THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - PRIMARY AND NON-CONTRIBUTORY - PUBLIC ENTITIES This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE FORM
SCHEDULE
Any person or organization that you are required to include on this policy, under written contract or agreement currently in effect or becoming effective during the term of this policy, applicable under the terms and conditions of this endorsement, and consistent with the description below that the parties intend.
A. SECTION II – WHO IS AN INSURED is amended to include:
4. Any public entity as an additional insured, and the officers, officials, employees, agents and/or volunteers of that public entity, as applicable, who may be named in the Schedule above, when you have agreed in a written contract or written agreement presently in effect or becoming effective during the term of this policy, that such public entity and/or its officers, officials, employees, agents and/or volunteers be added as an additional insured(s) on your policy, but only with respect to liability for “bodily injury”, “property damage” or “personal and advertising injury” caused, in whole or in part, by:
a. Your negligent acts or omissions; or
b. The negligent acts or omissions of those acting on your behalf; in the performance of your ongoing operations.
No such public entity or individual is an additional insured for liability arising out of the sole negligence by that public entity or its designated individuals. The additional insured status will not be afforded with respect to liability arising out of or related to your activities as a real estate manager for that person or organization.
B. SECTION III – LIMITS OF INSURANCE is amended to include:
8. The limits of insurance applicable to the public entity and applicable individuals identified as an additional insured(s) pursuant to Provision A.4. above, are those specified in the written contract between you and that public entity, or the limits available under this policy, whichever are less. These limits are part of and not in addition to the limits of insurance under this policy.
C. With respect to the insurance provided to the additional insured(s), Condition 4. Other Insurance of SECTION IV – COMMERCIAL GENERAL LIABILITY CONDITIONS is replaced by the following:
4. Other Insurance
a. Primary Insurance
This insurance is primary if you have agreed in a written contract or written agreement:
(1) That this insurance be primary. If other insurance is also primary, we will share with all that other insurance as described in c. below; or
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NIA-061B GL 01 25 Includes copyrighted material of Insurance Services Office, Inc. with its permission.
(2) The coverage afforded by this insurance is primary and non-contributory with the additional insured(s)’ own insurance.
Paragraphs (1) and (2) do not apply to other insurance to which the additional insured(s) has been added as an additional insured or to other insurance described in paragraph b. below. b. Excess Insurance
This insurance is excess over:
1. Any of the other insurance, whether primary, excess, contingent or on any other basis:
(a) That is Fire, Extended Coverage, Builder’s Risk, Installation Risk or similar coverage for “your work”;
(b) That is fire, lightning, or explosion insurance for premises rented to you or temporarily occupied by you with permission of the owner;
(c) That is insurance purchased by you to cover your liability as a tenant for “property damage” to premises temporarily occupied by you with permission of the owner; or (d) If the loss arises out of the maintenance or use of aircraft, “autos” or watercraft to the extent not subject to Exclusion g. of SECTION I – COVERAGE A – BODILY INJURY AND PROPERTY DAMAGE.
(e) Any other insurance available to an additional insured(s) under this Endorsement covering liability for damages which are subject to this endorsement and for which the additional insured(s) has been added as an additional insured by that other insurance. (1) When this insurance is excess, we will have no duty under Coverages A or B to defend the additional insured(s) against any “suit” if any other insurer has a duty to defend the additional insured(s) against that “suit”. If no other insurer defends, we will undertake to do so, but we will be entitled to the additional insured(s)’ rights against all those other insurers. (2) When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of:
(a) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and
(b) The total of all deductible and self-insured amounts under all that other insurance. (3) We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Methods of Sharing
If all of the other insurance available to the additional insured(s) permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first.
If any other the other insurance available to the additional insured(s) does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer’s share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 1270
City of Rialto
Legislation Text
File #: 26-0484, Version: 1, Agenda #: TAB5
For City Council Meeting July 28, 2026
TO: Honorable Mayor and City Council
FROM: Tanya Williams, City Manager
AUTHOR: Christina Taylor, Community Development Director Request the City Council to: (1) Consider and Approve a Purchase and Sale Agreement with TLC Properties, LLC for the Purchase of Easements for the Location and Maintenance of Existing Billboards on Properties with Assessor’s Parcel Nos. 0132-102-13, 0264-152-54, and 1119-241-28; (2) Consider Terminating Existing Billboard Lease Agreements Related Thereto; (3) Consider Making Findings that this Action is not Subject to CEQA Pursuant to CEQA Guidelines Section 15378(b)(5); and (4) Authorize the City Manager or Their Designee to Finalize Negotiation of and Execute the Purchase and Sale Agreement, Including, but not Limited to, Non-substantive Modifications/Amendments, and All Related Documents Necessary to Effectuate and/or Implement the Agreement on Behalf of the City, Subject to City Attorney’s Approval as to Form. (ACTION)
RECOMMENDATION
Staff recommends that the City Council:
1) Approve a Purchase and Sale Agreement with TLC Properties, LLC for the Purchase of Easements for the location and maintenance of existing billboards on properties with Assessor’s Parcel Nos. 0132-102-13, 0264-152-54, and 1119-241-28 in which the TLC Properties, LLC will pay of $3,872,987.00 to the City for such easements; 2) Authorize the City Manager or Their Designee to Finalize Negotiation of and Execute the Purchase and Sale Agreement, including, but not limited to, non-substantive modifications/amendments, and All Related Documents Necessary to effectuate and/or implement the Agreement on behalf of the City, subject to City Attorney’s approval as to form; 3) Authorize the City Manager to terminate Four Existing Billboard Lease Agreements relating to Assessor’s Parcel Nos. 0132-102-13, 0264-152-54, and 1119-241-28 in a manner consistent with the Purchase and Sale Agreement and related documents, subject to City Attorney’s approval as to form; and
4) Determine that this action is not subject to CEQA pursuant to CEQA Guidelines Section 15378 (b)(5).
BACKGROUND
The City currently owns (or has property interests in) properties with Assessor’s Parcel Nos. 0132- 102-13 and 0264-152-54 (“Properties”) with an existing billboard on each property. The City also currently owns a “Sign Location Easement” and a related “Maintenance, Utility, Access, Visibility, and Overhang Easement” on the real property owned by Travel Center Realty LLC, located at 2325 Sierra Lakes Parkway, San Bernardino, CA 92336 with APN 1119-241-28 (“Travel Center City of Rialto Page 1 of 3 Printed on 7/23/2026
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File #: 26-0484, Version: 1, Agenda #: TAB5
Sierra Lakes Parkway, San Bernardino, CA 92336 with APN 1119-241-28 (“Travel Center Easement”) with 2 existing billboards located on the Travel Center Easement.
Lamar Central Outdoor, LLC and City previously entered into four (4) leases concerning the placement of advertising billboards on the Property and within the Travel Center Easement (“Billboard Leases”).
As part of the City's ongoing commitment to responsible fiscal stewardship, staff continually evaluates opportunities to strategically monetize underutilized City assets that are not essential to the delivery of municipal services or planned public improvements. Following negotiations, TLC Properties, LLC has offered to purchase easements from the City for the location of the four billboard locations mentioned above. The Purchase and Sale Agreement provides for a purchase price of $3,872,987.
The proposed Purchase and Sale Agreement provides an opportunity for the City to strategically monetize underutilized real property interests associated with four existing billboard locations. Under the agreement, the City will convey two permanent billboard easements over Properties and assign the Travel Center Easement to TLC Properties, LLC, (the easement being assigned is not located on City property) while simultaneously requiring the termination of the City's existing billboard lease agreements with Lamar Central Outdoor, LLC. Under the Purchase and Sale Agreement, TLC Properties, LLC is only acquiring easement interests and not the underlying property.
In exchange, the City will receive $3,872,987 in one-time revenue. The transaction allows the City to realize the current value of these easement interests while transferring future ownership and maintenance responsibilities to the purchaser. The easement documents preserve protections for the City by maintaining restrictions on advertising content, requiring indemnification and insurance, and providing public service advertising opportunities.
ANALYSIS/DISCUSSION
As stated above, the Purchase and Sale Agreement provides for the conveyance of two perpetual easements over City-owned property, assignment of the City's existing Travel Center Easement, termination of Lamar Central Outdoor, LLC’s four existing billboard leases, and payment of $3,872,987 to the City. The easement documents retain important protections including advertising restrictions, indemnification, insurance requirements, and public service advertising opportunities.
The transaction converts underutilized City property interests into immediate one-time revenue while eliminating future administrative responsibilities associated with the billboard leases. However, the following major items are still pending:
1. Access easement for the billboard located at Ayala Drive and Renaissance Parkway.
Current access to both the billboard and the adjacent City facility appears to run through the Southwest. City staff and TLC Properties are currently working to ensure that they continue to have access. Once this issue is resolved, it will be included in the easement documents.
2. Subordination and Non-Disturbance Agreement. Relating to the billboard located at Ayala Drive and Renaissance Parkway, the title report indicates that there is a Deed of Trust relating to a loan with Lewis-Hillwood Rialto Company, LLC. The purpose of this Subordination and Non-Disturbance Agreement would be to ensure that TLC Properties’ easement would not be affected due to the loan. However, City staff and TLC Properties are working to determine the current status of this loan and whether this agreement is needed. If it is, it will be included as a part of the Purchase and Sale City of Rialto Page 2 of 3 Printed on 7/23/2026
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File #: 26-0484, Version: 1, Agenda #: TAB5
agreement is needed. If it is, it will be included as a part of the Purchase and Sale Agreement’s requirements.
3. Existing Permits. The City and TLC Properties, LLC are currently in the process of clarifying the approved permits and the conditions of approval relating to the 4 billboards and whether the Purchase and Sale Agreement (specifically the easementrelated documents) will need to account for the permits and any potential mechanisms to address any future City concerns related to their use of the easements.
Because of these pending items, the approval of the Purchase and Sale Agreement includes an authorization for the City Manager to finalize the negotiation of Purchase and Sale Agreement before executing.
ENVIRONMENTAL IMPACT
The proposed action is not a Project under CEQA pursuant to CEQA Guidelines Section 15378(b)(5) because it consists of an organizational and administrative activity that will not result in a direct or indirect physical change in the environment.
GENERAL PLAN CONSISTENCY
The proposed action is consistent with the City's General Plan by promoting sound fiscal management, responsible stewardship of public assets, and long-term financial sustainability.
LEGAL REVIEW
The City Attorney's Office has reviewed the Purchase and Sale Agreement, its attachments, and related documents.
FINANCIAL IMPACT
Operating Budget Impact
The proposed transaction will generate $3,872,987 in one-time revenue through the conveyance of permanent easement rights and assignment of an existing easement. Net proceeds, less customary escrow and closing costs, will be deposited into the appropriate City fund as determined by the Finance Department. No new appropriation is required.
Capital Improvement Budget Impact
There is no impact to the Capital Improvement Budget.
Licensing
This action does not require a business license
ATTACHMENTS
1. Purchase and Sale Agreement
City of Rialto Page 3 of 3 Printed on 7/23/2026
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is dated as of __________ ____, 2026 (the “Effective Date”), by and between the CITY OF RIALTO, a municipal corporation (“Seller”), and TLC PROPERTIES, LLC, a Louisiana limited liability company (“Purchaser”).
RECITALS
A. Seller owns certain property in the City of Rialto with APNs 0132-102-13 and 0264-152-54 (“Property”).
B. Seller currently owns a “Sign Location Easement” and a related “Maintenance, Utility, Access, Visibility, and Overhang Easement” on the real property owned by Travel Center Realty LLC, located at 2325 Sierra Lakes Parkway, San Bernardino, CA 92336 with APN 1119- 241-28 as further defined and described in that certain Corrective Deed which is recorded as DOC #2022-0215733 (“Travel Center Easement”).
C. Lamar Central Outdoor, LLC and Seller entered into four (4) leases concerning the placement of advertising billboards on the Property and within the Travel Center Easement (“Billboard Leases”).
D. Purchaser desires to acquire certain easements over the Property, as described in Exhibits A-1 and A-2, and acquire the Travel Center Easement as described in Exhibit A-3.
E. Seller desires to sell and convey, and Purchaser desires to buy and acquire, the following (collectively, the “Easements”):
1. New Easements: Grants of easements in gross to Purchaser over the Property in substantially the form as provided in Exhibits A-1 and A-2 (“New Easements”); and
2. Assigned Easements: Assignment of the Travel Center Easement granted to Seller located on the real property owned by Travel Center Realty LLC, located at 2325 Sierra Lakes Parkway, San Bernardino, CA 92336 (APN 1119-241-28) in substantially the form as provided in Exhibit A-3 (“Easements Assignment”).
F. The parties, therefore, desire to terminate the Billboard Leases concurrent with the Closing (as defined in Section 7).
NOW THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, the parties agree to the foregoing and as follows:
1. RECITALS. The recitals set forth above are incorporated herein by this reference.
2. PURCHASE AND SALE. In consideration of their mutual covenants set forth in this Agreement, Sellers agrees to sell to Purchaser and Purchaser agrees to purchase from Seller the Easements for the Purchase Price (defined in Section 3), subject to and on the terms and 1274
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conditions set forth herein and subject to any valid restrictions, servitudes of record and zoning ordinances affecting the property. Purchaser is acquiring the Easements in an AS-IS condition.
3. PURCHASE PRICE. The purchase price for the Easements is THREE MILLION
EIGHT HUNDRED SEVENTY-TWO THOUSAND NINE HUNDRED EIGHTY-SEVEN dollars ($3,872,987.00) (“Purchase Price”). Upon execution of this Agreement, Purchaser shall deposit the sum of $10,000 (“Deposit”) with Tower Title Company at its office located at 225 Newman Avenue, East Providence, RI with Jackie Dyer as the designated escrow officer (telephone no.: 844-944-2876 (the “Escrow Holder”). Balance of the Purchase Price shall be sent via wire transfer to Tower Title to be deposited with escrow at or before Closing . The Deposit shall become non-refundable only upon expiration of the Contingency Period (as defined in Section 5) and shall be applied to the purchase price at Closing (as defined in Section 7).
Notwithstanding the foregoing, if Seller defaults on this Agreement at any time prior to Closing, the Deposit shall become refundable to Purchaser regardless of the expiration of the Contingency Period.
4. PROPERTY CONDITION. Seller agrees to maintain the Property in present condition as of the Effective Date until Closing (as defined in Section 7).
5. PROPERTY INSPECTION AND CONTINGENCY PERIOD. At Purchaser’s sole cost and expense and subject to this Section below, Purchaser shall FORTY FIVE (45) days after the Effective Date of this Agreement (“Contingency Period”) to enter upon the Property to inspect, investigate and conduct tests upon the Property at its sole cost and expense, including, without limitation, survey, zoning, title, existing leases, release of current mortgage and any liens, platting, subdivision and other aspects of the property as it relates to Purchaser's intended use.
Purchaser shall keep the Property free and clear of any and all liens related to Purchaser’s inspections, tests and investigations. If Purchaser is not satisfied with the results of these inspections or for any reason whatsoever, then Purchaser, in Purchaser’s sole discretion, reserves the right to terminate this Agreement during the Contingency Period by providing Seller with timely written or e-mail notice of termination. All entry onto and inspections of the Property shall be subject to the following:
5.1 Purchaser shall give Seller not less than twenty-four (24) hours prior notice of any entry onto the Property by Purchaser or by Purchaser’s agents, employees, consultants and contractors (collectively “Purchaser’s Representatives”).
5.2 If the Property is physically damaged by Purchaser or any of Purchaser’s Representatives, then Purchaser, at Purchaser’s sole cost and expense, shall promptly repair such damage and restore the Property to its condition prior to such damage.
5.3 Purchaser, at Purchaser’s sole cost and expense, has the right to apply for all applicable permits and governmental approval necessary for the construction and maintenance of an outdoor advertising structure.
5.4 Purchaser shall be responsible for the costs and expenses of having the Property surveyed such that a sketch and legal description can be created to properly locate and identify the New Easements.
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6. WARRANTIES AND REPRESENTATIONS.
6.1 Seller.
a. Seller makes no warranty or representation other than that it is the owner of the Property and has the authority to convey the New Easements as described. b. Seller makes no warranty or representation as to the condition of the Easements, including, without limitation, the presence of Hazardous Materials affecting the Property or the Travel Center Easement. As used in this Agreement, "Hazardous Materials" shall mean and include the following, including mixtures thereof: any hazardous substance, pollutant, contaminant, waste, by-product or constituent regulated under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.; oil and petroleum products and natural gas, natural gas liquids, liquefied natural gas and synthetic gas usable for fuel; pesticides; asbestos and asbestos-containing materials, PCBs and other substances regulated under the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; source material, special nuclear material, byproduct material and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act of 1954, 42 U.S.C. Section 2011 et seq. or the Nuclear Waste Policy Act of 1982, 42 U.S.C.10101 et seq.; chemicals subject to the OSHA Hazard Communication Standard, 29 C.F.R. Section 1910.1200 et seq.; mold; industrial process and pollution control wastes, whether or not hazardous within the meaning of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; and any other substance, waste or material which has been determined to be injurious to health, public safety or the environment.
6.2 Purchaser.
a. Purchaser is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Louisiana. b. This Agreement (i) is and at the time of Closing will be duly authorized, executed and delivered by Purchaser, (ii) is and at the time of Closing will be legal, valid and binding obligations of Purchaser, and (iii) does not and at the time of Closing will not violate or conflict with any provision of any agreement or judicial order to which Purchaser is a party or to which Purchaser is subject.
c. All other documents executed by Purchaser which are to be delivered to Seller at Closing (i) are or at the time of Closing will be duly authorized, executed and delivered by Purchaser, (ii) are or at the time of Closing will be legal, valid and binding obligations of Purchaser, and (iii) do not and at the time of Closing will not violate or conflict with any provision of any agreement or judicial order to which Purchaser is a party or to which Purchaser is subject. No consent or approval is required for the execution and delivery of this Agreement by Purchaser or the performance by Purchaser of its obligations hereunder other than those already obtained by Purchaser.
6.3 The warranties and representations of Purchaser set forth in this Section 6.2 shall survive Closing.
7. CLOSING.
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7.1 The Closing shall take place in escrow with the Escrow Holder by or before September 13, 2026, unless an alternative date or method is otherwise agreed to by Purchaser and Seller (the “Closing Date,” or “Closing”). Any extension shall be agreed upon and signed by Seller and Purchaser.
7.2 Closing expenses will be paid for by Purchaser and Purchaser shall cause any and all documents to be prepared in draft for review and approval by Seller’s counsel. Any costs required to make title merchantable, including all necessary tax (pro-rata for the year), mortgage and release certificates and cancellations, if any, shall be paid by Seller. Seller’s title shall be merchantable and free of all liens and encumbrances except those which can be satisfied at Closing. In the event the title is not valid or merchantable and cannot be made so at a reasonable expense, this Agreement may be terminated at the option of the Purchaser who reserves the right to demand the return of the deposit. The Parties shall each bear their own attorney’s fees.
7.3 In sufficient time prior thereto to allow Closing to occur on the Closing Date, Seller shall cause to be delivered into Escrow:
a. The New Easements executed by Seller.
b. The Easements Assignment executed by Seller.
c. An agreement terminating the Billboard Leases executed by Seller. d. Such additional instruments or documents reasonably required by Escrow Holder in order to consummate the purchase and sale of the Easements in accordance with the terms and conditions of this Agreement, to the extent consistent with this Agreement.
7.4 Prior to Closing, in sufficient time prior thereto to allow Closing to occur on the Closing Date, Purchaser shall cause to be delivered into Escrow the following:
a. Documentation showing that Purchaser has initiated wire transfer to Seller of funds in the amount of the Purchase Price less the Deposit. b. An agreement terminating the Billboard Leases executed by Seller and Lamar Central Outdoor, LLC .
c. Such additional instruments or documents reasonably required in order to consummate the purchase and sale of the Property in accordance with the terms and conditions of this Agreement, to the extent consistent with this Agreement, including without limitation escrow instructions.
7.5 If the Closing does not occur by the Closing Date (including any extension thereof), then either party may elect to terminate this Agreement and cancel Escrow by giving written notice of such termination and cancellation to the other party. In the event of a termination of this Agreement, Purchaser shall pay the cost of cancellation of the Escrow. The termination of this Agreement and cancellation of the Escrow shall be without prejudice to whatever legal rights, as said rights may be limited by the terms contained in this Agreement, that Purchaser or Seller may have against each other arising out of this Agreement and the Escrow, which rights shall 1277
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survive the termination of this Agreement. As used in this Agreement, “Surviving Obligations” shall mean all obligations of Buyer or Seller which are expressly stated in this Agreement to survive Close of Escrow, Closing or other termination of this Agreement.
8. CONDITIONS OF CLOSING.
8.1 Purchaser’s Conditions. In addition to all other conditions to the completion of the transaction described in this Agreement, Seller and Purchaser agree that the Closing of the purchase and sale contemplated by this Agreement is subject to satisfaction, approval or waiver by Purchaser of the matters specified in this Section 8.1, below, which conditions are solely for the benefit of Buyer and can be unilaterally waived by Buyer:
a. If applicable, Purchaser has acquired all necessary permits and governmental approvals necessary for the use of the Easements contemplated in Exhibits A-1, A2, and A-3. b. If applicable, Purchaser has confirmed that the Easements are zoned under a zoning classification which will allow Purchaser to use the Easements as contemplated by Exhibits A-1, A-2, and A-3.
c. If applicable, Purchaser has confirmed that the uses contemplated by the Easements are in compliance with, and are being operated in compliance with all applicable zoning, land use, and building codes and ordinances and maybe so operated after Closing without any zoning change or variance.
d. Seller has provided Purchaser with wire instructions for transfer of the Purchase Price less the Deposit to Seller.
e. Seller has executed and deposited the New Easements (in the form provided in Exhibits A-1 and A-2) with Escrow Holder.
f. Seller has executed and deposited the Easements Assignment (in the form provided in Exhibit A-3) with Escrow Holder.
g. Seller has executed and deposited an agreement terminating the Billboard Leases where the termination of the Billboard Leases shall be effective on the Closing Date.
h. Seller shall not be in material default of Seller’s obligations under this Agreement, and all of Seller’s express representations and warranties set forth in this Agreement shall continue to be true, correct and unchanged in all material respects as of the Closing.
8.2 Sellers’ Conditions. In addition to all other conditions to the completion of the transaction described in this Agreement, Seller and Purchaser agree that the Closing of the sale and purchase contemplated by this Agreement is subject to satisfaction, approval or waiver by Seller of the matters specified in this Section 8.2, below, which conditions are solely for the benefit of Seller and can be unilaterally waived by Seller:
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a. Purchaser has deposited the Deposit with the Escrow Holder. b. Purchaser has initiated wire transfer to Seller of funds in the amount of the Purchase Price less the Deposit.
c. Purchaser has deposited an agreement terminating the Billboard Leases which is executed by Lamar Central Outdoor, LLC and where the termination of the Billboard Leases shall be effective on the Closing Date. d. Purchaser shall not be in material default of Purchaser’s obligations under this Agreement, and that all of Purchaser’s express representations and warranties set forth in this Agreement continue to be true, correct and unchanged in all materials respects as of the Closing.
9. CLOSE OF ESCROW. Upon the Closing, Seller and Purchaser shall instruct Escrow Holder to deliver all funds, instruments and documents as follows:
9.1 Escrow Holder shall be instructed to deliver to Seller the following:
a. The Deposit; and
b. A copy of all documents deposited into Escrow
9.2 Escrow Holder shall be instructed to deliver to Purchaser the following:
a. Executed New Easements;
b. Executed Easements Assignments; and
c. A copy of all documents deposited into Escrow.
9.3 Escrow Holder shall be designated the “real estate reporting person” for purposes of Section 6045 of Title 26 of the United States Code and Treasury Regulation 1.6045-4 and any instructions or settlement statement prepared by Escrow Holder shall so provide. Upon the consummation of the transaction contemplated by this Agreement, Escrow Holder shall be directed to file a Form 1099 information return and send the statement to Seller as required under the aforementioned statute and regulation.
10. CONDEMNATION. If between the date of this Agreement and the Closing Date any condemnation or eminent domain proceedings are initiated which would result in the taking of any portion of the Property, then Purchaser may terminate this Agreement by written notice to Seller. Seller shall promptly notify Purchaser in writing upon receiving written notice of the commencement or occurrence of any condemnation or eminent domain proceedings affecting the Property. If such proceedings are initiated for the taking of any part of the Property, Purchaser shall then notify Seller, within ten (10) business days after Purchaser’s receipt of Seller’s notice (but in no event later than 24 hours prior to the Closing Date), whether or not Purchaser elects to terminate this Agreement. If Purchaser elects not to terminate this Agreement or fails to make an election within such ten (10) business day period or twenty-four (24) hours prior to the Closing 1279
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Date, whichever is earlier, then Purchaser shall be deemed to have elected to proceed with the Closing without any reduction to the Purchase Price, in which event Seller shall assign to Purchaser at Closing all of Seller’s right, title and interest in and to any award made in connection with such condemnation or eminent domain proceedings, or if such payment has been received by Seller such payment shall be credited to Purchaser at the Closing, and Closing shall be delayed, if necessary, until the later to occur of (i) the Closing Date, or (ii) ten (10) days after the expiration of the ten (10) business day period. If this Agreement is terminated in accordance with this Section 13, Seller and Purchaser shall thereupon be released from all further obligations under this Agreement other than the Surviving Obligations.
11. OCCUPANCY AND USE. The structure(s) and any replacement outdoor advertising structure(s) placed upon the New Easements, and any improvements to the structure(s) or any replacement structure(s), will remain the property of Purchaser.
12. RISK OF LOSS. If prior to the Closing, the Property is materially damaged or destroyed, Purchaser has the right, exercisable by giving written notice to Seller within ten (10) days after receiving written notice of such damage or destruction (but in any event no later than the Closing Date), either (A) to terminate this Agreement, in which case neither party shall have any further rights or obligations under this Agreement other than the Surviving Obligations, or (B) to accept the Property in its then condition and to proceed with the Closing.
13. PRORATIONS.
13.1 Subject to Section 13.2 below, all revenues and expenses of the Property, including without limitation real property taxes, special taxes, assessments (if any) shall be prorated and apportioned between Purchaser and Seller as of 12:01 a.m. on the Closing Date, so that Seller bears all expenses with respect to the Easements, and has the benefit of all income with respect to the Easements, through and including the date immediately preceding the Closing Date, and Purchaser bears all expenses with respect to the Easements, and has the benefit of all income with respect to the Easements on and after the Closing Date. If any portion of the Easements is affected by any assessment or other charge, whether for taxes or bonds, or interest thereon, which is or may become payable in installments, and an installment payment of such assessment is then a lien due and payable as part of the annual ad valorem property tax bill received for the Easements, then such installment shall be prorated as of the Closing Date; and if any such assessment or other charge is not payable in installments or are not billed as part of the annual ad valorem property tax bill for the Easements, shall be paid in full (if any) by Seller at the Closing. Notwithstanding the foregoing, Seller shall be solely responsible for clearing all possessory interest taxes from the Easements not later than the Closing. Any necessary adjustment due either party on receipt of a supplemental tax bill will be made by the parties outside of this Escrow within the time required by this Section 15 below, which obligation shall survive the Closing.
13.2 Subject to Section 13.1 above, if any of the items to be prorated as of Closing cannot be finally determined as of Closing, the prorations shall be made at Closing based on the last available information, and post-closing adjustments between Purchaser and Seller shall be made within twenty (20) days after the date that the actual amounts are determined, and if payment is not made within this twenty (20) day period the party owing such sums shall pay interest thereon, at the rate of ten percent (10%) per annum, from date of delivery of the bill to the 1280
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non-paying party to the date of payment. This Section 13.2 shall survive the Closing.
14. TITLE CHARGES; OTHER CLOSING COSTS. If this transaction closes as provided in this Agreement, (i) Purchaser shall pay the premium attributable to any title policy, the escrow fees, transfer taxes, and recording fees for the recording of the Easements; (ii) each party shall pay their respective legal fees and administrative costs.
15. AUTHORIZATION. Seller’s City Manager is authorized to, on behalf of Seller, carry out all actions necessary and execute all documents and amendments relating to and in furtherance of this Agreement, including, without limitation, any extensions of the Closing Date.
16. DEFAULT.
16.1 Default by Purchaser. If the Closing fails to occur solely because of Purchaser’s default under this Agreement, Seller may terminate this Agreement and Seller and Purchaser shall thereupon be released from their respective obligations hereunder (other than surviving obligations).
16.2 Default by Seller. If the Closing fails to occur solely because of Seller’s default under this Agreement, Purchaser may terminate this Agreement and Seller and Purchaser shall thereupon be released from their respective obligations hereunder (other than surviving obligations), upon which termination Purchaser’s remedy shall be recovery of the Deposit.
17. NOTICE. All notices required or permitted hereunder shall be in writing and shall be served on the parties at the following addresses:
If to Seller If to Purchaser
City of Rialto
150 S. Palm Avenue
Rialto, CA 92376
Attention: CITY MANAGER
TLC Properties
5321 Corporate Boulevard
Baton Rouge, LA 70808
Attention: Ricky Raven
Any such notices shall be sent either (a) by certified mail, return receipt requested, postage prepaid in the U.S. mail, (b) by personal delivery, (c) by a nationally recognized overnight courier, (d) by telecopier, in which case notice shall be deemed delivered when the transmitting telecopier machine has confirmed that the notice has been completed or sent without error, provided that a copy is also sent out not later than one (1) business day thereafter by certified mail, personal delivery or overnight courier as described in (a), (b) or (c) immediately above, or (e) by email, provided that a copy is also sent out not later than one (1) business day thereafter by certified mail, personal delivery or overnight courier as described in (a), (b) or (c) immediately above. The above addresses may be changed by written notice to the other party; provided, however, that in no event shall a change of address include a P.O. Box. Notwithstanding this Section above, if a notice is sent in the manner required by this Section above, it shall be deemed given upon receipt, refusal of delivery by the intended recipient or failure of delivery due to incorrect delivery information provided by the intended recipient to the noticing party.
18. TIME OF ESSENCE. Time is of the essence of this Agreement. 1281
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19. GOVERNING LAW AND VENUE. This Agreement, and all the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement or the transaction(s) contemplated by it, shall be governed by, construed and enforced in accordance with the law of the State of California (excluding any conflict of laws provisions that would refer to and apply the substantive laws of another jurisdiction). Any suit or proceeding relating to this Agreement, including arbitration proceedings, shall be brought only in Santa Clara County, California. EACH OF THE PARTIES CONSENT TO THE EXCLUSIVE PERSONAL
JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, LOCATED IN SAN BERNARDINO COUNTY, CALIFORNIA.
20. COUNTERPARTS. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
21. ROLE OF BROKER/AGENTS. No BROKER/AGENTS have been retained by either party to this Agreement for this transaction.
22. CAPTIONS. The captions in this Agreement are inserted for convenience of reference and in no way define, describe or limit the scope or intent of this Agreement or any of the provisions hereof.
23. ASSIGNABILITY. Neither party shall assign this Agreement without the prior written consent of all parties.
24. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of both the parties hereto and their respective legal representatives, successors and permitted assigns.
25. MODIFICATIONS; WAIVER. No waiver, modification, amendment, discharge or change of this Agreement shall be valid unless the same is in writing and signed by both parties.
26. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the parties relating to the transactions contemplated hereby and all prior or contemporaneous agreements, understandings, representations or statements, oral or written, are superseded hereby.
27. PARTIAL INVALIDITY. Any provision of this Agreement which is void, unenforceable or invalid or the inclusion of which would adversely affect the validity, legality or enforcement of this Agreement shall be of no effect, but all the remaining provisions of this Agreement shall remain in full force and effect.
28. SUBMISSION OF AGREEMENT. The submission of this Agreement by one party to the other or their agents or attorneys for review will not be deemed an offer to sell or purchase the Property, and no agreement with respect to the purchase and sale of the Property will exist unless and until this Agreement is executed and delivered by both Seller and Buyer.
29. COMPUTATION OF TIME. In computing any period of time pursuant to this Agreement, the day of the act or event from which the designated period of time begins to run will not be included, and the last day of the period so computed will be included, unless it is a Saturday, 1282
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Sunday or legal holiday recognized as such in California, in which event the period runs until the end of the next day which is not a Saturday, Sunday or such legal holiday. As used in the Agreement, "business day" shall mean a day which is not a Saturday, Sunday or legal holiday recognized as such in California.
30. WAIVER. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
31. NUMBER AND GENDER; JOINT AND SEVERAL LIABILITY. When required by the context of this Agreement, each number (singular and plural) shall include all numbers, and each gender shall include all genders.
32. NEGOTIATED TERMS. Each party has had the opportunity to be advised by legal counsel and other professionals in connection with this Agreement, and each party has obtained such advice as each party deems appropriate. The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and that this Agreement shall not be construed in favor of or against any party by reason of the extent to which any party or its professionals participated in the preparation of this Agreement. In the event either party hereto now or hereafter shall consist of more than one person, firm, or corporation, then and in such event, all such persons, firms, or corporations shall be jointly and severally liable as such party under this Agreement.
33. SIGNATURES. Unless otherwise prohibited by law, the parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term "electronic copy of a signed contract" refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term "electronically signed contract" means a contract that is executed by applying an electronic signature using technology approved by Buyer.
34. RELATIONSHIP OF PARTIES. The parties acknowledge and agree that nothing set forth in this Agreement shall be deemed or construed to render the parties as affiliates, jointventurers, partners, associations, master-servant, agents, representatives, a joint enterprise, employer-employee, lender-borrower or contractor. Seller shall have no authority to employ any person as employee, agent or representative on behalf of Buyer for any purpose. Neither Seller nor any person using or involved in or participating in any actions or inactions relating to the Agreement, or the Property shall be deemed an affiliate, employee, representative or agent of Buyer, nor shall any such person or entity represent himself, herself or itself to others as an employee, affiliate, agent or representative of Buyer.
35. NO THIRD PARTY RIGHTS. The parties do not intend to create rights in, or to grant remedies to, any third party as a beneficiary of or to this Agreement or of any duty, covenant, obligation, or undertaking established herein. This Agreement shall not be construed as nor deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action herein for any cause whatsoever. 1283
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36. HEADINGS. The captions appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of such sections of this Agreement or in any way affect this Agreement. Any gender used shall be deemed to refer to any other gender more grammatically applicable to the party to whom such use of gender relates. The use of singular shall be deemed to include the plural and, conversely, the plural shall be deemed to include the singular.
37. CONFLICT OF INTEREST. Purchaser shall, and Purchaser shall ensure that Purchaser’s Representatives, comply with all applicable (i) requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code section 1090 et. seq., the California Political Reform Act (California Government Code section 87100 et. seq.) and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations section 18700 et. seq.). Failure to do so will constitute a material breach of this Agreement and is grounds for immediate termination of this Agreement by the Seller. A violation of Government Code 1090 may make this Agreement void on its face. In accepting this Agreement, Seller covenants, warrants, represents and agrees that it presently has no interest, and will not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of this Agreement. Purchaser further covenants that, in the performance of this Agreement, it will not employ any contractor, consultant or person having such an interest.
38. NON-DISCRIMINATION. Purchaser shall comply with all applicable Federal, State and local laws and regulations including the City of Rialto’s policies concerning nondiscrimination and equal opportunity in contracting. Such laws include but are not limited to the following: Title VII of the Civil Rights Act of 1964, as amended; Americans with Disabilities Act of 1990; The Rehabilitation Act of 1973 (Sections 503 and 504); California Fair Employment and Housing Act (Government Code Sections 12900 et sea.); California Labor Code sections 1101 and 1102. Seller shall not discriminate against any subcontractor, employee, or applicant for employment because of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental disability, physical disability, medical condition, political beliefs, organization affiliations, or marital status in the recruitment, selection for training including apprenticeship, hiring, employment, utilization, promotion, layoff, rates of pay or other forms of compensation.
Nor shall Purchaser or any of Purchaser’s Representatives discriminate in the fulfillment of any of the Agreement terms because of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental disability, physical disability, medical condition, political beliefs, organizational affiliations, or marital status.
39. CALIFORNIA PUBLIC RECORDS ACT. All documents and records provided to or made available to Seller under this Agreement become the property of the Seller, which is a public agency subject to the disclosure requirements of the California Public Records Act ("CPRA"). If proprietary information is contained in documents submitted by Purchaser or Purchaser’s Representatives to Seller, and Purchaser expressly claims that such information falls within one or more CPRA exemptions, Purchaser must clearly mark such information "CONFIDENTIAL AND PROPRIETARY," and identify the specific lines containing the confidential information. In the event of a request for such information, the Seller will make reasonable efforts to provide notice to Purchaser prior to such disclosure. If Purchaser contends 1284
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that any documents are exempt from the CPRA and wishes to prevent disclosure, it is required at its own cost, liability and expense to obtain a protective order, injunctive relief or other appropriate remedy from a court of law in San Bernardino County at least two (2) days before Seller’s deadline to respond to the CPRA request. If Purchaser fails to obtain such a remedy before the Seller responds to the CPRA request, Seller will disclose the requested information and shall not be liable or responsible for such disclosure. Purchaser represents, warrants and agrees that it shall defend, indemnify and hold Seller harmless for, from and against any and all Claims that may or do result from denial by Seller of a CPRA request for any information arising from any representation, or any action (or inaction), by Purchaser or Purchaser’s Representatives.
40. SURVIVAL. Sections 15 through and including 40 shall survive Closing or earlier termination of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date first written above.
SELLER:
CITY OF RIALTO
By: ______________________________
Tanya Williams, City Manager
ATTEST:
By: ______________________________
Barbara McGee, City Clerk
APPROVED AS TO FORM:
By: ______________________________
Eric S. Vail, City Attorney
PURCHASER:
TLC PROPERTIES, LLC
By: ______________________________
Name: ____________________________
Title: _____________________________
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EXHIBIT A-1 – Easement in Gross for APN 0132-102-13
[ON FOLLOWING PAGE]
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RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
City of Rialto
150 S. Palm Avenue
Rialto, CA 92376
Attn: City Manager
APN 0132-102-13 Space above reserved for Recorder’s Office Exempt from recording fees pursuant to
Govt Code 6103, 27383 & R&T Code 11922
GRANT OF “IN GROSS” EASEMENTS
Outdoor Advertising Structures Easement
Subject to the terms, conditions and limitations specified in this Grant of “In Gross” Easements (“Agreement”), CITY OF RIALTO, a municipal corporation, (“Grantor”) hereby grants to TLC PROPERTIES, LLC, a Louisiana limited liability company (“Grantee”) and Grantee accepts: (i) an easement for the location, construction, maintenance and operation of an outdoor advertising structure (the “Sign”), the base of which shall be located within the area described in Exhibit “A” attached hereto and incorporated herein (the “Sign Location Easement”) as well as (ii) easements for access, maintenance, visibility, utility services, and overhang (the “Access, Maintenance, Visibility, Utility, and Overhang Easement”) on, over and upon Grantor’s real property described in Exhibit “B” attached hereto and incorporated herein (the “Grantor’s Property”). Collectively, the Sign Location Easement and the Access, Maintenance, Visibility, Utility, and Overhang Easement are herein referred to as (the “Easements”)
41. Effective Date. This Agreement shall be effective as of the date it is recorded in the Official Records of San Bernardino County (“Effective Date”). This Agreement shall remain in effect in perpetuity unless otherwise terminated by the parties as evidenced by a document recorded in the Official Records of San Bernardino County (“Official Records”).
42. Use of Sign Location Easement. The Sign Location Easement may only be used for the location, construction, maintenance and operation of one (1) Sign as depicted in Exhibit A.
