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PROFESSIONAL SERVICES AGREEMENT
between
The City of San Marino
2200 Huntington Drive
San Marino, CA 91108
&
LensLock, Inc.
East Corporate Headquarters
3550 Buschwood Park Dr.
Suite 180
Tampa, FL 33618
This Professional Service Agreement (“the Agreement”) is made as of November 1, 2024 (the “Effective Date”), by and between LensLock, Inc. (“Consultant”), and the City of San Marino (“City”), a California municipal corporation, (collectively, “the Parties”). 2 of 26
RECITALS
A. City desires certain professional services as specified in this Agreement.
B. Consultant represents that it is qualified and able to provide City with such services.
NOW THEREFORE, in consideration of the Parties’ performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows:
AGREEMENT
1.0 Scope of Services
1.1. Consultant shall provide those services (“Services”) set forth in the attached Exhibit A.
1.2. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City.
1.3. In performing this Agreement, Consultant shall comply with all applicable provisions of federal, state, and local laws, ordinances, codes, and regulations.
1.4. Consultant shall not be compensated for any work performed unless it is specified in Exhibit A or City authorizes such work in advance and in writing. Any work so authorized by City shall become part of the Services for purposes of this Agreement.
2.0 Term
The term of this Agreement shall commence as of the Effective Date and shall continue through October 31, 2029 unless sooner terminated as provided in Section 5.0 of this Agreement.
3.0 Consultant’s Compensation
City will pay Consultant in accordance with the fee schedule set forth in Exhibit B but in no event will the City pay more than $294,337.10. Any additional work authorized by the City pursuant to Section 1.4 will be compensated in accordance with the fee schedule set forth in Exhibit B, unless otherwise approved by City in writing. Pursuant to Section 02.06.05 of the San Marino City Code, this Agreement shall not be effective unless previously approved by the City Council if it is for professional services of greater than $30,000.
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4.0 Method of Payment
4.1. Consultant shall submit invoices to the City in accordance with Exhibit B for all services rendered pursuant to this Agreement. City will pay Consultant all undisputed charges within 30 days of receiving Consultant’s invoice. City will not withhold any applicable federal or state payroll and other required taxes, or other required or authorized deductions from payments made to Consultant.
4.2. Upon 24-hour notice from City, Consultant shall allow City or City’s agents or representatives to inspect at Consultant’s offices during reasonable business hours all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement. City’s rights under this Section 4.2 shall survive for two years following the expiration or earlier termination of this Agreement.
5.0 Termination
5.1. City may terminate this Agreement for cause in the event Consultant fails to cure a default under this Agreement within thirty (30) calendar days after City has given Consultant notice of such default.
5.2. Consultant may terminate this Agreement for cause in the event City fails to cure a default under this Agreement within thirty (30) days after Consultant has given City notice of such default.
5.3. Upon termination of this Agreement, Consultant shall cease all work under this Agreement and deliver to City all materials, reports, documents, notes or other written materials compiled through the last working day this Agreement is in effect. City shall pay Consultant for all services satisfactorily rendered through the last working day this Agreement is in effect; provided that in no event, including but not limited to termination, shall Consultant be entitled to receive more than the maximum compensation set forth in Section 3. Neither party shall have any other claim against the other party by reason of termination pursuant to this Section 5.0.
6.0 Reports, Information, and Work Product
6.1. Consultant shall deliver to City: (1) any reports on the status of the Services upon City’s request and in such time and in such form as City may require; and (2) all material furnished to Consultant by City upon City’s request and/or upon the expiration or termination of this Agreement.
6.2. Unless the Parties agree in writing, all draft and final reports, documents, and other written material, and any and all images, ideas, concepts, designs including without limitation any website designs, source code, object code, electronic data and files, and/or other media whatsoever created or developed by Consultant in the performance of this Agreement (collectively, “Work Product”) shall be considered to be “works made for hire” for the benefit of City. All Work Product and any and all intellectual property rights arising from their creation, including, but not limited to, all copyrights and other proprietary rights, shall be and remain the property of City without 4 of 26
restriction or limitation upon their use, duplication or dissemination by City upon final payment being made. Consultant shall not obtain or attempt to obtain copyright protection as to any of the Work Product. Consultant hereby assigns to City all rights of ownership to the Work Product, including but not limited to any and all related intellectual property and proprietary rights that are not otherwise vested in the City pursuant to this paragraph.
