Tyco Integrated Security /Burglary & Fire Alarm Systems Monitoring & Maint 14THIS CONTRACT, by and between the CITY OF LA QUINTA, a municipal
corporation, herein referred to as "City," and Tyco Integrated Security herein referred to as
"Contractor."
WITNESSETH:
In consideration of their mutual covenants, the parties hereto agree as follows:.
1. Contractor shall furnish all necessary labor, material, equipment, transportation and
services for monitoring, maintenance and repair of burglary and fire alarm systems at
specific City facilities in the City of La Quinta, California pursuant to Exhibit A, Scope of
Work and Exhibit B, Tyco Standards.
2. Contractor will comply with all Federal, State, County, and La Quinta Municipal
Code, which are, as amended from time to time, incorporated herein by reference.
3. All work shall be done in a manner satisfactory to the Facilities Manager.
4. This Agreement shall commence on December 22, 2014 and terminate on
December 22, 2015.
5. 1n consideration of said work, City agrees to pay Contractor such sums as shall be
approved by the Facilities Manager at lump sums and/or unit prices stated in the
Contractor's Bid, the base consideration of Eighteen Thousand Eighteen Dollars
($18,018.00). All payments shall be subject to approval by the Facilities Manager.
6. Prevailing Wage is required for this project.
7. Except for the gross negligence or willful misconduct of an Indemnified Party (as
hereinafter defined), the Contractor hereby assumes liability for and agrees to defend (at
Indemnified Parties' option), indemnify, protect and hold harmless City and its Project
Consultants, and Engineers, officers, agents, and employees ("Indemnified Parties") from
and against any and all claims, charges, damages, demands, actions, proceedings, losses,
stop notices, costs, expenses (including counsel fees), judgments, civil fines and penalties,
liabilities of any kind or nature whatsoever, which may be sustained or suffered by or
secured against the Indemnified Parties arising out of or encountered in connection with
this Contract or the performance of the Work including, but not limited to, death of or
bodily or personal injury to persons or damage to property, including property owned by or
under the care and custody of City, and for civil fines and penalties, that may arise from or
be caused, in whole or in part, by any negligent or other act or omission of Contractor, its
officers, agents, employees or Subcontractors including, but not limited to, liability arising
from:
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k
a. Any dangerous, hazardous, unsafe or defective condition of, in or on the
premises, of any nature whatsoever, which may exist by reason of any act,
omission, neglect, or any use or occupation of the premises by Contractor,
its officers, agents, employees, or subcontractors;
b. Any operation conducted upon or any use or occupation of the premises by
Contractor, its officers, agents, employees, or subcontractors under or
pursuant to the provisions of this contract or otherwise;
c. Any act, omission or negligence of Contractor, its officers, agents,
employees, or Subcontractors;
d. Any failure of Contractor, its officers, agents or employees to comply with
any of the terms or conditions of this Contract or any applicable federal,
state, regional, or municipal law, ordinance, rule or regulation; and
e. The conditions, operations, uses, occupations, acts, omissions or negligence
referred to in Sub -subsections (1), (2), (3), and (4), existing or conducted
upon or arising from the use or occupation by Contractor on any other
premises in the care, custody and control of City.
TheContractoralso agrees to indemnify City and pay for all damages or loss suffered by
City including but not limited to damage to or loss of City property, to the extent not
insured by City and loss of City revenue from any source, caused by or arising out of the
conditions, operations, uses, occupations, acts, omissions or negligence referred to in Sub -
subsections (a), (b), (c), (d) and (e).
Contractor's obligations under this Section apply regardless of whether or not such claim,
charge, damage, demand, action, proceeding, loss, stop notice, cost expense, judgment,
civil fine or penalty, or liability was caused in part or contributed to by an Indemnified
Party. However, without affecting the rights of City under any provision of this contract,
Contractor shall not be required to indemnify and hold harmlessCityfor liability attributable
to the active negligence of City, provided such active negligence is determined by
agreement between the parties or by the findings of'a court of competent jurisdiction. In
instances where City is shown to have been actively negligent and where City's active
negligence accounts for only a percentage of the liability involved, the obligation of
Contractor will be for that entire portion or percentage of liability not attributable to the
active negligence of City.
Contractor agrees to obtain executed indemnity agreements with provisions identical to
those set forth here in this section from each and every subcontractor or any other person
or entity involved by, for, with or on behalf of Contractor in the performance of this
contract. In the event Contractor fails to obtain such indemnity obligations from others as
required here, Contractor agrees to be fully responsible according to the terms of this
section.
