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HomeMy WebLinkAboutC-4396 C, "/Ac, fi`ock safety \103-1O FLOCK GROUP INC. SERVICES AGREEMENT ORDER FORM This Order Form together with the Terms(as defined herein)describe the relationship between Flock Group Inc.("Flock")and the customer identified below("Customer")(each of Flock and Customer,a"Party").This order form("Order Form")hereby incorporates and includes the"GOVERNMENT AGENCY CUSTOMER AGREEMENT"attached(the"Terms"),any schedules attached thereto,and the Customer's Supplemental Conditions Addendum attached hereto and incorporated herein by reference,which describe and set forth the general legal terms governing the relationship(collectively,the"Agreement" ).The Terms contain, among other things,warranty disclaimers,liability limitations and use limitations. The Agreement will become effective when this Order Form is executed by both Parties(the"Effective Date"). Customer:City of Arcadia Contact: Roy Nakamura, Chief of Police Address: 250 W. Huntington Drive. Phone: 626-574-5178 Arcadia, CA 91791 E-Mail: rnakamura@ArcadiaCA.gov Usage Fees:$50,000 per Year (the"Payment Period") Initial Term: 12 Months Renewal Term: 12 Months Number of Cameras:20 Installation Fee: (one-time) $5000 Billing Contact: Pole Fee: (one-time) $0 Jennifer Brutus, Senior Management Analyst Phone:626-574-5136 Email:jbrutus@ArcadiaCA.gov Effective Date: May , 2021 1 By executing this Order Form,Customer represents and warrants that it has read and agrees all of the terms and condi- tions contained in the Terms attached. The Parties have executed this Agreement as of the dates set forth helow. SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF ARCADIA AND FLOCK SAFETY IN WITNESS WHEREOF, the Parties have executed this Agreement as of the "Effective Date" first written above. CITY OF ARCADIA FLOCK SAFETY By C By: i t g,A1, Dominic Lazzarett Alex Latraverse City Manager Vice President —Growth Date: tv1a Z� �� Date: SI 7 toll By: ATTEST:, Gar Langley Secretary Date: 5/ '? /L• z( By.- /�- 00, _ y Cit Clerk APPROVED AS TO FORM By: �� oy Nakamura (� Chief of Police By: hi.-k-^,�" ��-lel �-�c-� Date: v�,52�—z.j Stephe D t tsc h a City Attorney Flock Group Inc. Order Form Arcadia,CA 0001 2 ADDENDUM CITY OF Arcadia SUPPLEMENTAL CONDITIONS For purposes of this Addendum to the Agreement between Flock Group, Inc. and the City of Arcadia, the term "Contractor" shall refer to Flock Group, Inc., and the term "City" shall be used to refer to the Customer, which is the City of Arcadia. 1. California Civil Code Compliance. Contractor is advised of, and agrees it will comply with the require- ments of the California Civil Code, Division 3, Part 4, Title 1.81.23 COLLECTION OF LICENSE PLATE INFORMATION [§§1798.90.5 - 1798.90.55] as applicable to an automated license plate recognition (ALPR) operator(also referred to as an "ALPR operator"). Contractor shall maintain rea- sonable security procedures and practices to protect ALPR information from unauthorized access, destruction, use, modification or disclosure that are at least as protective as the "Flock Safety End to End Data Security Overview," "Flock Safety CJIS Compliance Overview," and "Flock Safety Internet Security Policy," (collectively, referred to as the "Flock Security Policies") as each such policy was in effect as of January 29, 2020. Any amendment to the Flock Security Policies shall be transmitted to the City within 10 days. In the event the City determines in its sole discretion that any amendment to the Flock Security Policies either substantially reduces the privacy or security of Customer Content (including ALPR Footage) or the amendments would violate any State or Federal law, then the City shall have the right to terminate the Agreement and Flock will refund to City a pro-rata portion of the pre-paid Fees for Services not received due to such termination. 2. Disclosure of Security Breach. Contractor is advised of the requirements of the California Civil Code, section 1798.29, requiring notification to any resident of California in the event of breach of the secu- rity of the system. Contractor agrees it will notify the City immediately (and in no event more than 24 hours) upon the occurrence of any breach in the security of data that may potentially trigger the need for security breach notifications pursuant to Civil Code section 1798.29 or similar State or Federal law. The parties agree that the City will control the timing and content of any required security breach notification, and agree that Contractor shall fully pay or reimburse the City for the costs of providing any security breach notification required by Civil Code, section 1798.29,or similar State or Federal law, resulting from any security breach of the Flock Safety platform. Contractor's responsibility for the costs of providing such security breach notifications shall not be limited by any disclaimer or limitation of liability in the Agreement, including but not limited to Sections 2.1, 7.4 and 8 of the SaaS Terms of this Agreement. 3. Indemnification. To the fullest extent permitted by law, Contractor shall indemnify, defend with coun- sel reasonably acceptable to the City, and hold harmless the City and its officials, officers, employees, agents, contractors, consultants, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of or relating to any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Contractor or its employees, subcontractors, or agents. The foregoing obligation of Contractor shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the City or its officers, employees, agents, contractors, consultants, or volunteers and (2) the actions of Contractor or its employees, subcon- tractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of Contractor to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under the contract does not relieve Contractor from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause is a material element of the Agreement and shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. This Section 3 shall survive termination or expiration of this Agreement. Contractor's indemnification obligation pursuant 3 to this Section shall not be limited by any disclaimer or limitation of liability in the Agreement, including but not limited to, Sections 2.1, 7.4 and 8 of the Government Agency Service Agreement. 4. Infringement. Without limiting the generality or applicability of Section 3, above, if a third party makes a claim against the City that any use of the Services in accordance with the terms of this Agreement infringes such third party's intellectual property rights, Contractor, at its sole cost and expense, will defend City against the claim and indemnify City from the damages, losses, liabilities, costs and ex- penses awarded by the court to the third party claiming infringement or the settlement agreed to by Contractor, provided that City: (i) notifies Contractor promptly in writing of the claim; (ii) gives Con- tractor sole control of the defense and any settlement negotiations; and (iii) gives Contractor reason- able assistance in the defense of such claim. If Contractor believes or it is determined that the Ser- vices violated a third party's intellectual property rights, Contractor may choose to either modify the Services to be non-infringing or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Contractor may terminate City's use rights and refund any unused, prepaid fees City may have paid to Contractor. 