6.3. Consultant warrants and represents that it has secured all necessary licenses, consents or approvals necessary to the production of the Work Product, and that upon final payment, City shall have full legal title to the Work Product, and full legal authority and the right to use and reproduce the Work Product for any purpose.
Consultant shall defend, indemnify, and hold City, and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of city officials, harmless from any loss, claim, or liability in any way related to a claim that any use by the City of any of the Work Product violates federal, state, or local laws, or any contractual provisions, or any rights or laws relating to trade names, licenses, franchises, copyrights, patents, or other means of protecting intellectual property rights, and/or interests in products, ideas, or inventions.
Consultant shall bear all costs arising from the use of patented, copyrighted, trade secret, or trademarked documents, materials, equipment, devices, or processes in connection with its provision of the Work Product produced under this Agreement. If any use by city of any of the Work Product or other deliverables is held to constitute an infringement and the use of any of the same is enjoined, Consultant, at its expense, shall: (a) secure for City the right to continue using such Work Product and/or other deliverables by suspension of any injunction, or by procuring a license or licenses for City; or (b) modify the Work Product and other deliverables so that they become noninfringing while remaining in compliance with the requirements of this Agreement.
6.4. Consultant’s obligations under this Section 6.0 shall survive the expiration or termination of this Agreement.
7.0 Party Representatives
7.1. City’s representative for purposes of this Agreement is the City Manager or the person designated in writing by the City Manager. The City Manager’s designee may exercise the authority of the City Manager provided in this Agreement excepting approval of any expenditure that would exceed a total compensation allowed under the Agreement.
7.2. Andrew Lynch is Consultant’s representative for purposes of this Agreement.
8.0 Notices
8.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United 5 of 26
States Mail, first class postage prepaid and addressed to the party at the following addresses:
To City: City of San Marino
2200 Huntington Drive
San Marino, California 91108
Attn: City Manager
To Consultant: LensLock, Inc.
East Corporate Headquarters
3550 Buschwood Park Dr.
Suite 180
Tampa, FL 33618
Attn: Andrew Lynch
8.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
9.0 Independent Consultant
9.1. Consultant is an independent contractor and not an employee of City. All services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
9.2. . Each party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other party (the ”Indemnified Party”), its affiliates, directors, officers, employees, and agents, from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorney’s fees and legal costs) arising out of or related to:
1. Any breach of the Indemnifying Party’s representations, warranties, or obligations under this agreement;
2. Any negligence, willful misconduct, or violation of law by the Indemnifying Party, its employees, or agents;
3. Any claims of bodily injury, death, or property damage caused by the Indemnifying Party's products, services, or operations.
The Indemnified Party shall promptly notify the Indemnifying Party in writing of any such 6 of 26
claim, and the Indemnifying Party shall assume the defense of such claim with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party in the defense of the claim, at the Indemnifying Party’s expense.
Neither party may settle any claim in a manner that adversely affects the rights of the other party without the other party’s prior written consent.
All duties of party’s under this Section 9.2 shall survive termination of this Agreement.
9.3. In the event that Consultant provides any of the Services by or through any employee or any person whose work under this Agreement becomes cause for any payment or contribution required by law, including but not limited to the California Public Employees' Pension Reform Act (PEPRA), to the Public Employee Retirement System, Consultant shall be solely responsible for all such payments or contributions.
Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs, and expenses of any nature to the extent arising from Consultant’s failure to make any such payment or contribution. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this Section. All duties of Consultant under this Section
9.3 shall survive termination of this Agreement.
10.0 Subcontractors
Unless otherwise specified in Exhibit A, no portion of this Agreement shall be subcontracted without the prior written approval of the City Manager. Consultant is fully responsible to City for the performance of any and all subcontractors, if any.
11.0 Assignment
Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City Manager. Any purported assignment without such consent shall be void and without effect.
12.0 Insurance
12.1. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to City that Consultant has secured all insurance required under this Section. Consultant shall furnish City with original certificates of insurance and endorsements, including but not limited to additional insured endorsements, effecting coverage required by this Agreement on forms satisfactory to City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by City, if requested. All certificates and endorsements shall be received and 7 of 26
approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
12.2. General liability insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
12.3 Automobile liability insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than 1,000,000 combined single limit for each accident.