The Sign Location Easement includes the right to construct, repair, service, maintain, improve and modify the Sign pursuant to applicable law, including to replace or rebuild the digital faces attached to the Sign within the Sign Location Easement Area provided that Grantee acquires all applicable governmental approvals, including, without limitation, any required approvals required by the City of Rialto. The Sign Location Easement shall include, but not be limited to, a right of overhang for the Sign, a right to install, repair, replace and maintain underground and/or above ground electrical service to the Sign, a right to maintain telecommunications on the Sign and a right of view, prohibiting vegetation or improvements on Grantor’s Property that would obstruct the view of the Sign from adjoining roadways. Grantor agrees that Grantee may trim, cut, remove, or clear away any or all trees, brush, or other vegetation or flora, including the roots thereof in, on or about the Sign Location Easement and Grantor’s Property as often as Grantee deems necessary to prevent obstruction or to improve the appearance of the Sign, provided that any such trimming, cutting, removal, or clearing away shall be subject to Grantor’s written approval. After completion of any work performed by Grantee or its agents, contractors or employees which disturbs Grantor’s 1288
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Property or any other proximate property, Grantee shall, at its own expense, restore Grantor’s Property to a condition that is satisfactory to the Grantor.
43. Use of Access Easement. Grantee may use Grantor’s Property to access the Sign for the purposes described in Section 2. Grantee’s rights to use the Easements shall include without limitation, Grantee’s right to authorize its employees, agents, representatives, contractors, and subcontractors to: (i) have access to, ingress to, and egress from the Sign Location Easement; (ii) use and temporarily place and operate tools, equipment, machinery and materials within the Sign Location Easement Area, provided that such placement shall not be for period greater than 30 days unless Grantor approves thereof in writing; and (iii) trim, cut, remove, or clear away any trees, brush, or other vegetation or flora, including the roots thereof, located within the Easements, provided that any such trimming, cutting, removal, or clearing away shall be subject to Grantor’s written approval.
44. Prohibited Uses. Grantee shall not use, or allow use of, the Easements for any activity other than the Sign, as described in this Agreement, without the prior written consent of Grantor. Grantee voluntarily covenants and agrees for itself, its successors and assigns, that any advertising displayed on the Sign shall not contain any advertising for (i) sexually oriented images or language or adult entertainment or nudity including, without limitation, topless bars, nightclubs, establishments that feature nude dancing, mud wrestling, any adult business featuring retail sales of adult novelty items, books, magazines, videos and tapes, or any material that would be reasonably considered pornographic; (ii) hard alcohol (beer and wine shall be permitted to be displayed); (iii) drugs or narcotics, marijuana, cannabis, hashish, or tobacco products of any type; or (iv) immoral, vulgar, or obscene images, messages, or language. Grantor further reserves the right to object to any other advertising that may be considered detrimental to the image of the City of Rialto. In such case, Grantor shall inform Grantee in writing of the offensive advertising and request that it be removed. Grantee shall not unreasonably deny the request. Grantee’s use of the Easements shall not unreasonably interfere with Grantor’s use of Grantor’s Property.
45. Grantee Obligations. Grantee shall maintain the Easements, the respective Easements, and all improvements thereon in good and safe condition at its sole cost and expense.
Any improvements constructed by Grantee shall comply with all applicable laws and Grantee shall not permit any liens to be recorded against the Easements due to its actions. Grantee shall not permit the dumping or accumulation of trash, junk, garbage or similar items in the Easements.
46. Community Benefits in Favor of City of Rialto. Grantee shall provide free of charge to Grantor on a space-available basis, advertising space either on the Sign or an alternative billboard within close proximity to the City of Rialto, subject to the Grantor’s reasonable approval, no less than three (3) times per year, upon the request of Grantor. Such advertising space shall only be made available for the use of City of Rialto-related events or public service announcements. In no event shall the Grantor be entitled to make the advertising space available to any competitor of Grantee or any third party without the express written consent of Grantee. Grantor will be responsible for creating the design of any such displays, subject to review and approval of a suggested copy from Grantor by Grantee. Notwithstanding the foregoing, the arrangement provided in this Section may be revised by mutual written agreement between the Grantor and Grantee. Grantee’s City Manager, or his or her designee, is hereby authorized to approve any such revisions.
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47. No Third Party Use. Except as specifically otherwise provided in this Agreement, Grantee may not allow any third parties to use the Easements and shall use reasonable efforts to prevent any such use.
48. Reserved Rights. The Easements granted herein are acquired subject to the right of Grantor, its successors and assign, to use the surface and subsurface of the Grantor’s Property within the Easements to the extent that such use is compatible with and does not unreasonably interfere with the full and free exercise of the rights granted hereunder to Grantee.
49. No Right to Transfer. Although the Easements are in gross, Grantee shall not have the right to assign or otherwise transfer the Easements and the rights herein unless (i) Grantor consents to such assignment in its discretion; (ii) the assignee assumes all obligations of Grantee; and (iii) the assignment, assumption and consent is in a form acceptable to Grantor and recorded in the Official Records.
50. Indemnification; Insurance.
50.1 Indemnification. Grantee shall indemnify, defend, and hold harmless Grantor, its officers, employees, agents, and volunteers (“Grantor Parties”) from and against all claims, damages, liabilities, costs, expenses (including, without limitation, reasonable attorneys’ fees and reasonable investigative and discovery costs), liabilities and judgments (“Indemnified Claims”) arising out of this Agreement from any cause whatsoever, to the extent such claims, actions, losses, damages and/or liability were caused by acts, errors, or omissions, negligence, or intentional misconduct of Grantee or Grantee’s officials, officers, agents, employees, contractors or invitees, and for any costs or expenses incurred by Grantor on account of such claims, except where such indemnification is prohibited by law. Reciprocally, Grantor shall indemnify, defend, and hold harmless Grantee, its officers, employees, agents, and volunteers (“Grantee Parties”) from and against all Indemnified Claims arising out of this Agreement from any cause whatsoever, to the extent such claims, actions, losses, damages, and/or liability were caused by the acts, errors, omissions, negligence, or intentional misconduct of Grantor or Grantor’s officials, officers, agents, employees, contractors, or invitees, except where prohibited by law.
50.2 Insurance. Commencing upon the Effective Date of this Agreement and throughout the duration of this Agreement, Grantee shall procure and maintain at its own expense, Comprehensive General Liability Insurance, of not less than One Million Dollars ($1,000,000) per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss, or damage resulting from the wrongful or negligent acts by Grantee or its officers, employees, servants, volunteers, and agents and independent contractors. All insurance policies shall be endorsed to name the City of Rialto, its officers, employees, servants, volunteers, agents and independent contractors as additional insureds.
51. Grantor’s Obligations. Grantor agrees for itself, its successors and assign, not to erect, place or maintain, nor to permit the erection, placement, or maintenance of any buildings, planter boxes, earthfill, large trees, large shrubs, block walls, concrete pavement (other than permitted sidewalks and driveway accesses), decking, structures or other similar improvements, that would unreasonably interfere with the Grantee’s intended use of the Easements.
52. Reserved.
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53. Notices. All notices, documents, correspondence and communications concerning this Agreement shall be addressed as set forth below, or as the parties may hereafter designate by written notice, and shall be sent through the United States mail with postage prepaid, certified or registered, return receipt requested. Any such mailing shall be deemed served or delivered upon the earlier of actual receipt or the date receipt is refused. Each party may change the address for notices by giving the other party at least ten (10) calendar days’ prior written notice of the new address. Notwithstanding the above, either party may also provide notices, documents, correspondence, or such other communications to the other by personal delivery or by Federal Express or similar courier service and so given shall be deemed to have been given upon receipt.
To Grantor: To Grantee:
City of Rialto
150 S. Palm Avenue
Rialto, CA 92376
Attn: City Manager
With a copy to: With a copy to:
City of Rialto
150 S. Palm Avenue
Rialto, CA 92376
Attn: City Attorney
54. Attorney Fees. In the event of any litigation or other legal proceeding including, without limitation, arbitration or mediation between the parties arising from this Agreement, the prevailing party will be entitled to recover, in addition to any other relief awarded or granted, its reasonable costs and expenses (including attorney’s fees) incurred in the proceeding.
55. Authority. Each party represents and warrants to the other party that this Agreement has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms.
56. Further Assurances. The parties agree to take such actions and execute such additional documents as are reasonably necessary to carry out the provisions of this Agreement.
57. California Law. This Agreement shall be interpreted, construed, and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, Eastern Division.
58. Waiver. Waiver by any Party to this Agreement of any term, condition, or covenant 1291
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of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
59. Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
60. Interpretation. The section headings used in this Agreement have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction. Whenever the context hereof may so require, the singular shall include the plural and the masculine shall include the feminine and neuter. This Agreement shall be construed according to its fair meaning without regard to authorship.
61. Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
62. Final Agreement. This Agreement contains the entire understanding and agreement with respect to the subject matter of this Agreement and all prior or contemporaneous documents, communications, understandings, representations, and statements shall be of no force or effect.
63. No Waiver. The failure to enforce any term, covenant, or condition of this Agreement shall not be construed as a waiver of the right to enforce this, or any other, term, covenant, or condition of this Agreement.
64. Exhibits. Exhibits A and B attached hereto are incorporated herein by reference. [SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have executed this Agreement in the County of San Bernardino on the date first set forth above.
GRANTOR:
CITY OF RIALTO, a municipal corporation
GRANTEE:
TLC PROPERTIES, LLC, a Louisiana
Limited Liability Company
By: _________________________________ By: _________________________________ Tanya Williams, City Manager
Name: _______________________________
Title: ________________________________
ATTEST:
By: _________________________________
Barbara McGee, City Clerk
APPROVED AS TO FORM:
Burke, Williams & Sorensen, LLP
By: _________________________________
Eric S. Vail, City Attorney
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STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO )
On ________________________, 202_ before me, _______________________________, Notary Public, personally appeared _______________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct
WITNESS my hand and official seal.
Signature
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT A
SIGN LOCATION EASEMENT AREA
And
ACCESS, MAINTENANCE, VISIBILITY, UTILITY, AND OVERHANG EASEMENT 1295
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EXHIBIT B
LEGAL DESCRIPTION FOR THE PROPERTY
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EXHIBIT A-2 – Easement in Gross for APN 0264-152-54
[ON FOLLOWING PAGE]
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RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
City of Rialto
150 S. Palm Avenue
Rialto, CA 92376
Attn: City Manager
APN 0264-152-54 Space above reserved for Recorder’s Office Exempt from recording fees pursuant to
Govt Code 6103, 27383 & R&T Code 11922
GRANT OF “IN GROSS” EASEMENTS
Outdoor Advertising Structures Easement
Subject to the terms, conditions and limitations specified in this Grant of “In Gross” Easements (“Agreement”), CITY OF RIALTO, a municipal corporation, (“Grantor”) hereby grants to TLC PROPERTIES, LLC, a Louisiana limited liability company (“Grantee”) and Grantee accepts: (i) an easement for the location, construction, maintenance and operation of an outdoor advertising structure (the “Sign”), the base of which shall be located within the area described in Exhibit “A” attached hereto and incorporated herein (the “Sign Location Easement”) as well as (ii) easements for access, maintenance, visibility, utility services, and overhang (the “Access, Maintenance, Visibility, Utility, and Overhang Easement”) on, over and upon Grantor’s real property described in Exhibit “B” attached hereto and incorporated herein (the “Grantor’s Property”). Collectively, the Sign Location Easement and the Access, Maintenance, Visibility, Utility, and Overhang Easement are herein referred to as (the “Easements”)
65. Effective Date. This Agreement shall be effective as of the date it is recorded in the Official Records of San Bernardino County (“Effective Date”). This Agreement shall remain in effect in perpetuity unless otherwise terminated by the parties as evidenced by a document recorded in the Official Records of San Bernardino County (“Official Records”).
66. Use of Sign Location Easement. The Sign Location Easement may only be used for the location, construction, maintenance and operation of one (1) Sign as depicted in Exhibit A.
The Sign Location Easement includes the right to construct, repair, service, maintain, improve and modify the Sign pursuant to applicable law, including to replace or rebuild the digital faces attached to the Sign within the Sign Location Easement Area provided that Grantee acquires all applicable governmental approvals, including, without limitation, any required approvals required by the City of Rialto. The Sign Location Easement shall include, but not be limited to, a right of overhang for the Sign, a right to install, repair, replace and maintain underground and/or above ground electrical service to the Sign, a right to maintain telecommunications on the Sign and a right of view, prohibiting vegetation or improvements on Grantor’s Property that would obstruct the view of the Sign from adjoining roadways. Grantor agrees that Grantee may trim, cut, remove, or clear away any or all trees, brush, or other vegetation or flora, including the roots thereof in, on or about the Sign Location Easement and Grantor’s Property as often as Grantee deems necessary to prevent obstruction or to improve the appearance of the Sign, provided that any such trimming, cutting, removal, or clearing away shall be subject to Grantor’s written approval. After completion of any work performed by Grantee or its agents, contractors or employees which disturbs Grantor’s 1298
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Property or any other proximate property, Grantee shall, at its own expense, restore Grantor’s Property to a condition that is satisfactory to the Grantor.
67. Use of Access Easement. Grantee may use Grantor’s Property to access the Sign for the purposes described in Section 2. Grantee’s rights to use the Easements shall include without limitation, Grantee’s right to authorize its employees, agents, representatives, contractors, and subcontractors to: (i) have access to, ingress to, and egress from the Sign Location Easement; (ii) use and temporarily place and operate tools, equipment, machinery and materials within the Sign Location Easement Area, provided that such placement shall not be for period greater than 30 days unless Grantor approves thereof in writing; and (iii) trim, cut, remove, or clear away any trees, brush, or other vegetation or flora, including the roots thereof, located within the Easements, provided that any such trimming, cutting, removal, or clearing away shall be subject to Grantor’s written approval.
68. Prohibited Uses. Grantee shall not use, or allow use of, the Easements for any activity other than the Sign, as described in this Agreement, without the prior written consent of Grantor. Grantee voluntarily covenants and agrees for itself, its successors and assigns, that any advertising displayed on the Sign shall not contain any advertising for (i) sexually oriented images or language or adult entertainment or nudity including, without limitation, topless bars, nightclubs, establishments that feature nude dancing, mud wrestling, any adult business featuring retail sales of adult novelty items, books, magazines, videos and tapes, or any material that would be reasonably considered pornographic; (ii) hard alcohol (beer and wine shall be permitted to be displayed); (iii) drugs or narcotics, marijuana, cannabis, hashish, or tobacco products of any type; or (iv) immoral, vulgar, or obscene images, messages, or language. Grantor further reserves the right to object to any other advertising that may be considered detrimental to the image of the City of Rialto. In such case, Grantor shall inform Grantee in writing of the offensive advertising and request that it be removed. Grantee shall not unreasonably deny the request. Grantee’s use of the Easements shall not unreasonably interfere with Grantor’s use of Grantor’s Property.
69. Grantee Obligations. Grantee shall maintain the Easements, the respective Easements, and all improvements thereon in good and safe condition at its sole cost and expense.
Any improvements constructed by Grantee shall comply with all applicable laws and Grantee shall not permit any liens to be recorded against the Easements due to its actions. Grantee shall not permit the dumping or accumulation of trash, junk, garbage or similar items in the Easements.
70. Community Benefits in Favor of City of Rialto. Grantee shall provide free of charge to Grantor on a space-available basis, advertising space either on the Sign or an alternative billboard within close proximity to the City of Rialto, subject to the Grantor’s reasonable approval, no less than three (3) times per year, upon the request of Grantor. Such advertising space shall only be made available for the use of City of Rialto-related events or public service announcements. In no event shall the Grantor be entitled to make the advertising space available to any competitor of Grantee or any third party without the express written consent of Grantee. Grantor will be responsible for creating the design of any such displays, subject to review and approval of a suggested copy from Grantor by Grantee. Notwithstanding the foregoing, the arrangement provided in this Section may be revised by mutual written agreement between the Grantor and Grantee. Grantee’s City Manager, or his or her designee, is hereby authorized to approve any such revisions.
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71. No Third Party Use. Except as specifically otherwise provided in this Agreement, Grantee may not allow any third parties to use the Easements and shall use reasonable efforts to prevent any such use.
72. Reserved Rights. The Easements granted herein are acquired subject to the right of Grantor, its successors and assign, to use the surface and subsurface of the Grantor’s Property within the Easements to the extent that such use is compatible with and does not unreasonably interfere with the full and free exercise of the rights granted hereunder to Grantee.
73. No Right to Transfer. Although the Easements are in gross, Grantee shall not have the right to assign or otherwise transfer the Easements and the rights herein unless (i) Grantor consents to such assignment in its discretion; (ii) the assignee assumes all obligations of Grantee; and (iii) the assignment, assumption and consent is in a form acceptable to Grantor and recorded in the Official Records.
74. Indemnification; Insurance.
74.1 Indemnification. Grantee shall indemnify, defend, and hold harmless Grantor, its officers, employees, agents, and volunteers (“Grantor Parties”) from and against all claims, damages, liabilities, costs, expenses (including, without limitation, reasonable attorneys’ fees and reasonable investigative and discovery costs), liabilities and judgments (“Indemnified Claims”) arising out of this Agreement from any cause whatsoever, to the extent such claims, actions, losses, damages and/or liability were caused by acts, errors, or omissions, negligence, or intentional misconduct of Grantee or Grantee’s officials, officers, agents, employees, contractors or invitees, and for any costs or expenses incurred by Grantor on account of such claims, except where such indemnification is prohibited by law. Reciprocally, Grantor shall indemnify, defend, and hold harmless Grantee, its officers, employees, agents, and volunteers (“Grantee Parties”) from and against all Indemnified Claims arising out of this Agreement from any cause whatsoever, to the extent such claims, actions, losses, damages, and/or liability were caused by the acts, errors, omissions, negligence, or intentional misconduct of Grantor or Grantor’s officials, officers, agents, employees, contractors, or invitees, except where prohibited by law.
74.2 Insurance. Commencing upon the Effective Date of this Agreement and throughout the duration of this Agreement, Grantee shall procure and maintain at its own expense, Comprehensive General Liability Insurance, of not less than One Million Dollars ($1,000,000) per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss, or damage resulting from the wrongful or negligent acts by Grantee or its officers, employees, servants, volunteers, and agents and independent contractors. All insurance policies shall be endorsed to name the City of Rialto, its officers, employees, servants, volunteers, agents and independent contractors as additional insureds.
75. Grantor’s Obligations. Grantor agrees for itself, its successors and assign, not to erect, place or maintain, nor to permit the erection, placement, or maintenance of any buildings, planter boxes, earthfill, large trees, large shrubs, block walls, concrete pavement (other than permitted sidewalks and driveway accesses), decking, structures or other similar improvements, that would unreasonably interfere with the Grantee’s intended use of the Easements.
76. Reserved.
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77. Notices. All notices, documents, correspondence and communications concerning this Agreement shall be addressed as set forth below, or as the parties may hereafter designate by written notice, and shall be sent through the United States mail with postage prepaid, certified or registered, return receipt requested. Any such mailing shall be deemed served or delivered upon the earlier of actual receipt or the date receipt is refused. Each party may change the address for notices by giving the other party at least ten (10) calendar days’ prior written notice of the new address. Notwithstanding the above, either party may also provide notices, documents, correspondence, or such other communications to the other by personal delivery or by Federal Express or similar courier service and so given shall be deemed to have been given upon receipt.
To Grantor: To Grantee:
City of Rialto
150 S. Palm Avenue
Rialto, CA 92376
Attn: City Manager
With a copy to: With a copy to:
City of Rialto
150 S. Palm Avenue
Rialto, CA 92376
Attn: City Attorney
78. Attorney Fees. In the event of any litigation or other legal proceeding including, without limitation, arbitration or mediation between the parties arising from this Agreement, the prevailing party will be entitled to recover, in addition to any other relief awarded or granted, its reasonable costs and expenses (including attorney’s fees) incurred in the proceeding.
79. Authority. Each party represents and warrants to the other party that this Agreement has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms.
80. Further Assurances. The parties agree to take such actions and execute such additional documents as are reasonably necessary to carry out the provisions of this Agreement.
81. California Law. This Agreement shall be interpreted, construed, and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, Eastern Division.
82. Waiver. Waiver by any Party to this Agreement of any term, condition, or covenant 1301
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of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
83. Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
84. Interpretation. The section headings used in this Agreement have been inserted for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction. Whenever the context hereof may so require, the singular shall include the plural and the masculine shall include the feminine and neuter. This Agreement shall be construed according to its fair meaning without regard to authorship.
85. Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
86. Final Agreement. This Agreement contains the entire understanding and agreement with respect to the subject matter of this Agreement and all prior or contemporaneous documents, communications, understandings, representations, and statements shall be of no force or effect.
87. No Waiver. The failure to enforce any term, covenant, or condition of this Agreement shall not be construed as a waiver of the right to enforce this, or any other, term, covenant, or condition of this Agreement.
88. Exhibits. Exhibits A and B attached hereto are incorporated herein by reference. [SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have executed this Agreement in the County of San Bernardino on the date first set forth above.
GRANTOR:
CITY OF RIALTO, a municipal corporation
GRANTEE:
TLC PROPERTIES, LLC, a Louisiana
Limited Liability Company
By: _________________________________ By: _________________________________ Tanya Williams, City Manager
Name: _______________________________
Title: ________________________________
ATTEST:
By: _________________________________
Barbara McGee, City Clerk
APPROVED AS TO FORM:
Burke, Williams & Sorensen, LLP
By: _________________________________
Eric S. Vail, City Attorney
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STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO )
On ________________________, 202_ before me, _______________________________, Notary Public, personally appeared _______________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct
WITNESS my hand and official seal.
Signature
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT A
SIGN LOCATION EASEMENT AREA
And
ACCESS, MAINTENANCE, VISIBILITY, UTILITY, AND OVERHANG EASEMENT 1305
EXHIBIT B
LEGAL DESCRIPTION FOR THE PROPERTY
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EXHIBIT A-3 – Assignment of Easement for Travel Center Easement [ON FOLLOWING PAGE]
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RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
City of Rialto
150 S. Palm Avenue
Rialto, CA 92376
Attn: City Manager
APN 1119-241-28 Space above reserved for Recorder’s Office Exempt from recording fees pursuant to
Govt Code 6103, 27383 & R&T Code 11922
ASSIGNMENT OF EASEMENT
For and in consideration of TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, THE CITY OF RIALTO, a municipal corporation ("Assignor"), hereby irrevocably transfers, assigns, bargains, sells and conveys to, TLC PROPERTIES, LLC, a Louisiana limited liability company ("Assignee"), to have and to hold, all of Assignor's right, title and interest arising after the date hereof in and to the “Sign Location Easement” and “Maintenance, Utility Access, Visibility and Overhang Easement” as defined and described in that certain Corrective Deed, recorded as DOC #2022-0215733 in the Office of the Recorder of Deeds for San Bernardino County, (the "Easement") affecting lands situated in the County of San Bernardino, State of California and described in Exhibit A, attached hereto and made a part hereof. Further, this Assignment of Easement is subject to the following requirements:
89. Prohibited Uses. Assignee voluntarily covenants and agrees for itself, its successors and assigns, that any advertising displayed on the Sign shall not contain any advertising for (i) sexually oriented images or language or adult entertainment or nudity including, without limitation, topless bars, nightclubs, establishments that feature nude dancing, mud wrestling, any adult business featuring retail sales of adult novelty items, books, magazines, videos and tapes, or any material that would be reasonably considered pornographic; (ii) hard alcohol (beer and wine shall be permitted to be displayed); (iii) drugs or narcotics, marijuana, cannabis, hashish, or tobacco products of any type; or (iv) immoral, vulgar, or obscene images, messages, or language.
Assignor further reserves the right to object to any other advertising that may be considered detrimental to the image of the City of Rialto. In such case, Assignor shall inform Assignee in writing of the offensive advertising and request that it be removed. Assignee shall not unreasonably deny the request.
90. Community Benefits in Favor of City of Rialto. Assignee shall provide free of charge to The City of Rialto on a space-available basis, advertising space either on the sign located within the Sign Location Easement or an alternative billboard within close proximity to the City of Rialto, subject to the City of Rialto’s reasonable approval, no less than three (3) times per year, upon the request of Assignor. Such advertising space shall only be made available for the use of City of Rialto-related events or public service announcements. In no event shall the Assignor be entitled to make the advertising space available to any competitor of Assignee or any third party without the express written consent of Assignee. Assignor will be responsible for creating the design of any such displays, subject to review and approval of a suggested copy from Assignor by Assignee. Notwithstanding the foregoing, the arrangement provided in this Section may be revised 1310
by mutual written agreement between the Assignor and Assignee. Assignee’s City Manager, or his or her designee, is hereby authorized to approve any such revisions.
91. Indemnification; Insurance.
91.1 Indemnification. Assignee shall indemnify, defend, and hold harmless Assignor, its officers, employees, agents, and volunteers ("Assignor Parties") from and against all claims, damages, liabilities, costs, expenses (including, without limitation, reasonable attorneys' fees and reasonable investigative and discovery costs), liabilities and judgments ("Indemnified Claims") arising out of this Assignment of Easement from any cause whatsoever, to the extent such claims, actions, losses, damages and/or liability were caused by acts, errors, or omissions, negligence, or intentional misconduct of Assignee or Assignee’s officials, officers, agents, employees, contractors or invitees, and for any costs or expenses incurred by Assignor on account of such claims, except where such indemnification is prohibited by law.
91.2 Insurance. Commencing upon the Effective Date of this Assignment of Easement, Assignee shall procure and maintain at its own expense, Comprehensive General Liability Insurance, of not less than One Million Dollars ($1,000,000) per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss, or damage resulting from the wrongful or negligent acts by Assignee or its officers, employees, servants, volunteers, and agents and independent contractors. All insurance policies shall be endorsed to name the City of Rialto, its officers, employees, servants, volunteers, agents and independent contractors as additional insureds.
92. Effective Date. This Assignment of Easement shall be effective upon the date of its recordation in the Office of the Recorder of Deeds for San Bernardino County.
93. This Assignment of Easement is binding upon and inures to the benefit of Assignor and Assignee, their successors and assigns.
94. Assignee accepts this assignment and accepts all of the rights and agrees to perform all of the duties, covenants and obligations of Assignor under the assigned Easement to the extent arising from and following the date hereof.
95. This Assignment of Easement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
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THIS ASSIGNMENT OF EASEMENT is executed by the undersigned parties as of the dates set forth below but effective as of the date first set forth above.
WITNESSES:
_________________________
_________________________
ASSIGNOR: CITY OF RIALTO, a
municipal corporation
______________________________
By:
Name:
Title:
ACKNOWLEDGMENT
State of ______________________
County of ____________________
That on this day came before me the undersigned, a Notary Public, duly commissioned, qualified and acting within and for the said County and State, appeared in person the within named ____________________ to me personally known, who stated that he is the __________________ of ___________________, a ___________________________, and is duly authorized in his capacity to execute the foregoing instrument for and in the name and behalf of said entity, and further stated and acknowledged that he had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth.
In testimony whereof, I have hereunto set my hand and official seal this _____ day of __________________, 2026.
Notary Public
Printed Name:
Notary No/Bar Roll No.:
My commission is:
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1 INITIALS: ____________ ____________
SELLER PURCHASER
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THIS ASSIGNMENT OF EASEMENT is executed by the undersigned parties as of the dates set forth below but effective as of the date first set forth above.
ASSIGNEE: TLC PROPERTIES, LLC,
a Louisiana limited liability company
________________________________
By:
Name:
Title:
ACKNOWLEDGMENT
State of ______________________
County of ____________________
That on this day came before me the undersigned, a Notary Public, duly commissioned, qualified and acting within and for the said County and State, appeared in person the within named ____________________ to me personally known, who stated that he is the __________________ of ___________________, a
___________________________, and is duly authorized in his capacity to execute the foregoing instrument for and in the name and behalf of said entity, and further stated and acknowledged that he had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth.
In testimony whereof, I have hereunto set my hand and official seal this _____ day of __________________, 2026.
Notary Public
Printed Name:
Notary No/Bar Roll No.:
My commission is:
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2 INITIALS: ____________ ____________
SELLER PURCHASER
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3 INITIALS: ____________ ____________
SELLER PURCHASER
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EXHIBIT A
Legal Description of Property
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4 INITIALS: ____________ ____________
SELLER PURCHASER
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5 INITIALS: ____________ ____________
SELLER PURCHASER
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City of Rialto
Legislation Text
File #: 26-0299, Version: 1, Agenda #: TAB6
For City Council Meeting July 28, 2026
TO: Honorable Mayor and City Council
APPROVAL: Tanya Williams, City Manager
FROM: Yazdan Emrani, P.E., Director of Public Works
Request City Council to: (1) Approve a Contract Services Agreement with Securitas Electronic Security, Inc. for Annual Access and Intrusion Alarm System Monitoring, Maintenance and Repair Services in the Not-to-Exceed Amount of $163,104.33 for Fiscal Year 2026/2027; and (2) Authorize the City Manager or Their Designee to Execute all Related Documents. (ACTION)
RECOMMENDATION
Staff recommends that the City Council:
1) Approve a contract services agreement with Securitas Electronic Security, Inc. for the annual access and intrusion alarm system monitoring, maintenance, and repair services in the not-toexceed amount of $163,104.33 for Fiscal Year 2026/2027; and 2) Authorize the City Manager or their designee to execute all related documents.
BACKGROUND
In 2006, the City authorized a Professional Services Agreement with an outside consultant to complete a comprehensive professional analysis to evaluate the adequacy of the City’s security system. That process resulted in the completion of a Request for Bid (RFB) for the construction and installation of an enhanced, centrally controlled security and access control system. Henry Bros.
Electronics, Inc. (HBE) ultimately met the cost vs. benefit standard of the RFB and showed the greatest understanding of the City’s current and future needs.
On June 5, 2007, City Council awarded a contract to HBE for the installation and monitoring of a Citywide security system, and on May 26, 2009, it approved a Notice of Completion for the project's completion and acceptance. The project covered all City facilities and added Citywide facility access control, updated technology, electronic gates, and panic alarms in some locations.
In December 2010, Kratos Public Safety & Security Solutions, Inc. (Kratos) acquired HBE, and on August 9, 2011, City Council approved Kratos as a sole-source provider for security systems as part of the efforts to ensure continuity and maintain high-security standards.
In June 2018, Kratos was acquired by Securitas Electronic Security, Inc. (Securitas). A copy of the acquisition letter is included as Attachment 1. Securitas continues to provide Citywide security monitoring services that were previously provided by HBE and Kratos.
City of Rialto Page 1 of 3 Printed on 7/23/2026
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File #: 26-0299, Version: 1, Agenda #: TAB6
ANALYSIS/DISCUSSION
Securitas is currently providing the City with the Platinum-level service plan, which includes sameday maintenance and repair services 24 hours a day, annual preventative maintenance inspections, annual alarm monitoring, and manufacturer software support. The City has used this plan for many years and is satisfied with its results.
Historically, Securitas has had a 3% Consumer Price Index (CPI) increase each year. The term of the proposed agreement is for three (3) years, with the option of two (2) additional one (1) year extensions, should the City Council elect to extend the contract. The Services Agreement with Securitas is included as Attachment 2, and a copy of the Conflict Disclosure Form is included as Attachment 3. A projected cost proposal for the services is shown in Table 1 below and included as Attachment 4.
Table 1
Staff is requesting that the agreement amount include additional funding to cover the costs of unforeseen expenses of $20,000 per fiscal year for the duration of the contract. The additional funding is based on the average dollar amount spent with Securitas to cover items such as new security installations and the replacement of obsolete hardware, which are not covered by Securitas’s Scope of Service.
ENVIRONMENTAL IMPACT
Approval of the security system maintenance and monitoring services is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. According to Section 15378(b), a Project does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
GENERAL PLAN CONSISTENCY
This action is consistent with Guiding Principle 3 in the General Plan:
Our City government will lead by example, and will operate in an open, transparent, and responsive manner that meets the needs of the citizens and is a good place to do business.
LEGAL REVIEW
The City Attorney’s Office has reviewed the agreement and approved it as to form.
FINANCIAL IMPACT
Operating Budget Impact
Funds for the Service Agreement with Securitas Electronic Security, Inc., in the amount of City of Rialto Page 2 of 3 Printed on 7/23/2026
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File #: 26-0299, Version: 1, Agenda #: TAB6
Funds for the Service Agreement with Securitas Electronic Security, Inc., in the amount of $163,104.33, have been incorporated in the Fiscal Year 2026/2027 budget under the Facilities Maintenance Fund Account No.10107302-52011 for the Access and Intrusion Alarm Monitoring Services. This amount includes an additional $20,000 for services and improvements.
Capital Improvement Budget Impact
This action has no impact on the Capital Improvement budget.
Licensing
Securitas Electronic Security, Inc. will pay a Business License tax prior to the execution of the Service Agreement.
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SERVICES AGREEMENT
BETWEEN THE CITY OF RIALTO AND
SECURITAS TECHNOLOGY CORPORATION
THIS SERVICES AGREEMENT (herein “Agreement”) is made and entered into 1 st day
of July, 2026, (“Effective Date”) by and between the City of Rialto, a municipal corporation and California general law city (“City”), organized under the laws of the State of California, with its principal place of business at 150 S. Palm Avenue, Rialto, California 92376 and Securitas Technology Corporation, a Delaware corporation, with its principal place of business at 3800 Tabs Drive, Uniontown, Ohio 44685 (“Consultant”). City and Consultant are sometimes individually referred to as “Party” or collectively as “Parties”.
RECITALS
A. City has sought, by standardization procurement, the performance of professional services related to annual access and intrusion alarm monitoring, maintenance, and repair services (“Project”), as defined and described particularly in Article 1 of this Agreement.
B. Following the submission of a proposal for the performance of the services defined and described particularly in Article 1 of this Agreement, Consultant was selected by the City to perform those services.
C. Consultant represents that it is experienced in providing the services to public clients, is licensed in the State of California, and is familiar with the plans of City.
D. Pursuant to Chapter 2.48 of the Rialto Municipal Code, City has authority to enter into and execute this Agreement.
E. The Parties desire to formalize the selection of Consultant for the performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
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1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, Consultant shall provide those services associated with annual access and intrusion alarm monitoring, maintenance, and repair services, and as specified in the Consultant’s “Scope of Services” attached hereto as Exhibit “A” and incorporated herein by this reference, which services may be referred to herein as the “services” or “work” hereunder. As a material inducement for City to enter into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, it meets all local, state, and federal requirements in performing the services, and it is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently, and to the best of its ability, experience, and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances.
In addition to the preceding, the Parties mutually agree to be bound by the Monitoring Terms and Conditions as attached hereto as Exhibit “A-1.” In the event of a conflict between this Agreement and Exhibit A-1, this Agreement shall control.
1.2 Consultant’s Proposal.
The Agreement between the Parties shall consist of the following: (1) this Agreement; (2) the Scope of Services; (collectively referred to as the “Contract Documents”). The Contract Documents and accepted Proposal shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the Scope of Services, Consultant’s Proposal and/or this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any federal, state, or local governmental entity having jurisdiction in effect at the time service is rendered.
1.4 Licenses, Permits, Fees, and Assessments.
Consultant shall obtain, at its sole cost and expense, such licenses, permits, and approvals as may be required by law for the performance of the services required by this Agreement and such licenses, permits, and approvals shall be maintained throughout the Term of this Agreement.
Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant’s performance of the services required by this Agreement, and shall indemnify, defend, and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City hereunder.
1.5 Familiarity with Work and Warranty.
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By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. If Consultant discovers any latent or unknown conditions that will materially affect the performance of the services hereunder, then Consultant shall immediately inform the City of such fact and shall not proceed except at City’s risk until written instructions are received from the Contract Officer.
Consultant warrants that the system or equipment will be free from defects in material and workmanship during the warranty or service plan period. If during this warranty or service plan period, any of the equipment or parts are defective or malfunction, they will be repaired or replaced free of charge. Warranty repair is done 8:00 am-5:00 pm Monday through Friday, excluding holidays. This warranty shall be void and inapplicable in any of the following circumstances: (i) the damage or malfunction occurs because the system has been adjusted, added to, altered, abused, misused or tampered with by the City and/or by any third party; (ii) the system has been operated or used contrary to the operating instructions; (iii) the Software of the system is used with an operating system other than that specified by Consultant or its original equipment manufacturer; or (iv) the claimed defect or malfunction is related to or arises from any cause not within the control of Consultant, including but not limited to performance issues of City’s data network(s) and/or power fluctuations. EXCEPT FOR THE FOREGOING EQUIPMENT WARRANTY
DESCRIBED ABOVE, CONSULTANT MAKES NO OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IT IS EXPRESSLY AGREED THAT UNDER NO
CIRCUMSTANCES SHALL CONSULTANT BE HELD LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; PROVIDED, HOWEVER THAT NOTHING HEREIN LIMITS CONSULTANT’S LIABILITY FOR GROSS NEGLIGENCE, WILLFUL
MISCONDUCT, BREACH OF CONFIDENTIALITY, INDEMNITY OBLIGATIONS, OR DAMAGES COVERED BY INSURANCE REQUIRED UNDER THIS AGREEMENT.
1.6 Care of Work.
Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies, and/or other components thereof, to prevent losses or damages, and shall be responsible for all such damages to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City’s own negligence.
1.7 Prevailing Wages.
It is the understanding of City and Consultant that the Prevailing Wage Laws may not apply to this Agreement because the Agreement does not involve any services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, “construction” includes work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work. Consultant shall defend, indemnify, and hold City, its elected officials, officers, employees and agents free and 1326
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harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
Consultant is aware of the requirements of California Labor Code Section 1720, et seq. and 1770, et seq., as well as California Code of Regulations, Title 8, Section 1600, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “Public Works” and “Maintenance” projects. It is the understanding of City and Consultant that the Prevailing Wage Laws may not apply to this Agreement because the Agreement does not involve any services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder. However, Consultant shall defend, indemnify, and hold City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
1.8 Further Responsibilities of Parties.
Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless specified in this Agreement, neither Party shall be responsible for the service of the other.
Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Consultant shall at all times enforce strict discipline and good order among its employees. Any employee who is determined by the City to be uncooperative, incompetent, a threat to the safety of persons or the services, or any employee who fails or refuses to perform the services in a manner acceptable to the City, shall be promptly removed from the services to be performed by the Consultant and shall not be reemployed on the services.
1.9 Additional Services.
City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from said work. No such extra work or change may be undertaken unless a written order is first given by the Contract Officer to the Consultant, describing in detail the extra work or change and the reason(s) therefor and incorporating therein any adjustment in (i) the Contract Sum for the actual cost of the extra work or change, and/or (ii) the time to perform this Agreement, which said adjustments shall be reflected in an amendment to the Agreement subject to the written approval of the Parties. Should changes to the original Scope of Services be required, the costs will be based on Consultant’s then current standard rates for equipment and labor. Any amendment to this Agreement shall be reviewed and approved by the City Manager. In accordance with Rialto Municipal Code section 2.48.180, increases in compensation of this Agreement may be approved by the City Manager provided: (a) the initial Contract Sum was less than One Hundred Thousand Dollars ($100,000) and the amended Contract Sum when considering any or all amendments will not exceed One Hundred Thousand Dollars ($100,000); or (b) the agreement was approved by the City Council and the increases in compensation taken either separately or cumulatively do not exceed One Hundred Thousand Dollars ($100,000). Any greater increases, taken either separately or cumulatively, must be 1327
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approved by the City Council. Payment for additional services rendered by Consultant under this Agreement requires the submission of the actual costs of Consultant’s performance of the extra work with the invoice(s) for the extra work claim(s), as provided in Section 2.4. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time-consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may, in its sole and absolute discretion, have similar work done by other contractors.
