revenue, by any name or manner of extraction paid directfy or indirectly by Californians, shaH be authorized only by a vote of the Legislature and signature of the Governor ta ensure that the purposes for such charges are broadly supported and transparently debated. d Furthermore, the purpose and intent of the voters in enacting this measure is atso to ensure that taxpayers have the right and ability to effectively balance new or increased taxes and o#her charges with the rapidly increasing costs Californians are already paying for housing, food, childcare, gasoiine, energy, heaRhcare, education, and other basic costs of living, and to further protect the existing constitutiona! limit on property taxes and ensure that the revenue from such taxes remains local, without thanging or superseding existing constitutional provisions contained in Section 1( c) of Article XIII A. e) in enacting this measure, the voters also additionally intend to reverse loopholes in the legislative twothirds vote and voter approval requirements for government revenue lncreases created by the courts including, but not limited to, Cannabis Coalition v. City of Upland, Chamber of Commerce v. Air Resources Board, Schmeer v. Los Angeles County,lohnson v. Caunty afMendocino, Citizens Assn. ofSunsei 8each v.
Oronqe County Loca! Agenty Formotion Commission, and Wilde v. City of Dunsmuir.
Sectian 4. Sedion 3 of Article XIII A of the California Constitution is amended to read:
Sec. 3( al Every levv, charae, or exaction of anv kind imoosed bv state! aw is erther o tax o an exemut charae•
b 1 Any change in state t.a a e! ow which results in any taxpayer paying a new or hlgher tax must be imposed by an act passed by not less than two-thirds of all members elected to each ofthe two houses of the Legislature, and submitted to th electorate and anvroved bv a maiorftv vote, except that no new ad valorem taxes on real property, or sales or transaction taxes on the sales of real property, may be imposed. Each Act sha!! indude:
L]A specifrc duration af rime that the tax will be imposed ond an estimare Q, the annuat amount ex rected ta be derived from the tax.
BJ A svecr c and leqallv bindrna and enforceable limitation on how the revenue from the tax can be spent.
If rhe revenue from the tax can be snent for unrestricted aenera! revenue purnoses, then a statement that the tax revenue can be spent for" unrestricted peneral revenue purposes" shall be induded in a seporate, stand- alone section. Anv prouosed chan4e to the use of the revenue from the tax shall be adooted bv a senarate ad that is nassed bv not Jess than two-thirds of al! members elected to each of the two houses of the Leaislature ond submitCed to the electorate and anproved by a maioritv vote. 2) The title and summary and ballot label or nuestion reauired for a measure pursuant to the Etections Code shall, for each meosure vrovidina for the imnosition of a tax, includina a measure nroaosed by an elector bursuant to Article! I, rnclude:
A) The tyne and amount or rate of the tax;
8) The duratron of the tax; and
2 19
C) The use of the revenue derived from the tax.
c) A»y chant e rn state law which results in anv tax,vaver vavina a new or hipher exempr charqe must be imnosed bv on act nassed bv each of the two hauses of rhe Leaislature. Each act sha!! specify the e o exemat charae as nrovided in subdivision tel, and the amount or rate ofthe exemnt chorcre to be imvosed.
As used in this sectian and in Sedron 9 of Article fl" tax" means everva+ levy, charge, or exaction of any kind imposed by siate low fhat is not an exempt tharae. e) As used in thrs section, " exempt char4e" means onl the followina:
we., er..,,..,...,.:.,... tie :_+,. a....
j.} A reasonable charge ir eseai for a specific government service or product provided directly to the payor that is not provided ta those not charged, and which does not exceed the xease a{ e actua! costs ta the State of providing the seroice or product to the payor. j21 3y A charge esed-for the reasonable regulatory costs to the State incident to issuing licenses and permits, performing investigations, inspections, and audits, enforcing agricultural marketing orders, and the administrative enforcement and adjudication thereof. 3) A levv, charae, or exaction collected from lota/ units oj aovernmeni; health care nroviders or health care service vlans ihat is vrimarilv used bv the State of California for the nur oses increasinq rerm6unement ra[ es or pavments under the Medi- Ca! proaram, and rhe revenues of which are ArimarilY used to nance the nonfederal portion of Medi-Cal medical assistonce exaenditures. 4j A reasonable charge+ esed for entrance to or use of state property, or the purchase, rental, or lease of state property, except charges governed by Section 15 af Article Xl. 5) A fine, or penatty, indudina anv avalkable interest for nonpay_m nt ther o imposed by the judicial branch of government or t-& a Ee, - - n•'• ` a siate administrative
enforcement aaencv aursuant io adjudicatory due process, to punish a violation of law. 6) A lew charQe, assessment or exadion ca!lected for ihe promoiion of CaUfornia tourism pursuarrt to Chaater 1 tcommencin with Section 13995) of Part 4. 7 of Division 3 of Title 2 of the Gavernment Code. f{ c3 Any tax or exemat char e adopted afterlanuary 1, 2022 9 9, but prior to the effeciive date of this act, that was not adopted in compliance with the requirements of this section is void 12 months after the effective date of this act unless the tax or exempt char e is reenacted in compliance with the requirements of this section.
g Z{d The State bears the burden of proving by c/ear and convincina evidente that a levy, charge, or other exaction is an exemnt charae and not a tax. The State bears the burden of provinq by clear ond convincinq evidence ihat the amount ofthe exempt charge is reasonable and that the amount charaed does not exceed the actual cost o nrovidinp the service or product to the navor. 3 20
21 The reteniion ofrevenue bv, orthe pavment to, a non-aovernmenta! entity ofalew, charae, or exaction ofanv kind imposed bv state law, shall not be afactor in determinina whether the le+v, charae, or exaction is a tax or exem ot charae.
31 The characterization of a lew, charue, or exaction of anv kind as beino voluntarv, or paid in exthanQe for a benefit privileae. allowance, authorization, or asset shaJ! not be a fador in determinina whether rhe levs, charae, or exaction is a iax or an exemot charae. t41 The use ofrevenue derived from the levv charpe or exaction sha/I be a factor in determinina whether the levv charae, or exaction is a tax or exemut chrrrpe. h) As used in this section:
11" Actual cost" ofprovidina a ser+rice or nroduct means:( i)the mrnimum amount necessary to reimburse the aovernment for the cost of nrovidina the service or nroduct to the pavor, a d liil where the amount charaed is not used bsr che aovernment for anv vurpose other than reimbursino that cost. In computinq odua! cosY' the maximum amount rhat mav be imaosed is the actual cost Jess al! othersources of revenue indudi»a, but not limired to taxes, other exemnt charaes arants and state or federol funds received to provide such service or product.
21 " Extend"; ncludes but i.s nat l;mited to, doing any of the followina with resnect to a rax or exemvt charoe: lenothentng its duration, delavina or eliminatina its exviration, exvandina its annlicatron to o new territory or class of Aavor, or expandina the base to which its rate is applied. 3J" Imvose" means adont, enact, reenact create, establish, coilect increase vr extend. l4) "State! aw" includes, but is not limited to, anv state statute, state reaulation, state executive order. stvte resolution, state rulino, sta[ e opinivn letter, or other leaal authoritv or interpretation adopted, enacted, enforced, issued, or imalemented bv the leQislative or executive branches of state aovernment.
State law" does not indude actions taken bv the Rec enrs ofthe University o California. Trustees ofthe Colifornia State Universitv, or fhe Baard of Governors of the California Communitv Colleaes.
Section 5. Section 1 of Article XIII G of the California Constitution is amended, to read:
Sec. i. Definitions. As used in this articte:
o)" Artua! cost" ofurovidinp a service or aroduct means: li1 the minimum amount necessary to reimburse the aovernment for the cost of providin4 the service or product to the povor, and( ii) where the amount charc ed is not used bv rhe aovemment for anv purpose other than reimbursina that cost,_ In_computina actual cost" ihe maximum amounr thot mav be imposed is the actual cost less all other sources of revenue includina, but not limited to taxes, ather exempt char4es, arants, and state or federo! funds received to provide such service or product.
Lb" Extend" includes, but is not Iimited to, doina anv of the followina wirh res,nect to a tax, exemnt charqe, or Artitle Xlll D assessment fee, or charpe: lencrtheninq its duration, delavinp or eliminatrnA its exoiration, expandina its auplication to a new territory or dass of Aa or, or expandina the base to which its rate is apalied
4 21
cl{a}" General ta' means any tax imposed for general governmenta{ purposes. 1d1" Imnose" means adont, enact reenact create, establish, collect; increase, or extend. je 4b}" Local government" means any county, city, city and county, including a charter city or county, any specia) district, or any other locai or regional governmental entity, or an electorpursuant to Article 11 or the initiative power pravided bv a charter or statute.
fl "Loca! law" indudes, but is not limited to, any ordinance, resolutivn, reaulation, rulina, opinron letter, or other leaa! authoriiv or interAretation adopted enacted, enforced, issued, Of JItTple!)'12Ilt2(? Y Q IOCQI Qoverr ment.
gZ c}" Special districY' means an agency of the State, formed pursuant to generat law or a special act, for the local performance of governmental or proprietary functions with limited geogrephic boundaries inctuding, but not limited ta, school distritts and redevelopment agencies. 1,{d} "Special tax" means any tax imposed far specific purpases, including a tax imposed for specific purposes, wMich is placed into a general fund.
jil{ e As used in this article, ond in Sectfon 9 Artfcle! t. " tax" means every a- levy, charge, or exaction of any kind, imposed by a local gsMe e law ' n n xem har e. fil As used! n this section, " exemat ch raeu means onlv the followi» a:
t.-....F..:.... h.. h.".,.,#:+.,....-,..+:.... L.... ...: le. e. 21(} A reasonable charge i psse for a specific loca! government service or product provided directly to the payor that is no# provided to those not charged, and which does not exceed the le actual costs to the local government of providing the service or product. f( 3 A charge+ ese for the reasonable regulatory costs to a local government for issutng licenses and permits, performing investigations, inspections, and audits, enforcing agricultural marketing orders, and the administrative enforcement and adjudication thereof. j
A reasonable charge ir e# for entrance to or use of local government property, or the purchase, rental, or lease of local government property.
A fine; or penalty, ^- ^*^
r ^^^`^• "^ inctudinq ony applicable rnterest or nanaavment thereo imposed by the judicial branch of government or a local government administrative enforcement acrencv aursuant to adjudicatory due nrocess. as a-Fesa e# ro punish a violation of law. j5{ 6 A charge imposed as a condition of property development. No levv, charge, or exactian reaulatina or related to vehide miles traveled mav be impased as a condition of aroAertv developme» i or otcupancv.
L 4 n „«,.,.....,
e.,...., ., .,...,.,,.,+ Aa s.,.,.. ossessment. fee, or charae:.,,, « a :^ ^....^^^,••:+ ti e e i5ie+ s# subiect to Article XI II D, or an assessment imp„osed upnn a business in a rourism marketrnq district a parkinQ and business improvement area, or a ropertv and business improvement district. 5 22
f71 A charge imnosed for a sneci c health care service nrovided direct to the payor and that is not provided to those not charaed, and whrcir does nof exceed the reasonable costs to the loca overnment of nrovidina the health care service. As used in this paranraph, a " health care servrce means a service licensed or exemnt from licensure by the state pursuant to Chapters 1, 1. 3. or 2 of Division 2 of the Health and Safetv Code.
Section 6. Section 2 of Article Xlll C of the California Constitution is amended to read:
Sec. 2. Local Government Tax Limitation. Notwithstandin any other provision of this Constitution:
a) Every levv, charae, or exaction of anv kind imposed by local! aw is either a tax or an exemnt charae. All taxes imposed by any local government shall be deemed to be either general taxes or special taxes. Special purpos districts or agencies, including schuoi districts, shall have no power to levy general taxes. b) No local law_-^;^*, whether proposed by the aovernina bodv or bv pn elector, may impose, extend, or increase any general tax unless and until that tax is submitted to the electorate and approved by a majority vote. A general tax shall not be deemed to have been increased if it is imposed at a rate not higher than the maximum rate so appcoved. The election required by this subdivision shall be consolidated with a regularly scheduled generaf election for members of the governing body of the local government, except in cases of emergency detlared by a unanimous vote of the governing body. i?
sk t diwsi No local ! aw ever- ae whether aronosed bv the aovernina bodv or bv on elector, may impos , any special tax unless and until that tax is submitted to the electorate and approved by e two-thirds vote. A special tax shall not be deemed to have been increased if it Is imposed at a rate not higher than the maximum rate so approved. d] The titte and summarY and baUot label or auestion reauired for a measure pursuant io the Elections Code shall, for each measure arovidina for the impasition of a tax, indude:
I) The tvne and amouni or raie of the tax,•
2) fhe duration of the tax; and
3 The use of ihe revenue derived from the tax !tthe proposed tax is a Qeneral tax, the phrase" for genervl vovernrr ent use" shall be required, and no advisory measure may appear on the same bal/ot thai would indicate ihat the revenue from the aeneral tax will, could, or shoutd be used for a sveci c nurnose. e) Onlv the aovernina borlv of a local navernment, other than an elector nursuant to Article tl or the inrtiative power provided bv a tharter or statute, shall have the auihori to imnose ony exempt chorqe.
The aoverning 6ody shatl impose an exemAt tharae by an ordinance specifvina the tvpe of exempt chorge 6 23
os nrovided in Section 1( f) and the amount or rate of the exemat charae to be imnosed, and passed by the aoverninp body This subdivision shall not apalv to charqes specified in paraaraoh( 7) of subdivision fi) Section 1.
f)No amendment to a Charter which nrovides for the imvosition, extension, or increase of a tax or exemnt chorae shall be submitted to or annroved bv the electors nor shall any such amendmenr ro a Charter hereafter submitted to or aanroved bv the electors become effective for anv purpose. fa) Anv tax or exemAt charcte adoated afterlanuary 1, 2022, but nrior to the effective date of this aci; that was noi adonied in compliance with the reauirements of this section is void 12 monihs after f.he e ective date of this act unless the tax or exemot charoe is reenacted in compliance with the reauirements of this sectian.
1h1f1) The local aovernment bean the burden of arovina bv c/ear and convincina evidence that a levv, charpe or exadion is an exempt charge and not a tax. The locpl aovernment bears the burden vf nrvvina bv clear and convincina evidence that the omount of the ex mqt charge is reaso able a d that the amo rn charaed does not exceed the artual cost of arovidlna the service or nroduct io the aavor. f21 The retention ofrevenue bv, or the povment to, a non-aovernmental entit'y of lew, charae, or exactlon of anv kind imnosed bv a locol law, shal/ not be a factor in deierminina whether the levv, charoe, or exaction is a tax or exemnt charae.
l3) The characterization of a lew, charAe, or exaction of anv kind imposed by a focal law as beina paid in exchanae for a benefit; privile4e, allowonce, authorfzation, or assei shall not be facton in determininc whether rhe le n, charae, or exaction is a tax or an exempt charae. 4) The use of revenue derived from the levy, charae or exactian shol/ be o factor in determinina whether the! e . charae, or exadion is o tax or exemot charpe.
Section 7. Section 3 of Article XIII D of the Califarnia Constitution is amended, to read:
Sec_ 3. Property Taxes, Assessments, Fees and Charges Limited a) No tax, assessment, fee, ef charge, orsurcharqe, inc/udfna a surchorae based on the value ofaronertv. shail be assessed iy agep upon any parcel o#property or upon any person as an incident of property ownership except:
1) The ad valorem property tax" descr;bed in Section 1( a) of Article XIII and Section 1(a] ofArticle X!!lA, and described and enacted aursuant io ihe voter approva! rec uiremeni in Section 1( b) Article Xiil A.
2j Any special non- ad valorem tax receiving a two-thirds vote of Quali ed electors pursuant to Section 4 of Article Xlli q, ar after receiving a two-thirds vote ofthose aurhorized to vote in a communitv faciJities disirid by rhe Leaisloture nunuant to s[ atute as it existed on December 31. 2021. 3) AssQssments as provided by this article.
4) Fees or charges for property related seroices as provided by this artitle. 7 24
b) For purposes of this article, fees for the provision of electrical or gas service shall nat be deemed charges or fees imposed as an incident of property ownership.
Section 8. Sections i and 14 of Article XII I are amended to read:
Sec. l Unless otherwise provided by this Constitution or the laws of the United States:
a) All property is taxable and shall be assessed at the same percentage offair market value. When a value s# andard other than fair market value is prescribed by this Constitution or by statute authorized by this Constitution, the same percentage shall be applied to determine the assessed value. The value to which the percentage is applied, whether it be the fair market value o not, shall be known for property tax purposes as the full value.
b} All property so assessed shall be taxed in proportion to its full value. c) All aroceeds from the taxation ofnrovertv shall be aAnortioned aaordind ta! aw to the districts within the counties.
Sec. 14. All property taxed by state or local government shall be assessed in the county, city, and district in which it is situated. Notwithsrondina anv other nrovislon oflaw, such state orlccal nroperty taxes shall be annortioned accordina to! aw to the districts withln the countles.
Section 9. General Provisions
A. This Act shall be liberally construed in order to effectuate its purposes.
B.( 1) In the event that this initiative measure and another initiative measure or measures relating to s#ate or local requirementsforthe imposition, adoption, creation, orestabfishment oftaxes, charges, and other revenue measures shall appear on the same statewide election bafEot, the other initiative measure or measures shall be deemed to be in con lict with this measure. In the event that this initiative measure receives a greater number of affirmative votes, the provisions of this measure shall prevail in their entirety, and the provisions ofthe other initiative measure or measures shall be ull and void. 2) In furtherance of this provision, the voters hereby declare that this measure confHcts with the provisions of the " Housing Affordability and Tax Cut Act of 2022" and " The Tax Cut and Hausing Affordability Art," both of which would impose a new state property tax( called a " surcharge") on certain real property, and where the revenue derived from the tax is provided to the State, rather than retained in the county in which the property is situated and for the use of the county and cities and districts within the rnunty, in direct violation of the provisions of this initiative. 3j If this initiative measure is approved by the voters, but superseded in whole or in part by any other conflicting initiative measure approved by the voters at the same election, and such conflicting initiative is later held invalid, this measure shall be self-executing and given fuil force and effect.
C. The provisions of this Act are severable. 1f any portion, section, subdivision, paragraph, clause, sentence, phrase, word, o applitatiort of this Act is for any reason held to be invalid by a decision of any court of competent jurisdiction, that decision shall not affect the validity afthe remaining portions of this Act. 7he People o#the State of California hereby declare that they would have adopted this Act and each and every portion, sectian, subdivision, paragraph, clause, sentence, phrase, ward, and application not 8 25
declared invaiid or unconstitutional without regard to whether any portion of this Act or application thereof would be subsequently declared invalid.
D. If this Act is approved by the voters of the State of California and thereafter subjected to a legal challenge alleging a violation of state or federal law, and both the Governor and Attorney General refuse o defend this Act, then the following actions shall be taken:
1) Notwithstanding anything to the contrary cantained in Chapter 6 of Part 2 of Division 3 of Title 2 ofthe Government Code or any other law, the Attorney Generai shall appoint independent counsel to faithfully and vigorousiy defend this Act on behalf of the State of California. 2) Before appointing or thereafter substituting independent counsel, the Attorney General shall exercise due diligence in determining the qualificatians of independent counsel and shall obtain written affirmation from independent counsel that independent counsel will faithfully and vigorously defend this Act. The written a rmation shall be made publicfy avaiEable upon request. 3) A continuous appropriation is hereby made from the General Fund to the Controller, wlthout regard to fiscal years, in an amount necessary to cover the costs of retaining independent counsel to faithfully and vigorously defend this Act on behalf of the State of California. 4) Nothing in this section shall prohibit the proponents of this Act, or a bona fide taxpayers association, from intervening to defend this Act.
9 26
Attachment C
SAMPLE OPPOSE LETTER
Email a copy to BallotMeasures@caicities. ora as well as your Regional Public Affairs Manager.
CITY LETfERHEAD*'`*
DATE
Bismarck Obando
Director of Public Affairs, League of California Cities 1400 K Street, Suite 400
Sacramento, CA 95814
RE: Letter Opposing Initiative 21- 0042A1
On DATE, the City/ Town of voted to oppose Initiative 21- 0042A1, a deceptive, developer-sponsored proposition aimed for the November 2024 statewide ballot that would significantly jeopardize cities' ability to provide essential services and infrastructure for our residents.
The measure includes undemocratic provisions that would make it more difficult for local voters to pass measures needed to fund local services and projects and would limit voter input by prohibiting local advisory measures where voters can express a preference on how they want their local tax dollars spent, This measure creates new constitutional loopholes that allow corporations to pay far less than their fair share for the impacts they have on our communities, including impacts on local infrastructure and our environment,
This measure also may make it much more difficult for state and local regulators to issue fines and levies on corporations that violate laws intended to protect our environment, public health and safety, and our neighborhoods,
Unless defeated, the measure puts billions of dollars currently dedicated to local services at risk, and could force cuts to fire and emergency response, law enforcement, public health, parks, libraries, affordable housing, services to support homeless residents, mental health services, and more.
PLEASE CITE SPECIFIC IMPACTS TO YOUR CIN THAT WOULD RESULT FROM THIS INITIATIVE.
The measure benefits wealthy corporations and real estate developers while decimating our local communities and neighborhoods.
27 You may list the City/ Town of in formal opposition to Initiative # 21- 0042A1 and include our city as part of the growing coalition of public safety, labor, local government, infrastructure advocates, and other organizations throughout the state opposed to this deceptive proposition.
Sincerely,
NAME
TITLE
CITY/ TOWN of
28 ITEM 4. 3
CITY MANAGERS REPORT
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
ITEM: APPROVE FACILITY FEE WAIVER REQUESTS
FROM NATIVE C. O. R. E AND ALCOHOLICS
ANONYMOUS
RECOMMENDATION: Adopt Resolutions Approving the Facility Fee Waiver Requests from Native C. O. R. E for the
Use of Scott Brooks Gymnasium for a Pow Wow
Event and Alcoholics Anonymous for the Use of
the Lathrop Community Center Multi- Purpose
Room for Weekly Meetings
SUMMARY:
Native C. O. R. E and Alcoholics Anonymous have submitted Fee Waiver requests for the use of the Lathrop Community Center for events and meetings in accordance with the Fee Waiver Policy. Native C. O. R. E has requested that Council waive the fees associated with the rental of the Scott Brooks Gymnasium for a single day Pow Wow event. This event is expected to have approximately 200 people in attendance.
Alcoholics Anonymous has requested that Council waive the fees associate with the rental of the Lathrop Community Center Multi- Purpose room for weekly AA meetings and serves 25 people weekly. The Pow Wow event and AA meetings are open to the public.
The Parks and Recreation Commission typically reviews and makes recommendations on approving Fee Waiver requests, however, the March 2, 2023 meeting has been cancelled. In order to move forward with the Fee Waiver requests for both organizations, City staff reviewed these requests, and found they meet the requirements of the Fee Waiver Policy and are of public benefit, de minimis in nature and not subsidized from other facility fees. Staff requests that the Council review and approve the proposed resolutions for fee waivers requested by Native C. O. R. E and Alcoholics Anonymous.
BACKGROUND:
In 2011, City Council approved a Fee Waiver Policy that was proposed by the Parks and Recreation Commission. Staff recently received two requests for fee waivers that meet the requirements of the Fee Waiver Policy, from local organizations for the use of City facilities to support their activities. Native C. O. R. E and Alcoholics Anonymous are local ( San Joaquin County) non- profit organizations who are active within the Lathrop community. Native C. O. R. E' s mission is to focus on the values of wellbriety and the to deter Native youth form substance abuse. Alcoholics Anonymous' mission is to help its members find sobriety. The Pow Wow event and AA meetings will benefit the residents of Lathrop as detailed in their mission statements. The facility fee waiver 29 CITY MANAGERS REPORT
APPROVE FACILITY FEE WAIVER REQUEST FROM NATIVE C. O. R. E AND
ALCOHOLICS ANONYMOUS
requests are attached to this report from the organizations in the amount listed below:
Native C. O. R. E for use of the Scott Brooks Gymnasium on April 15, 2023 in the amount of $ 1, 137. 82
Alcoholics Anonymous for the use of the Lathrop Community Center MultiPurpose Room on Thursday evenings from 6: 00 p. m. to 8: 00 p. m. in the amount of $ 5, 672. 58
RECOMMENDATION:
Staff recommends Council find the requested waivers provide a public benefit to the community and the amounts of the requests are de minimis in nature and not subsidized from other facility fees, and approve the Fee Waiver requests from the organizations listed above.
