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IPS GROUP, INC. (4)
INSURANCE ON FILE FEB WORK MAY PROCEED UNTIL INSURANCE EXPIRES I - 1°1-ti2 CLERK OF COUNCIL DATE: g 2022 c).ri0A(Su� ie, Ca36ysM� Z AGREEMENT TO PURCHASE PARKING TECHNOLOGY AND RELATED SERVICES A-2022-028 This Agreement To Purchase Parking Technology And Related Services ("Agreement') is made effective F(!.A, 15 , 167-7 (the "Effective Date"), by and between the City of Santa Ana, a municipal corporation (the "City"), and IPS GROUP, INC., a Pennsylvania corporation ("IPS"), with reference to the following: RECITALS A. City is a duly organized charter city and validly existing under the Constitution and laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City. B. IPS is a Pennsylvania corporation that is qualified to do business, and is doing business in the State of California. IPS markets and supports a variety of parking technologies, hardware, software and related services. C. IPS has duly performed prior work for the City regarding parking meters and related services, pursuant to Agreement #A-2014-119, entered into on May 20, 2014, and there are no known claims related to the existing contract, As this contract shall now replace any and all prior contract(s), and to prevent any doubt, the City waives any and all claims, which it has or may have against IPS arising out of or in connection with the Contractor's execution of the pr viously existing contract. enter D. City and IPS desire to into his Agreement for IPS to deliver and install its parking technology hardware (the "Equipment") and related software services (the "Services", and collectively "Equipment and Services") to the City upon the terms and conditions setforth below. The Equipment and Services are described in Attachments A (Proposal Letter dated August 19, 2021) and B (Pricing). Now, therefore, the parties agree as follows: TERMS AND CONDITIONS 1. Term of Agreement. 1.1. Initial Term. The term of the Agreement means the period from the Effective Date above and will be in effect for a period of five (5) years ("Initial Term"). 1.2. Option to Extend. City shall have the option to extend the term of the Agreement for two (2) additional one (1) year increments, for a total period not to exceed seven (7) years. City shall notify IPS of its intention to exercise the option to extend the Agreement at least ninety (90) days prior to the end of each such term. 2. IPS Services. 2.1. Scope of Services. IPS agrees to diligently undertake, perform, and complete all of the services described in Attachments A and B as directed by the City. In the case of any conflict, the Terms and Conditions section of this agreement shall supersede information contained in the Attachments or Exhibits contained herein. 3. City Services & Responsibilities. The City agrees to: 3.1. Make available to IPS any currently existing documents, data or Information required for the performance of this Agreement, including any material updates therein, 3.2. Designate a representative authorized to act on behalf of the City. 3.3. Keep, at Its own cost and expense, the Equipment in good repair, condition and working order, adhering to any requirements for preventative maintenance. 3.4. Notify IPS of any need for customer service support or warranty repair work and will coordinate the return process with IPS, 3.5. Be solely responsible for meter posts and housings, including keeping meter posts, keys locks and housings in good working order and in compliance with all applicable laws. 3.6. Comply with applicable national, state, and local laws and regulations in anyway relatingto the possession or use of the Equipment and Services. 3.7. Be fully responsible, at its own cost and expense, to provide and maintain a merchant account and associated merchant account services using the City designated third party provider. 4. Equipment Delivery, Installation and Acceptance. 4.1. IPS shall deliver new, fully -tested Equipment. No used or previously owned Equipment will be allowed unless otherwise agreed to in writing by the City. 4.2. Delivery and installation of all Equipment will take place during standard business hours. 4.3. Unless otherwise notified in writing, the Equipment shall be deemed accepted by the City and to its satisfaction no later than ten (10) business days following completed installation or thirty (30) days following delivery, whichever occurs first. 5. Compensation 5.1. The City will compensate IPS for the Equipment and Services, as set forth in Attachment B. The total sum to be expended during this Agreement, including any extension periods, shall not exceed $300,000, 5.2. City further agrees to pay to IPS the amounts specified in Attachment B on a Net 30 basis from the date of Invoice, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth herein that may reasonably be expected by City. 5.3, Payment for the Equipment shall be due and paid upon delivery of each batch or invoiced line item of Equipment to the City. Payment need not be made for equipment that fails to meet the standards of performance set forth herein that may reasonably be expected by City. 5.4. City agrees to promptly notify IPS in writing of any dispute with any invoice, and those invoices for which no such notification is made within 30 business days after receipt of the respective invoice shall be deemed accepted by the City. 5.5. Reserved. 5.6. All pricing excludes any taxes that may be applicable to the City. Any applicable taxes will be added to Invoices and will be paid by the City on submission of an invoice. Exemption from the payment of applicable taxes shall be provided by the City in writing, The City indemnifies IPS against any claim for payment of any such taxes. 6. Risk and Title. 6.1. IPS shall bear risk of loss of the Equipment, including any damage sustained during transportation to the delivery site. IPS will not perform any field installation or maintenance. City will ship meters to IPS for services, IPS will perform the work, and then IPS will send the meters back tothe City. Riskin the Equipment shall pass to City upon delivery back to the City after the work is completed by IPS, Transfer of title to Equipment shall only pass to City upon full payment forthe Equipment. 7. Warranties, 7.1. IPS shall provide a limited 12-month warranty on the Equipment as described In Attachment B, IPS Limited Warranty. Extended warranties are available for an additional fee. 7.2. IPS shall provide technical support via telephone Mondays through Fridays from 8:00 AM to 4:00 PM PST. IPS can provide on -site services at the Clty's request. Lead times and costs for such services will be provided at the time of the request. IPS shall ensure the availability of current manuals and shall provide all manuals for any future upgraded or new services to the City. 7.3. Wireless Coverage & Longevity: IPS does not operate a mobile wireless network, but relies on third party carriers for this service. City agrees that it is not a 3`d party beneficiary from any agreements between IPS and its carrier partners, and as there is no direct contract between the City and the carrier for this agreement, the wireless carrier shall have no liability of any kind created by this Agreement. Carriers from time to time may change coverage areas, wireless technology platforms or make other network changes that are not within the control of IPS. During the term of this contract, IPS shall provide the Citythe ability to upgrade or change carriers as needed at the prices contained herein or at such prices as may be agreed. Any such change or upgrades shall be at the sole cost and discretion of the City. 7.4. IPS warrants that the software Services will substantially conform to the applicable scope of work. IPS does not warrant that the software Services will operate uninterrupted or error -free, IPS will use commercially reasonable efforts to deliver to the City software Services free from any viruses, programs, or programming devices designed to modify, delete, damage or disable the software Services or City data. 7.5. City warrantsthat it shall not share usernames or passwords to allow any V party, including but not limited to consultants, agents, or any other individuals, to gain access to Equipment and Services of any kind without the written permission of IPS. City further agrees to not do anything that could potentially compromise the security of IPS Equipment and Services or use IPS Equipment and Services in any manner which could violate local, provincial, state or federal law. 7.6. THE WARRANTIES CONTAINED IN THE AGREEMENT DOCUMENTS ARE IPS'S SOLE AND EXCLUSIVE WARRANTIES. IPS AND ITS 3ao PARTY SUPPLIERS PROVIDE SOFTWARE SERVICES "AS IS". THE EXTENT OF IPS'S LIABILITY FOR A WARRANTY CLAIM IS LIMITED TO THE REPAIR OR REPLACEMENT OF THE DEFECTIVE EQUIPMENT OR DEFECTIVE SOFTWARE SERVICE. IPS DOES NOT PROVIDE ANY WARRANTY OF ANY KIND WITH REGARDS TO 3A0 PARTY EQUIPMENT, WIRELESS COVERAGE OR SOFTWARE SERVICES, WHETHER SUPPLIER IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE. IPS AND ITS 3Rtl PARTY SUPPLIERS AFFIRMATIVELY EXCLUDES ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE EQUIPMENT AND/OR SERVICES PROVIDED INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT IPS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) WHETHER ARISING BY LAW OR BY REASON OF CUSTOM OF THE TRADE, 7.7. The provisions of this Section will survive expiration or termination of this Agreement. 