No claim for an adjustment in the contract amount or time for performance shall be valid unless the procedures established in this Section are followed.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Cost Proposal” attached hereto as Exhibit “B” and incorporated herein by this reference. Upon commencement of this Agreement the total compensation, including reimbursement for actual expenses, shall not exceed Eight Hundred Fifty-Nine Thousand Seven Hundred Sixty Dollars and Thirty-One Cents ($859,760.31) (the “Contract Sum”). The Contract Sum may also be increased for additional services pursuant to Section 1.9.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services; (iii) payment for time and materials based upon the Consultant’s rates as specified in the Schedule of Compensation, provided that time estimates are provided for the performance of sub tasks, but not exceeding the Contract Sum; or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City’s Director of Finance.
By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, 1328
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supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories. Consultant shall not invoice City for any duplicate services performed by more than one person.
City may independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Consultant to be paid within thirty (30) days of receipt of Consultant’s correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission.
2.5 No Waiver.
Review and payment by City to Consultant of any invoice for work performed by Consultant pursuant to this Agreement shall not be deemed a waiver of any defects in work performed by Consultant or of any rights or remedies provided herein or any applicable law.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement, except for such delays caused by supply chain or market-based unavailability of replacement parts or equipment necessary to fulfill the services for City beyond Consultant’s control, provided Consultant uses commercially reasonable efforts to obtain substitute parts or equipment.
3.2 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit “C”. and incorporated herein by this reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall, within ten (10) business days of the commencement of such delay, notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer shall extend the time for performance in accordance with the procedures set forth in Section 1.9. The 1329
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Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement.
In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant’s sole remedy being extension of the Agreement pursuant to this Section.
3.4 Term.
The Term of this Agreement is three (3) years commencing on the Effective Date through June 30, 2029 (“Term”) unless earlier terminated in accordance with Article 7 of this Agreement.
Consultant shall complete the services within the Term of this Agreement and shall meet any other established schedules and deadlines. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two (2) additional one (1) year terms, and as identified in the Schedule of Performance, Exhibit “C”.
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The following principals of Consultant (“Principals”) are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
Tracy Burnett Sr. Account Executive
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability, and reputation of the foregoing Principals were a substantial inducement for City to enter into this Agreement.
Therefore, the Principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder.
All personnel of Consultant, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the Principals may not be replaced, nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make commercially reasonable efforts to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the services required under this Agreement. Consultant shall notify City of any changes in Consultant’s staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance. If City does not agree to the substitution of key personnel by Consultant, City shall be entitled to terminate this Agreement for cause. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires to reassign any staff or subcontractor of Consultant, Consultant shall, immediately upon a Reassign Notice from City of such desire of City, reassign such persons or persons.
4.2 Status of Consultant.
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Consultant shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care, or any other benefits which may otherwise accrue to City’s employees. Consultant expressly waives any claim Consultant may have to any such rights.
4.3 Contract Officer.
The Contract Officer shall be the City Manager or other such person designated by the City Manager. It shall be the Consultant’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Contractor.
Neither the City nor any of its employees shall have any control over the manner, mode, or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Consultant’s employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant.
4.5 Prohibition Against Subcontracting or Assignment.
The experience, knowledge, capability, and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE, INDEMNIFICATION AND BONDS
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5.1 Insurance Coverages.
The Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees, and agents of City:
5.1.1 Comprehensive General Liability Insurance (Occurrence Form CG 20 10 12/2019 or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury, and property damage. The policy of insurance shall be in an amount not less than $1,000,000.00 per occurrence or if a general aggregate limit is used, then the general aggregate limit shall be twice the occurrence limit.
5.1.2 Workers’ Compensation Insurance. A policy of worker’s compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure, and provide legal defense for both the Consultant and the City against any loss, claim, or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Consultant in the course of carrying out the work or services contemplated in this Agreement. If Consultant has no employees or agents, Consultant shall not be required to maintain Workers’ Compensation Insurance. However, in the event that Consultant hires employees or agents during the Term of this Agreement, Consultant shall obtain and maintain Workers’ Compensation Insurance in accordance with this section.
5.1.3 Automotive Insurance (Form CA 0001 (Ed 1/87) including “any auto” and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than $1,000,000. Said policy shall include coverage for owned, non-owned, leased, and hired cars.
5.1.4 Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements.
5.1.5 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
5.2 General Insurance Requirements.
All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees, and agents as additional insureds, and any insurance maintained by City or its officers, employees, or agents shall apply in excess of, and not contribute with, Consultant’s insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees, and agents and their respective insurers. The insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention. All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any Party hereto without providing thirty (30) days prior written notice by certified mail return receipt requested to the City. In the event any of said policies of insurance are cancelled, the Consultant shall, prior to the cancellation date, submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer. No work or services under this Agreement 1332
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shall commence until the Consultant has provided the City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City.
City, its respective elected and appointed officers, directors, officials, employees, agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities Consultant performs; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, employees or volunteers. Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. The Consultant agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages to any persons or property resulting from the Consultant’s activities or the activities of any person or persons for which the Consultant is otherwise responsible nor shall it limit the Consultant’s indemnification liabilities as provided in Section 5.3.
In the event the Consultant subcontracts any portion of the work in compliance with Section 4.5 of this Agreement, the contract between the Consultant and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Consultant is required to maintain pursuant to Section 5.1, and such certificates and endorsements shall be provided to City.
5.3 Indemnification.
To the full extent permitted by law, Consultant agrees to indemnify, defend, and hold harmless the City, its officers, employees, volunteers, and agents (“Indemnified Parties”) against any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations, or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (“indemnitors”), arising from Consultant’s reckless or willful misconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant, or condition of this Agreement, and in connection therewith. The Special Provisions set forth in Exhibit D shall apply to this Section.
5.3.1 Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including reasonable legal costs and attorneys’ fees incurred in connection therewith;
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5.3.2 Consultant will promptly pay any judgment rendered against the City, its officers, agents, or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, volunteers, and employees harmless therefrom;
5.3.3 In the event the City, its officers, agents, volunteers, or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers, agents, volunteers, or employees, any and all costs and expenses incurred by the City, its officers, agents, volunteers, or employees in such action or proceeding, including but not limited to, reasonable legal costs and attorneys’ fees.
Consultant shall incorporate similar, indemnity agreements with its subcontractors and if it fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. The provisions of this Section do not apply to claims or liabilities occurring as a result of City’s sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City’s negligence. The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement.
5.4 Sufficiency of Insurer or Surety.
Insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City (“Risk Manager”) due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the Risk Manager Consultant.
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Consultant shall keep, and require subcontractors to keep, such ledgers books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. In the event Contract Officer requests to examine Consultant’s books and records, such review, examination or audit shall exclude the right to review, examine or audit Consultant’s proprietary information, except to the extent necessary to verify charges invoiced to City, while excluding its underlying costs, markups and overhead rates. Such records 1334
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shall be maintained for a period of 3 years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the books and records may be given to City, and access shall be provided by Consultant’s successor in interest.
6.2 Reports.
Consultant, upon written request from the Contract Officer, shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents and Materials; Exceptions; Warranty.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon written request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents and materials for other projects and/or use of uncompleted documents and materials without specific written authorization by the Consultant will be at the City’s sole risk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use, reuse or assignment. Consultant may retain copies of such documents and materials for its own use. Consultant shall have the right to use the concepts embodied therein. All subcontractors shall provide for assignment to City any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom.
Notwithstanding the preceding, any computer application program and/or documentation, collectively referred to as “Software”, that is provided by Consultant visa the system or equipment under this Agreement, is owned by Consultant, its affiliates or one of its original equipment manufacturers and is protected by United States and international copyright laws and international treaty provisions. Any breach of this Agreement will automatically terminate the City’s right to use this Software, and the City is obligated to immediately return such Software to Consultant.
City may not copy the Software for any reason other than per the dictates of any end user software license agreement. City may not reverse-engineer, disassemble, decompile or attempt to discover the source code of any Software. City acknowledges that any breach of this Section shall result in irreparable injury to Consultant for which the amount of damages would be unascertainable.
Consultant may, in addition to pursuing any and all remedies provided by law, obtain an injunction against the City from the court and jurisdiction as described in Section 7.1 below, restraining any violation of this Section.
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Notwithstanding the foregoing, upon expiration or termination of the Agreement, City shall retain access to operational data, logs, credentials, and exported records reasonably necessary for continued operation of City facilities and systems to the extent such information is retained by Consultant in its normal course of business operations.
Consultant warrants that all documents and materials it drafts and completes pursuant to this Agreement constitutes original work. Specifically, Consultant understands and agrees that use of artificial intelligence (AI) tools including, without limitation, ChatGPT, Microsoft’s Bing Chat, Google’s Bard, and Meta’s LLaMA (Large Language Model Meta AI), in the performance of this Agreement does not constitute an original work, i.e., submitting documents and materials generated by such AI tools to City and representing it as Consultant’s original work constitutes a material breach of this Agreement, constitutes a false claim, and may also violate applicable intellectual property right laws including, without limitation, United States Copyright Law.
Accordingly, and notwithstanding any other provision of this Agreement as to ownership, City specifically rejects ownership of such documents and materials. Consultant is required to indemnify and defend City to the fullest extent allowed by applicable law should it violate this Section.
6.4 Confidentiality and Release of Information.
6.4.1 All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer. Consultant shall not use City’s name or insignia, photographs, or any publicity pertaining to the services in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
6.4.2 Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena.
6.4.3 If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct.
6.4.4 Consultant shall promptly notify City should Consultant, its officers, employees, agents, or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
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ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted, construed, and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, Eastern Division.
7.2 Disputes; Default.
In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give written notice to Consultant of the default and the reasons in sufficient detail for the default. The notice shall include the timeframe in which Consultant may cure the default. This timeframe is presumptively thirty (30) days, but may be extended if circumstances warrant, however, the timeframe may also be shortened if the default results in a safety issue or imminent threat to City employees or the public. During the period of time that Consultant is in default, the City shall hold all invoices and shall proceed with payment on the invoices only when the default is cured. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant arising directly out of this Agreement (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any documented losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant’s negligent or willful acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
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the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
7.6 Legal Action.
In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
7.7 Reserved.
7.8 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use commercially reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
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No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects their financial interest or the financial interest of any corporation, partnership or association in which they are, directly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
Additionally, pursuant to Rialto Municipal Code section 2.48.145, Consultant represents that it has disclosed whether it or its officers or employees is related to any officer or employee of the City by blood or marriage within the third degree which would subject such officer or employee to the prohibition of California Government Sections 87100 et. seq., Fair Political Practices Commission Regulation Section 18702, or Government Code Section 1090. To this end, by approving this Agreement, Consultant attests under penalty of perjury, personally and on behalf of Consultant, as well its officers, representatives, that it/they have no relationship, as described above, or financial interests, as such term is defined in California Government Section 87100 et. seq., Fair Political Practices Commission Regulation Section 18702, or Government Code Section 1090, with any City of Rialto elected or appointed official or employee, except as specifically disclosed to the City in writing.
8.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, gender identity, marital status, national origin, ancestry, or other protected class in the performance of this Agreement. Consultant shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, sexual orientation, gender, gender identity, marital status, national origin, ancestry, or other protected class.
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorney’s fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Facilities and Equipment.
Except as otherwise provided, Consultant shall, at its own cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space (“City Facilities”), as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quality, and time of furnishing of City Facilities shall be in the sole discretion of City. In 1339
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no event shall City be required to furnish any facilities that may involve incurring any direct expense, including but not limited to computer, long distance telephone, network data, internet, or other communication charges, vehicles, and reproduction equipment.
9.2 Payment of Taxes.
Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal and state taxes.
9.3 Notices.
All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, sent by pre-paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by email, and shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) three (3) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by email. Any notice, request, demand, direction, or other communication sent by email must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as text messages and instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows:
If to City: City of Rialto
150 S. Palm Ave.
Rialto, CA 92376
Attn: City Manager
Tel: (909) 820-2525
With copy to: Burke, Williams & Sorensen, LLP
1770 Iowa Avenue, Suite 240
Riverside, CA 92507
Attn: Eric S. Vail, City Attorney
Tel: (951) 788-0100
If to Consultant: Securitas Technology Corporation
3800 Tabs Drive
Uniontown, OH 44685
Attn: Tracy Burnett, Sr. Account Executive
(469) 910-6205/ [email protected]
Either Party may change its address by notifying the other Party of the change of address in writing.
9.4 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.5 Counterparts.
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This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
9.6 Integration; Amendment.
This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the Parties. It is understood that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.7 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
9.8 Corporate Authority.
The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
9.9 Data Protection.
9.9.1 To the extent Consultant may be exposed or receive City Data as defined below, Consultant shall protect, using the most secure means and technology that is commercially available, City-provided data or consumer-provided data acquired in the course and scope of this Agreement, including but not limited to customer lists and customer credit card or consumer data, (collectively, the “City Data”). Consultant shall notify City in writing as soon as reasonably feasible, and in any event within twenty-four (24) hours, of Consultant’s discovery or reasonable belief of any unauthorized access of City Data (a “Data Breach”), or of any incident affecting, or potentially affecting City Data related to cyber security (a “Security Incident”), including, but not limited to, denial of service attack, and system outage, instability or degradation due to computer malware or virus. Consultant shall begin remediation immediately. Consultant shall provide daily updates, or more frequently if required by City, regarding findings and actions performed by Consultant until the Data Breach or Security Incident has been effectively resolved to City’s satisfaction. Consultant shall conduct an investigation of the Data Breach or Security Incident and shall share the report of the investigation with City. At City’s sole discretion, City and its 1341
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authorized agents shall have the right to lead or participate in the investigation. Consultant shall cooperate fully with City, its agents and law enforcement.
9.9.2 If City is subject to liability for any Data Breach or Security Incident, then Consultant shall fully indemnify and hold harmless City and defend against any resulting actions.
Failure to maintain consistent assignment of Designated Personnel approved for access to City facilities may be deemed a material breach of this Agreement. [SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement on the date first written above.
CITY: CONSULTANT:
CITY OF RIALTO, a municipal
corporation
SECURITAS TECHNOLOGY
CORPORATION, a Delaware
corporation
By: By:
Tanya Williams, City Manager Signature
ATTEST: Tracy Burnett
Name
By:
Barbara A. McGee, City Clerk Sr. Account Executive
Title
APPROVED AS TO FORM:
By:
Burke, Williams & Sorensen, LLP Signature
By:
Eric S. Vail, City Attorney Name
Title
**Two signatures are required if a
corporation**
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EXHIBIT “A”
SCOPE OF SERVICES
Consultant shall provide annual access and intrusion alarm monitoring, maintenance, and repair services. Specifically, Consultant shall provide those services as outlined in its Proposal dated February 27, 2026, included on the following pages. 1344
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EXHIBIT “A-1”
MONITORING SERVICES TERMS AND CONDITIONS
This Exhibit A-1 attached to and incorporated by reference into the Services Agreement (hereinafter “Agreement”), between the City of Rialto (“City”) and Securitas Technology Corporation (“Consultant”). This Exhibit is intended to govern the off-site Monitoring Services provided by Consultant to City or any of its Affiliates. If a conflict or inconsistency exists between the Agreement and this Exhibit, then the Agreement shall prevail as it relates to the Monitoring Services.
1. Liquidated Damages and Consultant’s Limits of Liability.
A. The Parties agree that Consultant is providing a system and/or service designed to reduce the risk of loss only; that the payments provided for herein are based solely on the value of the system and/or services as described herein and are unrelated to the value of any property located on City's premises; that Consultant is not liable for losses which may occur in cases of malfunction or nonfunction of any system provided by Consultant or that Consultant is not liable for losses which may occur in the monitoring, repairing, signal handling or dispatching aspects of the service or failure of performance, with the exception of Consultant’s gross negligence, willful misconduct; that Consultant is not liable for losses resulting from failure to warn or inadequate training; that Consultant is not an insurer; and that insurance covering personal injury, property loss, and damage to and on City's premises must be obtained and/or maintained by City. City understands that it is City’s duty to purchase such insurance; that Consultant offers several levels of protection and services and that the system and/or service described in the Schedule has been chosen by City after considering and balancing the levels of protection afforded by various systems and the related costs. The Agreement shall confer no rights on the part of any person or entity that is not a party hereto, whether as a third-party beneficiary or otherwise.
B. IT IS AGREED THAT IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX
ACTUAL DAMAGES WHICH MAY ARISE IN SITUATIONS WHERE THERE MAY
BE A FAILURE OF THE SYSTEM AND/OR SERVICES PROVIDED, DUE TO THE
UNCERTAIN NATURE OF POTENTIAL DAMAGES AND/OR VALUE OF CITY'S
PROPERTY OR THE PROPERTY OF OTHERS KEPT ON THE PROTECTED
PREMISES WHICH MAY BE LOST, STOLEN, DESTROYED, DAMAGED OR
OTHERWISE AFFECTED BY OCCURRENCES WHICH THE SYSTEM OR SERVICE
IS DESIGNED TO DETECT OR AVERT, INCLUDING LOSS, DAMAGE, OR
INABILITY TO OR IMPAIRMENT OF ACCESS TO CITY DATA, INABILITY OF
CONSULTANT TO GUARANTEE POLICE, FIRE DEPARTMENT AND MEDICAL
ALERT RESPONSE TIME, AND ESTABLISHING A CAUSAL CONNECTION
BETWEEN THE SYSTEM OR SERVICE PROBLEMS AND CITY'S POSSIBLE LOSS OR INJURIES TO THIRD PARTIES. THEREFORE, IF LIABILITY IS IMPOSED ON
CONSULTANT, ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, FOR
PROPERTY DAMAGE OR PERSONAL INJURY, SUCH LIABILITY SHALL BE
LIMITED TO AN AMOUNT EQUAL TO THE ANNUAL SERVICE CHARGE FOR THE PARTICULAR LOCATION INVOLVED OR $10,000.00 WHICHEVER IS LESS.
THIS SUM SHALL BE PAID AND RECEIVED EITHER (I) AS LIQUIDATED 1351
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DAMAGES AND NOT AS A PENALTY, OR (II) AS A LIMITATION OF LIABILITY APPROVED AND AGREED UPON BY THE PARTIES. THE PAYMENT OF THIS AMOUNT SHALL BE CONSULTANT’S SOLE AND EXCLUSIVE LIABILITY
REGARDLESS OF WHETHER LOSS OR DAMAGE IS CAUSED BY THE
PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS UNDER THIS
AGREEMENT OR BY NEGLIGENCE, ACTIVE OR OTHERWISE (WITH THE
EXCEPTION OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), OF CONSULTANT, ITS EMPLOYEES, AGENTS OR REPRESENTATIVES. IF CITY
WISHES CONSULTANT TO INCREASE THE AMOUNT OF THE LIQUIDATED
DAMAGES OR LIMITATION OF LIABILITY AS PROVIDED ABOVE, CITY MAY
OBTAIN FROM CONSULTANT AN ADDITIONAL AMOUNT OF LIQUIDATED
DAMAGES OR LIMITATION OF LIABILITY BY PAYING AN ADDITIONAL
MONTHLY SERVICE CHARGE TO CONSULTANT, SUBJECT TO WRITTEN
APPROVAL BY AN AUTHORIZED CONSULTANT REPRESENTATIVE SETTING FORTH SAID TERMS. THIS CLAUSE WILL IN NO WAY BE INTERPRETED TO ESTABLISH CONSULTANT AS AN INSURER.
NO SUIT OR ACTION SHALL BE BROUGHT AGAINST CONSULTANT MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CAUSE OF ACTION ARISES.
C. Since the Parties agree that City retains the sole responsibility for the life and safety of all persons in its premises, and for protecting against losses to his/her own property or the property of others in its premises, CITY AGREES TO INDEMNIFY AND SAVE
HARMLESS CONSULTANT, ITS EMPLOYEES, AGENTS, OR REPRESENTATIVES
FROM AND AGAINST ALL CLAIMS, LAWSUITS AND LOSSES BY PERSONS NOT
A PARTY TO THIS AGREEMENT, ALLEGED TO BE CAUSED BY THE IMPROPER
OPERATION OF THE SYSTEM, WHETHER DUE TO MALFUNCTIONING OR
NONFUNCTIONING OF THE SYSTEM OR THE NEGLIGENT PERFORMANCE OR
NONPERFORMANCE BY CONSULTANT FOR THE MONITORING SERVICE
PROVIDED BY CONSULTANT, INCLUDING BUT NOT LIMITED TO,
MONITORING, SIGNAL HANDLING, OR DISPATCHING ASPECTS OF THE SERVICE.
D. ANY LIMITATION OF LIABILITY OR DISCLAIMER CONTAINED IN EXHIBIT A1 SHALL NOT APPLY TO CLAIMS ARISING FROM CONSULTANT’S
NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF
CONFIDENTIALITY, CYBERSECURITY OBLIGATIONS, OR FAILURE TO PERFORM AGREED MONITORING OR RESPONSE SERVICES.
2. Waiver of Subrogation.
City shall obtain, and maintain, insurance coverage to cover all losses, damage, or injury, related to or sustained by City in connection with the services provided by Consultant. For all losses, damage or injury above the limits set forth in Paragraph 2.B, City shall look solely to its insurer for recovery of its loss and hereby waives any and all claims for such loss against Consultant. City agrees to obtain insurance permitting said waiver without invalidating 1352
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coverage. City does hereby for itself and for other parties claiming under it, release and discharge Consultant from and against all claims arising from hazards covered by insurance, it being expressly agreed and understood that no insurance City or insurer will have any right of subrogation against Consultant.
3. Miscellaneous Charges and Increase in Charges.
A. If City is assessed any fine or penalty by any municipality, fire, or police department as a result of any false alarm, City shall pay the full amount of such fine or penalty. If, following an investigation at City's request, it is mutually agreed that a false alarm was caused by Consultant, the amount of the fine or penalty paid by City shall be credited to City's account.
B. City shall pay any and all charges imposed by any telephone, internet, or other telecommunications provider. Consultant may immediately increase its monthly charges to reflect any increased telecommunications charges for the City facility covered by this Agreement.
C. It is City's responsibility to obtain alarm use permits and any other types of permits required by the local jurisdiction.
4. Obligations of City.
A. For those premises where Consultant is to provide monitoring, City shall furnish Consultant a list of the names, titles, telephone numbers and signatures of all persons authorized to enter the premises of City during scheduled closed periods and shall be responsible for updating such lists. In cases of supervised service, City shall also furnish Consultant with an authorized daily and holiday opening and closing schedule.
B. City shall set the alarm system at such times as City shall close its premises. City shall test the alarm system prior to each closed period and shall immediately report to Consultant any claimed inadequacy in, or failure of, the system. City shall perform a periodic walk test of any motion detection equipment used on the premises.
C. For those premises where Consultant is to provide central station sprinkler supervisory and water flow alarm or automatic fire alarm service, City warrants and agrees that all alarm valves, gate valves, tanks, pumps, compressors, inspector test connections, or other elements of the sprinkler system as now installed or to be installed, are, or will be, corrected at City's expense so as to be acceptable to the insurance and other authorities having jurisdiction when equipped with Consultant’s signaling devices. City further agrees to furnish any necessary water through City's meter and at City's expense, to place hoods over any open forges or fires, and to pipe all boiler blow-offs and steam exhaust outside the premises to be protected.
D. For those premises where closed circuit television equipment is provided, City will provide adequate illumination under all operational conditions for the proper operation of the closed circuit television camera and will provide 110 AC power supply where required, as well as shelf or desk space for monitors.
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E. It is mutually agreed that the City assumes full responsibility for the operation of any and all bypass or switch units provided for disconnecting or reconnecting the alarm sounding and/or transmitting equipment at City's premises.
F. Verified Response Jurisdictions. Some jurisdictions require that an intrusion be verified by video, audio, or in-person verification before police will respond to an alarm signal. In the event an intrusion alarm signal is received by Consultant, but the police department indicates it will not respond without verification, Consultant shall verify by video or audio (if possible) or shall contact a guard service to send a guard to City's Premises to verify the alarm. City shall be responsible for payment of any costs Consultant incurs in this regard.
5. Obligations of Consultant.
A. If City has subscribed to monitoring service, the system will be connected to an alarm monitoring station operated by Consultant or one of its affiliates (the “Center”). Unless specifically requested otherwise by the City and approved by Consultant, when an intrusion alarm signal from the alarm system is received, the Center will first try to telephone City's premises, and if there is no answer then will try to telephone the first available person on City's emergency call list, to verify whether or not an emergency condition requiring police response exists. If there is no answer to both of these calls or the person contacted indicates that an emergency exists, the Center will attempt to notify the police department. The Center will also attempt to contact someone on the emergency call list to advise them once the police have been notified. When a fire alarm, hold-up alarm, or duress alarm signal is received, the Center will attempt to notify the police or fire department or other emergency personnel and the first available person on the emergency call list. When a non-emergency signal is received, the Center will attempt to contact the premises or the first available person on the emergency call list but will not notify emergency authorities. The Center reserves the right to use automated notification procedures in lieu of phone call notifications for non-emergency signals unless expressly prohibited by local authorities. If City requires phone notification for non-emergency signals, City agrees to subscribe to such service and an additional fee may apply. Phone notification for non-emergency signals will be made during normal day-time hours unless expressly requested otherwise by City.
Consultant may choose not to notify emergency personnel if it has reason to believe that an emergency condition does not exist. Consultant and City are obligated to comply with all notification and response requirements imposed by governmental agencies having jurisdiction over the system. Consultant reserves the right to discontinue or change any particular response service due to such governmental or insurance requirements without notice. City consents to the audio and video recording of telephonic and video communications between City's premises and Consultant, and will inform its employees and third parties that such recordings are authorized. If City's police or fire department now or in the future requires physical or visual verification of an emergency condition before responding to a request for assistance, City agrees to subscribe to such service if provided by Consultant, or otherwise comply with such requirements, and an additional fee may apply for such services.
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B. If video equipment is installed, it will be integrated into the system. When the video equipment is activated, it will send a video transmission to the Center. The Center will first attempt to verify the nature of the emergency by viewing the video. If the Center determines that an emergency condition exists, it will try to first telephone the premises, if available, and report the emergency condition. If there is no answer or the person answering confirms the emergency condition, then, based upon the nature of the emergency condition, the Center will notify the proper police or fire department or other emergency personnel, and the next available person on the emergency call list. If the Center determines that an emergency condition does not exist or the video is inconclusive, the Center will use the notification procedures set forth in paragraph 6.B above.
C. City understands that, if the system installed is monitored, due to the nature of the method used for communicating alarm signals to the Consultant’s monitoring center, there may be times when that communication method is not able to transmit signals and Consultant will not receive alarm signals. Digital communicators use telecommunications lines (such as standard telephone lines or other types of lines), and Consultant does not receive signals when the telephone system becomes non-operational or the line is placed on vacation status, cut, interfered with, or otherwise damaged. There will be times when any radio frequency method, such as cellular, public or private radio systems or Internet-based service, cannot transmit an alarm signal due to lack of signal strength, network congestion, or unavailability of a communications channel. Similarly, any other type of communication method installed under this Agreement also can experience an inability to communicate alarm signals. City understands that Consultant offers several levels of communication methods of alarm signals to the Center and that the Services described on the applicable Schedule(s) have been chosen by City after considering and balancing the levels of protection afforded by various communication methods and the related costs. City acknowledges and agrees that City is solely responsible for the selection of the type of communication method and whether the utilization of more than one communication method is required. Communications networks provided by independent carriers or providers are wholly beyond Consultant’s control and are maintained and serviced, solely by the applicable carrier or provider. City agrees to reimburse Consultant for any costs incurred to reprogram the communicator because of area code changes or other dialing pattern changes. If telephone service is used, the use of DSL or other broadband telephone service may prevent the system from transmitting alarm signals to the monitoring center and/or interfere with the telephone line-seizure feature of the system. Such services should be installed on a telephone number that is not used for alarm signal transmission. City agrees to notify Consultant if City has installed or intends to install DSL or other broadband service. IMMEDIATELY AFTER THE
INSTALLATION OF DSL OR OTHER BROADBAND SERVICE, THE
SYSTEM’S SIGNAL TRANSMISSION MUST BE TESTED WITH THE
MONITORING CENTER.
D. For those premises with a direct connection to the police, fire department, or other agency, it is mutually understood and agreed that signals transmitted hereunder will be monitored in police and/or fire departments or other locations, and that the personnel of such police 1355
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and/or fire departments or other agencies are not Consultant’s agents, nor does Consultant assume any responsibility for the manner in which such signals are monitored or the response, if any, to such signals.
E. For those premises where card access security is provided, Consultant assumes no responsibility or liability for lost or stolen access cards.
F. Termination of Monitoring. Upon termination of monitoring services, Consultant shall reasonably cooperate with City for transition of monitoring services to another provider for a period not to exceed thirty (30) days, provided City continues paying undisputed monitoring charges during such transition period.
6. Personal Information.
In the course of providing the services, Consultant, its affiliates and/or an unaffiliated service provider will process and/or store information provided by or relating to the City, which information may include personal information about the City’s employees and customers, outside of the U.S. Such information would be subject to the laws of the foreign jurisdiction and in certain circumstances foreign courts, law enforcement agencies or regulatory agencies may be entitled to access such information. The City is responsible for obtaining any necessary consents and providing any notices required by applicable privacy protection laws in order to permit such processing and/or storage as required in connection with the performance of the services hereunder. The City represents and warrants that it has and shall continue to obtain all consents and/or provide all notices required in accordance with applicable privacy laws in order to permit the processing and/or storage of personal information by Consultant, its affiliates and/or unaffiliated service providers, as described above. Consultant shall not transfer or store City securitysystem data, access credentials, or personally identifiable information outside the United States or Canada without City’s prior written consent.
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EXHIBIT “B”
“COST PROPOSAL”
Upon commencement of this Agreement the total compensation, including reimbursement for actual expenses, shall not exceed Eight Hundred Fifty-Nine Thousand Seven Hundred Sixty Dollars and Thirty-One Cents ($859,760.31).
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EXHIBIT “C”
“SCHEDULE OF PERFORMANCE”
The Term of this Agreement is three (3) years commencing on the Effective Date through June 30, 2029 (“Term”) unless earlier terminated in accordance with Article 7 of this Agreement.
Consultant shall complete the services within the Term of this Agreement and shall meet any other established schedules and deadlines. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than two (2) additional one (1) year terms. 1358
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4934-6602-5399 v2 June 24, 2026
EXHIBIT “D”
“SPECIAL PROVISIONS”
As to Section 5.2: City acknowledges that Contractor’s deductibles/self-insured retentions (General Liability of $500,000, with an aggregate limit of $750K; and Worker’s Compensation of $1 million) are acceptable.
Section 5.3 is supplemented by the following: Notwithstanding the foregoing, Contractor’s indemnification obligations shall be limited to damages directly caused by Contractor, its agents or employees, while on the premises performing services. It is understood that Contractor is not an insurer and that the amounts payable to Contractor are based upon the value of the services hereunder and are unrelated to the value of City’s property or the property of others located on the premises. Contractor makes no guaranty or warranty, including any implied warranty of merchantability or fitness, that the system or services supplied will avert or prevent occurrences or the consequences therefrom, which the system or service is designed to detect or avert (“security loss”) and Contractor shall have no liability for loss, damage or injury for any such security loss event, and if liability is imposed for a security loss event, such liability shall be limited to $10,000, as the agreed upon damages and not as a penalty.
1359
CITY OF RIALTO
DISCLOSURES REQUIRED BY PERSONS OR ENTITIES
CONTRACTING WITH THE CITY OF RIALTO*
Pursuant to City of Rialto Municipal Code Section 2.48.510, all persons or business entities supplying any goods or services to the city, or seeking a loan or grant awarded by the city, whether through an application or proposal, shall disclose in such application or proposal whether any city officer, employee, or consultant may have a financial or non-financial interest in the person or business entity, or in any member, employee, owner, or officer of the business entity. • A financial interest shall mean any interest that is prohibited under state law, including California Government Code Sections 1090 and 87100, and California Code of Regulation Section 18700 et seq.
• A non-financial interest shall mean any interest that is prohibited by City of Rialto Municipal Code Section 2.48.450.
For the purpose of helping the City understand whether City personnel might have a conflict of interest in you or your organization, please disclose below whether you or any of your members, employees, paid or unpaid officers, paid or unpaid directors, or owners are (or are related to) a City elected or appointed official, a City officer, or a City employee or consultant.
Name of Your Organization’s
Affected Member, Employee,
Paid or Unpaid Officer, Paid or
Unpaid Director, or Owner
Name of City Elected or
Appointed Official, City
Officer, a City Employee or
Consultant
Relationship Between the
Two
By submitting this [application/proposal], or supplying any goods or services to the City, the [applicant/vendor/contractor/consultant] hereby attests under penalty of perjury, personally and/or on behalf of the entity [submitting this application/proposal or supplying any goods or services to the City] that no City of Rialto elected or appointed official, employee or consultant has a financial or non-financial interest, as such terms are defined in California Government Code Sections 1090 and 87100 and in City of Rialto Code of Ordinances Section
2.48.145, in the [applicant/vendor/contractor/consultant], except as specifically disclosed herein.
Name of Person/Entity:
Title:
Signature: Date:
Form Date 11/11/2021
July 1, 2026
Sr. Executive Account Manager
Tracy Burnett
N/A N/A N/A
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2.48.450 Employee conflict of interest.
(1) No covered person shall participate in the making of a grant or contract by the city in which the covered person has a conflicting interest.
(2) For purposes of this section, the following definitions shall apply:
(a) A “covered person” includes any person who holds an elected or appointed City office, a City officer, a City employee, and any person who is a consultant to the City. (b) A “conflicting interest” includes, but is not limited to, those decisions where:
(i) A covered person holds or has held within the previous twelve months a position with a potential grant or contract recipient;
(ii) A close relative of a covered person holds or has held within the previous twelve months a position with a grant or contract recipient;
(iii)A close relative of the spouse or domestic partner of a covered person holds or has held within the previous twelve months a position with a grant or contract recipient. (c) “Position” includes the status of a member, employee, owner, paid or unpaid officer of, paid or unpaid leadership position in, or had an ownership interest in, a grant or contract recipient. (d) A “close relative” includes a spouse, parent, grandparent, child, grandchild, aunt, uncle, or cousin. (e) “Participate in the making of a grant or contract” includes participation in: drafting a solicitation or contract; negotiating, voting on, approving, or executing a grant or contract; discussion of same with any city officer or employee; or attempts in any way to influence the making of a grant or contract. (3) This prohibition shall not apply to a contract let by written competitive bid where the contract will be awarded to the person or entity who submits the lowest responsible and responsive bid. (4) Except for the Mayor or a member of the City Council, a covered person may request a waiver of any potential conflict of interest in writing from the City Manager. Any request for such a waiver must include full disclosure of the potential conflict of interest and a statement detailing any mitigating factors. The request and the City Manager’s response shall be provided to the City Council prior to any vote to approve the contract or grant, or if City Council approval is not required, at least five days before the contract or grant is approved. The request and the City Manager’s response shall be considered a public record. (5) The prohibitions in this section are in addition to any applicable federal or state conflict of interest laws, including but not limited to Government Code section 1090, and Government Code section 87100 et seq. 1361
(6) Any person who violates this section is subject to the following:
(a) Public censure;
(b) If the conflict of interest was in the making of a contract, a prohibition from participation in the making of a contract by the city for a period of time up to twelve (12) months from the date of the imposition of the discipline;
(c) If the conflict of interest was in the making of a grant, a prohibition from participation in the making of a grant by the city for a period of time of up to twenty-four (24) months from the date of the imposition of the discipline;
(d) An administrative fine pursuant to Chapter 1.10 of this code. (7) The discipline specified herein may be imposed:
(a) By the City Manager in the case of any employee or consultant who violates this section. (b) By the City Council in the case of any person who holds an elected or appointed City office, or any City officer who violates this section.
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City of Rialto Service Agreement
Response to: Request for Service Agreement Contract
Pricing for contract years July 1, 2026-June 30, 2031
(3-year term with 2-year extension option)
Date: February 27, 2026
Submitted to: The City of Rialto
150 South Palm Avenue
Rialto, CA 92376
Attention: Mike Orona
[email protected]
909.820.2605
Submitted by: Securitas Technology Corporation
Tracy Burnett
Sr. Account Executive
469-910-6205
[email protected]
This entire proposal includes data that shall not be disclosed outside the City of Rialto and shall not be duplicated, used or disclosed – in whole or in part – for any purpose other than to evaluate this proposal. If, however, a contract is awarded to this offer, or as a result of or in connection with, the submission of this data, the City of Rialto shall have the right to duplicate, use, or disclose the data to the extent provided in the resulting contract. This restriction does not limit your right to use information contained in this data if it is obtained from another source without restriction. The data subject to this restriction are contained in all pages of this proposal.
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Securitas Technology Table of Contents
Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this proposal.
Table of Contents
Section 1 Monthly Services
Section 2 Annual Price Breakdown
Section 3 Platinum Service Plan Notes
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Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this proposal. – Annual Price Breakdown
Section 1 – Monthly Services
Platinum Service Plan
Monitoring
o Cellular Primary
o Cellular Back-up/ Monthly Supervision
o Internet Communication/ Daily Supervision
o Intrusion Alarm
o Hold-Up
o Duress
o SecureStat Alarm – Arm/Disarm
Preventative Maintenance
o Fire Control
o Third Party Software Management & Support Plan
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Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this proposal.
Section 2 – Annual Price Breakdown
2026-2027 Contract
Platinum Service Plan $120,939.26
Monitoring $17,753.29
Preventative Maintenance $4,411.78
TOTAL $143,104.33
2027-2028 Contract
Platinum Service Plan $124,567.44
Monitoring $18,285.88
Preventative Maintenance $4,544.13
TOTAL $147,397.46
2028-2029 Contract
Platinum Service Plan $128,304.46
Monitoring $18,834.46
Preventative Maintenance $4,680.46
TOTAL $151,819.38
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Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this proposal.
Section 2 – Annual Price Breakdown (Continued)
Extension Option:
2029-2030 Contract
Platinum Service Plan $132,153.60
Monitoring $19,399.49
Preventative Maintenance $4,820.87
TOTAL $156,373.96
2030-2031 Contract
Platinum Service Plan $136,118.21
Monitoring $19,981.48
Preventative Maintenance $4,965.50
TOTAL $161,065.18
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Use or disclosure of data contained on this sheet is subject to the restriction on the title page of this proposal.
Section 3 – Platinum Service Plan Notes
NOTE:
Platinum Service Plan (Parts & Labor 24/7 w/ 4-hour response, includes Holidays) - Plan coverage includes troubleshooting, diagnosis, adjustment, repair and/or replacement, if required, of non-functioning security system devices covered and listed per contract terms. Service is for repair purposes only and covers normal wear and tear. Coverage does not include battery replacement(s), lift or specialty rentals, system upgrades, add ons, technology enhancements, Acts of God, vandalism, customer or third-party alterations or misuse, and other exemptions as identified per contract terms, which will be billed at STC prevailing wage service rates. Plan includes an average 4-hour response in STC coverage areas and covers labor 24 x 7 (Monday thru Sunday, including national holidays). Customer required to provide free and clear access to equipment and the ability to perform repair services as necessary. Customer is responsible to perform their own onsite device and signal testing to identify and report any system malfunctions or service repair needs 1368
City of Rialto
Legislation Text
File #: 26-0468, Version: 1, Agenda #: TAB7
For City Council Meeting July 28, 2026
TO: Honorable Mayor and City Council
APPROVAL: Tanya Williams, City Manager
FROM: Mark P. Kling, Chief of Police
Request City Council to: (1) Approve a Three-Year Professional Services Agreement with Bio-Tox Laboratories for Forensic Toxicology and Laboratory Testing Services in an Amount Not to Exceed $675,000; and (2) Authorize the City Manager or Designee to Execute all Related Documents. (ACTION)
RECOMMENDATION
Staff recommends that the City Council:
1) Approve a three-year Professional Services Agreement with Bio-Tox Laboratories for forensic toxicology and laboratory testing services in an amount not to exceed $675,000; and 2) Authorize the City Manager, or designee, to execute all related documents.
