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HomeMy WebLinkAbout25H - AGMT VACANT PROPERTY SECURITY DOORSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: CLERK OF COUNCIL USE ONLY: DECEMBER 5, 2017 TITLE: APPROVED L3 As AWARD OF EQUIPMENT AND SERVICE ElAs Amended Recommended AGREEMENT WITH VACANT PROPERTY ❑ Ordinance on 1� Reading SECURITY, LLC FOR PLACING METAL El Ordinance on Reading EI El Implementing Resolution SECURITY DOORS, SCREENS AND ❑ Set Public Hearing For OTHER SECURITY EQUIPMENT ON RED - TAGGED BUILDINGS (STRATEGIC PLAN NO. 3,3; 5, 4E) CONTINUED TO FILE NUMBER CITY NAGER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to enter into a contract with Vacant Property Security, LLC for equipment and services related to placing metal security doors, screens, and other security equipment on "red -tagged" buildings to enforce compliance of code enforcement violations, for a one year term ending on December 4, 2018, with an option to extend the term for up to one year, in an amount not to exceed $115,000, including any extension period, subject to non -substantive changes approved by the City Manager and the City Attorney. DISCUSSION The City continues to use a variety of enforcement options to shut down illegal marijuana dispensaries. The operators of these dispensaries and the landlords that rent to the operators do not have the regulatory safety permits (RSP's) required by Measure BB and often are not in compliance with State laws. The operators of these illegal dispensaries do not have business licenses and they do not comply with the voter approved regulations or pay the required taxes that the lawful operators pay to the City. The City's administrative citations, civil and criminal actions and civil fines have not thwarted all of the operators. Even direct legal action against the landlords has not resulted in compliance. Every day that an illegal operator is in business, he or she makes significantly more money than it costs to oppose legal action. Furthermore, even when the City takes action to sever utility services, the operators bring in generators and re-establish utility service through illegal connections. After red -tagging buildings, Planning and Building Agency's Code Enforcement staff has found that the operators tear down notices and plywood security doors. In addition the Parks, Recreation and Community Services Agency (PRCSA) has experienced a need for an alternative to wood paneling to secure a building. On several occasion the property 25H-1 Award of Equipment and Service Agreement with Vacant Property Security LLC December 5, 2017 Page 2 at 625 South Cypress Avenue has been broken into by intruders, vandalized and used as a shelter by homeless individuals. The Police Department has been to the location on many occasions to clear out the building, after which, the facility is boarded up, but intruders remove the wood paneling the very same evening after the police and city staff have left. In consultation with other cities having similar experiences, the City discovered Vacant Property Security LLC provides steel security doors, screens and other security equipment that a city or landlord can lease and Vacant Property Security LLC secures the doors to the properties. The doors are nearly impossible to remove and their use, per the City's consultation with other cities, has resulted in compliance. The City's Municipal Code, Section 2-807(a) provides that the City may recommend a sole -source contract to the City Council where 'Purchases of materials, supplies, labor, and equipment whenever it shall appear that there is only one (1) reasonably available source or where solicitation of bids would for any reason be an idle act." In this case, staff is recommending Vacant Property Security LLC because this company is the only company in the State of California that provides the steel doors, screens, and other security equipment and installs the materials, on the identified property. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 - Economic Development, Objectives #3 (Promote a solution -based customer focus in all efforts to facilitate development and investment in the community); Goal #5 — Community Health, Livability, Engagement & Sustainability, Objective #4 (Support neighborhood vitality and livability), and Strategy E (Implement innovative code enforcement practices and strategies including the use of volunteers, enhanced technologies and increased collaboration with other City departments and outside agencies to address critical livability issues citywide [e.g. overcrowding, absentee landlords, landlord/tenant rights and responsibilities, etc.]). FISCAL IMPACT The funding is budgeted and available as follows: Fund Account Service Amount number FY 2017-18 City Attorney's Office