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HomeMy WebLinkAbout2019 CON Kymera Systems - Kymera Mobile - Automated Inventory Tracking SystemAGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND KYMERA SYSTEMS, LLC THIS AGREEMENT is entered into on this a 3 day of July, 2019, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and KYMERA SYSTEMS, LLC, a Maryland limited liability company (the "CONTRACTOR"). RECITALS WHEREAS, CONTRACTOR has developed a product called Kymera Mobile ("KYMERA MOBILE") which is an Automated Inventory Tracking system designed expressly for tracking assets in police, utility, fire and rescue vehicles. WHEREAS, CONTRACTOR is conducting a pilot program for KYMERA MOBILE (hereinafter the "PILOT PROGRAM"). WHEREAS, the CITY is interested in participating in the PILOT PROGRAM. WHEREAS, the CITY has determined that the CITY's police department is suitable for CONTRACTOR'S PILOT PROGRAM because its officers must inventory equipment during both pre -shift and post -shift inspections. WHEREAS, the CITY is interested in KYMERA MOBILE because the CITY will benefit from the development of a product that will allow its police department and officers to better track equipment and prevent its loss on calls and stops. WHEREAS, the CITY and CONTRACTOR desire to enter into an agreement setting forth the terms and scope of each party's participation in the PILOT PROGRAM. NOW, THEREFORE, THE PARI'1ES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CITY agrees to engage the CONTRACTOR to perform the PILOT PROGRAM, and the CONTRACTOR agree to perform the PILOT PROGRAM set forth in accordance with all terms and conditions contained herein. The CONTRACTOR represents that all services shall be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR. 2. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective on July 22, 2019 and will continue until September 29, 2019. On the effective date, the Contractor will begin a one -week site survey in preparation for the start of the two -month PILOT PROGRAM. The Contractor will utilize the site survey to inspect participating vehicles, meet participating officers, identify items to be equipped with RFID tags, and handle other administrative issues. The PILOT PROGRAM and this Agreement may be extended for three (3), two -month terms by mutual agreement of both PARTIES upon the same terms and conditions. Any extension of this Agreement must be approved in writing by the City Manager. 3. SCOPE OF SERVICES. The PILOT PROGRAM will be short term trial of KYMERA MOBILE in four (4) of the CITY's License Plate Reader (LPR) police vehicles. Participating officers will be trained to use KYMERA MOBILE by CONTRACTOR. Thereafter, participating officers will use KYMERA MOBILE to inventory and account for equipment during each officer's pre -shift and post -shift inspection for the duration of the PILOT PROGRAM. CONTRACTOR will provide the CITY with KYMERA MOBILE and related hardware. CONTRACTOR will install KYMERA MOBILE hardware on police vehicles equipped with "Panasonic Toughbooks." CONTRACTOR will then install KYMERA MOBILE software on the "Panasonic Toughbooks" with the assistance of the CITY's Management Information Systems (MIS) staff. City staff shall ensure that any software or program installed by CONTRACTOR is in compliance with DO.I CLETS. CONTACTOR will also provide technical support for KYMERA MOBILE during the PILOT PROGRAM_ CONTRACTOR will collect data and information from the CITY's use of KYMERA MOBILE during the PILOT PROGRAM that will help it to refine and improve KYMERA MOBILE. CONTRACTOR acknowledges that KYMERA MOBILE will not access the internet during the PILOT PROGRAM. Participating officers will also be encouraged to provide feedback regarding their individual experience with KYMERA MOBILE, including likes and dislikes, as well as suggestions on ways to improve KYMERA MOBILE. A representative from CONTRACTOR will also occasionally ride -along with participating officers as they use KYMERA MOBILE in the field after signing a release of liability form and submitting documents for a criminal background check. At the conclusion of the PILOT PROGRAM, the CI'! Y will allow CONTRACTOR to demonstrate KYMERA MOBILE and present the results of the PILOT PROGRAM to various outside and media agencies in accordance with and subject to section 14, Confidential Information and with notice and the prior written consent of the CITY. CITY shall review all requests to release or disclose information to the public or various outside and media agencies within thirty (30) calendar days of the request or notice by CONTRACTOR and consent to release or disclose information shall not be unreasonably withheld. CONTRACTOR recognizes that certain information may not be disclosed pursuant to State and Federal laws. Attached hereto as Exhibit "A" are details regarding the parties respective obligations with regard to the PILOT PROGRAM. The CONTRACTOR shall be responsible for all research and reviews related to the work and shall not rely on personnel of the CITY for such services, except as authorized in advance by the CITY. The CONTRACTOR shall appear at meetings as requested and necessary to keep staff and City Council advised of the progress on the project. The CITY may unilaterally, or upon request from the CONTRACTOR, from time to time reduce or increase the Scope of Services to be performed by the CONTRACTOR under this Agreement. Upon doing so, the CITY and the CONTRACTOR agree to meet in good faith and confer on any changes. 