BACKGROUND
Since July 2000, the Rialto Police Department has contracted with Bio-Tox Laboratories to provide forensic toxicology and laboratory testing services in support of criminal investigations. These specialized services include evidentiary blood and bodily fluid testing for alcohol and controlled substances, comprehensive toxicology screening, quantitative confirmation testing utilizing liquid chromatography tandem mass spectrometry (LC/MS/MS), and expert witness testimony in criminal court proceedings. These services are essential for the successful investigation and prosecution of driving under the influence (DUI), narcotics-related offenses, and other criminal investigations requiring forensic toxicological analysis.
Most recently, on September 10, 2024, the City Council approved the Second Amendment to the Agreement for Services with Bio-Tox Laboratories, extending the agreement through Fiscal Year 2025/2026 with a total agreement amount not to exceed $350,000. Throughout its longstanding relationship with the City, Bio-Tox has consistently provided reliable, timely, and professional laboratory services that have supported countless criminal investigations and prosecutions.
The current agreement expired on June 30, 2026. Staff is requesting approval of a new three-year Professional Services Agreement with Bio-Tox Laboratories for the period of July 1, 2026, through June 30, 2029, in a total amount not to exceed $675,000.
ANALYSIS/DISCUSSION
The Rialto Police Department relies on timely and accurate forensic toxicology services to support criminal investigations involving impaired driving, narcotics offenses, fatal traffic collisions, officerCity of Rialto Page 1 of 3 Printed on 7/23/2026 powered by Legistar™1369
File #: 26-0468, Version: 1, Agenda #: TAB7
criminal investigations involving impaired driving, narcotics offenses, fatal traffic collisions, officerinvolved incidents, and other felony investigations where scientific evidence is critical to successful prosecution. The laboratory analysis performed by Bio-Tox Laboratories provides legally admissible scientific evidence that assists investigators and prosecutors in establishing impairment, identifying controlled substances, and securing criminal convictions.
As the Department has continued its proactive traffic safety and DUI enforcement efforts, the demand for forensic toxicology testing has steadily increased. The Department's expanded use of Drug Recognition Experts (DREs), targeted DUI enforcement operations, and proactive traffic enforcement initiatives have resulted in a greater number of evidentiary blood submissions requiring laboratory analysis. Additionally, laboratory testing costs have increased over recent years due to advances in testing methodologies, expanded toxicology panels, and increased analytical requirements for controlled substances.
Bio-Tox Laboratories has worked closely with the Rialto Police Department for more than twenty-five years and has developed extensive institutional knowledge regarding the Department's evidence submission procedures, reporting requirements, and operational needs. Their laboratory personnel understand the Department's investigative timelines and consistently provide timely laboratory analysis and expert consultation that assists investigators and the San Bernardino County District Attorney's Office in filing criminal cases.
Beyond laboratory testing, Bio-Tox provides expert witness testimony in criminal court proceedings, assists investigators in interpreting toxicology findings, and offers expedited testing when necessary for time-sensitive felony filings. This responsiveness has proven invaluable in ensuring that criminal cases proceed without unnecessary delay while preserving the integrity of evidentiary testing.
Pursuant to Rialto Municipal Code Section 2.48.290, staff has determined that Bio-Tox Laboratories qualifies as a sole source provider for these services. Bio-Tox is the only laboratory in the region capable of providing the comprehensive forensic toxicology services required by the Rialto Police Department while maintaining established evidence handling procedures, chain-of-custody protocols, and rapid turnaround times necessary to support criminal investigations. Staff's Sole Source/Standardization Request further documents that no other provider within San Bernardino County offers the same level of specialized forensic toxicology services required by the Department.
Transitioning to another laboratory would create unnecessary operational disruption, require modifications to established evidence handling procedures, delay criminal investigations, and potentially impact the admissibility of forensic evidence.
Approval of the proposed agreement represents the most operationally sound and fiscally responsible approach to ensuring uninterrupted forensic laboratory services. Continuing the City's longstanding partnership with Bio-Tox Laboratories preserves operational continuity, protects evidentiary integrity, and ensures investigators and prosecutors continue receiving timely laboratory analysis necessary to support successful criminal prosecutions.
ENVIRONMENTAL IMPACT
The proposal is not a “Project” as defined by the California Environmental Quality Act (CEQA).
Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. According to Section 15378(b), a Project does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect City of Rialto Page 2 of 3 Printed on 7/23/2026
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File #: 26-0468, Version: 1, Agenda #: TAB7
Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
GENERAL PLAN CONSISTENCY
The City of Rialto’s General Plan has outlined guiding principles and goals relating to public safety.
This action is consistent with the City of Rialto’s General Plan Guiding Principle 1, “Rialto is a Family First Community.”
Our neighborhoods will be a safe place to call home.
Approval of this action is also consistent with the City of Rialto General Plan Goal and Policies:
Goal 5-8: Provide effective and comprehensive policing services that meet the safety needs of Rialto.
Policy 5-8.4: Initiate proactive crime suppression and prevention strategies throughout the community.
LEGAL REVIEW
The City Attorney has reviewed this staff report.
FINANCIAL IMPACT
Operating Budget Impact
Funding for Fiscal Year 2026/2027 has already been included in the Police Department's adopted FY 26/27 operating budget in Account No. 10106281-52011 in the amount of $175,000. Staff will budget the annual funding necessary for Fiscal Years 2027/2028 and 2028/2029 during each respective annual budget process to satisfy any remaining obligations of the agreement with a not to exceed amount of $675,000.
Capital Improvement Budget Impact
There is no impact on the Capital Improvement Budget.
Per Rialto Municipal Code Section: 2.48.450 a vendor disclosure form is attached.
Licensing
This action does not require a business license.
Attachments
1. Bio-Tox Laboratories Services Agreement
2. Bio-Tox Sole Source
3. Certification of Liability Insurance
4. Conflict of Interest Form
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SERVICES AGREEMENT
BETWEEN THE CITY OF RIALTO AND
BIO-TOX LABORATORIES
THIS SERVICES AGREEMENT (herein “Agreement”) is made and entered into this 1 st
day of July, 2026, (“Effective Date”) by and between the City of Rialto, a municipal corporation and California general law city (“City”), organized under the laws of the State of California, with its principal place of business at 150 S. Palm Avenue, Rialto, California 92376 and Bio-Tox Laboratories, a California corporation, with its principal place of business at 1965 Chicago Ave #C, Riverside, CA 92507, (“Consultant”). City and Consultant are sometimes individually referred to as “Party” or collectively as “Parties”.
RECITALS
A. City has sought, by sole source procurement, the performance of services related to laboratory testing and toxicology services (“Project”), as defined and described particularly in Article 1 of this Agreement.
B. Following the submission of a quote for the performance of the services defined and described particularly in Article 1 of this Agreement, Consultant was selected by the City to perform those services.
C. Consultant represents that it is experienced in providing the services to public clients, is licensed in the State of California, and is familiar with the plans of City.
D. Pursuant to Chapter 2.48 of the Rialto Municipal Code, City has authority to enter into and execute this Agreement.
E. The Parties desire to formalize the selection of Consultant for the performance of those services defined and described particularly in Article 1 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
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In compliance with all terms and conditions of this Agreement, Consultant shall provide those services associated with laboratory testing and toxicology services, as specified in the Consultant’s “Scope of Services” attached hereto as Exhibit “A” and incorporated herein by this reference, which services may be referred to herein as the “services” or “work” hereunder. As a material inducement for City to enter into this Agreement, Consultant represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the services required under this Agreement in a thorough, competent, and professional manner, it meets all local, state, and federal requirements in performing the services, and it is experienced in performing the work and services contemplated herein. Consultant shall at all times faithfully, competently, and to the best of its ability, experience, and talent, perform all services described herein. Consultant covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances.
1.2 Consultant’s Proposal.
The Agreement between the Parties shall consist of the following: (1) this Agreement; (2) the Scope of Services; (collectively referred to as the “Contract Documents”). The Contract Documents and accepted Proposal shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the Scope of Services, Consultant’s Proposal and/or this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services hereunder in accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any federal, state, or local governmental entity having jurisdiction in effect at the time service is rendered.
1.4 Licenses, Permits, Fees, and Assessments.
Consultant shall obtain, at its sole cost and expense, such licenses, permits, and approvals as may be required by law for the performance of the services required by this Agreement and such licenses, permits, and approvals shall be maintained throughout the Term of this Agreement.
Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant’s performance of the services required by this Agreement, and shall indemnify, defend, and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City hereunder.
1.5 Familiarity with Work.
By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly investigated and considered the scope of services to be performed, (ii) has carefully considered how the services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement. If the services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services 1373
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hereunder. If Consultant discovers any latent or unknown conditions that will materially affect the performance of the services hereunder, then Consultant shall immediately inform the City of such fact and shall not proceed except at City’s risk until written instructions are received from the Contract Officer.
1.6 Care of Work.
Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies, and/or other components thereof, to prevent losses or damages, and shall be responsible for all such damages to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City’s own negligence.
1.7 Prevailing Wages.
It is the understanding of City and Consultant that the Prevailing Wage Laws may not apply to this Agreement because the Agreement does not involve any services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, “construction” includes work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work. Consultant shall defend, indemnify, and hold City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
Consultant is aware of the requirements of California Labor Code Section 1720, et seq. and 1770, et seq., as well as California Code of Regulations, Title 8, Section 1600, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “Public Works” and “Maintenance” projects. It is the understanding of City and Consultant that the Prevailing Wage Laws may not apply to this Agreement because the Agreement does not involve any services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder. However, Consultant shall defend, indemnify, and hold City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
1.8 Further Responsibilities of Parties.
Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless specified in this Agreement, neither Party shall be responsible for the service of the other.
Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Consultant shall at all times enforce strict discipline and good order among its employees. Any employee who is determined by the City to be uncooperative, incompetent, a threat to the safety of persons or the services, or any 1374
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employee who fails or refuses to perform the services in a manner acceptable to the City, shall be promptly removed from the services to be performed by the Consultant and shall not be reemployed on the services.
1.9 Additional Services.
City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from said work. No such extra work or change may be undertaken unless a written order is first given by the Contract Officer to the Consultant, describing in detail the extra work or change and the reason(s) therefor and incorporating therein any adjustment in (i) the Contract Sum for the actual cost of the extra work or change, and/or (ii) the time to perform this Agreement, which said adjustments shall be reflected in an amendment to the Agreement subject to the written approval of the Parties. Any amendment to this Agreement shall be reviewed and approved by the City Manager. In accordance with Rialto Municipal Code section 2.48.180, increases in compensation of this Agreement may be approved by the City Manager provided: (a) the initial Contract Sum was less than One Hundred Thousand Dollars ($100,000) and the amended Contract Sum when considering any or all amendments will not exceed One Hundred Thousand Dollars ($100,000); or (b) the agreement was approved by the City Council and the increases in compensation taken either separately or cumulatively do not exceed One Hundred Thousand Dollars ($100,000). Any greater increases, taken either separately or cumulatively, must be approved by the City Council. Payment for additional services rendered by Consultant under this Agreement requires the submission of the actual costs of Consultant’s performance of the extra work with the invoice(s) for the extra work claim(s), as provided in Section 2.4. It is expressly understood by Consultant that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time-consuming than Consultant anticipates and that Consultant shall not be entitled to additional compensation therefor. City may, in its sole and absolute discretion, have similar work done by other contractors.
No claim for an adjustment in the contract amount or time for performance shall be valid unless the procedures established in this Section are followed.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the amounts specified in the “Cost Proposal” attached hereto as Exhibit “B” and incorporated herein by this reference. Upon commencement of this Agreement the total compensation, including reimbursement for actual expenses, shall not exceed Six Hundred Seventy-Five Thousand Dollars and Zero Cents ($675,000.00) (the “Contract Sum”). The Contract Sum may also be increased for additional services pursuant to Section 1.9.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion; (ii) payment in accordance with specified tasks or the percentage of completion of the services; (iii) payment for time and materials based upon the Consultant’s rates as specified in the Schedule of 1375
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Compensation, provided that time estimates are provided for the performance of sub tasks, but not exceeding the Contract Sum; or (iv) such other methods as may be specified in the Schedule of Compensation.
2.3 Reimbursable Expenses.
Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5, and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Consultant at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If Consultant is required to attend additional meetings to facilitate such coordination, Consultant shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Consultant shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month in a form approved by City’s Director of Finance.
By submitting an invoice for payment under this Agreement, Consultant is certifying compliance with all provisions of the Agreement. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-contractor contracts. Sub-contractor charges shall also be detailed by such categories. Consultant shall not invoice City for any duplicate services performed by more than one person.
City may independently review each invoice submitted by the Consultant to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. Except as to any charges for work performed or expenses incurred by Consultant which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause Consultant to be paid within thirty (30) days of receipt of Consultant’s correct and undisputed invoice; however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Consultant for correction and resubmission.
2.5 No Waiver.
Review and payment by City to Consultant of any invoice for work performed by Consultant pursuant to this Agreement shall not be deemed a waiver of any defects in work performed by Consultant or of any rights or remedies provided herein or any applicable law.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
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Consultant shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the “Schedule of Performance” attached hereto as Exhibit “C”. and incorporated herein by this reference. When requested by the Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Consultant shall, within ten (10) days of the commencement of such delay, notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer shall extend the time for performance in accordance with the procedures set forth in Section 1.9. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant’s sole remedy being extension of the Agreement pursuant to this Section.
3.4 Term.
The Term of this Agreement is three (3) years, commencing on the Effective Date through June 30, 2029 (“Term”). Unless earlier terminated in accordance with Article 7 of this Agreement, Consultant shall complete the services within the Term of this Agreement and shall meet any other established schedules and deadlines.
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The following principals of Consultant (“Principals”) are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
Tracey Stangarone Business Manager
(Name) (Title)
Melissa Kinney Office Supervisor
(Name) (Title)
It is expressly understood that the experience, knowledge, capability, and reputation of the foregoing Principals were a substantial inducement for City to enter into this Agreement.
Therefore, the Principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder.
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direction and control of the Principals. For purposes of this Agreement, the Principals may not be replaced, nor may their responsibilities be substantially reduced by Consultant without the express written approval of City. Additionally, Consultant shall utilize only competent personnel to perform services pursuant to this Agreement. Consultant shall make every reasonable effort to maintain the stability and continuity of Consultant’s staff and subcontractors, if any, assigned to perform the services required under this Agreement. Consultant shall notify City of any changes in Consultant’s staff and subcontractors, if any, assigned to perform the services required under this Agreement, prior to and during any such performance. If City does not agree to the substitution of key personnel by Consultant, City shall be entitled to terminate this Agreement for cause. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires to reassign any staff or subcontractor of Consultant, Consultant shall, immediately upon a Reassign Notice from City of such desire of City, reassign such persons or persons.
4.2 Status of Consultant.
Consultant shall have no authority to bind City in any manner, or to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless such authority is expressly conferred under this Agreement or is otherwise expressly conferred in writing by City. Consultant shall not at any time or in any manner represent that Consultant or any of Consultant’s officers, employees, or agents are in any manner officials, officers, employees or agents of City. Neither Consultant, nor any of Consultant’s officers, employees or agents, shall obtain any rights to retirement, health care, or any other benefits which may otherwise accrue to City’s employees. Consultant expressly waives any claim Consultant may have to any such rights.
4.3 Contract Officer.
The Contract Officer shall be the City Manager or other such person designated by the City Manager. It shall be the Consultant’s responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.4 Independent Contractor.
Neither the City nor any of its employees shall have any control over the manner, mode, or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Consultant’s employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with Consultant.
4.5 Prohibition Against Subcontracting or Assignment.
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The experience, knowledge, capability, and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty-five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Consultant or any surety of Consultant of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance Coverages.
The Consultant shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, the following policies of insurance which shall cover all elected and appointed officers, employees, and agents of City:
5.1.1 Comprehensive General Liability Insurance (Occurrence Form CG0001 or equivalent). A policy of comprehensive general liability insurance written on a per occurrence basis for bodily injury, personal injury, and property damage. The policy of insurance shall be in an amount not less than $1,000,000.00 per occurrence or if a general aggregate limit is used, then the general aggregate limit shall be twice the occurrence limit.
5.1.2 Workers’ Compensation Insurance. A policy of worker’s compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure, and provide legal defense for both the Consultant and the City against any loss, claim, or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Consultant in the course of carrying out the work or services contemplated in this Agreement. If Consultant has no employees or agents, Consultant shall not be required to maintain Workers’ Compensation Insurance. However, in the event that Consultant hires employees or agents during the Term of this Agreement, Consultant shall obtain and maintain Workers’ Compensation Insurance in accordance with this section.
5.1.3 Automotive Insurance (Form CA 0001 (Ed 1/87) including “any auto” and endorsement CA 0025 or equivalent). A policy of comprehensive automobile liability insurance written on a per occurrence for bodily injury and property damage in an amount not less than $1,000,000. Said policy shall include coverage for owned, non-owned, leased, and hired cars.
5.1.5 Additional Insurance. Policies of such other insurance, as may be required in the Special Requirements.
5.1.6 Subcontractors. Consultant shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
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5.2 General Insurance Requirements.
All of the above policies of insurance shall be primary insurance and shall name the City, its elected and appointed officers, employees, and agents as additional insureds, and any insurance maintained by City or its officers, employees, or agents shall apply in excess of, and not contribute with, Consultant’s insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against the City, its officers, employees, and agents and their respective insurers. The insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention. All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any Party hereto without providing thirty (30) days prior written notice by certified mail return receipt requested to the City. In the event any of said policies of insurance are cancelled, the Consultant shall, prior to the cancellation date, submit new evidence of insurance in conformance with Section 5.1 to the Contract Officer. No work or services under this Agreement shall commence until the Consultant has provided the City with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the City. City reserves the right to inspect complete, certified copies of all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to City.
City, its respective elected and appointed officers, directors, officials, employees, agents and volunteers are to be covered as additional insureds as respects: liability arising out of activities Consultant performs; products and completed operations of Consultant; premises owned, occupied or used by Consultant; or automobiles owned, leased, hired or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, employees or volunteers. Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability.
Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims. The Consultant agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages to any persons or property resulting from the Consultant’s activities or the activities of any person or persons for which the Consultant is otherwise responsible nor shall it limit the Consultant’s indemnification liabilities as provided in Section 5.3.
In the event the Consultant subcontracts any portion of the work in compliance with Section 4.5 of this Agreement, the contract between the Consultant and such subcontractor shall require the subcontractor to maintain the same policies of insurance that the Consultant is required to maintain pursuant to Section 5.1, and such certificates and endorsements shall be provided to City.
5.3 Indemnification.
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To the full extent permitted by law, Consultant agrees to indemnify, defend, and hold harmless the City, its officers, employees, volunteers, and agents (“Indemnified Parties”) against any and all actions, either judicial, administrative, arbitration or regulatory claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent performance of the work, operations, or activities provided herein of Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity for which Consultant is legally liable (“indemnitors”), arising from Consultant’s reckless or willful misconduct, or arising from Consultant’s or indemnitors’ negligent performance of or failure to perform any term, provision, covenant, or condition of this Agreement, and in connection therewith:
5.3.1 Consultant will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys’ fees incurred in connection therewith;
5.3.2 Consultant will promptly pay any judgment rendered against the City, its officers, agents, or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, volunteers, and employees harmless therefrom;
5.3.3 In the event the City, its officers, agents, volunteers, or employees is made a party to any action or proceeding filed or prosecuted against Consultant for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers, agents, volunteers, or employees, any and all costs and expenses incurred by the City, its officers, agents, volunteers, or employees in such action or proceeding, including but not limited to, legal costs and attorneys’ fees.
Consultant shall incorporate similar, indemnity agreements with its subcontractors and if it fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and failure of City to monitor compliance with these provisions shall not be a waiver hereof. The provisions of this Section do not apply to claims or liabilities occurring as a result of City’s sole negligence or willful acts or omissions, but, to the fullest extent permitted by law, shall apply to claims and liabilities resulting in part from City’s negligence. The indemnity obligation shall be binding on successors and assigns of Consultant and shall survive termination of this Agreement.
5.4 Sufficiency of Insurer or Surety.
Insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City (“Risk Manager”) due to unique circumstances. If this Agreement continues for more than 3 years duration, or in the event the Risk Manager determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the Risk Manager Consultant.
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ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Consultant shall keep, and require subcontractors to keep, such ledgers books of accounts, invoices, vouchers, canceled checks, reports, studies or other documents relating to the disbursements charged to City and services performed hereunder (the “books and records”), as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. Any and all such documents shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of 3 years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. In the event of dissolution of Consultant’s business, custody of the books and records may be given to City, and access shall be provided by Consultant’s successor in interest.
6.2 Reports.
Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Consultant agrees that if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Consultant is providing design services, the cost of the project being designed, Consultant shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Consultant is providing design services, the estimated increased or decreased cost estimate for the project being designed.
6.3 Ownership of Documents and Materials; Exceptions; Warranty.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents and other materials (the “documents and materials”) prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or assignment of such completed documents and materials for other projects and/or use of uncompleted documents and materials without specific written authorization by the Consultant will be at the City’s sole risk and without liability to Consultant, and Consultant’s guarantee and warranties shall not extend to such use, reuse or assignment. Consultant may retain copies of such documents and materials for its own use. Consultant shall have the right to use the concepts embodied therein. All subcontractors shall provide for assignment to City any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages resulting therefrom. 1382
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Consultant warrants that all documents and materials it drafts and completes pursuant to this Agreement constitutes original work. Specifically, Consultant understands and agrees that use of artificial intelligence (AI) tools including, without limitation, ChatGPT, Microsoft’s Bing Chat, Google’s Bard, and Meta’s LLaMA (Large Language Model Meta AI), in the performance of this Agreement does not constitute an original work, i.e., submitting documents and materials generated by such AI tools to City and representing it as Consultant’s original work constitutes a material breach of this Agreement, constitutes a false claim, and may also violate applicable intellectual property right laws including, without limitation, United States Copyright Law.
Accordingly, and notwithstanding any other provision of this Agreement as to ownership, City specifically rejects ownership of such documents and materials. Consultant is required to indemnify and defend City to the fullest extent allowed by applicable law should it violate this Section.
6.4 Confidentiality and Release of Information.
6.4.1 All information gained or work product produced by Consultant in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Consultant. Consultant shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the Contract Officer. Consultant shall not use City’s name or insignia, photographs, or any publicity pertaining to the services in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
6.4.2 Consultant, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the Contract Officer or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided Consultant gives City notice of such court order or subpoena.
6.4.3 If Consultant, or any officer, employee, agent or subcontractor of Consultant, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Consultant for any damages, costs and fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct.
6.4.4 Consultant shall promptly notify City should Consultant, its officers, employees, agents, or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed there under. City retains the right, but has no obligation, to represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Consultant. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
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This Agreement shall be interpreted, construed, and governed both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of San Bernardino, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, Eastern Division.
7.2 Disputes; Default.
In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default.
This timeframe is presumptively thirty (30) days, but may be extended if circumstances warrant, however, the timeframe may also be shortened if the default results in a safety issue or imminent threat to City employees or the public. During the period of time that Consultant is in default, the City shall hold all invoices and shall proceed with payment on the invoices only when the default is cured. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under this Article. Any failure on the part of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Consultant’s acts or omissions in performing or failing to perform Consultant’s obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Consultant to insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a non-defaulting Party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 1384
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7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
7.6 Legal Action.
In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
7.7 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically provided in the following Section for termination for cause. City reserves the right to terminate this Contract at any time, with or without cause, upon thirty (30) days’ written notice to Consultant, except that where termination is due to the fault of the Consultant, the period of notice may be such shorter time as may be determined by the Contract Officer. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event of termination without cause pursuant to this Section, the City need not provide the Consultant with the opportunity to cure pursuant to Section 7.2.
7.8 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Consultant, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest.
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Consultant covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Consultant’s performance of services under this Agreement. Consultant further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the Contract Officer. Consultant agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects their financial interest or the financial interest of any corporation, partnership or association in which they are, directly or indirectly, interested, in violation of any State statute or regulation. The Consultant warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
Additionally, pursuant to Rialto Municipal Code section 2.48.145, Consultant represents that it has disclosed whether it or its officers or employees is related to any officer or employee of the City by blood or marriage within the third degree which would subject such officer or employee to the prohibition of California Government Sections 87100 et. seq., Fair Political Practices Commission Regulation Section 18702, or Government Code Section 1090. To this end, by approving this Agreement, Consultant attests under penalty of perjury, personally and on behalf of Consultant, as well its officers, representatives, that it/they have no relationship, as described above, or financial interests, as such term is defined in California Government Section 87100 et. seq., Fair Political Practices Commission Regulation Section 18702, or Government Code Section 1090, with any City of Rialto elected or appointed official or employee, except as specifically disclosed to the City in writing.
8.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, gender identity, marital status, national origin, ancestry, or other protected class in the performance of this Agreement. Consultant shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, sexual orientation, gender, gender identity, marital status, national origin, ancestry, or other protected class.
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorney’s fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
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9.1 Facilities and Equipment.
Except as otherwise provided, Consultant shall, at its own cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. City shall make available to Consultant only physical facilities such as desks, filing cabinets, and conference space (“City Facilities”), as may be reasonably necessary for Consultant’s use while consulting with City employees and reviewing records and the information in possession of City. The location, quality, and time of furnishing of City Facilities shall be in the sole discretion of City. In no event shall City be required to furnish any facilities that may involve incurring any direct expense, including but not limited to computer, long distance telephone, network data, internet, or other communication charges, vehicles, and reproduction equipment.
9.2 Payment of Taxes.
Consultant is solely responsible for the payment of employment taxes incurred under this Agreement and any federal and state taxes.
9.3 Notices.
All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered, sent by pre-paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by email, and shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) three (3) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by email. Any notice, request, demand, direction, or other communication sent by email must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as text messages and instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows:
If to City: City of Rialto
150 S. Palm Ave.
Rialto, CA 92376
Attn: City Manager
Tel: (909) 820-2525
With copy to: Burke, Williams & Sorensen, LLP
1770 Iowa Avenue, Suite 240
Riverside, CA 92507
Attn: Eric S. Vail, City Attorney
Tel: (951) 788-0100
If to Consultant: Bio-Tox Laboratories
1965 Chicago Ave. #C
Riverside, CA 92507
Tracey Stangarone / Business Manager
(951) 341-9355 / [email protected]
Either Party may change its address by notifying the other Party of the change of address in writing.
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9.4 Interpretation.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.5 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
9.6 Integration; Amendment.
This Agreement including the attachments hereto is the entire, complete and exclusive expression of the understanding of the Parties. It is understood that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties, and none shall be used to interpret this Agreement. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Consultant and by the City. The Parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void.
9.7 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless.
9.8 Corporate Authority.
The persons executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said Party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
9.9 Data Protection.
9.9.1 Consultant shall protect, using the most secure means and technology that is commercially available, City-provided data or consumer-provided data acquired in the course and scope of this Agreement, including but not limited to customer lists and customer credit card or consumer data, (collectively, the “City Data”). Consultant shall notify City in writing as soon as reasonably feasible, and in any event within twenty-four (24) hours, of Consultant’s discovery or reasonable belief of any unauthorized access of City Data (a “Data Breach”), or of any incident affecting, or potentially affecting City Data related to cyber security (a “Security Incident”), including, but not limited to, denial of service attack, and system outage, instability or degradation 1388
December 11, 2025
4899-8084-0833 v1 Page-18
due to computer malware or virus. Consultant shall begin remediation immediately. Consultant shall provide daily updates, or more frequently if required by City, regarding findings and actions performed by Consultant until the Data Breach or Security Incident has been effectively resolved to City’s satisfaction. Consultant shall conduct an investigation of the Data Breach or Security Incident and shall share the report of the investigation with City. At City’s sole discretion, City and its authorized agents shall have the right to lead or participate in the investigation. Consultant shall cooperate fully with City, its agents and law enforcement.
9.9.2 If City is subject to liability for any Data Breach or Security Incident, then Consultant shall fully indemnify and hold harmless City and defend against any resulting actions. [SIGNATURES ON FOLLOWING PAGE]
1389
December 11, 2025
4899-8084-0833 v1 Page-19
IN WITNESS WHEREOF, the parties hereto have executed and entered into this Agreement on the date first written above.
CITY: CONSULTANT:
CITY OF RIALTO, a municipal
corporation
Bio-Tox Laboratories, Inc., a California
corporation
By: By:
Tanya Williams, City Manager Signature
ATTEST: Tracey Stangarone
Name
By:
Barbara A. McGee, City Clerk President
Title
APPROVED AS TO FORM:
By:
Burke, Williams & Sorensen, LLP Signature
By: Sue Somers
Eric S. Vail, City Attorney Name
Assistant Secretary
Title
**Two signatures are required if a
corporation**
1390
4899-8084-0833 v1 A-1
EXHIBIT “A“
SCOPE OF SERVICES
Consultant shall provide services related to laboratory testing and toxicology services. 1391
4899-8084-0833 v1 B-1
EXHIBIT “B”
“COST PROPOSAL”
Upon commencement of this Agreement the total compensation, including reimbursement for actual expenses, shall not exceed Six Hundred Seventy-Five Thousand Dollars and Zero Cents ($675,000.00).
1392
4899
-8084-0833 v1B-2
1393
C-1
4899-8084-0833 v1
EXHIBIT “C”
“SCHEDULE OF PERFORMANCE”
The Term of this Agreement is three (3) years, commencing on the Effective Date through June 30, 2029 (“Term”). Unless earlier terminated in accordance with Article 7 of this Agreement, Consultant shall complete the services within the Term of this Agreement and shall meet any other established schedules and deadlines.
1394
1395
1396
1397
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
INSURER(S) AFFORDING COVERAGE
INSURER F :
INSURER E :
INSURER D :
INSURER C :
INSURER B :
INSURER A : NAIC #
NAME: CONTACT
(A/C, No): FAX
E-MAIL ADDRESS:
PRODUCER
(A/C, No, Ext): PHONE
INSURED
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
OTHER:
(Per accident)
(Ea accident)
$
$
N / A
SUBR WVDADDL
INSD
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $
$
$
$ PROPERTY DAMAGE
BODILY INJURY (Per accident)
BODILY INJURY (Per person) COMBINED SINGLE LIMIT
AUTOS ONLY
AUTOS ONLY AUTOS NON-OWNED OWNED SCHEDULED
ANY AUTO
AUTOMOBILE LIABILITY
Y / N WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?
(Mandatory in NH) DESCRIPTION OF OPERATIONS below
If yes, describe under
ANY PROPRIETOR/PARTNER/EXECUTIVE
$
$
$ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEEE.L. EACH ACCIDENT EROTH- STATUTE PER
(MM/DD/YYYY) LIMITS POLICY EXP(MM/DD/YYYY) POLICY EFFLTR TYPE OF INSURANCE POLICY NUMBER INSR
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
EXCESS LIAB
UMBRELLA LIAB EACH OCCURRENCE $ AGGREGATE $
$
OCCUR
CLAIMS-MADE DED RETENTION $
PRODUCTS - COMP/OP AGG $ GENERAL AGGREGATE $ PERSONAL & ADV INJURY $ MED EXP (Any one person) $
EACH OCCURRENCE $ DAMAGE TO RENTED
PREMISES (Ea occurrence) $ COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC
CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)
CANCELLATION
AUTHORIZED REPRESENTATIVE
ACORD 25 (2016/03)
© 1988-2015 ACORD CORPORATION. All rights reserved.
CERTIFICATE HOLDER
The ACORD name and logo are registered marks of ACORD
HIRED
AUTOS ONLY
6/9/2026
Edgewood Partners Ins. Center
3633 Inland Empire Blvd
Suite 640 Lic#0B29730
Ontario CA 91764
Certificate Department 925-244-7700 925-901-0671 [email protected] Landmark American Insurance Company 33138 BIOTLAB Hartford Accident and Indemnity Company 22357 Bio-Tox Laboratories Inc.
1965 Chicago Avenue, Suite C
Riverside CA 92507
377728154
A X 2,000,000 X 50,000 X 2,500 5,000 X RetroDat:10/1/17 1,000,000 *4,000,000 X Y Y LHC876375 6/1/2026 6/1/2027
*4,000,000 *CombinedAgg 4,000,000
B 1,000,000 X
X X
Y Y 72UECCK4777 6/1/2026 6/1/2027
A E&O
Claims-Made
Retro Date: 10/1/17
LHC876375 6/1/2026 6/1/2027 Medical/Prof Liab
*Combined Aggregate
Deductible
$2,000,000
$4,000,000
$2,500
City of Rialto, Its Officers, Officials, Employees, and Volunteers is named additional insured with respect to liability when required by written contract per the attached endorsements. Waiver of Subrogation applies.
City of Rialto
150 South Palm Ave.
Rialto, CA 92376 1398
RSG 95001 0903
LANDMARK AMERICAN INSURANCE COMPANY
This Endorsement Changes The Policy. Please Read It Carefully.
ADDITIONAL INSURED
(BLANKET – PRIMARY)
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
OWNERS AND CONTRACTORS PROTECTIVE LIABILITY COVERAGE PART
PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART
WHO IS AN INSURED (Section II) is amended to include as an insured: any person, organization, trustee, estate or Governmental entity to whom or to which you are obligated, by virtue of a written contract or by the issuance or existence of a permit, to provide insurance such as is afforded by this policy, but only with respect to operations performed by you or on your behalf or to facilities used by you and then only for the limits of liability specified in such contract, but in no event for limits of liability in excess of the applicable limits of liability of this policy; provided that such person, organization, trustee, estate or Governmental entity shall be an Insured only with respect to occurrences taking place after such written contract has been executed or such permit has been issued.
If you are required by a written contract to provide primary insurance this policy shall be primary as respects your negligence and Section IV, Condition 4. Other Insurance does not apply, but only with respect to coverage provided by this policy.
All other terms and conditions of this policy remain unchanged.
This endorsement effective 6/1/2026
forms part of Policy Number LHC876375
issued to BIO TOX LABORATORIES INC
by Landmark American Insurance Company
Endorsement No.: 02
1399
RSG 54078 0310 Includes copyrighted material of Insurance Services Office, Inc., with its permission.
Copyright, Insurance Services Office, Inc., 2009
LANDMARK AMERICAN INSURANCE COMPANY
This Endorsement Changes The Policy. Please Read It Carefully.
WAIVER OF TRANSFER OF RIGHTS OF
RECOVERY AGAINST OTHERS TO US
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name of Person or Organization:
Any Person or Organization As Required By Written Contract The following is added to SECTION IV – COMMERCIAL GENERAL LIABILITY CONDITIONS, 8.
TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US:
We waive any right of recovery we may have against the person or organization shown in the SCHEDULE above because of payment we make for injury or damage arising out of your ongoing operations, “your product” or “your work” done under a written contract with that person or organization and included in the “product-completed operations hazard”. This waiver applies only to the person or organization shown in the SCHEDULE above.
This endorsement effective 6/1/2026
Forms part of Policy Number LHC876375
Issued to BIO TOX LABORATORIES INC
by Landmark American Insurance Company
Endorsement No.: 22
1400
COMMERCIAL AUTOMOBILE BROAD FORM
ENDORSEMENT
This endorsement modifies insurance provided under the following:
BUSINESS AUTO COVERAGE FORM
To the extent that the provisions of this endorsement provide broader benefits to the "insured" than other provisions of the Coverage Form, the provisions of this endorsement apply.
COMMERCIAL AUTOMOBILE
HA 99 16 12 21
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
1. BROAD FORM INSURED
Paragraph .1. - WHO IS AN INSURED - of
Section II - Liability Coverage is amended to
add the following:
d. Subsidiaries and Newly Acquired or
Formed Organizations
The Named Insured shown in the Declarations
is amended to include:
(1) Any legal business entity other than a
partnership or joint venture, formed as a
subsidiary in which you have an
ownership interest of more than 50% on
the effective date of the Coverage Form.
However, the Named Insured does not
include any subsidiary that is an "insured"
under any other automobile policy or
would be an "insured" under such a policy
but for its termination or the exhaustion of
its Limit of Insurance.
(2) Any organization that is acquired or
formed by you and over which you
maintain majority ownership. However,
the Named Insured does not include any
newly formed or acquired organization:
(a) That is a partnership or joint venture,
(b) That is an "insured" under any other
policy,
(c) That has exhausted its Limit of
Insurance under any other policy, or
(d) 180 days or more after its acquisition
or formation by you, unless you have
given us notice of the acquisition or
formation.
Coverage does not apply to "bodily injury"
or "property damage" that results from an
"accident" that occurred before you
formed or acquired the organization.
e. Employees as Insureds
(1). Any "employee" of yours while using a
covered "auto" you don't own, hire or
borrow in your business or your personal
affairs.
f. Lessors as Insureds
(1). The lessor of a covered "auto" while the
"auto" is leased to you under a written
agreement if:
(a) The agreement requires you to
provide direct primary insurance for
the lessor and
(b) The "auto" is leased without a driver.
Such a leased "auto" will be considered a
covered "auto" you own and not a covered
"auto" you hire.
g. Additional Insured if Required by Contract
(1) When you have agreed, in a written
contract or written agreement, that a
person or organization be added as an
additional insured on your business auto
policy, such person or organization is an
"insured", but only to the extent such
person or organization is liable for "bodily
injury" or "property damage" caused by
the conduct of an "insured" under
paragraphs a. or b. of Who Is An Insured
with regard to the ownership,
maintenance or use of a covered "auto."
The insurance afforded to any such
additional insured applies only if the
"bodily injury" or "property damage"
occurs:
(a) During the policy period, and
(b) Subsequent to the execution of such
written contract, and
Form HA 99 16 12 21 Page 1 of 5
© 2021, The Hartford
(Includes copyrighted material of Insurance Services Office, Inc. with its permission.) 1401 (c) Prior to the expiration of the period of
time that the written contract requires
such insurance be provided to the
additional insured.
(2) How Limits Apply
If you have agreed in a written contract or
written agreement that another person or
organization be added as an additional
insured on your policy, the most we will
pay on behalf of such additional insured is
the lesser of:
(a) The limits of insurance specified in the
written contract or written agreement;
or
(b) The Limits of Insurance shown in the
Declarations.
Such amount shall be a part of and not in
addition to Limits of Insurance shown in
the Declarations and described in this
Section.
(3) Additional Insureds Other Insurance
If we cover a claim or "suit" under this
Coverage Part that may also be covered
by other insurance available to an
additional insured, such additional insured
must submit such claim or "suit" to the
other insurer for defense and indemnity.
However, this provision does not apply to
the extent that you have agreed in a
written contract or written agreement that
this insurance is primary and
non-contributory with the additional
insured's own insurance.