12. 4 Professional liability (errors & omissions) insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
12.5 Workers’ compensation insurance. Consultant shall maintain Workers’ Compensation Insurance (statutory limits) and Employer’s Liability insurance (with limits of at least $1,000,000).
Consultant shall submit to Agency, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of Agency, its officers, agents, employees, and volunteers.
12.6 Cyber security and privacy liability. Consultant shall procure and maintain insurance with limits of $5,000,000 per occurrence/loss, $10,000,000 general aggregate, which shall include the following coverage:
a. Liability arising from the theft, dissemination and/or use of confidential or personally identifiable information; including but not limited to personally identifiable information (PII), protected health information (PHI), security codes, access codes, passwords, etc.
b. Network security liability arising from the unauthorized use of, access to, or tampering with computer systems, including hacker or denial of service attacks. 8 of 26
c. Liability arising from introducing a computer virus into or otherwise causing damage to vendor (first-party) or customer’s (third party) computer, computer system, network, or similarly related property and the data, software, and programs. d. Liability arising from professional misconduct or lack of the requisite skill required for performing services defined in the contract or agreement. e. Costs associated with restoring, updating, or replacing data. f. Costs associated with a privacy breach, including notification costs, customer support, forensics, crises management, public relations consulting, legal services of a privacy attorney, credit monitoring, and identity fraud resolution services for affected individuals.
If coverage is maintained on a claims-made basis, consultant shall maintain such coverage for an additional three (3) years following termination of the contract.
12.7 Cyber technology errors and omissions. Consultant shall procure and maintain insurance with limits of $5,000,000 per occurrence/loss, $10,000,000 general aggregate, which shall include the following coverage:
a. Liability arising from the unauthorized release of information for which an entity has the legal obligation to keep private, such as personally identifiable information (PII) and protected health information(PHI).
b. Network security liability arising from the unauthorized use of, access to, or tampering with computer systems, including hacker or denial of service attacks. c. Liability arising from the failure of technology products (software and hardware) required under the contract for Consultant to properly perform the intended services. d. Claims alleging the failure of computer security that result in the transmission of malicious code, deletion, destruction or alteration of data, or the denial of service. e. Electronic Media Liability arising from personal injury, plagiarism or misappropriation of ideas, domain name infringement or improper deep-linking or framing, and infringement or violation of intellectual property rights. f. Liability arising from the rendering, or failure to render, professional services. g. Defense costs in regulatory proceedings (state and federal) involving a violation of privacy laws or intellectual property rights.
h. Crisis management and other expert services.
If coverage is maintained on a claims-made basis, the Consultant shall maintain such coverage for an additional three (3) years following termination of the contract. 9 of 26
Other provisions or requirements
12.8. Proof of insurance. Consultant shall provide certificates of insurance and required endorsements to Agency as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by Agency’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with Agency for the contract period and any additional length of time required thereafter. Agency reserves the right to require complete, certified copies of all required insurance policies, at any time.
12.9 Duration of coverage. Consultant shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the performance of the Work hereunder by Consultant, their agents, representatives, employees, or sub-consultants.
12.10 Primary/noncontributing. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by Agency shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of Agency before the Agency’s own insurance or self- insurance shall be called upon to protect it as a named insured.
12.11 Agency’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, Agency has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by Agency will be promptly reimbursed by Consultant or Agency will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, Agency may cancel this Agreement.
12.12 Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the Agency’s Risk Manager.
12.13 Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against Agency, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against Agency and shall require similar written express waivers and insurance clauses from each of its subconsultants. 10 of 26
12.14 Enforcement of contract provisions (non estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the Agency to inform Consultant of non-compliance with any requirement imposes no additional obligations on the Agency nor does it waive any rights hereunder.
12.15 Requirements not limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the Agency requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Agency.
12.16 Notice of cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide the Agency with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of the Consultant’s insurers are unwilling to provide such notice, then Consultant shall have the responsibility of notifying the Agency immediately in the event of Consultant’s failure to renew any of the required insurance coverages, or insurer’s cancellation or non-renewal.