Failure of City to monitor compliance with these requirements imposes no additional
obligations on City and will in no way ;act as a waiver of any rights hereunder. This
obligation to indemnify and defend City as set forth here is binding on the successors,
assigns or heirs of Contractor and shall survive the termination of this contract or this
section.
Revised: 2-5-14 2
This indemnity shall survive termination of the Contract or Final Payment hereunder. This
Indemnity is in addition to any other rights or remedies that the Indemnified Parties may
have under the law or under any other Contract Documents or Agreements. In the event
of any claim or demand made against any party which is entitled to be indemnified
hereunder, City may, in its sole discretion, reserve, retain or apply any monies to the „
Contractor under this Contract for the purpose of resolving such claims; provided,
however, City may release such funds if the Contractor provides City with reasonable
assurance of protection of the Indemnified Parties' interests. City shall, in its sole
discretion, determine whether such assurances are reasonable.
The City will not be liable for any accident, loss, or damage to the work prior to its
completion and acceptance.
8. Except as otherwise required, Contractor shall concurrently with the execution of
this contract, furnish the City satisfactory evidence of insurance of the kinds and in
the amounts as follows:
Commercial General Liability Policy
Commercial General Liability InsuranceusingInsurance Services Office "Commercial
General Liability" policy form CG 00 01 or the equivalent. Defense costs must be
paid in addition to limits. There shall be no cross liability exclusion for claims or
suits by one insured against another. Limits shall be no less than One Million
Dollars ($1,000,000) per occurrence for all covered losses and no less than Two
Million Dollars ($2,000,000) general aggregate.
Coverage shall be applicable to City for injury to employees of: contractors,
subcontractors or others involved in the project. Policy shall be endorsed to provide
a separate limit applicable to this project.
Workers' Compensation Insurance
Workers' Compensation on a state -approved policy form providing statutory
benefits as required by lave with employer's liability limits no less than $1,000,000
per accident for all covered losses.
Business Auto Policy
Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 06 92
including symbol 1 (Any Auto) or the exact equivalent. Limits shall be no less than
$1,000,000 per accident, combined single limit. If Contractor owns no vehicles,
this requirement may be satisfied by a non -owned auto endorsement to the general
liability policy described above.
Excess or Umbrella Liability Insurance
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit
requirements, shall provide coverage at least as broad as specified for the
Revised: 2-5-14 3
underlying coverage. Any such coverage provided under an umbrella liability policy
shall include a drop down provisions providing primary coverage for liability not
covered by primary but covered by the umbrella. Self -insured retentions are not
permitted. Coverage shall be provided on a "pay on behalf" basis, with defense
costs payable in addition to policy limits. There shall be no cross liability exclusion
precluding coverage for claims or suits by one insured against another. Coverage
shall be applicable to City for injury to employees of Contractor, subcontractors or
others involved in the Work. The scope of coverage provided is subject to approval
of City following receipt of proof of insurance as required herein. Limits are subject
to review but in no event less than $1,000,000 per occurrence and aggregate.
This insurance shall be kept in full force and effect by Contractor during this entire contract
and all premiums thereon shall be promptly paid by it. Each policy shall further state that it
cannot be canceled without written notice to the City and shall name the City as an
additional insured. Failure to maintain the required amounts and types of coverage
throughout the duration of this Contract shall constitute a material breach of this Contract.
a Contractor agrees to endorse the Commercial General Liability coverage required
herein to include as additional insureds City, its officials, employees and agents,
using standard ISO endorsement No. CG 2010 with an edition date of 1985 or
equivalent. Contractor also agrees to require all contractors, subcontractors, and
anyone else involved in any way with the project contemplated by this Contract to
do likewise.
b. Any waiver of subrogation express or implied on the part of City to any party
involved in this Contract or related documents applies only to the extent of
insurance proceeds actually paid. City, having required that it be named as an
additional insured to all insurance coverage required herein, expressly retains the
right to subrogate against any party for sums not paid by insurance. For its part,
Contractor agrees to waive subrogation rights against City regardless of the
applicability of any insurance proceeds, and to require all contractors,
subcontractors or others involved in any way with the project(s) contemplated by
this Contract, to do likewise.
c. All insurance coverage maintained or procured by Contractor or required of others
by Contractor pursuant to this Contract shall be endorsed to delete the subrogation
condition as to City, or to specifically allow Contractors or others providing
insurance herein to waive subrogation prior to a loss. This endorsement shall be
obtained regardless of existing policy wording that may appear to allow such
waivers.
d. It is agreed by Contractor and City that insurance provided pursuant to these
requirements is not intended by any party to be limited to providing coverage for the
vicarious liability of City, or to the supervisory role, if any, of City. All insurance
coverage provided pursuant to this or any other Contract (express or implied) in any
way relating to City is intended to apply to the full extent of the policies involved.