8. Intellectual Property and Ownership. 8.1. IPS represents and warrants that it owns or has acquired all requisite rights and licenses to use all intellectual property embodied, practiced or employed in IPS Equipment and Services being used by the City. 8.2. IPS hereby grants the City, including its departments, commissioners, officials, officers, employees, consultants, and agents (collectively, "City") all the rights and licenses required to use IPS Equipment and Services. Such rights and licenses are limited, non -assignable, non -transferable and non-exclusive, and solely for the City's internal use for the specific purposes of this Agreement. 8.3. All pre-existing and independently developed intellectual property (including copyrights), and any derivation thereof, including but not limited to designs, models, Inventions, processes, methodologies, software, associated documentation, software upgrades, modifications and customizations, copyrightable material and other tangible and intangible materials authored, and combinations thereof, prepared, created, made, delivered, conceived or reduced to practice, in whole or in part, by the IPS and provided to the City ("Pre -Existing and Independently Developed IP") will at all times remain the sole and exclusive property of IPS and/or its vendors. Nothing in this Section or elsewhere in this Agreement shall be construed as assigning, selling, conveying, or otherwise transferring any ownership rights or title in IPS's Pre -Existing and Independently Developed IP. 8.4. IPS understands the nature of public information and the requirement for the City to adhere to all rules and laws that apply to public information, such as the Freedom of Information Act, Public Records Act(s), and the like. The City agrees that it shall not knowingly agree, whether directly or indirectly, sell, loan or rent any equipment or allow any third party to gain access to equipment, software, back -office software, reporting or documentation provided by IPS for any purpose, including but not limited to the purposes of inspection, benchmarking or reverse engineering or evaluation without the prior written consent of IPS, or as mandated by applicable law or any binding order of Court. 8.5. The provisions of this Section will survive expiration or termination of this Agreement. 9. Confidential Information. 9.1. "Confidential Information" shall mean, without limitation, all strategic information, business plans, data, sketches, drawings, pictures, business records, customers lists, marketing plans, policies and procedures, pricing, product information, drawings, source code, API documentation, designs, specifications, information relating to processes, technologies, methodologies, concepts or theory and any or all other information which may be disclosed by the disclosing party to the recipient that may reasonably be considered to be proprietary and non-public data, including correspondence both written and verbal and identified as "confidential". 9.2. The recipient acknowledges the competitive value and confidential nature of the Confidential Information and the damages that would result to the disclosing party if any such Information were disclosed or misused, therefore, recipient will keep Confidential Information protected, utilizing the same level of care and discretion that is used by the recipient to protect similar sensitive Information, and shall not be disclosed by the recipient in any manner whatsoever. 9.3. The recipient shall have no non -disclosure obligation hereunder with respect to any Confidential Information which (A) has been legally made public, other than by acts of the recipient in violation of this Agreement or (8) was or becomes independently known or available to the recipient, on a non -confidential basis, from a source other than the disclosing party and which is not subject to any restrictions or disclosure or (C) is independently developed by the receiving party, such independent development being reasonably documented or (D) is disclosed with written permission by the disclosing party or (E) is obligated to be produced where required by a court order or (F) is obligated to be produced as required by law, including the Freedom of Information Act, Public Records Act(s), and the like. 9.4. The recipient shall notify the disclosing party promptly of any loss, misuse or misappropriation of the Confidential Information. Recipient agrees that no license, either expressed or implied, is hereby created or granted to recipient by disclosing party to use any of the Confidential Information. All rights and title to the Confidential Information shall remain in the disclosing party. 10. Dispute Resolution. 10.1. If any dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree to meet and confer and negotiate in good faith prior to initiating a suit for damages. However, this Section does not prohibit the filing of a lawsuit totoll the running of a statute of limitations orto seek injunctive relief. Either party may make a written request for a meeting between representatives of each party within 14 calendar days after receipt of the request or such later period as agreed by the parties. Each party shall include, at a minimum and to the extent possible, one senior level individual with decision making authority regarding the dispute. The purpose of this and any subsequent meeting is to attempt in good faith to negotiate a resolution of the dispute. If, within 30 calendar days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they will proceed directly to mediation via a mutually agreed third party, with the cost of mediation equally shared between the City and IPS or as otherwise agreed to between the parties. Negotiation may be waived by a written agreement signed by both parties, in which event the parties may proceed directly to mediation as described above. 11. Termination of Agreement. 11.1. If either the City or IPS violates any material term or condition of this Agreement or fails to fulfill In a timely and proper manner its obligations underthis Agreement, then the aggrieved party may give the other party (the `responsible party") written notice of such failure or violation. The responsible party will correct the violation or failure within 30 calendar days or as otherwise mutually agreed. If the failure or violation is not corrected, this Agreement may be terminated immediately by written notice from the aggrieved party. The option to terminate will be at the sole discretion of the aggrieved party. 12. Insurance. IPS shall procure and maintain for the duration of the contract insurance against claimsfor security breaches, system failures, injuries to persons, damages to software, or damages to property Including computer equipment) which may arise from or in connection with the performance of the work hereunder by IPS, its agents, representatives, or employees, IPS shall procure and maintain for the duration of the contract Insurance claims arising out of their services and including, but not limited to loss, damage, theft or other misuse of data, invasion of privacy and breach of data. a. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall beat least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGI, on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (150 CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit: 2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if IPS has no owned autos, Code 8 (hired) and 9 (non -owned), with limit no less than $1,000,000 per accident for bodily injury and property damage. (Not required If IPS does not require an automobile to perform services.) 