5. California Public Records Act Compliance. Notwithstanding Section 4 of the Government Agency Service Agreement, Contractor expressly understands that City is a public agency subject to the Cal- ifornia Public Records Act (Cal. Government Code § 6250 et seq.). In the event that City receives a public records request seeking the disclosure of information that Contractor has designated as its "Proprietary Information," City shall notify Contractor, and Contractor shall be allowed to take any reasonable action to preserve the confidentiality of such information. City's obligation shall only ex- tend to notifying Contractor of the request, and City shall have no obligation to preserve the confiden- tiality unless doing so is in full compliance with the law. 6. Independent Contractor. It is expressly agreed that Contractor is to perform the services described herein as an independent contractor pursuant to California Labor Code Section 3353. Nothing con- tained herein shall in any way be construed to make Contractor or any of its agents or employees, an agent, employee or representative of the City. Contractor shall be entirely responsible for the com- pensation of any employees used by Contractor in providing said services. 7. Subcontractors. Notwithstanding Section 2.1 of the Government Agency Service Agreement, if Contractor utilizes a third-party subcontractor or other vendor to provide the Services under this Agreement, Contractor shall ensure that such subcontractor(s) or vendor(s) complies with the terms of this Agreement, and shall be jointly and severally liable with the subcontractor/vendor for any breach by the subcontractor/vendor. 8. Insurance. During the entire term of this Agreement and any extension or modification thereof, the Contractor shall keep in effect insurance policies meeting the following insurance requirements: See Exhibit A— Insurance Requirements General. 9. Appropriation. City's funding of this Agreement shall be on a fiscal year basis (July 1 to June 30) and is subject to annual appropriations. Contractor acknowledges that the City is a municipal corporation and is precluded by the California Constitution and other laws from entering into obligations that fi- nancially bind future governing bodies. Nothing in this Agreement shall constitute an obligation of future governing bodies to appropriate funds for the purposes of this Agreement. The parties agree that the Initial Term and any renewal term(s) is contingent upon the appropriation of funds by the City. This Agreement will terminate immediately if funds necessary to continue the Agreement are not appropriated. City shall pay Contractor for any services performed in accordance with this Agreement up to the date of termination. 4 10. Assignment. Contractor shall not assign this Agreement, or any part thereof, or any right of the Con- tractor hereunder without the prior written consent of the City. Notwithstanding, for purposes of this Contract, a merger, acquisition, reorganization, spin-off or other transaction involving a transfer of substantially all of the assets or common stock of either party hereto shall not be deemed an assign- ment. 5 GOVERNMENT AGENCY CUSTOMER AGREEMENT This Government Agency Agreement(this"Agreement")is entered into by and between Flock Group,Inc.with a place of business at 1170 Howell Mill Rd NW#210,Atlanta,GA 30318("Flock")and the police department or government agency identified in the signature block below("Agency")(each a"Party,"and together,the"Parties"). RECITALS WHEREAS,Flock offers a solution for automatic license plate detection through Flock's technology platform(the"Flock Ser- vice"),and upon detection,the Flock Service creates images and recordings of suspect vehicles("Footage")and can provide notifications to Agency upon the authorization from Non-Agency End User("Notifications"); WHEREAS,Agency desires to purchase,use and/or have installed access to the Flock Service in order to create,view,search and archive Footage and receive Notifications,including those from non-Agency users of the Flock System(where there is an investigative purpose)such as schools,neighborhood home owners associations,businesses,and individual users; WHEREAS,unless legally required,because Footage is stored for no longer than 30 days in compliance with Flock's rec- ords retention policy,Agency is responsible for extracting,downloading and archiving Footage from the Flock System on its own storage devices;and WHEREAS,Flock desires to provide Agency the Flock Service and any access thereto,subject to the terms and conditions of this Agreement,solely for the purpose of crime awareness and prevention by police departments and archiving for evidence gath- ering("Purpose"). 6 AGREEMENT NOW,THEREFORE,Flock and Agency agree as follows and further agree to incorporate the Recitals into this Agreement. 1. DEFINITIONS Certain capitalized terms,not otherwise defined herein.have the meanings set forth or cross-referenced in this Section 1. 1.1 "Authorized End User"shall mean any individual employees,agents,or contractors of Agency accessing or using the Services through the Web Interface,under the rights granted to Agency pursuant to this Agreement. 1.2"Agency Data"will mean the data,media and content provided by Agency through the Services.For the avoidance of doubt,the Agency Content will include the Footage and geolocation information and environmental data collected by sensors built into the Units. 1.3"Documentation"will mean text and/or graphical documentation,whether in electronic or printed format,that describe the features,functions and operation of the Services which are provided by Flock to Agency in accordance with the terms of this Agreement. 1.4"Embedded Software"will mean the software and/or firmware embedded or preinstalled on the Hardware. 1.5"Flock I?'will mean the Flock Services,the Documentation,the Hardware,the Embedded Software,the Installation Services,and any and all intellectual property therein or otherwise provided to Agency and/or its Authorized End Users in connection with the foregoing. 1.6"Footage"means still images and/or video captured by the Hardware in the course of and provided via the Services. 1.7"Hardware"shall mean the Flock Gate Cameras and any other physical elements that interact with the Embedded Soft- ware and the Web Interface to provide the Services.The term"Hardware"excludes the Embedded Software. 1.8"Installation Services"means the services provided by Flock regarding the installation,placements and configuration of the Hardware,pursuant to the Statement of Work attached hereto. 7 1.9"Flock Services"means the provision,via the Web Interface,of Flock's software application for automatic license plate detection,searching image records,and sharing Footage. 