Nothing referred to here or contained in any Contract involving City in relation to
the,project(s) contemplated by this Contract is intended to be construed to limit the
Revised: 2-5-14 4
application of insurancecoveragein any way.
e. None of the coverages required herein will be in compliance with these requirements
if they include any limiting endorsement of any kind that has not been first
submitted to City and approved of in writing.
f. All coverage types and limits required are subject to approval, modification and
additional requirements by the City, as the need arises. Contractor shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or
reduction of discovery period) that may affect City's protection without City's prior
written consent.
g. Proof of compliance with these insurance requirements, consisting of binders of
coverage, or endorsements, or certificates of insurance, at the option of City, shall
be delivered to City at or prior to the execution of this Contract. In the event such
proof of any insurance is not delivered as required, or in the event such insurance is
canceled at any time and no replacement coverage is provided, City has the right,
but not the duty, to obtain any insurance it deems necessary to protect its interests
under this or any other agreement and to pay the premium. Any premium so paid
by City shall be charged to and promptly paid by Contractor or deducted from sums
due Contractor, at City option.
h. Contractor agrees to endorse, and to require others to endorse, the insurance
provided pursuant to these requirements, to require written notice to City and the
appropriate tender prior to cancellation of such liability coverage and notice of any
material alteration of non -renewal of any such coverage, and to require contractors,
subcontractors, and any other party in any way involved with the project
contemplated by this Contract to do likewise.
i. It is acknowledged by the parties of this Contract that all insurance coverage
required to be provided by Contractor or any subcontractor, is intended to apply
first and on a primary non-contributing basis in relation to any other insurance
available to the City.
j. Contractor agrees to ensure that subcontractors, and any other party involved with
the project that is brought onto or involved in the project by contractor, provide the
same minimum insurance coverage required of Contractor. Contractor agrees to
monitor and review all such coverage and assumes all responsibility for ensuring
that such coverage is provided in conformity with the requirements of this section.
Contractor agrees that upon request, all agreements with subcontractors and others
engaged in the project will be submitted to City for review.
k. Contractor agrees not to self -insure or to use any self -insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it
will not allow any contractor, subcontractor, or other entity or person in any way
involved in the performance of work on the project contemplated by this Contract
to self -insure its obligations to City. If contractor's existing coverage includes a
deductible or self -insured retention, the deductible or self -insured retention must be
Revised: 2-5-14 5
declared to the City. At that time the City shall review options with the contractor,
which may include- reduction or elimination of the deductible or self -insured
retention, substitution of other coverage, or other solutions.
1.- The City reserves the right at any time during the term of the contract to change
the amounts and types of insurance required by giving the Contractor ninety (90)
days advance written notice of such change. Ifsuchchange results in substantial
additional cost to the Contractor, the City will negotiate additional compensation
proportional to the increased benefit to City.
m. For purposes of applying insurance coverage only, all contracts pertaining to the
project will be deemed to be executed when finalized and any activity commences
in furtherance of performance under this Contract.
n. Contractor acknowledges and agrees that any actual or alleged failure on the part of
City to inform Contractor of non-compliance with any insurance requirement in no
way imposes any additional obligations on City nor does it waive any rights
hereunder in this or any other regard.
o. Contractor will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuant to this
Contract. This obligation applies whether or not the Contract is canceled or
terminated for any reason. The insurance shall include but not be limited to
products and completed operations and discontinued operations, where applicable.
Termination of this obligation is not effective until City executes a written
statement to that effect.
p. Contractor agrees to waive its statutory immunity under any workers' compensation
statute or similar statute, in relation to the city, and to require all subcontractors
and any other person or entity involved in the project contemplated by this Contract
to do likewise.
q. Requirements of specific coverage features are not intended as limitations on other
requirements or as,a waiver of any coverage normally provided by any given policy.