3. Workers' Compensation and Employer's Liability Insurance: workers' compensation insurance as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. (Not required if IPS provides written verification It has no employees.) 4. Cyber Liability Insurance: Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by IPS in this agreement and shall include, but not be limited to, claims Involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, invasion of privacy violations, Information theft, damage to or destruction of electronic Information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses. 5. Technology Professional Liability Errors & Omissions: Technology Professional Liability Errors and Omissions Insurance appropriate to IPS's profession and work hereunder, with limits not less than $2,000,000 per occurrence. Coverage shall be sufficiently broad to respond to the duties and obligations as Is undertaken by IPS in this agreement and shall Include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, Invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses. (a) The Policy shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or Information "property" of the City in the care, custody, or control of the IPS. If not covered under IPS's liability policy, such "property" coverage of the City may be endorsed onto IPS's Cyber Liability Policy as covered property. 6. If IPS maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by IPS. Any available Insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. b. other Insurance Provisions -- The insurance policies are to contain, or be endorsed to contain, the following provisions: 1. Additional Insured Status: The City, Its officers, officials, employees, and volunteers are to be covered as additional Insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of IPS including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to IPS's insurance (at least as broad as ISO Form CG 20 10 1185 or both CG 2010, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used). Please note, if there Is an Insured vs. insured exclusion on IPS's policy, My will carefully review with IPS and their insurance carrier on whether being added as an additional insured onto IPS's policy removes City's ability to file suit against IPS and draw upon the policy should final adjudication in a lawsuit state that IPS shall pay damages to City. 2. Primary Coverage: For any claims related to this contract, IPS's insurance coverage shall be primary. Coverage for commercial liability shall be at least as broad as ISO CG 20 010413 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of IPS's insurance and shall not contribute with it. 3. Notice of Cancellation: Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the City. 4. Walverof Subrogation: IPS hereby grants to City a waiver of any right to subrogation which any insurer of IPS may acquire against the City by virtue of the payment of any loss under such insurance. IPS agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. S. Self -Insured Retentions: Self -insured retentions must be declared to and approved by the City. The City may require IPS to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named Insured or City. 6. Acceptability of Insurers: Insurance is to he placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A-:VII, unless otherwise acceptable to the City. 7. Claims Made Policies: If any of the required policies provide coverage on a claims -made basis: 1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the contract effective date, IPS must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. 8. Verification of Coverage: IPS shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive IPS's obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time, 9. Subcontractors: IPS shall require and verify that all subcontractors maintain Insurance meeting all the requirements stated herein, and IPS shall ensure that City is an additional Insured on insurance required from subcontractors, 10. special Risks or Circumstances: City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. 13. Indemnification and Limits of Liability 13.1. IPS agrees to defend with counsel reasonably acceptable to the City and Indemnify City, its elected and appointed officials, officers, agents, employees, contractors and agents (collectively, the 'Indemnified Parties") from and against losses, claims, expenses (including, but not limited to, reasonable attorneys' fees), costs, liabilities or damages (collectively, "Losses") arising from IPS's breach of its obligations under this Agreement, arising from IPS's acts or omissions, for any Losses incurred by or asserted against any one or more or all of the Indemnified Parties by reason of damage to property or injury to, or death of, any person, caused by the acts, omissions, or negligence of IPS, its employees, agents or contractors. IPS shall not be responsible for any Losses attributable to acts, omissions, or negligence of the Indemnified Parties, including misuse or abuse of IPS Equipment and Services, nor for any Losses arising directly or Indirectly caused by acts of vandalism. 13.2.IPS represents and warrants that any products or services provided under this Agreement are either original, or not encumbered, and do not knowingly infringe upon the copyright, trademark, patent or other intellectual property rights of any third party or are in the public domain. If any products or services associated with this Agreement provided hereunder become the subject of a claim, suit or allegation of copyright, trademark or patent infringement, IPS agrees to indemnify, defend, and hold harmless the City, its officers, employees and agents from and against any and all claims, actions, costs, judgments or damages, of any type, alleging or threatening that any products or services provided under this contract infringe the copyright, trademark, patent or other Intellectual property, 13.3, Notwithstanding the foregoing, this indemnification shall not apply to claims made by third parties in instances in which (a) IPS simply followed the directions or instructions provided by City; (b) City changed, modified or altered the services rendered or tasks performed by IPS such that, absent City's actions, no such claims would have been brought against IPS and/or City; or (c) the claims asserted by a third party derive from the combination of technology and/or intellectual property of IPS when used with City's owned or licensed technology and/or intellectual property such that, absent such combination, no such claims could have independently been brought by or against IPS. 13.4. In order for City to obtain the indemnification from IPS specified herein, City must: (a) notify IPS in writing of the claims for which indemnification is sought; (b) provide IPS with copies of all pleadings, writings and documents pertaining to such claim; (c) permit IPS to control the defense of such claim and all settlement discussions in regards to resolving such claim; and (d) provide reasonable cooperation to IPS in regards to the litigation or negotiation of a resolution of such claim. Notwithstanding the foregoing sentence, IPS will not enter into any settlement without City's prior written consent, unless all third party claims against City are released without any further liability on City's part. This paragraph shall survive the termination or expiration of this Agreement. 13.5. Nothing in this Agreement shall constitute any form of real or implied revenue guarantee by IPS. 13.6. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENTTOTHE CONTRARY, IN NO EVENTSHALL EITHER PARTY BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, ANTICIPATED RENVUES OR OTHER MONETARY LOSS, ARISING OUT OF OR RELATED TO THIS AGREEMENT AND ANY ACTIONS OR OMISSIONS WITH RESPECT THERETO, WHETHER OR NOT ANY SUCH MATTERS OR CAUSES ARE WITHIN A PARTY'S CONTROL OR DUE TO NEGLIGENCE OR OTHER FAULT ON THE PART OF A PARTY, ITS AGENTS, AFFILIATES, EMPLOYEES OR OTHER REPRESENTATIVES, AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN TORT, CONTRACT, BREACH OF WARRANTY OR OTHERWISE. WITH THE EXCEPTION FOR INTELLECTUAL PROPERTY CLAIMS, THE TOTAL CUMMULATIVE LIABILITY INCURRED BY IPS IN CONNECTION WITH THIS AGREEMENT SHALL BE SOLELY LIMITED TO THE AMOUNT OF THE INSURARABLE LIMITS PROVIDED BY IPS. 13.7. CUSTOMER AGREES THAT IPS SHALL NOT BE LIABLE FOR ANY LOSS, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, ANTICIPATED RENVUES OR OTHER MONETARY LOSS, ARISING OUT OF OR RELATED TO THIS AGREEMENT AND RESULTING FROM INTERRUPTION OF OR OTHER DEFICIENCIES IN WIRELESS OR INTERNET SERVICE, WHETHER OR NOT ANY SUCH MATTERS OR CAUSES ARE WITHIN A PARTY'S CONTROL, AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN TORT, CONTRACT, BREACH OF WARRANTY OR OTHERWISE. 