1.10"Non-Agency End User"means a Flock's non-Agency customer that has elected to give Agency access to its data in the Flock System for investigative purposes. 1.11 "Non-Agency End User Data"means the Footage,geolocation data,environmental data and/or Notifications of a Non- Agency End User for investigative purposes only. 1.12"Unit(s)"shall mean the Hardware together with the Embedded Software. 1.13 "Web Interface"means the website(s)or application(s)through which Agency and its Authorized End Users can access the Services in accordance with the terms of this Agreement. 1.14 "Aggregated data"means information that relates to a group or category of customers,from which individual custom- ers'identities have been removed,that is not linked or reasonably linkable to any customer,including via a device. 2. FLOCK SERVICES AND SUPPORT 2.1 Provision of Access. Subject to the terms of this Agreement,Flock hereby grants to Agency a non-exclusive,non-transfera- ble right to access the features and functions of the Flock Services via the Web Interface during the Service Term and No-Fee Term,solely for the Authorized End Users.The Footage will be available for Agency to access via the Web Interface for 30 days. Authorized End Users will be required to sign up for an account and select a password and username("User ID").Flock will also provide Agency the Documentation to be used in accessing and using the Flock Services.Agency shall be responsible for all acts and omissions of Authorized End Users,and any act or omission by an Authorized End User which, if undertaken by Agency,would constitute a breach of this Agreement,shall be deemed a breach of this Agreement by Agency.Agency shall un- dertake reasonable efforts to make all Authorized End Users aware of the provisions of this Agreement as applicable to such Au- thorized End User's use of the Flock Services and shall cause Authorized End Users to comply with such provisions.Flock may use the services of one or more third parties to deliver any part of the Flock Services, including without limitation using a third party to host the Web Interface which make the Flock Services available to Agency and Authorized End Users.Flock will pass- through any warranties that Flock receives from its then current third-party service provider to the extent that such warranties can 8 be provided to Agency.SUCH WARRANTIES,AS PROVIDED AS HONORED BY SUCH THIRD PARTIES,ARE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND FLOCK'S SOLE AND EXCLUSIVE LIABILITY WITH REGARD TO SUCH THIRD-PARTY SERVICES,INCLUDING WITHOUT LIMITATION HOSTING THE WEB INTERFACE. Agency agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Agency from time to time. 2.2 Embedded Software License.Subject to all terms of this Agreement,Flock grants Agency a limited,non-exclusive,non- transferable,non-sublicensable(except to the Authorized End Users),revocable right to use the Embedded Software as installed on the Hardware by Flock;in each case,solely as necessary for Agency to use the Flock Services. 2.3 Documentation License.Subject to the terms of this Agreement,Flock hereby grants to Agency a non-exclusive,nontrans- ferable right and license to use the Documentation during the Service Term for Agency's internal purposes in connection with its use of the Flock Services as contemplated herein. 2.4 Usage Restrictions.Agency will not,and will not permit any Authorized End Users to,(i)copy or duplicate any of the Flock IP;(ii)decompile,disassemble,reverse engineer or otherwise attempt to obtain or perceive the source code from which any soft- ware component of any of the Flock IP is compiled or interpreted,or apply any other process or procedure to derive the source code of any software included in the Flock IP,or attempt to do any of the foregoing,and Agency acknowledges that nothing in this Agreement will be construed to grant Agency any right to obtain or use such source code;(iii)modify,alter,tamper with or repair any of the Flock IP,or create any derivative product from any of the foregoing,or attempt to do any of the foregoing,ex- cept with the prior written consent of Flock;(vi)interfere or attempt to interfere in any manner with the functionality or proper working of any of the Flock IP;(v)remove,obscure,or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the Application IP;(vii)use the Flock Services for timesharing or service bureau purposes or other- wise for the benefit of a third party or any purpose other than the Purpose;or(viii)assign,sublicense,sell,resell,lease,rent or otherwise transfer or convey,or pledge as security or otherwise encumber,Agency's rights under Sections 2.1,2.2,or 2.3.Non- agency data may only be accessed for investigative purposes. 2.5 Retained Rights;Ownership.As between the Parties,subject to the rights granted in this Agreement,Flock and its licensors retain all right,title and interest in and to the Flock IP and its components,and Agency acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement.Agency further acknowledges that Flock retains the right to use the foregoing for any purpose in Flock's sole discretion.There are no implied rights. 2.6 Suspension.Notwithstanding anything to the contrary in this Agreement,Flock may temporarily suspend Agency's and any Authorized End User's access to any portion or all of the Flock IP if(i)Flock reasonably determines that(a)there is a threat or attack on any of the Flock IP;(b)Agency's or any Authorized End User's use of the Flock Service disrupts or poses a security risk to the Flock Service or any other customer or vendor of Flock;(c)Agency or any Authorized End User is/are using the Flock IP 9 for fraudulent or illegal activities;(d)Flock's provision of the Flock Services to Agency or any Authorized End User is prohibited by applicable law;or(e)any vendor of Flock has suspended or terminated Flock's access to or use of any third party services or products required to enable Agency to access the Flock(each such suspension,in accordance with this Section 2.6,a"Service Suspension"). Flock will make commercially reasonable efforts,circumstances permitting,to provide written notice of any Ser- vice Suspension to Agency(including notices sent to Flock's registered email address)and to provide updates regarding resump- tion of access to the Flock IP following any Service Suspension. Flock will use commercially reasonable efforts to resume provid- ing access to the Application Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Flock will have no liability for any damage, liabilities, losses(including any loss of data or profits)or any other consequences that Agency or any Authorized End User may incur as a result of a Service Suspension. 2.7 Installation Services. 