Specific reference to a given coverage feature is for purposes of clarification only as
it pertains to a given issue, and is not intended by any party or insured to be all-
inclusive.
r. Any provision in any of the construction documents dealing with the insurance
coverage provided pursuant to these requirements is subordinate to and superseded
by the requirements contained herein. These insurance requirements are intended
to be separate and distinct from any other provision in this Contract and are
intended by the parties here to be interpreted as such.
s. All liability coverage provided according to these requirements must be endorsed to
provide a separate aggregate limit for the project that is the subject of this Contract
and evidencing products and completed operations coverage for not less than two
years after issuance of a final certificate of occupancy by all appropriate
Revised: 2-5-14 6
government agencies or acceptance of the completed work by City.;
t. Contractor agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge City or Contractor
for the cost of additional insurance coverage required by this Contract. Any such
provisions are to be deleted with reference to City. It is not the intent of City to
reimburse any third party for the cost of complying with these requirements. There
shall be no recourse against City for payment of premiums or other amounts with
respect thereto.
9. In accepting this Contract, Contractor certifies that in the conduct of its business it
does not deny the right of any individual to seek, obtain and hold employment without
discrimination because of race, religious creed, color, national origin, ancestry, physical
handicap, medical condition, marital status, sex or age as provided in the California Fair
Employment Practice Act (Government Code Sections 12900, et seq.) Contractor agrees
that a finding by the State Fair Employment Practices Commission that Contractor has
engaged during the term of this Contract in any unlawful employment practice shall be
deemed a breach of this Contract and Contractor shall pay to City $1,607.00 liquidated
damages for each such breach committed under this contract.
10. This Contract shall not be assignable by Contractor without the written consent of
City.
11. Contractor shall notify the Facilities Manager forthwith when the Contract is
deemed completed.
12. In accepting this Contract, Contractor certifies that no member or officer of the firm
or corporation is an officer or employee of the City except to the extent permitted by law.
13. Contractor certifies that it is the holder of any necessary California State
Contractor's License and authorized to undertake the above work.
14. The City, or its authorized auditors or representatives, shall have access to and the
right to audit and reproduce any of the Contractor records to the extent the City deems
necessary to insure it is receiving all money to which it is entitled under the contract
and/or is paying only the amounts to which Contractor is properly entitled under the
Contract or for other purposes relating to the Contract.
15. The Contractor shall maintain and preserve all such records for a period of at least
three years after termination of the contract.
16. The Contractor shall maintain all such records in the City of La Quinta. If not, the
Contractor shall, upon request, promptly deliver the records to the City or reimburse the
City for all reasonable and extra costs incurred in conducting the audit at a location other
than at City offices including, but not limited to, such additional (out of the City) expenses
for personnel, salaries, private auditors, travel, lodging, meals and overhead.
Revised: 2-5-14 7
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated
below.
"CITY"
CITY OF LA I TA
a California u icipal corporation
Dated: T14 F
J. Spevacek
=:, City Manager
William H. lhrke, City Attorney
"CONTRACTOR"
(if corporation, affix seal)
Dated: By: SIGNED IN COUNTERpART
(Signature)
Name:
(Please print)
Title:
Address:
E-mail:
Revised: 2-5-14 8
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated
below.
"CITY"
CITY OF LA QUINTA
a California municipal corporation
SIGNED IN COUNTERPART
Dated:-- By:
Les Johnson
Acting City Manager
ATTEST:
SIGNED IN COUNTERPART
BY:
City Clerk
APPROVED AS TO FORM:
SIGNED IN COUNTERPART
William H. lhrke, City Attorney
"CONTRACTOR"
(if corporation, affix seall
Dated: By:
t 'II Lure}
Name: -Ar
(Please print]
Title.
7, 61
Address:
E-mail: e.
Revised: 2-5-14 8
TYCO agrees to provide Customer with the following Services:
1. Signal Receiving and Notification Service. If an alarm signal registers at TYCO's
Central Monitoring Center (the "CMC"), TYCO shall endeavor to notify the appropriate
Police or Fire Department and the Customer's designated representative(s). If a burglar
alarm signal or fire alarm signal registers at TYCO's CMC, TYCO at its sole discretion and
subject to local jurisdiction approval and/or requirements for alarm signal verification may
endeavor to contact the Customer's premises and/or a designated Customer
Representative by telephone to verify that the alarm is not false. Failing to contact the
Customer or its designated representative, or questioning the nature of the response
received upon such contact, TYCO shall endeavor to notify the appropriate Police
Department or Fire Department. If a supervisory signal or trouble signal registers at
TYCO's CMC, TYCO shall endeavor to notify the designated representativelsl of Customer.
