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:
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.
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.
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
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.
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
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"
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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.
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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 CITY OF LATHROP — PEREGRINE TECHNOLOGIES, INC.
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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 CITY OF LATHROP — PEREGRINE TECHNOLOGIES, INC.
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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.
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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.
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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
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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.
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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.
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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.
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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
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:
1 Proprietary and Confidential
Peregrine February 26, 2023
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
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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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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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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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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
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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
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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
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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
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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
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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.
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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.
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