FISCAL IMPACT:
The fiscal impact of the Fee Waiver requests, including the facility rental fees and the associated cost for staffing, totals $ 6, 810. 40.
ATTACH M ENTS:
A. Resolution to approve the Fee Waiver Request from Native C. O. R. E B. Native C. O. R. E Request for Fee Waiver and Facility Usage Calculations C. Resolution to approve the Fee Waiver Request from Alcoholics Anonymous
D. Alcoholics Anonymous Request for Fee Waiver and Facility Usage Calculations
30 CITY MANAGERS REPORT
APPROVE FACILITY FEE WAIVER REQUEST FROM NATIVE C. O. R. E AND
ALCOHOLICS ANONYMOUS
APPROVALS:
3 . (,. v3
Tod Seb ian Date
Director of Parks, Recreation and Maintenance Services
l
Cari Jam Date
Finance rector
3 - z - a - 3
Salvador Navarrete Date
City Attorney
Z3
Stephen J. Salvatore Date
City Manager
31 RESOLUTION NO. 23 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP APPROVING A FACILITY FEE WAIVER REQUEST FROM THE NATIVE C. O. R. E
FOR USE OF THE SCOTT BROOKS GYMNASIUM FOR A POW WOW EVENT WHEREAS, Native C. O. R. E submitted a Fee Waiver request for the use of the Scott Brooks Gymnasium on April 15, 2023 from 9: 00 a. m. to 7: 00 p. m. for a Pow Wow event; and
WHEREAS, the Fee Waiver was reviewed by City staff and meets the requirements of the Fee Waiver Policy; and
WHEREAS, Native C. O. R. E' s mission is to focus on the values of wellbriety and the to deter Native youth from substance abuse; and WHEREAS, the City Council finds that this request provides a public benefit to the community, that the amount of the requested waiver is de minimis in nature and not subsidized from other facility fees.
NOW, THEREFORE, BE IT RESOLVED that the Council finds the requested Fee Waiver by Native C. O. R. E would provide a public benefit to the community, that the amount requested waiver is de minimis in nature and not subsidized from other facility fees. Let it be further resolved, the City Council of the City of Lathrop does hereby waive facility fees for the use of the Scott Brooks Gymnasium in the amount of $ 1, 137. 82 including the facility rental fees and the associated cost for staffing. 32 The foregoing resolution was passed and adopted this 13th day of March 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS TO FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney 33 Attachment B
cify f .--'-" 1`' t
Lafhrop Parks& Recreation
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39Q Towne Cenfre Drive— Lathrop, CA 95330 '
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Phone( 209} 941- 7360— Fax( 209) 941- 7219
www.ci.lathrop.ca.us
FAC( LITY RENTAL FE WAIVER REQUEST FORM
Organization Name: p.kide C.• 1.
Contact Narne: hGt drt c+ q Email:
Address:
Type of C)rganization: 501( c} 3, 501( c) 4, Governmental Agency, ther; please specify:_. t Jbt l R o r 1' T
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35 RESOLUTION NO. 23 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP
APPROVING A FACILITY FEE WAIVER REQUEST FROM THE ALCOHOLICS ANONYMOUS FOR USE OF THE LATHROP COMMUNITY CENTER MULTIPURPOSE ROOM FOR WEEKLY MEETINGS WHEREAS, Alcoholics Anonymous submitted a Fee Waiver request for the use of the Lathrop Community Center Multi- Purpose Room on Thursday evenings from 6: 00 p. m. to 8: 00 p. m. for their weekly AA meetings; and WHEREAS, the Fee Waiver was reviewed by City staff and meets the requirements of the Fee Waiver Policy; and
WHEREAS, Alcoholics Anonymous' mission is to help its members find sobriety; and
WHEREAS, the City Council finds that this request provides a public benefit to the community, that the amount of the request is de minimis in nature and not subsidized from other facility fees.
NOW, THEREFORE, BE IT that the Council finds the requested Fee Waiver by Alcoholics Anonymous would provide a public benefit to the community, that the amount requested waiver is de minimis in nature and not subsidized from other facility fees. Let it be further resolved, the City Council of the City of Lathrop does hereby waive facility fees for the use of the Lathrop Community Center Multi- Purpose Room in the amount of$ 5, 672. 58 including the facility rental fees and the associated cost for staffing.
36 The foregoing resolution was passed and adopted this 13th day of March 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS TO FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney 37 Attachment D
City of .=-
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Lathrop Parks & Recreation 390 Towne Centre Drive— Lathrop, CA 95330 Phone( 209) 941- 7360— Fax( 209) 941- 7219
www. ci. lathro ca us
FACILITY RENTAL FEE WAIVER REQUEST FORM
Organization Name: r., • Gl, c
Contact Name:
Address:
Type of Organization: 501( c) 3, 501( c) 4, Governmental Agency, Other; please specify:
Date( s) of event: ./ i'r J ` j c' S G' t/ Facility( s) requested: , N. l i 1," Sc_. , Pcc, r/ Name and Purpose of Event: a, N,' n Y S
Describe Frequency of Event: w ' J
I have read the Facility Rental Fee Waiver policy. I am applying for a fee waiver based on the understanding and belief that my organization qualifies based on criterion identified in the Facility Fee Waiver Policy.
Signature: . - Date: "' `
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ITEM 4. 4
CITY MANAGER' S REPORT
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
ITEM: APPROVE A PROFESSIONAL SERVICE
AGREEMENT WITH PEREGRINE
TECHNOLOGIES, INC. FOR INTEGRATED
SOFTWARE AS A SERVICE AND DATA
VISUALIZATION PLATFORM
RECOMMENDATION: Adopt a Resolution Approving a Professional Service Agreement with Peregrine
Technologies, Inc. for the Peregrine Platform
SUMMARY:
In May 2022, the City entered into a Software- as- a- Service ( SaaS) Agreement with Peregrine Technologies, Inc. (" Peregrine") for the implementation of the Peregrine Platform. The software was deployed in preparation of the City' s new Lathrop Police Department, launched in July 2022. The Peregrine platform allows integration of various software solutions, such as Computer Aided Dispatch ( CAD), Records Management Systems ( RMS), Automatic License Plate Readers ( ALPR), and Surveillance Camera Systems. The software platform is exclusively used by the Lathrop Police Department' s sworn and non- sworn staff when searching and analyzing critical information across multiple systems to solve crime cases quickly.
The terms of the Agreement began as an initial period and will expire in March 2023.
Staff has had positive results with the platform and recommends renewing the agreement with Peregrine to continue developing additional data visualization and integrations of software systems. The new term of the agreement will commence on March 31, 2023 and terminate on March 31, 2028. There is an annual service fee of 110, 000. The annual cost will include an unlimited number of user access to the Peregrine platform. In addition to the following services: onboarding and training services, additional data integration from other software solutions, and support services.
Staff is requesting Council adopt a resolution approving a five ( 5) year Software- asa- Service Agreement with Peregrine Technologies, Inc. for a total sum not to exceed 550, 000.
BAC KG ROU N D:
Peregrine Technologies, Inc. provides a real- time data analysis and visualization system that will integrate data from a broad range of the Lathrop Police Department' s current and evolving information systems. The Peregrine platform will provide a single point of access to view and analyze valuable data from various sources, which will benefit the department and the City by:
41 CITY MANAGER' S REPORT PAGE 2
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
SOFTWARE AS A SERVICE AGREEMENT WITH PEREGRINE TECHNOLOGIES, INC.
Enabling real- time decision making and enhanced, proactive crime trend analysis
Enabling staff to more easily respond to Public Records Act requests and the increased public demand for meaningful fact- based information related to crime trends and policing
Assisting with faster resolution of criminal investigations Unlocking significant efficiency gains for the department by reducing the time it takes for uniformed and civilian staff to retrieve, analyze, and report on valuable data.
The Peregrine system has been utilized by other California law enforcement agencies since 2018 including agencies in Contra Costa, Alameda, Orange, and Riverside counties. Peregrine has a proven track record of CJIS compliance and adherence to the highest standards and best practices for data security and privacy protection.
In May 2022, the City entered into a Software- as- a- Service ( SaaS) Agreement with Peregrine Technologies, Inc. ( Peregrine") for the implementation of the Peregrine Platform. The software was deployed in preparation of the City' s new Lathrop Police Department, launched in July 2022. The software platform is exclusively used by the Lathrop Police Department' s sworn and non- sworn staff when searching and analyzing critical information across multiple systems to expedite the process of solving cases. The terms of the Agreement began as an initial period and will expire at the end of March 2023.
Peregrine submitted a proposal for a five ( 5) year term with an annual fixed fee of 110, 000 billed on a yearly basis. Staff had positive experience with the platform and recommends renewing an agreement with Peregrine for the proposed five ( 5) year term. The new term of the agreement will commence on March 31, 2023 and terminate on March 31, 2028. The full term of the agreement will cost $ 550, 000.
Below is a summary of the terms and annual cost of the SaaS Agreement with Peregrine Technologies, Inc.
FY 22/ 23 1 - 03/ 31/ 23- 03/ 30/ 24 110, 000
FY 23/ 24 2 - 03/ 31/ 24- 03/ 30/ 25 110, 000
FY 24/ 25 3 - 03/ 31/ 25- 03/ 30/ 26 110, 000
FY 25/ 26 4 - 03/ 31/ 26- 03/ 30/ 27 110, 000
FY 26/ 27 __i
5 - 03/ 31/ 27- 03/ 30/ 28 _ a $ 110, 000
Total Cost: ', $ 550, 000
The annual cost will include unlimited number of user access to the Peregrine platform. In additional to the following services: onboarding and training services, data integration from other software solutions, and support services. 42 CITY MANAGER' S REPORT PAGE 3
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
SOFTWARE AS A SERVICE AGREEMENT WITH PEREGRINE TECHNOLOGIES, INC.
REASON FOR RECOMMENDATION:
Peregrine Software allows integration with various software solutions to assist City' s law enforcement with searching and analyzing critical information to solve cases quickly, all in one platform. Staff has had a positive experience with the platform and recommends renewing a multi- year software agreement with Peregrine Technologies, Inc.
FISCAL IMPACT:
There are sufficient funds within FY 2022- 23 budget to cover the annual service fee for Year 1. The annual service fees due thereafter will be appropriated accordingly in each Fiscal Year' s Budget.
ATTACH M ENTS:
A. Resolution Approving a Software- as- a- Service Agreement with Peregrine Technologies, Inc.
B. City of Lathrop Professional Services Agreement with Peregrine Technologies, Inc.
43 CITY MANAGER' S REPORT PAGE 4
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
SOFTWARE AS A SERVICE AGREEMENT WITH PEREGRINE
TECHNOLOGIES, INC.
APPROVALS:
7- 2. Z
To nandes Date
nformation Systems Director
I71
Cari e Date
Finance i ector
3 - '7 - 2 0 23
Michael King Date
Assistant City Manager
j- 7 - ZO 2.._
Salvador Navarrete Date
City Attorney
l S'' 23
Ste J. Salvatore Date
City Manager
44 RESOLUTION NO. 23 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP
APPROVING A PROFESSIONAL A SERVICE AGREEMENT WITH PEREGRINE TECHNOLOGIES, INC. FOR THE PEREGRINE PLATFORM
WHEREAS, the City entered into a Software- as- a- Service ( SaaS) Agreement with Peregrine Technologies, Inc. (" Peregrine") in May 2022 for the implementation of the Peregrine Platform which is set to expire at the end of March 2023; and WHEREAS, the software platform was deployed in preparation of the City' s new Lathrop Police Department, launched in July 2022; and WHEREAS, Peregrine Technologies, Inc. provides a real- time data analysis and visualization system that will integrate data from a broad range of the Lathrop Police Department' s current and evolving information systems; and WHEREAS, the platform is exclusively use by the Lathrop Police Department' s sworn and non- sworn staff when searching and analyzing critical information across multiple systems to solve crime cases quickly; and
WHEREAS, Staff has had positive results with the platform and recommends approving an agreement with Peregrine for a five ( 5) year term with a total sum not to exceed $ 550, 000; and
NOW, THEREFORE, BE IT RESOLVED, the City Council of the City of Lathrop does hereby approve the proposed Professional Service Agreement with Peregrine Technologies, Inc. for the Peregrine Platform.
45 The foregoing resolution was passed and adopted this 13t" day of March 2023, by the following vote of the City Council, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS TO FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney 46 CITY OF LATHROP PROFESSIONAL SERVICES AGREEMENT
WITH PEREGRINE TECHNOLOGIES, INC. FOR INTEGRATED SOFTWARE AS- ASERVICE SOLUTION AND DATA VISUALIZATION PLATFORM
FOR THE CITY OF LATHROP POLICE DEPARTMENT
THIS AGREEMENT, dated for convenience this 31 st of March 2023, is by and made and entered into by and between PEREGRINE TECHNOLOGIES, INC. (" CONSULTANT") and the CITY OF LATHROP, a California municipal corporation (" CITY"); RECITALS:
WHEREAS, CONSULTANT is specially trained, experienced, and competent to perform Professional Services required by this agreement; and
WHEREAS, CONSULTANT was selected by CITY pursuant to said qualifications; and WHEREAS, CONSULTANT is willing to render such Professional Services, as hereinafter defined, on the following terms and conditions;
NOW, THEREFORE, CONSULTANT and the CITY agree as follows:
AGREEMENT
1) Scope of Service.
CONSULTANT agrees to perform Professional Services for the Peregrine Platform in accordance with the scope of work and fee proposal submitted by the CONSULTANT, attached as Exhibit " A" and incorporated herein by reference. CONSULTANT agrees to diligently perform these services in accordance with the standards of its profession and CITY' S satisfaction.
2) Compensation.
CITY hereby agrees to pay CONSULTANT a total sum not to exceed $ 550, 000 as described in Exhibit " A".
CONSULTANT shall be paid within thirty ( 30) days of receipt of billings containing all information contained in Paragraph 5 below. In no event shall CONSULTANT be entitled to compensation for work not included in Exhibit " A", unless a written change order or authorization describing the extra work and payment terms has been executed by CITY' s Authorized Representative prior to the commencement of the work.
ATTACHMENT " B"
47 CITY OF LATHROP — PEREGRINE TECHNOLOGIES, INC.
PEREGRINE PLATFORM Page 2
3) Effective Date and Term.
This term of this Agreement commences on March 31, 2023 and it shall terminate no later than March 31, 2028.
4) Independent Contractor Status.
It is expressly understood and agreed by both parties that CONSULTANT, while engaged in carrying out and complying with any of the terms and conditions of this Agreement, is an independent contractor and not an employee of the CITY. CONSULTANT expressly warrants not to represent, at any time or in any manner, that CONSULTANT is an employee of the CITY.
5) Billinqs.
CONSULTANT' S bills shall include date, date due, a list of all tasks performed by deliverable, a total amount due, the amounts previously billed, the net amount due on the invoice, and the balance remaining on the agreement and the CONSULTANT' S signature. Except as specifically authorized by CITY, CONSULTANT shall not bill CITY for duplicate services performed by more than one person. In no event shall CONSULTANT submit any billing for an amount in excess of the maximum amount of compensation provided in section ( 2) for listed services or for the entire Agreement, unless modified by a properly executed change order.
6) Advice and Status Reportinq.
CONSULTANT shall provide the CITY with timely reports, orally or in writing, of all significant developments arising during performance of its services hereunder, and shall furnish to CITY such information as is necessary to enable CITY to monitor the performance of this Agreement. CONSULTANT shall clarify with the CITY any details of the design that are not specifically understood.
7) Assiqnment of Personnel.
CONSULTANT shall assign only competent personnel to perform services pursuant to this Agreement. If CITY asks CONSULTANT to remove a person assigned to the work called for under this Agreement, CONSULTANT agrees to do so immediately, regardless of the reason, or the lack of a reason, according to the CITY' S request.
The services shall be performed by, or under the direct supervision, CONSULTANT' s Authorized Representative: Nick Kister
CONSULTANT shall not replace its Authorized Representatives without the prior written approval by the CITY.
48 CITY OF LATHROP — PEREGRINE TECHNOLOGIES, INC.
PEREGRINE PLATFORM Page 3
8) Assiqnment and Subcontractinq.
It is recognized by the parties hereto that a substantial inducement to CITY for entering into this Agreement was, and is, the professional reputation and competence of CONSULTANT. Neither this Agreement nor any interest therein may be assigned by CONSULTANT without the prior written approval of CITY' S authorized representative.
CONSULTANT shall not subcontract any portion of the performance contemplated and provided for herein, other than the subcontractors noted in the proposal, without prior written approval of the CITY' S authorized representative. 9) Insurance.
On or before beginning any of the services or work called for by any term of this Agreement, CONSULTANT, at its own cost and expense, shall carry, maintain for the duration of the Agreement, and provide proof thereof that is acceptable to the CITY the insurance specified in subsections ( a) through ( c) below with insurers and under forms of insurance satisfactory in all respects to the CITY. CONSULTANT shall not allow any subcontractor to commence work on any subcontract until all insurance required of the CONSULTANT has also been obtained for the subcontractor. Verification of this insurance shall be submitted and made part of this Agreement prior to execution. a) Workers' Compensation. CONSULTANT shall, at CONSULTANT' S sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer' s Liability Insurance for any and all persons employed directly or indirectly by CONSULTANT. Said Statutory Workers' Compensation Insurance and Employer' s Liability Insurance shall be provided with limits of not less than one million dollars. In the alternative, CONSULTANT may rely on a self- insurance program to meet these requirements provided that the program of self- insurance complies fully with the provisions of the California Labor Code. The insurer, if insurance is provided, or the CONSULTANT, if a program of self- insurance is provided, shall waive all rights of subrogation against the CITY for loss arising from work performed under this Agreement.
b) Commercial General and Automobile Liabilitv Insurance. CONSULTANT, at CONSULTANT' S own cost and expense, shall maintain commercial general and automobile liability insurance for the period covered by this Agreement in an amount not less than one million dollars per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement.
If a Commercial General Liability Insurance or an Automobile Liability form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting there from, and damage to property resulting from activities 49 CITY OF LATHROP — PEREGRINE TECHNOLOGIES, INC.
PEREGRINE PLATFORM Page 4
contemplated under this Agreement, including the use of owned and nonowned automobiles.
Coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 ( ed. 11/ 88) and Insurance Services Office Automobile Liability form CA 0001 ( ed. 12/ 90) Code 1 ( any auto).
Each of the following shall be included in the insurance coverage or added as an endorsement to the policy:
i) CITY, its officers, employees, agents, and volunteers are to be covered as insured with respect to each of the following: liability arising out of activities performed by or on behalf of CONSULTANT, including the insider' s general supervision of CONSULTANT; products and completed operations of CONSULTANT; premises owned, occupied or used by CONSULTANT. The coverage shall contain no special limitations on the scope of protection afforded to CITY, its officers, employees, agents, or volunteers.
ii) The insurance shall cover on an occurrence or an accident basis, and not on a claims made basis.
iii) An endorsement must state that coverage is primary insurance and that no other insurar ce affected by the CITY will be called upon to contribute to a loss under the coverage.
iv) Any failure of CONSULTANT to comply with reporting provisions of the policy shall not affect coverage provided to CITY and its officers, employees, agents, and volunteers.
v) Insurance is to be placed with California- admitted insurers with a Best' s rating of no less than A: VII.
vi) Notice of cancellation or non- renewal must be received by CITY at least thirty days prior to such change.
c) Cvber and Technoloqy Liability Insurance CONSULTANT, at CONSULTANT' S own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount no less than Two Million Dollars ($ 2, 000, 000) per occurrence Coverage shall be at least as broad to respond to the duties and obligations for:
i) Liability for network security failures or privacy breaches, including 50 CITY OF LATHROP — PEREGRINE TECHNOLOGIES, INC.
PEREGRINE PLATFORM Page 5
loss or unauthorized access and misuse of CITY electronic data and or information " property" used by CONSULTANT.
ii) Full value replacement of damage to, loss to, alternation of, or destruction of electronic data and or information " property" used by CONSULTANT.
iii) Expenses related to regulatory compliance, fines, and penalties. d) Deductibles and Self- Insured Retentions. CONSULTANT shall disclose the self-insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. During the period covered by this Agreement, upon express written authorization of the CITY' s authorized representative, CONSULTANT may increase such deductibles or self- insured retentions with respect to CITY, its officers, employees, agents, and volunteers. The CITY' s authorized representative may condition approval of an increase in deductible or self- insured retention levels upon a requirement that CONSULTANT procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them.
e) Notice of Reduction in Coveraqe. In the event that any coverage required under subsectiors ( a), ( b), or( c) of this s ction of the Agreement is educed, limited, or materially affected in any other manner, CONSULTANT shall provide written notice to CITY at CONSULTANT' S earliest possible opportunity and in no case later than five days after CONSULTANT is notified of the change in coverage.
f) In addition to any other remedies CITY may have if CONSULTANT fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, CITY may, at its sole option:
i) Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement;
ii) Order CONSULTANT to stop work under this Agreement or withhold any payment which becomes due to CONSULTANT hereunder, or both stop work and withhold any payment, until CONSULTANT demonstrates compliance with the requirements hereof;
iii) Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to other remedies CITY may have and is not the exclusive remedy for CONSULTANT' S breach.
51 CITY OF LATHROP — PEREGRINE TECHNOLOGIES, INC.
PEREGRINE PLATFORM Page 6
10) Indemnification - CONSULTANT' S Responsibilitv.
As to the CONSULTANT' S work hereunder, it is understood and agreed that ( a) CONSULTANT has the professional skills necessary to perform the work, that ( b) CITY relies upon the professional skills of CONSULTANT to perform the work in a skillful and professional manner, and ( c) CONSULTANT thus agrees to so perform.
Acceptance by CITY of the work performed under this Agreement does not operate as a release of said CONSULTANT from such professional responsibility for the work performed. It is further understood and agreed that CONSULTANT is apprised of the scope of the work to be performed under this Agreement and CONSULTANT agrees that said work can and shall be performed in a fully competent manner in accordance with the standard of care applicable to CONSULTANT' S profession.
CONSULTANT shall indemnify, defend, and hold CITY, it officers, employees, agents, and volunteers harmless from and against any and all liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused by the willful misconduct or negligent acts or omissions of CONSULTANT, its employees, subcontractors, or agents, or on account of the performance or character of this work, except for any such claim arising out of the negligence or willful misconduct of the CITY, its officers, employees, agents, or volunteers. It is understood that the duty of CONSULTANT to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance of insurance certificates and endorsements required under thos Agreement does not relieve CONSULTANT from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages.
11) Licenses.
If a license of any kind, which term is intended to include evidence of registration, is required of CONSULTANT, its employees, agents, or subcontractors by federal or state law, CONSULTANT warrants that such license has been obtained, is valid and in good standing, and CONSULTANT shall keep it in effect at all times during the term of this Agreement, and that any applicable bond has been posted in accordance with all applicable laws and regulations.
12) Business Licenses.
CONSULTANT shall obtain and maintain a CITY of Lathrop Business License until all Agreement services are rendered and accepted by the CITY. 52 CITY OF LATHROP — PEREGRINE TECHNOLOGIES, INC.
PEREGRINE PLATFORM Page 7
13) Termination.
Either CITY or CONSULTANT may cancel this Agreement upon 30 days written notification to the other party. In the event of termination, the CONSULTANT shall be entitled to compensation for services performed to the effective date of termination; provided, however, that the CITY may condition payment of such compensation upon CONSULTANT' S delivery to the CITY of any or all documents, photographs, computer software, video and audio tapes, and other materials provided to CONSULTANT or prepared by or for CONSULTANT or the CITY in connection with this Agreement. 14) Fundinq.