Other 01108032- Code Enforcement $ 85,000 Contractual Services 62300 Violations Parks, Recreation and Community 02213200- Parks, Recreation and $ 10,000 Services Agency 62300 Community Services FY 2018-19 City Attorney's Office Other 01108032- Code Enforcement $ 15,000 Contractual Services 62300 Violations 25H-2 Award of Equipment and Service Agreement with Vacant Property Security LLC December 5, 2017 Page 3 Parks, Recreation and Community 02213200- Parks, Recreation and $ 5,000 Services Agency 62300 Community Services Funding at this time is available in the above referenced accounts. In the event of a shortfall in the identified account, staff will provide an appropriate adjustment at the time additional cannabis revenue is realized after changes in regulatory ordinances. Funds are available for this program in FY 2017-18 and FY 2018-19 however if we need to exercise the option of continuing the contract an additional year we will review the program's budget and funding availability. 4W60J 6rr�� onia R. Carvalho City Attorney ai✓ ndida Neal Acting Executive Director Planning and Building Agency SM:rb &RFCA112-05-MVPSSteel Doom RFCA Exhibit: 1. Agreement APPROVED AS TO FUNDS AND ACCOUNTS: ,- Francisco Gutierrez Executive Director Finance & Services Management Agency Gerardo Mouet Executive Director Parks, Recreation & Community Services Agency 25H-3 25H-4 VACANT PROPERTY SECURITY LLC - MASTER EQUIPMENT & SERVICES TERMS & CONDITIONS 1. DEFINITIONS & INTERPRETATION 1.1 Definitions: Affiliates: a person's employees, agents, nominees, sub -contractors and anyone acting at their Instruction, including any director, manager, member, managing member, general partner or officer, excluding in each case another Party. Alarm System: the wireless alarm system VPS agrees to provide which may Include one or more of the following: alarm units, passive infra -red sensors or similar devices, PID Keys; and/or other devices designed to operate in conjunction with any of them. Business Day: any day except Saturday, Sunday and public holidays. Business Hours: 9 am to 5 pm Central Standard Time on a Business Day. Charges: the amounts payable by the City in respect of or In connection with the provision of Equlpment/Service under a Contract. Claims: means all claims, losses, liabilities, damages, costs, expenses (including attorney's fees) and Interest whether arisingin/under contract, tort (including negligence), statute or otherwise. Confidential Information: Information (whether written, oral or In an electronic format) supplied by a Party or Its Affiliates which relates to that Party or Its Affiliates and is commercially sensitive and expressed to be confidential; by Its nature should be considered to be confidential; is a trade secret; or relates to intellectual property rights. Contract: an agreement, Including these Terms and any applicable Order Form(s), between the City and VPS in respect of the provision of Equipment and/or Services by VPS at a Site. Controlled Premises: any land, buildings and/or premises which are under the Qty's control and are adjacent to or contiguous with a Site. City: the City of Santa Ana. Equipment: the alarm system, temporary security doors, window screens and/or any other equipment/products or services which VPS agrees to provide. i Initial Fee: a non-refundable amount specified In an Order Form, or otherwise communicated by VPS, which may be all or only part of the Charges in respect of the provision of the Equipment/Services. EXHIBIT 1 25H-5 Initial Rental: a non-refundable amount specified in an Order Form, or otherwise communicated by VPS, which may be all or only part of the Charges in respect of the provision of the Equipment/Services. The initial rental is part of the initial fee. Monitoring Service: the monitoring of the alert status of an Alarm System by VPS on a 24 hour basis and the provision of notifications to the City In the event of unauthorized access to or Flood at a Site. Order Form: an order form issued by VPS in respect of the proposed provision of Equipment/Services. Parties: VPS and the City together. Any reference to a Party Is to one of them. Personal Property: any personal property (including the fixtures and fittings of any building) which is located at a Site or Controlled Premises. PID Key: a hand held device designed to activate/deactivate an Alarm System. Recurring Rental: a non-refundable amount specified in an Order Form, or otherwise communicated by VPS, which may be all or only part of the Charges In respect of the provision of the Equipment/Services. The Initial rental is part of the initial fee. Service Date: the date, as communicated by VPS to the City, on which the supply of Equipment/Services under a Contract is scheduled to commence. Services: any services, which VPS agrees to provide, which relate to and/or are supplied in connection with any Equipment or vacant property. Service Period: the period under a Contract (ending no later than expiry/termination of that Contract) during which VPS agrees to provide Equipment/Services. Site: the property or properties to be secured specified in an Order Form. Terms: the provisions set out in this document. VPS: Vacant Property Security LLC, a Delaware limited liability company (d/b/a VPS). 