2. Alarm Verification Service. it is mutually understood and agreed that to provide
Alarm Verification Service, Equipment is being installed which, as to certain locations in
the premises, will require the activation of two or more sensing devices, or a second
activation of a single alarm sensor, or a continuous alarm event from a single sensor, in
order for an alarm signal to be transmitted or for TYCO to perform Signal Receiving and
Notification Service.
3. Maintenance Service. When applicable, each Order shall specify maintenance
services at a specific Facility for specified Equipment (the "Covered Equipment") and the
applicable Maintenance Charge. For Maintenance Service, TYCO will, upon Customer's
request for performance of such service, provide ordinary maintenance, repair or
replacement of such Covered Equipment due to normal wear and tear. TYCO shall bear
the expense of such maintenance, repair or replacement for the specified Maintenance
Charge. The expense of all extraordinary maintenance, repair or replacement due to
alterations in the Facilities, alterations of the Covered Equipment made at the request of
the Customer, or made necessary by changes in the Facilities, damage to the premises or
to the Covered Equipment, an EXCLUSIONS below, or to any cause beyond the control of
TYCO, shall be borne by the Customer. The Customer agrees to furnish any necessary
electric current at Customer's own expense with an outlet within a reasonable distance of
the TYCO Equipment. Maintenance Service shall be performed between TYCO's normal
working hours of 8:00 A.M. to 4:30 P.M., Monday through Friday, except holidays, unless
mutually agreed in advance by the Parties. TYCO may discontinue providing Maintenance
Service on any Covered Equipment if TYCO cannot obtain an adequate supply of
replacement Equipment, component parts and/or associated supplies on a commercially
reasonable basis. In such event, TYCO will refund on a pro-rata basis any prepaid
Maintenance Charge on the affected Equipment.
Revised: 2-5-14 9'
O EXCLUSIONS: Maintenance on the following Equipment or Equipment
components will be provided only on a time and material basis: (1) window foil; (2)
security screens; (3) any exterior mounted devices; (4) PROM (Programmable Read
Only Memory); (5) Conditions Not Covered by warranty; (6) Equipment and/or
components that are no longer manufactured or commercially available.
(ii► It is understood and -agreed that TYCO's obligation relates to the
maintenance solely of the Equipment, and that TYCO is not obligated to maintain,
repair, service, replace, operate or assure the operation of any equipment,
component or devices of the Customer or of others not installed by TYCO.
(iii) If not contracted for before the expiration of the Warranty, "TYCO will
provide Maintenance Service only after inspecting the previously installed
Equipment and making any necessary repairs or replacements to the Equipment at a
charge to the Customer for labor and/or material at TYCO's then prevailing rates.
4. Inspections/Testing. TYCO will provide the number of inspections/tests of the
Equipment as specified in any Order. Inspections/Testing shall be performed between
TYCO's normal working hours of 8:00 A.M. and 4:30 P.M., Monday through Saturday,
except holidays, unless otherwise mutually agreed in advance by the Parties, and subject
to EXCLUSIONS set forth above for Maintenance Service.
5. Direct Connect. In jurisdictions where required, a Direct Connection to the
Municipal Police, Fire Department or other Agency shown shall be provided. It is mutually
Understood and agreed that signals transmitted hereunder will be monitored in Municipal
Police and/or Fire Departments or other location and that the personnel of such Municipal
Police and/or Fire Departments or other location are not the agents of TYCO nor does
TYCO assume any responsibility for the manner in which such signals are monitored or the
response, if any, to such signals.
Revised: 2-5-14 10
LOCATION
ANNUALCOST
Library Fire Alarm
$1,139.00
Museum Fire Alarm
$1,501.00
City Hall Fire Alarm
$5'236.08
Fire Station #93 Fire Alarm
$1'031.00
Fire Station #32 Fire 4|omm
$1,562.00
Senior Center Fire Alarm
$1'125.00
Annual Cost Including Preferred Services: $11,594 " OT
Monthly Payments: $966.17
FireStation A32Fire Alarm Program $985"00
Installation Package ~ 'V885.00
Services _provided to all locations include:
Fire Alarm Monitoring;
Provide and bear the expense of ordinary maintenance and repair of the covered systems,
this is to include the replacement nfcovered system batteries; and
Annual inspections required by the local authority having jurisdiction.