13.8. Both Parties acknowledge that the Limitations of Liability setforth above are fundamental elements of this Agreement, without which IPS would not have entered into this Agreement. 14. Liens and Taxes. 14.1. City shall keep the Equipment free and clear of all levies, liens, and encumbrances, except those created by this Agreement. City shall pay, when due, all charges and taxes (local, state, and federal), which may now or hereafter be imposed in conjunction with this Agreement. 15. Notices. 15A. All notices under this Agreement must be In writing, shall refer to the title and effective date of this Agreement, and shall be sufficient if given personally, sent and confirmed electronically, or mailed certified, return receipt requested, postage prepaid, and at the address hereinafter set forth or to such address as such partymay provlde in writing from time to time. Any such notice will be deemed to have been received five days subsequent to mailing, Notices shall be sent to the following addresses: IPS: To City: IPS Group, Inc. 7737 Kenamar Court San Diego, CA 92121 Attn: Chad Randall chad.randall@lpsgroupinc.com tel: 858-4040-0607 Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax: 714- 647-6956 With courtesy copies to: Executive Director, Community Development Agency City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, California 92702 Fax:714-647-6549 16. Relationship of the Parties. 16.1. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association between the parties, and both parties shall be and remain independent entities. Neither party has the right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever, except as otherwise provided in this Agreement. 17. Assignment. 17.1. Should the City enter Into an agreement with a third party for parking operations during the term of this Agreement, IPS shall provide that operator the same rights, terms, and conditions as Included in this Agreement. Such assignment shall not be effective unless and until the City has provided notice to the IPS of such assignment, and any such third party will be required to adhere to all terms and conditions contained herein. 17.2, IPS may not assign, hypothecate or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City, which shall not be unreasonably withheld. 18. General Provisions. 18.1. Waiver. A waiver of any breach of this Agreement shall not be deemed a waiver of any subsequent breach of the same or any other term, covenant or condition of this Agreement, No delay or fa ilure on the part of either party to Insist on compliance with any provision of this Agreement shall constitute a waiver of such party's right to enforce such provision, no matter the length of the delay. In the case of any granted waiver by the consenting Party, which must be provided in writing, such waiver shall not constitute a waiver of the same obligation or any other obligation under this Agreement. 18.2. Documentation. IPS shall provide the City with any required documentation to substantiate our ability to conduct business and shall also provide security documentation related to our credit card processing services, including the Attestation of Compliance (ACC), upon request. The City acknowledges that the security documents provided by IPS shall be considered Confidential documents and shall be subject to the terms of section 9 above. 18.3. Modification or Amendment. No oral modifications shall be effective and nothing shall be deemed as a modification of this Agreement unless provided in writing and signed by both Parties. 18.4. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respectto the subject matter hereof. Understandings, agreements, representations or warranties not contained In this Agreement, or as written amendment hereto, shall not be binding on either party. Except as provided herein, no alteration of any terms, conditions, delivery, price, quality or specifications of this Agreement shall be binding on either party without the written consent of both parties. 18.5.Injunctive Relief. The parties agree that a breach of the obligations in Section 8 ("Intellectual Property and Ownership") and Section 9 ("Confidential Information") may cause irreparable harm to the affected party, the amount of which would be Impossible to ascertain, and that there is no adequate remedy at law. Notwithstanding the provisions of Section 10 ("Dispute Resolution"), and in addition to any other rights and remedies it may have, the affected party shall have the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened breach and to specific per- formance of any provision of this Agreement, and both parties agree that no bond or other security shall be required In obtaining such equitable relief. 18.6. Integration. This Agreement may be executed in multiple counterparts each of which shall be deemed an original, but all of such taken together shall constitute only one Agreement, superseding all prior understandings, oral or written; and it is expressly understood and that this Agreement does not obligate either partyto enter into any other or further agreements. 18.7. Governing law. This Agreement shall not be construed against either party regardless of which party drafted it. This Agreement shall be construed and enforced according to the laws of the State of California, without regards to conflict -of -laws principles, and all local laws, ordinances, rules, and regulations. 18.8. Venue and Jurisdiction. The City and IPS agree that the venue shall be in Orange County, California. Any litigation arising out of this Agreement may only be brought in either the United States District Court, Central District of California, Southern Division, or the Superior Court of California, County of Orange, as appropriate. The parties agree thatvenue exists in either court, and each party expressly waives any right to transfer to another venue. The parties further agree that either court will have personal jurisdiction over the parties to this Agreement. 18.9.Attorney's Fees. If any suit, action, arbitration or other proceeding is instituted upon this Agreement or to enforce rights, judgments or otherwise pursue, defend or litigate issues, or any other controversy arises from this Agreement, the prevailing party shall be entitled to recover from the other party and the other party agrees to pay the prevailing party, in addition to costs and disbursements allowed by law, such sum as the court, arbitrator or other adjudicator may adjudge reasonable as an attorney's fee in such suit, action, arbitration or other proceeding, and in any appeal. Such sum shall include an amount estimated by the court, arbitrator or adjudicator, as the reasonable costs and fees to be incurred in collecting any monetary judgment or award or otherwise enforcing each award, order, judgment or decree entered in such suit, action or other proceeding. 18.10. Force Majeure. if any party is prevented from performing Its obligations stated in this Agreement by any event not within the reasonable control of that party, including, but not limited to, acts of God, war, civil disturbance, insurrection, civil commotion, destruction of production facilities or materials by earthquake, fire, flood or storm, labor disturbances including strikes or lockouts or epidemic, and failures of public utilities (such as Internet, cellular network, and electricity), it shall not be in default in the performance of its obligations stated in this Agreement. Provided, however, any party delayed by such an event shall request an extension of time to perform its obligations stated in this Agreement by notifying the party to which it is obligated within ten days following the event. If the notified party agrees that the event was the cause of the delay, the time to perform the obligations stated in this Agreement shall be extended bythe number of days of delay caused by the event. If the required notice is not given by the delayed party, no time extension shall be granted. If any event of force majeure exists for a continuous period of more than 120 days, then either party shall be entitles to terminate this Agreement without being liable for any claim from the other party. 