2.PURPOSE AND UNDERSTANDING 2.1 The Terms and Conditions as set forth below are exclusive and in lieu of all other terms and conditions appearing on City's application to rent or elsewhere, and apply to all quotations made and orders accepted by VPS, unless specifically stated to the contrary on the face of this orthe rental order or quotation. VPS is not responsible for typographical or clerical errors made in any quotation, orders or publications. All such errors are subject to correction. 2.2 The term of this Agreement shall commence on December 5, 2017 and expire on December 4, 2018, with the option for the parties to agree to a one year extension, exercisable by a writing by the City Manager, the City Attorney and VPS. 3.ORDERS & INSTALLATION 3.1 City and VPS Agree to an on-call basis for services during the term of this Agreement. City shall notify VPS of site and VPS shall only be bound by an Order Form which has been accepted and signed by the City without amendment and then confirmed by VPS either in writing of by commencing supply of the 25H-6 relevant Equipment and/or Services. VPS accepts no responsibility for the accuracy of orders, Instructions or information given by the City or the City's Affiliates. 3.2 The City, after carefully inspecting the equipment, acknowledges receipt thereof in good condition and agrees to return it in the same condition as received, ordinary wear and tear excepted. 3.3 VPS shall specify a Service Date, notify the City accordingly and take reasonable steps to supply the Equipment/Services on the Service Date. Once an Alarm System has been installed pursuant to the terms of an Order Form the City Is responsible for setting, de -activating and re -activating the Alarm System. Operating Instructions supplied by VPS shall be followed by the City. The City shall immediately report any Equipment failure to VPS. VPS shall not be liable for any Claims to the extent that they arise as a result of or in connection with City's failure to follow any such operating Instructions. 3.4 Pursuant to City's obtained court order, VPS may enter the Site and any Controlled Premises without notice at anytime from and including the Service Date for all reasonable and proper purposes in connection with a Contract Including (but not limited to) installation, inspection, maintenance, repair, replacement and/or removal of Equipment, the provision of Services and the exercise of rights under these Terms. 3.5 VPS shall be entitled to use reasonable force to gain access to a Site or Controlled Premises. VPS may attach warning signs/notices within, on and/or at the boundary points of the Site to direct attention to the presence of Its Equipment and/or the supply of Services. Access/forced entry under these Terms, attaching slgns/notices and/orthe provision of Equipment/Servlces at a Site may result in loss/damage to Personal Property. Subject to the express provisions of these Terms, VPS will not be liable for damage to Personal Property, personal Injury, illness or other loss, Including, but not limited to, as related to water Intrusion, mold, fungi, wet or dry rot or bacteria that may result from installation of Equipment and Services provided. The City agrees that this Is fair and reasonable In the circumstances and VPS shall not be liable for any Claims to the extent that they arise as a result. 3.6 If an Order Form specifies, VPS will Issue the City and/or its Affiliates with an agreed number of PID Keys, keys or entry codes. Additions/replacements will be supplied at an extra Charge. The City shall take all reasonable steps to ensure that the PID Keys, keys and entry codes issued under this section are not lost, stolen or used by an unauthorized person and must immediately notify VPS if any of these occur. VP5 is not liable for any Claims to the extent that they arise from or are connected with any PID Key, key or entry code Issued to the City or its Affiliates. 