ACTS OF GOD, THEFT AND VANDALISM ARE NOT COVERED.
Customer Owned Equipment
Provides the City with continued ownership of all equipment.
Rv,ised:z-5'1* 11
BURGLARY/ACCESS SYSTEMS
LOCATION ANNUAL COST
Library Burglary Alarm $700.00
Museum Burglary Alarm $1,130.00
City Hall Burglary (+panic) Alarm $1,747.92
City Hall Access Control $1,139.00
Senior Center Burglary Alarm $1,007.00
La Quinta Park $700.00
Annual Cost Including Preferred Services: $6,423.92
Monthly Payments: $535.33
One Time Charaes-
Library Burglary Alarm $1,526.51
(Vista Control Panel & Keypad)
Senior Center Burglary Alarm $2,895.00
(Vista Control Panel, Keypad, 4 Motion, & 3 Door Contacts)
La Quinta Park $1,526.51
(Vista Control Panel & Keypad)
Installation Package: $5,948.02
Services provided to all locations include:
Burglary Alarm Monitoring; and
Provide and bear the expense of ordinary maintenance and repair of the covered systems,
this is to include the replacement of covered system batteries.
Revised: 2-5-14 12
III
Notwithstanding anything in the Customer Agreement to the contrary, Customer and
TYCO agree as follows:
1. Scope -of Work: TYCO agrees to provide Customer with security equipment and
services (the "Equipment" and "Services") in accordance with TYCO's proposal and
pursuant to the terms and conditions of the Agreement.
2. Progress Billing and Payment. Customer shall pay all invoices within thirty (30) days
from the date of invoice:
3. Warranty. Any part of the Equipment installed under this Agreement which proves
to be defective in material or workmanship within ninety (90) days of the date of
completion of installation (the "Warranty Period") will be repaired or replaced at TYCO's
option with a new or refurbished so as to be a functionally new operative part. Labor and
material required to repair or replace such defective components will be free of charge
during the Warranty Period. Conditions Not Covered by Warranty: A► Damage resulting
from accidents, acts of God, terrorism, alteration, misuse, tampering, abuse or other cause
not related to a defect in material or workmanship; B1 Failure of the Customer to properly
follow operating instructions provided by TYCO; C► Adjustments necessitated subsequent
to completion of installation by TYCO and acceptance by Customer due to misalignment of
video cameras, improper adjustment of monitor brightness and/or contrast tuning dials or
changes to lighting conditions in the area viewed by the camera(s); D► Trouble due to
interruption of commercial power, or to the phone service or to use of Non -Traditional
phone service; El Battery failure; or F► Devices designed to fail in protecting the
Equipment, such as, but not limited to, fuses and circuit breakers. Work performed on
Equipment by any party other than an TYCO authorized representative may void this
Warranty. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4. Indemnity, Limitation of Liability_and_Waiver of Consequential Dama es
4.1 Indemnity. TYCO will hold the Customer harmless from damage, liability and
expense, including reasonable attorneys' fees, to the extent resulting directly from
negligent acts or omissions of TYCO's agents, employees, or assigns, during and within
the scope of employment of such persons while they are at the Customer's Facility
performing installation, repair or maintenance service, or from damage loss or injury to the
extent directly caused due to defects or conditions of the Equipment provided or
negligence or other wrongful conduct in the installation performed hereunder by TYCO
(e.g., the Equipment itself causes a fire to start or dislodges from a mounting and strikes a
third party). Notwithstanding anything to the contrary herein, the foregoing hold harmless
obligation will not apply to any damage, liability or expense arising from or due to
occurrences or the consequences therefrom that the Equipment or Service is intended to
detect, avert or record, irrespective of cause or origin.