CONSULTANT agrees and understands that renewal of this agreement in subsequent years is contingent upon action by the City Council consistent with the appropriations limits of Article XIII ( B) of the California Constitution and that the Council may determine not to fund this agreement in subsequent years.
15) Notices.
All contracts, appointments, approvals, authorizations, claims, demands, Change Orders, consents, designations, notices, offers, requests and statements given by either party to the other shall be in writing and shall be sufficiently given and served upon the other party if ( 1) personally served, ( 2) sent by the United States mail, postage prepaid, 3) sent by private express delivery service, or (4) in the case of a facsimile transmission, if sent to the telephone FAX number set forth below during regular business hours of the receiving party and fiollowed with two ( 2) Days by delivery of a hard copy of the material sent by facsimile transmission. Personal service shall include, without limitation, service by delivery and service by facsimile transmission.
To City: City of Lathrop
City Clerk
390 Towne Centre Drive
Lathrop, CA 95330
Copy to: City of Lathrop
Information Systems Department
390 Towne Centre Drive
Lathrop, CA 95330
209) 941- 7340
FAX: 209) 941- 7339
To Consultant: PEREGRINE TECHNOLOGIES, INC.
Nick Kister
130 Bush Street, 8t" Floor
San Francisco, CA 94101
Phone: 916) 849- 2222
53 CITY OF LATHROP — PEREGRINE TECHNOLOGIES, INC.
PEREGRINE PLATFORM Page 8
16) Miscellaneous.
a) Consent. Whenever in this Agreement the approval or consent of a party is required, such approval or consent shall be in writing and shall be executed by a person having the express authority to grant such approval or consent. b) Controlling Law. The parties agree that this Agreement shall be governed and construed by and in accordance with the Laws of the State of California. c) Definitions. The definitions and terms are as defined in these specifications. d) Force Majeure. Neither party shall be deemed to be in default on account of any delay or failure to perform its obligations under this Agreement, which directly results from an Act of God or an act of a superior governmental authority.
e) Headings. The paragraph headings are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement.
g) Incorporation of Documents. All documents constituting the Agreement documents described in Section 1 hereof and all documents which may, from time to time, be referred to in any duly executed amendment hereto are by such re#er nce incorperated in the Agreement and shall be deemed to be part of this Agreement.
g) Integration. This Agreement and any amendments hereto between the parties constitute the entire Agreement between the parties concerning the Project and Work; there are no other prior oral or written agreements between the parties that are not incorporated in this Agreement. h) Modification of Agreement. This Agreement shall not be modified or be binding upon the parties unless such modification is agreed to in writing and signed by the parties.
i) Provision. Any agreement, covenant, condition, clause, qualification, restriction, reservation, term or other stipulation in the Agreement shall define or otherwise control, establish or limit the performance required or permitted or to be required of or permitted by either party. All provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions.
j) Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is void or unenforceable, the provisions of this Agreement not so affected shall remain in full force and effect. 54 CITY OF LATHROP — PEREGRINE TECHNOLOGIES, INC.
PEREGRINE PLATFORM Page 9
k) Status of CONSULTANT. In the exercise of rights and obligations under this Agreement, CONSULTANT acts as an independent contractor and not as an agent or employee of CITY. CONSULTANT shall not be entitled to any rights and benefits accorded or accruing to the City Council members, officers or employees of CITY, and CONSULTANT expressly waives any and all claims to such right and benefits.
I) Successors and Assigns. The provisions of this Agreement shall inure to the benefit of, and shall apply to and bind, the successors and assigns of the parties.
m) Time of the Essence. Time is of the essence of this Agreement and each of its provisions. In the calculation of time hereunder, the time in which an act is to be performed shall be computed by excluding the first Day and including the last. If the time in which an act is to be performed falls on a Saturday, Sunday or any Day observed as a legal holiday by CITY, the time for performance shall be extended to the following Business Day. n) Venue. In the event that suit is brought by either party hereunder, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of San Joaquin or in the United States District Court for the Eastern District of California.
o) Recovery of Costs. The prevailing party in any action brought to enforce the #erms of this Agreement or arising out of this Agr ement may recover its reasonable costs, including reasonable attorney' s fees, incurred or expended in connection with such action against the non- prevailing party. 17) General Contractor Responsibilities.
Neither the professional activities of CONSULTANT, nor the presence of CONSULTANT or CONSULTANT' S sub- consultants shall relieve the Consultant of its obligations, duties and responsibilities.
CITY agrees that the CITY, CONSULTANT and its sub-consultants shall be indemnified by the General Contractor and shall be made additional insured under the General Contractor' general liability insurance policy and that a Waiver of Subrogation in favor of CONSULTANT will be provided under the General Contractor' s Workers Compensation policy. CITY will require General Contractor to provide evidence of such insurance to CITY and CONSULTANT prior to General Contractor beginning work on the project. 18) Notice to Proceed.
Prior to commencing work under this agreement, CONSULTANT shall receive a written Notice to Proceed" from CITY. A Notice to Proceed shall not be issued until all necessary bonds and insurances have been received. City shall not be obligated to pay CONSULTANT for any services prior to issuance of the Notice to Proceed. 55 CITY OF LATHROP — PEREGRINE TECHNOLOGIES, INC.
PEREGRINE PLATFORM Page 10
19) Siqnatures.
The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the CONSULTANT and the CITY. This agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
56 CITY OF LATHROP — PEREGRINE TECHNOLOGIES, INC.
PEREGRINE PLATFORM Page 11
Approved as to Form: City of Lathrop
zOti3
Salvador Navarrete Date
City Attorney
Recommended for Approval: City of Lathrop
Tony Fernandes Date
Director of Information Systems
Raymond Bechler Date
Chief of Police
Approved By: City of Lathrop
390 Towne Centre Drive
Lathrop, CA 95330
Stephen J. Salvatore Date
City Manager
CONSULTANT: PEREGRINE TECHNOLOGIES, INC.
Nicholas Noone
President & CEO
130 Bush Street
San Francisco, CA, 95330
Fed I D # 38- 4083465
Business License # 20977
Signature Date
Print Name Title
57 v
Peregrine
A
February 26, 2023
EXHIBIT
Peregrine Customer Order Form
Customer Name: City of Lathrop Contact: Tony Fernandes, IS Director Address: 940 River Island Parkway, Lathrop, CA phone: ( 209) 941- 7349 95330
Email: tfernandes@ci. lathrop. ca. us Fax: N/ A
Effective Date: March 31, 2023
Term: The term of this Agreement shall commence on March 31, 2023, and shall terminate on March 31, 2028.
Service Fee: Customer shall pay Peregrine a service fee of$ 110, 000 annually as follows:
a. Annual fee within 30 days of the Effective Date
b. Annual fee within 30 days of March 31, 2024
c. Annual fee within 30 days of March 31, 2025
d. Annual fee within 30 days of March 31, 2026
e. Annual fee within 30 days of March 31, 2027
Users: Customer may allow an unlimited number of employees of Lathrop Police( LPD) and Lathrop Information System ( ISD) to access and use the Service.
Onboarding and Training Services: Peregrine will provide Customer with an introductory training session that provides an overview of the Service, background on accessible data sources as of the Effective Date and an introduction to the analytic capabilities of the Service. Peregrine will provide additional training, including refresher sessions and advanced training modules, from time to time upon mutual agreement of the parties.
Professional Services: Peregrine will provide access to the Peregrine platform and integrate data from the following customer source systems to enable priority workflows, as described below:
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Computer Aided Dispatch ( CAD) provided by RIMS
Records Management System ( RMS) provided by RIMS
License Plate Readers ( lPR) provided by Vigilant, Insight, and Flock Fleet 3, with 12- month retention
Video Management System( VMS) provided by Avigilon
Digital Evidence Management System ( DEMS) provided by Evidence. com By integrating data from the sources mentioned above, Peregrine will support identified priority workflows:
Enhanced Investigations— enable LPD detectives and analysts to quickly search for data across agency systems to surface all information related to a case and quickly identify relationships and linkages between people and cases, which will allow for solving cases more quickly and reaching conclusions with greater confidence.
Analysis and Reporting— enable LPD analysts to have a single system to power their key workflows and avoid signing onto multiple systems and switching between CAD, RMS, video, and other information sources. This will allow LPD analysts to visualize data in multiple forms geospatial, chronological, network analysis, statistical charts) and surface and report on important crime trends.
Situational and Operational Awareness— enable LPD staff to maintain real time situational awareness at the start of their shifts; automatically surfacing relevant cases and calls for service and allowing users to be alerted to relevant new information based on their preferences immediately, daily, weekly, or other).
Empower Personnel by Streamlining their Workflows— free LPD personnel, uniformed and civilian, from manual, time consuming, and tedious data integration and data processing activities and allow them to focus on conducting effective investigations, providing actional analyses, making data informed decisions that improve the quality of life for members of the community.
Any additional data integrations or new functionality shall be subject to mutual written agreement of the parties, including with respect to fees. All additional data integration services or new functionality and corresponding fees will be set forth in an SOW.
For clarity, Peregrine will provide any other Professional Services and additional data integration services in accordance with Section 2. 2 of the Terms and Conditions. 2 Proprietary and Confidential
59 Peregrine February 26, 2023
Peregrine services are provided subject to the terms set forth above on this Order Form together with the attached terms and conditions ( the " Terms and Conditions," and together with this Order Form, the Agreement"). Any capitalized term used in this Order Form but not defined herein shall have the meaning ascribed to it in the Terms and Conditions. By signing this Order From, Peregrine and Customer each agree to the terms and conditions set forth in this Agreement. In the event of any conflict between this Order Form and the Terms and Conditions, the terms of this Order Form shall govern to the extent of such conflict. This Order Form may be executed in counterparts( which may be delivered by electronic mail of. pdf files), each of which counterparts, when so executed and delivered, shall be deemed to be an original, and all ofwhich counterparts, taken together, shall constitute one and the same instrument.
Peregrine: Customer:
By: BY
Name: Nicholas Noone Name:
Title: President& CEO Title:
Attest:
XX]
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60 Peregrine February 26, 2023
Peregrine Customer Terms and Conditions
These Peregrine Customer Terms and Conditions govern the provision of the services described on the attached Order Form (" Order Form") by Peregrine Technologies, Inc. (" Peregrine") to the Lathrop Police Department Customer"). By executing an Order Form with Peregrine, Customer agrees to be bound by these Terms and Conditions.
1. De nitions.
Aggregated Data" has the meaning specified in Section 6. 1.
UIS Security Policy" means the FBI UIS Security Policy document as published by the FBI UIS Information Security Officer, currently located at https:// www. fbi. gov/ services/ cjis/ cjis- security- policy- resource- center.
Client- Side Software" means any software in source or object code form that Peregrine makes available for use in connection with the Service, including Peregrine' s mobile application( s).
Criminal Justice Information Services Division" or " UIS" means the FBI division responsible for the collection, warehousing, and timely dissemination of relevant criminal justice information to the FBI and to qualified law enforcement, criminal justice, civilian, academic, employment and licensing agencies.
Customer Data" means any of Customer' s data, information, documents or electronic files that are provided to Peregrine via the Service or otherwise in connection with this Agreement, including any databases Customer procures from third party vendors for Peregrine' s integration with the Service; provided that, for purposes of clarity, Customer Data as defined herein does not include Aggregated Data.
Documentation" means the materials supplied by Peregrine hereunder, in any media, including any and all installer' s, operator' s and user' s manuals, training materials, guides, functional or technical specifications or other materials for use in conjunction with the Service.
Personal Information" means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered " personal data", " personally identifiable information", or something similar under applicable laws, rules, or regulations relating to data privacy.
Professional Services" has the meaning specified in Section 2. 2.
Service" means Peregrine' s proprietary platform that assists Users with criminal investigations and police leadership decision making, consisting of a hosted web-based interface and the Client-Side Software. For purposes of this Agreement, the Service is exclusive of Professional Services that may be rendered upon mutual agreement of the parties in accordance with Section 2. 2.
SOW" has the meaning specified in Section 2. 2.
Third Party Data" means any third party databases that Peregrine licenses from third party vendors and makes accessible via the Service. For clarity, Third Party Data does not include any Customer Data.
Third Party Products" means any third- party products provided with, integrated with, or incorporated into the Service, including Third Party Data.
Users" means the individuals authorized by Customer to use the Service in accordance with the terms in the Order Form ( including number and type of individuals who may access the Service) and that have been supplied user identifications and passwords by Peregrine.
2. Provision of the Service and Additional Services.
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61 Peregrine February26, 2023
2. 1. Service. During the Term and subject to the terms and conditions of this Agreement, including payment of the fees set forth on the Order Form, Customer may: ( a) access and use the Service for up to the number of Users set forth in the Order Form, ( b) download and reproduce the applicable Documentation solely for internal use in association with the Service, and ( c) download, install, and use any Client- Side Software in support of Customer' s use of the Service, in each case on a nonexclusive, non- transferable, and non- sublicensable basis and solely for Customer' s internal business purposes. Peregrine shall provide Customer with authentication credentials for individual Users upon written request from authorized personnel of Customer,( ii) onboarding and training services as set forth in the Order Form (" Onboarding and Training Services"), and ( iii) telephone and standard technical support to Customer during normal business hours(" Technical Support"). Except as set forth herein, Peregrine shall, at its sole cost and expense, provide all facilities and equipment that may be necessary for Peregrine to perform the Services.
2. 2. Professional Services. Except as set forth in the Order Form, in the event that Customer requests that Peregrine perform data integration, configuration or implementation services regarding the Service, including integration of Customer Data or Third Party Data and creation of specific modifications to the Service( but excluding any Onboarding and Training Services), Peregrine will discuss the scope and fees for such services and, if agreed, such work will be performed pursuant to a statement of work executed by the parties and referencing this Agreement that describe such scope and fees( an " SOW," and such services, the" Professional Services"). Any fees associated with the Professional Services shall be set forth in the applicable SOW and Customer shall pay such fees in accordance with Section 4. 2 below. To the extent the Professional Services result in any software code or other tangible work product (" Work Product"), all such Work Product will remain owned solely and exclusively by Peregrine and may be used by Customer solely in connection with Customer' s authorized use of the Service under this Agreement. Customer shall permit Peregrine access to Customer' s offices and any other facilities necessary for Peregrine to provide the Professional Services.
2. 3. Access and Policies. Customer will permit Peregrine access to Customer' s offices and any other facilities necessary for Peregrine to provide the Service, Onboarding and Training Services, Technical Support, and any Professional Services. Peregrine agrees to, and cause its personnel to, abide by Customer' s facilities access and use policies as provided by Customer to Peregrine in writing in advance of any on- site visits. Customer will also permit and enable Peregrine to have offsite access to Customer Data and the Customer' s production platform for the Service in order to provide the Service, Technical Support and Professional Services. Peregrine agrees to comply with the CJIS Security Policy in connection with its access to Customer Data, including UIS- defined policies for remote access.
2.4. Compliance with Applicable Laws. Each party and its agents shall comply with all laws applicable to the performance or receipt, as applicable, of the Service hereunder.
2. 5. Licenses and Permits. Peregrine and its employees, agents, and any subcontractors have, and will maintain at their sole cost and expense, all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. In addition to the foregoing, Peregrine and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from Customer as required by law.
2.6. Nondiscrimination and Equal Opportunity. Peregrine shall not discriminate, on the basis of a person' s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, genetic information, marital status, sex, sexual orientation, gender or gender identity, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Peregrine under this Agreement. Peregrine shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of Peregrine thereby.
2. 7. Suspension. Notwithstanding anything to the contrary in this Agreement, Peregrine may temporarily suspend Customer' s and any User' s access to any portion or all of the Service if:( a) Peregrine reasonably determines that( i) there is a threat or attack on the Service; ( ii) Customer' s or any User' s use of the Service disrupts or poses a 5 Proprietary and Confidential
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February 26, 2023
security risk to the Service or to any other customer or vendor of Peregrine;( iii) Customer, or any User, is using the Service for fraudulent or illegal activities;( iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; ( v) Peregrine' s provision of the Service to Customer or any User is prohibited by applicable law; or( vi) any Customer Data submitted, posted, or otherwise transmitted by or on behalf of Customer or an User through the Service may infringe or otherwise violate any third party' s intellectual property or other rights; ( b) any vendor of Peregrine has suspended or terminated Peregrine' s access to or use of any Third Party Products required to enable Customer to access the Service; or( c) if Customer fails to pay any undisputed fees when due ( any such suspension described in subclauses a),( b), or( c), a" Service Suspension"). Peregrine shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Service following any Service Suspension. Peregrine shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Peregrine will have no liability for any damage, liabilities, losses ( including any loss of data or profits), or any other consequences that Customer or any User may incur as a result of a Service Suspension.
2. 8. Third Party Products. Peregrine may from time to time make Third Party Products available to Customer or Peregrine may allow for certain Third Party Products to be integrated with the Service. For purposes of this Agreement, such Third Party Products are subject to their own terms and conditions. Peregrine is not responsible for the operation of any Third Party Products and makes no representations or warranties of any kind with respect to Third Party Products or their respective providers. If Customer does not agree to abide by the applicable terms for any such Third Party Products, then Customer should not install or use such Third Party Products. By authorizing Peregrine to transmit Customer Data from Third Party Products into the Service, Customer represents and warrants to Peregrine that it has all right, power, and authority to provide such authorization.
2. 9. Open Source Components. Certain aspects of the Service, such as the Client- Side Software, may contain or be distributed with open source software code or libraries (" Open Source Components"). Peregrine will provide a list of Open Source Components for a particular version of any distributed portion of the Service, such as the ClientSide Software, on Customer' s request. To the extent required by the license applicable to such Open Source Components:( a) Peregrine will use reasonable efforts to deliver to Customer any notices or other materials( such as source code); and ( b) the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement. To the extent the terms of such licenses prohibit any of the restrictions in this Agreement with respect to any particular Open Source Component, such restrictions will not apply to such Open Source Component.
To the extent the terms of such licenses require Peregrine to make an offer to provide source code or related information in connection with the Open Source Component, such offer is hereby made. For purposes of clarity, Open Source Components are Third Party Products.
3. Customer Responsibilities.
3. 1. Generally. Customer is responsible for all activities that occur under User accounts. Customer also shall:( a) ensure it has all rights necessary for Peregrine to integrate the Customer Data with the Service; ( b) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; ( c) prevent unauthorized access to, or use of, the Service, and notify Peregrine immediately of any unauthorized access or use; ( d)_ ensure each User has its own unique account on the Service and that Users do not share their account credentials with one another or any third party; and( e) comply with all applicable laws in using the Service. Customer agrees to provide its Users with the applications necessary to run the Service as set forth in the Documentation.
3. 2. Use Restrictions. Customer shall not use the Service for any purposes beyond the scope of access granted under this Agreement. Without limiting the generality of the foregoing, Customer shall not, and shall ensure Users do not: ( a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; ( b) send spam or otherwise duplicative or unsolicited messages via the Service; ( c) send or store infringing or unlawful material; ( d) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; ( e) interfere with or disrupt the integrity or performance of the Service or the data contained therein; ( f) attempt to gain unauthorized access to the Service or its related systems or networks; ( g) copy, modify, or create 6 Proprietary and Confidential
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derivative works based upon the Service or any component thereof; ( h) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Service or any component thereof; ( i) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property or other right of any third party or that violates any applicable law; (j) access or use the Service for purposes of competitive analysis of Peregrine or the Service, the development, provision, or use of a competing service or product, or any other purpose that is to Peregrine' s detriment or commercial disadvantage; or ( k) input, upload, transmit, or otherwise provide to or through the Service any information or materials, including Customer Data, that are unlawful or injurious in any way
3. 3. UIS Requirements. Customer certifies that it and its Users will comply with the following GIS requirements:
a) Customer agrees to use training, policy and procedures to ensure Users use proper handling, processing, storing and communication protocols for Customer Data and any Third Party Data; ( b) Customer agrees to protect the Service and any Third Party Data by monitoring and auditing staff user activity to ensure that it is only within the purview of system application development, system maintenance and the support roles assigned; ( c) Customer will only provide access to the Service and any Third Party Data through Customer- managed role- based access and applied sharing rules configured by Customer; ( d) Customer agrees to create and retain activity transaction logs to enable auditing by Peregrine staff, CJIS and any Third Party Data owners; ( e) Customer agrees to perform independent employment background screening for its staff at Customer' s own expense; and ( f) Customer agrees to reinforce staff policies for creating User accounts with only one Customer domain email address for each User, with exceptions only as granted in writing by Peregrine.
3. 4. Operation Restrictions. Under certain circumstances, it may be dangerous to operate a moving vehicle while attempting to operate a laptop, mobile device or other touch screen and any of their applications. Customer agrees that the Users will be instructed to only utilize the interface for the Service at times when it is safe to do so.
Peregrine is not liable for any accident caused by a result of distraction such as from viewing the screen while operating a moving vehicle.
3. 5. Customer Logo. Peregrine may use Customer' s name and logo in Peregrine' s lists of customers provided that such use will comply with any standard trademark guidelines provided by Customer to Peregrine.
3. 6. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Peregrine by mail, email, telephone, or otherwise, suggesting or recommending changes to the Service, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like(" Feedback"), Peregrine is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback.
4. Fees& Payment.
4. 1. Fees. Customer shall pay the fees for the Service as specified in the Order Form and in any SOWs. All fees are non- refundable except to the extent otherwise expressly set forth in this Agreement.
4. 2. Payment Terms. Except as set forth on the Order Form, Customer shall pay all fees within thirty( 30) days of Peregrine issuing an invoice.
4. 3. Taxes. Peregrine' s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on Peregrine' s income. If Peregrine has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Peregrine with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Proprietary Rights. The " Peregrine Technology " means ( a) the Peregrine name, the Peregrine logo, and other trademarks and service marks; ( b) audio and visual information, documents, software and other works of authorship, including training materials;( c) other technology included in the Service, including Client- Side Software, graphical user interfaces, workflows, products, processes, algorithms, know- how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information provided by Peregrine under this Agreement; and ( d) the work product or other results of Professional Services. Peregrine owns and shall retain all rights in the Peregrine Technology. Other than as expressly set forth in Section 2. 1 above, no 7 Proprietary and Confidential
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license or other rights in or to the Peregrine Technology or related intellectual property rights are granted to Customer or Users, and all such licenses and rights are hereby expressly reserved to Peregrine. For clarity," Peregrine Technology" does not include Customer Data.
6. Data Access, Sharing and Security.
6. 1. Customer Data. Peregrine may access, reproduce, and use Customer Data to provide the Service, including to provide Technical Support, Onboarding and Training Services and any Professional Services. Customer agrees that Peregrine may generate technical logs, data and insights about Customer' s usage of the Service( e. g., frequency of logins) (" Peregrine Insights") and may use the Customer Data in aggregated and anonymized form that does not individually identify any person or entity, including Customer or its Users (" Aggregated Data") for Peregrine' s internal business purposes and to operate and improve Peregrine' s proprietary software and services, and that Peregrine shall own the Peregrine Insights and the Aggregated Data. Peregrine shall destroy Peregrine Insights and Aggregated Data on termination of this Agreement. Peregrine may choose to terminate the provision of any Customer Data via the Service if the provision of such data may be harmful to the Service, as determined by Peregrine in its reasonable discretion.
6. 2. UIS Security Policy. Peregrine has implemented procedures to allow for adherence to the UIS Security Policy. The hosting facility for the Service uses access control technologies that meet or exceed CJIS requirements.
In addition, Peregrine has installed and configured solid network intrusion prevention appliances for adherence to the GIS Security Policy.
6. 3. Third Party Data. Any Third Party Data that Peregrine may provide via the Service is governed by the third party owner' s retention policy. Peregrine does not provide any warranties with respect to any Third Party Data and Peregrine may choose to terminate the provision of any Third Party Data via the Service if Peregrine' s applicable rights to such Third Party Data terminate or the provision of such data may be harmful to the Service, as determined by Peregrine in its reasonable discretion.
6. 4. Processing of Personal Information. Peregrine' s rights and obligations with respect to Personal information it collects directly from individuals are set forth in Peregrine' s Privacy Policy< https:// peregrine. io/ privacy- policy/>.