3.7 VPS shall provide the Monitoring Service during the Service Period as set forth in an Order Form. The cost involved is Included in the Charges for the Alarm System. VPS shall use the City's contact details in the Order Form for the purposes of Alarm System notifications in respect of a Site and will take reasonable steps, as determined in VPS's sole discretion, to notify the City and relevant Persons of all relevant Alarm System activations at such Site. The City's contact information may be changed by prior written notice to VPS. VPS is not obliged to contact emergency services and shall not be liable for any Claims to the extent that they arise from contact or non -contact with emergency services. If agreed with the City in an Order Form, VPS will take reasonable steps, as determined In VPS's sole discretion, to 25H-7 arrange for Site response to any relevant Alarm System activation as soon as reasonably possible, as determined In VPS's sole discretion. All such responses will constitute an additional Service and shall Incur an additional Charge to the City, such Charge to be detailed in the applicable Order Form. False activations caused by the City or the City's Affiliates and where VPS has arranged for Site response service will incur an additional Charge forthe service as set forth in the Order Form. 3.8 The proper working of each Alarm System is subject to availability of an adequate cellular network at the Site. Alarm Systems may generate sound In excess of 120 decibels and the City Is responsible for all noise generated at the Site. VPS shall not be liable for any Claims to the extent that they arise from or in connection with the adequacy, absence or continuity of a cellular network signal or noise generated at the Site. 3.9 Neither the City nor Its Affiliates shall or shall attempt to tamper with, move, re -locate, refit, disassemble, repair, service, reverse engineer or damage any Equipment. Any breach of this provision shall release VPS from all obligations and warranties In respect of the relevant Equipment and Services. 3.10 Where VPS believes that a Site or any Personal Property is dangerous or presents an unreasonable health and safety risk, VPS may suspend performance of any or all of its obligations under the relevant Contract until such time as the Site and Personal Property have been made reasonably safe by the City. Claims Incurred by the City In connection with the foregoing shall be at the City's expense. 4. PRICES & PAYMENT 4.1 rime for payment of any Charges shall be the essence of this agreement. 42 The Charges are referred to in VPS's price list as of the date of the relevant Order Form, but where a specific quotation/price list is sent by VPS to the City and such list has been accepted and signed by the City without amendment and then confirmed by VPS either in writing or by commencing supply of the relevant Equipment and/or Services, then that specific quotation/price list shall apply to the relevant Order Form and become a part of such Order Form. All Charges stated exclude sales or similar taxes all of which the City shall pay as shall be indicated on the final Order Form. Where the City requires a same day Installation or where work is required outside Business Hours an additional Charge Will be made. 4.3 All Equipment Is supplied for a minimum period equal to the rental period stated in the Order Form at the start of the Contract. On or before seven (7( days prior to the expiration of the initial term of the rental agreement, the City shall provide written notice to VP5 as to their intention to cancel the rental agreement at the end of the stated term. 4.4 VPS may vary Its Charges at any time by notice from VPS and such new Charges shall apply with effect starting 30 days after VPS's delivery of such notice to the City. After delivery of such a notice, the City may terminate a Contract to which it applies at any time before the new Charges takes effect and in 25H-8 such circumstances section 4.3 shall not apply, but termination of any Contract as permitted under this Section 4.4 shall not affect any other rights/remedies which shall have accrued prior to such termination. 4.5 The City shall pay the Initial Fee prior to the Service Date. Remaining and periodic Charges shall be paid weekly or monthly In advance as agreed by VPS. Any additional Services provided from time to time which are not covered In a periodic Invoice may be invoiced at any time and shall be due and payable to VPS within 30 days of VPS rendering such Services. All sums payable under these Terms shall be paid by the City without setoff, retention, deduction, withholding, lien, counterclaim or other similar rights/entitlements. Upon the City's earlier termination of a Contract pursuant to section 7.1, Charges for the remainder of the minimum period shall become Immediately due and payable, are non- refundable and will not he prorated. 