Revised: 2-5-14 13
4.2 Electronic Security,, Services _Limitation of liability. TYCO is not an insurer and the
amounts charged the Customer are not insurance premiums. TYCO's charges are based
upon the value of the Services and Equipment provided hereunder and are unrelated to the
value of Customer's property, any property of others located in or at Customer's Facility,
or the risk of loss associated with such Facility. TYCO's Services and Equipment do not
cause and cannot prevent occurrences of the types of events (i.e., criminal break-ins,
unauthorized intrusions, fires, etc.) they are intended to detect (such events hereinafter,
"Detection Events"). TYCO MAKES NO GUARANTY OR WARRANTY, INCLUDING ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
THAT THE SERVICES OR EQUIPMENT SUPPLIED WILL AVERT OR PREVENT DETECTION
EVENTS OR THE CONSEQUENCES THEREFROM. Accordingly, TYCO shall be exempt
from liability for loss, damage or injury due directly or indirectly to Detection Events, or the
consequences therefrom and Customer releases and waives for itself and its insurer all
subrogation and other rights to recover from TYCO arising as a result of paying any claim
for loss, damage or injury of Customer or another person. Alternatively, if TYCO is found
liable for loss, damage or injury under any legal theory due to a failure of the Services or
Equipment in any respect, TYCO's liability irrespective of cause shall be limited to a sum
equal to 10% of the annual service charge or $1,000, whichever is greater, as agreed
upon damages and not as a penalty, as Customer's sole remedy. Customer shall defend,
indemnify and hold the Contractor, its corporate affiliates, and their respective officers,
directors, agents and employees, harmless from damage, liability and expense to the
extent that any such loss arises out of 0) any claim related to invasion of privacy, infliction
of emotional distress, harassment, violation of eavesdropping/wiretapping laws or similar
claims arising out of Customer's use of the Equipment and/or Services, or 1ii) any claim
related to a Detection Event. No suit or action arising from or relating to a Detection Event
shall be brought against Seller more than one (1) year after the accrual of the cause of
action therefore.
4.3 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS
OF PROFITS) EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
AND HOWSOEVER OCCASIONED.
5. Insurance. TYCO shall maintain General Comprehensive Liability and Automobile
Liability Insurance of $2000,000 for each occurrence and $4,000,000 in the aggregate.
TYCO does not waive its rights of subrogation. TYCO's insurance shall be primary and
non-contributory to the extent of TYCO's negligence or other wrongful conduct.
Aggregates are not per project, nor per site.
Notwithstanding anything in the Customer's Agreement to the contrary, TYCO's insurance
policies will not respond to the negligence or other wrongful conduct of any additional
insured or other party.
6. Audit. TYCO shall maintain, in accordance with standard recognized accounting
practices, accurate and complete invoices and service tickets that enable TYCO to
demonstrate the amounts billed corresponding to work performed under this Agreement.
Upon written notice, TYCO shall allow Customer and its authorized agents and
representatives to audit such invoices and service tickets during the contract term, during
Revised: 2-5-14 14
normal business hours. Customer shall bear the cost of these audits unless it is
determined TYCO overcharged Customer during the contract term.
7. 1P,Ownership, Equipment Software. Nothing provided by TYCO shall be deemed
"work made for hire". Any software provided with the Equipment or in connection with the
Services is proprietary to TYCO and/or TYCO's supplier(s) and is Licensed or sublicensed to
Customer on a non-exclusive basis subject to the terms of any applicable end user license
agreement.
8. Drug Screening, Background Checks. TYCO conducts comprehensive pre-
employment criminal background checks and is committed to providing a safe workplace.
9. Assignment and Subcontracting,_ Either party may assign its rights and obligations
under this.Agreement without the approval of the other party to any of their affiliates,
subsidiaries or parent companies or third party that (a) acquires substantially all of the
assetsorstock of, merges or consolidates with or into, or acquires a controlling interest in
the assignor and (b) expressly assumes in writing the assignor's obligations and
responsibilities hereunder. TYCO may subcontract its obligations under this Agreement
without notice to or consent from Customer.
10. Delay, Force Ma'eure,, Hazardous Substances. TYCO assumes no liability for delays
in installation or service of the Equipment or for the consequences therefrom, however
caused, or for interruptions of service or for the consequences therefrom due to strikes,
riots, floods, acts of god, acts of terrorism or any causes beyond the control of TYCO.
The work to be performed by TYCO does not involve the identification or remediation of
"hazardous materials" or conditions. Customer represents and warrants to the best of
Customer's knowledge the work site is free of any hazardous materials. "Hazardous
materials" includes but is not limited to asbestos, asbestos -containing material,
polychlorinated biphenyl ("PCB"), formaldehyde or other potentially toxic or otherwise
hazardous material. If any such substance is discovered on the work site, TYCO will not
be required to install or service the Equipment at such site unless and until Customer
certifies the removal or safe containment of such hazardous materials.