2.7.1 Designated Locations. Prior to performing the physical installation of the Units, Flock shall advise Agency on the location and positioning of the Units for optimal license plate image capture, as conditions and location allow. While Flock will provide advice regarding the location of positioning of such Units,Agency will have the ultimate decision regarding the location,position and angle of the Units(each Unit location so designated by Agency,a"Designated Location"). Due to the fact that Agency selects the Designated Location, Flock shall have no liability to Agency resulting from any poor performance, functionality or Footage resulting from or otherwise relating to the Designated Locations. After an installation plan with Designated Locations and equip- ment has been agreed upon by both Flock and the Agency, any subsequent changes to the installation plan driven by Agency's request will incur a $250 charge in addition to any equipment charges. These changes include but are not limited to camera re- positioning,adjusting of camera mounting,re-angling,changes to heights of poles,and removing foliage. 2.7.2 Agency's Installation Obligations. Agency agrees to allow Flock and its agents reasonable access to the designated installa- tion locations at all reasonable times upon reasonable notice for the purpose of performing the installation work(together with the preceding sentence,the"Agency Installation Obligations"). It is understood that the Installation Fees do not include any permits or associated costs,any federal,state or local taxes including property, license,privilege, sales, use,excise,gross receipts or other similar taxes which may now or hereafter become applicable to,measured by or imposed upon or with respect to the installation of the Hardware, its use,or any other services performed in connection therewith and that Agency shall be solely responsible for the foregoing. Agency represents and warrants that it has all necessary right title and authority and hereby authorizes Flock to install the Hardware at the Designated Locations and to make any necessary inspections or tests in connection with such installation. 2.7.3 Flock's Installation Obligations. The Hardware shall be installed in a workmanlike manner in accordance with Flock's standard installation procedures, and the installation will be completed within a reasonable time from the time the Designated Locations are selected by Agency.Following the initial installation of the Hardware,Flock's obligation to perform installation work 10 shall cease; however, Flock will continue to monitor the performance of the Units. Agency understands and agrees that the Flock Services will not function without the Hardware. 2.7.4 Security Interest. The Hardware shall remain the personal property of Flock and will be removed upon the termination or expiration of this Agreement. Agency agrees to perform all acts which may be necessary to assure the retention of title of the Hardware by Flock. Should Agency default in any payment for the Flock Services or any part thereof or offer to sell or auction the Hardware, then Agency authorizes and empowers Flock to remove the Hardware or any part thereof. Such removal, if made by Flock, shall not be deemed a waiver of Flock's rights to any damages Flock may sustain as a result of Agency's default and Flock shall have the right to enforce any other legal remedy or right. 2.8 Hazardous Conditions.Unless otherwise stated in the Agreement,Flock's price for its services under this Agreement does not contemplate work in any areas that contain hazardous materials,or other hazardous conditions,including,without limit, asbestos. In the event any such hazardous materials are discovered in the designated locations in which Flock is to perform services under this Agreement,Flock shall have the right to cease work immediately in the area affected until such materials are removed or rendered harmless. Any additional expenses incurred by Flock as a result of the discovery or presence of haz- ardous material or hazardous conditions shall be the responsibility of Agency and shall be paid promptly upon billing. 2.9 Support Services.Subject to the payment of fees,Flock shall monitor the performance and functionality of Flock Services and may,from time to time,advise Agency on changes to the Flock Services,Installation Services,or the Designated Locations which may improve the performance or functionality of the Services or may improve the quality of the Footage.The work,its timing,and the fees payable relating to such work shall be agreed by the Parties prior to any alterations to or changes of the Services or the Designated Locations("Monitoring Services"). Subject to the terms hereof,Flock will provide Agency with reasonable technical and on-site support and maintenance services("On-Site Services")in-person or by email at hello@flock- safety.com. Flock will use commercially reasonable efforts to respond to requests for support. 3. AGENCY RESTRICTIONS AND RESPONSIBILITIES 3.1 Agency Obligations. Agency agrees to provide Flock with accurate,complete,and updated registration information.Agency may not select as its User ID a name that Agency does not have the right to use,or another person's name with the intent to im- personate that person.Agency may not transfer its account to anyone else without prior written permission of Flock.Agency will not share its account or password with anyone and must protect the security of its account and password. Agency is responsible 11 for any activity associated with its account.Agency shall be responsible for obtaining and maintaining any equipment and ancil- lary services needed to connect to,access or otherwise use the Services.Agency will,at its own expense,provide assistance to Flock,including,but not limited to,by means of access to,and use of,Agency facilities and Agency equipment,as well as by means of assistance from Agency personnel,to the limited extent any of the foregoing may be reasonably necessary to enable Flock to perform its obligations hereunder, including,without limitation,any obligations with respect to Support Services or any Installation Services. 3.2 Agency Representations and Warranties.Agency represents,covenants,and warrants that Agency will use the Services only in compliance with this Agreement and all applicable laws and regulations,including but not limited to any laws relating to the recording or sharing of video,photo,or audio content and retention thereof. 