4.6 Each Invoice from VPS shall be paid by the City on or before Its due date. Charges for the rental period will not be prorated. Where VPS has the right to terminate a Contract with cause as set forth in section 7.2, then all sums Invoiced or payable to VPS under that and/or any other Contract (including any Charges for the remainder of the minimum period) shall become immediately due and payable. Payment of charges when due Is an essential term, 4.7 The City shall be in breach of a Contract In all cases where the City does not have an agreed credit account with VP5 and/or falls to pay the Initial Fee or any Charges when due, such payment is rejected or the City is In arrears under the agreed upon Terms of a Contract. 4.8 If the City fails to make any payment In full when due, then without affecting any other rights/remedies: (a) the City shall pay Interest on a daily basis on the overdue amount from the due date to the actual payment date at a rate of 4% per annum over the Federal Reserve Bank prime loan Interest rete, or 14% per annum, whichever Is greater and permissible at law, and shall indemnify and reimburse VPS for all Claims arising from steps taken to collect any overdue amount; and (b) VPS shall he entitled to suspend provision of all or part of the Equipment/Services without any liability for any Claims which may arise as a result of the suspension (Charges will continue to accrue during such suspension). If a check is returned by the City's bank unpaid, a charge of $25 will he made. 4.9 It the City falls to make any payment when due or to satisfy its obligations under any other term or condition of this Contract, VPS may immediately cease providing the Services and repossess or disable the Equipment without notice. In connection with such failure, the City hereby grants VPS access to the Site and any Controlled Premises and allow it to repossess or disable such Equipment. VPS Is not required to redecorate or repair the Site or Controlled Premises as a result of ceasing Services or repossessing or disabling the Equipment and VPS shall have no liability for any Claims with respect to or In connection with ceasing Services or repossessing or disabling such Equipment. Notwithstanding anything contained In a Contract, VPS does not waive, and retains the right to exercise, any other legal or equitable rights or remedies available to It under a Contract or otherwise, including its right to file any lien or encumbrance. 25H-9 4.10 The payments for services to VPS pursuant to this on-call services Agreement shall not exceed $115,000, unless otherwise agreed upon in writing. S. OWNERSHIP 5.1 The Equipment Is, and shall at all times remain, the sole and exclusive property of VPS and the City shall have no other rights in the Equipment except as set forth in this Contract. Nothing in the Contract shall give, or be construed to give, the City any option to purchase the Equipment. 5.2 The City shall not sublease, assign, or lend the Equipment without prior written consent of VPS and shall not pledge, encumber, create a security Interest In, or permit any lien to become effective on the Equipment. The City shall not permit the Equipment to be removed from its possession or be altered In any way. If any of these events tapes place, the City shall be deemed to be In breach of this Contract at the option of VPS. Any purported assignment or sublease of this Contract or the Equipment by the City is void. In the event the City sells ortransfers ownership of a property with the VPS Equipment still Installed, the City will be liable for the cost of the equipment. 5.3 Nothing in these Terms or any Contract Is Intended to or will transfer title to or any intellectual property rights in any Equipment or Services to any person. The Equipment Is supplied on a rental basis solely for the City's use and the City shall notsell, rent, loan, create any security over or In any way encumber R without.prior written permission of VPS. While at the Site the -Equipment is supplied -at the City's risk and must be returned to VPS at the end of the Service Period in the same condition as at the Service Date, fair wear and tear excepted. 5.4 Transfer of property ownership: the City Is responsible for notifying VPS of transfer of property ownership relating to the Site or the Controlled Premises in writing to either VPS's sales department or USClient5ervlces@vpspecialists.com as soon as such transfer is discovered. 6. WARRANTIES 6.1 The Parties agree that VPS makes no warranties, express or Implies. VPS SPECIFICALLY DECLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE. 6.2 The City warrants that It has not relied upon any terms, conditions, representations or warranties (express or Implied) from or on behalf of VPS other than those set out In these Terms. In particular the City has not relied upon any assessments under section 2. 