1 1 . Safety Act Reciprocal Waiver. Certain of TYCO's -equipment and services have
received certification and/or designation as Qualified Anti -Terrorism Technologies ("QATT")
under the Support Anti -terrorism by Fostering Effective Technologies Act of 2002, 6
U.S.C. §§ 441-444 (the "Safety Act"). As required under 6 C.F.R. 25.5(e), to the
maximum extent permitted by law, TYCO and customer hereby agree to waive their right
to make any claims against the other for any losses, including business interruption losses,
sustained by either party or their respective employees, resulting from an activity resulting
from an "Act of Terrorism" as defined in 6 C.F.R. 25.2, when QATT have been deployed in
defense against, response to, or recovery from such Act of Terrorism.
12. Export Control Customer shall not export or re-export, directly or indirectly, any: (i)
product or service provided under this Agreement; (ii) technical data; (iii) software; (iv)
information; or (v1 items acquired under this Agreement to any country for which the
United States Government (or any agency thereof) requires an export license or other
approval without first obtaining any licenses, consents or permits that may be required
Revised: 2-5-14 15
under the applicable laws of the U.S. or other foreign jurisdictions, including the Export
Administration Act and Regulations, and shall incorporate in all export shipping documents
the applicable destination control statements.
13 may scan, fax' email, image, or otherwise convert this
Agreement into an electronic format of any type or form, now known or developed in the
future. Any unaltered or unadulterated copy of this Agreement produced from such an
electronic format will be legally binding upon the parities and equivalent to the original for
all purposes, including litigation. TYCO may rely upon Client's assent to the terms and
conditions Vfthis Agreement if Client has signed this Agreement or demonstrated its intent
to be bound electronically orotherwise.
14. Authority. Customer represents that (a) Customer owns the premises in which the
Equipment/Services are being furnished or has the Owner's authority to engage TYCO.
15and conditions of this Exhibit shall supersede any and
all conflicting or inconsistent terms and conditions of the Customer's Agreement and any
other associated document.
IN WITNESS WHEREOF, the Parties hereto have executed this Exhibit, which may
be signed in one ormore counterparts, which taken together shall constitute one and the
same Exhibit, as mfthe day and year first written he\ouu' The Parties may scan, fax, email,
image, or otherwise convert this Exhibit into an electronic format of any type or form, now
known or developed in the future. Any unaltered or unadulterated copy of this Exhibit~
Produced from such an electronic format will be legally binding upon the parties and
equivalent tmthe original for all purposes.
TYCO INTEGRATED SECURITY LLC
Teresa Thompson, Deputy City Clerk
City ofLeDuinta,[A
Acting City Manager
By.
William H. lhrke, City Attorney
under the applicable laws of the U.S. or other foreign jurisdictions, including the Export
Administration Act and Regulations, and shall incorporate in all export shipping documents
the applicable destination control statements.
13. Electronic Media. TYCO may scan, fax, email, image, or otherwise convert this
Agreement into an electronic formatofany type or form, now known or developed in the
future. Any unaltered or unadulterated copy of this Agreement produced from such an
electronic format will be legally binding upon the parities and equivalent to the original for
all purposes, including litigation. TYCO may rely upon Client's assent to the terms and
conditions of this Agreement if Client has signed this Agreement or demonstrated its intent
to be bound electronically or otherwise.
14. Authority. Customer represents that (a) Customer owns the premises in which the
Equipment/Services are being furnished or has the Owner's authority to engage TYCO.
15. Controlling Terms. The terms and conditions of this Exhibit shall supersede any and
all conflicting or inconsistent terms and conditions of the Customer's Agreement and any
other associated document.
IN WITNESS WHEREOF, the Parties hereto have executed this Exhibit, which may
be signed in one or more counterparts, which taken together shall constitute one and the
same Exhibit, as of the day and year first written below. The Parties may scan, fax, email,
image, or otherwise convert this Exhibit into an electronic format of any type or form, now
known or developed in the future. Any unaltered or unadulterated copy of this Exhibit
produced from such an electronic format will be legally binding upon the parties and
equivalent to the original for all purposes.
SIGNED IN COUNTERPART
Title: -
CITY OF LA
QUINTA
municipal? California p ,
Dated:
By.,
Teresa Thompson, Deputy City Clerk
City of La Quinta, CA
Dated:
By:
Frank J. Spevacek, City Manager
Bye;
William H. Ihrke, City Attorney
Revised: 2=5-14 16