4. CONFIDENTIALITY; AGENCY DATA; NON- AGENCY DATA 4.1 Confidentiality. Each Party(the"Receiving Party")understands that the other Party(the"Disclosing Party")has disclosed or may disclose business,technical or financial information relating to the Disclosing Party's business(hereinafter referred to as "Proprietary Information"of the Disclosing Party). Proprietary Information of Flock is non-public information including but not limited to features,functionality,designs,user interfaces,trade secrets,intellectual property,business plans,marketing plans, works of authorship,hardware,customer lists and requirements,and performance of the Flock Services. Proprietary Information of Agency includes non-public Agency Data,Non-Agency End User Data,and data provided by Agency or a Non-Agency End User to Flock or collected by Flock via the Unit,including the Footage,to enable the provision of the Services.The Receiving Party shall not disclose,use,transmit, inform or make available to any entity,person or body any of the Proprietary Information, except as a necessary part of performing its obligations hereunder,and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Proprietary Information and the parties'respective rights therein,at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Proprietary Information of the other party to those em- ployees or agents who require access in order to perform hereunder. The Receiving Party agrees: (i)to take the same security pre- cautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own propri- etary information,but in no event will a party apply less than reasonable precautions to protect such Proprietary Information,and (ii)not to use(except in performance of the Services or as otherwise permitted herein)or divulge to any third person any such Proprietary Information. Flock's use of the Proprietary Information may include processing the Proprietary Information to send Agency Notifications or alerts,such as when a car exits Agency's neighborhood,or to analyze the data collected to identify mo- tion or other events. 12 The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can docu- ment(a)is or becomes generally available to the public,or(b)was in its possession or known by Receiving Party prior to receipt from the Disclosing Party,or(c)was rightfully disclosed to Receiving Party without restriction by a third party,or(d)was inde- pendently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any sub- poena,summons,judicial order or other judicial or governmental process,provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to obtain a protective order or otherwise oppose the disclosure.For clarity,Flock may access,use,preserve and/or disclose the Footage to law enforcement authorities,government officials,and/or third parties, if legally required to do so or if Flock has a good faith belief that such access,use,preservation or disclosure is reasonably neces- sary to:(a)comply with a legal process or request;(b)enforce this Agreement,including investigation of any potential violation thereof;(c)detect,prevent or otherwise address security,fraud or technical issues;or(d)protect the rights,property or safety of Flock,its users,a third party,or the public as required or permitted by law,including respond to an emergency situation.Flock may store deleted Footage in order to comply with certain legal obligations but such retained Footage will not be retrievable without a valid court order. 4.2 Agency and Non-Agency End User Data.As between Flock and Agency,all right,title and interest in the Agency Data and Non-Agency End User Data,belong to and are retained solely by Agency.Agency hereby grants to Flock a limited,nonexclu- sive,royalty-free,worldwide license to use the Agency Data and Non-Agency End User Data and perform all acts with respect to the Agency Data and Non-Agency End User Data as may be necessary for Flock to provide the Flock Services to Agency,in- cluding without limitation the Support Services set forth in Section 2.9 above.As between Flock and Agency,Agency is solely responsible for the accuracy,quality,integrity,legality,reliability,and appropriateness of all Agency Data and Non-Agency End User Data.As between Agency and Non-Agency End Users that have prescribed access of Footage to Agency,each of Agency and Non-Agency End Users will share all right,title and interest in the Non-Agency End User Data.This Agreement does not by itself make any Non-Agency End User Data the sole property or the Proprietary Information of Agency. 4.3 Feedback.If Agency provides any suggestions,ideas,enhancement requests,feedback,recommendations or other infor- mation relating to the subject matter hereunder,Agency hereby assigns(and will cause its agents and representatives to assign)to Flock all right,title and interest(including intellectual property rights)with respect to or resulting from any of the foregoing. 13 4.4 Aggregated Data.Notwithstanding anything in this Agreement to the contrary,Flock shall have the right to collect and ana- lyze data and other information relating to the provision,use and performance of various aspects of the Services and related sys- tems and technologies(including,without limitation,information concerning Agency Data and data derived therefrom).Agency acknowledges that Flock will be compiling anonymized and/or aggregated data based on Agency Data and Non-Agency End User Data input into the Services(the"Aggregated Data").Agency hereby grants Flock a non-exclusive,worldwide,perpetual, royalty-free right and license(during and after the Service Term hereof)to(i)use such Aggregated Data to improve and enhance the Services and for other development,diagnostic and corrective purposes in connection with the Services and other Flock of- ferings,and(ii)disclose the Agency Data and Non-Agency End User Data(both inclusive of any Footage)to enable law enforce- ment monitoring against law enforcement hotlists as well as provide Footage search access to law enforcement for investigative purposes only.No rights or licenses are granted except as expressly set forth herein. 5. PAYMENT OF FEES 5.1 Fees.Agency will pay Flock the first Usage Fee and the Installation Fee(the"Initial Fees")as set forth on the Order Form on or before the 7th day following the Effective Date of this Agreement.Flock is not obligated to commence the Installation Services unless and until the Initial Fees have been made and shall have no liability resulting from any delay related thereto. Agency shall pay the ongoing Usage Fees set forth on the Order Form with such Usage Fees due and payable thirty(30)days in advance of each Payment Period.All payments will be made by either ACH,check,or credit card. 5.2 Changes to Fees.Flock reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or any Renewal Term,upon sixty(60)days'notice prior to the end of such Initial Term or Renewal Term(as applicable)to Agency(which may be sent by email).If Agency believes that Flock has billed Agency incorrectly, Agency must contact Flock no later than sixty(60)days after the closing date on the first billing statement in which the error or problem appeared,in order to receive an adjustment or credit.Inquiries should be directed to Flock's customer support depart- ment.Agency acknowledges and agrees that a failure to contact Flock within this sixty(60)day period will serve as a waiver of any claim Agency may have had as a result of such billing error. 5.3 Invoicing,Late Fees;Taxes.Flock may choose to bill through an invoice,in which case,full payment for invoices issued in any given month must be received by Flock thirty(30)days after the mailing date of the invoice.Unpaid amounts are subject to a finance charge of 1.5%per month on any outstanding balance,or the maximum permitted by law,whichever is lower,plus all expenses of collection,and may result in immediate termination of Service.Agency shall be responsible for all taxes associated with Services other than U.S.taxes based on Flock's net income. 