12.17 Additional insured status. General liability, automobile liability, and umbrella/excess liability insurance policies shall provide or be endorsed to provide that Agency and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies.
12.18 Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to Agency and approved of in writing.
12.19 Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any crossliability exclusions.
12.20 Pass through clause. Consultant agrees to ensure that its subconsultants, subcontractors, and any other party who is brought onto or involved in the project/service by Consultant (hereinafter collectively “Subcontractor”), provide the same minimum insurance coverage and endorsements required of Consultant under this Agreement. Consultant agrees to monitor and review all such coverage and 11 of 26
assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. However, in the event Consultant’s Subcontractor cannot comply with this requirement, which proof must be submitted to the Agency, Consultant may still be able to utilize the Subcontractor provided Consultant shall be required to ensure that its Subcontractor provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with Subcontractor’s scope of work and services, with limits less than required of the Consultant, but in all other terms consistent with the Consultant’s requirements under this Agreement. This provision does not relieve the Consultant of its contractual obligations under the Agreement and/or limit its liability to the amount of insurance coverage provided by its subcontractors. This provision is intended solely to provide Consultant with the ability to utilize a Subcontractor who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of the Consultant under this Agreement given the limited scope of work or services provided by the subcontractor.
Consultant agrees that upon request, all agreements with Subcontractors, and others engaged in the project and/or services, will be submitted to Agency for review.
12.21 Agency’s right to revise specifications. The Agency reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the Agency and Consultant may renegotiate Consultant’s compensation.
12.22 Self-insured retentions. Any self-insured retentions must be declared to and approved by Agency. Agency reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter.
12.23 Timely notice of claims. Consultant shall give Agency prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
12.24 Additional insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
12.25 Indemnification, Hold Harmless, and Duty to Defend. To the maximum extent permitted by law, Consultant shall defend, indemnify, and hold City, its officials, officers, employees, volunteers and agents serving as independent contractors in the role of city officials (collectively “Indemnitees”) free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts or omissions of Consultant, its employees, its agents, or its subcontractors in connection with the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys’ fees and other 12 of 26
related costs and expenses, except for such loss or damage arising from the sole negligence or willful misconduct of City. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Indemnitees, Consultant shall defend Indemnitees, at Consultant’s own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Consultant shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, City, its directors, officials, officers, employees, agents or volunteers. All duties of Consultant under this Section shall survive termination of this Agreement.
12.26 Consultant must obtain executed indemnity agreements with provisions identical to those in Section 0 from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of the Services. If Consultant fails to obtain such indemnities, Consultant shall be fully responsible and indemnify, hold harmless, and defend the Indemnitees from and against any and all Claims in law or equity, whether actual, alleged, or threatened, arising or claimed to arise out of, pertaining to, or relating to the acts or omissions of Consultant’s subcontractor, its officers, agents, servants, employees, subcontractors, materialmen, contractors, or their respective officers, agents, servants or employees (or any entity or individual that Consultant’s subcontractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees’ active or passive negligence, except for Claims arising from the sole negligence or willful misconduct of the Indemnitees, as determined by final arbitration or court decision or by the agreement of the Parties.
13.0 Equal Opportunity
Consultant shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non-discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination.
14.0 Labor Certification
14.1. By its signature hereunder, Consultant certifies it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code. Consultant shall provide evidence of such coverage before commencing the performance of the Services.
14.2. Consultant certifies that in the performance of the Services, Consultant shall not, in any manner, employ any person or contract with any person so that any Services so performed by such person would be subject to the workers’ compensation 13 of 26
laws of the State of California unless and until Consultant gives City a certificate of consent to self-insure or a certificate of Workers' Compensation Insurance Coverage.
14.3. In the event Consultant hires a subcontractor who has employees to perform the Services or any part thereof, then Consultant shall either require the subcontractor to obtain Workers’ Compensation Insurance Coverage, or must obtain Workers’ Compensation Insurance Coverage for the subcontractor’s employees.
14.4. Any Workers’ Compensation Insurance Coverage required by or for this Agreement shall be endorsed with a waiver of subrogation in favor of City for all work performed by Consultant, its employees, its agents, and its subcontractors.
15.0 Entire Agreement
This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both parties.