(4) Duties in The Event Of Accident, Claim,
Suit or Loss
If you have agreed in a written contract or
written agreement that another person or
organization be added as an additional
insured on your policy, the additional
insured shall be required to comply with
the provisions in LOSS CONDITIONS 2. -
DUTIES IN THE EVENT OF ACCIDENT,
CLAIM , SUIT OR LOSS – OF SECTION
IV – BUSINESS AUTO CONDITIONS, in
the same manner as the Named Insured.
2. Primary and Non-Contributory if Required
by Contract
Only with respect to insurance provided to an
additional insured in A.1.g. - Additional
Insured If Required by Contract, the following
provisions apply:
(1) Primary Insurance When Required By
Contract
This insurance is primary if you have
agreed in a written contract or written
agreement that this insurance be primary.
If other insurance is also primary, we will
share with all that other insurance by the
method described in Other Insurance 5.d.
(2) Primary And Non-Contributory To Other
Insurance When Required By Contract
If you have agreed in a written contract or
written agreement that this insurance is
primary and non-contributory with the
additional insured's own insurance, this
insurance is primary and we will not seek
contribution from that other insurance.
Paragraphs (1) and (2) do not apply to other
insurance to which the additional insured has
been added as an additional insured.
When this insurance is excess, we will have
no duty to defend the insured against any
"suit" if any other insurer has a duty to defend
the insured against that "suit". If no other
insurer defends, we will undertake to do so,
but we will be entitled to the insured's rights
against all those other insurers.
When this insurance is excess over other
insurance, we will pay only our share of the
amount of the loss, if any, that exceeds the
sum of:
(1) The total amount that all such other
insurance would pay for the loss in the
absence of this insurance; and
(2) The total of all deductible and self-insured
amounts under all that other insurance.
We will share the remaining loss, if any, by
the method described in SECTION IVBusiness Auto Conditions, B. General Conditions, Other Insurance 5.d.
3. AUTOS RENTED BY EMPLOYEES
Any "auto" hired or rented by your "employee" on
your behalf and at your direction will be
considered an "auto" you hire.
The SECTION IV- Business Auto Conditions, B.
General Conditions, 5. OTHER INSURANCE
Condition is amended by adding the following:
e. If an "employee’s" personal insurance also
applies on an excess basis to a covered
"auto" hired or rented by your "employee" on
your behalf and at your direction, this
insurance will be primary to the "employee’s"
personal insurance.
4. AMENDED FELLOW EMPLOYEE EXCLUSION
EXCLUSION 5. - FELLOW EMPLOYEE - of
SECTION II - LIABILITY COVERAGE does not
apply if you have workers' compensation
insurance in-force covering all of your
"employees".
Coverage is excess over any other collectible
insurance.
5. HIRED AUTO PHYSICAL DAMAGE COVERAGE
If hired "autos" are covered "autos" for Liability
Coverage and if Comprehensive, Specified
Causes of Loss, or Collision coverages are
provided under this Coverage Form for any "auto"
you own, then the Physical Damage Coverages
provided are extended to "autos" you hire or
borrow, subject to the following limit.
The most we will pay for "loss" to any hired "auto"
is:
(1) $100,000;
(2) The actual cash value of the damaged or
stolen property at the time of the "loss"; or
(3) The cost of repairing or replacing the
damaged or stolen property,
whichever is smallest, minus a deductible. The
deductible will be equal to the largest deductible
applicable to any owned "auto" for that coverage.
No deductible applies to "loss" caused by fire or
lightning. Hired Auto Physical Damage coverage
is excess over any other collectible insurance.
Subject to the above limit, deductible and excess
provisions, we will provide coverage equal to the
broadest coverage applicable to any covered
"auto" you own.
We will also cover loss of use of the hired "auto" if
it results from an "accident", you are legally liable
and the lessor incurs an actual financial loss,
subject to a maximum of $1000 per "accident".
This extension of coverage does not apply to any
"auto" you hire or borrow from any of your
"employees", partners (if you are a partnership),
members (if you are a limited liability company),
or members of their households.
6. PHYSICAL DAMAGE - ADDITIONAL
TEMPORARY TRANSPORTATION EXPENSE
COVERAGE
Paragraph A.4.a. of SECTION III - PHYSICAL
DAMAGE COVERAGE is amended to provide a
limit of $50 per day and a maximum limit of
$1,000.
7. LOAN/LEASE GAP COVERAGE
Under SECTION III - PHYSICAL DAMAGE
COVERAGE, in the event of a total "loss" to a
covered "auto", we will pay your additional legal
obligation for any difference between the actual
cash value of the "auto" at the time of the "loss"
and the "outstanding balance" of the loan/lease.
"Outstanding balance" means the amount you
owe on the loan/lease at the time of "loss" less
any amounts representing taxes; overdue
payments; penalties, interest or charges resulting
from overdue payments; additional mileage
charges; excess wear and tear charges; lease
termination fees; security deposits not returned by
the lessor; costs for extended warranties, credit
life Insurance, health, accident or disability
insurance purchased with the loan or lease; and
carry-over balances from previous loans or
leases.
8. AIRBAG COVERAGE
Under Paragraph B. EXCLUSIONS - of SECTION
III - PHYSICAL DAMAGE COVERAGE, the
following is added:
The exclusion relating to mechanical breakdown
does not apply to the accidental discharge of an
airbag.
9. ELECTRONIC EQUIPMENT - BROADENED
COVERAGE
a. The exceptions to Paragraphs B.4 -
EXCLUSIONS - of SECTION III - PHYSICAL
DAMAGE COVERAGE are replaced by the
following:
Exclusions 4.c. and 4.d. do not apply to
equipment designed to be operated solely by
use of the power from the "auto's" electrical
system that, at the time of "loss", is:
(1) Permanently installed in or upon the
covered "auto";
(2) Removable from a housing unit which is
permanently installed in or upon the
covered "auto";
(3) An integral part of the same unit housing
any electronic equipment described in
Paragraphs (1) and (2) above; or
(4) Necessary for the normal operation of the
covered "auto" or the monitoring of the
covered "auto's" operating system.
b. Section III, Physical Damage Coverage, Limit
of Insurance, Paragraph C.2. is amended to
add the following:
$1,500 is the most we will pay for "loss" in
any one "accident" to all electronic equipment
(other than equipment designed solely for the
reproduction of sound, and accessories used
with such equipment) that reproduces,
receives or transmits audio, visual or data
signals which, at the time of "loss", is:
Form HA 99 16 12 21 Page 3 of 51403
(1) Permanently installed in or upon the
covered "auto" in a housing, opening or
other location that is not normally used by
the "auto" manufacturer for the installation
of such equipment;
(2) Removable from a permanently installed
housing unit as described in Paragraph
2.a. above or is an integral part of that
equipment; or
(3) An integral part of such equipment.
c. For each covered "auto", should loss be
limited to electronic equipment only, our
obligation to pay for, repair, return or replace
damaged or stolen electronic equipment will
be reduced by the applicable deductible
shown in the Declarations, or $250, whichever
deductible is less.
10. EXTRA EXPENSE - BROADENED COVERAGE
Under Paragraph A. - COVERAGE - of SECTION
III - PHYSICAL DAMAGE COVERAGE, we will
pay for the expense of returning a stolen covered
"auto" to you.
11. GLASS REPAIR - WAIVER OF DEDUCTIBLE
Under Paragraph D. - DEDUCTIBLE - of
SECTION III - PHYSICAL DAMAGE COVERAGE,
the following is added:
No deductible applies to glass damage if the glass
is repaired rather than replaced.
12. TWO OR MORE DEDUCTIBLES
Under Paragraph D. - DEDUCTIBLE - of
SECTION III - PHYSICAL DAMAGE COVERAGE,
the following is added:
If another Hartford Financial Services Group, Inc.
company policy or coverage form that is not an
automobile policy or coverage form applies to the
same "accident", the following applies:
(1) If the deductible under this Business Auto
Coverage Form is the smaller (or smallest)
deductible, it will be waived;
(2) If the deductible under this Business Auto
Coverage Form is not the smaller (or
smallest) deductible, it will be reduced by the
amount of the smaller (or smallest)
deductible.
13. AMENDED DUTIES IN THE EVENT OF
ACCIDENT, CLAIM, SUIT OR LOSS
The requirement in LOSS CONDITIONS 2.a. -
DUTIES IN THE EVENT OF ACCIDENT, CLAIM,
SUIT OR LOSS - of SECTION IV - BUSINESS
AUTO CONDITIONS that you must notify us of an
"accident" applies only when the "accident" is
known to:
(1) You, if you are an individual;
(2) A partner, if you are a partnership;
(3) A member, if you are a limited liability
company; or
(4) An executive officer or insurance manager, if
you are a corporation.
14. UNINTENTIONAL FAILURE TO DISCLOSE
HAZARDS
If you unintentionally fail to disclose any hazards
existing at the inception date of your policy, we
will not deny coverage under this Coverage Form
because of such failure.
15. HIRED AUTO - COVERAGE TERRITORY
SECTION IV, BUSINESS AUTO CONDITIONS,
PARAGRAPH B. GENERAL CONDITIONS, 7. -
POLICY PERIOD, COVERAGE TERRITORY - is
added to include the following:
(6) For short-term hired "autos", the coverage
territory with respect to Liability Coverage is
anywhere in the world provided that if the
"insured's" responsibility to pay damages for
"bodily injury" or "property damage" is
determined in a "suit," the "suit" is brought in
the United States of America, the territories
and possessions of the United States of
America, Puerto Rico or Canada or in a
settlement we agree to.
16. WAIVER OF SUBROGATION
Paragraph 5. TRANSFER OF RIGHTS OF
RECOVERY AGAINST OTHERS TO US - of
SECTION IV - BUSINESS AUTO CONDITIONS
A. Loss Conditions is amended by adding the
following:
We waive any right of recovery we may have
against any person or organization with whom you
have a written contract that requires such waiver
because of payments we make for damages
under this Coverage Form.
17. RESULTANT MENTAL ANGUISH COVERAGE
The definition of "bodily injury" in SECTION VDEFINITIONS, C. is replaced by the following:
"Bodily injury" means bodily injury, sickness or
disease sustained by any person, including
mental anguish or death resulting from any of
these.
18. EXTENDED CANCELLATION CONDITION
Paragraph 2. of the COMMON POLICY
CONDITIONS - CANCELLATION - applies except
as follows:
If we cancel for any reason other than
nonpayment of premium, we will mail or deliver to
the first Named Insured written notice of
cancellation at least 60 days before the effective
date of cancellation.
19. HYBRID, ELECTRIC, OR NATURAL GAS
VEHICLE PAYMENT COVERAGE
In the event of a total loss to a "non-hybrid" auto
for which Comprehensive, Specified Causes of
Loss, or Collision coverages are provided under
this Coverage Form, then such Physical Damage
Coverages are amended as follows:
a. If the auto is replaced with a "hybrid" auto or
an auto powered solely by electricity or
natural gas, we will pay an additional 10%, to
a maximum of $2,500, of the "non-hybrid"
auto’s actual cash value or replacement cost,
whichever is less,
b. The auto must be replaced and a copy of a
bill of sale or new lease agreement received
by us within 60 calendar days of the date of
"loss,"
c. Regardless of the number of autos deemed a
total loss, the most we will pay under this
Hybrid, Electric, or Natural Gas Vehicle
Payment Coverage provision for any one
"loss" is $10,000.
For the purposes of the coverage provision,
a. A "non-hybrid" auto is defined as an auto that
uses only an internal combustion engine to
move the auto but does not include autos
powered solely by electricity or natural gas.
b. A "hybrid" auto is defined as an auto with an
internal combustion engine and one or more
electric motors; and that uses the internal
combustion engine and one or more electric
motors to move the auto, or the internal
combustion engine to charge one or more
electric motors, which move the auto.
20. VEHICLE WRAP COVERAGE
In the event of a total loss to an "auto" for which
Comprehensive, Specified Causes of Loss, or
Collision coverages are provided under this
Coverage Form, then such Physical Damage
Coverages are amended to add the following:
In addition to the actual cash value of the "auto",
we will pay up to $1,000 for vinyl vehicle wraps
which are displayed on the covered "auto" at the
time of total loss. Regardless of the number of
autos deemed a total loss, the most we will pay
under this Vehicle Wrap Coverage provision for
any one "loss" is $5,000. For purposes of this
coverage provision, signs or other graphics
painted or magnetically affixed to the vehicle are
not considered vehicle wraps.
Form HA 99 16 12 21 Page 5 of 51405
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City of Rialto
Legislation Text
File #: 26-0470, Version: 1, Agenda #: TAB8
For City Council Meeting July 28, 2026
TO: Honorable Mayor and City Council
APPROVAL: Tanya Williams, City Manager
FROM: Mark Kling, Chief of Police
Request City Council to: (1) Approve the Purchase of Thirty (30) Axon Body 4 Cameras, Twenty (20) Axon Fleet 3 Cameras, One Hundred Fifteen (115) Axon FUSUS Cores, Docking Stations and Related Hardware and Equipment through AXON Enterprise, Inc. in the Amount of $1,248,835.06; (2) Approve Amendment No. 2 to the Axon Enterprise, Inc. Master Services and Purchasing Agreement and Officer Safety Plan 10 (OSP10) Program for the Acquisition of Additional Body-Worn Camera Equipment, Software Licenses, Storage, Docking Stations, Warranties, and Technology Assurance Plan (TAP) Refresh Services; and (3) Authorize the City Manager or Designee to Execute All Related Documents.
(ACTION)
RECOMMENDATION:
Staff recommends that the City Council:
1) Approve the purchase of thirty (30) Axon Body 4 Cameras, twenty (20) Axon Fleet 3 Cameras, one hundred fifteen (115) Axon FUSUS Cores, docking stations and related hardware and equipment through AXON Enterprise, Inc. in the amount of $1,248,835.06; 2) Approve Amendment No. 2 to the Axon Enterprise, Inc. Master Services and Purchasing Agreement and Officer Safety Plan 10 (OSP10) program for the acquisition of additional bodyworn camera equipment, software licenses, storage, docking stations, warranties, and Technology Assurance Plan (TAP) refresh services; and
3) Authorize the City Manager or designee to execute all related documents.
BACKGROUND:
The Rialto Police Department has long recognized body-worn camera technology as a critical tool for officer accountability, transparency, evidence collection, and public trust. As one of the earliest law enforcement agencies in the nation to fully deploy body-worn cameras, the Rialto Police Department has consistently demonstrated its commitment to leveraging technology to improve policing outcomes and strengthen community confidence.
On November 25, 2025, the City Council approved the Axon Officer Safety Plan 10 (OSP10), a comprehensive public safety technology platform that consolidated the Department’s body-worn cameras, in-car camera systems, conducted energy weapons, digital evidence management, virtual reality training, drone technologies, and real-time intelligence capabilities under a single long-term City of Rialto Page 1 of 6 Printed on 7/23/2026
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reality training, drone technologies, and real-time intelligence capabilities under a single long-term agreement. The OSP10 platform established a scalable technology framework designed to support the Department’s operational needs for years to come.
Since approval of OSP10, the Department has experienced continued staffing growth, organizational expansion, and increased operational demands associated with specialty assignments, training functions, investigations, and field operations. To ensure all personnel have access to the same modern body-worn camera technology and to maintain full integration within the Department’s evidence management ecosystem, staff is requesting authorization to add additional body-worn camera units and associated services to the existing OSP10 agreement.
ANALYSIS/DISCUSSION:
Body-worn cameras have become an indispensable component of modern public safety operations, providing an objective record of interactions, enhancing transparency, strengthening accountability, improving evidence collection, and protecting both employees and the community. As the Rialto Police Department continues to grow and expand its operational capabilities, maintaining sufficient body-worn camera resources for both sworn and non-sworn personnel is critical to ensuring consistent documentation, compliance with departmental policies, and seamless integration within the Department’s digital evidence management system. The proposed amendment to the Axon Officer Safety Plan 10 (OSP10) agreement will provide additional body-worn cameras, software licenses, storage, and supporting infrastructure necessary to meet current operational demands while accommodating future organizational growth. By expanding the Department’s existing body-worn camera inventory under the OSP10 platform, the City will maintain a standardized technology solution that promotes efficiency, interoperability, transparency, and accountability across all areas of public safety operations.
The additional cameras will support deployment to newly hired personnel, specialty assignments, professional staff members whose duties require field interaction, evidence collection personnel, community engagement staff, and other designated employees who routinely interact with the public.
Expanding deployment capabilities ensures the Department can maintain consistent documentation standards while preserving the operational and evidentiary benefits associated with a fully integrated body-worn camera program.
In addition to expanding the Department's body-worn camera deployment capabilities, the proposed amendment further enhances the Rialto Police Department's Real-Time Crime Center (RTCC) ecosystem through the acquisition of one hundred fifteen (115) additional Axon FUSUS CORE devices. The FUSUS CORE platform serves as a critical component of the Department's real-time intelligence infrastructure by allowing voluntary integration of public and private camera systems into a centralized platform that supports crime prevention, emergency response, investigations, and situational awareness.
The Rialto Police Department has utilized the FUSUS platform since 2020 and has successfully integrated the technology into daily public safety operations. Through the Department's RTCC, FUSUS provides officers, dispatch personnel, investigators, and crime analysts with access to realtime information from multiple technology systems, creating a unified operational picture during critical incidents. The expansion of the FUSUS CORE program will significantly increase the Department's ability to establish a connected public safety network throughout the community by allowing participating businesses, schools, houses of worship, critical infrastructure locations, and City of Rialto Page 2 of 6 Printed on 7/23/2026
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allowing participating businesses, schools, houses of worship, critical infrastructure locations, and other community stakeholders to voluntarily integrate camera systems into the platform.
A significant benefit of the FUSUS platform is its emphasis on voluntary participation, transparency, and accountability. Community partners retain control of their camera systems while choosing their desired level of participation. The platform provides robust auditing capabilities that document all system access and activity, ensuring transparency and accountability while balancing public safety needs with privacy considerations. This collaborative approach strengthens partnerships between the Police Department, local businesses, and the community while creating a force multiplier that extends the Department's ability to rapidly access critical information during emergencies and criminal investigations.
The acquisition of these additional FUSUS CORE devices directly supports the City's investment in the Department's RTCC and complements the broader Axon technology ecosystem already established through the OSP10 platform. Integrating these devices within the existing Axon environment allows the Department to leverage a fully connected public safety technology solution that combines body-worn cameras, digital evidence management, real-time intelligence, drone operations, automated license plate recognition systems, and community-based camera integrations into a single operational platform. This interoperability enhances efficiency, improves information sharing, and positions the Rialto Police Department to continue utilizing advanced technologies to meet the evolving public safety needs of the community.
Together, the expansion of both the Department's body-worn camera inventory and the FUSUS CORE network will further strengthen operational effectiveness, officer safety, transparency, accountability, and real-time intelligence capabilities throughout the organization. These technologies work in concert to provide officers and professional staff with the tools necessary to document interactions, collect and preserve evidence, improve investigative outcomes, and maintain public trust through increased transparency and accountability. The addition of these devices will ensure that newly hired personnel, specialty assignment staff, training personnel, and operational units have access to the same standardized technology platform currently deployed throughout the Department.
Utilizing the existing OSP10 framework eliminates the need for a separate procurement process, maintains consistency in equipment and software standards, and allows the Department to continue benefiting from negotiated pricing, technology refresh schedules, unlimited evidence storage, and long-term warranty protections already established under the agreement.
Integrating these additional devices into the existing Axon ecosystem also avoids the inefficiencies and costs associated with managing multiple technology and evidence management platforms. All digital evidence will continue to be securely stored, managed, shared, redacted, and retained through the Department's centralized Axon Evidence platform, ensuring compliance with applicable state retention requirements, evidentiary standards, and public records obligations while providing a scalable foundation for future technological advancements.
The proposed amendment also supports the continued expansion of the Department's Axon Fleet 3 in-car camera program as new patrol vehicles are placed into service. The Rialto Police Department currently utilizes Axon Fleet 3 technology throughout its patrol fleet to provide synchronized in-car audio and video recording that complements the Department's body-worn camera and digital evidence management systems. As additional patrol vehicles are deployed, the requested equipment will provide the necessary Fleet 3 hardware, including forward and rear-facing cameras, mobile routers, battery systems, and signal activation units, ensuring each vehicle is equipped with City of Rialto Page 3 of 6 Printed on 7/23/2026
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mobile routers, battery systems, and signal activation units, ensuring each vehicle is equipped with the same standardized technology platform.
The Axon Fleet 3 system enhances officer safety, accountability, and investigative capabilities by providing multiple synchronized video perspectives during law enforcement contacts. Fleet 3 seamlessly integrates with the Department's body-worn cameras and Axon Evidence platform, allowing a single incident to be captured from multiple vantage points while automatically associating all digital evidence within one centralized case file. The system also provides live streaming capabilities, GPS vehicle location, wireless activation through emergency equipment, secure cloud storage, and remote evidence retrieval, improving operational awareness and investigative efficiency.
In addition to enhancing transparency and evidentiary integrity, the Fleet 3 platform serves as a valuable training and risk management tool by providing objective documentation of officer performance, critical incidents, and citizen interactions. The technology assists with criminal investigations, administrative reviews, and prosecutorial case preparation while reducing the time required to investigate complaints and use-of-force incidents. When combined with the Department's body-worn cameras, FUSUS CORE devices, Real-Time Crime Center, drone operations, and digital evidence management platform, the continued deployment of Axon Fleet 3 further advances the Department's comprehensive public safety technology strategy and reinforces its commitment to professionalism, accountability, and community trust.
Axon Enterprise, Inc. is currently contracted through the City’s existing Master Services and Purchasing Agreement and Officer Safety Plan 10 program. The proposed acquisition is an amendment to an existing agreement and remains eligible under the cooperative purchasing authority provided through Sourcewell Contract No. 101223-AXN. Pursuant to Rialto Municipal Code Section 2.48.430, cooperative purchasing agreements may be utilized when determined to be in the best interest of the City. Utilizing the existing OSP10 framework allows the City to maintain standardized technology, leverage previously negotiated pricing, avoid duplication of procurement efforts, and maximize the value of the Department's long-term investment in integrated public safety technology.
The requested amendment represents a prudent and strategic investment in the Department’s ongoing commitment to transparency, accountability, officer safety, and effective public service. By expanding the Department’s body-worn camera inventory, Fleet camera inventory and FUSUS CORE network under a single integrated technology platform, the City will further enhance real-time intelligence capabilities, strengthen evidence collection and management processes, improve operational efficiency, and support collaborative public safety partnerships throughout the community.
As the Rialto Police Department continues to evolve, maintaining adequate technology resources for both sworn and non-sworn personnel is essential to supporting daily operations, preserving evidentiary integrity, and meeting community expectations for professional, transparent, and datadriven policing. Approval of this amendment will allow the Department to build upon its existing technological foundation while providing the scalability, flexibility, and interoperability necessary to meet current operational demands and future public safety challenges.
ENVIRONMENTAL IMPACT:
The proposal is not a “Project” as defined by the California Environmental Quality Act (CEQA).
Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. According to Section 15378(b), a Project does not include: (5) City of Rialto Page 4 of 6 Printed on 7/23/2026 powered by Legistar™1412
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physical change in the environment. According to Section 15378(b), a Project does not include: (5) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
GENERAL PLAN CONSISTENCY:
The City of Rialto’s General Plan has outlined guiding principles and goals relating to public safety.
This action is consistent with the City of Rialto’s General Plan Guiding Principle 1, “Rialto is a Family First Community.”
Our neighborhoods will be a safe place to call home.
Approval of this action is also consistent with the City of Rialto General Plan Goal and Policies:
Goal 5-8: Provide effective and comprehensive policing services that meet the safety needs of Rialto.
Policy 5-8.4: Initiate proactive crime suppression and prevention strategies throughout the community.
LEGAL REVIEW:
The City Attorney’s Office has reviewed the second amendment to the Axon Enterprise, Inc. Master Services and Purchasing Agreement and Officer Safety Plan 10 and approved it as to form.
FINANCIAL IMPACT:
Operating Budget Impact
The eight (8) year payment plan for Amendment No. 2 to the Axon Enterprise, Inc. Master Services and Purchasing Agreement and Officer Safety Plan 10 (OSP10) Program total cost is $1,248,835.06.
First year expense is $113,268.35, and years 2 through 8 are a cost of $162,223.82 per year.
Funding in the amount of $113,268.35 is budgeted in the approved fiscal year 2026/2027 budget in Account No. 10106281-52011 for Year 1.
Staff will budget the annual needed funding for each year for fiscal years 2027/2028 through 2033/2034 in Account No. 10106281-52011 for the obligations due for Amendment No. 2 to the Axon Enterprise, Inc. Master Services and Purchasing Agreement and Officer Safety Plan 10 (OSP10) Program.
Per Rialto Municipal Code Section 2.48.450, a vendor disclosure form is attached.
Capital Improvement Budget Impact
There is no impact on the Capital Improvement Budget.
Licensing
This action does not require a business license.
ATTACHMENTS
1. Axon Sourcewell Contract # 101223
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2. Axon Second Amendment to the Master Services and Purchasing Agreement
3. Axon Price Book
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101223-AXN
Rev. 3/2022 1
Solicitation Number: 101223
CONTRACT
This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 (Sourcewell) and Axon Enterprise, Inc., 17800 N. 85th St., Scottsdale, AZ 85255-6311 (Supplier).
Sourcewell is a State of Minnesota local government unit and service cooperative created under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that offers cooperative procurement solutions to government entities. Participation is open to eligible federal, state/province, and municipal governmental entities, higher education, K-12 education, nonprofit, tribal government, and other public entities located in the United States and Canada.
Sourcewell issued a public solicitation for Public Safety Video Surveillance Solutions with Related Equipment, Software and Accessories from which Supplier was awarded a contract.
Supplier desires to contract with Sourcewell to provide equipment, products, or services to Sourcewell and the entities that access Sourcewell’s cooperative purchasing contracts (Participating Entities).
1. TERM OF CONTRACT
A. EFFECTIVE DATE. This Contract is effective upon the date of the final signature below.
EXPIRATION DATE AND EXTENSION. This Contract expires December 15, 2027, unless it is cancelled sooner pursuant to Article 22. This Contract allows up to three additional one-year extensions upon the request of Sourcewell and written agreement by Supplier. Sourcewell retains the right to consider additional extensions beyond seven years as required under exceptional circumstances.
B. SURVIVAL OF TERMS. Notwithstanding any expiration or termination of this Contract, all payment obligations incurred prior to expiration or termination will survive, as will the following: Articles 11 through 14 survive the expiration or cancellation of this Contract. All other rights will cease upon expiration or termination of this Contract.
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2. EQUIPMENT, PRODUCTS, OR SERVICES
A. EQUIPMENT, PRODUCTS, OR SERVICES. Supplier will provide the Equipment, Products, or Services as stated in its Proposal submitted under the Solicitation Number listed above.
Supplier’s Equipment, Products, or Services Proposal (Proposal) is attached and incorporated into this Contract.
All Equipment and Products provided under this Contract must be new and the current model.
Supplier may offer close-out or refurbished Equipment or Products if they are clearly indicated in Supplier’s product and pricing list. Unless agreed to by the Participating Entities in advance, Equipment or Products must be delivered as operational to the Participating Entity’s site.
This Contract offers an indefinite quantity of sales, and while substantial volume is anticipated, sales and sales volume are not guaranteed.
B. WARRANTY. Supplier warrants that all Equipment, Products, and Services furnished are free from liens and encumbrances, and are free from defects in design, materials, and workmanship.
In addition, Supplier warrants the Equipment, Products, and Services will perform in accordance with the manufacturer’s specifications. Supplier’s dealers and distributors must agree to assist the Participating Entity in reaching a resolution in any dispute over warranty terms with the manufacturer. Any manufacturer’s warranty that extends beyond the expiration of the Supplier’s warranty will be passed on to the Participating Entity.
C. DEALERS, DISTRIBUTORS, AND/OR RESELLERS. Upon Contract execution and throughout the Contract term, Supplier must provide to Sourcewell a current means to validate or authenticate Supplier’s authorized dealers, distributors, or resellers relative to the Equipment, Products, and Services offered under this Contract, which will be incorporated into this Contract by reference. It is the Supplier’s responsibility to ensure Sourcewell receives the most current information.
3. PRICING
All Equipment, Products, or Services under this Contract will be priced at or below the price stated in Supplier’s Proposal.
When providing pricing quotes to Participating Entities, all pricing quoted must reflect a Participating Entity’s total cost of acquisition. This means that the quoted cost is for delivered Equipment, Products, and Services that are operational for their intended purpose, and includes all costs to the Participating Entity’s requested delivery location.
Regardless of the payment method chosen by the Participating Entity, the total cost associated with any purchase option of the Equipment, Products, or Services must always be disclosed in the pricing quote to the applicable Participating Entity at the time of purchase.
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A. SHIPPING AND SHIPPING COSTS. All delivered Equipment and Products must be properly packaged. Damaged Equipment and Products may be rejected. If the damage is not readily apparent at the time of delivery, Supplier must permit the Equipment and Products to be returned within a reasonable time at no cost to Sourcewell or its Participating Entities, in accordance with Supplier’s warranty process. Participating Entities reserve the right to inspect the Equipment and Products at a reasonable time after delivery where circumstances or conditions prevent effective inspection of the Equipment and Products at the time of delivery.
In the event of the delivery of nonconforming Equipment and Products, the Participating Entity will notify the Supplier as soon as possible and the Supplier will replace nonconforming Equipment and Products with conforming Equipment and Products that are acceptable to the Participating Entity in accordance with Supplier’s warranty process.
Supplier must arrange for and pay for the return shipment on Equipment and Products that arrive in a defective or inoperable condition.
Sourcewell may declare the Supplier in breach of this Contract if the Supplier intentionally delivers substandard or inferior Equipment or Products.
B. SALES TAX. Each Participating Entity is responsible for supplying the Supplier with valid taxexemption certification(s). When ordering, a Participating Entity must indicate if it is a taxexempt entity.
C. HOT LIST PRICING. At any time during this Contract, Supplier may offer a specific selection of Equipment, Products, or Services at discounts greater than those listed in the Contract.
When Supplier determines it will offer Hot List Pricing, it must be submitted electronically to Sourcewell in a line-item format. Equipment, Products, or Services may be added or removed from the Hot List at any time through a Sourcewell Price and Product Change Form as defined in Article 4 below.
Hot List program and pricing may also be used to discount and liquidate close-out and discontinued Equipment and Products as long as those close-out and discontinued items are clearly identified as such. Current ordering process and administrative fees apply. Hot List Pricing must be published and made available to all Participating Entities.
4. PRODUCT AND PRICING CHANGE REQUESTS
Supplier may request Equipment, Product, or Service changes, additions, or deletions at any time. All requests must be made in writing by submitting a signed Sourcewell Price and Product Change Request Form to the assigned Sourcewell Supplier Development Administrator. This approved form is available from the assigned Sourcewell Supplier Development Administrator.
At a minimum, the request must:
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x Identify the applicable Sourcewell contract number;
x Clearly specify the requested change;
x Provide sufficient detail to justify the requested change; x Individually list all Equipment, Products, or Services affected by the requested change, along with the requested change (e.g., addition, deletion, price change); and x Include a complete restatement of pricing documentation in Microsoft Excel with the effective date of the modified pricing, or product addition or deletion. The new pricing restatement must include all Equipment, Products, and Services offered, even for those items where pricing remains unchanged.
A fully executed Sourcewell Price and Product Change Request Form will become an amendment to this Contract and will be incorporated by reference.
5. PARTICIPATION, CONTRACT ACCESS, AND PARTICIPATING ENTITY REQUIREMENTS
A. PARTICIPATION. Sourcewell’s cooperative contracts are available and open to public and nonprofit entities across the United States and Canada; such as federal, state/province, municipal, K-12 and higher education, tribal government, and other public entities.
The benefits of this Contract should be available to all Participating Entities that can legally access the Equipment, Products, or Services under this Contract. A Participating Entity’s authority to access this Contract is determined through its cooperative purchasing, interlocal, or joint powers laws. Any entity accessing benefits of this Contract will be considered a Service Member of Sourcewell during such time of access. Supplier understands that a Participating Entity’s use of this Contract is at the Participating Entity’s sole convenience and Participating Entities reserve the right to obtain like Equipment, Products, or Services from any other source.
Supplier is responsible for familiarizing its sales and service forces with Sourcewell contract use eligibility requirements and documentation and will encourage potential participating entities to join Sourcewell. Sourcewell reserves the right to add and remove Participating Entities to its roster during the term of this Contract.
B. PUBLIC FACILITIES. Supplier’s employees may be required to perform work at governmentowned facilities, including schools. Supplier’s employees and agents must conduct themselves in a professional manner while on the premises, and in accordance with Participating Entity policies and procedures, and all applicable laws.
6. PARTICIPATING ENTITY USE AND PURCHASING
A. ORDERS AND PAYMENT. To access the contracted Equipment, Products, or Services under this Contract, a Participating Entity must clearly indicate to Supplier that it intends to access this Contract; however, order flow and procedure will be developed jointly between Sourcewell and
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Supplier. Typically, a Participating Entity will issue an order directly to Supplier or its authorized subsidiary, distributor, dealer, or reseller. If a Participating Entity issues a purchase order, it may use its own forms, but the purchase order should clearly note the applicable Sourcewell contract number. All Participating Entity orders under this Contract must be issued prior to expiration or cancellation of this Contract. For avoidance of doubt, if a Participating Entity order extends beyond the Contract's expiration or cancellation, in addition to the survival terms set forth in Section 1.B of this Contract, Supplier’s Master Services and Purchasing Agreement (MSPA) shall also apply, governing the order until all obligations of both the Participating Entity and Supplier are fulfilled.
Supplier’s acceptable forms of payment are included in its attached Proposal. Participating Entities will be solely responsible for payment and Sourcewell will have no liability for any unpaid invoice of any Participating Entity.
B. ADDITIONAL TERMS AND CONDITIONS/PARTICIPATING ADDENDUM. The Supplier's Master Services and Purchasing Agreement (MSPA) attached hereto as Exhibit A is hereby added and incorporated into this Contract. Additional terms and conditions to a purchase order, or other required transaction documentation, may be negotiated between a Participating Entity and Supplier, such as job or industry-specific requirements, legal requirements (e.g., affirmative action or immigration status requirements), or specific local policy requirements. Some Participating Entities may require the use of a Participating Addendum, the terms of which will be negotiated directly between the Participating Entity and the Supplier or its authorized dealers, distributors, or resellers, as applicable. Any negotiated additional terms and conditions must never be less favorable to the Participating Entity than what is contained in this Contract.
C. SPECIALIZED SERVICE REQUIREMENTS. In the event that the Participating Entity requires service or specialized performance requirements not addressed in this Contract (such as ecommerce specifications, specialized delivery requirements, or other specifications and requirements), the Participating Entity and the Supplier may enter into a separate, standalone agreement, apart from this Contract. Sourcewell, including its agents and employees, will not be made a party to a claim for breach of such agreement.
D. TERMINATION OF ORDERS. Participating Entities may terminate an order, in whole or in part, immediately upon notice to Supplier in the event of any of the following events:
1. The Participating Entity fails to receive funding or appropriation from its governing body at levels sufficient to pay for the equipment, products, or services to be purchased; or
2. Federal, state, or provincial laws or regulations prohibit the purchase or change the Participating Entity’s requirements.
E. GOVERNING LAW AND VENUE. The governing law and venue for any action related to a Participating Entity’s order will be determined by the Participating Entity making the purchase.
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7. CUSTOMER SERVICE
A. PRIMARY ACCOUNT REPRESENTATIVE. Supplier will assign an Account Representative to Sourcewell for this Contract and must provide prompt notice to Sourcewell if that person is changed. The Account Representative will be responsible for:
x Maintenance and management of this Contract;
x Timely response to all Sourcewell and Participating Entity inquiries; and x Business reviews to Sourcewell and Participating Entities, if applicable.
B. BUSINESS REVIEWS. Supplier must perform a minimum of one business review with Sourcewell per contract year. The business review will cover sales to Participating Entities, pricing and contract terms, administrative fees, sales data reports, performance issues, supply issues, customer issues, and any other necessary information.
8. REPORT ON CONTRACT SALES ACTIVITY AND ADMINISTRATIVE FEE PAYMENT A. CONTRACT SALES ACTIVITY REPORT. Each calendar quarter, Supplier must provide a contract sales activity report (Report) to the Sourcewell Supplier Development Administrator assigned to this Contract. Reports are due no later than 45 days after the end of each calendar quarter. A Report must be provided regardless of the number or amount of sales during that quarter (i.e., if there are no sales, Supplier must submit a report indicating no sales were made).
The Report must contain the following fields:
x Participating Entity Name (e.g., City of Staples Highway Department); x Participating Entity Physical Street Address;
x Participating Entity City;
x Participating Entity State/Province;
x Participating Entity Zip/Postal Code;
x Participating Entity Contact Name;
x Participating Entity Contact Email Address;
x Participating Entity Contact Telephone Number;
x Sourcewell Assigned Entity/Participating Entity Number; x Item Purchased Description;
x Item Purchased Price;
x Sourcewell Administrative Fee Applied; and
x Date Purchase was invoiced/sale was recognized as revenue by Supplier.
B. ADMINISTRATIVE FEE. In consideration for the support and services provided by Sourcewell, the Supplier will pay an administrative fee to Sourcewell on all Equipment, Products, and
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Services provided to Participating Entities. The Administrative Fee must be included in, and not added to, the pricing. Supplier may not charge Participating Entities more than the contracted price to offset the Administrative Fee.
The Supplier will submit payment to Sourcewell for the percentage of administrative fee stated in the Proposal multiplied by the total sales of all Equipment, Products, and Services purchased by Participating Entities under this Contract during each calendar quarter. Payments should note the Supplier’s name and Sourcewell-assigned contract number in the memo; and must be mailed to the address above “Attn: Accounts Receivable” or remitted electronically to Sourcewell’s banking institution per Sourcewell’s Finance department instructions. Payments must be received no later than 45 calendar days after the end of each calendar quarter.
Supplier agrees to cooperate with Sourcewell in auditing transactions under this Contract to ensure that the administrative fee is paid on all items purchased under this Contract.
In the event the Supplier is delinquent in any undisputed administrative fees, Sourcewell reserves the right to cancel this Contract and reject any proposal submitted by the Supplier in any subsequent solicitation. In the event this Contract is cancelled by either party prior to the Contract’s expiration date, the administrative fee payment will be due no more than 30 days from the cancellation date.
9. AUTHORIZED REPRESENTATIVE
Sourcewell's Authorized Representative is its Chief Procurement Officer.
Supplier’s Authorized Representative is the person named in the Supplier’s Proposal. If Supplier’s Authorized Representative changes at any time during this Contract, Supplier must promptly notify Sourcewell in writing.
10. AUDIT, ASSIGNMENT, AMENDMENTS, WAIVER, AND CONTRACT COMPLETE A. AUDIT. Pursuant to Minnesota Statutes Section 16C.05, subdivision 5, the books, records, documents, and accounting procedures and practices relevant to this Contract are subject to examination by Sourcewell or the Minnesota State Auditor for a minimum of six years from the end of this Contract. This clause extends to Participating Entities as it relates to business conducted by that Participating Entity under this Contract.
B. ASSIGNMENT. Neither party may assign or otherwise transfer its rights or obligations under this Contract without the prior written consent of the other party and a fully executed assignment agreement. Such consent will not be unreasonably withheld. Any prohibited assignment will be invalid.
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C. AMENDMENTS. Any amendment to this Contract must be in writing and will not be effective until it has been duly executed by the parties.
D. WAIVER. Failure by either party to take action or assert any right under this Contract will not be deemed a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right. Any such waiver must be in writing and signed by the parties.