14 5.4 No-Fee Term Access.Subject to Flock's record retention policy,Flock offers complimentary access to the Flock System for 30 days("No Fee Term")to Agency when Non-Agency End Users intentionally prescribe access or judicial orders mandate access to Non-Agency End User Data.No hardware or installation services will be provided to Agency.No financial commit- ment by Agency is required to access the Flock Services or Footage.Should such access cause Flock to incur internal or out-of- pocket costs that are solely the result of the access,Flock reserves the right to invoice these costs to Agency under Section 5.3 and Agency agrees to pay them.For clarity,No-Fee Terms and Service Terms can occur simultaneously,and when a No-Fee Term overlaps with a Service Term,Agency agrees to pay the Initial Fees and Usage Fees payments according to Section 5.1. 6. TERM AND TERMINATION 6.1 Term.Subject to earlier termination as provided below,the initial term of this Agreement shall be for the period of time set forth on the Order Form(the"Initial Term").Following the Initial Term,this Agreement will automatically renew for succes- sive renewal terms of the length set forth on the Order Form(each,a"Renewal Term",and together with the Initial Term,the "Service Term")unless either parry gives the other parry notice of non-renewal at least thirty(30)days prior to the end of the then-current term. 6.2 Agency Satisfaction Guarantee.At any time during the agreed upon term,a customer not fully satisfied with the service or solution may self-elect to terminate their contract.Self-elected termination will result in a one-time fee of up to$500 per camera to cover equipment removal costs.Upon self-elected termination,a refund will be provided,pro-rated for any fees paid for the remaining Term length set forth previously.Self-termination of the contract by the customer will be effective immediately. Flock will remove all equipment at own convenience upon termination.Advance notice will be provided. 6.3 Termination.In the event of any material breach of this Agreement,the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty(30)days prior written notice to the breaching party;provided,however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day pe- riod. Either party may terminate this Agreement,without notice,(i)upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings,(ii)upon the other party's making an assignment for the benefit of creditors,or(iii)upon the other party's dissolution or ceasing to do business.Upon termination for Flock's breach,Flock will refund to Agency a pro- rata portion of the pre-paid Fees for Services not received due to such termination. 15 6.4 Effect of Termination.Upon any termination of the Service Term,Flock will collect all Units,delete all Agency Data, terminate Agency's right to access or use any Services,and all licenses granted by Flock hereunder will immediately cease. Agency shall ensure that Flock is granted access to collect all Units and shall ensure that Flock personnel does not encounter Hazardous Conditions in the collection of such units.Upon termination of this Agreement,Agency will immediately cease all use of Flock Services. 6.5 No-Fee Term.The initial No-Fee Term will extend,after entering into this Agreement,for 30 days from the date a Non- Agency End User grants access to their Footage and/or Notifications.In expectation of repeated non-continuous No-Fee Terms, Flock may in its sole discretion leave access open for Agency's Authorized End Users despite there not being any current Non- Agency End User authorizations.Such access and successive No-Fee Terms are deemed to be part of the No-Fee Term.Flock,in its sole discretion,can determine not to provide additional No-Fee Terms or can impose a price per No-Fee Term upon 30 days ' notice.Agency may terminate any No-Fee Term or access to future No-Fee Terms upon 30 days'notice. 6.6 Survival.The following Sections will survive termination:2.4,2.5,3,4,5(with respect to any accrued rights to payment), 6.5,7.4,8.1,8.2,8.3,8.4,9.1 and 10.5. 7. REMEDY; WARRANTY AND DISCLAIMER 7.1 Remedy.Upon a malfunction or failure of Hardware or Embedded Software(a"Defect"),Agency must first make commer- cially reasonable efforts to address the problem by contacting Flock's technical support as described in Section 2.9 above. If such efforts do not correct the Defect,Flock shall,or shall instruct one of its contractors to,in its sole discretion,repair or replace the Hardware or Embedded Software suffering from the Defect. Flock reserves the right to refuse or delay replacement or its choice of remedy for a Defect until after it has inspected and tested the affected Unit;provided that such inspection and test shall occur within 72 hours after Agency notifies the Flock of defect. Flock agrees to replace cameras at a fee according to the then- current Reinstall Policy(https://www.flocksafety.com/reinstall-fee-schedule).Customer shall not be required to replace subse- quently damaged or stolen units;however,Customer understands and agrees that functionality,including Footage,will be mate- rially affected due to such subsequently damaged or stolen units and that Flock will have no liability to Customer regarding such affected functionality nor shall the Fees owed be impacted. 7.2 Exclusions.Flock will not provide the remedy described in Section 7.1 above if any of the following exclusions apply:(a) misuse of the Hardware or Embedded Software in any manner,including operation of the Hardware or Embedded Software in any way that does not strictly comply with any applicable specifications,documentation,or other restrictions on use provided by Flock;(b)damage,alteration,or modification of the Hardware or Embedded Software in any way;or(c)combination of the Hardware or Embedded Software with software,hardware or other technology that was not expressly authorized by Flock. 16 7.3 Warranty.Flock shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Installation Services in a professional and workmanlike manner.Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance,either by Flock or by third-party providers,or because of other causes beyond Flock's reasonable control,but Flock shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. 