16.0 Severability
The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement.
17.0 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California.
18.0 No Third Party Rights
No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement.
19.0 Waiver
No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise.
20.0 Headings
Headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement.
21.0 Force Majeure
Consultant shall not be liable for any failure to perform any obligation under this Agreement if Consultant presents that City in its sole judgment deems acceptable that 14 of 26
such failure was due to strikes, lockouts, labor disputes, embargoes, acts of God, governmental restrictions, governmental regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond Consultant’s reasonable control and not due to any act by Consultant.
22.0 Final Payment Acceptance Constitutes Release
Consultant’s acceptance of City’s final payment under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for the Services or anything done or furnished relating thereto. Neither City’s payment to Consultant nor approval of payment constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, sub-contractors and agents for the accuracy and competency of the information provided and/or work performed; nor shall such or payment or approval be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Consultant, its employees, subcontractors and agents.
23.0 Prohibited Interests; Conflict of Interest
23.1. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services.
Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant “financially interested” (as provided in California Government Code §§1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained.
23.2. Consultant further warrants and maintains that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift.
23.3. Consultant warrants and maintains that it has no knowledge that any officer or employee of City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written 15 of 26
disclosure of such interest to City, even if such interest would not be deemed a prohibited “conflict of interest” under applicable laws as described in this subsection.
24.0 Attorneys’ Fees
If either party commences any legal, administrative, or other action against the other party arising out of or in connection with this Agreement, the prevailing party in such action shall be entitled to have and recover from the losing party all of its attorneys’ fees and other costs incurred in connection therewith.
25.0 Exhibits
Each exhibit referenced in this Agreement is hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control.
26.0 Corporate Authority
26.1. Each person executing this Agreement on behalf of Consultant warrants that he or she is duly authorized to execute this Agreement on behalf of Consultant and that by his or her execution, Consultant is formally bound to the provisions of this Agreement.
26.2. Consultant certifies it is aware of the requirements of Sections 313 of the California Corporations Code. If Consultant is a corporate entity, it shall either:
(a) provide City written proof that each person executing this Agreement on Consultant’s behalf is duly authorized to bind Consultant; or (b) provide two signatories to this Agreement, of whom the first must be Consultant’s chairman of the board, president, or a vice president and the second must be Consultant’s secretary, an assistant secretary, its chief financial officer, or an assistant treasurer.
IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the Effective Date. 16 of 26
CITY OF SAN MARINO
By:_________________________
Philippe Eskandar
City Manager
Attest:
By:_________________________
City Clerk
Approved as to Form:
By:_________________________
Joseph Montes
City Attorney
CONSULTANT
By:_____________________________
(Sign)
Name:__________________________
(Print)
Title: __________________________
(Print)
By:_____________________________
(Sign)
Name:__________________________
(Print)
Title: __________________________
(Print)
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Exhibit A
Scope of Services
CONSULTANT shall provide the Services detailed in this Exhibit A, entitled “SCOPE OF SERVICES”. Notwithstanding any provision herein to the contrary, CONSULTANT’s duties and services described in this Scope of Services shall not include preparing or assisting CITY with any portion of CITY’s preparation of a request for proposals, request for qualifications, or any other solicitation regarding a subsequent or additional contract with CITY. CITY shall at all times retain responsibility for public contracting, including with respect to any subsequent phase of this project. CONSULTANT’s participation in the planning, discussions, or drawing of project plans or specifications shall be limited to conceptual, preliminary, or initial plans or specifications. CONSULTANT shall cooperate with CITY to ensure that all bidders for a subsequent contract on any subsequent phase of this project have access to the same information, including all conceptual, preliminary, or initial plans or specifications prepared by CONSULTANT pursuant to this Scope of Services.