E. CONTRACT COMPLETE. This Contract represents the complete agreement between the parties. No other understanding regarding this Contract, whether written or oral, may be used to bind either party. For any conflict between the attached Proposal and the terms set out in Articles 1-22 of this Contract, the terms of Articles 1-22 will govern.
F. RELATIONSHIP OF THE PARTIES. The relationship of the parties is one of independent contractors, each free to exercise judgment and discretion with regard to the conduct of their respective businesses. This Contract does not create a partnership, joint venture, or any other relationship such as master-servant, or principal-agent.
11. INDEMNITY AND HOLD HARMLESS
Supplier must indemnify, defend, save, and hold Sourcewell and its Participating Entities, including their agents and employees, harmless from any claims or causes of action, including reasonable attorneys’ fees incurred by Sourcewell or its Participating Entities, arising out of any negligent act or omission in the performance of this Contract by the Supplier or its agents or employees; this indemnification includes injury or death to person(s) or property alleged to have been caused by some defect in the Equipment, Products, or Services under this Contract to the extent the Equipment, Product, or Service has been used according to its specifications.
In no event will Supplier be liable for any special, indirect, incidental, exemplary, or consequential damages for any cause of action, whether in contract or tort. Sourcewell’s responsibility will be governed by the State of Minnesota’s Tort Liability Act (Minnesota Statutes Chapter 466) and other applicable law.
12. GOVERNMENT DATA PRACTICES
Supplier and Sourcewell must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data provided by or provided to Sourcewell under this Contract and as it applies to all data created, collected, received, maintained, or disseminated by the Supplier under this Contract.
13. INTELLECTUAL PROPERTY, PUBLICITY, MARKETING, AND ENDORSEMENT A. INTELLECTUAL PROPERTY
1. Grant of License. During the term of this Contract:
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a. Sourcewell grants to Supplier a royalty-free, worldwide, non-exclusive right and license to use the trademark(s) provided to Supplier by Sourcewell in advertising and promotional materials for the purpose of marketing Sourcewell’s relationship with Supplier.
b. Supplier grants to Sourcewell a royalty-free, worldwide, non-exclusive right and license to use Supplier’s trademarks in advertising and promotional materials for the purpose of marketing Supplier’s relationship with Sourcewell.
2. Limited Right of Sublicense. The right and license granted herein includes a limited right of each party to grant sublicenses to their respective subsidiaries, distributors, dealers, resellers, marketing representatives, and agents (collectively “Permitted Sublicensees”) in advertising and promotional materials for the purpose of marketing the Parties’ relationship to Participating Entities. Any sublicense granted will be subject to the terms and conditions of this Article. Each party will be responsible for any breach of this Article by any of their respective sublicensees.
3. Use; Quality Control.
a. Neither party may alter the other party’s trademarks from the form provided and must comply with removal requests as to specific uses of its trademarks or logos.
b. Each party agrees to use, and to cause its Permitted Sublicensees to use, the other party’s trademarks only in good faith and in a dignified manner consistent with such party’s use of the trademarks. Upon written notice to the breaching party, the breaching party has 30 days of the date of the written notice to cure the breach or the license will be terminated.
4. Termination. Upon the termination of this Contract for any reason, each party, including Permitted Sublicensees, will have 30 days to remove all Trademarks from signage, websites, and the like bearing the other party’s name or logo (excepting Sourcewell’s pre-printed catalog of suppliers which may be used until the next printing). Supplier must return all marketing and promotional materials, including signage, provided by Sourcewell, or dispose of it according to Sourcewell’s written directions.
B. PUBLICITY. Any publicity regarding the subject matter of this Contract must not be released without prior written approval from the Authorized Representatives. Publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Supplier individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Contract.
C. MARKETING. Any direct advertising, marketing, or offers with Participating Entities must be approved by Sourcewell. Send all approval requests to the Sourcewell Supplier Development Administrator assigned to this Contract.
D. ENDORSEMENT. The Supplier must not claim that Sourcewell endorses its Equipment, Products, or Services.
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14. GOVERNING LAW, JURISDICTION, AND VENUE
The substantive and procedural laws of the State of Minnesota will govern this Contract. Venue for all legal proceedings arising out of this Contract, or its breach, must be in the appropriate state court in Todd County, Minnesota or federal court in Fergus Falls, Minnesota.
15. FORCE MAJEURE
Neither party to this Contract will be held responsible for delay or default caused by acts of God or other conditions that are beyond that party’s reasonable control. A party defaulting under this provision must provide the other party prompt written notice of the default.
16. SEVERABILITY
If any provision of this Contract is found by a court of competent jurisdiction to be illegal, unenforceable, or void then both parties will be relieved from all obligations arising from that provision. If the remainder of this Contract is capable of being performed, it will not be affected by such determination or finding and must be fully performed.
17. PERFORMANCE, DEFAULT, AND REMEDIES
A. PERFORMANCE. During the term of this Contract, the parties will monitor performance and address unresolved contract issues as follows:
1. Notification. The parties must promptly notify each other of any known dispute and work in good faith to resolve such dispute within a reasonable period of time. If necessary, Sourcewell and the Supplier will jointly develop a short briefing document that describes the issue(s), relevant impact, and positions of both parties.
2. Escalation. If parties are unable to resolve the issue in a timely manner, as specified above, either Sourcewell or Supplier may escalate the resolution of the issue to a higher level of management. The Supplier will have 30 calendar days to cure an outstanding issue.
3. Performance while Dispute is Pending. Notwithstanding the existence of a dispute, the Supplier must continue without delay to carry out all of its responsibilities under the Contract that are not affected by the dispute. If the Supplier fails to continue without delay to perform its responsibilities under the Contract, in the accomplishment of all undisputed work, the Supplier will bear any additional costs incurred by Sourcewell and/or its Participating Entities as a result of such failure to proceed.
B. DEFAULT AND REMEDIES. Either of the following constitutes cause to declare this Contract, or any Participating Entity order under this Contract, in default:
1. Nonperformance of contractual requirements, or
2. A material breach of any term or condition of this Contract.
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The party claiming default must provide written notice of the default, with 30 calendar days to cure the default. Time allowed for cure will not diminish or eliminate any liability for liquidated or other damages. If the default remains after the opportunity for cure, the non-defaulting party may:
x Exercise any remedy provided by law or equity, or
x Terminate the Contract or any portion thereof, including any orders issued against the Contract.
18. INSURANCE
A. REQUIREMENTS. At its own expense, Supplier must maintain insurance policy(ies) in effect at all times during the performance of this Contract with insurance company(ies) licensed or authorized to do business in the State of Minnesota having an “AM BEST” rating of A- or better, with coverage and limits of insurance not less than the following:
1. Workers’ Compensation and Employer’s Liability.
Workers’ Compensation: As required by any applicable law or regulation.
Employer's Liability Insurance: must be provided in amounts not less than listed below:
Minimum limits:
$500,000 each accident for bodily injury by accident
$500,000 policy limit for bodily injury by disease
$500,000 each employee for bodily injury by disease
2. Commercial General Liability Insurance. Supplier will maintain insurance covering its operations, with coverage on an occurrence basis, and must be subject to terms no less broad than the Insurance Services Office (“ISO”) Commercial General Liability Form CG0001 (2001 or newer edition), or equivalent. At a minimum, coverage must include liability arising from premises, operations, bodily injury and property damage, independent contractors, products-completed operations including construction defect, contractual liability, blanket contractual liability, and personal injury and advertising injury. All required limits, terms and conditions of coverage must be maintained during the term of this Contract.
Minimum Limits:
$1,000,000 each occurrence Bodily Injury and Property Damage $1,000,000 Personal and Advertising Injury
$2,000,000 aggregate for products liability-completed operations $2,000,000 general aggregate
3. Commercial Automobile Liability Insurance. During the term of this Contract, Supplier will maintain insurance covering all owned, hired, and non-owned automobiles in limits of liability not less than indicated below. The coverage must be subject to terms
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no less broad than ISO Business Auto Coverage Form CA 0001 (2010 edition or newer), or equivalent.
Minimum Limits:
$1,000,000 each accident, combined single limit
4. Umbrella Insurance. During the term of this Contract, Supplier will maintain umbrella coverage over Employer’s Liability, Commercial General Liability, and Commercial Automobile.
Minimum Limits:
$2,000,000
5. Professional/Technical, Errors and Omissions, and/or Miscellaneous Professional Liability. During the term of this Contract, Supplier will maintain coverage for all claims the Supplier may become legally obligated to pay resulting from any actual or alleged negligent act, error, or omission related to Supplier’s professional services required under this Contract.
Minimum Limits:
$2,000,000 per claim or event
$2,000,000 – annual aggregate
6. Network Security and Privacy Liability Insurance. During the term of this Contract, Supplier will maintain coverage for network security and privacy liability. The coverage may be endorsed on another form of liability coverage or written on a standalone policy. The insurance must cover claims which may arise from failure of Supplier’s security resulting in, but not limited to, computer attacks, unauthorized access, disclosure of not public data – including but not limited to, confidential or private information, transmission of a computer virus, or denial of service.
Minimum limits:
$2,000,000 per occurrence
$2,000,000 annual aggregate
Failure of Supplier to maintain the required insurance will constitute a material breach entitling Sourcewell to immediately terminate this Contract for default.
B. CERTIFICATES OF INSURANCE. Prior to commencing under this Contract, Supplier must furnish to Sourcewell a certificate of insurance, as evidence of the insurance required under this Contract. Prior to expiration of the policy(ies), renewal certificates must be mailed to Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 or sent to the Sourcewell Supplier Development Administrator assigned to this Contract. The certificates must be signed by a person authorized by the insurer(s) to bind coverage on their behalf.
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Failure to request certificates of insurance by Sourcewell, or failure of Supplier to provide certificates of insurance, in no way limits or relieves Supplier of its duties and responsibilities in this Contract.
C. ADDITIONAL INSURED ENDORSEMENT AND PRIMARY AND NON-CONTRIBUTORY INSURANCE CLAUSE. Supplier agrees to list Sourcewell and its Participating Entities, including their officers, agents, and employees, as an additional insured under the Supplier’s commercial general liability insurance policy with respect to liability arising out of activities, “operations,” or “work” performed by or on behalf of Supplier, and products and completed operations of Supplier. The policy provision(s) or endorsement(s) must further provide that coverage is primary and not excess over or contributory with any other valid, applicable, and collectible insurance or self-insurance in force for the additional insureds.
D. WAIVER OF SUBROGATION. Supplier waives and must require (by endorsement or otherwise) all its insurers to waive subrogation rights against Sourcewell and other additional insureds for losses paid under the insurance policies required by this Contract or other insurance applicable to the Supplier or its subcontractors. The waiver must apply to all deductibles and/or self-insured retentions applicable to the required or any other insurance maintained by the Supplier or its subcontractors. Where permitted by law, Supplier must require similar written express waivers of subrogation and insurance clauses from each of its subcontractors.
E. UMBRELLA/EXCESS LIABILITY/SELF-INSURED RETENTION. The limits required by this Contract can be met by either providing a primary policy or in combination with umbrella/excess liability policy(ies), or self-insured retention.
19. COMPLIANCE
A. LAWS AND REGULATIONS. All Equipment, Products, or Services provided under this Contract must comply fully with applicable federal laws and regulations, and with the laws in the states and provinces in which the Equipment, Products, or Services are sold.
B. LICENSES. Supplier must maintain a valid and current status on all required federal, state/provincial, and local licenses, bonds, and permits required for the operation of the business that the Supplier conducts with Sourcewell and Participating Entities.
20. BANKRUPTCY, DEBARMENT, OR SUSPENSION CERTIFICATION
Supplier certifies and warrants that it is not in bankruptcy or that it has previously disclosed in writing certain information to Sourcewell related to bankruptcy actions. If at any time during this Contract Supplier declares bankruptcy, Supplier must immediately notify Sourcewell in writing.
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Supplier certifies and warrants that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs operated by the State of Minnesota; the United States federal government or the Canadian government, as applicable; or any Participating Entity. Supplier certifies and warrants that neither it nor its principals have been convicted of a criminal offense related to the subject matter of this Contract. Supplier further warrants that it will provide immediate written notice to Sourcewell if this certification changes at any time.
21. PROVISIONS FOR NON-UNITED STATES FEDERAL ENTITY PROCUREMENTS UNDER
UNITED STATES FEDERAL AWARDS OR OTHER AWARDS
Participating Entities that use United States federal grant or FEMA funds to purchase goods or services from this Contract may be subject to additional requirements including the procurement standards of the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 C.F.R. § 200. Participating Entities may have additional requirements based on specific funding source terms or conditions. Within this Article, all references to “federal” should be interpreted to mean the United States federal government.
The following list only applies when a Participating Entity accesses Supplier’s Equipment, Products, or Services with United States federal funds.
A. EQUAL EMPLOYMENT OPPORTUNITY. Except as otherwise provided under 41 C.F.R. § 60, all contracts that meet the definition of “federally assisted construction contract” in 41 C.F.R. § 60-
1.3 must include the equal opportunity clause provided under 41 C.F.R. §60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. §, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 C.F.R. § 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The equal opportunity clause is incorporated herein by reference.
B. DAVIS-BACON ACT, AS AMENDED (40 U.S.C. § 3141-3148). When required by federal program legislation, all prime construction contracts in excess of $2,000 awarded by nonfederal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. § 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 C.F.R. § 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-federal entity must report all suspected or reported violations to the federal awarding agency. The contracts must also include a provision for compliance with
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the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations (29 C.F.R. § 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-federal entity must report all suspected or reported violations to the federal awarding agency. Supplier must be in compliance with all applicable Davis-Bacon Act provisions.
C. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (40 U.S.C. § 3701-3708). Where applicable, all contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. § 5).
Under 40 U.S.C. § 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. This provision is hereby incorporated by reference into this Contract. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above.
D. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT. If the federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 C.F.R. § 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above.
E. CLEAN AIR ACT (42 U.S.C. § 7401-7671Q.) AND THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. § 1251-1387). Contracts and subgrants of amounts in excess of $150,000 require the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. § 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. § 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
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Supplier certifies that during the term of this Contract will comply with applicable requirements as referenced above.
F. DEBARMENT AND SUSPENSION (EXECUTIVE ORDERS 12549 AND 12689). A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 C.F.R. §180 that implement Executive Orders 12549 (3 C.F.R. § 1986 Comp., p. 189) and 12689 (3 C.F.R. § 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. Supplier certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency.
G. BYRD ANTI-LOBBYING AMENDMENT, AS AMENDED (31 U.S.C. § 1352). Suppliers must file any required certifications. Suppliers must not have used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Suppliers must disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the non-federal award. Suppliers must file all certifications and disclosures required by, and otherwise comply with, the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352).
H. RECORD RETENTION REQUIREMENTS. To the extent applicable, Supplier must comply with the record retention requirements detailed in 2 C.F.R. § 200.333. The Supplier further certifies that it will retain all records as required by 2 C.F.R. § 200.333 for a period of 3 years after grantees or subgrantees submit final expenditure reports or quarterly or annual financial reports, as applicable, and all other pending matters are closed.
I. ENERGY POLICY AND CONSERVATION ACT COMPLIANCE. To the extent applicable, Supplier must comply with the mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.
J. BUY AMERICAN PROVISIONS COMPLIANCE. To the extent applicable, Supplier must comply with all applicable provisions of the Buy American Act. Purchases made in accordance with the Buy American Act must follow the applicable procurement rules calling for free and open competition.
K. ACCESS TO RECORDS (2 C.F.R. § 200.336). Supplier agrees that duly authorized representatives of a federal agency must have access to any books, documents, papers and
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records of Supplier that are directly pertinent to Supplier’s discharge of its obligations under this Contract for the purpose of making audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to Supplier’s personnel for the purpose of interview and discussion relating to such documents.
L. PROCUREMENT OF RECOVERED MATERIALS (2 C.F.R. § 200.322). A non-federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. § 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
M. FEDERAL SEAL(S), LOGOS, AND FLAGS. The Supplier cannot use the seal(s), logos, crests, or reproductions of flags or likenesses of Federal agency officials without specific pre-approval.
N. NO OBLIGATION BY FEDERAL GOVERNMENT. The U.S. federal government is not a party to this Contract or any purchase by a Participating Entity and is not subject to any obligations or liabilities to the Participating Entity, Supplier, or any other party pertaining to any matter resulting from the Contract or any purchase by an authorized user.
O. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS. The Contractor acknowledges that 31 U.S.C. 38 (Administrative Remedies for False Claims and Statements) applies to the Supplier’s actions pertaining to this Contract or any purchase by a Participating Entity.
P. FEDERAL DEBT. The Supplier certifies that it is non-delinquent in its repayment of any federal debt. Examples of relevant debt include delinquent payroll and other taxes, audit disallowance, and benefit overpayments.
Q. CONFLICTS OF INTEREST. The Supplier must notify the U.S. Office of General Services, Sourcewell, and Participating Entity as soon as possible if this Contract or any aspect related to the anticipated work under this Contract raises an actual or potential conflict of interest (as described in 2 C.F.R. Part 200). The Supplier must explain the actual or potential conflict in writing in sufficient detail so that the U.S. Office of General Services, Sourcewell, and Participating Entity are able to assess the actual or potential conflict; and provide any additional information as necessary or requested.
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R. U.S. EXECUTIVE ORDER 13224. The Supplier, and its subcontractors, must comply with U.S.
Executive Order 13224 and U.S. Laws that prohibit transactions with and provision of resources and support to individuals and organizations associated with terrorism.
S. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT. To the extent applicable, Supplier certifies that during the term of this Contract it will comply with applicable requirements of 2 C.F.R. § 200.216.
T. DOMESTIC PREFERENCES FOR PROCUREMENTS. To the extent applicable, Supplier certifies that during the term of this Contract will comply with applicable requirements of 2 C.F.R. § 200.322.
22. CANCELLATION
Sourcewell or Supplier may cancel this Contract at any time, with or without cause, upon 60 days’ written notice to the other party. However, Sourcewell may cancel this Contract immediately upon discovery of a material defect in any certification made in Supplier’s Proposal. Cancellation of this Contract does not relieve either party of financial, product, or service obligations incurred or accrued prior to cancellation.
Sourcewell Axon Enterprise, Inc.
By: __________________________ By: __________________________ Jeremy Schwartz Robert Driscoll
Title: Chief Procurement Officer Title: Vice President Legal, Associate General Counsel
Date: ________________________ Date: ________________________
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Exhibit A
Axon Master Services and Purchasing Agreement (MSPA)
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Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 19.0
Release Date: 8/18/2023 Page 1 of 40
This Master Services and Purchasing Agreement ("Agreement") is between Axon Enterprise, Inc. ("Axon"), and the agency listed below or, if no agency is listed below, the agency on the Quote attached hereto ("Agency"). This Agreement is effective as of the later of the (a) last signature date on this Agreement or (b) signature date on the Quote ("Effective Date"). Axon and Agency are each a "Party" and collectively "Parties". This Agreement governs Agency’s purchase and use of the Axon Devices and Services detailed in the Quote Appendix ("Quote"). It is the intent of the Parties that this Agreement will govern all subsequent purchases by Agency for the same Axon Devices and Services in the Quote, and all such subsequent quotes accepted by Agency shall be also incorporated into this Agreement by reference as a Quote.
The Parties agree as follows:
1. Definitions.
1.1. "Axon Cloud Services" means Axon’s web services for Axon Evidence, Axon Records, Axon Dispatch, and interactions between Axon Evidence and Axon Devices or Axon client software. Axon Cloud Service excludes third-party applications, hardware warranties, and my.evidence.com.
1.2. "Axon Device" means all hardware provided by Axon under this Agreement. Axon-manufactured Devices are a subset of Axon Devices.
1.3. "Quote" means an offer to sell and is only valid for devices and services on the offer at the specified prices.
Any inconsistent or supplemental terms within Agency’s purchase order in response to a Quote will be void.
Orders are subject to prior credit approval. Changes in the deployment estimated ship date may change charges in the Quote. Shipping dates are estimates only. Axon is not responsible for typographical errors in any Quote by Axon, and Axon reserves the right to cancel any orders resulting from such errors.
1.4. "Services" means all services provided by Axon under this Agreement, including software, Axon Cloud Services, and professional services.
2. Term. This Agreement begins on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated ("Term").
2.1. All subscriptions including Axon Evidence, Axon Fleet, Officer Safety Plans, Technology Assurance Plans, and TASER 7 or TASER 10 plans begin on the date stated in the Quote. Each subscription term ends upon completion of the subscription stated in the Quote ("Subscription Term").
2.2. Upon completion of the Subscription Term, the Subscription Term will automatically renew for an additional 5 years ("Renewal Term"). For purchase of TASER 7 or TASER 10 as a standalone, Axon may increase pricing to its then-current list pricing for any Renewal Term. For all other purchases, Axon may increase pricing on all line items in the Quote by up to 3% at the beginning of each year of the Renewal Term. New devices and services may require additional terms. Axon will not authorize services until Axon receives a signed Quote or accepts a purchase order, whichever is first.
3. Payment. Axon invoices upon shipment, or on the date specified within the invoicing plan in the Quote. Payment is due net 30 days from the invoice date. Payment obligations are non-cancelable. Unless otherwise prohibited by law, Agency will pay interest on all past-due sums at the lower of one-and-a-half percent (1.5%) per month or the highest rate allowed by law. Agency will pay invoices without setoff, deduction, or withholding. If Axon sends a past due account to collections, Agency is responsible for collection and attorneys’ fees.
4. Taxes. Agency is responsible for sales and other taxes associated with the order unless Agency provides Axon a valid tax exemption certificate.
5. Shipping. Axon may make partial shipments and ship Axon Devices from multiple locations. All shipments are EXW (Incoterms 2020) via common carrier. Title and risk of loss pass to Agency upon Axon’s delivery to the common carrier. Agency is responsible for any shipping charges in the Quote.
6. Returns. All sales are final. Axon does not allow refunds or exchanges, except warranty returns or as provided by state or federal law.
7. Warranty.
7.1. Limited Warranty. Axon warrants that Axon-manufactured Devices are free from defects in workmanship and materials for one (1) year from the date of Agency’s receipt, except Signal Sidearm and Axon-manufactured accessories, which Axon warrants for thirty (30) months and ninety (90) days, respectively, from the date of Agency’s receipt. Used conducted energy weapon ("CEW") cartridges are deemed to have operated properly.
Extended warranties run from the expiration of the one- (1-) year hardware warranty through the extended warranty term.
7.2. Disclaimer. All software and Axon Cloud Services are provided "AS IS," without any warranty of any kind, either express or implied, including without limitation the implied warranties of merchantability,
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Master Services and Purchasing Agreement for Agency
Title: Master Services and Purchasing Agreement between Axon and Agency Department: Legal
Version: 19.0
Release Date: 8/18/2023 Page 2 of 40
fitness for a particular purpose and non-infringement. Axon Devices and Services that are not manufactured, published or performed by Axon ("Third-Party Products") are not covered by Axon’s warranty and are only subject to the warranties of the third-party provider or manufacturer.
7.3. Claims. If Axon receives a valid warranty claim for an Axon-manufactured Device during the warranty term, Axon’s sole responsibility is to repair or replace the Axon-manufactured Device with the same or like Axonmanufactured Device, at Axon’s option. A replacement Axon-manufactured Device will be new or like new.
Axon will warrant the replacement Axon-manufactured Device for the longer of (a) the remaining warranty of the original Axon-manufactured Device or (b) ninety (90) days from the date of repair or replacement.
7.3.1. If Agency exchanges an Axon Device or part, the replacement item becomes Agency’s property, and the replaced item becomes Axon’s property. Before delivering an Axon-manufactured Device for service, Agency must upload Axon-manufactured Device data to Axon Evidence or download it and retain a copy. Axon is not responsible for any loss of software, data, or other information contained in storage media or any part of the Axon-manufactured Device sent to Axon for service.
7.4. Spare Axon Devices. At Axon's reasonable discretion, Axon may provide Agency a predetermined number of spare Axon Devices as detailed in the Quote ("Spare Axon Devices"). Spare Axon Devices are intended to replace broken or non-functioning units while Agency submits the broken or non-functioning units, through Axon’s warranty return process. Axon will repair or replace the unit with a replacement Axon Device. Title and risk of loss for all Spare Axon Devices shall pass to Agency in accordance with shipping terms under Section
5. Axon assumes no liability or obligation in the event Agency does not utilize Spare Axon Devices for the intended purpose.
7.5. Limitations. Axon’s warranty excludes damage related to: (a) failure to follow Axon Device use instructions; (b) Axon Devices used with equipment not manufactured or recommended by Axon; (c) abuse, misuse, or intentional damage to Axon Device; (d) force majeure; (e) Axon Devices repaired or modified by persons other than Axon without Axon’s written permission; or (f) Axon Devices with a defaced or removed serial number.
Axon’s warranty will be void if Agency resells Axon Devices.
7.5.1. To the extent permitted by law, the above warranties and remedies are exclusive. Axon disclaims all other warranties, remedies, and conditions, whether oral, written, statutory, or implied. If statutory or implied warranties cannot be lawfully disclaimed, then such warranties are limited to the duration of the warranty described above and by the provisions in this Agreement. Agency confirms and agrees that, in deciding whether to sign this Agreement, it has not relied on any statement or representation by Axon or anyone acting on behalf of Axon related to the subject matter of this Agreement that is not in this Agreement.
7.5.2. Axon’s cumulative liability to any party for any loss or damage resulting from any claim, demand, or action arising out of or relating to any Axon Device or Service will not exceed the purchase price paid to Axon for the Axon Device, or if for Services, the amount paid for such Services over the twelve (12) months preceding the claim. Neither Party will be liable for direct, special, indirect, incidental, punitive or consequential damages, however caused, whether for breach of warranty or contract, negligence, strict liability, tort or any other legal theory.
7.6. Online Support Platforms. Use of Axon's online support platforms (e.g., Axon Academy and MyAxon) is governed by the Axon Online Support Platforms Terms of Use Appendix available at www.axon.com/salesterms-and-conditions.
7.7. Third-Party Software and Services. Use of software or services other than those provided by Axon is governed by the terms, if any, entered into between Agency and the respective third-party provider, including, without limitation, the terms applicable to such software or services located at www.axon.com/sales-termsand-conditions, if any.
7.8. Axon Aid. Upon mutual agreement between Axon and Agency, Axon may provide certain products and services to Agency, as a charitable donation under the Axon Aid program. In such event, Agency expressly waives and releases any and all claims, now known or hereafter known, against Axon and its officers, directors, employees, agents, contractors, affiliates, successors, and assigns (collectively, "Releasees"), including but not limited to, on account of injury, death, property damage, or loss of data, arising out of or attributable to the Axon Aid program whether arising out of the negligence of any Releasees or otherwise. Agency agrees not to make or bring any such claim against any Releasee, and forever release and discharge all Releasees from liability under such claims. Agency expressly allows Axon to publicly announce its participation in Axon Aid and use its name in marketing materials. Axon may terminate the Axon Aid program without cause immediately upon notice to the Agency.
8. Statement of Work. Certain Axon Devices and Services, including Axon Interview Room, Axon Channel Services,
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and Axon Fleet, may require a Statement of Work that details Axon’s Service deliverables ("SOW"). In the event Axon provides an SOW to Agency, Axon is only responsible for the performance of Services described in the SOW.
Additional services are out of scope. The Parties must document scope changes in a written and signed change order. Changes may require an equitable adjustment in fees or schedule. The SOW is incorporated into this Agreement by reference.
9. Axon Device Warnings. See www.axon.com/legal for the most current Axon Device warnings.
10. Design Changes. Axon may make design changes to any Axon Device or Service without notifying Agency or making the same change to Axon Devices and Services previously purchased by Agency.
11. Bundled Offerings. Some offerings in bundled offerings may not be generally available at the time of Agency’s purchase. Axon will not provide a refund, credit, or additional discount beyond what is in the Quote due to a delay of availability or Agency’s election not to utilize any portion of an Axon bundle.
12. Insurance. Axon will maintain General Liability, Workers’ Compensation, and Automobile Liability insurance. Upon request, Axon will supply certificates of insurance.
13. IP Rights. Axon owns and reserves all right, title, and interest in Axon-manufactured Devices and Services and suggestions to Axon, including all related intellectual property rights. Agency will not cause any Axon proprietary rights to be violated.
14. IP Indemnification. Axon will indemnify Agency against all claims, losses, and reasonable expenses from any thirdparty claim alleging that the use of Axon-manufactured Devices or Services infringes or misappropriates the thirdparty’s intellectual property rights. Agency must promptly provide Axon with written notice of such claim, tender to Axon the defense or settlement of such claim at Axon’s expense and cooperate fully with Axon in the defense or settlement of such claim. Axon’s IP indemnification obligations do not apply to claims based on (a) modification of Axon-manufactured Devices or Services by Agency or a third-party not approved by Axon; (b) use of Axonmanufactured Devices and Services in combination with hardware or services not approved by Axon; (c) use of Axon Devices and Services other than as permitted in this Agreement; or (d) use of Axon software that is not the most current release provided by Axon.
15. Agency Responsibilities. Agency is responsible for (a) Agency’s use of Axon Devices; (b) breach of this Agreement or violation of applicable law by Agency or an Agency end user; (c) disputes between Agency and a third-party over Agency’s use of Axon Devices; (d) ensuring Axon Devices are destroyed and disposed of securely and sustainably at Agency’s cost; and (e) any regulatory violations or fines, as a result of improper destruction or disposal of Axon Devices.
16. Termination.
16.1. For Breach. A Party may terminate this Agreement for cause if it provides thirty (30) days written notice of the breach to the other Party, and the breach remains uncured at the end of thirty (30) days. If Agency terminates this Agreement due to Axon’s uncured breach, Axon will refund prepaid amounts on a prorated basis based on the effective date of termination.
16.2. By Agency. If sufficient funds are not appropriated or otherwise legally available to pay the fees, Agency may terminate this Agreement. Agency will deliver notice of termination under this section as soon as reasonably practicable.
16.3. Effect of Termination. Upon termination of this Agreement, Agency rights immediately terminate. Agency remains responsible for all fees incurred before the effective date of termination. If Agency purchases Axon Devices for less than the manufacturer’s suggested retail price ("MSRP") and this Agreement terminates before the end of the Term, Axon will invoice Agency the difference between the MSRP for Axon Devices received, including any Spare Axon Devices, and amounts paid towards those Axon Devices. Only if terminating for nonappropriation, Agency may return Axon Devices to Axon within thirty (30) days of termination. MSRP is the standalone price of the individual Axon Device at the time of sale. For bundled Axon Devices, MSRP is the standalone price of all individual components.
17. Confidentiality. "Confidential Information" means nonpublic information designated as confidential or, given the nature of the information or circumstances surrounding disclosure, should reasonably be understood to be confidential. Each Party will take reasonable measures to avoid disclosure, dissemination, or unauthorized use of the other Party’s Confidential Information. Unless required by law, neither Party will disclose the other Party’s Confidential Information during the Term and for five (5) years thereafter. To the extent permissible by law, Axon pricing is Confidential Information and competition sensitive. If Agency receives a public records request to disclose Axon Confidential Information, to the extent allowed by law, Agency will provide notice to Axon before disclosure. Axon may publicly announce information related to this Agreement.
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18. General.
18.1. Force Majeure. Neither Party will be liable for any delay or failure to perform due to a cause beyond a Party’s reasonable control.
18.2. Independent Contractors. The Parties are independent contractors. Neither Party has the authority to bind the other. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
18.3. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
18.4. Non-Discrimination. Neither Party nor its employees will discriminate against any person based on race; religion; creed; color; sex; gender identity and expression; pregnancy; childbirth; breastfeeding; medical conditions related to pregnancy, childbirth, or breastfeeding; sexual orientation; marital status; age; national origin; ancestry; genetic information; disability; veteran status; or any class protected by local, state, or federal law.
18.5. Export Compliance. Each Party will comply with all import and export control laws and regulations.
18.6. Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent. Axon may assign this Agreement, its rights, or obligations without consent: (a) to an affiliate or subsidiary; or (b) for purposes of financing, merger, acquisition, corporate reorganization, or sale of all or substantially all its assets.
This Agreement is binding upon the Parties respective successors and assigns.
18.7. Waiver. No waiver or delay by either Party in exercising any right under this Agreement constitutes a waiver of that right.
18.8. Severability. If a court of competent jurisdiction holds any portion of this Agreement invalid or unenforceable, the remaining portions of this Agreement will remain in effect.
18.9. Survival. The following sections will survive termination: Payment, Warranty, Axon Device Warnings, Indemnification, IP Rights, and Agency Responsibilities.
18.10.Governing Law. The laws of the country, state, province, or municipality where Agency is physically located, without reference to conflict of law rules, govern this Agreement and any dispute arising from it. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
18.11.Notices. All notices must be in English. Notices posted on Agency’s Axon Evidence site are effective upon posting. Notices by email are effective on the sent date of the email. Notices by personal delivery are effective immediately. Notices to Agency shall be provided to the address on file with Axon. Notices to Axon shall be provided to Axon Enterprise, Inc., Attn: Legal, 17800 North 85th Street, Scottsdale, Arizona 85255 with a copy to [email protected].
18.12 Entire Agreement. This Agreement, including the Appendices and any SOW(s), represents the entire agreement between the Parties. This Agreement supersedes all prior agreements or understandings, whether written or verbal, regarding the subject matter of this Agreement. This Agreement may only be modified or amended in a writing signed by the Parties.
Each Party, by and through its respective representative authorized to execute this Agreement, has duly executed and delivered this Agreement as of the date of signature.
AXON: AGENCY:
Choose an item. ___________________________
Signature: Signature:
Name: Name:
Title: Title:
Date: Date:
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Axon Cloud Services Terms of Use Appendix
1. Definitions.
a. "Agency Content" is data uploaded into, ingested by, or created in Axon Cloud Services within Agency’s tenant, including media or multimedia uploaded into Axon Cloud Services by Agency. Agency Content includes Evidence but excludes Non-Content Data. b. "Evidence" is media or multimedia uploaded into Axon Evidence as 'evidence' by an Agency. Evidence is a subset of Agency Content.
c. "Non-Content Data" is data, configuration, and usage information about Agency’s Axon Cloud Services tenant, Axon Devices and client software, and users that is transmitted or generated when using Axon Devices. Non-Content Data includes data about users captured during account management and customer support activities. Non-Content Data does not include Agency Content. d. "Personal Data" means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
2. Access. Upon Axon granting Agency a subscription to Axon Cloud Services, Agency may access and use Axon Cloud Services to store and manage Agency Content. Agency may not exceed more end users than the Quote specifies. Axon Air requires an Axon Evidence subscription for each drone operator. For Axon Evidence Lite, Agency may access and use Axon Evidence only to store and manage TASER CEW and TASER CAM data ("TASER Data"). Agency may not upload non-TASER Data to Axon Evidence Lite.
3. Agency Owns Agency Content. Agency controls and owns all right, title, and interest in Agency Content. Except as outlined herein, Axon obtains no interest in Agency Content, and Agency Content is not Axon’s business records. Agency is solely responsible for uploading, sharing, managing, and deleting Agency Content. Axon will only have access to Agency Content for the limited purposes set forth herein. Agency agrees to allow Axon access to Agency Content to (a) perform troubleshooting, maintenance, or diagnostic screenings; and (b) enforce this Agreement or policies governing use of the Axon products.
4. Security. Axon will implement commercially reasonable and appropriate measures to secure Agency Content against accidental or unlawful loss, access or disclosure. Axon will maintain a comprehensive information security program to protect Axon Cloud Services and Agency Content including logical, physical access, vulnerability, risk, and configuration management; incident monitoring and response; encryption of uploaded digital evidence; security education; and data protection. Axon agrees to the Federal Bureau of Investigation Criminal Justice Information Services Security Addendum.
5. Agency Responsibilities. Agency is responsible for (a) ensuring Agency owns Agency Content; (b) ensuring no Agency Content or Agency end user’s use of Agency Content or Axon Cloud Services violates this Agreement or applicable laws; and (c) maintaining necessary computer equipment and Internet connections for use of Axon Cloud Services. If Agency becomes aware of any violation of this Agreement by an end user, Agency will immediately terminate that end user’s access to Axon Cloud Services. a. Agency will also maintain the security of end usernames and passwords and security and access by end users to Agency Content. Agency is responsible for ensuring the configuration and utilization of Axon Cloud Services meet applicable Agency regulation and standards. Agency may not sell, transfer, or sublicense access to any other entity or person. Agency shall contact Axon immediately if an unauthorized party may be using Agency’s account or Agency Content, or if account information is lost or stolen.
b. To the extent Agency uses the Axon Cloud Services to interact with YouTube®, such use may be governed by the YouTube Terms of Service, available at
https://www.youtube.com/static?template=terms.
6. Privacy. Agency’s use of Axon Cloud Services is subject to the Axon Cloud Services Privacy Policy, a current version of which is available at https://www.axon.com/legal/cloud-services-privacy-policy. Agency agrees to allow Axon access to Non-Content Data from Agency to (a) perform troubleshooting, maintenance, or diagnostic
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screenings; (b) provide, develop, improve, and support current and future Axon products and related services; and (c) enforce this Agreement or policies governing the use of Axon products.
7. Axon Body 3 Wi-Fi Positioning. Axon Body 3 cameras offer a feature to enhance location services where GPS/GNSS signals may not be available, for instance, within buildings or underground. Agency administrators can manage their choice to use this service within the administrative features of Axon Cloud Services. If Agency chooses to use this service, Axon must also enable the usage of the feature for Agency’s Axon Cloud Services tenant. Agency will not see this option with Axon Cloud Services unless Axon has enabled Wi-Fi Positioning for Agency’s Axon Cloud Services tenant. When Wi-Fi Positioning is enabled by both Axon and Agency, NonContent and Personal Data will be sent to Skyhook Holdings, Inc. ("Skyhook") to facilitate the Wi-Fi Positioning functionality. Data controlled by Skyhook is outside the scope of the Axon Cloud Services Privacy Policy and is subject to the Skyhook Services Privacy Policy.
8. Storage. For Axon Unlimited Device Storage subscriptions, Agency may store unlimited data in Agency's Axon Evidence account only if data originates from Axon Capture or the applicable Axon Device. Axon may charge Agency additional fees for exceeding purchased storage amounts. Axon may place Agency Content that Agency has not viewed or accessed for six (6) months into archival storage. Agency Content in archival storage will not have immediate availability and may take up to twenty-four (24) hours to access.
For Third-Party Unlimited Storage the following restrictions apply: (i) it may only be used in conjunction with a valid Axon’s Evidence.com user license; (ii) is limited to data of the law enforcement agency that purchased the Third-Party Unlimited Storage and the Axon’s Evidence.com end user or Agency is prohibited from storing data for other law enforcement agencies; and (iii) Agency may only upload and store data that is directly related to:
(1) the investigation of, or the prosecution of a crime; (2) common law enforcement activities; or (3) any Agency Content created by Axon Devices or Evidence.com.
9. Location of Storage. Axon may transfer Agency Content to third-party subcontractors for storage. Axon will determine the locations of data centers for storage of Agency Content. For United States agencies, Axon will ensure all Agency Content stored in Axon Cloud Services remains within the United States. Ownership of Agency Content remains with Agency.
10. Suspension. Axon may temporarily suspend Agency’s or any end user’s right to access or use any portion or all of Axon Cloud Services immediately upon notice, if Agency or end user’s use of or registration for Axon Cloud Services may (a) pose a security risk to Axon Cloud Services or any third-party; (b) adversely impact Axon Cloud Services, the systems, or content of any other customer; (c) subject Axon, Axon’s affiliates, or any third-party to liability; or (d) be fraudulent. Agency remains responsible for all fees incurred through suspension. Axon will not delete Agency Content because of suspension, except as specified in this Agreement.