Personal Information included within Customer Data and processed by Peregrine on behalf of Customer is governed by this Agreement.
6. 5. Sensitive Information; Marking Requirements_ To the exte t Customer provides Customer Data that Customer considers to be sensitive, proprietary, restricted, or otherwise requiring sensitive treatment (" Sensitive Information"), Customer is solely responsible for providing appropriate markings to designate the applicable Customer Data as Sensitive Information. Customer shall provide Peregrine with documentation and/ or instructions in writing with sufficient detail for Peregrine to identify and distinguish content that is Sensitive Information within other provided Customer Data. Customer shall ( a) mark Sensitive Information on its face, ( b) make the appropriate designations for Sensitive Information in document metadata, ( c) provide Peregrine with a table or other list of Sensitive Information that contains sufficient detail to identify the Sensitive Information; or (d) identify Sensitive Information to Peregrine in some other mutually agreed upon method. Peregrine shall not be responsible for failure to designate Sensitive Information with specific access control status based on Customer failure to provide sufficient information to identify Sensitive Information.
7. Confidentiality.
7. 1. De nition of Confidential Information. The term " Confidential Information" means all confidential and proprietary information of a party (" Disclosing Party") disclosed to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including Customer Data, any Third Party Data, the Service, the Documentation, the Peregrine Technology, business and marketing plans, technology and technical information, product designs, and business processes.
7. 2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party except to perform its obligations or exercise its rights under this Agreement, except with the Disclosing Party' s prior written permission on a case- by- case basis. Each party agrees to protect the confidentiality of the Confidential 8 Proprietary and Confidential
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Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event with less than reasonable care. If the Receiving Party is compelled by law or a government authority to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure ( to the extent practicable and legally permitted) and reasonable assistance, at Disclosing Party' s cost, if the Disclosing Party wishes to contest the disclosure.
7. 3. Exceptions. The parties' obligations in Section 7. 2 shall not apply to any information that:( a) is or becomes publicly available without breach of any obligation owed to the Disclosing Party; ( b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;( c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or( d) is received from a third party without breach of any obligation owed to the Disclosing Party.
7. 4. Public Records Acts. Peregrine acknowledges that Customer is a public entity and may be governed by applicable laws, rules, or regulations relating to public records( each a" Public Records Act"). Nothing in this Section 7 shall prevent Customer from disclosing Confidential Information for purposes of complying with an applicable Public Records Act to the extent legally required.
7. 5. Remedies. If the Receiving Party discloses or uses ( or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that such unauthorized disclosure or use may cause irreparable harm to the Disclosing Party for which any other available remedies are inadequate.
8. Warranties& Disclaimers.
8. 1. Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Peregrine represents and warrants that( i) it will provide the Service in a professional manner consistent with the standards observed by a competent practitioner of the profession in which Peregrine is engaged, and ( ii) the Service will perform in accordance with and otherwise substantially conform to its associated documentation.
8.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8. 1, PEREGRINE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRE55, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE, THE PEREGRINE
TECHNOLOGY, ANY THIRD PARTY DATA AND ANY OTHER PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT. PEREGRINE HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON- INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. Indemnification.
9. 1. Indemnification by Peregrine. Peregrine shall at its expense defend Customer and its officers, directors, officials, agents, volunteers and employees (" Customer Indemnified Parties") against any claim made or brought against any Customer Indemnified Party by a third party alleging that the Service as provided to Customer and when used in accordance with this Agreement infringes any intellectual property rights of a third party( each, a" Customer Claim"), and shall indemnify and hold Customer Indemnified Parties harmless from and against any and all liability, loss, damage, claims, expenses, and costs, including without limitation, attorney' s fees, awarded by a court or agreed to by Peregrine in a settlement with respect to such Customer Claim; provided, that Customer( a) promptly gives written notice of the Customer Claim to Peregrine;( b) gives Peregrine sole control of the defense and settlement of the Customer Claim( provided that Peregrine may not agree to any settlement that imposes any liability or obligation on Customer without Customer' s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed); and ( c) provides to Peregrine, at Peregrine' s cost, all reasonable assistance in the defense and settlement of the Customer Claim. Peregrine shall have no obligation under this Section 9. 1 or otherwise regarding claims that arise from or relate to( i) Customer' s use of the Service other than as contemplated by this Agreement, ii) any modifications to the Service made by any entity other than Peregrine ( where the liability would not have arisen but for such modification),( iii) any combination of the Service with services or technologies not provided by Peregrine( where the liability would not have arisen but for such combination),( iv) Customer' s use of the Service or 9 Proprietary and Confidential
66 Peregrine February 26, 2023
portion thereof after Peregrine has terminated this Agreement or such portion of the Service in accordance with this Section 9. 1, or( v) Third Party Products. If in Peregrine' s opinion a Customer Claim is likely to be made, or if an existing Customer Claim may cause Peregrine liability, Peregrine may in its discretion( x) obtain a license to enable Customer to continue to use the potentially infringing portion of the Service, ( y) modify the Service to avoid the potential infringement, or ( z) if the foregoing cannot be achieved after using reasonable commercial efforts, terminate the Agreement or the license to the infringing portion of the Service and refund the amount of any pre- paid fees applicable to the portion of the terminated Services to be provided after the termination date.
9. 2. Indemnification by Customer. To the extent permitted by applicable law, Customer shall at its expense defend Peregrine and its officers, directors, officials, agents, volunteers and employees (" Peregrine Indemnified Parties") against any claim made or brought against any Peregrine Indemnified Party by a third party based on: ( a) Customer' s or any User' s negligence, gross negligence, fraud, or willful misconduct;( b) Customer' s or any User' s use of the Service in a manner not authorized by this Agreement; or( c) Customer Data or Peregrine' s authorized use of such Customer Data ( each, a " Peregrine Claim"), and shall indemnify and hold Peregrine Indemnified Parties harmless from and against any and all liability, loss, damage, claims, expenses, and costs, including without limitation, attorney' s fees, awarded by a court or agreed to by Customer in a settlement with respect to such Peregrine Claim; provided, that Peregrine ( i) promptly gives written notice of the Peregrine Claim to Customer; ( ii) gives Customer sole control of the defense and settlement of the Peregrine Claim( provided that Customer may not agree to any settlement that imposes any liability or obligation on Peregrine without Peregrine' s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed); and ( iii) provides to Customer, at Customer' s cost, all reasonable assistance in the defense and settlement of the Peregrine Claim.
9. 3. Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER' S SOLE REMEDIES AND PEREGRINE' S SOLE
LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS BY THIRD PARTIES RELATING TO THE SERVICE OR ITS USE.
10. Limitation of Liability.
10. 1. Exclusion of Consequential and Related Damages. EXCEPT FOR A PARTY' S BREACH OF SECTION 7, A PARTY' S INDEMNIFICATION AND DEFENSE OBLIGATIONS, OR A PARTY' S GRO55 NEGLIGENCE, FRAUD, OR WILLFUL
MISCONDUCT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS,
LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSE4UENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER
IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOTTHE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10. 2. Liability Cap. IN NO EVENT SHALL PEREGRINE' S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO
THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT( INCLUDING
NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO PEREGRINE UNDER THIS AGREEMENT IN THE TWELVE( 12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
11. Term& Termination.
11. 1. Term of Agreement. This Agreement commences on the Effective Date and continues for the duration of the term set forth on the Order Form (" Term"), unless earlier terminated in accordance with the Order Form or Section 11. 2
11. 2. Termination for Cause. A party may terminate this Agreement for cause upon thirty( 30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Peregrine prior to the effective date of termination.
11. 3. Data. Upon expiration or termination of this Agreement, Peregrine shall have no obligation to maintain or provide any Customer Data or Third Party Data. Unless legally prohibited, Peregrine shall delete all Customer Data in its systems or otherwise in its possession or under its control. Notwithstanding the foregoing or any other provision of this Agreement, Peregrine may use in perpetuity any Aggregated Data. 10 Proprietary and Confidential
67 Peregrine February 26, 2023
11. 4. Survival. The following provisions shall survive termination or expiration of this Agreement: Sections 4, 5,
6. 1, 6. 3, 7, 8, 9, 10, 11. 3, 11. 4, and12.
12. Generel Provisions.
12. 1. Insurance. Peregrine shall maintain the insurance coverages described on Appendix A: Insurance.
12. 2. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third- party beneficiaries to this Agreement.
At all times during the term of this Agreement, Peregrine shall be an independent contractor and shall not be an employee of Customer. Except as Customer may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of Customer in any capacity whatsoever as an agent. Peregrine shall have no authority, express or implied, pursuant to this Agreement to bind Customer to any obligation whatsoever.
12. 3. Peregrine' s Books and Records. To the extent required by applicable laws, rules, or regulations, Peregrine shall maintain any and all records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the Customer under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to Peregrine to this Agreement. All such records shall be maintained in accordance with generally accepted standards and shall be made available for inspection, audit, and/ or copying during regular business hours, upon written request of the Customer.
12. 4. Force Majeure. Neither party shall be liable by reason of any failure or delay in performance of its obligations under this Agreement( except for the payment of money) on account of events beyond the reasonable control of such party, which may include Internet denial- of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, and material shortages ( each, a " Force Majeure Event"). Upon the occurrence of a Force Majeure Event, the nonperforming party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
12. 5. Federal Government. Any use, copy or disclosure of the Service by the U. S. Government is subject to restrictions as set forth in this Agreement and as provided by DFARS 227. 7202- 1( a) and 227. 7202- 3( a)( 1995), DFARS 252. 227- 7013( c)( 1)( ii)( October 1998), FAR 12. 212( a)( 1995), FAR 52. 227- 19, or FAR 52. 227( ALT III), as applicable.
12. 6. Additional Government Terms. Peregrine acknowledges that Customer may be a public entity and, accordingly, certain additional laws, rules, and regulations may take precedence over the terms and conditions of this Agreement ( the " Additional Government Terms"). The Additional Government Terms, if any, are attached hereto as Error! Reference source not found., and will govern to the extent of any conflict with any other term of this Agreement.
12. 7. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon:
a) personal delivery; ( b) the second business day after mailing; ( c) the second business day after sending by confirmed facsimile; or ( d) after confirmed receipt of an email. Notices to Peregrine shall be addressed to the attention of Nick Noone, CEO, Peregrine Technologies, nick@peregrine. io, with a copy to ben@peregrine. io. Notices to Customer are to be addressed to the individual identified in the Order Form.
12. 8. Waiver; Cumulative Remedies Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12. 9. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, Peregrine may assign this Agreement, together with all rights and obligations hereunder, without consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its 11 Proprietary and Confidential
68 Peregrine February 26, 2023
stock or assets that relate to this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12. 10. Governing Law. This Agreement shall be governed by the laws of California. The state courts located in San Francisco County, CA or in the United States District Court for the Northern District of California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts provided that nothing in this Section 12. 10 prohibits either party from seeking or obtaining in any jurisdiction injunctive or similar relief in connection with the enforcement of this Agreement.
12. 11. Construction. The division of this Agreement into Sections and the insertion of captions and headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement. The terms this Agreement," " hereof," " hereunder" and any similar expressions refer to this Agreement and not to any particular Section or other portion hereof. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. As used in this Agreement, the words " include" and " including," and variations thereof, will be deemed to be followed by the words" without limitation" and " discretion" means sole discretion
12. 12. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation ( excluding the Order Form) shall be incorporated into or form any part of this Agreement, and all such terms or conditions are hereby rejected and shall be null and void. 12 Proprietary and Confidential
69 Peregrine February 26, 2023
Appendix A: Insurance
Peregrine, at its own cost and expense, shall procure the types and amounts of insurance specified herein and maintain that insurance throughout the term of the Agreement. The cost of such insurance shall be included in the Peregrine' s bid or proposal. Peregrine shall be fully responsible for the acts and omissions of its subcontractors or other agents.
Workers' Compensation. Peregrine shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer' s Liability Insurance for any and all persons employed directly or indirectly by Peregrine in the amount required by applicable law. The requirement to maintain Statutory Workers' Compensation and Employer' s Liability Insurance may be waived by the Customer upon written verification that Peregrine is a sole proprietor and does not have any employees and will not have any employees during the term of this Agreement.
Commercial General and Automobile Liability Insurance
General requirements. Peregrine, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than $ 1, 000,000 per occurrence and 2, 000, 000 aggregate, combined single limit coverage for risks associated with the work contemplated by this Agreement.
Minimum scope of covera e. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 ( most recent edition) covering comprehensive General Liability on an " occurrence" basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 ( most recent edition) covering any auto ( Code 1), or if Peregrine has no owned autos, hired ( code 8) and non- owned autos( Code 9). No endorsement shall be attached limiting the coverage.
Additional requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
a. The Commercial General and Automobile Liability Insurance shall cover on an occurrence basis. b. Customer, its officers, officials, employees, agents, and volunteers shall be covered as additional insureds for liability arising out of work or operations on behalf of the Peregrine, including materials, parts, or equipment furnished in connection with such work or operations; or automobiles owned, leased, hired, or borrowed by the Peregrine. Coverage can be provided in the form of an endorsement to the Peregrine' s insurance at least as broad as CG 2010 1185, or both CG 20 10 10 01 and CG 20 37 10 01. c. For any claims related to this Agreement or the work hereunder, the Peregrine' s insurance covered shall be primary insurance as respects the Customer, its officers, officials, employees, agents, and volunteers. Any insurance or self- insurance maintained by the Customer, its officers, officials, employees, agents or volunteers shall be excess of the Peregrine' s insurance and non- contributing.
d. The policy shall cover inter- insured suits and include a " separation of Insureds" or " severability" clause which treats each insured separately.
e. Peregrine agrees to give at least 30 days prior written notice to Customer before coverage is canceled or modified as to scope or amount.
Professional Liability Insurance.
General requirements. Peregrine, at its own cost and expense, shall maintain for the period covered by this Agreement professional liability insurance for licensed professionals performing work pursuant to this Agreement in an amount not less than$ 1, 000, 000 per occurrence or claim covering the Peregrine' s errors and omissions.
Claims- made limitations. The following provisions shall apply if the professional liability coverage is written on a claims- made form:
a. The retroactive date of the policy must be shown and must be before the date of the Agreement. 13 Proprietary and Confidential
70 Peregrine February 26, 2023
b. Insurance must be maintained and evidence of insurance must be provided for at least five( 5) years after completion of the Agreement or the work.
c. If coverage is canceled or not renewed and it is not replaced with another claims- made policy form with a retroactive date that precedes the date of this Agreement, Peregrine must purchase an extended period coverage for a minimum of five( 5) years after completion of work under this Agreement. d. A copy of the claim reporting requirements must be submitted to the Customer for review prior to the commencement of any work under this Agreement.
All Policies Requirements.
Submittal Requirements. Peregrine shall submit the following to Customer prior to beginning services:
Certificate of Liability Insurance in the amounts specified in this Agreement; and Additional Insured Endorsement as required for the General Commercial and Automobile Liability Polices.
Acceptability of Insurers. All insurance required by this Agreement is to be placed with insurers with a Bests' rating of no less than A:VII.
Deductibles and Self- Insured Retentions. Insurance obtained by the Peregrine shall have a self-insured retention or deductible of no more than$ 100, 000.
Wasting Policies. No policy required herein shall include a " wasting" policy limit( i. e. limit that is eroded by the cost of defense).
Waiver of Subro ation. Peregrine hereby agrees to waive subrogation which any insurer or contractor may require from Peregrine by virtue of the payment of any loss. Peregrine agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the Customer has received a waiver of subrogation endorsement from the insurer.
The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the Customer for all work performed by the Peregrine, its employees, agents, and subcontractors.
Subcontractors. Peregrine shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein, and Peregrine shall ensure that Customer, its officers, officials, employees, agents, and volunteers are covered as additional insured on all coverages.
Excess Insurance. If Peregrine maintains higher insurance limits than the minimums specified herein, Customer shall be entitled to coverage for the higher limits maintained by the Peregrine.
Remedies. In addition to any other remedies Customer may have if Peregrine fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, Customer may, at its sole option, order Peregrine to stop work under this Agreement and withhold any payment that becomes due to Peregrine hereunder until Peregrine demonstrates compliance with the requirements hereof, or terminate this Agreement.
14 Proprietary and Confidential
71 Peregrine February 26, 2023
Appendix B: Provisions for California Public Entities
Compliance with Applicable California Laws. Peregrine shall, to the extent required by the California Labor Code, pay not less than the latest prevailing wage rates as determined by the California Department of Industrial Relations.
California Public Records Act. Peregrine acknowledges that Customer is a public entity governed by the California Public Records Act and that nothing in this Agreement shall prevent Customer from disclosing Confidential Information for purposes of complying with the California Public Records Act.
PERS Indemnification by Peregrine. In the event that Peregrine or any employee, agent, or subcontractor of Peregrine providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (" PERS") to be eligible for enrollment in PERS as an employee of Customer, at Peregrine shall indemnify, defend, and hold harmless Customer for the payment of any employee and/ or employer contributions for PERS benefits on behalf of Peregrine or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of Customer.
Political Reform Act Conflicts. Peregrine may serve other clients, but none whose activities within the corporate limits of Customer or whose business, regardless of location, would place Peregrine in a" conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. No officer or employee of Customer shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq.
California State Auditor Requirements. Pursuant to Government Code Section 8546. 7, the Agreement may be subject to the examination and audit of the State Auditor for a period of 3 years after final payment under the Agreement.
15 Proprietary and Confidential
72 ITEM 4. 5
CITY MANAGER' S REPORT
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
ITEM: APPROVE THE PURCHASE OF CITY NETWORK
ROUTER AND FIREWALL UPGRADES WITH
SOLID NETWORKS, INC.
RECOMMENDATION: Adopt a Resolution Approving the Purchase of City Network Router and Firewall Upgrades
with Solid Networks, Inc. and Related Budget
Amendment
SUMMARY:
The Information Systems Department maintains the City' s Data, Voice, Video and wireless network to conduct daily business including accessing hosted solutions, such as cloud based applications used by Public Works, Building, Parks, Recreation and Maintenance, and the Police Department. Continual access to the multiple technology applications requires routine hardware implementation and maintenance to manage the network traffic.
The City' s last router and firewall upgrades took place in 2013 and some of the components have reached end of support. It is necessary for the City to acquire the most up to date hardware to properly manage the City' s network and minimize the risks of outdated and unsupported infrastructure, which will pose security risks for the City' s computer systems.
The router and firewall upgrades will address key drivers surrounding the City' s security network. The proposed upgrade to existing firewall equipment would increase the speed of the network and increase network redundancy, which minimizes outages to the City' s internet connectivity. Overall, improving the performance and reliability of the City' s network.
Staff requested quotes from ten ( 10) authorized vendors and received four ( 4) quotes. Solid Network, Inc. provided the lowest bid for the purchase a new router and firewall upgrades. The details of the equipment is not included to protect the City' s information systems from cybercriminals and malicious activities.
Staff is requesting Council adopt a resolution approving the purchase of City network router and firewall upgrades with Solid Networks, Inc. for a total cost of $ 127, 243.
BACKGROUND:
The Information Systems Department maintains the City' s Data, Voice, Video and wireless network to conduct daily business including accessing hosted solutions, such as cloud based applications used by Public Works, Building, Parks, Recreation and Maintenance, and the Police Department. Continual access to the multiple technology 73 CITY MANAGER' S REPORT PAGE 2
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
CITY ROUTER AND FIREWALL UPGRADES
applications requires routine hardware implementation and maintenance to manage the network traffic.
A router and firewall are essential parts of a network system. Their main purpose is connecting and securing network traffic from one network to another. The City' s last router and firewall upgrades took place in 2013 and some of the components are going to reach end of support in August 2023. Due to equipment supply delays, Staff will need to place an order by March 2023 to ensure delivery and installation by June 2023. It is necessary for the City to acquire the most up to date hardware to properly manage the City' s network and minimize the risks of outdated and unsupported infrastructure, which will pose security risks for the City' s computer systems.
The new router and firewall upgrades will address key drivers surrounding the City' s security network. The proposed upgrade to existing firewall equipment would increase the speed of the network and increase network redundancy, which minimizes outages to the City' s internet connectivity. Overall, improving the performance and reliability of the City' s information systems network.
Staff requested quotes from ten ( 10) authorized vendors and received four ( 4) quotes. The City received the following quotes:
Vendor Quote
1 - Solid Networks, Inc. 127, 243
2 - Connection Public Sector 131, 857
3 - GHA Technologies, Inc. 133, 800
4 - Insight Public Sector 149, 148
Solid Network, Inc. provided the lowest quote for the hardware and firewall upgrades.
The details of the hardware are not included to protect the City' s information systems from cybercriminals and malicious activities. The Information Systems Director advises that the disclosure of specific information of the equipment would greatly increase the risk of security breach of the equipment. However, the hardware specifications required for this upgrade were confidentially shared with authorized vendors to provide competitive bidding.
REASON FOR RECOMMENDATION:
Staff is requesting Council adopt a resolution approving the purchase of City network router and firewall upgrades with Solid Networks, Inc. The proposed City router and firewall upgrade will address the key drivers surrounding the City' s Information Systems Network.
74 CITY MANAGER' S REPORT PAGE 3
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
CITY ROUTER AND FIREWALL UPGRADES
FISCAL IMPACT:
The cost of the router and firewall upgrades were not included in the FY 2022- 2023 budget. Staff recommends a budget amendment of $ 127, 243 to transfer from the Equipment Replacement Reserve Fund to cover the cost of the City router and firewall upgrade. Staff is requesting Council approve the following budget amendment:
Decrease Equipment Replacement
1010- 243- 00- 00 127, 243
Increase Appropriations
1010- 17- 20- 450- 12- 00 127, 243
ATTAC H M E NTS:
A. Resolution Approving the Purchase of City Router and Firewall Upgrades with Solid Networks, Inc.
75 CITY MANAGER' S REPORT PAGE 4
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
CITY ROUTER AND FIREWALL UPGRADES
APPROVA
o rnandes Date
Information S stems Director
Cari Jame Date
Finance Dir tor
3 --( - z o Z 3
Michael King Date
Assistant City Mana er
Z O ZSalvador Navarrete Date
City Attorney
3• r3• zz,
Stephen J. Salvatore Date
City Manager
76 RESOLUTION NO. 23 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP
APPROVING THE PURCHASE OF CITY NETWORK ROUTER AND
FIREWALL UPGRADES WITH SOLID NETWORKS, INC. AND RELATED
BUDGET AMENDMENT
WHEREAS, the Information Systems Department maintains the City' s Data, Voice, Video and wireless network to conduct daily business including accessing hosted solutions, such as cloud based applications used by Public Works, Building, Parks, Recreation and Maintenance, and the Police Department; and WHEREAS, proper router and firewall management of the City' s network is required to minimize the risk of outdated and unsupported infrastructure, which will pose security risk for the City computer systems.; and
WHEREAS, the City' s last router and firewall upgrades took place in 2013 and some of the components have reached end of support; and WHEREAS, Staff requested quotes from ten ( 10) authorized vendors and received four (4) quotes; and
WHEREAS, Solid Networks, Inc. provided the lowest quote of $ 127, 243; and WHEREAS, the details of the hardware are not included to protect the City' s information systems from cybercriminals and malicious activities.
WHEREAS, Staff requests the following budget amendment from General Fund Equipment Replacement Reserve;
Decrease Equipment Replacement
1010- 243- 00- 00 127, 243
Increase Appropriations
1010- 17- 20- 450- 12- 00 127, 243
NOW, THEREFORE, BE IT RESOLVED, the City Council of the City of Lathrop does hereby approve the purchase of a City router and firewall upgrades with Solid Networks, Inc.; and
NOW, THEREFORE, BE IT FURTHER RESOLVED, the City Council of the City of Lathrop does hereby approve a budget amendment transferring $ 127, 243 from General Fund Equipment Replacement Reserve Fund 1010- 243- 00- 00 to Information Systems Computer and Equipment Fund 1010- 17- 20- 450- 12- 00 for the cost of the router and firewall upgrades.