Body Worn Camera (BWC), Security Camera Systems, and In Car Video Services herein shall be performed under the direction of the San Marino Police Department’s (DEPARTMENT) Information Technology Division (ITD) Director, or their designee, and shall perform the Services in cooperation with DEPARTMENT personnel. LensLock (CONTRACTOR) shall provide a comprehensive service offering including, but not limited to, hardware/software, data storage, and professional services in accordance with the following requirements:
1) Hardware
a. CONTRACTOR shall provide forty (40) Gen 12.5 Body Worn Cameras (BWC) b. CONTRACTOR shall provide unlimited BWC mounts, and accessories as reasonably requested by the Department
c. CONTRACTOR shall provide seven (7) Hawk 6 In-Car Video (ICC) Systems with installation
d. CONTRACTOR shall provide seven (7) Bluetooth Integrated Technology System (BITS) auto activation devices
e. CONTRACTOR shall provide unlimited Dock and Go BWC docking stations at no cost to DEPARTMENT
f. CONTRACTOR shall provide forty (40) LensLock BWC and seven (7) ICC warranty replacements for all equipment every thirty (30) months g. All equipment shall be supplied by CONTRACTOR during the Contract.
DEPARTMENT shall assume ownership of all equipment at Contract termination, regardless of the amount of the equipment. 18 of 26
2) Software
a. CONTRACTOR shall provide all software subscriptions and software maintenance included within the Contract’s annual payment. i. CONTRACTOR shall provide unlimited access to CONTRACTOR’s online platform services and customized mobile app.
b. CONTRACTOR’s online platform services shall provide an intuitive, ease-ofuse dynamic “roles and permissions” based dashboard/management console to manage stored data. Search functions shall include the ability to search by officer’s name, case number, location, data, event category, device ID, vehicle, room or other tags customizable by the DEPARTMENT. c. CONTRACTOR’s online platform services shall accept multiple types of evidence, from multiple sources including, but not limited to, audio and video files and digital photographs.
d. CONTRACTOR’s online platform services shall provide categorized data based on customized crime activity labels with adjoining retention policies as set by the DEPARTMENT.
i. CONTRACTOR’s online platform services shall provide a configurable structure which automatically manages digital evidence based on the type of event and retention period by the DEPARTMENT.
e. CONTRACTOR’s online platform services shall provide for secure digital sharing of evidence, both internally and externally, without data loss or altering shared data, other than redacted video, outside the DEPARTMENT to approved destinations. CONTRACTOR shall maintain original copy of all redacted evidence.
i. Approved destinations shall be able to view and store data within the data management software and shall receive notifications when data is available to view or is set to expire.
ii. Chain-of-custody shall be logged and auditable; access to evidence, including the ability of third parties to view, duplicate, re-share, or download shall be controlled by the DEPARTMENT.
f. CONTRACTOR’s online platform services shall perform materially with an uptime percentage of no less than 99.9% and professional services shall be performed in a timely and professional manner by qualified personnel with the technical skills, training, and experience to perform such Services. 19 of 26
i. CONTRACTOR shall provide DEPARTMENT permission to access and make changes to the BWCS’ & ICC’s operations through the online platform services.
3) Professional Services & Special Considerations
a. CONTRACTOR shall replace all BWCs, every thirty (30) months during the Contract term.
b. CONTRACTOR shall replace all ICCs, every thirty (30) months during the Contract term.
c. CONTRACTOR shall provide a warranty in accordance with the Limited warranty Section. CONTRACTOR shall provide the details of all warranties, such as limited and extended warranties, which are applicable to the services and equipment being provided to the DEPARTMENT.
d. CONTRACTOR shall provide Computer Aided Dispatch (CAD) integration i. All footage shall include attached metadata including, but not limited to, user, case numbers, date and time, locations, and other available data customizable by the City.
e. CONTRACTOR shall provide unlimited professional grade outsourced redaction at no cost to DEPARTMENT.
i. Any additional features or functionality associated with CONTRACTOR’s BWCs or online platform services may be
communicated by DEPARTMENT to CONTRACTOR on an on-going basis. However, any requests for additional equipment and implementation of new or additional services must be pre-authorized by DEPARTMENT and any additional fees or amendments to the contract shall only be executed, in writing, upon approval or delegated authority by the City.
4) Leased Body-Worn Cameras
a. Scope of Lease
i. The Lessor agrees to provide the Lessee with body-worn cameras (BWCs) as specified in Exhibit A. This agreement covers the leasing of equipment, maintenance, and technical support for the duration of the lease term.
ii. Lease Term
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1. The lease term shall commence on November 1, 2024 and continue for five (5) years ending March 31, 2030, unless terminated earlier in accordance with the provisions herein.