7.4 Disclaimer.THE REMEDY DESCRIBED IN SECTION 7.1 ABOVE IS AGENCY'S SOLE REMEDY,AND FLOCK'S SOLE LIABILITY,WITH RESPECT TO DEFECTIVE HARDWARE AND/OR EMBEDDED SOFTWARE.THE FLOCK DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE;NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.EX- CEPT AS EXPRESSLY SET FORTH IN THIS SECTION AND THE SUPPLEMENTAL CONDITIONS ADDENDUM, EXCEPT AS SET FORTH IN THE SUPPLEMENTAL CONDITIONS ADDENDUM,THE SERVICES AND INSTALLA- TION SERVICES ARE PROVIDED"AS IS"AND FLOCK DISCLAIMS ALL WARRANTIES,EXPRESS OR IMPLIED, INCLUDING,BUT NOT LIMITED TO,IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 8. LIMITATION OF LIABILITY AND INDEMNITY 8.1 Limitation of Liability.NOTWITHSTANDING ANYTHING TO THE CONTRARY,FLOCK AND ITS SUPPLIERS(IN- CLUDING BUT NOT LIMITED TO ALL HARDWARE AND TECHNOLOGY SUPPLIERS),OFFICERS,AFFILIATES, REPRESENTATIVES,CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RE- SPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UN- DER ANY CONTRACT,NEGLIGENCE,STRICT LIABILITY,PRODUCT LIABILITY,OR OTHER THEORY:(A)FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY,INCOMPLETENESS OR CORRUPTION OF DATA OR FOOTAGE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS,SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS;(B)FOR ANY INDIRECT,EXEMPLARY,INCIDENTAL,SPECIAL OR CONSEQUENTIAL DAM- AGES;(C)FOR ANY MATTER BEYOND FLOCK'S ACTUAL KNOWLEDGE OR REASONABLE CONTROL INCLUD- ING REPEAT CRIMINAL ACTIVITY OR INABILITY TO CAPTURE FOOTAGE OR IDENTIFY AND/OR CORRELATE A LICENSE PLATE WITH THE FBI DATABASE;(D)FOR ANY PUBLIC DISCLOSURE OF PROPRIETARY INFOR- MATION MADE IN GOOD FAITH;OR(E)FOR ANY AMOUNTS THAT,TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS,EXCEED TWO TIMES THE AMOUNT OF FEES PAID AND/OR PAYABLE BY AGENCY TO FLOCK FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY,IN EACH CASE,WHETHER OR NOT FLOCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO MATTERS STATED IN THE SUPPLEMENTAL CONDITIONS ADDENDUM. IN THE EVENT OF AN EMERGENCY,AGENCY SHOULD CON- TACT 911 AND SHOULD NOT RELY ON THE SERVICES. 17 8.2 Additional No-Fee Term Requirements.IN NO EVENT SHALL FLOCK'S AGGREGATE LIABILITY,IF ANY,ARIS- ING OUT OF OR IN ANY WAY RELATED TO THE NO-FEE TERM EXCEED$100,WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT,TORT(INCLUDING NEGLIGENCE),PRODUCT LIABILITY OR OTHERWISE. Except for Flock's willful acts,Agency agrees to pay for Flock's attorneys'fees to defend Flock for any alleged or actual claims arising out of or in any way related to the No-Fee Term. 8.3 Responsibility.Each Party to this Agreement shall assume the responsibility and liability for the acts and omissions of its own employees,deputies,officers,or agents,in connection with the performance of their official duties under this Agreement. Each Party to this Agreement shall be liable(if at all)only for the torts of its own officers,agents,or employees that occur within the scope of their official duties.Agency will not pursue any claims or actions against Flock's suppliers. 8.4 Indemnity.Agency hereby agrees to indemnify and hold harmless Flock against any damages,losses,liabilities,settle- ments and expenses(including without limitation costs and attorneys'fees)in connection with any claim or action that arises from an alleged violation of Section 3.2,a breach of this Agreement,Agency's Installation Obligations,Agency's sharing of any data in connection with the Flock system,Flock employees or agent or Non-Agency End Users,or otherwise from Agency's use of the Services,Hardware and any Software,including any claim that such actions violate any applicable law or third party right.Although Flock has no obligation to monitor Agency's use of the Services,Flock may do so and may prohibit any use of the Services it believes may be(or alleged to be)in violation of the Section 3.2 or this Agreement. 9. RECORD RETENTION 9.1 Data Preservation.The Agency agrees to store Agency Data and Non-Agency End User Data in compliance with all appli- cable local,state and federal laws,regulations,policies and ordinances and their associated record retention schedules.As part of Agency's consideration for paid access and no-fee access to the Flock System,to the extent that Flock is required by local,state or federal law to store the Agency Data or the Non-Agency End User Data,Agency agrees to preserve and securely store this data on Flock's behalf so that Flock can delete the data from its servers and,should Flock be legally compelled by judicial or government order,Flock may retrieve the data from Agency upon demand. 10. MISCELLANEOUS 10.1 Severability.If any provision of this Agreement is found to be unenforceable or invalid,that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforcea- ble. 18 10.2 Assignment.This Agreement is not assignable,transferable or sublicensable by Agency except with Flock's prior written consent. Flock may transfer and assign any of its rights and obligations, in whole or in part,under this Agreement without consent. 10.3 Entire Agreement.This Agreement and the Order Form(s)are the complete and exclusive statement of the mutual under- standing of the parties and supersedes and cancels all previous written and oral agreements,communications and other under- standings relating to the subject matter of this Agreement,and that all waivers and modifications must be in a writing signed by both parties,except as otherwise provided herein.None of Agency's purchase orders,authorizations or similar documents will alter the terms of this Agreement,and any such conflicting terms are expressly rejected. 10.4 Relationship.No agency,partnership,joint venture,or employment is created as a result of this Agreement and Agency does not have any authority of any kind to bind Flock in any respect whatsoever. 10.5 Costs and Attorneys 'Fees. In any action or proceeding to enforce rights under this Agreement,the prevailing party will be entitled to recover costs and attorneys 'fees. 10.6 Governing Law;Venue.This Agreement shall be governed by the laws of the State of California without regard to its con- flict of laws provisions.The federal and state courts sitting in California will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.The parties agree that the United Na- tions Convention for the International Sale of Goods is excluded in its entirety from this Agreement. 10.7 Publicity.Flock has the right to reference and use Agency's name and trademarks and disclose the nature of the Ser- vices provided hereunder in each case in business and development and marketing efforts, including without limitation on Flock's website. 10.8 Export.Agency may not remove or export from the United States or allow the export or re-export of the Flock IP or any- thing related thereto,or any direct product thereof in violation of any restrictions, laws or regulations of the United States De- partment of Commerce,the United States Department of Treasury Office of Foreign Assets Control,or any other United States or foreign agency or authority. As defined in FAR section 2.101,the Services,the Hardware,the Embedded Software and Docu- mentation are"commercial items"and according to DFAR section 252.2277014(a)(I)and(5)are deemed to be"commercial computer software"and"commercial computer software documentation."Consistent with DFAR section 227.7202 and FAR section 12.212,any use,modification,reproduction,release,performance,display,or disclosure of such commercial software or commercial software documentation by the U.S.Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. 19 10.9 Headings.The headings are merely for organization and should not be construed as adding meaning to the Agreement or interpreting the associated Sections. 10.10 Counterparts.This Agreement may be executed in two or more counterparts,each of which shall be deemed an origi- nal,but all of which together shall constitute one and the same instrument. 10.11 Authority.Each of the below signers of this Agreement represent that they understand this Agreement and have the authority to sign on behalf of and bind the organizations and individuals they are representing. 