6.3 The City warrants that It shall notify VPS immediately in case of accident or damage to or theft of the Equipment or of accident or damage to persons or property to the extent such accident or damage relates in any way to the Equipment, Including the use thereof. VPS will be available to service the Equipment only during its normal business hours. In the event that the Equipment is involved in an accident or Is In need of repair or maintenance, the City shall permit VPS to retake possession of the Equipment with or without legal process. 25H-10 6.4 The City warrants that it shall bear the sole cost and responsibility for all damage to the equipment, other than ordinary wear and tear to the extent that such damage (a) is caused by the City or its employees or agents; or (b) occurs prior to the expiration of the Service Period (except to the extent that the damages Is caused by the active negligence, recklessness, or willful misconduct of VPS or Its employees or agents, or by a malfunction in the equipment that is beyond the control of the City or Its employees or agents. If the Equipment Is stolen or damaged by the City or Its employees or agents beyond repair the City will pay for the Equipment at the cost to VPS to replace such Equipment. The City shall not have Equipment repaired without priorwritten permission from VPS. 7. TERMINATION 7.1 The City may request removal of Equipment or terminate a Contract without cause by giving at least one (1) week's prior written notice to VPS. Termination will take effect on proper receipt of such notice by VPS, subject to the provisions of section 4.3. If the City falls to notify VPS as provided herein, the Contract, at VPS option, will renew on the same basis as outlined on page 1 of this agreement, "Duration of Rental' until cancelled by either party. 7.2 Either Party may terminate or cancel a Contract with cause with Immediate effect by giving the other Party notice In the following circumstances: (a) the other Parry Is In material breach (includes the , City's breach of any of its payment obligations) of Its obligations under the Contract and either the breach cannot be corrected (includes the City's breach of any of Its payment obligations) or the Party in breach falls to correct It within 10 Business Days after receipt of a written notice from the other Party asking for the breach to be corrected; (b) a voluntary or Involuntary bankruptcy petition is filed by or against the otFe Party (i�u i�petition for reorganization, extension of payment, composition or adjustment of liabilities) and is not dismissed within 15 Business Days; (c) a receiver is appointed In respect of the other Party; or (d) the other Party makes an assignment for the benefit of its creditors. Notwithstanding anything to the contrary under these Terms or any other Contract, should VPS terminate or cancel any Contract, such termination or cancellation will discharge all existing obligations of VPS under such contract but shall In no way discharge any ofVPS's rights and remedies under any Contract or otherwise available to it at law or In equity. 7.3 Where the City sells/disposes of its Interest In a Site, such sale/disposition shall not terminate the relevant Contract which shall remain In full force and effect until terminated under section 7.1 or 7.2. 7.4 If the City falls to observe or perform any of the Terms in this Contract, VPS may exercise anyone or more of the following remedies: (a) terminate this agreement and take possession of and remove the Equipment from wherever located; (b) to declare the entire rent hereunder immediately due and payable and pursue all legal remedies In connection with the payment thereof; and/or (c) pursue any other remedies legally available to VPS. VPS and its agents will not be liable for any claims for damage or trespass arising out of tate removal of the Equipment. 8. EFFECTS OF EXIRATION/TERMINATION 25H-11 8.1 Expiration (at the end of the agreed Service Period) or termination of a Contract shall not affect any rights/remedies or Claims which have already accrued, shall not affect any other Contract, shall not entitle the City to a refund of the Initial Fee and shall not affect any rights/obligations which expressly or by Implication are intended to survive expiration/ termination. 8.2 The obligation to provide the Equipment/Services shall cease with effect from expiration / termination of any Contract related thereto and VPS shall take all reasonable steps to remove/recover such Equipment. 