77 The foregoing resolution was passed and adopted this 13th day of March 2023, by the following vote of the City Council, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS T FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney 78 CITY MANAGER' S REPORT ITEM 4. G
MARCH 13, 2023 REGULAR CITY COUNCIL MEETING
ITEM: APPROVE THE PURCHASE OF HARDWARE AND
SOFTWARE LICENSES WITH SOLID NETWORKS, INC.
TO EXPAND THE CITY' S INFORMATION SYSTEMS
INFRASTRUCTURE
RECOMMENDATION: Adopt a Resolution Approving the Purchase of Hardware and Software Licenses with Solid
Networks, Inc. to Expand the City' s Information
Systems Infrastructure and Related Budget
Amendment
SUMMARY:
The City' s current equipment for its information systems infrastructure and port environment has been experiencing high latency. These systems provide services that are critical for technology integration, data transmission, communication with shared data access network, and for day- to- day City operations. The growth of staffing and increased applications has caused data communication delays due to slow server response. For this reason, the network runs the risk of failure and is in immediate need of an infrastructure expansion.
Due to global supply chain issues, Staff are expecting considerable delays for this equipment to be delivered and installed. The current estimate is a minimum of three months for shipping and delivery.
Staff requested quotes from ten ( 10) authorized vendors for the equipment to expand the City' s infrastructure to improve latency for staff and residents. Of the ten ( 10) vendors, only six ( 6) responded with bids. The City received the following quotes:
a , ri: ..,. ,,,.
Vendor
ee,. ..._
uote
a. .... a
1 Solid Networks, Inc. 410, 241
2 GHA Technologies, Inc. 413, 451
3 Southern Computer Warehouse $ 418 751
4 SHIInternational 422, 402
5 Staples 432, 490
6 GovConnections 436, 490
Solid Networks, Inc. presented the lowest cost proposal for $ 410, 241 with sales tax included. The proposed purchase provides the necessary hardware and software licenses to expand the City' s infrastructure. The details of the hardware are not included to protect the City' s information systems from cybercriminals and malicious activities.
Tonight, Staff is requesting Council adopt a resolution approving the purchase of hardware and software licenses with Solid Networks, Inc. 79 CITY MANAGER' S REPORT PAGE 2
MARCH 13, 2023 REGULAR CITY COUNCIL MEETING
EXPANSION OF CITY INFORMATION SYSTEMS INFRASTRUCTURE
BACKGROUND:
The City of Lathrop' s current infrastructure provides services that are critical for its technology systems and for City operations. The City' s infrastructure has increased in the number of users and applications in the last twelve months. If the City' s infrastructure remains the same, there will continue to be issues with transmission lag ( due to the equipment) and the delays will become even more significant over time. The infrastructure is causing high latency and runs the risk of failure. The proposed solution will lower latency, improve uptime, provide better reliability through a redundant network, and increase productivity.
Therefore, staff requested quotes from ten ( 10) authorized vendors and received six 6) quotes. Solid Networks, Inc. provided the lowest cost proposal for $ 410, 241 including sales tax.
The details of the hardware are not included to protect the City' s information systems from cybercriminals and malicious activities. The Information Systems Director advises that the disclosure of specific information of the equipment would greatly increase the risk of security breach of the equipment. However, the equipment specifications required for this expansion were confidentially shared with authorized vendors to provide competitive bidding.
Considering the extensive shipping delays for the equipment, Staff is requesting Council approve the proposed purchase so that Staff can begin the procurement process with Solid Networks.
REASON FOR RECOMMENDATION:
The City' s infrastructure has increased in the number of users and applications in the last twelve months. The proposed solution will lower latency, improve uptime, provide better reliability through a redundant network, and increase productivity.
FISCAL IMPACT:
The cost of the hardware and software licenses were not included in the FY 2022- 2023 budget. Staff recommends a budget amendment of $410, 241 to transfer from the Equipment Replacement Reserve Fund to cover the cost to expand the City' s infrastructure. Staff is requesting Council approve the following budget amendment:
Decrease Equipment Replacement
1010- 243- 00- 00 410, 241
Increase Appropriations
1010- 17- 20- 450- 12- 00 410, 241
ATTACH M ENTS:
A. Resolution Approving the Purchase of Hardware and Software Licenses with Solid Networks, Inc. to Expand the City' s Information Systems Infrastructure and Related Budget Amendment
80 CITY MANAGER' S REPORT PAGE 3
MARCH 13, 2023 REGULAR CITY COUNCIL MEETING
EXPANSION OF CITY SERVER INFRASTRUCTURE
APPROVALS:
3 - 7 - - d a —
nandes Date
Information Systems Director
Cari ) ame Date
Finance Di ctor
j - "Z_. v
Salvador Navarrete Date
City Attorney
r
3•g•23
Stephen J. Salvatore Date
City Manager
81 RESOLUTION NO. 23 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP
APPROVING THE PURCHASE OF HARDWARE AND SOFTWARE LICENSES WITH SOLID NETWORKS, INC. TO EXPAND THE CITY' S INFORMATION
SYSTEMS INFRASTRUCTURE
WHEREAS, the City' s current equipment for its information systems infrastructure and port environment has been experiencing high latency. These systems provide services that are critical for technology integration, data transmission, communication with shared data access network, and for day- to- day City operations; and
WHEREAS, the growth of staffing and increased applications in the last twelve months has caused data communication delays due to slow server response; and WHEREAS, the proposed solution to expand the current infrastructure with additional hardware will reduce latency for staff and residents; and WHEREAS, Staff requested quotes from ten ( 10) authorized vendors and received six ( 6) responses; and
WHEREAS, Solid Networks, Inc. provided the lowest cost proposal for 410, 241 including sales tax; and
WHEREAS, the details of the hardware are not included to protect the City' s information systems from cybercriminals and malicious activities; and WHEREAS, Staff requests the following budget amendment from General Fund Equipment Replacement Reserve;
Decrease Equipment Replacement
1010- 243- 00- 00 410, 241
Increase Appropriations
1010- 17- 20- 450- 12- 00 410, 241
NOW, THEREFORE, BE IT RESOLVED, the City Council of the City of Lathrop does hereby approve the purchase of hardware and software licenses with Solid Networks, Inc. to expand the City' s information systems infrastructure; and NOW, THEREFORE, BE IT FURTHER RESOLVED, the City Council of the City of Lathrop does hereby approve a budget amendment transferring $ 410, 241 from General Fund Equipment Replacement Reserve Fund 1010- 243- 00- 00 to Information Systems Computer and Equipment Fund 1010- 17- 20- 450- 12- 00. 82 The foregoing resolution was passed and adopted this 13t'' day of March 2023, by the following vote of the City Council, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS TO FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney 83 84
ITEM 4. 7
CITY MANAGER' S REPORT
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
ITEM: APPROVE AMENDED AND RESTATED AGREEMENT
WITH VEOLIA WATER WEST OPERATING SERVICES,
INC., FOR THE OPERATION AND MAINTENANCE OF
THE LATHROP CONSOLIDATED TREATMENT
FACILITY AND APPROVE BUDGET AMENDMENT
RECOMMENDATION: Adopt Resolution Approving the Amended and Restated Agreement with Veolia Water West
Operating Services, Inc., for Wastewater Plant
Operation and Maintenance of the Lathrop
Consolidated Treatment Facility and Approve Budget
Amendment
SUMMARY:
The Lathrop Consolidated Treatment Facility ( LCTF) provides sewer treatment capacity for the Crossroads, Mossdale, River Islands, South Lathrop Specific Plan, Gateway Specific Plan and Central Lathrop Specific Plan development areas. Veolia Water West Operating Services, Inc., ( Veolia) provides Operations and Maintenance O& M) services based on a 2003 O& M Agreement and subsequent amendments. An update to this agreement is needed primarily due to changes in operation and maintenance requirements related to the Surface Water Discharge Project, CIP WW 20- 17.
Staff requests Council approve the Amended and Restated agreement with Veolia for the LCTF O& M services for a cost of $ 138, 762 per month. Sufficient funds were not included in the adopted Fiscal Year 2022/ 23 Budget to cover the increase in cost, and therefore a budget amendment in the amount of $ 200, 000 is requested for the remainder of this fiscal year. Future cost increases beyond July 2023 will be included in budgets presented to Council.
BACKG ROU N D:
The LCTF provides sewer treatment capacity for the Crossroads, Mossdale, River Islands, South Lathrop Specific Plan, Gateway Specific Plan and Central Lathrop Specific Plan development areas. Veolia provides operation and maintenance services for the LCTF under the O& M Agreement that was originally between the City and US Filter Operating Services in 2003. An update to this agreement is needed primarily due to changes in operation and maintenance requirements created by the Surface Water Discharge Project, CIP WW 20- 17. This agreement has been amended numerous times over the years and this new agreement will update, consolidate and replace the original 2003 agreement and all previous contract amendments. 85 CITY MANAGER' S REPORT PAGE 2
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
APPROVE PSA WITH VEOLIA FOR THE OPERATION AND MAINTENANCE OF
THE LCTF AND APPROVE BUDGET AMENDMENT
REASON FOR RECOMMENDATION:
Staff requests City Council approve a Professional Services Agreement with Veolia for Operations and Maintenance of the LCTF. An update to this agreement is needed primarily due to changes in operation and maintenance requirements due to the Surface Water Discharge Project, CIP WW 20- 17.
FISCAL IMPACT:
The current fees for the Veolia O& M contract are $ 130, 151 per month. The negotiated fee adjustment under the new agreement is $ 138, 762 per month Sufficient funds were not included in Fund 6080 ( WW Recycling Plant-# 1 MBR) to cover this increase in cost, and a budget amendment in the amount of $ 200, 000 is therefore requested as follows:
Increase Appropriation
6080- 5034- 420- 01- 00 200, 000
The annual service fee due thereafter will be appropriated accordingly in each Fiscal Year.
86 CITY MANAGER' S REPORT PAGE 3
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
APPROVE AMENDED AND RESTATED AGREEMENT WITH VEOLIA WATER WEST OPERATING SERVICES, INC., FOR THE OPERATION AND
MAINTENANCE OF THE LCTF AND APPROVE BUDGET AMENDMENT
ATTACH M ENTS:
A. Adopt Resolution Approving the Amended and Restated Agreement with Veolia Water West Operating Services, Inc., for Wastewater Plant Operation and Maintenance of the Lathrop Consolidated Treatment Facility and Approve Budget Amendment
B. Amended and Restated Agreement with Veolia Water West Operating Services, Inc for Wastewater Plant Operation and Maintenance of the Lathrop Consolidated Treatment Facility
87 CITY MANAGER' S REPORT PAGE 4
MARCH 13, 2023 CITY COUNCIL REGULAR MEETING
APPROVE PSA WITH VEOLIA FOR THE OPERATION AND MAINTENANCE OF
THE LCTF AND APPROVE BUDGET AMENDMENT
APPROVALS:
3' 7 7.02"
Brad ylor Date
City Engineer
Cari James Da e
Finance Dire t r
3 • co • zo z3
Michael King Date
Assistant City Manager
7 , z L
Salvador Navarrete Date
City Attorney
3•• Z3
Step en J. Salvatore Date
City Manager
88 RESOLUTION NO. 23 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LATHROP
APPROVING THE AMENDED AND RESTATED AGREEMENT WITH VEOLIA WATER WEST OPERATING SERVICES, INC., FOR WASTEWATER PLANT
OPERATION AND MAINTENANCE OF THE LATHROP CONSOLIDATED
TREATMENT FACILITY AND APPROVE BUDGET AMENDMENT
WHEREAS, the Lathrop Consolidated Treatment Facility ( LCTF) provides sewer treatment capacity for the Crossroads, Mossdale, River Islands, South Lathrop Specific Plan, Gateway Specific Plan and Central Lathrop Specific Plan development areas; and
WHEREAS, Veolia Water West Operating Services, Inc., ( Veolia) provides Operations and Maintenance ( O& M) services based on a 2003 O& M Agreement and subsequent amendments; and
WHEREAS, an update to this agreement is needed primarily due to changes in operation and maintenance requirements due to the Surface Water Discharge Project, CIP WW 20- 17; and
WHEREAS, the 2003 O& M agreement with Veolia has been amended numerous times over the years and this new agreement will update, consolidate and replace the original 2003 agreement and all previous contract amendments; and WHEREAS, the current fees for the Veolia O& M contract are $ 130, 151 per month, and the negotiated fee adjustment under the new agreement is $ 138, 762 per month; and
WHEREAS, sufficient funds were not included in Fund 6080 ( WW Recycling Plant-# 1 MBR) to cover this increase in cost, and a budget amendment in the amount of $ 200, 000 is therefore requested; and
WHEREAS, the annual service fee due thereafter will be appropriated accordingly in each Fiscal Year.
NOW THEREFORE, BE IT RESOLVED, that the City Council of the City of Lathrop does hereby approves the Amended and Restated agreement with Veolia Water West Operating Services, Inc., for a total cost of $ 138, 762 per month to be paid from Fund 6080 ( WW Recycling Plant-# 1 MBR); and
NOW THEREFORE, BE IT FURTHER RESOLVED, that the City Council of the City of Lathrop does hereby approve a budget in the amount of $ 200, 000 as follows:
Increase Appropriation
6080- 5034- 420- 01- 00 200, 000
89 The foregoing resolution was passed and adopted this 13th day of March 2023, by the following vote of the City Council, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Sonny Dhaliwal, Mayor
ATTEST: APPROVED AS TO FORM:
Teresa Vargas, City Clerk Salvador Navarrete, City Attorney 90 ATTACHMENT
a
DRAFT
AMENDED AND RESTATED
WASTEWATER PLANT OPERATION AND MAINTENANCE
AGREEMENT
between
VEOLIA WATER WEST OPERATING SERVICES, INC.
and
CITY OF LATHROP, CALIFORNIA
91 AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
TABLE OF CONTENTS
Article 1. DEFINITIONS AND INTERPRETATION ....................................................................................... 6 Section1. 1 Definitions.......................................................................................................................... 6 Section1. 2 Interpretation. .................................................................................................................... 6 Section1. 3 Headings ........................................................................................................................... 6 Section1. 4 Payment Dates.................................................................................................................. 7 Article2. TERM OF AGREEMENT............................................................................................................... 7 Section 2. 1 Term of Agreement ........................................................................................................... 7 Section2. 2 Renewal............................................................................................................................. 7 Article 3. CONDITIONS PRECEDENT ......................................................................................................... 7 Section 3. 1 Conditions to Signing Agreement...................................................................................... 7 Article 4. OPERATION OF FACILITY........................................................................................................... 7 Section 4. 1 Commencement of Operations ......................................................................................... 7 Section 4. 2 Standard of Services and Performance Guarantee.......................................................... 8 Section 4. 3 Limitations on Performance Guarantee ............................................................................ 8 Section 4. 4 Monitoring and Measuring................................................................................................. 9 Section4. 5 Staffing of Facility............................................................................................................ 10 Section 4. 6 Computerized Maintenance Management System......................................................... 10 Section 4. 7 Maintenance and Repairs ............................................................................................... 10 Section 4. 8 Replacement; Replacement Cap .................................................................................... 11 Section 4. 9 Capital Improvement Program Recommendations......................................................... 12 Section 4. 10 Biosolids Services........................................................................................................... 12 Section 4. 11 Solid and Other Wastes .................................................................................................. 13 Section 4. 12 Response to Problems and Emergencies....................................................................... 13 Section 4. 13 Emergency Preparedness Plan....................................................................................... 13 Section 4. 14 Hazardous Materials Business Plan ............................................................................... 13 Section 4. 15 OSHA Compliance Program ........................................................................................... 14 Section4. 16 Odor Control.................................................................................................................... 14 Section4. 17 Supplies........................................................................................................................... 14 Section 4. 18 Preparation of Reports.................................................................................................... 14 Section 4. 19 Operation and Maintenance Manuals............................................................................. 15 Section 4. 20 Standard Operating Procedures...................................................................................... 15 Section 4. 21 Preparation of Records ................................................................................................... 15 Section 4. 22 Cooperation Regarding Warranties................................................................................. 16 Section4. 23 Security............................................................................................................................ 16 Section4. 24 Meetings.......................................................................................................................... 16 Section4. 25 No Title............................................................................................................................ 16 Section 4. 26 City Operational Responsibilities..................................................................................... 16
92 AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section4. 27 Capital Projects ............................................................................................................... 17 Section4. 28 City Responsibilities ........................................................................................................ 18 Section 4. 29 Disclaimer of Implied Warranties..................................................................................... 19 Section 4. 30 Expansion of Facility or Construction of New Wastewater Treatment............................ 19 Section 4. 31 Americans With Disabilities Act....................................................................................... 19 Section 4. 32 Non- Approval of Repair or Replacement........................................................................ 20 Section 4. 33 Resellers Permit.............................................................................................................. 20 Article 5. OWNERSHIP OF FACILITY; LICENSES; ACCESS; NATURE OF AGREEMENT .................... 20 Section 5. 1 Ownership of Facility....................................................................................................... 20 Section5. 2 License............................................................................................................................ 20 Section5. 3 City Access...................................................................................................................... 21 Section 5. 4 City Use of Equipment..................................................................................................... 21 Section 5. 5 Relationship of Parties .................................................................................................... 21 Article 6. VWWOS SCOPE OF SERVICES AND CITY RESPONSIBILITIES............................................ 22 Section6. 1 User Fees........................................................................................................................ 22 Section6. 2 Use of Facility.................................................................................................................. 22 Section 6. 3 Utility Services................................................................................................................. 23 Article7. COMPENSATION........................................................................................................................ 23 Section7. 1 Service Fee ..................................................................................................................... 23 Section7. 2 Payments......................................................................................................................... 23 Section 7. 3 Adjustment to Service Fee for Certain Items .................................................................. 24 Section7. 4 Applicable Law................................................................................................................ 24 Section 7. 5 Change of Scope; Change in Law; Uncontrollable Circumstances ................................ 24 Section 7. 6 Non- Specification Influent ............................................................................................... 24 Section 7. 7 Corrective Maintenance and Repair; Repair and Replacement Adjustments................. 24 Section 7. 8 Pass- Through Expenses................................................................................................. 24 Article 8. RETURN OF WASTEWATER SYSTEM TO CITY...................................................................... 25 Section 8. 1 Return of Facility Upon Expiration................................................................................... 25 Section 8. 2 Pre- Exit Evaluation.......................................................................................................... 25 Article 9. CONFIDENTIAL INFORMATION................................................................................................. 26 Section 9. 1 Confidential and Proprietary Information......................................................................... 26 Section 9. 2 Identification of Confidential Information......................................................................... 26 Section 9. 3 Disclosure of Confidential Information ............................................................................ 26 Section 9. 4 Permitted Disclosure....................................................................................................... 26 Section9. 5 Legal Demands............................................................................................................... 27 Section9. 6 Limitation on Use............................................................................................................. 27 Section9. 7 Survival............................................................................................................................ 27 Article 10. REPRESENTATIONS AND WARRANTIES.............................................................................. 27 Section 10. 1 VWWOS Representations............................................................................................... 27
93 AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 10. 2 VWWOS Duty to Request Information and Disclose ...................................................... 28 Section 10. 3 City Representations....................................................................................................... 28 Article11. INSURANCE.............................................................................................................................. 30 Section 11. 1 Required Insurance......................................................................................................... 30 Section 11. 2 Additional Insurance Requirements................................................................................ 31 Section 11. 3 Certificates of Insurance.................................................................................................. 31 Section 11. 4 O& M Performance and Payment Bond........................................................................... 31 Section 11. 5 Unavailable Insurance..................................................................................................... 32 Section11. 6 City Insurance.................................................................................................................. 32 Article 12. LIABILITY AND INDEMNITY..................................................................................................... 32 Section12. 1 VWWOS Indemnity ......................................................................................................... 32 Section 12. 2 Duties to Insure and Indemnify Independent.................................................................. 33 Section12. 3 City Indemnity.................................................................................................................. 33 Section 12. 4 Environmental Indemnity................................................................................................. 33 Section 12. 5 Procedures for Notice and Defense................................................................................ 33 Section12. 6 Survival............................................................................................................................ 33 Article 13. UNCONTROLLABLE CIRCUMSTANCES................................................................................. 34 Section 13. 1 Uncontrollable Circumstance .......................................................................................... 34 Section 13. 2 Obligations In Event of Uncontrollable Circumstance..................................................... 34 Section 13. 3 Amendment of Agreement for Uncontrollable Circumstance.......................................... 34 Article 14. DEFAULT AND REMEDIES ...................................................................................................... 34 Section 14. 1 City Events of Default...................................................................................................... 34 Section 14. 2 VWWOS Remedies for City Events of Default................................................................ 35 Section 14. 3 VWWOS Events of Default.............................................................................................. 35 Section 14. 4 City Remedies for VWWOS Event of Default.................................................................. 36 Section 14. 5 Effect of Termination ....................................................................................................... 37 Section 14. 6 Remedies Cumulative..................................................................................................... 37 Section 14. 7 Remedy for Breach of Performance Guarantee.............................................................. 37 Article 15. DISPUTE RESOLUTION........................................................................................................... 38 Section 15. 1 Dispute Resolution Process............................................................................................ 38 Section15. 2 Invocation........................................................................................................................ 38 Section 15. 3 Technical Representatives.............................................................................................. 38 Section 15. 4 Reference to Management Representatives................................................................... 38 Section 15. 5 Binding Arbitration........................................................................................................... 38 Section 15. 6 Arbitration Notice............................................................................................................. 38 Section 15. 7 Appointment of Arbitrators............................................................................................... 38 Section15. 8 Fees................................................................................................................................. 39 Section15. 9 Discovery......................................................................................................................... 39 Section 15. 10 Arbitration Rules.............................................................................................................. 39
94 AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section15. 11 Independence.................................................................................................................. 39 Article 16. ASSIGNMENT AND DELEGATION........................................................................................... 39 Section 16. 1 City Assignment............................................................................................................... 39 Section 16. 2 VWWOS Assignment...................................................................................................... 39 Section16. 3 Notice of Assignment ...................................................................................................... 40 Article 17. ADMINISTRATIVE AND MISCELLANEOUS PROVISIONS..................................................... 40 Section17. 1 Notices............................................................................................................................. 40 Section 17. 2 Compliance with Laws and Regulations ......................................................................... 41 Section 17. 3 Non- Discrimination in Employment................................................................................. 41 Section 17. 4 Further Assurances......................................................................................................... 41 Section17. 5 Governing Law................................................................................................................ 41 Section 17. 6 Partial Invalidity; Severability........................................................................................... 41 Section17. 7 Waiver............................................................................................................................. 41 Section17. 8 Entire Agreement ............................................................................................................ 41 Section 17. 9 Modification and Amendment.......................................................................................... 42 Section 17. 10 Successors and Assigns................................................................................................. 42 Section 17. 11 Execution in Counterparts............................................................................................... 42 Section17. 12 Joint Drafting ................................................................................................................... 42 Section 17. 13 No Third- Party Beneficiaries ........................................................................................... 42 Section 17. 14 Assistance of Counsel..................................................................................................... 42
EXHIBITS
Exhibit A: Definitions
Exhibit B: Influent Specifications
Exhibit C: Effluent Specifications
Exhibit D: Monitoring Requirements
Exhibit E: Monitoring Equipment
Exhibit F: Standards for Quality Assurance and Quality Control Program Exhibit G: Computerized Maintenance Management System
Exhibit H: Corrective Maintenance and Repair Monthly Report Exhibit I: Facility Process Flow Diagram
Exhibit J: Facility and Site Security Requirements
Exhibit K: Service Fee
Exhibit L: Points of Influent and Effluent Delivery
Exhibit M: Acceptance Testing Plan
95 AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
This AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT ( this " AgreemenY') is made as of this day of 2023 ( the" Effective Date") by and between Veolia Water West Operating Services, Inc., a Delaware corporation ("VWWOS") and the City of Lathrop, California, a municipal corporation (" City") and, together with VWWOS, each a" Party" and, together, the" Parties").