10.12 Notices.All notices under this Agreement will be in writing and will be deemed to have been duly given when received,if personally delivered;when receipt is electronically confirmed,if transmitted by facsimile or e-mail;the day after it is sent, if sent for next day delivery by recognized overnight delivery service;and upon receipt,if sent by certified or registered mail,return receipt requested. 20 ftock safety EXHIBIT A INSURANCE REQUIREMENTS 1) Insurance. (1) Time for Compliance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. (2) Types of Insurance Required. As a condition precedent to the effectiveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agree- ment, the Consultant, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing policies do not meet the insurance requirements set forth herein, Consultant agrees to amend, supplement or endorse the policies to do so. (a) Commercial General Liability: Commercial General Liability Insurance which affords cov- erage at least as broad as Insurance Services Office "occurrence" form CG 0001, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contrac- tual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); or (3) containing any other exclusion(s) contrary to the terms or purposes of this Agreement. (b) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence. [***NOTE: If Consultant does not own any company vehicles or may not be able to purchase a Business Automobile Insurance Policy, the requirement may be satisfied by providing either of the following: (1) a Personal Automobile Liability policy for the Consultant's own ve- hicle stipulating "Automobile Liability Insurance with a limit of not less than $1,000,000 each accident"; or(2) a non-owned auto endorsement to the Commercial General Liability policy if Consultant uses vehicles of others (e.g., vehicles of employees). (c) Workers' Compensation: Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (d) Professional Liability (Errors & Omissions): Professional Liability insurance or Errors & Omissions insurance appropriate to Consultant's profession with limits of not less than $1,000,000. Covered professional services shall specifically include all work to be per- formed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting 21 period will be exercised for a period of at least three (3) years from termination or expira- tion of this Agreement. (3) Insurance Endorsements. Required insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies: (a) Commercial General Liability (i) Additional Insured: The City, its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement. i. Additional Insured Endorsements shall not(1) be restricted to"ongoing op- erations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Consultant; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial Gen- eral Liability insurance, Consultant shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (ii) Cancellation: Required insurance policies shall not be canceled or the coverage re- duced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (b) Automobile Liability: (c) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (4) Professional Liability (Errors & Omissions): (a) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (b) Contractual Liability Exclusion Deleted: This insurance shall include contractual liability applicable to this Agreement. The policy must"pay on behalf of" the insured and include a provision establishing the insurer's duty to defend. (5) Workers' Compensation: (a) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium. (b) Waiver of Subrogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City, its officials, officers, employees, agents, and volunteers. (6) Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self- insurance maintained by the City, its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisions. 22 (7) Waiver of Subrogation. All policies of Commercial General Liability and Automobile Liability insurance shall contain or be endorsed to waive subrogation against the City, its officials, officers, employees, agents, 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 the City, its officials, officers, employees, agents, and volunteers, and shall require similar written ex- press waivers and insurance clauses from each of its subconsultants. (8) Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as they would have been protected had the policy or policies not contained a deductible or self-insured retention. (9) Evidence of Insurance. The Consultant, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City, together with all endorsements affecting each policy. Required insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immediately so as to avoid a lapse in the required coverage, Consultant shall, within ten (10) days after receipt of written notice of such cancel- lation or reduction of coverage, file with the City evidence of insurance showing that the re- quired insurance has been reinstated or has been provided through another insurance com- pany or companies. (10) Failure to Maintain Coverage. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced imme- diately so as to avoid a lapse in the required coverage, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reim- bursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement effective upon notice. (11) Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. (12) Enforcement of Agreement Provisions (non estoppel). Consultant acknowledges and agrees that actual or alleged failure on the part of the City to inform Consultant of non-com- pliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder. (13) Requirements Not Limiting. Requirement of specific coverage or minimum limits con- tained in this Appendix are not intended as a limitation on coverage, limits, or other require- ment, or a waiver of any coverage normally provided by any insurance. (14) Insurance for Subconsultants. Consultant shall include all subconsultants engaged in any work for Consultant relating to this Agreement as additional insureds under the Consult- ant's policies, or the Consultant shall be responsible for causing subconsultants to purchase the appropriate insurance in compliance with the terms of these Insurance Requirements, including adding the City, its officials, officers, employees, agents, and volunteers as addi- tional insureds to the subconsultant's policies. All policies of Commercial General Liability 23 insurance provided by Consultant's subconsultants performing work relating to this Agree- ment shall be endorsed to name the City, its officials, officers, employees, agents and volun- teers as additional insureds using endorsement form ISO CG 20 38 04 13 or an endorsement providing equivalent coverage. Consultant shall not allow any subconsultant to commence work on any subcontract relating to this Agreement until it has received satisfactory evidence of subconsultant's compliance with all insurance requirements under this Agreement, to the extent applicable. The Consultant shall provide satisfactory evidence of compliance with this section upon request of the City. 24