18.11. Severabflity. If any provision in this Agreement subsequently is determined to be invalid, illegal or unenforceable, that determination shall not affect the validity, legality or enforceability of the remaining provisions stated in any section or sub -section of this Agreement unless that effect is made impossible by the absence of the omitted provision. 18,12, Authorization. Both parties represent and warrant that the person executing this Agreement on behalf of each party is an authorized agent who has actual authority to bind each party to each and every term, condition, and obligation of this Agreement and that all requirements of each party have been fulfilled to provide such actual authority. 18,13. Determination. Notwithstanding anything to the contrary, should either Party be required to make any determination In terms of this Contract, such determination shall be made in a reasonable and objective manner. 18.14. Binding Document. The City and IPS each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto in respect to all covenants, conditions, and obligations contained in the Agreement. 18.15. Section Headings. All section headings in this Agreement are for the convenience of reference and are not intended to define or limit the scope of any provision of this Agreement. 18.16. Survival of Provisions and Obligations. Any provision of this Agreement, which by its nature must be exercised after termination of this Agreement, will survive termination and remain effective for a reasonable time. Any obligation that accrued prior to termination of this Agreement will survive termination of this Agreement. SIGNATURE PAGES WILL FOLLOW In witness whereof, the parties have caused this Agreement to be executed the day and year first above written. ATTEST: Daisy Gomez City Clerk -- APPROVED AS TO FORM: /4�L- Ryan Ho e Assist t City Attorney CITY OF SANTAANA, a municipal corporation By: Kristine Ridge City Manager FOR APPROVAL: Steven A. Mendoza Community Development Executive Director IPS GROUP, INC., a Pennsylvania corporation By: CHAD P. RANDALL Chief Operating Officer ATTACHMENT A PROPOSAL LETTER DATED AUGUST 19, 2021 ATTACHMENT A Julie Castro -Cardenas Economic Development Specialist II City of Santa Ana Community Development Agency Date: August 19, 2021 Re: IPS 4G Modem Upgrade Dear Julie, 7737 Kenamar Court San Diego, CA 92121 �I • 1 877 630 6638 ipsgroup,com As wireless carriers are planning to sunset older networks in favor of newer 4G and 5G technologies, IPS wants to give you the latest information on 2G/3G network longevity based on the information available today. VERIZON Verizon Wireless has provided a written commitment to IPS that Verizon Wireless will continue to operate and maintain our existing CDMA (2G) network until the end of 2022. T-MOBILE T-Mobile has stated that they intend to sunset their 3G network starting as early as January 2021, with no further definition on exact time orthe schedule of affected geographic markets. However, all IPS T-Mobile 3G modems also support 2G, which means that if 3G service Is not available, the modem will use the available T-Mobile 2G network when possible. While there is not yet a firm commitment with regards to T-Mobile 2G longevity, we believe that 20 is likely to continue to be available until the end of 2021, and perhaps longer. However, we do not have a firm commitment in writing at this time, although we have requested it. To provide our customers with peace -of -mind, IPS can offer our clients with 4G LTE upgrades for older 2G/3G wireless systems and/or offer new products which come standard with 4G LTE wireless technology. Today, IPS operates the largest 4G LTE install base in the world for parking meter products. Many existing customers nationwide are actively making plans to upgrade their systems. The City of Santa Ana currently has 593 meters that are eligible for upgrade to 4G modems: T-Mobile 434 $ 185.00 $ 20.00 $ 205.00 $ 88,970.00 Verizon 159 5 185.00 $ 20.00 5 205.00 8 32.595.00 to RMA meters at time of upgrade for additional $95. City of Sant Ana From IPS Group Inc. Page 1 of 2 7737 Kenamar Court San Diego, CA 92121 1 877 630 6638 • ipsgroup.com� We can supply these upgrades shortly after you may elect to purchase the upgrades and can do this at times/intervals that ensure that there is no loss of revenue for the City. This will ensure the longevity of the City's fleet and further ensure that the City is not obliged to spend additional capital on its parking assets for many years to come. As IPS is the manufacturer of the MS"^ meter, IPS is the only company that can upgrade your 4G modems. This is a proprietary product designed and manufactured solely for IPS meter technology. We await your decision. If you need anything further from us to assist you in moving forward please do not hesitate to contact us. Respectfully, Chad P Randall, C00— IPS Group Inc. City of Sant Ana From IPS Group Inc. Page 2 of 2 ATTACHMENT B PRICING ATTACHMENT B City of Santa Ana (COSA) has approximately 575 IPS Smart Meters that are in need of a modem upgrade because they currently have a 2G modem in which Verizon and T-Mobile will no longer be able to support as of December 2022. In order to keep the Smart Meters functioning properly, a modem upgrade is needed to 4G before December 2022, COSA has the option to upgrade the Smart Meters at the price per unit listed below. As an additional option, COSA may opt in to a new warranty option based on the terms and prices listed below. MIC5 Single -Space 4G Modem Upgrade Capitol Cost "Extended warranties are only available on items that undergo RMA Repair Service. "Warranty starts on date RMA Repair Service is completed. COSA has the option to purchase sensors at any point throughout the duration of the term of this agreement. Capital and Ongoing Costs Page 1 of 9 *COSA has the option to remain at the existing license fee as listed in Option 1 or change to Option 2 at any point throughout the duration of this agreement. Management System/Base Data Fee $3.50 Optional: Real Time Reporting Fee $2.75 Note: This pricing Is FOR, IPS Group, San Diego, CA. Sales taxes and shipping charges will be added to the final invoice. IPS shall have the right to adjust Agreement pricing due to increases In Inflation as published by the US Bureau of Labor StatisticsforAll Items Consumer Price Index forAll Urban Consumers (CPI-U) for the U.S. City Average compounded annually. Spare Parts COSA has the option to purchase spare parts as needed based on the price list as show below. COSA and IPS may negotiate competitive pricing for bulk orders as needed/requested. Single Space Electronic Meter Mechanism $495.00 Card Entry Keypad Assy $55.00 Hybrid Card Reader $52.00 Coin Validator $75.00 Complete Top Cover (with Lexan insert) $75.00 Lexan for Top Cover $25.00 Coin Entry Slot $2.00 M5 Battery Pack (H3) $35.00 MS Battery Pack (H5) (available on the 147/247 models only) $45.00 Solar Panel Communications Board $185.00 Main Board $185.00 Display Board $95.00 Display Board with NFC $140.00 BLE Beacon Upgrade $65.00 RFID Tag $10.00 MK5 Batter Charger (daisy chain charging unit) $125.00 Card Reader Cleaning Card featuring Waffletechnologypn (40) per box $54.00 IPS vehicle detection sensor $295.00 Replacement per D-cell) $20,00Battery Page 2 of 9 Note: This pricing is FOR, IPS Group, San Diego, CA. Sales taxes and shipping charges will be added to the final invoice. IPS shall have the right to adjustAgreement pricing due to increases in Inflation as published by the US Bureau of Labor Statistics forAll Items Consumer Price Index forAll Urban Consumers CCPI-U) for the U.S. City Average compounded annually. COSA has the option to purchase the following equipment as needed throughout the duration of this agreement. Note: This prichrg Is FOB, IPS Group, San Diego, CA. Sales taxes and shipping charges will be added to the final invoice. IPS shall have the right to adjust Agreement pricing due to increases In Inflation as published by the US Bureau of Labor Statistics for All Items Consumer Price Index forAll Urban Consumers (CPI-U) for the U.S. City Average compounded annually. Page 3 of 9 Spare Parts Standard Card Reader Assembly $129.00 $149.00 AC power upgrade kit $150.00 $150.00 Coin Validator Assembly $75.00 $95.00 Bill Note Acceptor Assembly (with 600 note stacker)* $1,250A0 $1,250.00 Additional 600 note stacker cartridge* $230.00 $230.00 Solar Panel Replacement Kit $795.00 $895.00 Main Operating Board $995,00 $995.00 4G wireless modem assembly $250.00 $250.00 LCD Display only (monochrome) $295.00 n/a LCD Display only (color) n/a 1,100.00 Armored Display Glass $125.00 $125.00 Thermal Printer $795.00 $795.00 4-key Horizontal Keypad $69,00 $69.00 4-key Horizontal Keypad $69.00 n/a 4-key Vertical Keypad $69.00 n/a 6-key Horizontal Keypad $75.00 $75.00 Pay -by -Space Keypad Assembly $195,00 $195.00 Pay -by -Plate Alphanumeric Keypad Assembly $225.00 $225.00 Coin Shutter $195.00 $195.00 Contactless Payment Reader (NPC) $735.00 $735.00 B-lock $175.00 $175.00 Battery 32Ah(rechargeable) $324.00 n/a Battery 72Ah (rechargeable) $450.00 $450.00 Additional Large Coin Canister $195.00 $195.00 Additional Small Coin Canister $95.00 $95.00 Standard Paper Rolls (standard) a rox 2000 3" tickets .0045" thick)$25.DD $25.00 Sticky Back Paper Rolls approx. 