RECITALS
1. WHEREAS, on April 29, 2003, City and US Filter Operating Services, Inc. entered into an agreement for the operations and maintenance of the City' s then existing wastewater treatment facilities ( as amended, the" Original Agreement"); and
2. WHEREAS, on February 2, 2004, USFOS officially became known as Veolia Water North America Operating Services, Inc., a Delaware corporation; and
3. WHEREAS, on July 6, 2004, Veolia Water North America Operating Services, Inc. converted from a corporation to a limited liability company and became Veolia Water North America Operating Services, LLC, a Delaware limited liability company; and
4. WHEREAS, on October 18, 2007, Veolia Water North America Operating Services, LLC assigned its right, title and interest in and to the Original Agreement to VWWOS; and
5. WHEREAS, the Parties desire to replace the Original Agreement with this Agreement.
6. WHEREAS, Pursuant to the terms, conditions and restrictions of this Agreement, and by due action of its City Council, the City hereby retains VWWOS to operate and maintain the Facility( as defined in Exhibit A).
7. WHEREAS, VWWOS is willing to operate and maintain the Facility, subject to the terms, conditions and restrictions of this Agreement and has properly authorized its representatives to execute this Agreement on its behalf.
NOW, THEREFORE, in exchange of the mutual promises contained herein and for other good and valuable consideration and intending to be legally bound, the Parties agree to amend and restate the Original Agreement as follows:
Article 1. DEFINITIONS AND INTERPRETATION
Section 1. 1 Definitions.
For purposes of this Agreement the terms and phrases shall have the meaning set forth in Exhibit A unless the circumstances clearly indicate the Parties intended otherwise.
Section 1. 2 Interpretation.
Any terms in the singular shall also be interpreted to include the plural and any terms in the plural shall also include the singular. "Including" or" include," as used in this Agreement or in any Exhibit hereto, shall mean " including" without limitation.
Section 1. 3 Headings
The headings are inserted in this Agreement for convenience and reference and shall not affect the interpretation of this Agreement.
96 AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 1. 4 Payment Dates
If the date on which any payment is to be made pursuant to this Agreement is not a Business Day the payment shall be payable on the next succeeding Business Day.
Article 2. TERM OF AGREEMENT
Section 2. 1 Term of Agreement
The term of this Agreement shall be from the Effective Date until December 31, 2034 unless sooner terminated as provided hereunder or renewed pursuant to Section 2. 2 of this Agreement (the Term") but shall in no event exceed thirty- five ( 35) years from the Effective Date.
Section 2. 2 Renewal
If either Party wishes to extend the term of this Agreement, then, at least one year prior to the end of the term set forth in Section 2. 1 of this Agreement, that Party shall send a written notice to the other specifying the proposed terms and conditions of any renewal of this Agreement. The term of this Agreement shall not be extended unless the Parties agree in writing to the terms and conditions of such an extension.
Article 3. CONDITIONS PRECEDENT
Section 3. 1 Conditions to Signing Agreement
a) City Conditions. Prior to City' s execution and delivery of this Agreement to VWWOS, VWWOS shall deliver to City, in reasonable form:
1. certificates of incumbency for the officers of VWWOS executing this Agreement; and
2. such other documentation as reasonably requested by the City, including bonds and insurance documents.
The foregoing conditions shall be deemed satisfied or waived upon the execution and delivery of this Agreement by City.
a) VWWOS Conditions. Prior to VWWOS' s execution and deliver of this Agreement to City, City shall deliver to VWWOS:
1. certified minutes or a certified resolution of the City Council demonstrating that the City Council has approved the execution and delivery of this Agreement;
2. any other documents as reasonably requested by VWWOS.
The foregoing conditions shall be deemed satisfied or waived upon the execution and delivery of this Agreement by VWWOS.
Article 4. OPERATION OF FACILITY
Section 4. 1 Commencement of Operations
VWWOS operations and maintenance of the Facility will be governed by this Agreement as of the Effective Date.
97 AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Section 4. 2 Standard of Services and Performance Guarantee On and after the Effective Date, and except as excused by an Uncontrollable Circumstance or as otherwise set forth in this Agreement:
a) Practices. VWWOS shall perform the Services using suitable materials and in accordance with Prudent Industry Practices.
b) Performance Guarantee. VWWOS shall ( i) operate the Facility such that it has the capacity to treat Influent meeting the Influent Specifications to produce Effluent meeting the Effluent Specifications and ( ii) provide continuous operation of the Facility to treat Influent ( collectively, the Performance Guarantee").
c) Change of Law. Upon a Change of Law including a Change of Law affecting the performance, operation, maintenance or repair of the Facility or standards and conditions governing Effluent discharge from the Facility, VWWOS shall use reasonable efforts to comply with such Change of Law, but such Change of Law shall not modify or expand the Performance Guarantee. In the event of a Change of Law, and upon written notice from VWWOS of the need to do so, the Parties will negotiate in good faith to reach agreement upon the necessary modifications to the Facility and equitable adjustments to the Compensation in order to comply with such Change of Law. If the City and VWWOS are unable to reach agreement on such modifications and adjustments, such dispute shall be resolved in accordance with the procedures set forth in Article 15.
Section 4. 3 Limitations on Performance Guarantee
a) City Compliance. VWWOS' s obligations under the Performance Guarantees shall be conditioned upon the City providing Influent that does not exceed the Influent Specifications set forth in Exhibit B.
b) Non- Specification Influent. In the event that Influent reaches the Facility in volumes or concentrations that exceed the Influent Specifications or that contains Abnormal Substances (" NonSpecification Influent"):
1. VWWOS shall use its reasonable efforts consistently with the Emergency Preparedness Plan to the extent such plan applies to treat such Influent to meet the applicable Effluent Specifications to comply with Applicable Law and to protect the environment, but VWWOS shall have no responsibility to City in the event that VWWOS does not meet the Performance Guarantee despite such reasonable efforts; and
2. City shall continue to make all required payments, and City shall pay VWWOS those reasonable amounts requested by VWWOS to make such reasonable efforts to treat such Non- Specification Influent, which amounts shall be in addition to the Compensation otherwise payable under this Agreement.
c) Process Control Management Plan. Within one hundred eighty( 180) days of the Effective Date, VWWOS shall provide City a draft Process Control Management Plan ( PCMP) for the portion of the Facility upon which Services shall commence. The PCMP shall include provisions for addressing Non-Specification Influent to the Facility that shall be implemented by VWWOS as necessary during the Term. City shall review and approve, or state the basis for its disapproval of, the draft PCMP within thirty( 30) days of its receipt. VWWOS shall provide an amended PCMP within fifteen ( 15) days of receipt of any disapproval.
98 AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
d) Discharges. The City will be responsible for any Losses ( including fines or penalties imposed by a regulatory or enforcement agency for violations) associated with Effluent discharge to any water of the United States and any Losses associated with the NPDES Permit generally, and the City will indemnify VWWOS in accordance with Article 12 for any Losses suffered by VWWOS in connection with any such discharge or the NPDES Permit generally, except to the extent such Losses are a result of the gross negligence or willful misconduct of VWWOS. Except as set forth in Exhibits C- iand C- 2, VWWOS shall have no responsibility to ensure that Effluent meets the requirements of the NPDES Permit during surface water discharge or the requirements of the WDRs during land discharge.
Section 4. 4 Monitoring and Measuring
a) VWWOS shall monitor the operation of the Facility and shall measure, sample and analyze the chemical content, physical properties, volume and flow rate of Influent entering the Facility and Effluent discharged from the Facility in accordance with the Monitoring Requirements outlined in Exhibit D, and as outlined below.
1. VWWOS shall monitor the SCADA system such that to maintain compliance with the Agreement, and notify City if changes or upgrades to system are needed no less than thirty( 30) days prior to necessary changes.
2. VWWOS shall obtain, manage and update a Water Information Management System WIMS) forthe Facility.
3. VWWOS sha I record all monitoring data in WIMS and provide City with data in a tabulated, electronically- searchable format ( e. g., Microsoft Excel) needed for City to prepare monitoring reports. Upon termination of Agreement, VWWOS shall assign the WIMS license to City.
4. VWWOS shall conduct reviews of all reports prepared by VWWOS- contract laboratories for accuracy and to ensure data quality controls are met, and provide City with copies of all final analytical laboratory reports in portable document format (" PDF") by the 15th of each month with the preceding month' s analytical results. b) VWWOS shall collect Influent and Effluent samples, at request of City, for analyses under the responsibility of City- contracted laboratories using sampling equipment cleaned and decontaminated, and with chain-of-custody documentation, in accordance with U. S. Environmental Protection Agency- approved methods.
c) VWWOS shall cooperate with testing and investigations undertaken by the City to determine potential causes for the Facility Effluent to not meet the Effluent Specifications, investigations regarding chronic toxicity observed in the Effluent, or other special studies enacted by the City.
d) VWWOS agrees to provide, to the extent the Facility is not already so equipped, the sampling and monitoring equipment (" Monitoring EquipmenY') as set forth in Exhibit E. e) VWWOS shall maintain and operate the sampling and monitoring equipment included with the Facility including but not limited to meters, analyzers, auto- samplers. f) The accuracy of all Monitoring Equipment used to measure flow volumes shall be verified and calibrated at least once each calendar year. All tests of accuracy of such flow Monitoring Equipment shall be conducted in material compliance with the procedures and standards specified by the manufacturer of the flow Monitoring Equipment.
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g) The accuracy of any analytical Monitoring Equipment used to measure the physical or chemical properties of Influent or Effluent shall be verified in accordance with the frequency methods and tests required by the analytical method, equipment manufacturer, and the Laboratory QA/QC Program.
h) In the event that toxicity testing of the Effluent does not meet the specifications of the NPDES Permit, VWWOS shall cooperate with any additional testing and/ or investigations undertaken by the City to determine of the cause or causes of the observed toxicity. Should investigations into the observed toxicity identify that corrective actions at the Facility are needed to mitigate future toxicity, then VWWOS shall cooperate with the City to update operations and maintenance manuals ( refer to Section 4. 19 of this Agreement), or, alternately if appropriate, VWWOS shall develop a Capital Project ( refer to Section 4. 27 of this Agreement). Any changes in the operations and maintenance manuals that causes a substantial change in the costs of operation and maintenance of the Facility shall entitle Veolia to a change in the Service Fee pursuant to Section 7. 5.
Section 4. 5 Staffing of Facility
a) VWWOS shall staff the Facility with personnel with the appropriate State- required operator certifications, as those requirements now exist or may hereafter be amended ( provided that such amendments may be a Change of Law), and with personnel qualified in technical, laboratory, administrative, and management issues to satisfy regulatory requirements and provide operations and maintenance services and all other related and required services under this Agreement. b) Within thirty( 30) days of the Effective Date, VWWOS shall submit a Facility staffing and organizational structure to the City, including identification of the full- time Facility manager, who shall be VWWOS' s primary on- site agent in all matters pertaining to this Agreement. Identification of certified operators assigned to the Facility and documentation that the certified operators comply with State requirements for operation of Facility also shall be provided to City. Operator licenses to operate Facility shall be posted at the Facility. Telephone numbers for the Facility manager and his or her designee( s) shall be provided.
c) VWWOS shall maintain and document compliance with a staff training program to ensure that its staff is capable of operating the Facility consistently with the Agreement, State of California Wastewater Operator Certification Program and Applicable Law. d) VWWOS shall provide the City with the information reasonably necessary, consistent with the requirements described in Section 4. 18 of this Agreement, for the City to prepare an annual operations report of the Facility staffing.
Section 4. 6 Computerized Maintenance Management System VWWOS shall implement a Computerized Maintenance Management System as described in Exhibit G. VWWOS will maintain records of Preventive and Predictive Maintenance as set forth in Exhibit G. City shall have the right to inspect and to copy at City' s cost such records during normal business hours.
Section 4. 7 Maintenance and Repairs
a) In implementing the Computerized Maintenance Management System, VWWOS shall perform Corrective Maintenance and Repairs consistently with Prudent Industry Practice through regular, preventive, predictive, and corrective maintenance and repairs. Except as otherwise expressly provided to the contrary in this Agreement, City shall be responsible for all costs of Corrective Maintenance and Repair above the Replacement Cap and shall pay such additional amounts to VWWOS as part of the monthly invoice for the month in which such activities take place.
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VWWOS shall submit reports of such Corrective Maintenance and Repairs to City as provided in Exhibit H.
b) To ensure that the Facility is properly maintained, VWWOS shall perform an evaluation of the Facility not later than six ( 6) months after Effective Date and on June 30 of every year thereafter, and provide written evidence to City that the maintenance and repairs required by this Agreement have been performed consistently with Prudent Industry Practice and with this Agreement, accounting for the Replacement Cap and other provisions regarding the funding of Corrective Maintenance and Repairs.
Section 4. 8 Replacement; Replacement Cap
a) As required during the Term, VWWOS shall at VWWOS' s expense replace in kind or with reasonably comparable equipment any Facility equipment that wears out or becomes no longer practicable to repair up to an aggregate limit of Ten Thousand Dollars ($ 10, 000) per year( the Replacement Cap") with expenses as reflected on the Computer Maintenance Management System. b) ( 1) City shall maintain a funded repair, maintenance, and replacement budget of at least 300, 000 per fiscal year to be made available for reimbursement to VWWOS under the terms of this paragraph for repair, maintenance and replacement expenses which exceed the Replacement Cap and to cover potential increase to the Consumer Price Index. VWWOS may invoice the City for up to 25, 000 for any individual repair, maintenance or replacement item. VWWOS shall notify City in writing when VWWOS has invoiced or expects to invoice the City a total of more than eighty percent 80%) of the overall replacement budget or more in any fiscal year. 2) If VWWOS proposes a single repair, maintenance and replacement item costing more than $ 25, 000, or there are insufficient funds remaining in the annual $ 300, 000 budget to cover the repair, maintenance or replacement item, VWWOS shall notify the City in writing as soon as possible and, where reasonably possible, sufficiently in advance of the need for any repair, maintenance or replacement that the City may evaluate and determine whether to provide additional funding for repair, maintenance or replacement in that fiscal year. 3) Within ten ( 10) business days after receipt of such a notice, the City may( i) authorize VWWOS to proceed with such repair, maintenance or replacement item; ( ii) with respect to the replacement of equipment, replace the equipment at the City' s expense; ( iii) invite VWWOS to meet and confer regarding the need for the repair, maintenance or replacement; or( iv) disapprove such repair, maintenance item and/ or replacement. If City provides or causes a third party to provide replacement equipment, City shall solely responsible for administering and enforcing any warranties or guarantees relating to such equipment. If the City authorizes VWWOS to proceed with a repair, maintenance or replacement item, VWWOS may charge the City via its monthly statement under Section 7. 2 of this Agreement for the Cost of the Work plus a five percent ( 5%) mark- up.
c) In the event that VWWOS determines, consistently with Prudent Industry Practice, that a repair, maintenance or replacement item which would otherwise require approval of the City under Section 4. 8( b) of this Agreement is necessary to respond to an emergency that requires immediate action in order to ( i) prevent an avoidable violation of Applicable Law or of a Governmental Approval; ii) to protect the health and safety of its employees agents or subcontractors; or ( iii) to protect the public, VWWOS may proceed with the repair, maintenance or replacement item without advance City approval. However, VWWOS shall notify the City of the emergency as soon as reasonably feasible and not later than the end of the next business day following the onset of the emergency and consult with the City regarding the nature of the emergency and the work necessary to respond to it. City shall pay VWWOS for such emergency services, including parts and labor, under the standards of Section 4. 8( b) of this Agreement or, if it disputes ( x) VWWOS' s determination that an emergency occurred, ( y) whether the means VWWOS selected to respond to the emergency are consistently with
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Prudent Industry Practices ( taking into account the nature of the emergency, or( z) substantiation of the cost of VWWOS services with respect to that emergency, it shall initiate dispute resolution proceedings under Article 15 of this Agreement.
Section 4. 9 Capital Improvement Program Recommendations VWWOS shall develop and deliver to City by October 31 of each year a capital improvement program recommendation, identifying Capital Projects or other system expansions, major repairs or expenditures anticipated to be required for the Facility in order to restore, maintain, replace or upgrade the equipment or other aspects of the Facility for efficiency, safety, function or to meet Effluent Specifications and comply with current or anticipated Applicable Law.
Section 4. 10 Biosolids Services
Management of sewage sludge generated by the Facility( referred to herein as " Biosolids") shall be conducted by the Parties as set forth below:
a) VWWOS shall manage the Biosolids handling process at the Facility.
1. VWWOS shall dry the sludge to 12% solids and stockpiling it for easy loading into trucks.
2. VWWOS shall remove sludge and solid waste from screens, sumps, ponds, and clarifiers as needed to ensure optimal plant operation.
3. Any handling and storage of residual sludge, solid waste, and biosolids at the Facility shall be controlled and contained in a manner that minimizes leachate formation and precludes infiltration of waste constituents into soils. b) VWWOS shall reasonably assist City in applying for, acquiring and maintaining all Governmental Approvals required for the disposal or beneficial use of Biosolids. City shall be solely responsible for the selection of the contractor for the disposal or beneficial use of the Biosolids. Use and disposal of Biosolids shall comply with Applicable Law, including permitting requirements and technical standards listed in 40 C. F. R 503.
c) City shall be solely responsible for removal, hauling, transportation, and disposal of Biosolids. The City shall select a properly licensed contractor, and City will ensure that such contractor reasonably cooperates with VWWOS such that it does not interfere with Facility operations. VWWOS shall reasonably cooperate with the City-selected contractor to schedule and coordinate pickups of Biosolids during normal facility operating hours. d) VWWOS shall be responsible for performing Biosolids analysis as currently required by the NPDES and WDRs Monitoring and Reporting Programs and 40 C. F. R 503, with laboratory analysis reimbursed by the City pursuant to Section 7. 8( c), and shall also be responsible for maintaining records of sludge storage and disposal per the NPDES and WDRs Monitoring and Reporting Programs as of the Contract Date.
e) In no event shall VWWOS have any liability for Losses with respect to the Biosolids transported and delivered pursuant to this Section 4. 10, except to the extent such Losses arise directly as a result of VWWOS' s negligence in performing its obligations relating to Biosolids management under this Section 4. 10. Notwithstanding anything to the contrary in this Agreement, City will at all relevant times retain title and risk to all Biosolids generated by the Facility.
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Section 4. 11 Solid and Other Wastes
VWWOS shall be responsible for the disposal of solids and other wastes ( other than Effluent and Biosolids) produced or generated by the Facility.
Section 4. 12 Response to Problems and Emergencies
a) VWWOS shall use best efforts consistently with Prudent Industry Practices to respond to emergencies no later than one ( 1) hour from such time VWWOS or any of its agents or employees has actual notice that an emergency exists and shall work continuously and as expeditiously as is reasonably practical to resolve the emergency. VWWOS shall respond promptly to normal problems relating to the Facility and shall rectify such problems as expeditiously as is reasonably practicable. b) VWWOS shall notify the City of past or potential future non- compliance with any prohibition, effluent limitation, or receiving water limitation in the NPDES Permit, within 24 hours of having knowledge of such noncompliance. City shall promptly notify the and Central Vatley Regional Water Quality Board of past or potential future non- compliance with any prohibition, effluent limitation, or receiving water limitation in the NPDES Permit, no later than 24 hours of having knowledge of such noncompliance. VWWOS shall prepare a written notification to the City within two ( 2) calendar days of knowledge of such noncompliance. The City shall notify the Central Valley Regional Water Quality Control Board in writing within five ( 5) days, unless the Board waives confirmation, in accordance with the NPDES Permit notification requirements.
Section 4. 13 Emergency Preparedness Plan
a) VWWOS shall prepare and revise as necessary an emergency preparedness plan consistent with the requirements of Applicable Law, establishing procedures for foreseeable emergencies or abnormal conditions affecting the Facility and for maintaining and restoring wastewater treatment services as rapidly as possible. Potential emergency situations which the Emergency Preparedness Plan must address include illness and injury to staff and visitors, natural disasters, terrorist acts, power failures, spills, release of contaminants, Influent volumes or concentrations in excess of the Facility Capacity, and violations of discharge permit limits. The Emergency Preparedness Plan shall include written policies for preventive measures and response actions. The Emergency Preparedness Plan shall provide for monitoring of system alarms that evidence that plant operations have exceeded operating set points and for notice to the on- duty or on- call operations staff of such events. The Emergency Preparedness Plan shall provide for appropriate interaction and coordination with City departments, including, but not limited to, fire police and public works, the State Office of Emergency Services, county agencies, and other jurisdictions. b) VWWOS shall submit the Emergency Preparedness Plan to the City for review and approval within ninety( 90) days after the Effective Date. City shall approve or disapprove the plan within thirty( 30) days after receipt thereof. If City disapproves the plan, it shall identify the areas of deficiency and such revisions as would make the plan acceptable to the City. If City fails to respond within such thirty( 30) day period, VWWOS shall implement the plan until such time as the City' s comments are received. If the City approves the plan, no further action of VWWOS shall be required.
If City disapproves the plan or requests amendments to it, VWWOS shall prepare a revised plan for review by City under this Section 4. 13( b). VWWOS shall submit to the City for review and approval any amendments to the Emergency Preparedness Plan prior to the date on which such amendments are, or are required by Applicable Law, to be effective.
Section 4. 14 Hazardous Materials Business Plan
a) VWWOS shall assist the City in preparation of the Hazardous Materials Business Plan HMBP") for the Facility, which the City shall prepare in accordance with San Joaquin County guidelines.
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City shall request of VWWOS documentation reasonably necessary for preparation of the HMBP, and VWWOS shall provide the requested documentation within thirty( 30) days of receipt of the request. VWWOS shall assist the City in revisions to the HMBP as may be reasonably necessary. b) City will be responsible for uploading the HMBP to the California Environmental Reporting System and payment of all associated fees.
c) VWWOS shall comply with San Joaquin County ( or any other applicable Governmental Agency) guidelines regarding the HMBP implementation and preparing updates. d) If the HMBP is required by San Joaquin County( or any other applicable Governmental Agency) to be updated, then VWWOS shall work with City to establish a schedule for providing draft and final HMBP updates that allows City to submit the revised HMBP by County( or any other applicable Governmental Agency)-established deadlines.
Section 4. 15 OSHA Compliance Program
VWWOS shall obtain the City' s approval of, adopt and implement an Occupational Safety and Health Act ( OSHA) compliance program for all personnel employed or managed by VWWOS who are involved with the operation and maintenance of the Facility. The OSHA Compliance Program will include regularly scheduled safety training sessions for all plant personnel, standard operating procedures for chemical handling, confined space entry and emergency response, and the care and use of proper safety equipment. All personnel involved in the operation and maintenance of the Facility shall receive the complete training program and an annual refresher course as required by OSHA.
Section 4. 16 Odor Control
VWWOS shall implement a regimented housekeeping schedule and work plan for the Facility to maintain clean facilities. VWWOS shall maintain an active approach to odor control through diligent operation of the Facility VWWOS shall review the odor conditions of the systems components on an ongoing basis throughout the Term. VWWOS shall be responsible for all reasonable steps, consistent with Prudent Industry Practices, to reduce odors and to address odor complaints with the goal that no offensive odors can be perceived off the Site, including logging all odor complaints, evaluating those complaints and resolving them as promptly as reasonably practicable and consistently with VWWOS' s maintenance and repair obligations under this Agreement.
Section 4. 17 Supplies
VWWOS shall purchase and maintain throughout the contract period an inventory of chemicals, fuels, parts, and supplies, sufficient to ensure no interruption of service or failure to comply with State, federal and local laws, regulations and permits. VWWOS shall provide a written inventory to the City within thirty( 30) days of a written request of the City. The cost for chemicals used at the Facility shall be reimbursed by the City in accordance with Section 7. 8.
Section 4. 18 Preparation of Reports
VWWOS shall prepare for submission by the City to agencies with jurisdiction, and act consistently with Prudent Industry Practices to ensure the accuracy of, the following reports, consistent with the requirements of Applicable Law as of the Effective Date:
a) Influent and Effluent monitoring reports;
b) Alarm monitoring;
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c) Laboratory reports;
d) Monthly complaint log; and
e) Any other reports reasonably requested by the City, and if such City request causes VWWOS to incur additional costs, City shall reimburse VWWOS therefor as a condition to VWWOS producing such reports.