11. Axon Cloud Services Warranty. Axon disclaims any warranties or responsibility for data corruption or errors before Agency uploads data to Axon Cloud Services.
12. Axon Records. Axon Records is the software-as-a-service product that is generally available at the time Agency purchases an OSP 7 or OSP 10 bundle. During Agency’s Axon Records Subscription Term, if any, Agency will be entitled to receive Axon’s Update and Upgrade releases on an if-and-when available basis. a. The Axon Records Subscription Term will end upon the completion of the Axon Records Subscription as documented in the Quote, or if purchased as part of an OSP 7 or OSP 10 bundle, upon completion of the OSP 7 or OSP 10 Term ("Axon Records Subscription") b. An "Update" is a generally available release of Axon Records that Axon makes available from time to time. An "Upgrade" includes (i) new versions of Axon Records that enhance features and functionality, as solely determined by Axon; and/or (ii) new versions of Axon Records that provide additional features or perform additional functions. Upgrades exclude new products that Axon introduces and markets as distinct products or applications.
c. New or additional Axon products and applications, as well as any Axon professional services needed to configure Axon Records, are not included. If Agency purchases Axon Records as part of a bundled offering, the Axon Record subscription begins on the later of the (1) start date of that bundled offering, or (2) date Axon provisions Axon Records to Agency.
d. Users of Axon Records at the Agency may upload files to entities (incidents, reports, cases, etc) in Axon Records with no limit to the number of files and amount of storage. Notwithstanding the foregoing, Axon
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may limit usage should the Agency exceed an average rate of one-hundred (100) GB per user per year of uploaded files. Axon will not bill for overages.
13. Axon Cloud Services Restrictions. Agency and Agency end users (including employees, contractors, agents, officers, volunteers, and directors), may not, or may not attempt to:
a. copy, modify, tamper with, repair, or create derivative works of any part of Axon Cloud Services; b. reverse engineer, disassemble, or decompile Axon Cloud Services or apply any process to derive any source code included in Axon Cloud Services, or allow others to do the same; c. access or use Axon Cloud Services with the intent to gain unauthorized access, avoid incurring fees or exceeding usage limits or quotas;
d. use trade secret information contained in Axon Cloud Services, except as expressly permitted in this Agreement;
e. access Axon Cloud Services to build a competitive device or service or copy any features, functions, or graphics of Axon Cloud Services;
f. remove, alter, or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices) of Axon’s or Axon’s licensors on or within Axon Cloud Services; or g. use Axon Cloud Services to store or transmit infringing, libelous, or other unlawful or tortious material; material in violation of third-party privacy rights; or malicious code.
14. After Termination. Axon will not delete Agency Content for ninety (90) days following termination. There will be no functionality of Axon Cloud Services during these ninety (90) days other than the ability to retrieve Agency Content. Agency will not incur additional fees if Agency downloads Agency Content from Axon Cloud Services during this time. Axon has no obligation to maintain or provide Agency Content after these ninety (90) days and will thereafter, unless legally prohibited, delete all Agency Content. Upon request, Axon will provide written proof that Axon successfully deleted and fully removed all Agency Content from Axon Cloud Services.
15. Post-Termination Assistance. Axon will provide Agency with the same post-termination data retrieval assistance that Axon generally makes available to all customers. Requests for Axon to provide additional assistance in downloading or transferring Agency Content, including requests for Axon’s data egress service, will result in additional fees and Axon will not warrant or guarantee data integrity or readability in the external system.
16. U.S. Government Rights. If Agency is a U.S. Federal department or using Axon Cloud Services on behalf of a U.S. Federal department, Axon Cloud Services is provided as a "commercial item," "commercial computer software," "commercial computer software documentation," and "technical data", as defined in the Federal Acquisition Regulation and Defense Federal Acquisition Regulation Supplement. If Agency is using Axon Cloud Services on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Agency will immediately discontinue use of Axon Cloud Services.
17. Survival. Upon any termination of this Agreement, the following sections in this Appendix will survive: Agency Owns Agency Content, Privacy, Storage, Axon Cloud Services Warranty, and Axon Cloud Services Restrictions.
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Axon Customer Experience Improvement Program Appendix
1. Axon Customer Experience Improvement Program (ACEIP). The ACEIP is designed to accelerate Axon’s development of technology, such as building and supporting automated features, to ultimately increase safety within communities and drive efficiency in public safety. To this end, subject to the limitations on Axon as described below, Axon, where allowed by law, may make limited use of Agency Content from all of its customers to provide, develop, improve, and support current and future Axon products (collectively, "ACEIP Purposes"). However, at all times, Axon will comply with its obligations pursuant to the Axon Cloud Services Terms of Use Appendix to maintain a comprehensive data security program (including compliance with the CJIS Security Policy for Criminal Justice Information), privacy program, and data governance policy, including high industry standards of de-identifying Personal Data, to enforce its security and privacy obligations for the ACEIP. ACEIP has 2 tiers of participation, Tier 1 and Tier 2. By default, Agency will be a participant in ACEIP Tier 1. If Agency does not want to participate in ACEIP Tier 1, Agency can revoke its consent at any time. If Agency wants to participate in Tier 2, as detailed below, Agency can check the ACEIP Tier 2 box below. If Agency does not want to participate in ACEIP Tier 2, Agency should leave box unchecked. At any time, Agency may revoke its consent to ACEIP Tier 1, Tier 2, or both Tiers.
2. ACEIP Tier 1.
2.1. When Axon uses Agency Content for the ACEIP Purposes, Axon will extract from Agency Content and may store separately copies of certain segments or elements of the Agency Content (collectively, "ACEIP Content").
When extracting ACEIP Content, Axon will use commercially reasonable efforts to aggregate, transform or deidentify Agency Content so that the extracted ACEIP Content is no longer reasonably capable of being associated with, or could reasonably be linked directly or indirectly to a particular individual ("Privacy Preserving Technique(s)"). For illustrative purposes, some examples are described in footnote 11 . For clarity,
ACEIP Content will still be linked indirectly, with an attribution, to the Agency from which it was extracted. This attribution will be stored separately from the data itself, but is necessary for and will be solely used to enable Axon to identify and delete all ACEIP Content upon Agency request. Once de-identified, ACEIP Content may then be further modified, analyzed, and used to create derivative works. At any time, Agency may revoke the consent granted herein to Axon to access and use Agency Content for ACEIP Purposes. Within 30 days of receiving the Agency’s request, Axon will no longer access or use Agency Content for ACEIP Purposes and will delete any and all ACEIP Content. Axon will also delete any derivative works which may reasonably be capable of being associated with, or could reasonably be linked directly or indirectly to Agency. In addition, if Axon uses Agency Content for the ACEIP Purposes, upon request, Axon will make available to Agency a list of the specific type of Agency Content being used to generate ACEIP Content, the purpose of such use, and the retention, privacy preserving extraction technique, and relevant data protection practices applicable to the Agency Content or ACEIP Content ("Use Case"). From time to time, Axon may develop and deploy new Use Cases. At least 30 days prior to authorizing the deployment of any new Use Case, Axon will provide Agency notice (by updating the list of Use Case at https://www.axon.com/aceip and providing Agency with a mechanism to obtain notice of that update or another commercially reasonable method to Agency designated contact) ("New Use Case").
2.2. Expiration of ACEIP Tier 1. Agency consent granted herein will expire upon termination of the Agreement. In accordance with section 1.1.1, within 30 days of receiving the Agency’s request, Axon will no longer access or use Agency Content for ACEIP Purposes and will delete ACEIP Content. Axon will also delete any derivative works which may reasonably be capable of being associated with, or could reasonably be linked directly or indirectly to, Agency.
3. ACEIP Tier 2. In addition to ACEIP Tier 1, if Agency wants to help further improve Axon’s services, Agency may choose to participate in Tier 2 of the ACEIP. ACEIP Tier 2 grants Axon certain additional rights to use Agency Content, in addition to those set forth in Tier 1 above, without the guaranteed deployment of a Privacy Preserving Technique 1 For example; (a) when extracting specific text to improve automated transcription capabilities, text that could be used to directly identify a particular individual would not be extracted, and extracted text would be disassociated from identifying metadata of any speakers, and the extracted text would be split into individual words and aggregated with other data sources (including publicly available data) to remove any reasonable ability to link any specific text directly or indirectly back to a particular individual; (b) when extracting license plate data to improve Automated License Plate Recognition (ALPR) capabilities, individual license plate characters would be extracted and disassociated from each other so a complete plate could not be reconstituted, and all association to other elements of the source video, such as the vehicle, location, time, and the surrounding environment would also be removed; (c) when extracting audio of potential acoustic events (such as glass breaking or gun shots), very short segments (<1 second) of audio that only contains the likely acoustic events would be extracted and all human utterances would be removed.
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to enable product development, improvement, and support that cannot be accomplished with aggregated, transformed, or de-identified data.
տ Check this box if Agency wants to help further improve Axon’s services by participating in ACEIP Tier 2 in addition to Tier 1. Axon will not enroll Agency into ACEIP Tier 2 until Axon and Agency agree to terms in writing providing for such participation in ACEIP Tier 2.
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Professional Services Appendix
If any of the Professional Services specified below are included on the Quote, this Appendix applies.
1. Utilization of Services. Agency must use professional services as outlined in the Quote and this Appendix within six (6) months of the Effective Date.
2. Axon Full Service (Axon Full Service). Axon Full Service includes advance remote project planning and configuration support and up to four (4) consecutive days of on-site service and a professional services manager to work with Agency to assess Agency’s deployment and determine which on-site services are appropriate. If Agency requires more than four (4) consecutive on-site days, Agency must purchase additional days. Axon Full Service options include:
System set up and configuration
x Instructor-led setup of Axon View on smartphones (if applicable) x Configure categories and custom roles based on Agency need x Register cameras to Agency domain
x Troubleshoot IT issues with Axon Evidence and Axon Dock ("Dock") access x One on-site session included
Dock configuration
x Work with Agency to decide the ideal location of Docks and set configurations on Dock x Authenticate Dock with Axon Evidence using admin credentials from Agency x On-site assistance, not to include physical mounting of docks Best practice implementation planning session
x Provide considerations for the establishment of video policy and system operations best practices based on Axon’s observations with other agencies
x Discuss the importance of entering metadata in the field for organization purposes and other best practices for digital data management
x Provide referrals of other agencies using the Axon camera devices and Axon Evidence x Recommend rollout plan based on review of shift schedules System Admin and troubleshooting training sessions
Step-by-step explanation and assistance for Agency’s configuration of security, roles & permissions, categories & retention, and other specific settings for Axon Evidence Axon instructor training (Train the Trainer)
Training for Agency’s in-house instructors who can support Agency’s Axon camera and Axon Evidence training needs after Axon has fulfilled its contractual on-site obligations Evidence sharing training
Tailored workflow instruction for Investigative Units on sharing Cases and Evidence with local prosecuting agencies
End user go-live training and support sessions
x Assistance with device set up and configuration
x Training on device use, Axon Evidence, and Evidence Sync Implementation document packet
Axon Evidence administrator guides, camera implementation guides, network setup guide, sample policies, and categories & roles guide
Post go-live review
3. Body-Worn Camera Starter Service (Axon Starter). Axon Starter includes advance remote project planning and configuration support and one (1) day of on-site Services and a professional services manager to work closely with Agency to assess Agency’s deployment and determine which Services are appropriate. If Agency requires more than one (1) day of on-site Services, Agency must purchase additional on-site Services. The Axon Starter options include:
System set up and configuration (Remote Support)
x Instructor-led setup of Axon View on smartphones (if applicable) x Configure categories & custom roles based on Agency need x Troubleshoot IT issues with Axon Evidence and Dock access
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Dock configuration
x Work with Agency to decide the ideal location of Dock setup and set configurations on Dock x Authenticate Dock with Axon Evidence using "Administrator" credentials from Agency x Does not include physical mounting of docks
Axon instructor training (Train the Trainer)
Training for Agency’s in-house instructors who can support Agency’s Axon camera and Axon Evidence training needs after Axon’s has fulfilled its contracted on-site obligations End user go-live training and support sessions
x Assistance with device set up and configuration
x Training on device use, Axon Evidence, and Evidence Sync Implementation document packet
Axon Evidence administrator guides, camera implementation guides, network setup guide, sample policies, and categories & roles guide
4. Body-Worn Camera Virtual 1-Day Service (Axon Virtual). Axon Virtual includes all items in the BWC Starter Service Package, except one (1) day of on-site services.
5. CEW Services Packages. CEW Services Packages are detailed below:
System set up and configuration
x Configure Axon Evidence categories & custom roles based on Agency need. x Troubleshoot IT issues with Axon Evidence.
x Register users and assign roles in Axon Evidence.
x For the CEW Full Service Package: On-site assistance included x For the CEW Starter Package: Virtual assistance included Dedicated Project Manager
Assignment of specific Axon representative for all aspects of planning the rollout (Project Manager). Ideally, Project Manager will be assigned to Agency 4–6 weeks before rollout Best practice implementation planning session to include:
x Provide considerations for the establishment of CEW policy and system operations best practices based on Axon’s observations with other agencies
x Discuss the importance of entering metadata and best practices for digital data management x Provide referrals to other agencies using TASER CEWs and Axon Evidence x For the CEW Full Service Package: On-site assistance included x For the CEW Starter Package: Virtual assistance included System Admin and troubleshooting training sessions
On-site sessions providing a step-by-step explanation and assistance for Agency’s configuration of security, roles & permissions, categories & retention, and other specific settings for Axon Evidence Axon Evidence Instructor training
x Provide training on the Axon Evidence to educate instructors who can support Agency’s subsequent Axon Evidence training needs.
x For the CEW Full Service Package: Training for up to 3 individuals at Agency x For the CEW Starter Package: Training for up to 1 individual at Agency TASER CEW inspection and device assignment
Axon’s on-site professional services team will perform functions check on all new TASER CEW Smart weapons and assign them to a user on Axon Evidence.
Post go-live review
For the CEW Full Service Package: On-site assistance included.
For the CEW Starter Package: Virtual assistance included.
6. Smart Weapon Transition Service. The Smart Weapon Transition Service includes:
Archival of CEW Firing Logs
Axon’s on-site professional services team will upload CEW firing logs to Axon Evidence from all TASER CEW Smart Weapons that Agency is replacing with newer Smart Weapon models.
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Return of Old Weapons
Axon’s on-site professional service team will ship all old weapons back to Axon’s headquarters.
Axon will provide Agency with a Certificate of Destruction *Note: CEW Full Service packages for TASER 7 or TASER 10 include Smart Weapon Transition Service instead of 1-Day Device Specific Instructor Course.
7. VR Services Package. VR Service includes advance remote project planning and configuration support and one (1) day of on-site service and a professional services manager to work with Agency to assess Agency's deployment and determine which Services are appropriate. The VR Service training options include:
System set up and configuration (Remote Support)
• Instructor-led setup of Axon VR headset content
• Configure agency settings based on Agency need
• Troubleshoot IT issues with Axon VR headset
Axon instructor training (Train the Trainer)
Training for up to five (5) Agency's in-house instructors who can support Agency's Axon VR CET and SIM training needs after Axon’s has fulfilled its contracted on-site obligations Classroom and practical training sessions
Step-by-step explanation and assistance for Agency's configuration of Axon VR CET and SIM functionality, basic operation, and best practices
8. Axon Air, On-Site Training. Axon Air, On-Site training includes advance remote project planning and configuration support and one (1) day of on-site Services and a professional services manager to work closely with Agency to assess Agency's deployment and determine which Services are appropriate. If Agency's requires more than one (1) day of on-site Services, Agency must purchase additional on-site Services. The Axon Air, On-Site training options include:
System set up and configuration (Remote Support)
• Instructor-led setup of Axon Air App (ASDS)
• Configure agency settings based on Agency need
• Configure drone controller
• Troubleshoot IT issues with Axon Evidence
Axon instructor training (Train the Trainer)
Training for Agency's in-house instructors who can support Agency's Axon Air and Axon Evidence training needs after Axon’s has fulfilled its contracted on-site obligations Classroom and practical training sessions
Step-by-step explanation and assistance for Agency's configuration of Axon Respond+ livestreaming functionality, basic operation, and best practices
9. Axon Air, Virtual Training. Axon Air, Virtual training includes all items in the Axon Air, On-Site Training Package, except the practical training session, with the Axon Instructor training for up to four hours virtually.
10. Signal Sidearm Installation Service.
a. Purchases of 50 SSA units or more: Axon will provide one (1) day of on-site service and one professional services manager and will provide train the trainer instruction, with direct assistance on the first of each unique holster/mounting type. Agency is responsible for providing a suitable work/training area.
b. Purchases of less than 50 SSA units: Axon will provide a 1-hour virtual instruction session on the basics of installation and device calibration.
11. Out of Scope Services. Axon is only responsible to perform the professional services described in the Quote and this Appendix. Any additional professional services are out of scope. The Parties must document scope changes in a written and signed change order. Changes may require an equitable adjustment in the charges or schedule.
12. Delivery of Services. Axon personnel will work Monday through Friday, 8:30 a.m. to 5:30 p.m., except holidays.
Axon will perform all on-site tasks over a consecutive timeframe. Axon will not charge Agency travel time by Axon personnel to Agency premises as work hours.
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13. Access Computer Systems to Perform Services. Agency authorizes Axon to access relevant Agency computers and networks, solely for performing the Services. Axon will work to identify as soon as reasonably practicable resources and information Axon expects to use and will provide an initial itemized list to Agency. Agency is responsible for and assumes the risk of any problems, delays, losses, claims, or expenses resulting from the content, accuracy, completeness, and consistency of all data, materials, and information supplied by Agency.
14. Site Preparation. Axon will provide a hardcopy or digital copy of current user documentation for the Axon Devices ("User Documentation"). User Documentation will include all required environmental specifications for the professional services and Axon Devices to operate per the Axon Device User Documentation. Before installation of Axon Devices (whether performed by Agency or Axon), Agency must prepare the location(s) where Axon Devices are to be installed ("Installation Site") per the environmental specifications in the Axon Device User Documentation.
Following installation, Agency must maintain the Installation Site per the environmental specifications. If Axon modifies Axon Device User Documentation for any Axon Devices under this Agreement, Axon will provide the update to Agency when Axon generally releases it
15. Acceptance. When Axon completes professional services, Axon will present an acceptance form ("Acceptance Form") to Agency. Agency will sign the Acceptance Form acknowledging completion. If Agency reasonably believes Axon did not complete the professional services in substantial conformance with this Agreement, Agency must notify Axon in writing of the specific reasons for rejection within seven (7) calendar days from delivery of the Acceptance Form. Axon will address the issues and re-present the Acceptance Form for signature. If Axon does not receive the signed Acceptance Form or written notification of reasons for rejection within seven (7) calendar days of delivery of the Acceptance Form, Axon will deem Agency to have accepted the professional services.
16. Agency Network. For work performed by Axon transiting or making use of Agency’s network, Agency is solely responsible for maintenance and functionality of the network. In no event will Axon be liable for loss, damage, or corruption of Agency’s network from any cause.
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Technology Assurance Plan Appendix
If Technology Assurance Plan ("TAP") or a bundle including TAP is on the Quote, this appendix applies.
1. TAP Warranty. The TAP warranty is an extended warranty that starts at the end of the one- (1-) year hardware limited warranty.
2. Officer Safety Plan. If Agency purchases an Officer Safety Plan ("OSP"), Agency will receive the deliverables detailed in the Quote. Agency must accept delivery of the TASER CEW and accessories as soon as available from Axon.
3. OSP 7 or OSP 10 Term. OSP 7 or OSP 10 begins on the date specified in the Quote ("OSP Term").
4. TAP BWC Upgrade. If Agency has no outstanding payment obligations and purchased TAP, Axon will provide Agency a new Axon body-worn camera ("BWC Upgrade") as scheduled in the Quote. If Agency purchased TAP, Axon will provide a BWC Upgrade that is the same or like Axon Device, at Axon’s option. Axon makes no guarantee the BWC Upgrade will utilize the same accessories or Axon Dock.
5. TAP Dock Upgrade. If Agency has no outstanding payment obligations and purchased TAP, Axon will provide Agency a new Axon Dock as scheduled in the Quote ("Dock Upgrade"). Accessories associated with any Dock Upgrades are subject to change at Axon discretion. Dock Upgrades will only include a new Axon Dock bay configuration unless a new Axon Dock core is required for BWC compatibility. If Agency originally purchased a single-bay Axon Dock, the Dock Upgrade will be a single-bay Axon Dock model that is the same or like Axon Device, at Axon’s option. If Agency originally purchased a multi-bay Axon Dock, the Dock Upgrade will be a multi-bay Axon Dock that is the same or like Axon Device, at Axon’s option.
6. Upgrade Delay. Axon may ship the BWC and Dock Upgrades as scheduled in the Quote without prior confirmation from Agency unless the Parties agree in writing otherwise at least ninety (90) days in advance. Axon may ship the final BWC and Dock Upgrade as scheduled in the Quote sixty (60) days before the end of the Subscription Term without prior confirmation from Agency.
7. Upgrade Change. If Agency wants to upgrade Axon Device models from the current Axon Device to an upgraded Axon Device, Agency must pay the price difference between the MSRP for the current Axon Device and the MSRP for the upgraded Axon Device. If the model Agency desires has an MSRP less than the MSRP of the offered BWC Upgrade or Dock Upgrade, Axon will not provide a refund. The MSRP is the MSRP in effect at the time of the upgrade.
8. Return of Original Axon Device. Within thirty (30) days of receiving a BWC or Dock Upgrade, Agency must return the original Axon Devices to Axon or destroy the Axon Devices and provide a certificate of destruction to Axon including serial numbers for the destroyed Axon Devices. If Agency does not return or destroy the Axon Devices, Axon will deactivate the serial numbers for the Axon Devices received by Agency.
9. Termination. If Agency’s payment for TAP, OSP, or Axon Evidence is more than thirty (30) days past due, Axon may terminate TAP or OSP. Once TAP or OSP terminates for any reason:
9.1. TAP and OSP coverage terminate as of the date of termination and no refunds will be given.
9.2. Axon will not and has no obligation to provide the Upgrade Models.
9.3. Agency must make any missed payments due to the termination before Agency may purchase any future TAP or OSP.
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TASER 7 Appendix
This TASER 7 Appendix applies to Agency’s TASER 7, OSP 7, or OSP 7 Plus purchase from Axon, if applicable.
1. Duty Cartridge Replenishment Plan. If the Quote includes "Duty Cartridge Replenishment Plan", Agency must purchase the plan for each CEW user. A CEW user includes officers that use a CEW in the line of duty and those that only use a CEW for training. Agency may not resell cartridges received. Axon will only replace cartridges used in the line of duty.
2. Training. If the Quote includes a training voucher, Agency must use the voucher within one (1) year of issuance, or the voucher will be void. Axon will issue Agency a voucher annually beginning on the start of the TASER Subscription Term. The voucher has no cash value. Agency cannot exchange it for another device or service. Unless stated in the Quote, the voucher does not include travel expenses and will be Agency’s responsibility. If the Quote includes Axon Online Training or Virtual Reality Content Empathy Development for Autism/Schizophrenia (collectively, "Training Content"), Agency may access Training Content. Axon will deliver all Training Content electronically.
3. TASER Upgrade. If Agency purchases Axon’s 10-year certification program for Axon’s latest version of its TASER energy weapon ("Certification Program") and has no outstanding payment obligations as of the beginning of the sixth (6th) year of the Certification Program, Agency will qualify for an upgrade to any subsequent version of the Certification Program ("CEW Upgrade"). Agency will receive the CEW Upgrade at no additional cost, only to the extent such subsequent version of the Certification Program includes the same products or features as the Certification Program purchased by Agency. If Agency wants to upgrade to a Certification Program that includes additional products or features, Agency will pay the additional cost associated with such products and features. For the avoidance of doubt, Agency is not required to upgrade to any subsequent version of the Certification Program. Axon may ship the CEW Upgrade as scheduled in the Quote without prior confirmation from agency unless the Parties agree in writing otherwise at least ninety (90) days in advance. If necessary to maintain compatibility among Axon Devices, within thirty (30) days of receiving the CEW Upgrade, Agency must, if requested by Axon, return all hardware and related accessories received in connection with the Certification Program to Axon. In such event, Agency must ship batteries via ground shipping or in accordance with federal regulations in place at the time of the return. Axon will pay shipping costs for the return if Agency uses Axon’s RMA process.
4. Extended Warranty. If the Quote includes an extended warranty, the extended warranty coverage period warranty will be for a five- (5-) year term, which includes the hardware manufacturer’s warranty plus the four- (4-) year extended term.
5. Trade-in. If the Quote contains a discount on CEW-related line items, including items related to OSP, then that discount may only be applied as a trade-in credit, and Agency must return used hardware and accessories associated with the discount ("Trade-In Units") to Axon. Agency must ship batteries via ground shipping. Axon will pay shipping costs of the return. If Axon does not receive Trade-In Units within the timeframe below, Axon will invoice Agency the value of the trade-in credit. Agency may not destroy Trade-In Units and receive a trade-in credit.
Agency Size Days to Return from Start Date of TASER 7 Subscription Less than 100 officers 30 days
100 to 499 officers 90 days
500+ officers 180 days
6. TASER 7 Subscription Term. The TASER 7 Subscription Term for a standalone TASER 7 purchase begins on shipment of the TASER 7 hardware. The TASER 7 Subscription Term for OSP 7 begins on the OSP 7 start date.
7. Access Rights. Upon Axon granting Agency a TASER 7 Axon Evidence subscription, Agency may access and use Axon Evidence for the storage and management of data from TASER 7 CEW devices during the TASER 7 Subscription Term. Agency may not exceed the number of end users the Quote specifies.
8. Privacy. Axon will not disclose Agency Content or any information about Agency except as compelled by a court or administrative body or required by any law or regulation. Axon will give notice if any disclosure request is received for Agency Content, so Agency may file an objection with the court or administrative body.
9. Termination. If payment for TASER 7 is more than thirty (30) days past due, Axon may terminate Agency’s TASER 7 plan by notifying Agency. Upon termination for any reason, then as of the date of termination:
9.1. TASER 7 extended warranties and access to Training Content will terminate. No refunds will be given.
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9.2. Axon will invoice Agency the remaining MSRP for TASER 7 products received before termination. If terminating for non-appropriations, Axon will not invoice Agency if Agency returns the CEW, rechargeable battery, holster, dock, core, training suits, and unused cartridges to Axon within thirty (30) days of the date of termination.
9.3. Agency will be responsible for payment of any missed payments due to the termination before being allowed to purchase any future TASER 7 plan.
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TASER 10 Appendix
This TASER 10 Appendix applies to Agency’s TASER 10, OSP 10, OSP Plus, or OSP 10 Plus Premium purchase from Axon, if applicable.
1. Duty Cartridge Replenishment Plan. If the Quote includes "Duty Cartridge Replenishment Plan", Agency must purchase the plan for each CEW user. A CEW user includes officers that use a CEW in the line of duty and those that only use a CEW for training. Agency may not resell cartridges received. Axon will only replace cartridges used in the line of duty.
2. Training. If the Quote includes a training voucher, Agency must use the voucher within one (1) year of issuance, or the voucher will be void. Axon will issue Agency a voucher annually beginning on the start of the TASER Subscription Term. The voucher has no cash value. Agency cannot exchange it for another device or service. Unless stated in the Quote, the voucher does not include travel expenses and will be Agency’s responsibility. If the Quote includes Axon Online Training or Virtual Reality Content Empathy Development for Autism/Schizophrenia (collectively, "Training Content"), Agency may access Training Content. Axon will deliver all Training Content electronically.
3. Extended Warranty. If the Quote includes an extended warranty, the extended warranty coverage period warranty will be for a five- (5-) year term, which includes the hardware manufacturer’s warranty plus the four- (4-) year extended term.
4. Trade-in. If the Quote contains a discount on CEW-related line items, including items related to OSP, then that discount may only be applied as a trade-in credit, and Agency must return used hardware and accessories associated with the discount ("Trade-In Units") to Axon. Agency must ship batteries via ground shipping. Axon will pay shipping costs of the return. If Axon does not receive Trade-In Units within the timeframe below, Axon will invoice Agency the value of the trade-in credit. Agency may not destroy Trade-In Units and receive a trade-in credit.
Agency Size Days to Return from Start Date of TASER 10 Subscription Less than 100 officers 60 days
100 to 499 officers 90 days
500+ officers 180 days
5. TASER 10 Subscription Term. The TASER 10 Subscription Term for a standalone TASER 10 purchase begins on shipment of the TASER 10 hardware. The TASER 10 Subscription Term for OSP 10 begins on the OSP 10 start date.
6. Access Rights. Upon Axon granting Agency a TASER 10 Axon Evidence subscription, Agency may access and use Axon Evidence for the storage and management of data from TASER 10 CEW devices during the TASER 10 Subscription Term. Agency may not exceed the number of end users the Quote specifies.
7. Agency Warranty. If Agency is located in the US, Agency warrants and acknowledges that TASER 10 is classified as a firearm and is being acquired for official Agency use pursuant to a law enforcement agency transfer under the Gun Control Act of 1968.
8. Purchase Order. To comply with applicable laws and regulations, Agency must provide a purchase order to Axon prior to shipment of TASER 10.
9. Apollo Grant (US only). If Agency has received an Apollo Grant from Axon, Agency must pay all fees in the Quote prior to upgrading to any new TASER CEW offered by Axon.
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Axon Auto-Tagging Appendix
If Auto-Tagging is included on the Quote, this Appendix applies.
1. Scope. Axon Auto-Tagging consists of the development of a module to allow Axon Evidence to interact with Agency’s Computer-Aided Dispatch ("CAD") or Records Management Systems ("RMS"). This allows end users to autopopulate Axon video meta-data with a case ID, category, and location-based on data maintained in Agency’s CAD or RMS.
2. Support. For thirty (30) days after completing Auto-Tagging Services, Axon will provide up to five (5) hours of remote support at no additional charge. Axon will provide free support due to a change in Axon Evidence, if Agency maintains an Axon Evidence and Auto-Tagging subscription. Axon will not provide support if a change is required because Agency changes its CAD or RMS.
3. Changes. Axon is only responsible to perform the Services in this Appendix. Any additional Services are out of scope.
The Parties must document scope changes in a written and signed change order. Changes may require an equitable adjustment in fees or schedule.
4. Agency Responsibilities. Axon’s performance of Auto-Tagging Services requires Agency to:
4.1. Make available relevant systems, including Agency’s current CAD or RMS, for assessment by Axon (including remote access if possible);
4.2. Make required modifications, upgrades or alterations to Agency’s hardware, facilities, systems and networks related to Axon’s performance of Auto-Tagging Services;
4.3. Provide access to the premises where Axon is performing Auto-Tagging Services, subject to Agency safety and security restrictions, and allow Axon to enter and exit the premises with laptops and materials needed to perform Auto-Tagging Services;
4.4. Provide all infrastructure and software information (TCP/IP addresses, node names, network configuration) necessary for Axon to provide Auto-Tagging Services;
4.5. Promptly install and implement any software updates provided by Axon;
4.6. Ensure that all appropriate data backups are performed;
4.7. Provide assistance, participation, and approvals in testing Auto-Tagging Services;
4.8. Provide Axon with remote access to Agency’s Axon Evidence account when required;
4.9. Notify Axon of any network or machine maintenance that may impact the performance of the module at Agency; and
4.10. Ensure reasonable availability of knowledgeable staff and personnel to provide timely, accurate, complete, and up-to-date documentation and information to Axon.
5. Access to Systems. Agency authorizes Axon to access Agency’s relevant computers, network systems, and CAD or RMS solely for performing Auto-Tagging Services. Axon will work diligently to identify the resources and information Axon expects to use and will provide an initial list to Agency. Agency is responsible for and assumes the risk of any problems, delays, losses, claims, or expenses resulting from the content, accuracy, completeness, and consistency of all data, materials, and information supplied by Agency.
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Axon Fleet Appendix
If Axon Fleet is included on the Quote, this Appendix applies.
1. Agency Responsibilities.
19. Agency must ensure its infrastructure and vehicles adhere to the minimum requirements to operate Axon Fleet 2 or Axon Fleet 3 (collectively, "Axon Fleet") as established by Axon during the qualifier call and on-site assessment at Agency and in any technical qualifying questions. If Agency’s representations are inaccurate, the Quote is subject to change.
20. Agency is responsible for providing a suitable work area for Axon or Axon third-party providers to install Axon Fleet systems into Agency vehicles. Agency is responsible for making available all vehicles for which installation services were purchased, during the agreed upon onsite installation dates, Failure to make vehicles available may require an equitable adjustment in fees or schedule.
2. Cradlepoint. If Agency purchases Cradlepoint Enterprise Cloud Manager, Agency will comply with Cradlepoint’s end user license agreement. The term of the Cradlepoint license may differ from the Axon Evidence Subscription. If Agency requires Cradlepoint support, Agency will contact Cradlepoint directly.
3. Third-party Installer. Axon will not be liable for the failure of Axon Fleet hardware to operate per specifications if such failure results from installation not performed by, or as directed by Axon.
4. Wireless Offload Server.
4.1. License Grant. Axon grants Agency a non-exclusive, royalty-free, worldwide, perpetual license to use Wireless Offload Server ("WOS"). "Use" means storing, loading, installing, or executing WOS solely for data communication with Axon Devices for the number of licenses purchased. The WOS term begins upon the start of the Axon Evidence Subscription.
4.2. Restrictions. Agency may not: (a) modify, alter, tamper with, repair, or create derivative works of WOS; (b) reverse engineer, disassemble, or decompile WOS, apply any process to derive the source code of WOS, or allow others to do so; (c) access or use WOS to avoid incurring fees or exceeding usage limits; (d) copy WOS in whole or part; (e) use trade secret information contained in WOS; (f) resell, rent, loan or sublicense WOS; (g) access WOS to build a competitive device or service or copy any features, functions or graphics of WOS; or (h) remove, alter or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices) of Axon or Axon’s licensors on or within WOS.
4.3. Updates. If Agency purchases WOS maintenance, Axon will make updates and error corrections to WOS ("WOS Updates") available electronically via the Internet or media as determined by Axon. Agency is responsible for establishing and maintaining adequate Internet access to receive WOS Updates and maintaining computer equipment necessary for use of WOS. The Quote will detail the maintenance term.
4.4. WOS Support. Upon request by Axon, Agency will provide Axon with access to Agency’s store and forward servers solely for troubleshooting and maintenance.
5. Axon Vehicle Software.
5.1. License Grant. Axon grants Agency a non-exclusive, royalty-free, worldwide, perpetual license to use ViewXL or Dashboard (collectively, "Axon Vehicle Software".) "Use" means storing, loading, installing, or executing Axon Vehicle Software solely for data communication with Axon Devices. The Axon Vehicle Software term begins upon the start of the Axon Evidence Subscription.
5.2. Restrictions. Agency may not: (a) modify, alter, tamper with, repair, or create derivative works of Axon Vehicle Software; (b) reverse engineer, disassemble, or decompile Axon Vehicle Software, apply any process to derive the source code of Axon Vehicle Software, or allow others to do so; (c) access or use Axon Vehicle Software to avoid incurring fees or exceeding usage limits; (d) copy Axon Vehicle Software in whole or part; (e) use trade secret information contained in Axon Vehicle Software; (f) resell, rent, loan or sublicense Axon Vehicle Software; (g) access Axon Vehicle Software to build a competitive device or service or copy any features, functions or graphics of Axon Vehicle Software; or (h) remove, alter or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices) of Axon or Axon’s licensors on or within Axon Vehicle Software.
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6. Acceptance Checklist. If Axon provides services to Agency pursuant to any statement of work in connection with Axon Fleet, within seven (7) days of the date on which Agency retrieves Agency's vehicle(s) from the Axon installer, said vehicle having been installed and configured with tested and fully and properly operational in-car hardware and software identified above, Agency will receive a Professional Services Acceptance Checklist to submit to Axon indicating acceptance or denial of said deliverables.
7. Axon Fleet Upgrade. If Agency has no outstanding payment obligations and has purchased the "Fleet Technology Assurance Plan" (Fleet TAP), Axon will provide Agency with the same or like model of Fleet hardware ("Axon Fleet Upgrade") as scheduled on the Quote.
7.1. If Agency would like to change models for the Axon Fleet Upgrade, Agency must pay the difference between the MSRP for the offered Axon Fleet Upgrade and the MSRP for the model desired. The MSRP is the MSRP in effect at the time of the upgrade. Agency is responsible for the removal of previously installed hardware and installation of the Axon Fleet Upgrade.
7.2. Within thirty (30) days of receiving the Axon Fleet Upgrade, Agency must return the original Axon Devices to Axon or destroy the Axon Devices and provide a certificate of destruction to Axon, including serial numbers of the destroyed Axon Devices. If Agency does not destroy or return the Axon Devices to Axon, Axon will deactivate the serial numbers for the Axon Devices received by Agency.
8. Axon Fleet Termination. Axon may terminate Agency’s Fleet subscription for non-payment. Upon any termination:
8.1. Axon Fleet subscription coverage terminates, and no refunds will be given.
8.2. Axon will not and has no obligation to provide the Axon Fleet Upgrade.
8.3. Agency will be responsible for payment of any missed payments due to the termination before being allowed to purchase any future Fleet TAP.
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Axon Respond Appendix
This Axon Respond Appendix applies to both Axon Respond and Axon Respond Plus, if either is included on the Quote.
1. Axon Respond Subscription Term. If Agency purchases Axon Respond as part of a bundled offering, the Axon Respond subscription begins on the later of the (1) start date of that bundled offering, or (2) date Axon provisions Axon Respond to Agency. If Agency purchases Axon Respond as a standalone, the Axon Respond subscription begins the later of the (1) date Axon provisions Axon Respond to Agency, or (2) first day of the month following the Effective Date. The Axon Respond subscription term will end upon the completion of the Axon Evidence Subscription associated with Axon Respond.
2. Scope of Axon Respond. The scope of Axon Respond is to assist Agency with real-time situational awareness during critical incidents to improve officer safety, effectiveness, and awareness. In the event Agency uses Axon Respond outside this scope, Axon may initiate good-faith discussions with Agency on upgrading Agency’s Axon Respond to better meet Agency’s needs.
3. Axon Body 3 LTE Requirements. Axon Respond is only available and usable with an LTE enabled body-worn camera. Axon is not liable if Agency utilizes the LTE device outside of the coverage area or if the LTE carrier is unavailable. LTE coverage is only available in the United States, including any U.S. territories. Axon may utilize a carrier of Axon’s choice to provide LTE service. Axon may change LTE carriers during the Term without Agency’s consent.
4. Axon Fleet 3 LTE Requirements. Axon Respond is only available and usable with a Fleet 3 system configured with LTE modem and service. Agency is responsible for providing LTE service for the modem. Coverage and availability of LTE service is subject to Agency’s LTE carrier.
5. Axon Respond Service Limitations. Agency acknowledges that LTE service is made available only within the operating range of the networks. Service may be temporarily refused, interrupted, or limited because of: (a) facilities limitations; (b) transmission limitations caused by atmospheric, terrain, other natural or artificial conditions adversely affecting transmission, weak batteries, system overcapacity, movement outside a service area or gaps in coverage in a service area, and other causes reasonably outside of the carrier’s control such as intentional or negligent acts of third parties that damage or impair the network or disrupt service; or (c) equipment modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operation of service.