2400 2.75" tickets .004" thick $30.00 $30.00 Note: This pricing is FOB, IPS Group, San Diego, CA. Sales taxes and shipping charges will be added to the flnal Invoice. /PS shall have the right to adfustAgreement pricing due to Increases in Inflation as published by the US Bureau of Labor Statistics forAllItems Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average compounded annually. Page 4 of 9 ParkSmartefO Mobile Payment Solution On -site setup: IPS shall provide the City with Instructions on how to setup / install decals in support of the ParkSmarter'" mobile payment application. However, IPS will send staff to provide installation and setup services. The costs for these services will be based on the costs of travel, rental car, hotel, and per diem expenses and will be added to the setup invoice at the completion of the service based on $950/day/person. Per transaction fees: IPS shall charge the City the same per transaction gateway fee as we currently charge for the meter program in place today. No additional convenience charges are required, but can be added to the user transaction if the City does not wish to pay this fee. Preferred Card Processing Rates: Using our own payment provider IPS can provide preferred pricing for small ticket mobile payment merchant processing. Quotes for this service are available upon request. Integration Services Implementation: IPS shall integrate with 30 party enforcement software or IPS can provide the City with IPS enforcement software at prices not included in this proposal. If any city designated 3rd party charges IPS for such implementation, then those charges will be passed along to the City at IPS costs. Note: This pricing is FOR, IPS Group, San Diego, CA. Sales taxes and shipping charges will be added to theFnal invoice. IPS shall have the right to adjust Agreement pricing due to Increases in Inflation as published by tire US Bureau of Labor Statistics forAll Items Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average compounded annually. Page 5 of 9 IPS shall provide warranty and non -warranty repair services based out of our office in San Diego, CA. For repair services not able to be first achieved on -site by the Customer or by phone, these meters will be returned to IPS at 7737 Kenamar Court, San Diego, CA, 92121, for repair or rework and IPS will endeavor to ship within 3-4 weeks of receipt, depending on the quantities received and work schedules. ALL RETURNS REQUIRE AN "RMA" NUMBER prior to shipment to IPS in order to avoid additional delays. An RMA may be requested by contacting the responsible IPS customer support manager, by contacting the IPS Help desk, phone ((877) 630-6638 or (858) 404-0607) or email(customersupport@ipsgroupine.com). All items returned to IPS must be securely package to avoid further damage in shipment and all shipments will be via Ground Freight Service unless expedited service and payment of associated fees are requested. Automated RMA tracking, including work performed to repair meters, can be viewed at any time using IPS meter management system. Single Space M3'" Non -Warranty repair work (includes parts/labor) $125.00 + shipping Single Space M5'" Non -Warranty repair work (includes parts/labor) $95.00 + shipping Multi -Space MS1' To be quoted Nan -Warranty repair work On -site technical services; shall be quoted to include labor, travel costs, $150 per accommodation, car rental and per diem costs. Spare Parts shall be quoted and hour or $950 added to final costs based on the identified needs, per day Shipping costs for any ofthe above shall be added to the final invoice Note: This pricing is FOB, IPS Group, San Diego, CA. Sales taxes and shipping charges will be added to the final invoice. IPS shall have the right to adjustAgreement pricing due to increases in Inflation as published by the US Bureau of Labor Statistics forAll Items Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City Average compounded annually. Page 6of9 IPS Limited Warranty IPS will provide a limited parts warranty for any now meter or sensor product manufactured and supplied by IPS for 12 months under normal use. The warranty protects against defects In materials and workmanship from the point of installation or 19 months from the date of delivery, whichever Is sooner, and 90 days from the date of delivery received in the case of spare or repaired products. Software Services are provided "as -is" and IPS shall provide bug fixes at no cost during the contract term. Additional Warranty Provisions: IPS must have the opportunity to assist in the Initial deployment and system installation. Repair or replacement under warranty of any defective product (including any meter or subcomponent) does not extend the warranty period for that product or subcomponent. IPS will either repair or replace products or subcomponents, at our discretion, that are found to be defective within the defined warranty period, with transportation costs pre -paid by the customer. Returns for credit will only apply once IPS has received defective product (including any meter or subcomponent) and confirmed that defects were within the warranty period and are covered under the terms and conditions of the warranty provided. IPS strongly recommends that customers pre- purchase spare parts inventory for immediate access. Defective parts can be replaced Immediately from customer stock and IPS shall replace such components upon receipt and determination of defect On -site labor is explicitly not included in this limited warranty, Customer shall be sufficiently trained to perform all on -site work, including meter or sub -component removal/replacement. IPS can provide additional on -site services wider a separate maintenance agreement or quoted on an as -needed basis. THE WARRANTIES CONTAINED IN THE AGREEMENT DOCUMENTS ARE IPS'S SOLE AND EXCLUSIVE WARRANTIES, THE EXTENT OF IPS'S LIABILITY FOR A WARRANTY CLAIM IS LIMITED TO THE REPAIR OR REPLACEMENT OF THE DEFECTIVE EQUIPMENT OR DEFECTIVE SERVICE OR SOFTWARE AT THE SOLE OPTION OF IPS. IPS AFFIRMATIVELY EXCLUDES ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE EQUIPMENT AND/OR SERVICES OR SOFTWARE PROVIDED INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, OR FITNESS OR SUITABILITY POR ANY PURPOSE (WHETHER OR NOT IPS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) WHETHER ARISING BY LAW OR BY REASON OF CUSTOM OF THE TRADE, Exclusions: Warranty voided with use of imitation or non -genuine IPS replacement parts, un-authorized alterations, abuse, vandalism, Improper Installation by customer, handling or general misuse to the equipment (hardware or software), including attempted repairs that result in damage. Warranty specifically excludes any consummable items such as paper, batteries, etc. Software warranty is void if usernames and/or passwords are shared with 3� parties, or allowance of 3,d party access to IPS software without IPS written consent. Force Majeure: IPS shall not be liable for any warranty provisions where such product failure is as a result of Acts of Nature (including fire, Hood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of electricity, internet services or cellular telecommunication failures caused by any of the events or causes described above. IPS provides no warranty with respect to any 3.d party hardware or software, whether supplied in connection with this Agreement or otherwise. Preventative Maintenance: The primary operational elements will be a working battery, card reader, coin validator and printer (If applicable). All product surfaces should be kept dean with mild soap and water. No