2. Return of Equipment
a. Upon termination of the lease, the DEPARTMENT shall
return all leased BWCs in good working condition, normal wear and tear excepted. The DEPARTMENT reserves
the right to assess any damages or missing equipment.
b. Termination
i. Either party may terminate this agreement with
thirty (30) days written notice. Immediate
termination may occur in the event of a breach of
contract or failure to comply with the terms herein.
CONTRACTOR shall provide Project Manager and key personnel who will be responsible for project oversight and delivery of the SYSTEM. The Project Manager shall be the single point of contact for the DEPARTMENT and will be responsible for the management, implementation, and on-going troubleshooting of the SYSTEM during installation. The Project Manager shall coordinate efforts with the DEPARTMENT designee. The Project Manager will develop, in consultation with the DEPARTMENT, a detailed implementation plan for the BWC and ICC system. The project timeline and implementation plan shall include details for all phases of activity for the project including all deliverables and major milestones.
1) Data Storage & Security
a. The terms and conditions contained in SERVICES TERMS, are incorporated herein as though fully set forth.
b. CONTRACTOR shall provide unlimited and scalable Cloud data storage via Microsoft Azure.
c. Uptime percentage shall be no less than 99.9%.
d. Cloud service shall provide chain-of-custody reports, detailed audit logs, and workflow procedures that protect against unauthorized access or accidental deletion of videos.
e. CONTRACTOR’s data storage facility must be located within the contiguous United States of America.
i. Software shall require individual accounts per user, and roles and permission continuum to ensure data security and integrity. Group 21 of 26
permission access levels shall be customizable by DEPARTMENT and shall be available to assign to multiple users.
f. CONTRACTOR must meet Criminal Justice Information Services (CJIS) Security Policy compliancy and be aware of all Federal Bureau of Investigation (FBI) – CJIS Security addendums. CONTRACTOR shall sign specific agreements with the DEPARTMENT as the Contracted Government Agency (CGA) for the purposes of providing services. The agreement incorporates a security addendum certification form signed by the CONTRACTOR and CONTRACTOR’s personnel.
g. CONTRACTOR must retain employee records and fingerprints of all personnel with access to City data. CONTRACTOR shall have each personnel sign the FBI/CJIS security addended Certification Form and shall maintain these records on file for the duration of employment and shall be made available to the DEPARTMENT upon request. i. Ownership of Documents, DEPARTMENT shall own all rights to the data, including but not limited to, metadata, audio, and video stored at the CONTRACTOR’s host site, (if applicable) with no transfer, conveyance, assignment, or sharing of data ownership to/with the hosting provider.
ii. At the end of the Contract term the DEPARTMENT does not renew the Contract, the CONTRACTOR shall provide the DEPARTMENT a complete leave-behind solution including the following:
1. On-premises archive inclusive of all data, including video, spanning the life of the Contract.
2. Data must be cataloged in a readily identifiable and usable manner (file type) and shall be searchable by criteria (i.e.
DR#, Deputy Name/ID, Date/Time).
3. Data must be delivered in an expeditious manner, as
requested by City, in order not to lose captured video
evidence before retention policies cause a deletion of
evidence prior to getting the data on premises.
4. Allowance of entry back into the system until confirmation all evidence has been transferred or provided on flash
drives/DVD’s that have been tested and cataloged.
5. Delivery of a solution interface including users and data management functionality.
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6. Solution shall be self-contained and comprised of modern server and storage hardware.
7. Provide mass data transfer capabilities via S3 storage targets originating for the CONTRACTOR cloud platform (or Cloud provider).
8. Adequate time shall be allotted for this process after termination of the Contract, based on the amount of data retained by the CONTRACTOR.
9. CONTRACTOR will import the DEPARTMENT’s existing
ICC and BWC video data, stored within on-premise servers, to the CONTRACTOR’s cloud based storage solution.
2) Training & Support
a. CONTRACTOR shall provide a team of specialized client service managers for all ICC, and BWC questions and/or concerns.