5.1. With regard to Axon Body 3, Partner networks are made available as-is and the carrier makes no warranties or representations as to the availability or quality of roaming service provided by carrier partners, and the carrier will not be liable in any capacity for any errors, outages, or failures of carrier partner networks. Agency expressly understands and agrees that it has no contractual relationship whatsoever with the underlying wireless service provider or its affiliates or contractors and Agency is not a third-party beneficiary of any agreement between Axon and the underlying carrier.
6. Termination. Upon termination of this Agreement, or if Agency stops paying for Axon Respond or bundles that include Axon Respond, Axon will end Axon Respond services, including any Axon-provided LTE service.
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Add-on Services Appendix
This Appendix applies if Axon Community Request, Axon Redaction Assistant, and/or Axon Performance are included on the Quote.
1. Subscription Term. If Agency purchases Axon Community Request, Axon Redaction Assistant, or Axon Performance as part of OSP 7 or OSP 10, the subscription begins on the later of the (1) start date of the OSP 7 or OSP 10 Term, or (2) date Axon provisions Axon Community Request Axon Redaction Assistant, or Axon Performance to Agency.
1.1. If Agency purchases Axon Community Request, Axon Redaction Assistant, or Axon Performance as a standalone, the subscription begins the later of the (1) date Axon provisions Axon Community Request, Axon Redaction Assistant, or Axon Performance to Agency, or (2) first day of the month following the Effective Date.
1.2. The subscription term will end upon the completion of the Axon Evidence Subscription associated with the addon.
2. Axon Community Request Storage. For Axon Community Request, Agency may store an unlimited amount of data submitted through the public portal ("Portal Content"), within Agency’s Axon Evidence instance. The post-termination provisions outlined in the Axon Cloud Services Terms of Use Appendix also apply to Portal Content.
3. Performance Auto-Tagging Data. In order to provide some features of Axon Performance to Agency, Axon will need to store call for service data from Agency’s CAD or RMS.
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Axon Auto-Transcribe Appendix
This Appendix applies if Axon Auto-Transcribe is included on the Quote.
1. Subscription Term. If Agency purchases Axon Auto-Transcribe as part of a bundle or Axon Cloud Services subscription, the subscription begins on the later of the (1) start date of the bundle or Axon Cloud Services license term, or (2) date Axon provisions Axon Auto-Transcribe to Agency. If Agency purchases Axon Auto-Transcribe minutes as a standalone, the subscription begins on the date Axon provisions Axon Auto-Transcribe to Agency.
1.1. If Agency cancels Auto-Transcribe services, any amounts owed by the Parties will be based on the amount of time passed under the annual subscription, rather than on the number of minutes used, regardless of usage.
2. Auto-Transcribe A-La-Carte Minutes. Upon Axon granting Agency a set number of minutes, Agency may utilize Axon Auto-Transcribe, subject to the number of minutes allowed on the Quote. Agency will not have the ability to roll over unused minutes to future Auto-Transcribe terms. Axon may charge Agency additional fees for exceeding the number of purchased minutes. Axon Auto-Transcribe minutes expire one year after being provisioned to Agency by Axon.
3. Axon Unlimited Transcribe. Upon Axon granting Agency an Unlimited Transcribe subscription to Axon AutoTranscribe, Agency may utilize Axon Auto-Transcribe with no limit on the number of minutes. Unlimited Transcribe includes automatic transcription of all Axon BWC and Axon Capture footage. With regard to Axon Interview Room, Axon Fleet, Axon Citizen, or third-party transcription, transcription must be requested on demand. Notwithstanding the foregoing, Axon may limit usage after 5,000 minutes per user per month for multiple months in a row. Axon will not bill for overages.
4. Warranty. Axon disclaims all warranties, express or implied, for Axon Auto-Transcribe.
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Axon Virtual Reality Content Terms of Use Appendix
If Virtual Reality is included on the Quote, this Appendix applies.
1. Term. The Quote will detail the products and license duration, as applicable, of the goods, services, and software, and contents thereof, provided by Axon to Agency related to virtual reality (collectively, "Virtual Reality Media").
2. Headsets. Agency may purchase additional virtual reality headsets from Axon. In the event Agency decides to purchase additional virtual reality headsets for use with Virtual Reality Media, Agency must purchase those headsets from Axon.
3. License Restrictions. All licenses will immediately terminate if Agency does not comply with any term of this Agreement. If Agency utilizes more users than stated in this Agreement, Agency must purchase additional Virtual Reality Media licenses from Axon. Agency may not use Virtual Reality Media for any purpose other than as expressly permitted by this Agreement. Agency may not:
3.1. modify, tamper with, repair, or otherwise create derivative works of Virtual Reality Media;
3.2. reverse engineer, disassemble, or decompile Virtual Reality Media or apply any process to derive the source code of Virtual Reality Media, or allow others to do the same;
3.3. copy Virtual Reality Media in whole or part, except as expressly permitted in this Agreement;
3.4. use trade secret information contained in Virtual Reality Media;
3.5. resell, rent, loan or sublicense Virtual Reality Media;
3.6. access Virtual Reality Media to build a competitive device or service or copy any features, functions, or graphics of Virtual Reality Media; or
3.7. remove, alter, or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices) of Axon or Axon’s licensors on or within Virtual Reality Media or any copies of Virtual Reality Media.
4. Privacy. Agency’s use of the Virtual Reality Media is subject to the Axon Virtual Reality Privacy Policy, a current version of which is available at https://www.axon.com/axonvrprivacypolicy.
5. Termination. Axon may terminate Agency’s license immediately for Agency’s failure to comply with any of the terms in this Agreement.
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Axon Evidence Local Software Appendix
This Appendix applies if Axon Evidence Local is included on the Quote.
1. License. Axon owns all executable instructions, images, icons, sound, and text in Axon Evidence Local. All rights are reserved to Axon. Axon grants a non-exclusive, royalty-free, worldwide right and license to use Axon Evidence Local. "Use" means storing, loading, installing, or executing Axon Evidence Local exclusively for data communication with an Axon Device. Agency may use Axon Evidence Local in a networked environment on computers other than the computer it installs Axon Evidence Local on, so long as each execution of Axon Evidence Local is for data communication with an Axon Device. Agency may make copies of Axon Evidence Local for archival purposes only.
Axon shall retain all copyright, trademark, and proprietary notices in Axon Evidence Local on all copies or adaptations.
2. Term. The Quote will detail the duration of the Axon Evidence Local license, as well as any maintenance. The term will begin upon installation of Axon Evidence Local.
3. License Restrictions. All licenses will immediately terminate if Agency does not comply with any term of this Agreement. Agency may not use Axon Evidence Local for any purpose other than as expressly permitted by this Agreement. Agency may not:
3.1. modify, tamper with, repair, or otherwise create derivative works of Axon Evidence Local;
3.2. reverse engineer, disassemble, or decompile Axon Evidence Local or apply any process to derive the source code of Axon Evidence Local, or allow others to do the same;
3.3. access or use Axon Evidence Local to avoid incurring fees or exceeding usage limits or quotas;
3.4. copy Axon Evidence Local in whole or part, except as expressly permitted in this Agreement;
3.5. use trade secret information contained in Axon Evidence Local;
3.6. resell, rent, loan or sublicense Axon Evidence Local;
3.7. access Axon Evidence Local to build a competitive device or service or copy any features, functions, or graphics of Axon Evidence Local; or
3.8. remove, alter, or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices) of Axon or Axon’s licensors on or within Axon Evidence Local or any copies of Axon Evidence Local.
4. Support. Axon may make available updates and error corrections ("Updates") to Axon Evidence Local. Axon will provide Updates electronically via the Internet or media as determined by Axon. Agency is responsible for establishing and maintaining adequate access to the Internet to receive Updates. Agency is responsible for maintaining the computer equipment necessary to use Axon Evidence Local. Axon may provide technical support of a prior release/version of Axon Evidence Local for six (6) months from when Axon made the subsequent release/version available.
5. Termination. Axon may terminate Agency’s license immediately for Agency’s failure to comply with any of the terms in this Agreement. Upon termination, Axon may disable Agency’s right to login to Axon Evidence Local.
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Axon Application Programming Interface Appendix
This Appendix applies if Axon’s API Services are included on the Quote.
1. Definitions.
1.1. "API Client" means the software that acts as the interface between Agency’s computer and the server, which is already developed or to be developed by Agency.
1.2. "API Interface" means software implemented by Agency to configure Agency’s independent API Client Software to operate in conjunction with the API Service for Agency’s authorized Use.
1.3. "Axon Evidence Partner API, API or Axon API" (collectively "API Service") means Axon’s API which provides a programmatic means to access data in Agency’s Axon Evidence account or integrate Agency’s Axon Evidence account with other systems.
1.4. "Use" means any operation on Agency’s data enabled by the supported API functionality.
2. Purpose and License.
2.1. Agency may use API Service and data made available through API Service, in connection with an API Client developed by Agency. Axon may monitor Agency’s use of API Service to ensure quality, improve Axon devices and services, and verify compliance with this Agreement. Agency agrees to not interfere with such monitoring or obscure from Axon Agency’s use of API Service. Agency will not use API Service for commercial use.
2.2. Axon grants Agency a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the Term to use API Service, solely for Agency’s Use in connection with Agency’s API Client.
2.3. Axon reserves the right to set limitations on Agency’s use of the API Service, such as a quota on operations, to ensure stability and availability of Axon’s API. Axon will use reasonable efforts to accommodate use beyond the designated limits.
3. Configuration. Agency will work independently to configure Agency’s API Client with API Service for Agency’s applicable Use. Agency will be required to provide certain information (such as identification or contact details) as part of the registration. Registration information provided to Axon must be accurate. Agency will inform Axon promptly of any updates. Upon Agency’s registration, Axon will provide documentation outlining API Service information.
4. Agency Responsibilities. When using API Service, Agency and its end users may not:
4.1. use API Service in any way other than as expressly permitted under this Agreement;
4.2. use in any way that results in, or could result in, any security breach to Axon;
4.3. perform an action with the intent of introducing any viruses, worms, defect, Trojan horses, malware, or any items of a destructive nature to Axon Devices and Services;
4.4. interfere with, modify, disrupt or disable features or functionality of API Service or the servers or networks providing API Service;
4.5. reverse engineer, decompile, disassemble, or translate or attempt to extract the source code from API Service or any related software;
4.6. create an API Interface that functions substantially the same as API Service and offer it for use by third parties;
4.7. provide use of API Service on a service bureau, rental or managed services basis or permit other individuals or entities to create links to API Service;
4.8. frame or mirror API Service on any other server, or wireless or Internet-based device;
4.9. make available to a third-party, any token, key, password or other login credentials to API Service;
4.10. take any action or inaction resulting in illegal, unauthorized or improper purposes; or
4.11. disclose Axon’s API manual.
5. API Content. All content related to API Service, other than Agency Content or Agency’s API Client content, is considered Axon’s API Content, including:
5.1. the design, structure and naming of API Service fields in all responses and requests;
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5.2. the resources available within API Service for which Agency takes actions on, such as evidence, cases, users, or reports;
5.3. the structure of and relationship of API Service resources; and
5.4. the design of API Service, in any part or as a whole.
6. Prohibitions on API Content. Neither Agency nor its end users will use API content returned from the API Interface to:
6.1. scrape, build databases, or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header;
6.2. copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense to any third-party;
6.3. misrepresent the source or ownership; or
6.4. remove, alter, or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices).
7. API Updates. Axon may update or modify the API Service from time to time ("API Update"). Agency is required to implement and use the most current version of API Service and to make any applicable changes to Agency’s API Client required as a result of such API Update. API Updates may adversely affect how Agency’s API Client access or communicate with API Service or the API Interface. Each API Client must contain means for Agency to update API Client to the most current version of API Service. Axon will provide support for one (1) year following the release of an API Update for all depreciated API Service versions.
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Advanced User Management Appendix
This Appendix applies if Axon Advanced User Management is included on the Quote.
1. Scope. Advanced User Management allows Agency to (a) utilize bulk user creation and management, (b) automate user creation and management through System for Cross-domain Identity Management ("SCIM"), and (c) automate group creation and management through SCIM.
2. Advanced User Management Configuration. Agency will work independently to configure Agency’s Advanced User Management for Agency’s applicable Use. Upon request, Axon will provide general guidance to Agency, including documentation that details the setup and configuration process.
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Axon Channel Services Appendix
This Appendix applies if Agency purchases Axon Channel Service, as set forth on the Quote.
1. Definitions.
1.1. "Axon Digital Evidence Management System" means Axon Evidence or Axon Evidence Local, as specified in the attached Channel Services Statement of Work.
1.2. "Active Channel" means a third-party system that is continuously communicating with an Axon Digital Evidence Management System.
1.3. "Inactive Channel" means a third-party system that will have a one-time communication to an Axon Digital Evidence Management System.
2. Scope. Agency currently has a third-party system or data repository from which Agency desires to share data with Axon Digital Evidence Management. Axon will facilitate the transfer of Agency’s third-party data into an Axon Digital Evidence Management System or the transfer of Agency data out of an Axon Digital Evidence Management System as defined in the Channel Services Statement of Work ("Channel Services SOW"). Channel Services will not delete any Agency Content. Agency is responsible for verifying all necessary data is migrated correctly and retained per Agency policy.
3. Changes. Axon is only responsible to perform the Services described in this Appendix and Channel Services SOW.
Any additional services are out of scope. The Parties must document scope changes in a written and signed change order. Changes may require an equitable adjustment in the charges or schedule.
4. Purpose and Use. Agency is responsible for verifying Agency has the right to share data from and provide access to third-party system as it relates to the Services described in this Appendix and the Channel Services SOW. For Active Channels, Agency is responsible for any changes to a third-party system that may affect the functionality of the channel service. Any additional work required for the continuation of the Service may require additional fees. An Axon Field Engineer may require access to Agency’s network and systems to perform the Services described in the Channel Services SOW. Agency is responsible for facilitating this access per all laws and policies applicable to Agency.
5. Project Management. Axon will assign a Project Manager to work closely with Agency’s project manager and project team members and will be responsible for completing the tasks required to meet all contract deliverables on time and budget.
6. Warranty. Axon warrants that it will perform the Channel Services in a good and workmanlike manner.
7. Monitoring. Axon may monitor Agency’s use of Channel Services to ensure quality, improve Axon devices and services, prepare invoices based on the total amount of data migrated, and verify compliance with this Agreement.
Agency agrees not to interfere with such monitoring or obscure from Axon Agency’s use of channel services.
8. Agency’s Responsibilities. Axon’s successful performance of the Channel Services requires Agency:
8.1. Make available its relevant systems for assessment by Axon (including making these systems available to Axon via remote access);
8.2. Provide access to the building facilities and where Axon is to perform the Channel Services, subject to safety and security restrictions imposed by the Agency (including providing security passes or other necessary documentation to Axon representatives performing the Channel Services permitting them to enter and exit Agency premises with laptop personal computers and any other materials needed to perform the Channel Services);
8.3. Provide all necessary infrastructure and software information (TCP/IP addresses, node names, and network configuration) for Axon to provide the Channel Services;
8.4. Ensure all appropriate data backups are performed;
8.5. Provide Axon with remote access to the Agency’s network and third-party systems when required for Axon to perform the Channel Services;
8.6. Notify Axon of any network or machine maintenance that may impact the performance of the Channel Services; and
8.7. Ensure the reasonable availability by phone or email of knowledgeable staff, personnel, system administrators,
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and operators to provide timely, accurate, complete, and up-to-date documentation and information to Axon (these contacts are to provide background information and clarification of information required to perform the Channel Services).
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VIEVU Data Migration Appendix
This Appendix applies if Agency purchases Migration services, as set forth on the Quote.
1. Scope. Agency currently has legacy data in the VIEVU solution from which Agency desires to move to Axon Evidence.
Axon will work with Agency to copy legacy data from the VIEVU solution into Axon Evidence ("Migration"). Before Migration, Agency and Axon will work together to develop a Statement of Work ("Migration SOW") to detail all deliverables and responsibilities. The Migration will require the availability of Agency resources. Such resources will be identified in the SOW. On-site support during Migration is not required. Upon Agency’s request, Axon will provide on-site support for an additional fee. Any request for on-site support will need to be pre-scheduled and is subject to Axon’s resource availability.
1.1. A small amount of unexposed data related to system information will not be migrated from the VIEVU solution to Axon Evidence. Upon request, some of this data can be manually exported before Migration and provided to Agency. The Migration SOW will provide further detail.
2. Changes. Axon is only responsible to perform the Services described in this Appendix and Migration SOW. Any additional services are out of scope. The Parties must document scope changes in a written and signed change order.
Changes may require an equitable adjustment in the charges or schedule.
3. Project Management. Axon will assign a Project Manager to work closely with Agency’s project manager and project team members and will be responsible for completing the tasks required to meet all contract deliverables on time and budget.
4. Downtime. There may be downtime during the Migration. The duration of the downtime will depend on the amount of data that Agency is migrating. Axon will work with Agency to minimize any downtime. Any VIEVU mobile application will need to be disabled upon Migration.
5. Functionality Changes. Due to device differences between the VIEVU solution and the Axon’s Axon Evidence solution, there may be functionality gaps that will not allow for all migrated data to be displayed the same way in the user interface after Migration.
6. Acceptance. Once the Migration is complete, Axon will notify Agency and provide an acceptance form. Agency is responsible for verifying that the scope of the project has been completed and all necessary data is migrated correctly and retained per Agency policy. Agency will have ninety (90) days to provide Axon acceptance that the Migration was successful, or Axon will deem the Migration accepted.
6.1. In the event Agency does not accept the Migration, Agency agrees to notify Axon within a reasonable time.
Agency also agrees to allow Axon a reasonable time to resolve any issue. In the event Agency does not provide Axon with a written rejection of the Migration during these ninety (90) days, Agency may be charged for additional monthly storage costs. After Agency provides acceptance of the Migration, Axon will delete all data from the VIEVU solution ninety (90) days after the Migration.
7. Post-Migration. After Migration, the VIEVU solution may not be supported and updates may not be provided. Axon may end of life the VIEVU solution in the future. If Agency elects to maintain data within the VIEVU solution, Axon will provide Agency ninety (90) days’ notice before ending support for the VIEVU solution.
8. Warranty. Axon warrants that it will perform the Migration in a good and workmanlike manner.
9. Monitoring. Axon may monitor Agency’s use of Migration to ensure quality, improve Axon Devices and Services, prepare invoices based on the total amount of data migrated, and verify compliance with this Agreement. Agency agrees not to interfere with such monitoring or obscure Agency’s use of Migration from Axon.
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Axon Technical Account Manager Appendix
This Appendix applies if Axon Support Engineer services are included on the Quote.
1. Axon Technical Account Manager Payment. Axon will invoice for Axon Technical Account Manager ("TAM") services, as outlined in the Quote, when the TAM commences work on-site at Agency.
2. Full-Time TAM Scope of Services.
2.1. A Full-Time TAM will work on-site four (4) days per week, unless an alternate schedule or reporting location is mutually agreed upon by Axon and Customer.
2.2. Agency’s Axon sales representative and Axon’s Agency Success team will work with Agency to define its support needs and ensure the Full-Time TAM has skills to align with those needs. There may be up to a six- (6-) month waiting period before the Full-Time TAM can work on-site, depending upon Agency’s needs and availability of a Full-Time TAM.
2.3. The purchase of Full-Time TAM Services includes two (2) complimentary Axon Accelerate tickets per year of the Agreement, so long as the TAM has started work at Agency, and Agency is current on all payments for the Full-Time TAM Service.
2.4. The Full-Time TAM Service options are listed below:
Ongoing System Set-up and Configuration
Assisting with assigning cameras and registering docks
Maintaining Agency’s Axon Evidence account
Connecting Agency to "Early Access" programs for new devices Account Maintenance
Conducting on-site training on new features and devices for Agency leadership team(s) Thoroughly documenting issues and workflows and suggesting new workflows to improve the effectiveness of the Axon program
Conducting weekly meetings to cover current issues and program status Data Analysis
Providing on-demand Axon usage data to identify trends and insights for improving daily workflows Comparing Agency's Axon usage and trends to peers to establish best practices Proactively monitoring the health of Axon equipment and coordinating returns when needed Direct Support
Providing on-site, Tier 1 and Tier 2 (as defined in Axon's Service Level Agreement) technical support for Axon Devices
Proactively monitoring the health of Axon equipment
Creating and monitoring RMAs on-site
Providing Axon app support
Monitoring and testing new firmware and workflows before they are released to Agency’s production environment Agency Advocacy
Coordinating bi-annual voice of customer meetings with Axon’s Device Management team Recording and tracking Agency feature requests and major bugs
3. Regional TAM Scope of Services
3.1. A Regional TAM will work on-site for three (3) consecutive days per quarter. Agency must schedule the onsite days at least two (2) weeks in advance. The Regional TAM will also be available by phone and email during regular business hours up to eight (8) hours per week.
3.2. There may be up to a six- (6-) month waiting period before Axon assigns a Regional TAM to Agency, depending upon the availability of a Regional TAM.
3.3. The purchase of Regional TAM Services includes two (2) complimentary Axon Accelerate tickets per year of the Agreement, so long as the TAM has started work at Agency and Agency is current on all payments for the Regional TAM Service.
3.4. The Regional TAM service options are listed below:
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Account Maintenance
Conducting remote training on new features and devices for Agency’s leadership Thoroughly documenting issues and workflows and suggesting new workflows to improve the effectiveness of the Axon program
Conducting weekly conference calls to cover current issues and program status Visiting Agency quarterly (up to 3 consecutive days) to perform a quarterly business review, discuss Agency's goals for your Axon program, and continue to ensure a successful deployment of Axon Devices Direct Support
Providing remote, Tier 1 and Tier 2 (As defined Axon's Service Level Agreement) technical support for Axon Devices
Creating and monitoring RMAs remotely
Data Analysis
Providing quarterly Axon usage data to identify trends and program efficiency opportunities Comparing an Agency's Axon usage and trends to peers to establish best practices Proactively monitoring the health of Axon equipment and coordinating returns when needed Agency Advocacy
Coordinating bi-yearly Voice of Agency meetings with Device Management team Recording and tracking Agency feature requests and major bugs
4. Out of Scope Services. The TAM is responsible to perform only the Services described in this Appendix. Any additional Services discussed or implied that are not defined explicitly in this Appendix will be considered out of the scope.
5. TAM Leave Time. The TAM will be allowed up seven (7) days of sick leave and up to fifteen (15) days of vacation time per each calendar year. The TAM will work with Agency to coordinate any time off and will provide Agency with at least two (2) weeks’ notice before utilizing any vacation days.
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Axon Investigate Appendix
If the Quote includes Axon's On Prem Video Suite known as Axon Investigate or Third Party Video Support License, the following appendix shall apply.
1. License Grant. Subject to the terms and conditions specified below and upon payment of the applicable fees set forth in the Quote, Axon grants to Agency a nonexclusive, nontransferable license to install, use, and display the Axon Investigate software ("Software") solely for its own internal use only and for no other purpose, for the duration of subscription term set forth in the Quote. This Agreement does not grant Agency any right to enhancements or updates, but if such are made available to Agency and obtained by Agency they shall become part of the Software and governed by the terms of this Agreement.
2. Third-Party Licenses. Axon licenses several third-party codecs and applications that are integrated into the Software. Users with an active support contract with Axon are granted access to these additional features. By accepting this agreement, Agency agrees to and understands that an active support contract is required for all of the following features: DNxHD output formats, decoding files via the "fast indexing" method, proprietary file metadata, telephone and email support, and all future updates to the software. If Agency terminates the annual support contract with Axon, the features listed above will be disabled within the Software. It is recommended that users remain on an active support contract to maintain the full functionality of the Software.
3. Restrictions on Use. Agency may not permit any other person to use the Software unless such use is in accordance with the terms of this Agreement. Agency may not modify, translate, reverse engineer, reverse compile, decompile, disassemble or create derivative works with respect to the Software, except to the extent applicable laws specifically prohibit such restrictions. Agency may not rent, lease, sublicense, grant a security interest in or otherwise transfer Agency’s rights to or to use the Software. Any rights not granted are reserved to Axon.
4. Term. For purchased perpetual Licenses only—excluding Licenses leased for a pre-determined period, evaluation licenses, companion licenses, as well as temporary licenses--the license shall be perpetual unless Agency fails to observe any of its terms, in which case it shall terminate immediately, and without additional prior notice. The terms of Paragraphs 1, 2, 3, 5, 6, 8 and 9 shall survive termination of this Agreement. For licenses leased for a predetermined period, for evaluation licenses, companion licenses, as well as temporary licenses, the license is granted for a period beginning at the installation date and for the duration of the evaluation period or temporary period as agreed between Axon and Agency.
5. Title. Axon and its licensors shall have sole and exclusive ownership of all right, title, and interest in and to the Software and all changes, modifications, and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), regardless of the form or media in which the original or copies may exist, subject only to the rights and privileges expressly granted by Axon. This Agreement does not provide Agency with title or ownership of the Software, but only a right of limited use.
6. Copies. The Software is copyrighted under the laws of the United States and international treaty provisions. Agency may not copy the Software except for backup or archival purposes, and all such copies shall contain all Axon’s notices regarding proprietary rights as contained in the Software as originally provided to Agency. If Agency receives one copy electronically and another copy on media, the copy on media may be used only for archival purposes and this license does not authorize Agency to use the copy of media on an additional server.
7. Actions Required Upon Termination. Upon termination of the license associated with this Agreement, Agency agrees to destroy all copies of the Software and other text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions and operation of the Software that are provided by Axon to Agency ("Software Documentation") or return such copies to Axon. Regarding any copies of media containing regular backups of Agency's computer or computer system, Agency agrees not to access such media for the purpose of recovering the Software or online Software Documentation.
8. Export Controls. None of the Software, Software Documentation or underlying information may be downloaded or otherwise exported, directly or indirectly, without the prior written consent, if required, of the office of Export Administration of the United States, Department of Commerce, nor to any country to which the U.S. has embargoed goods, to any person on the U.S. Treasury Department’s list of Specially Designated Nations, or the U.S. Department of Commerce’s Table of Denials.
9. U.S. Government Restricted Rights. The Software and Software Documentation are Commercial Computer Software provided with Restricted Rights under Federal Acquisition Regulations and agency supplements to them.
Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFAR 255.227-7013 et. Seq. or 252.211-7015, or
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subparagraphs (a) through (d) of the Commercial Computer Software Restricted Rights at FAR 52.227-19, as applicable, or similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Axon Enterprise, Inc., 17800 North 85th Street, Scottsdale, Arizona 85255.
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My90 Terms of Use Appendix
Definitions.
1.1. "My90" means Axon’s proprietary platform and methodology to obtain and analyze feedback, and other related offerings, including, without limitation, interactions between My90 and Axon products.
1.2. "Recipient Contact Information" means contact information, as applicable, including phone number or email address (if available) of the individual whom Agency would like to obtain feedback.
1.3. "Agency Data" means
1.3.1. "My90 Agency Content" which means data, including Recipient Contact Information, provided to My90 directly by Agency or at their direction, or by permitting My90 to access or connect to an information system or similar technology. My90 Agency Content does not include My90 NonContent Data.
1.3.2. "My90 Non-Content Data" which means data, configuration, and usage information about Agency's My90 tenant, and client software, users, and survey recipients that is Processed (as defined in Section 1.6 of this Appendix) when using My90 or responding to a My90 Survey. My90 NonContent Data includes data about users and survey recipients captured during account management and customer support activities. My90 Non-Content Data does not include My90 Agency Content.
1.3.3. "Survey Response" which means survey recipients' response to My90 Survey.
1.4. "My90 Data" means
1.4.1. "My90 Survey" which means surveys, material(s) or content(s) made available by Axon to Agency and survey recipients within My90.
1.4.2. "Aggregated Survey Response" which means Survey Response that has been de-identified and aggregated or transformed so that it is no longer reasonably capable of being associated with, or could reasonably be linked directly or indirectly to, a particular individual.
1.5. "Personal Data" means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
1.6. "Processing" means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
1.7. "Sensitive Personal Data" means Personal Data that reveals an individual’s health, racial or ethnic origin, sexual orientation, disability, religious or philosophical beliefs, or trade union membership.
2. Access. Upon Axon granting Agency a subscription to My90, Agency may access and use My90 to store and manage My90 Agency Content, and applicable My90 Surveys and Aggregated Survey Responses. This Appendix is subject to the Terms and Conditions of Axon’s Master Service and Purchasing Agreement or in the event you and Axon have entered into a prior agreement to govern all future purchases, that agreement shall govern.
3. IP address. Axon will not store survey respondents’ IP address.
4. Agency Owns My90 Agency Content. Agency controls or owns all right, title, and interest in My90 Agency Content. Except as outlined herein, Axon obtains no interest in My90 Agency Content, and My90 Agency Content is not Axon’s business records. Except as set forth in this Agreement, Agency is responsible for uploading, sharing, managing, and deleting My90 Agency Content. Axon will only have access to My90 Agency Content for the limited purposes set forth herein. Agency agrees to allow Axon access to My90 Agency Content to (a) perform troubleshooting, maintenance, or diagnostic screenings; and (b) enforce this Agreement or policies governing use of My90 and other Axon products.
5. Details of the Processing. The nature and purpose of the Processing under this Appendix are further specified
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in Schedule 1 Details of the Processing, to this Appendix.
6. Security. Axon will implement commercially reasonable and appropriate measures to secure Agency Data against accidental or unlawful loss, access, or disclosure. Axon will maintain a comprehensive information security program to protect Agency Data including logical, physical access, vulnerability, risk, and configuration management; incident monitoring and response; security education; and data protection. Axon will not treat Agency Data in accordance with FBI CJIS Security Policy requirements and does not agree to the CJIS Security Addendum for this engagement or any other security or privacy related commitments that have been established between Axon and Agency, such as ISO 27001 certification or SOC 2 Reporting.
7. Privacy. Agency use of My90 is subject to the My90 Privacy Policy, a current version of which is available at https://www.axon.com/legal/my90privacypolicy. Agency agrees to allow Axon access to My90 Non-Content Data from Agency to (a) perform troubleshooting, maintenance, or diagnostic screenings; (b) provide, develop, improve, and support current and future Axon products including My90 and related services; and (c) enforce this Agreement or policies governing the use of My90 or other Axon products.
8. Location of Storage. Axon may transfer Agency Data to third-party subcontractors for Processing. Axon will determine the locations for Processing of Agency Data. For all Agency, Axon will Process and store Agency Data within the United States. Ownership of My90 Agency Content remains with Agency.
9. Required Disclosures. Axon will not disclose Agency Data that Agency shares with Axon except as compelled by a court or administrative body or required by any law or regulation. Axon will notify Agency if any disclosure request is received for Agency Data so Agency may file an objection with the court or administrative body, unless prohibited by law.
10. Data Sharing. Axon may share data only with entities that control or are controlled by or under common control of Axon, and as described below:
10.1. Axon may share Agency Data with third parties it employs to perform tasks on Axon’s behalf to provide products or services to Customer.
10.2. Axon may share Aggregated Survey Response with third parties, such as other Axon customers, local city agencies, private companies, or members of the public that are seeking a way to collect analysis on general policing and community trends. Aggregated Survey Response will not be reasonably capable of being associated with or reasonably be linked directly or indirectly to a particular individual.
11. License and Intellectual Property. Agency grants Axon, its affiliates, and assignees the irrevocable, perpetual, fully paid, royalty-free, and worldwide right and license to use Agency Data for internal use including but not limited to analysis and creation of derivatives. Axon may not release Agency Data to any third party under this right that is not aggregated and de-identified. Agency acknowledges that Agency will have no intellectual property right in any media, good or service developed or improved by Axon. Agency acknowledges that Axon may make any lawful use of My90 Data and any derivative of Agency Data including, without limitation, the right to monetize, redistribute, make modification of, and make derivatives of the surveys, survey responses and associated data, and Agency will have no intellectual property right in any good, service, media, or other product that uses My90 Data.
12. Agency Use of Aggregated Survey Response. Axon will make available to Agency Aggregated Survey Response and rights to use for any Agency purpose.
13. Data Subject Rights. Taking into account the nature of the Processing, Axon shall assist Agency by appropriate technical and organizational measures, insofar as this is reasonable, for the fulfilment of Agency's obligation to respond to a Data Subject Request regarding any Personal Data contained within My90 Agency Content. If in regard to My90 Agency Content, Axon receives a Data Subject Request from Agency's data subject to exercise one or more of its rights under applicable Data Protection Law, Axon will redirect the data subject within seventytwo (72) hours, to make its request directly to Agency. Agency will be responsible for responding to any such request.
14. Assistance with Requests Related to My90 Agency Content. With regard to the processing of My90 Agency Content, Axon shall, if not prohibited by applicable law, notify Agency without delay after receipt, if Axon: (a) receives a request for information from the Supervisory Authority or any other competent authority regarding My90 Agency Content; (b) receives a complaint or request from a third party regarding the obligations of Agency or Axon under applicable Data Protection Law; or (c) receives any other communication which directly or indirectly pertains to My90 Agency Content or the Processing or protection of My90 Agency Content. Axon shall not respond to such requests, complaints, or communications, unless Agency has given Axon written instructions to
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that effect or if such is required under a statutory provision. In the latter case, prior to responding to the request, Axon shall notify Agency of the relevant statutory provision and Axon shall limit its response to what is necessary to comply with the request.
15. Axon Evidence Partner Sharing. If Axon Evidence partner sharing is used to share My90 Agency Content, Agency will manage the data sharing partnership with Axon and access to allow only for authorized data sharing with Axon. Agency acknowledges that any applicable audit trail on the original source data will not include activities and processing performed against the instances, copies or clips that has been shared with Axon. Agency also acknowledges that the retention policy from the original source data is not applied to any data shared with Axon.
Except as provided herein, data shared with Axon may be retained indefinitely by Axon.
16. Data Retention. Phone numbers provided to Axon directly by Agency or at their direction, or by permitting My90 to access or connect to an information system or similar technology will be retained for twenty-four (24) hours.
Axon will not delete Aggregated Survey Response for four (4) years following termination of this Agreement. There will be no functionality of My90 during these four (4) years other than the ability to submit a request to retrieve Aggregated Survey Response. Axon has no obligation to maintain or provide Aggregated Survey Response after these four years and may thereafter, unless legally prohibited, delete all Aggregated Survey Response.
17. Termination. Termination of an My90 Agreement will not result in the removal or modification of previously shared My90 Agency Content or the potential monetization of Survey Response and Aggregated Survey Response.
18. Managing Data Shared. Agency is responsible for:
18.1. Ensuring My90 Agency Content is appropriate for use in My90. This includes, prior to sharing: (a) applying any and all required redactions, clipping, removal of metadata, logs, etc. and (b) coordination with applicable public disclosure officers and related legal teams;
18.2. Ensuring that only My90 Agency Content that is authorized to be shared for the purposes outlined is shared with Axon. Agency will periodically monitor or audit this shared data;
18.3. Using an appropriately secure data transfer mechanism to provide My90 Agency Content to Axon;
18.4. Immediately notifying Axon if My90 Agency Content that is not authorized for sharing has been shared.
Axon may not be able to immediately retrieve or locate all instances, copies or clips of My90 Agency Content in the event Agency requests to un-share previously shared My90 Agency Content;
19. Prior to enrollment in My90. Prior to enrolling in My90, Agency will:
19.1. determine how to use My90 in accordance with applicable laws and regulations including but not limited to consents, use of info or other legal considerations;
19.2. develop a set of default qualification criteria of what My90 Agency Content may be shared with Axon; and
19.3. assign responsibilities for managing what My90 Agency Content is shared with Axon and educate users on what data may or not be shared with Axon.
20. Agency Responsibilities. Agency is responsible for:
20.1. ensuring no My90 Agency Content or Agency end user’s use of My90 Agency Content or My90 violates this Agreement or applicable laws;
20.2. providing, and will continue to provide, all notices and has obtained, and will continue to obtain, all consents and rights necessary under applicable laws for Axon to process Agency Data in accordance with this Agreement; and
20.3. maintaining necessary computer equipment and Internet connections for use of My90. If Agency becomes aware of any violation of this Agreement by an end user, Agency will immediately terminate that end user’s access to My90. Agency will also maintain the security of end usernames and passwords and security and access by end users to My90 Agency Content. Agency is responsible for ensuring the configuration and utilization of My90 meets applicable Agency regulations and standards. Agency may not sell, transfer, or sublicense access to any other entity or person. Agency shall contact Axon immediately if an unauthorized party may be using Agency's account or My90 Agency Content or if account information is lost or stolen.
21. Suspension. Axon may temporarily suspend Agency's or any end user’s right to access or use any portion or all of My90 immediately upon notice, if Agency or end user’s use of or registration for My90 may (a) pose a security
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risk to Axon products including My90, or any third-party; (b) adversely impact My90, the systems, or content of any other customer; (c) subject Axon, Axon’s affiliates, or any third-party to liability; or (d) be fraudulent. Agency remains responsible for all fees, if applicable, incurred through suspension. Axon will not delete My90 Agency Content or Aggregated Survey Response because of suspension, except as specified in this Agreement.
22. My90 Restrictions. Agency and Agency end users (including employees, contractors, agents, officers, volunteers, and directors), may not, or may not attempt to:
22.1. copy, modify, tamper with, repair, or create derivative works of any part of My90;
22.2. reverse engineer, disassemble, or decompile My90 or apply any process to derive any source code included in My90, or allow others to do the same;
22.3. access or use My90 with the intent to gain unauthorized access, avoid incurring fees or exceeding usage limits or quotas;
22.4. use trade secret information contained in My90, except as expressly permitted in this Agreement;
22.5. access My90 to build a competitive product or service or copy any features, functions, or graphics of My90;
22.6. remove, alter, or obscure any confidentiality or proprietary rights notices (including copyright and trademark notices) of Axon’s or Axon’s licensors on or within My90; or
22.7. use My90 to store or transmit infringing, libelous, or other unlawful or tortious material; to store or transmit material in violation of third-party privacy rights; or to store or transmit malicious code.
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Schedule 1- Details of the Processing
1. Nature and Purpose of the Processing. To help Agency obtain feedback from individuals, such as members of their community, staff, or officers. Features of My90 may include:
1.1. Survey Tool where Agency may create, distribute, and analyze feedback from individuals it designates.
Agency may designate members of the community, staff or officers from whom they would like to obtain feedback;
1.2. Creation of custom forms for surveys. Agency may select questions from a list of pre-drafted questions or create their own;
1.3. Distribution of survey via multiple distribution channels such as text message;
1.4. Ability to access and analyze Survey Response. Axon may also provide Agency Aggregated Survey Responses which contain analysis and insights from the Survey Response;
1.5. Direct integrations into information systems including Computer Aided Dispatch ("CAD"). This will enable Agency to share contact information easily and quickly with Axon of any individuals from whom it wishes to obtain feedback, enabling Axon to communicate directly with these individuals;
1.6. Data Dashboard Beta Test ("Data Dashboard") where Survey Response and Aggregated Survey Response will be displayed for Agency use. Agency will be able to analyze, interpret, and share results of the Survey Response. My90 may provide beta versions of the Data Dashboard that are specifically designed for Agency to test before they are publicly available;
1.7. Survey Responses will be aggregated and de-identified and may be subsequently distributed and disclosed through various mediums to: (1) Agency; (2) other Axon Agency; (3) private companies; and (4) members of the public. The purpose of disclosure is to provide ongoing insights and comparisons on general policing and community trends. Prior to disclosing this information, Axon will ensure that the Survey Response has been de-identified and aggregated or transformed so that it is no longer reasonably capable of being associated with, or could reasonably be linked directly or indirectly to a particular individual; and
1.8. Provide services and materials to engage Agency stakeholders, market the partnership to the public, and facilitate training.
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