Notwithstanding anything to the contrary in this Agreement, the City sha l have the sole authority to issue, and shall be solely responsible for issuing, all reports required under Applicable Law, including the NPDES Permit and WDRs. VWWOS shall provide reasonable assistance to the City with preparation of all reports required under the NPDES Permit and WDRs, which the City will be responsible for preparing and submitting to applicable Governmental Authorities, including inquiries regarding Facility performance.
Section 4. 19 Operation and Maintenance Manuals
VWWOS shall prepare new operation and maintenance manuals for the Facility and provide a copy for the City' s review and approval within three ( 3) months of the Effective Date. The manuals shall reflect Prudent Industry Practices. The manuals shall include descriptions of each unit or system within the Facility and its component parts and the function, operating characteristics, performance curves, and limiting conditions of each. Interrelations among groups of equipment shall be described along with operation of individual equipment components. Manufacturer equipment manuals for each piece of equipment shall be maintained as part of the manuals. The manuals shall be updated as necessary to maintain their currency and updates shall be submitted in advance to the City for review and approval.
Section 4. 20 Standard Operating Procedures
Create and keep current Standard Operating Procedures for the Facility to ensure proper personnel safety and compliance with the Agreement.
Section 4. 21 Preparation of Records
VWWOS will assign a Facility employee to be the Operator of Record for the Facility. VWWOS shall compile, maintain, and provide upon request from the City; and shall act consistently with Prudent Industry Practices to ensure the accuracy of, the following records:
a) the Computerized Maintenance Management System reports regarding all repairs; b) the WIMS system regarding all data recorded;
c) daily logs documenting status of Facility observations and operations adjustments; d) an inventory of all managed assets;
e) a capital repair and replacement plan consistent with current budgets; and f) records of labor hours and material cost for each work order, with each work order classified as preventive, predictive or corrective; and g) an annual report listing items invoiced by VWWOS to the City for the operation of the Facility, excluding Service Fees. This report shall be a public record under the provisions of California Government Code Section 6252( e).
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Section 4. 22 Cooperation Regarding Warranties
VWWOS shall cooperate with City in enforcing equipment warranties and guarantees and, upon payment by City for any equipment purchased by VWWOS under this Agreement shall assign all such warranties and guarantees to City. Nothing in this provision shall require VWWOS to pay any costs of prosecuting or participating in litigation to enforce any equipment warranty or guarantee, although VWWOS will reasonably cooperate with any such litigation in which City may be involved. With respect to all equipment newly acquired and installed as part of the Facility, VWWOS shall administer and comply with the requirements of all equipment warranties issued by equipment manufacturers and VWWOS shall be responsible for enforcing on behalf of City all equipment warranties and guarantees against manufacturers. City shall cooperate with VWWOS in connection with VWWOS' s efforts under this Section
4. 22. In no event shall VWWOS' s obligations under a warranty or guarantee be any greater or more expansive, or extend beyond the period of, the warranty provided by the manufacturer of any such equipment.
Section 4. 23 Security
VWWOS shall maintain security for the Facility and the Site as specified in Exhibit J. City acknowledges that performance of the foregoing obligations does not constitute a guarantee by VWWOS of the security of the Facility. Provided that VWWOS complies with the provisions of this Section 4. 23, VWWOS shall not have any liability or obligations for Losses related to any theft, vandalism, or unlawful or unauthorized entry upon the Facility or Site although theft vandalism or unlawful or unauthorized entry upon the Facility or the Site shall not alter or diminish VWWOS' s responsibilities to maintain and repair the Facility pursuant to the terms of Section 4. 7, Section 4. 8, and Section 4. 9 of this Agreement. City shall not have any liability or obligations to VWWOS Indemnified Parties for Losses related to any theft, vandalism, or unlawful or unauthorized entry upon the Facility or Site.
Section 4. 24 Meetings
VWWOS will meet at least monthly with City' s designated representative to review and discuss operating and maintenance reports, funding, and activities, plans and priorities for the Facility. VWWOS shall also meet with representatives of the State, U. S. Environmental Protection Agency, or other Governmental Agencies or the City' s consulting or staff engineer as reasonably required.
Section 4. 25 No Title
In performing the Services under this Agreement at no time shall VWWOS be deemed to take title to the Facility or any Influent, Effluent, wastewater, Biosolids, or other wastes or byproducts treated, processed, generated, discharged or produced at the Facility or flowing through the City sewage collection system.
Section 4. 26 City Operational Responsibilities
City shall be solely responsible for the inspection, operation, maintenance, and repair of all sewers, storm sewers, sewer mains, pump stations, and related facilities and equipment up to Points of Influent Delivery, and VWWOS shall have no liability or responsibility therefor. City shall be solely responsible for the inspection, operation, maintenance, and repair of water storage ponds ( including Pond 5), spray irrigation fields, river discharge and related equipment and facilities beyond the Points of Effluent Delivery, and VWWOS shall have no liability or responsibility therefore; provided, however, that Veolia will, at the request of the City, operate and maintain the additional valves noted as B1 and B2 in Exhibit L, Diagram L- 3.
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Section 4. 27 Capital Projects
a) Capital Projects Generally. It may be necessary or desirable from time to time during the Term to undertake Capital Projects to modify, alter, or improve the Faci ity. Such Capital Projects may be warranted in order to ( i) respond to a Change of Law or Uncontrollable Circumstance; ( ii) respond to actual or anticipated changes in Influent volumes and characteristics or other demands on the Facility; ( iii) anticipate or address obsolescence of any portion of the Facility; or iv) incorporate new technology or other improvements to enhance the efficiency, performance or reliability of the Facility.
b) Capital Project Implementation.
i) Capital Project Contractor. To the extent allowed by Applicable Law, VWWOS may be engaged by the City to undertake Capital Projects affecting the Facility approved during the Term.
ii) Capital Project Financing. Unless otherwise mutually agreed to by the Parties, City shall be solely responsible for financing and funding any Capital Project. iii) Capital Projects Constructed by Other Entities. If City engages any other contractor to construct any Capital Project ( the" Capital Project Contractor"):
1) City and such Capital Project Contractor shall be solely responsible for any damage to the Facility or any other Losses arising out of or resulting from the performance of the work by the Capital Project Contractor or from defects in the material, equipment or work performed by the Capital Project Contractor
2) City and such Capital Project Contractor shall be solely responsible for any damage to the Facility or any other Losses arising out of or resulting from the performance of the work by the Capital Project Contractor or from defects in the material, equipment or work performed by the Capital Project Contractor.
3) Within fifteen ( 15) business days following receipt of written notification from the City stating that a Capital Project has been completed and accepted by the City, VWWOS shall submit to City( a) proposed adjustments to the Performance Guarantees that VWWOS demonstrates by credible evidence are necessary to fairly reflect the consequences of the Capital Project; and ( b) a proposed adjustment to the Service Fee to reflect any changed costs of operation, maintenance, repair and replacement necessarily resulting from the Capital Project ( collectively, the" Capital Project Adjustments"). City shall review such proposed Capital Project Adjustments within forty-five ( 45) days and shall approve the Capital Project Adjustments or demonstrate by credible evidence that the requested Capital Project Adjustments are unwarranted. Proposed Capital Project Adjustments shall be deemed approved if City does not disapprove such Capital Project Adjustments within fortyfive ( 45) days following their submission to City. Any disputes regarding approval of any Capital Project Adjustments shall be resolved pursuant to Article 15 of this Agreement. 4) VWWOS' s obligation for the maintenance and operation of portions of the Facility affected by a Capital Project Contractor shall be the same as its obligations for the maintenance of all other portions of the Facility except as expressly provided in this subparagraph ( 3). If VWWOS wishes to disclaim responsibility for any such portion of the Facility(" the disclaimed portion") on the basis that the work does not comply with Applicable Law, Governmental Approvals or Prudent Industry Practices, that it will materially adversely affect VWWOS' s ability to meet the Performance Guarantee or that it will materially increase VWWOS' s cost to perform the Services, the VWWOS shall give City written notice of that fact within fortyfive (45) days after receipt by VWWOS of written notice from the City that the Capital Project
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has been completed and accepted by the City. If after such forty- five ( 45) day period, VWWOS discovers a defect in the Capital Project that was latent or not readily discernible by VWWOS during such forty-five ( 45) day period, then VWWOS shall give the City written notice thereof within fifteen ( 15) business days of its discovery. Any notice under this subparagraph ( 3) shall specify the deficiency in the Capital Project and, to the extent reasonably possible, VWWOS' s recommendations on curing the deficiency. If the City cures, or arranges for the cure of, the defect in a manner specified by VWWOS and consistent with Prudent Industry Practices, or if VWWOS fails to give timely written notice of the defect, then VWWOS shall be responsible for the disclaimed portion to the same extent as for other portions of the Facility. If City fails to cure, or arrange for the cure of, the defect in a manner specified by VWWOS and consistent with Prudent Industry Practices, VWWOS shall have no obligations or liability under this Agreement with respect to the disclaimed portion including any failure by VWWOS to meet the Performance Guarantee) and City shall defend, indemnify and hold VWWOS harmless from any Losses arising from the disputed portion. Any dispute between the parties with respect to the existence of a defect in the portions of the Facility affected by a Capital Project Contractor or the means necessary to remedy that defect shall be resolved pursuant to Article 15 of this Agreement. This subparagraph ( 4) shall survive the expiration or termination of this Agreement.
Section 4. 28 City Responsibilities
The City shall have the following responsibilities and obligations:
a) Access. City shall provide access and use of all real and personal property, equipment, improvements, buildings, structures and facilities under the City' s ownership or control and located at the Site on the Effective Date.
b) Permits Licenses and Governmental Approvals. To the fullest extent allowed by law, City shall, with such assistance and cooperation from VWWOS as is required by this Agreement acquire and maintain all existing or additional real property Governmental Approvals, and rights- of- way required for operation and maintenance of the Facility. The City shall be responsible for any and all permitting fees with respect to Government Approvals related to the Facility( other than professional licensures of VWWOS agents and employees) and for the obtaining of necessary Government Approvals. VWWOS shall assist and cooperate with City in the application for any such Government Approvals.
c) Influent. City shall make best efforts not to deliver Non- Specification Influent to the Facility. In the event that Non- Specification Influent reaches the Facility, City shall reasonably exercise its police power and enforcement authority to remedy and prevent any third- party conduct which has or will generate Non- Specification Influent, including enforcement of the City' s sewer system ordinance. City shall consider in good faith any recommendations of VWWOS for the adoption of ordinances or other enforcement actions to prevent or reduce Non- Specification Influent to the Facility.
d) Industrial Wastewater Pretreatment Program.
1. City shall adopt, maintain, and enforce an industrial pretreatment program for the Service Area, meeting all applicable requirements of the NPDES Permit, 40 C. F. R. Part 403, and any other Applicable Law ( the" IPP").
2. City shall not approve any such connection to the sewage collection system or change in the quantity, characteristics, or concentrations of wastewater discharged by any user if the wastewater to be discharged would violate the IPP or result in Non- Specification Influent, but the City shall otherwise retain sole decision- making authority to approve, disapprove, or conditionally approve any such connection or change.
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e) Reports. Except with respect to reports VWWOS must submit by virtue of its employee' s status as Operator of Record of the Facility, if and when an employee of VWWOS takes on that status pursuant to Section 4. 21 of this Agreement, and as defined in Section 4. 18, or otherwise by virtue of Applicable Law, City shall timely submit to the appropriate Governmental Agencies all discharge monitoring reports and other reports required under Applicable Law. f) Operating Responsibilities. City will be responsible for the following items, including all associated costs:
1. Operating and maintaining the entire recycled water system, including operation and maintenance of PMP- 1, the River Discharge Pump Station, Recycled Water Ponds A, B, C, and Percolation Ponds LAS- 3; provided that VWWOS will coordinate with the City as needed on the operation of the PMP- 1 and River Discharge Pump Station;
2. Paying for Biosolids loading and Biosolids disposal through direct payments to contractors, consistent with Section 4. 10;
3. Landscape maintenance and weed control for the entire Facility site;
4. SCADA system operation and maintenance; provided that VWWOS shall maintain instrumentation from each piece of equipment up to its PLC;
5. Maintenance of Facility computers and printers, including those used by VWWOS, phones and fire alarms and security system; and
6. Providing space and access to computer room for the installation of needed equipment for VWWOS to maintain connection and use of the VWWOS server. g) Other Responsibilities. City shall perform all other functions and retain all responsibilities and obligations related to the Facility and sewage collection system not expressly assumed by VWWOS under this Agreement, provided, however, that VWWOS shall give City written notice of any obligation related to the Facility of which VWWOS has actual knowledge.
Section 4. 29 Disclaimer of Implied Warranties
VWWOS' s Performance Guarantee set forth in Section 4. 2 is the exclusive guarantee and warranty under this Agreement. Except as specified in this Agreement, VWWOS DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Nothing in this Section 4.29, however, shall undermine the Performance Guarantee or VWWOS' s other duties under this Agreement.
Section 4. 30 Expansion of Facility or Construction of New Wastewater Treatment During the Term, if the City elects to expand the Facility or to construct one or more new wastewater treatment facilities, the City shall grant VWWOS the right to submit the first proposal to operate, maintain, and staff the expanded Facility or new wastewater treatment facility.
Section 4. 31 Americans With Disabilities Act
The City acknowledges and agrees that VWWOS shall not be liable or responsible for complying with the standards of the Americans with Disabilities Act in connection with the design and construction of any portion of the Facility or the Site.
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If City or Applicable Law requires VWWOS to undertake any action or make any improvement to the Facility or the Site related to the standards or compliance with the Americans with Disabilities Act, that requirement shall constitute a material change in scope subject to an increase in the Service Fee pursuant to Section 7.5.
Section 4. 32 Non- Approval of Repair or Replacement
If City disapproves a Capital Project or a repair, maintenance, or replacement item requested by VWWOS, and the failure to make or undertake such Capital Project or repair, maintenance, or replacement item results in VWWOS' s inability or failure to satisfy the Performance Guarantee, to comply with a Governmental Approval or Applicable Law or to perform its other obligations under this Agreement, then: ( i) VWWOS shall have no liability for any Losses that arise out of the failure to implement such Capital Project or repair, maintenance, or replacement item; ( ii) VWWOS shall have no fiability for a failure to meet its Performance Guarantee or to perform its other obligations under this Agreement ( the foregoing, however, shall not release VWWOS from its obligations to use its commercially reasonable efforts to perform its other obligations under this Agreement); and ( iii) City shall indemnify, defend and hold the VWWOS Indemnified Parties harmless from and against all Losses that arise out of the failure to implement such Capital Project or repair, maintenance, or replacement item. This Section 4. 32 shall survive the expiration or termination of this Agreement.
Section 4. 33 Resellers Permit
Within thirty( 30) days of the Effective Date, VWWOS shall obtain a rese lers permit pursuant to Uniform Local Sale and Use Tax Regulation 1806 of the State Board of Equalization so the situs of all sales subject to sales taxation used in the performance of Services under this Agreement shall be within the City of Lathrop.
Article 5. OWNERSHIP OF FACILITY; LICENSES; ACCESS; NATURE OF AGREEMENT Section 5. 1 Ownership of Facility
City and VWWOS hereby acknowledge that City is the sole owner of the Facility and the Site; provided, however, that equipment installed without the use of City funds shall remain the property of VWWOS until the City reimburses VWWOS for the cost of that equipment as provided in this Agreement.
Section 5. 2 License
a) Site License. Effective on the Effective Date and subject to the terms and conditions set forth in this Agreement, City hereby grants to VWWOS a non- exclusive license, coupled with an interest, on, over, in, under and across the Site conferring upon VWWOS the following rights ( the Site License"):
1. Operate, maintain, repair and replace the Facility, and all equipment, structures, improvements, fixtures, and facilities thereon and appurtenant thereto;
2. Discharge Effluent produced by the Facility, and store, treat and manage all Biosolids, solid, liquid and other wastes and substances generated in the operation and maintenance of the Facility.
3. Construct, operate, use, maintain, repair and replace ancillary facilities, including access roads, driveways, gates, fences, parking areas, and utilities ( including the right to grant sublicenses or licenses therefor);
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4. Install, operate, use, maintain, replace, repair and remove such equipment, appliances, devices or other necessary or convenient structures and improvements in, on, over and under or across the Site, and each and every part thereof, as may be necessary, desirable or useful for the operations and activities required or authorized by this Agreement; and
5. Temporarily store equipment, construction materials, or excavated materials on the Site for purposes of performing the foregoing work.
Nothing in this Section 5. 2 shall expand the Services for which VWWOS is obligated under this Agreement.
b) Compliance with Zoning and Applicable Law. Nothing in this Agreement or the Site License shall constitute or grant VWWOS an exemption from the General Plan, zoning, ordinance or other land use regulations of the City, or from any other Applicable Law, with respect to the Facility or the Site; provided, however, that should the Facility, the Site or the operations and activities contemplated under this Agreement violate Applicable Law, VWWOS' s compliance with that Applicable Law shall be governed by Section 7. 4 and Section 7. 5.
Section 5. 3 City Access
During the term of this Agreement, City and its designees shall retain at all times the right to enter the Facility and the Site for any reason, including to determine VWWOS' s performance of the terms of this Agreement. In connection with such entry, the City and all City employees and agents shall observe all health and safety rules established by VWWOS and pursuant to Applicable Law. City shall indemnify, defend and hold the VWWOS Indemnified Parties harmless for, any personal injury, property damage, or any other Losses arising out of, or related to, the entry by City, City employees or agents upon the Facility and the Site that does not arise out of the negligence or willful actions of VWWOS Indemnified Parties.
VWWOS shall indemnify, defend and hold the City Indemnified Parties harmless for, any personal injury, property damage, or any other Losses arising out of, or related to, the entry by City, City employees or agents upon the Facility and the Site that arises out of the negligence or wiliful actions of VWWOS or its employees or agents. This Section 5. 3 shall survive expiration or termination of this Agreement.
Section 5. 4 City Use of Equipment
The City acknowledges and agrees that any alteration, improvement, maintenance or repair of the equipment at the Facility carried out by the City without VWWOS' s prior written consent shall be a material breach of this Agreement unless such alterations or repairs are made as a result of an emergency condition that such necessitates action by the City. In the event of such an emergency repair, the Parties shall meet and confer in good faith concerning any adjustments to the compensation or the Performance Guarantee that VWWOS provides a credible basis are necessary as a result of the emergency repair. If the Parties fail to reach agreement after such discussions, they shall resolve their dispute pursuant to Article 15 of this Agreement.
Section 5. 5 Relationship of Parties
a) City and VWWOS intend that City and VWWOS shall not be treated as partners or joint venturers for any purpose and neither has the authority to bind the other to any agreement obligation or duty.
b) VWWOS is an independent contractor of City. VWWOS shall be responsible for all costs associated with its employees, including wages and salaries, benefits, workers' compensation and unemployment compensation, any associated tax liabilities and costs associated with maintaining VWWOS engineering license( s) for the State.
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City shall be responsible for all costs associated with its employees, including wages and salaries, benefits, workers' compensation and unemployment compensation, any associated tax liabilities.
Article 6. VWWOS SCOPE OF SERVICES AND CITY RESPONSIBILITIES Section 6. 1 User Fees
a) Collection of Fees. To the extent permitted by Applicable Law, City shall establish, maintain, and collect all ( 1) sewer service fees, charges and assessments, ( 2) connection charges, assessments and fees, ( 3) water treatment charges, assessments and fees, ( 4) service charges, tapping fees and connection fees, ( 5) amounts payable for sanitation services under agreements with the property owners and developers, and ( 6) other revenue or income derived by, or on behalf of, the City from the use or operation of the Facility and the City's sewage collection system ( collectively, the User Fees") in an amount sufficient to generate the revenues necessary pay for the Compensation and any additional charges or amounts payable to VWWOS under this Agreement, or incurred by the City in connection with this Agreement ( including adjustments in Compensation required by Article 7) Fee- Covered Expenses"). In no event shall the City discount, waive, reduce, reallocate, defer or alter the User Fees which may lawfully be used for Fee- Covered Expenses in a manner or to an extent which would render the City unable to fund Fee- Covered Expenses without the prior written consent of VWWOS. City shall, to the maximum extent permitted by law( i) increase User Fees, ( ii) levy taxes, fees, charges and assessments, ( iii) obtain federal, State and local grants, loans, funds and assistance ( including, to the extent permitted by law, Community Development Block Grant funds, grants and loans), and ( iv) obtain proceeds from insurance, Federal Emergency Management Agency grants and reimbursement programs and any other available grant or reimbursement program, in each case to the extent necessary to pay for the costs of the Fee- Covered Expenses. All amounts procured as a result of the items described in clauses ( i)-( iv) above shall be deemed " User Fees" for all purposes under this Agreement. VWWOS shall have no ratemaking authority under this Agreement.
b) Dedication of Fees. Except as required by Applicable Law or contractual commitments of the City entered into prior to the Effective Date, User Fees and other revenue or income derived by the City from the operation of the Facility shall be used for the following in the order of priority stated here: ( 1) payment of the Compensation set forth in this Agreement; ( 2) repayment of debt service on outstanding bonds or other debt of the City with respect to the Facility; ( 3) direct and indirect costs of operation, maintenance, repair, replacement and improvement of the Facility; and ( 4) other lawful uses of such funds
c) Review of Financial Records and Audit. Subject to Applicable Law, including provisions protecting the privacy rights of utility customers, VWWOS shall have the right, during regular business hours, to review and copy, at VWWOS' s cost, the City' s financial records relating to User Fees collected directly or indirectly by the City and any expenditure of those User Fees. VWWOS shall have the right, at VWWOS' s cost, to have an independent accountant conduct a periodic audit of the User Fees received and expended by the City. If such an audit does not identify a discrepancy in the collection or expenditure of user fees of at least$ 10, 000, VWWOS shall also reimburse City for any reasonable staff-time or consulting fees, including reasonable legal fees, incurred by City as a result of such audit. City staff- time shall be charged at the fully burdened rate established by the City in conjunction with the City annual budget.
Section 6. 2 Use of Facility
a) General. The Facility shall be used solely for the treatment of ( 1) Influent collected within the City; (2) and industrial wastewaters collected by another sewage municipality pursuant to an intermunicipal agreement approved pursuant to this Agreement; and (3) such other purposes as specifically described in this Agreement.
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At no time shall VWWOS or City use or knowingly permit the use of the Facility for any other purpose; nor shall VWWOS or City be obligated to use the Facility for any purpose other than those set forth in this paragraph ( a).
b) Inter- municipal Agreements. The City shall not enter into any new agreements to accept at the Facility sewage or industrial wastewaters from any other municipality without the approval of VWWOS. Such approval by VWWOS shall not be unreasonably withheld provided that ( 1) the Facility has adequate hydraulic and treatment capacity to treat the additional wastewater; and ( 2) the industrial wastewater generators agree or the other municipality agrees to adopt and enforce sewer maintenance, industrial wastewater pretreatment, and user fee collection programs meeting the requirements of this Agreement
Section 6. 3 Utility Services
City shall provide water and other City-provided utility services to VWWOS for the performance of the Services at the rates and on the conditions imposed on other similarly situated utility customers of the City and without discrimination or preference. The cost of water consumed at the Facility shall be paid by VWWOS. City shall pay for all electricity costs directly to the provider therefor and VWWOS shall not be responsible therefor.
Article 7. COMPENSATION
Section 7. 1 Service Fee
The Service Fee shall be calculated and annually adjusted in the manner specified in Exhibit K.