CONTRACTOR shall provide a plan for in-depth technical training for administrators on system components which shall include the use and management of the ICCs, BWCs, and Digital Evidence Management System (DEMS).
b. CONTRACTOR shall provide on-site implementation and all training services at no cost to DEPARTMENT.
i. During ICC, and BWC implementation, CONTRACTOR shall communicate weekly at minimum with the ITD Director, or their designee, to provide implementation status updates.
c. Technical support services shall be provided twenty-four (24) hours, seven (7) days per week, three hundred and sixty-five days (365) per year (366 days per leap year), via telephone, email, and live chat at no additional cost to DEPARTMENT.
d. CONTRACTOR shall respond (on-site and/or remote) and resolve technical support issues within the following timeframes:
Security
Level
Status Impact Response
Time
Resolve
Time
Level 1 Critical
Disruption to the
whole organization
(Service Down)
<30
minutes
ASAP
0-4 hours
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Level 2 Important
Severe Impact on
Service Availability
(Service Degraded or
Unusable)
<30
minutes
ASAP
0-4 hours
Level 3 Normal
Non-Critical
(Service Degraded
with No Impact to
Service Availability)
<4 hours Next Day
e. Failure to provide services, data storage, and/or access to the CONTRACTOR’s online platform services and customized mobile app, due to matters within the CONTRACTOR’s control, within the agreed upon timeframes, may incur $250.00 per day in liquidated damages until fully functional.
f. CONTRACTOR shall provide all labor, materials, transportation, supervision, and management to fulfill the requirements of the Contract as established herein
3) The Department and Consultant agree to establish and monitor the following performance metrics to evaluate the effectiveness and functionality of the body-worn cameras (BWCs):
a. Performance Objectives
i. Video Quality: BWCs shall record video at high definition (HD), with no less than 99% of recorded footage meeting this standard. ii. Battery Life: BWCs must operate continuously for a minimum of [specify hours, e.g., 12 hours] during normal usage conditions. iii. Storage Capacity: Each BWC shall have a storage capacity of 64GB, allowing for at least 12+ hours of continuous recording time before requiring data transfer.
iv. Durability: BWCs must meet industry standards for durability, including resistance to water (IP66), dust, and impact as specified. b. Data Integrity and Security
i. Data Encryption: All recorded data must be encrypted both in transit and at rest to ensure the confidentiality and integrity of the data.
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ii. Access Control: Access to recorded data shall be restricted to authorized personnel only, and access logs must be maintained for accountability.
c. Incident Reporting and Response
i. The CONSULTANT shall provide a mechanism for the Department to report incidents related to BWC performance, including:
1. Technical malfunctions
2. Quality issues
3. Data retrieval problems
ii. The CONSULTANT agrees to respond to all reported incidents within and to provide a resolution plan within the expected timeframe set herein this agreement.
d. Periodic Performance Reviews
i. The DEPARTMENT and CONSULTANT shall conduct performance reviews once a year to assess the performance metrics outlined above. Review meetings shall include:
1. Discussion of performance data
2. Identification of any issues or areas for improvement
3. Recommendations for enhancements or adjustments to
BWC operations
e. Reporting Requirements
i. The Consultant shall provide the Department with a comprehensive performance report, including metrics and incident summaries, at the conclusion of each review period. This report shall include:
1. Total recorded hours
2. Incidents of technical failure
3. User feedback and satisfaction ratings
f. Remedies for Non-Performance
i. If the BWC performance metrics fall below the agreed-upon standards for two consecutive review periods, the Department may:
1. Request remedial action from the Consultant
2. Seek financial restitution for affected operations
3. Terminate the lease agreement if issues persist without resolution
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g. Continuous Improvement
i. Both parties commit to a collaborative approach for continuous improvement of BWC performance, including exploring new technologies and upgrades that enhance functionality and user experience.
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Exhibit B
Fee Schedule
Date of First Payment: Novmeber 1, 2024
Original Balance: $ 294,337.10
Total Number of Payments: Five (5)
Number of Payments Per Year: One (1)
Payment
No.
Due Date Contract
Payment
Applied to
Interest
Applied to
Principal
1 01-Nov-24 $61,947.42 $0.00 $61,947.42
2 01-Nov-25 $58,097.42 $0.00 $58,097.42
3 01-Nov-26 $58,097.42 $0.00 $58,097.42
4 01-Nov-27 $58,097.42 $0.00 $58,097.42
5 01-Nov-28 $58,097.42 $0.00 $58,097.42