harsh chemicals should be used on any plastic surfaces. The card reader heads should be cleaned with a cleaning card every 1.2 months to ensure optimum performance. Cleaning cards may be purchased from CPS. Batteries should be replaced when notified by the HIS Data Management System. At 6 month increments, the coin validator shall be visually inspected for any damage or debris. Compressed air may be used to keep the card reader, coin acceptor or printer (if applicable) clear of debris, every 6 months. Additional preventative maintenance shall be administered by customer staff at such time as it Is apparent to be necessary, even if it should occur on a more frequent basis than described herein. Page 7of9 Alternative Parking Payment Model Subject to the final quantities and total cost, IPS can provide the City with an alternative payment option which is based on the increased revenue generated by converting coin meters to IPS credit card meters, The City may pay more up front to reduce the total monthly payments. IPS will provide a complete amortization schedule in final agreement. Formula for Alternative Payment Model: ALL PARKING REVENUES (Cash and card) - (less) MONTHLY IPS FEES - BASELINE REVENUE _ MONEY REMAINING to pay for IPS HARDWARE PAYMENT. Definitions: • Cash: IPS data management system will be used to quantify the monthly cash generated by the meter system. • Card: Revenues which are generated using credit / debit card at IPS meters. CPS will hold the merchant account and reconcile each month with the City, no later than 10 business days following the end of each calendar month. • MONTHLY IPS FEES: as defined in IPS Pricing, all monthly IPS service, credit card gateway fees are paid first out of the parking money generated by both cash and card. • MONTHLY IPS HARDWARE PAYMENT: Monies paid towards the IPS meter hardware on a schedule defined by IPS. The MONEY REMAINING will be used to first pay for the CPS MONTHLY HARDWARE PAYMENT. If there is not enough MONEY REMAINING in each calendar month to pay for the full MONTHLY IPS HARDWARE PAYMENT, then IFS would receive 100% of what is available, and the remaining payment balance for MONTHLY IPS HARDWARE PAYMENT would be deferred and would accumulate until paid in full during future periods. BASELINE REVENUE: Shall be the average monthly revenue generated by the parking meter system for the areas to be upgraded over the last 12 months, This amount is defined by this Agreement as [To be Determined]. Key terms and conditions of the Alternative Pricing Proposal: • The IPS MONTHLY IPS FEES AND CC FEES shall continue for so long as the meters are installed and are necessary for the ongoing operation of the meters. • IPS Group retains complete ownership and title to all equipment until the IPS HARDWARE PAYMENT is paid in full. • Number of metered spaces and number of paid parking days cannot decrease by more than 5% during the term, unless there are exceptional situations, for example construction, which will be discussed with IPS in advance. • Parking meter rates cannot decrease below current rates. Page 8 of 9 • Parking enforcement staffing cannot decrease during the term of the Agreement, and City cannot materially lessen enforcement that would result in lower meter payment compliance. • City staff shall continue to maintain all equipment according to recommended practices for preventative maintenance and shall respond in a timely manner to any meter alerts in the field with a target of 24 hours response time. • City shall purchase all necessary spare parts and pay for any repair services as needed, including but not limited to accidents or vandalism. • IPS shall bear risk of loss of the Equipment, including any damage sustained during transportation to the delivery site. Risk in the Equipment shall pass to City upon delivery. Transfer of title to Equipment shall only pass to City upon full payment for the Equipment. • The program contains a 12-month parts warranty, unless extended warranty is included in the costs provided by this program. After this time, the City shall become responsible for warranty repairs and associated costs. IPS Is relying on City information related to parking meter revenues. Specifically, referring baseline revenue over the last 12 months which is [to be determined]. This is a material fact upon which IPS is making this proposal. Failure for the system to generate similar revenue in future years will require the parties to negotiate in good faith to find an equitable solution, including an adjustment of the payments schedule, term of the agreement, catch-up payments or return of the parking meters to IPS. In the event that meters are returned to IPS, no revenues received by IPS shall be refundable to the City. This process shall be initiated by IPS based on the payments received and revenue performance of the system every six (6) months. Page 9 of 9 IPS Limited Product Warranty IPSwlll provide a limited parts warranty for any new meter a sensor product manufactured and supplied by IPSfor 12 months under normal use. The warranty protects against defects in materials and workmanship from the point of Installation or 15 months from the date of delivery, whichever is sooner, and 90 days from the date of delivery received in the case of spare or repaired products. Software Services are provided "as -is" and IRS shall provide bug fixes at no cost during the contract term. Additional Warranty Provisions: IRS must have the opportunity to assist in the initial deployment and system installation. Repair or replacement under warranty of any defective product (including any meter or subcomponent) does not extend the warranty period for that product or subcomponent. IRS will either repair or replace products or subcomponents, at our discretion, that are found to be defective within the defined warranty period, with transportation costs pre -paid by the customer. Returns for credit will only apply once IRS has received defective product (including any meter or subcomponent) and confirmed that defects were within the warranty period and are covered under the terms and conditions of the warranty provided. IRS strongly recommends that customers pre -purchase spare parts inventory for immediate access. Defective parts can be replaced Immediately from customer stock and IRS shall replace such components upon receipt and determination of defect. On -site labor is explicitly not included In this limited warranty. Customer shall be sufficiently trained to perform all on -site work, including meter or sub -component removal/replacement. IRS can provide additional on. site services under a separate maintenance agreement or quoted on an as -needed basis. THE WARRANTIES CONTAINED IN THE AGREEMENT DOCUMENTS ARE IPS'S SOLE AND EXCLUSIVE WARRANTIES. THE EXTENT OF IPS'S LIABILITY FORA WARRANTY CLAIM IS LIMITED TO THE REPAIR OR REPLACEMENT OF THE DEFECTIVE EQUIPMENT OR DEFECTIVE SERVICE OR SOFTWARE ATTHE SOLE OPTION OF IPS, IRS AFFIRMATIVELY EXCLUDES ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE EQUIPMENT AND/OR SERVICES OR SOFTWARE PROVIDED INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT IRS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN TACT AWARE OFANY SUCH PURPOSE) WHETHER ARISING BYLAW OR BY REASON OF CUSTOM OF THE TRADE, Exclusions: Warranty voided with use of imitation ornon-genuine IRS replacement parts, un-authorized alterations, abuse, vandalism, Improper installation by customer, handling or general misuse to the equipment (hardware or software), including attempted repairs that result in damage. Warranty specifically excludes any consummable items such as paper, batteries, etc. Software warranty is void if usernames and/or passwords are shared with 3,d parties, or allowance of 3rd party access to IRS software without IRS written consent. Force Majeure: IRS shall not be liable for any warranty provisions where such product failure is as a result of Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, Insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption orfallure of electricity, Internet services or cellular telecommunication failures caused by any of the events or causes described above. IRS provides no warranty with respect to any 31d party hardware or software, whether supplied in connection with this Agreement or otherwise, Preventative Maintenance: The primary operational elements will be a working battery, card reader, coin validator and printer (if applicable). All product surfaces should be kept