Section 7. 2 Payments
a) Monthly Service Fee. Starting in the second calendar month following the Effective Date, and on the first Business Day of each calendar month thereafter, VWWOS shall provide City with a statement ( the" Billing Statement") for the previous month, which will reflect the calculation of the Service Fee as set forth in Exhibit K. City shall pay the Service Fee due and owing for each Billing Period within forty- five ( 45) days of receipt of the Billing Statement. City acknowledges and agrees that it shall not be entitled to dispute ( i) any amounts of the fixed components of the Service Fee as set forth in Exhibit K; ( ii) any pass- through expenses set forth in Section 7. 8; or( iii) payments under Section 7. 3( b).
b) Annual Adjustment of Service Fee. On each July 1, the amount of the Service Fee shall be adjusted for inflation between the Effective Date or previous annual adjustment and the date of adjustment in proportion to the change in the Employment Cost Index, Total compensation for Private Industry Workers ( not seasonally adjusted) ( Series CIU201 S000300000A) for the United States, as published by the Bureau of Labor Statistics of the U. S. Department of Labor or any successor to that index. If the applicable Employment Cost Index is negative, the annual adjustment of service fee shall be deemed to be zero percent ( 0%) and shall not be negative. If the applicable Employment Cost Index exceeds five percent ( 5%) in a year, the annual adjustment of service fee shall be deemed to be five percent ( 5%).
c) Interest on Overdue Amounts. Interest shall accrue on all overdue amounts at the lesser of ( i) two percent above the Prime Rate or( ii) the maximum interest rate permitted by Applicable Law
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Section 7. 3 Adjustment to Service Fee for Certain Items a) Taxes
1. If the City or any entity controlled by City imposes any additional taxes, fees, host fees, assessments or other charges on VWWOS, other than those taxes, fees, assessments or other charges that are currently levied against VWWOS or expressly permitted in this Agreement, the applicable Fixed Component of the Service Fee shall be increased to reflect such additional obligations by VWWOS.
2. If any Governmental Agency( other than City or an entity controlled by City) imposes any taxes, fees, host fees, assessments or other charges on VWWOS ( other than federal or State taxes upon VWWOS' s income), the applicable Fixed Component of the Service Fee shall be increased to reflect such additional obligations by VWWOS.
Section 7. 4 Applicable Law
To the extent that any portion of the Compensation described herein violates Applicable Law or the terms of any debt, bonds, grants or other financing or debt incurred by City or otherwise with respect to the Facility or the Site as of the Contract Date or as agreed to by the Parties thereafter, VWWOS and the City shall adjust the Compensation to comply with such Applicable Law or the terms of such existing debt, bonds, grants or other financing or debt, as applicable, in order to provide VWWOS with the Compensation required by this Agreement. If the Parties are unable to agree upon such adjustments to Compensation, the adjustments shall be determined pursuant to Article 15.
Section 7. 5 Change of Scope; Change in Law; Uncontrollable Circumstances The Service Fee shall be increased, based on documented change in costs actually and reasonably incurred by VWWOS due to any material change in the Services or to any substantial change in the costs of operation and maintenance caused by a Change in Law or Uncontrollable Circumstances.
If the Parties are unable to agree upon adjustments to Compensation under this Section 7.5, the adjustments, if any, shall be determined pursuant to Article 15.
Section 7. 6 Non- Specification Influent
The Service Fee may be adjusted if and as set forth in Section 4. 3( b) above in the event NonSpecification Influent is delivered to the Facility.
Section 7. 7 Corrective Maintenance and Repair; Repair and Replacement Adjustments The Service Fee shall be adjusted if and as set forth in Section 4. 7, Section 4. 8, and Section 7. 2 above in certain instances relating to Services pertaining to repair, maintenance or replacement items.
Section 7. 8 Pass- Through Expenses
a) VWWOS shall be reimbursed in full for the cost of the insurance and payment and performance bonds required by City under this Agreement. VWWOS shall invoice City for such costs as and when incurred by VWWOS and City shall pay such amounts within forty- five ( 45) days of invoice thereof. b) Notwithstanding anything to the contrary in this Agreement, VWWOS shall be reimbursed in full, plus a five percent ( 5%) mark- up, for the cost of all chemicals used in connection with the operation of the Facility and otherwise required to perform the Services, including, but not limited to, Sodium Hypochlorite, Sodium Biosulfate, Polymer and Citric Acid.
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c) Notwithstanding anything to the contrary in this Agreement, VWWOS shall be reimbursed in full, plus a five percent ( 5%) mark- up, for the cost of all third party laboratory services and analysis used in connection with the operation of the Facility and otherwise required to perform the Services or to comply with Applicable Law, including the NPDES Permit and WDRs.
Article 8. RETURN OF WASTEWATER SYSTEM TO CITY
Section 8. 1 Return of Facility Upon Expiration
Upon expiration or termination of this Agreement, VWWOS shall return and quitclaim the Site License, and any other interest in the Facility and the Site VWWOS may have or claim, to the City at no charge free and clear of any Liens, except for those Liens existing on the Contract Date, authorized or contemplated by this Agreement, or otherwise approved by the City.
Section 8. 2 Pre- Exit Evaluation
a) Scope. No later than twelve ( 12) months and no earlier than eighteen ( 18) months prior to expiration of this Agreement or, if this Agreement is terminated on less than twelve months' notice, as far in advance of termination as practicable, the City may, at the City' s discretion and cost, conduct an exit evaluation ( the " Exit Evaluation") to determine that: ( 1) all maintenance, repair and replacements required by this Agreement have been completed in material compliance with this Agreement; ( 2) all management systems, records, and information have been satisfactorily maintained in material compliance with this Agreement; ( 3) the Facility is operating in material compliance with the Performance Guarantee; and ( 4) all buildings, grounds equipment and vehicles are in good operating condition except for ordinary wear and tear and except as impacted by Uncontrollable Circumstances. The Exit Evaluation shall include a walk-through inspection of the Facility and the Site, all machinery and structures, a review of maintenance, repair and replacement records, and a 48- hour performance test ( the " Exit Performance TesY'). Within ten ( 10) Business Days of its receipt of a report of the findings of the Exit Evaluation, VWWOS shall inform the City in writing of any disagreement with those findings. If VWWOS so notifies the City, the Parties shall resolve the dispute as set forth in Article 15 below.
b) Exit Performance Test. The Exit Performance Test is satisfied if it demonstrates that the Facility is capable of accepting Influent up to the Facility Capacity and meeting the Performance Guarantee. If the Exit Performance Test is not satisfied, and that failure is not excused by NonSpecification Influent, an Uncontrollable Circumstance a material breach by the City, or a refusal by the City to authorize a Capital Project or a repair, maintenance or replacement item recommended by VWWOS, VWWOS shall, at its cost, make all necessary repairs and replacements, and the Exit Performance Test shall be repeated at VWWOS' s expense until successful. c) Preventive and Predictive Maintenance Review. The Exit Evaluation shall include a review of preventive and predictive maintenance evaluations for the twelve ( 12) months prior to the end of this Agreement, and on one or more occasions after the end of this Agreement, with respect to such maintenance during the twelve ( 12) months following the end of this Agreement. Such evaluations shall be conducted in accordance with Exhibit G. VWWOS shall, before the end of this Agreement or up to twelve ( 12) months thereafter, be responsible for correcting, improving, repairing or replacing any component of the Facility found to require correction, improvement, repair or replacement under Prudent Industry Practices unless the need for such correction, improvement, repair or replacement is necessitated by ordinary wear and tear, Non- Specification Influent, an Uncontrollable Circumstance, a material breach by the City of which VWWOS provided City written notice, or the City' s refusal to authorize a Capital Project or repair, maintenance or replacement item recommended by VWWOS.
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d) Exit Inventories. An inventory of parts, tools, equipment, vehicles, chemicals, and other major consumable supplies will be performed by the City, with VWWOS' s cooperation, within one month prior to the expiration or termination of this Agreement. If the inventories are materially less than as required in Section 4. 17, VWWOS shall either replace such items or pay the City VWWOS' s cost to do so.
Article 9. CONFIDENTIAL INFORMATION
Section 9. 1 Confidential and Proprietary Information
City acknowledges that VWWOS and its affiliates have confidential and proprietary information relating to the processing of wastewater and the production and distribution of reclaimed water, and that disclosure of such information to City or City's representatives is solely to facilitate performance of this Agreement and is made solely under the terms and conditions of this Article.
Section 9. 2 Identification of Confidential Information VWWOS shall inform the City in writing of any confidential or proprietary information contained in any documents submitted to City by VWWOS under this Agreement (" Confidential Information"). VWWOS shall mark any such documents that contain Confidential Information with a legend " CONFIDENTIAL", PROPRIETARY", or the like. Confidential Information shall not be considered a" public record" for purposes of any law governing operations of the City unless a court of competent jurisdiction orders the release of the Confidential Information or unless the City makes that determination consistently with Section 9. 5 below; provided, however, that VWWOS acknowledges that this Agreement is a public record under the provisions of State law.
Section 9. 3 Disclosure of Confidential Information
Except for such disclosures as permitted under Section 9. 4 or Section 9. 5 ( after notice provided in Section 9. 5), no Confidential Information provided by VWWOS shall be disclosed by City to any other person or entity without the express written consent of VWWOS, in its sole discretion, and no such Confidential Information shall be used by City or City Employees or Agents for any purpose other than such purposes as expressly authorized under this Agreement. City and City Employees or Agents shall take all precautions necessary to preserve the confidentiality of such Confidential Information and to protect it from disclosure to third parties, except as required by law or permitted under Section 9. 4 or Section 9. 5. City agrees that it will be responsible for any breach of this covenant by City Employees and Agents.
Section 9. 4 Permitted Disclosure
Confidential Information received by City may be disclosed to City' s employees, auditors, accountants, legal counsel, engineering and other consultants, financial advisors, and insurers collectively, the" City Employees and Agents"), if and only to the extent that access to such Confidential Information is necessary in the performance by such person of their responsibilities with respect to this Agreement. Any such disclosure shall be limited to the amount of Confidential Information that is necessary for such City Employee or Agent to perform their responsibilities with respect to this Agreement. City shall require any City Employees and Agents to execute a confidentiality agreement acknowledging and agreeing to abide by the terms of this Article and VWWOS shall be a third- party beneficiary to each such confidentiality agreement.
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Section 9. 5 Legal Demands
In the event that City or any of its representatives receive a legal demand from any Governmental Agency or any other party( including a demand by oral questions, interrogatories, requests for information or documents under the Public Records Act, subpoena, civil investigative demand or similar process or otherwise) to disclose any Confidential Information, City shall provide VWWOS with prompt written notice so that VWWOS may take such legal action as it deems appropriate to dispute such process and to protect the Confidential Information from disclosure. If VWWOS informs City within five ( 5) Business Days after it receives notice from City of the demand for disclosure of its intent to take such an action, and pending any such action to protect the Confidential Information, City shall take all reasonable steps to avoid prejudice to VWWOS' s rights and efforts to protect such Confidential Information. In the event a protective order or other remedy is not obtained, or that VWWOS waives compliance with the provisions of this Section 9. 5 by failing to give the notice of intent to take such an action within five ( 5) days, City will furnish only that portion of the Confidential Information which City determines in good faith it is legally required to disclose.
Section 9. 6 Limitation on Use
City shall not use, or allow any City Employees and Agents to use, any Confidential Information for any purpose other than to administer and enforce this Agreement.
Section 9. 7 Survival
The terms of this Article 9 shall survive termination of this Agreement.
Article 10. REPRESENTATIONS AND WARRANTIES
Section 10. 1 VWWOS Representations
VWWOS represents and warrants to the City that:
a) Existence and Powers. VWWOS is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and authorized to do business in California, is subject to personal jurisdiction in San Joaquin County, California, and possesses the full legal right, power, and authority to enter into and perform its obligations under this Agreement, including the authority through itself or its affiliates to provide engineering services within California. b) Due Authorization and Binding Obligation. This Agreement has been duly authorized, executed, and delivered by all necessary action of VWWOS, and constitutes a legal, valid, and binding obligation of VWWOS, enforceable against VWWOS in accordance with its terms, except to the extent that its enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditor' s rights.
c) No Conflict. The execution and delivery by VWWOS of this Agreement, and the performance by VWWOS of its obligations under this Agreement, does not ( i) conflict with, violate, or result in a material breach of law, regulation, corporate charter or bylaw applicable to VWWOS, or( ii) conflict with, violate or result in the material breach of any term or condition of any order, judgment, decree, agreement or other instrument to which VWWOS or its affiliate is a party. d) No Litigation. VWWOS has no written notice of any action, lawsuit, or proceeding before any court or Governmental Agency that is pending or threatened in which an unfavorable decision could reasonably be expected to have a Material Adverse Effect on VWWOS' s execution or delivery of this Agreement, or the enforceability against VWWOS of this Agreement or VWWOS' s performance of its obligations hereunder.
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e) Proper Licenses and Credentials. VWWOS, its key personnel and subcontractors which will perform any of the Services possess and will maintain during the Term all required, current licenses, registration and credentials for the operation of the Facility. f) No Surety Completion. VWWOS warrants that no surety company has within the five ( 5) years prior to the Contract Date completed work on a project undertaken by VWWOS. g) No Major Claims. VWWOS warrants it has not, within the five ( 5) years prior to the Effective Date, been found liable for any claim or litigation in excess of Five Hundred Thousand Dollars ($ 500, 000) or in excess of ten percent ( 10%) of the original amount of any contract in issue, which event would have a Material Adverse Effect on its ability to perform the Services. h) No Serious OSHA Violations. VWWOS warrants it has not, within the five ( 5) years prior to Effective Date, been found liable for any the serious violations of the federal Occupational Safety and Health Act or the California Occupational Safety and Health Act that would have a Material Adverse Effect on its ability to perform the Services.
i) No Violation of Employment Laws. VWWOS warrants it has not, within the five ( 5) years prior to the Effective Date, been found liable for a material violation of any of the following: laws governing the payment of wages, benefits or personal income tax withholdings; the Federal Insurance Contributions Act withholdings requirements; state disability insurance withholdings, unemployment insurance payment requirements, which violation would have a Material Adverse Effect on its ability to perform the Services.
j) No Bidding Violations. VWWOS warrants it has not been debarred from bidding on or completing for a federal, State or local government project k) No Violations of Contractor' s State License Law. VWWOS warrants it has not been found liable for any material violations of the State Contractor' s License Law, which violation would have a Material Adverse Effect on its ability to perform the Services.
I) No False Claims. VWWOS warrants it has not, within the five ( 5) years prior to the Contract Date, been convicted of submitting or civilly adjudicated to have submitted a false or fraudulent claim to a Governmental Agency.
Section 10. 2 VWWOS Duty to Request Information and Disclose In connection with the retention of any subcontractor, VWWOS shall request that such subcontractor review the representations and warranties set forth in Section 10. 1 and disclose any items relating thereto to VWWOS. Upon receipt or actual knowledge of such items, VWWOS shall notify and disclose the same to City.
Section 10. 3 City Representations
City represents and warrants to VWWOS that:
a) Existence and Powers/ City is a general law city duly organized, validly existing, and in good standing under the laws of the State, with the full legal right, power, and authority to enter into and perform its obligations under this Agreement.
b) Due Authorization and Binding Obligation. This Agreement has been duly authorized, executed, and delivered by all necessary action of City, and constitutes a legal, valid, and binding obligation of City, enforceable against City in accordance with its terms, except to the extent that its enforceability may be limited by bankruptcy, insolvency, or other laws affecting creditor' s rights.
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City has satisfied all procurement and contracting procedures and obligations under Applicable Law governing the award and execution of this Agreement. City warrants that the funds required for all Compensation and other payments required under this Agreement for the first twelve ( 12) months of the Term shall be available through User Fees the City reasonably anticipates it will collect in that time.
c) No Conflict. The execution and delivery by City of this Agreement, and the performance by City of its obligations under this Agreement, do not ( i) conflict with, violate, or result in a material breach of law, regulation, charter, ordinance or bylaw applicable to City; or( ii) conflict with, violate or result in the material breach of any term or condition of any order, judgment, decree, agreement or other instrument to which City is a party; or( iii) contravene or result in any breach of or creation of any Lien on any property of City under any indenture, mortgage, loan agreement, lease or other agreement or instrument to which City is a party or by which City or any of its properties are bound. d) No Litigation. City has no written notice of any action, lawsuit, or proceeding before any court or Governmental Agency that is pending or threatened in which an unfavorable decision could reasonably be expected to have a Material Adverse Effect. e) No Event of Default. No condition exists that constitutes, or with the giving of notice or lapse of time or both would constitute an event of default by City under any indenture, mortgage, deed of trust, lease, bond issue, conditional sales contract, loan or credit arrangement or other material agreement or instrument to which City is a party or by which City or any of its properties or assets may be bound, which individually or in the aggregate with all such other events of default could reasonably be expected to have a Material Adverse Effect. City is not in default with respect to any Governmental Approval which default would have a Material Adverse Effect. f) Title. City owns fee simple title without material encumbrances to the Facility and the Site and has the power to grant VWWOS the Site License.
g) Taxes. As of the Contract Date, all real property, personal property, documentary, sales or use taxes relating to the Facility, the Site and the grant of the Site License to VWWOS which are due and payable have been paid in full, or adequate provision for payment has been made by City.
City makes no representation whether the grant of the Facility Site License to VWWOS may or will expose VWWOS to payment of property taxes to the County of San Joaquin or any other Government Agency and, VWWOS agrees to be liable for, and to timely pay any such taxes; provided, however, that in the event the payment of any taxes are required by VWWOS during the Term, the Service Fee shall be increased by the amount of such taxes. h) Environmental Conditions. The Site has been, and continues to be, in material compliance with all Environmental Laws. There have been no past, and there are not pending or threatened, claims, complaints, notices or requests for information received by the City with respect to any alleged violation of any Environmental Law at or relating to the Facility or Site or with respect to any potential liabilities with respect to Environmental Conditions at, on, in, under or affecting the Facility or the Site. The City is unaware of any Environmental Conditions that exist at on or under the Site that would give rise to liability under any Environmental Law. i) Land Use and Zoning. The Facility and the Site comply with the City' s General Plan, zoning ordinance, and other land use regulations of the City with respect to the Facility and the Site and any other Applicable law relating to land use or zoning.
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Article 11. INSURANCE
Section 11. 1 Required Insurance
Starting on and after the Effective Date, VWWOS shall, at its own expense, secure and maintain in effect during the Term the following insurance:
a) Workers Compensation Insurance in accordance with Applicable Law. b) Commercial General Liability Insurance that names the City Indemnified Parties as additional insureds, including contractual liability coverage for amounts of$ 10 million per occurrence for death, bodily injury and property damage. The policy shall contain no endorsements limiting coverage for explosion, collapse or underground hazard, products and competed operations, or contractual liability.
c) Commercial Automobile Liability Coverage including non-owned automobile liability coverage, with a coverage limit of$ 5 million per accident for death, bodily injury and property damage. The City Indemnified Parties shall be named as additional insureds on this policy. d) Environmental Impairment Liability written on a form acceptable to City providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be$ 20 million per claim and aggregate. The City Indemnified Parties shall be named as additional insureds on this policy.
e) ( 1) All insurance in support of this Agreement shall be provided by VWWOS by and through its corporate insurance program. All indicated limits are merely minimum amounts of coverages to be available for the benefit of the City under this Agreement and the Parties acknowledge that VWWOS maintains coverage in amounts greater than such limits. Nothing herein is intended to ( i) make available to the City any such insurance other than as set forth in this Agreement; or( ii) limit the amount of insurance maintained by VWWOS in its independent judgment, in compliance with Prudent Industry Practices, or otherwise necessary in VWWOS' s view for the proper management of the risks intrinsic in this Agreement and otherwise in its business. The VWWOS- provided insurance shall be primary and non- contributory to any insurance held by a City Indemnified Party. All coverage described and the limits indicated are in excess of the costs of defense. All insurance coverage provided pursuant to this Agreement shall not prohibit the VWWOS Indemnified Parties from waiving the right of subrogation prior to a loss. Each Party hereby waives all rights of subrogation against the other Party. All insurance coverage and forms provided in support of this Agreement are subject to review and approval by City for compliance with the standards of this Agreement and, in the event of dispute with respect to the adequacy of any coverage or form, the Parties shall resolve that dispute pursuant to Article 15 of this Agreement. Notwithstanding the foregoing, the Environmental Impairment Liability insurance may be written by a non- admitted insurer. 2) In the event any insurance provided by this Agreement is eroded by claims or otherwise by more than fifty percent ( 50%) from the initial policy limits, VWWOS will notify the City of that fact in writing and meet and confer in good faith regarding steps to be taken to ensure that the coverages required by this Agreement remain available for the benefit of the City. 3) The cost of insurance provided by VWWOS under this Agreement provided for the protection of the City and VWWOS shall be the" Premium." The Premium shall be the total and only payment by the City for all insurance, losses and cost of defense and no adjustment shall be made for actual loss experience. Premiums shall include the sum of" fixed costs premiums," " limited expected losses," " limited allocated loss adjustment expense," and "limited claims service fees," all as defined below. " Fixed costs premiums" shall mean actual premiums paid for the applicable policy period to insurers for the required insurance under this Agreement.
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AMENDED AND RESTATED WASTEWATER PLANT OPERATION AND MAINTENANCE AGREEMENT between VEOLIA WATER WEST OPERATING SERVICES, INC. and
CITY OF LATHROP, CALIFORNIA
Fixed costs premiums for all required lines other than workers compensation will be based on the percentage of revenues that VWWOS services under this Agreement for which insurance is provided bears to total revenues of VWWOS for the applicable policy period. As respects workers compensation, the premium is based on the percentage of payroll that this project bears to total payroll of VWWOS during the applicable policy period. Such premium shall include surplus lines fees and other taxes as may be applicable. " Limited Expected Losses" shall be a non- adjustable loss fund for the applicable policy period to be computed based on the percentage of revenues that this project bears to the total revenues of VWWOS multiplied by the total allocated corporate loss funds of VWWOS. " Limited Allocated Loss Adjustment Expenses" shall be a non- adjustable amount for the applicable policy period to be computed based on the percentage of revenues that this project bears to the total revenues of VWWOS multiplied by the total allocated loss adjustment expenses of VWWOS. As used herein, allocated loss adjustment expenses include estimated expenses for fees chargeable to a specific claim filed in connection with legal and medical services and necessary expenses of a third- party client approval. " Limited Claims Services Fees" shall mean a non- adjustable amount to be computed based on the percentage of revenues that this project bears to the total revenues of VWWOS multiplied by the total allocated claims services fee for VWWOS. The City acknowledges and agrees that any information provided to the City by VWWOS, or derived by the City from such information provided by VWWOS, to substantiate the Premium hereunder is Confidential Information subject to the provisions of Article 9 of this Agreement and shall not be divulged to any third parties without the express written consent of VWWOS, in its sole and absolute discretion, and need not be disclosed under the Public Records Act by virtue of Government Code Sections 6254( k) and 6254. 15. City further agrees that VWWOS may make data regarding its non- public, internal costaccounting and revenue information available for inspection by the City or its agents, but not copying or retention, at a location in California specified by VWWOS.
Section 11. 2 Additional Insurance Requirements
All insurance companies underwriting the insurance policies required by this Article must be California admitted insurers with an A. M. Best rating of not less than A:VII. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, terminated or cancelled and shall not be reduced in coverage or limits except after thirty( 30) days prior written notice to the City. If excess or umbrella liability insurance is used to meet limit requirements, that excess or umbrella policy shall provide coverage at least as broad as specified by this Agreement for the underlying coverages and shall include a drop- down provision providing primary coverage above any deductible or self- insured retention for liability not covered by primary insurance but covered by the excess or umbrella policy. Coverage shall be provided on a" pay on behalf" basis, with defense costs payable in addition to policy limits. VWWOS' s obligations to provide insurance under this Article shall not diminish in any respect City obligations to the VWWOS Indemnified Parties under Article 12.
Section 11. 3 Certificates of Insurance
VWWOS shall provide City certificates evidencing such insurance on or before the Effective Date and annually thereafter.
Section 11. 4 O& M Performance and Payment Bond
During the term of this Agreement, VWWOS will maintain a performance and payment bond in the amount of one ( 1) year's Service Fee securing faithful performance by VWWOS of its obligations under this Agreement with respect to operation, maintenance, repair and replacement of the Facility and the payment by VWWOS of subcontractors and suppliers for work and materials in the operation, maintenance, repair and replacement of the Facility.