9. FINANCING STATEMENTS 9.1 UPS Is hereby authorized to file financing statements in accordance with the Uniform Commercial Code as adopted in any applicable jurisdiction from time to time. By Its signature hereto, the City hereby authorizes VPS to file one or more financing continuation or amendment statements, in connection with any financing statement described in the foregoing sentence and pursuant to the Uniform Commercial Code, in form and substance satisfactory to VPS. All charges, expenses and fees VPS may incur in doing any of the foregoing, and any local taxes relating thereto, shall be charged to the City as additional Charges and shall become Immediately due and payable and shall be paid immediately to VPS but in no Instance later than 30 days of VPS Incurring such charges, expenses or fees. 10. LIMITATION OF LIABILITY 10.1. THE CITY ACCEPTS FULL AND COMPLETE RESPONSIBILITY FOR ALL INJURIES TO PERSONS AND PROPERTY ARISING OUT OF OR IN ANYWAY RELATING TO THE EQUIPMENT FROM THE TIME THE CITY TAKES POSSESSION THEREOF UNTIL THE EQUIPMENT IS RETURNED TO AND ACCEPTED BY VPS, EXCEPT TO THE EXTENTTHAT SUCH INJURIES RESULT FROM THE ACTIVE NEGLIGENCE, RECKLESSNESS, OR WILFUL MISCONDUCT OF VPS. 10.2 THE CITY ALSO AGREES TO INDEMNIFY AND SAVE VP5 AND ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, PROCEEDINGS, COSTS, EXPENSES, DAMAGES AND LIABILITY OF ANY AND EVERY NATURE WHATSOEVER (INCLUDING REASONABLE ATTORNEYS' FEES) (COLLECTIVELY, "LOSSES") ARISING DIRECTLY OR INDIRECTLY FROM OR IN ANY WAY RELATING TO; (A) THE EQUIPMENT FROM THE TIME THE CITY TAKES POSSESSION THEREOF UNTIL THE EQUIPMENT IS RETURNED TO AND ACCEPTED BY VPS; (B) THE CITY'S FAILURETO COMPLY WITH ANY OF ITS OBLIGATIONS UNDER THIS CONTRACT INCLUDING THOSE TRAINING AND OTHER OBLIGATIONS STATED IN PARAGRAPHS 2 AND 3 OF THIS CONTRACT, OR (C) THE CITY'S NONCOMPLIANCE WITH ANY LAW, REGULATION OR SAFETY ORDER, EXCEPT, IN EACH SUCH CASE, TO THE EXTENTTHAT SUCH LOSSES RESULT FROM THE NEGLIGENCE, RECKLESSNESS, OR WRONGFUL PERFORMANCE OR CONDUCT OF VPS. 10.3 IN ADDITION, THE CRY SHALL, AT ITS OWN COST AND EXPENSE, DEFEND VPS AND ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AND EMPLOYEES AGAINST ALL SUITS OR PROCEEDINGS COMMENCED BY ANYONE IN WHICH ANY OF SUCH PERSONS OR ENTITIES IS A NAMED PARTY TO THE EXTENT SUCH SUITS OR PROCEEDINGS RELATE TO MATTERS REGARDING WHICH SUCH 25H-12 PERSONS OR ENTITIES WOULD BE ENTITLED TO INDEMNIFICATION HEREUNDER. THE CITY SHALL BE LIABLE AND RESPONSIBLE FOR ALL COSTS, EXPENSES, AND ATTORNEYS' FEES INCURRED IN SUCH DEFENSE AND/OR SETTLEMENT, JUDGMENT, OR OTHER RESOLUTION. VPS OR ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, OR EMPLOYEES, AS THE CASE MAYBE, MAY ELECT TO DEFEND ANY SUCH ACTION ON ITS OR THEIR OWN BEHALF, AND THE CITY AGREES THAT IT SHALL BE LIABLE FOR ALL COSTS, EXPENSES, AND ATTORNEYS' FEES INCURRED BY SUCH PERSON OR ENTITY IN SUCH DEFENSE. THE INDEMNITIES AND ASSUMPTIONS OF RISI(, LIABILITIES, AND OBLIGATIONS BY THE CITY ARISING UNDER THIS CONTRACT SHALL CONTINUE IN EFFECT AFTER THE RETURN OF THE EQUIPMENT TO VPS AND THE PAYMENT OF THE FULL RENTAL PRICE. 10.4 THE PROVISIONS OF THIS SECTION 10 SHALL APPLY TO AND BENEFIT VPS AND ITS AGENTS, EMPLOYEES, CONTRACTORS, SUBSIDIARIES, DEALERS, AFFILIATES, PARENTS (BOTH DIRECT AND INDIRECr). SO.S The parties agree to and shall Indemnify and hold harmless the non -offending party, Its officers, agents, employees, and representatives from liability for personal Injury, damages, restitution, judicial or equitable relief to the extent caused by the offending party's (or any contractors, subcontractors, agents, or persons acting on their behalf) recklessness, negligence orwrongful performance or conduct related to this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to In this Section or by reason of the terms of, or effects, arising from this Agreement. The offending party further agrees with respect to liability cause by them (or any contractors, subcontractors, agents, or persons acting on their behalf), to indemnify, hold harmless, and pay all costs for the defense of the non -offending party, Including fees and costs for special counsel to be selected by the City, regarding any action by a third party asserting -that personal Injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. The non -offending party may make all reasonable decisions with respect to Its representation In any legal proceeding. 11. NOTICES 11.1 Notices may be delivered by hand, overnight courier, email or facsimile to the intended Party at Its address set out in the Order Form or as modified by proper notice. 12. MISCELLANEOUS 12.1 Words In the singular Includes the plural and vice versa. References to gender include all genders; persons Include natural persons and entities; statutes Include re-enactments, replacements and modifications; sections are to the sections of these Terms. Headings are for convenience only and do not affect Interpretation 12.2 Third Parties: the Parties are the only parties to a Contract and (unless expressly stated/permitted under these Terms) they do not Intend to create any incidental third party rights/beneficiaries or give any person who is not a Party any right to enforce a Contract. 