clean with mild soap and water. No harsh chemicals should be used on any plastic surfaces. The card reader heads should be cleaned with a cleaning card every 1.2 months to ensure optimum performance, Cleaning cards may be purchased from IPS. Batteries should be replaced when notified bythe IPS Data Management System. At 6 month Increments, the coin validator shall be visually Inspected for any damage or debris. Compressed air may be used to keep the card reader, coin acceptor or printer (if applicable) clear of debris, every 6 months. Additional preventative maintenance shall be administered by customer staff at such time as it is apparent to be necessary, even If it should occur on a more frequent basis than described herein. IPS Limited Enforcement/Permitting Software Warranty IPS will provide a limited parts warranty for any physical product, such as hendheIds or printers, in accordance with the manufacturer's warranty. Software Services are provided "as -is" in accordance with the scope of services, and shall perform substantially in accordance with an identiflable set of functional specifications. IPS shall provide bug fixes and generally available upgrades at no cost during the contract term. Additional Warranty Provisions: IPS must have the opportunity to assist in the Initial deployment and system Installation. Repair or replacement under warranty of any defective product does not extend the warranty period for that product or subcomponent. IPS will either repair or replace products or subcomponents, at our discretion, that are found to be defective within the defined warranty period, with transportation costs pre -paid by the customer. Returns for credit will only apply once IPS has received defective product and confirmed that defects were within the warranty period and are covered under the terms and conditions of the warranty provided. THE WARRANTIES CONTAINED IN THE AGREEMENT DOCUMENTS ARE IPS'S SOLE AND EXCLUSIVE WARRANTIES. THE EXTENT OF IPS'S LIABILITY FOR A WARRANTY CLAIM IS LIMITED TO THE REPAIR OR REPLACEMENT OF THE DEFECTIVE EQUIPMENT OR DEFECTIVE SERVICE OR SOFTWARE ATTHE SOLE OPTION OF IPS. IPS AFFIRMATIVELY EXCLUDES ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE EQUIPMENTAND/OR SERVICES OR SOFTWARE PROVIDED INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT IPS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) WHETHER ARISING BYLAW OR BY REASON OF CUSTOM OF THE TRADE, NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES OR OTHER MONETARY LOSS, ARISING OUTOF OR RELATED TO THIS AGREEMENT AND ANY ACTIONS OR OMISSIONS WITH RESPECT THERETO, WHETHER OR NOT ANY SUCH MATTERS OR CAUSES ARE WITHIN A PARTY'S CONTROL OR DUE TO NEGLIGENCE OR OTHER FAULT ON THE PART OF A PARTY, ITS AGENTS, AFFILIATES, EMPLOYEES OR OTHER REPRESENTATIVES, AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN TORT, CONTRACT, BREACH OF WARRANTY OR OTHERWISE. ANY LIABILITY INCURRED BY IPS IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE CONTRACT VALUE AS SET FORTH IN THIS AGREEMENT. Exclusions: Warranty voided with use of imitation or non -genuine replacement parts, un-authorized alterations, abuse, vandalism, products subjected to unusual physical or electrical stress, improper handling or general misuse to the equipment (hardware or software), Including attempted repairs that result in damage. Warranty specifically excludes any consumm able items such as paper, batteries, etc. Software warranty Is void If usernames and/or passwords are shared with 3" parties, or allowance of 3'd party access to IPS software without IPS written consent, or any unauthorized changes or attempts to change IPS software. Force Majeure: IPS shall not be liable for any warranty provisions where such product failure is as a result of Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, Invasion, act of foreign enemies, hostilities (whether war Is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption orfailure of electricity, internet services or cellular telecommunication failures caused by any of the events or causes described above. IPS provides no warranty with respect to any 31d party hardware or software, whether supplied in connection with this Agreement or otherwise. Francine R. Villareal Digitally signed by Francine R. Villareal Date: 2021.04.00 00:0557 -07'01]' ACO/20® CERTIFICATE OF LIABILITY INSURANCE L� 3/19/2022 DATEIMMRIDIYYY 1 3/17/2021 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Lockton Insurance Brokers, LLC License #OF15767 4275 Executive Square, Suite 600 La Jolla CA 92037 CONTACT NAME: PHONE FAX A/C No Ert• Me NO), EMAIL - ADDRESS: INSURERS) AFFORDING COVERAGE 1110 (858)587-3100 INSURER A: National Fire Insurance Co of Hartford 20478 INSURED 1P5 Group, Inc. 1377909 7737 Kenamar Court INSURER B: Valle Forge Insurance Company 20508 INSURER C: The Continental Insurance Company 35289 San Diego CA 92121 INSURER D: Lloyd's Syndicate 457 (Munich Re Syndicate Limited) INSURER E : American Casualty Company of Reading, PA 20427 INSURER F : COVERAGES IPSGROI CERTIFICATE NUMBER: 12RO7i 17 RFVI.SION NIIMRFR- vv4vvvV THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDLSUBR INSO Me POLICY NUMBER POLICY EFF MMIDD POLICY EXP MWDDIYI'YY LIMnS A X i COMMERCIAL GENERAL LIABILITY CLAIMS-MADEFRI OCCUR Y N 4034952942 3/19/2021 3/19/2022 OCCURRENCE $ 1000000 DAMAGE occunence TO PREMISES HE _ $ 1000000 MED ESP (Any one Person) $ 15,000 PERSONAL A ADV INJURY $ I OQO 000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY JEST LOC GENERALAGGREGATE $ 2000000 PRODUCTS - COMP/OPAGG $ 2000000 S I OTHER: D AUTOMOBILE LIABILITY N N 6013847872 3/19/2021 3/19/2022 COMBINEDSINGLEUMrr $ 1,000,000 X ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per Person) $ XXXXX� BODILY INJURY accident) S XXXXX�(�( X HIRED NON -OWNED AUTOS ONLY X AUTOS ONLY PROPERTY DAMAGE Per awident $ XXXXXXX Comn./Coll. Ded s 1,000 C X UMBRELLA LIAB X OCCUR N N 4034952990 3/19/2021 3/19/2022 EACH OCCURRENCE $2000Q000 AGGREGATE S 20,000,000 EXCESB LV\B CLAIM&MADE DED RETENTION $ $ X'XXXXXX E C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETORIPARTNEF'JEXECUrIVE OFFICERry,lnN � NIA N 5093308451 (CA) 5093308496 (ADS) 3/19/2021 3/192021 3/19/2022 3/19/2022 PER OTH- X STATUTE ER E.L. EACH ACCIDENT $ 1.000.000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 (Mandatory In NH) NH) If E.L. DISEASE- POLICY LIMIT $ 1.000.000 Nunder DESCRIPTION DESCRIPTION OF OPERATIONS below D Tech E&O/Network / Privacy / Media N N CYYE63501 (E&O) 3/19/2021 3/192022 Each Occ. 5,000,000; Agg.: 5,000,000; Ded.: 100,000 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space Is required) THISCERTIFICATE SUPERSEDES ALL PREVIOUSLY ISSUED CERTIFICATES FOR THIS HOLDER, APPLICABLE TO THE CARRIERS LISTED AND THE POLICY TERMS) REFERENCED. RE: RFP 14-012, Modernization of Downtown Parking Meters. City of Santa Ana, its officers, employees, agents, volunteers and representatives are an Additional Insured to the extent provided by the policy language or endorsement issued or approved by the insurance carver. Insurance provided to Additional Insured(s) is primary and non-contributory as per the attached endorsements or policy language. Notice of Cancellation applies per attached endorsement(s). 12892512 City of Santa Ana Risk Management Division 20 Civic Center Plaza, 4th Floor Santa Ana CA 92701 ACORD 25 (2016/03) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATNE sh REVIEWED&APPROV®BY: © 015 ACORD C ^.I'., F,wti� R• The ACORD name and logo are registered marks of ACORD ='. Rhk Management Analyst CC68021A (Ed. 02/13) NOTICE OF CANCELLATION TO CERTIFICATE HOLDERS It is understood and agreed that: If you have agreed under written contract to provide notice of cancellation to a party to whom the Agent of Record has issued a Certificate of Insurance, and if we cancel a policy term described on that Certificate of Insurance for any reason other than nonpayment of premium, then notice of cancellation will be provided to such Certificateholders at least 30 days in advance of the date cancellation is effective. If notice is mailed, then proof of mailing to the last known mailing address of the Certificateholder on file with the Agent of Record will be sufficient to prove notice. Any failure by us to notify such persons or organizations will not extend or invalidate such cancellation, or impose any liability or obligation upon us or the Agent of Record. Attachment Code: D495276 Certificate 11): 12892512 WekAWrogemaitlxMelon ®- Ruk Mrnagert nt Malyst