25H-13 12.3 Assignment: the City may not assign a Contract without prior written consent from VPS. VPS does have the right to assign this Contract or to subcontract any of its obligations under this Contract without the City's approval and without notice to the City. 12.4 Information: data supplied by the City and its Affiliates will be stored by VPS and may be stored/backed-up out of state. Each Party shall, unless otherwise required by law, only use/disclose the other Party's Confidential Information for reasonable and proper purposes In connection with the relevant Contract. 12.5 Force Majeure: save in respect of payment obligations, a Party shall not be under any liability for failure to perform or delay in performing any obligation under a Contract to the extent to which performance is prevented, frustrated or delayed as a direct result of any cause beyond that Party's reasonable control. 12.6 Waiver: delay In exercising or partial/total failure to exercise any right/remedy shall not operate as a waiver of that right/remedy or any subsequent breach. 12.7 Illegality: If any provision of a Contract is held to be illegal, Invalid or unenforceable then it shall cease to form part of that Contract and shall not affect the remainder of the Contract which shall remain In full force and effect. 12.8 Variation: unless otherwise stated in these Terms, these Terms and each Contract may only be varied in writing signed by, or with actual authority of the Parties and, in the case of VPS, only its officers have such authority. 12.9 Counterparts: each Contract may be executed in several counterparts (including by facsimile or other electronic transmission), each of which shall be deemed an original and all of which shall together constitute one and the same instrument. 12.10 Jurisdiction: each Contract shall be governed by and construed in accordance with the laws of the State of California. Any action commenced by any party to enforce the terms of this Agreement shall be brought in the courts of Orange County, State of California. 12.11 Legal Action/Entire Agreement: in the event that legal action Is brought to enforce or construe any term of a Contract, the prevailing party will be entitled to recover, in addition to any other damages or award, all legal costs and fees associated with the action. If any conflict arises among these Terms and any Order Form or other related Contract, these Terms shall govern unless expressly noted in the applicable Order or other related Contract. These Terms, including any Order Form or related Contracts executed hereunder, constitutes the entire agreement between the Parties with respect to the subject matter thereof and supersedes all proposals, oral or written, all previous negotiations, and all previous communications between the Parties with respect hereto. 12.12 Insurance: Prior to undertaking performance of work under this Agreement, VPS shall maintain and shall require its subcontractors, if any, to obtain and maintain Insurance as described below: 25H-14 a. Commercial General Liability Insurance: VPS shall maintain commercial general liability Insurance naming the City, its officers, employees, agents, volunteers and representatives as additional Insured(s) and shall Include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of VPS' operations In the performance of this Agreement, Including, without Ilm@ation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 In the aggregate. Consultant shall supply City with a fully executed additional Insured endorsement. b. Worker's Compensation Insurance: In accordance with the provisions of Section 3700 of the CA Labor Code, VPS Is required to be insured against liability for worker's compensation or to undertake self-insurance. Priortocommencing the perfonnahceofthe work under this Agreement, VPS agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. If VPS falls or refuses to produce or maintain the Insurance required by this section orfalls or refuses to furnish the City with required proof that Insurance has been procured and is in force and paid for, the City shall have the right, at tine City s election, to forthwith terminate this Agreement. Such termination shall not affect VPS' right to be paid for Its time and materials expended prior to notification of termination. The undersigned has read, understood and accepted these Master Terms & Conditions and has tine authority to commit on behalf of: IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. Signatures to follow on the next page: 25H-15 ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Kyle Nsen Assista City Attorney RECOMMENDED FOR APPROVAL: CANDIDA NEAL Interim Executive Director Planning and Building Agency CITY OF SANTA ANA Raul Godinez II City Manager VACANT PROPERTY SECURITY LLC: By: Ttitle: Tax ID# 25H-16