4. PROJECT COORDINATION AND SUPERVISION. Daniel Hansen, of the National City Police Department, hereby is designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONTRACTOR shall assign Standard Agreement Page 2 of 14 City of National City and Revised May 2019 Kymexa Systems, LLC a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONTRACTOR. CESAR GONZALEZ thereby is designated as the Project Director for the CONTRACTOR. 5. COMPENSATION AND PAYMENT. Neither party will receive monetary compensation for their participation in the PILOT PROGRAM and shall assume full responsibility for any and all expenses incurred participating in the PILOT PROGRAM. Notwithstanding, the parties agree that this Agreement is supported by good and valuable consideration the sufficiency of which is hereby acknowledged. 6. DISPOSITION AND OWNERSHIP OF DOCUMENTS. Any and all data, documents, information, intellectual property, and/or work product conceived, made, developed, reduced to practice, prepared, or otherwise created in connection with the PILOT PROGRAM, whether paper or electronic, shall be deemed to have been conceived, made, developed, reduced to practice, prepared, or otherwise created by CONTRACTOR, and shall become the property of CONTRACTOR. The CITY hereby irrevocably assigns to CONTRACTOR all right, title, and interest the CITY may have in the data, documents, information, intellectual property, and/or work product conceived, made, developed, reduced to practice, prepared, or otherwise created in connection with the PILOT PROGRAM. The CITY agrees that CONTRACTOR may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize the data, documents, information, intellectual property, and/or work product developed by or resulting from the PILOT PROGRAM for CONTRACTOR's purposes, and the CITY expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. However, CONTRACTOR recognizes the CITY's obligation under the California Public Records Act and this section is not meant to impede the CITY's obligation under that Act. CONTRACTOR shall not disclose or release any data, documents, information or work product from the PILOT PROGRAM to the media, public or otherwise, unless with the written consent of the CITY after written notice and the opportunity to review the data, documents, information or work product to be released. CITY shall review all requests to release or disclose any data, documents, information or work product from the PILOT PROGRAM to the media, public or otherwise within thirty (30) calendar days of the request and notice by CONTRACTOR and consent shall not be unreasonably withheld. Furthermore, all programs, systems, hardware, data, materials, or equipment provided to the CITY in connection with the CITY's participation in the PILOT PROGRAM are and shall remain the property of CONTRACTOR. Upon completion of the PILOT PROGRAM, the CITY shall turn over to CONTRACTOR all property in the CITY's possession belonging to CONTRACTOR, unless purchased by the CITY under a separate agreement. 7. INDEPENDENT CONTRACTOR Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the CONTRACTOR nor the CONTRACTOR's employees are employees of the CITY, and are not entitled to any of the rights, benefits, or Standard Agreement Page 3 of 14 Revised May 2019 Kymera Systems, LLC City of National City and privileges of the CITY's employees, including but not limited to retirement, medical, unemploy- ment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR's employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and its employees. Neither this Agreement, nor any interest herein, may be assigned by the CONTRACTOR without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONTRACTOR from employing or hiring as many employees, or SUBCONTRACTORS, as the CONTRACTOR may deem nececgaty for the proper and efficient performance of this Agreement. All agreements by CONTRACTOR with its SUBCONTRACTOR(S) shall require the SUBCONTRACTOR(S) to adhere to the applicable terms of this Agreement. 8. CONTROL. Neither the CITY, nor its officers, agents, or employees shall have any control over the conduct of the CONTRACTOR or any of the CONTRACTOR's employees, except as set forth in this Agreement. The CONTRACTOR, or the CONTRACTOR's agents, servants, or employees are not in any manner agents, servants, or employees of the CITY. The CONTRACTOR and its agents, servants, and employees are wholly independent from the CITY and CONTRACTOR's obligations to the CITY are solely prescribed by this Agreement. 9. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable state and federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City, whether now in force or subsequently enacted. The CONTRACTOR and each of its SUBCONTRACTOR(S), shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 10. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. CONTRACTOR must promptly produce a copy of any such license, permit, or approval to CH Y upon request. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONTRACTOR to practice its profession. 1.1. STANDARD OF CARE. A. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR's trade or profession currently practicing under similar conditions and in similar locations. The CONTRACTOR shall take all special precautions necessary to protect the CONTRACTOR's employees and members of the public from risk of harm arising out of the nature of the work andfor the conditions of the work site. B. Unless disclosed in writing prior to the date of this Agreement, the CONTRACTOR warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation Standard Agreement Page 4 of 14 City of National City and Revised May 2019 Kymera Systems, LLC proceedings concerning the CONTRACTOR's professional performance or the furnishing of materials or services relating thereto. 12. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONTRACTOR will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 13. CONFIDENTIAL INFORMATION. 13.1 CITY's Confidential Information. The CITY may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONTRACTOR shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 14, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONSULTANT shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. The CONTRACTOR shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 13.2 CONTRACTOR's Confidential Information. The CITY acknowledges and agrees that any and all information concerning KYMERA MOBILE and the PILOT PROJECT are "Confidential and Proprietary Information," and the CITY agrees that it will not permit the duplication, use or disclosure of any such Confidential and Proprietary Information to any person (other than its own employee, agent or representative who must have such information for the performance of its obligations hereunder), unless such duplication, use or disclosure is specifically authorized by CONTRACTOR. Standard Agreement Page 5 of 14 City of National City and Revised May 2019 Kymera Systems, LLC 14. INDEMNIFICATION AND HOLD HARMLESS. To the maximum extent provided by law, The CONTRACTOR agrees to defend, indemnify and hold harmless the City of National City, its officers, officials, agents, employees, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONTRACTOR'S performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the CITY, its agents, officers, employees or volunteers. CITY will cooperate reasonably in the defense of any action, and CONTRACTOR shall employ competent counsel, reasonably acceptable to the City Attorney. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 15. EMPLOYEE PAYMENTS AND INDEMNIFICATION. 15.1 PERS Eligibility Indemnification. If CONTRACTOR's employee(s) providing services under this Agreement claims, or is determined by a court of competent jurisdiction or the California Public Employees Retirement System ("PERS") to be eligible for enrollment in PERS of the CITY, CONTRACTOR shall indemnify, defend, and hold harmless CITY for the payment of any employer and employee contributions for PERS benefits on behalf of the employee as well as for payment of any penalties and interest on such contributions which would otherwise be the responsibility of the CITY. CONTRACTOR's employees providing service under this Agreement shall not: (1) qualify for any compensation and benefit under PERS; (2) be entitled to any benefits under PERS; (3) enroll in PERS as an employee of CITY; (4) receive any employer contributions paid by CITY for PERS benefits; or (5) be entitled to any other PERS-related benefit that would accrue to a C ITY employee. CONTRACTOR's employees hereby waive any claims to benefits or compensation described in this Section 16. This Section 16 a pplies to CONTRACTOR notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary. 15.2 Limitation of CITY Liability. Neither CONTRACTOR nor CONTRACTOR's officers, employees, agents, and subcontractors are entitled to any payment, salary or wages, or retirement, health, leave or other fringe benefits applicable to CITY employees. The CITY will not make any federal or state tax withholdings on behalf of CONTRACTOR. The CITY shall not be required to pay any workers' compensation insurance on behalf of CONTRACTOR. 15.3 Indemnification for Empoovee Payments. CONTRACTOR agrees to defend and indemnify the CITY for any obligation, claim, suit, or demand for tax, retirement contribution Standard Agreement Page 6 of 14 City of Rational City and Revisal May 2019 Kymera Systems. LLC including any contribution to PERS, social security, salary or wages, overtime payment, or workers' compensation payment which the CITY may be required to make on be half of (1) CONTRACTOR, (2) any employee of CONTRACTOR, or (3) any employee of CONTRACTOR construed to be an employee of the CITY, for work performed under this Agreement. This is a continuing obligation that survives the termination of this Agreement. 16. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Labor Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, employees, and volunteers from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attomey's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement. 17_ INSURANCE. The CONTRACTOR, at its sole cost and expense, shall purchase and maintain, and shall require its SUBCONTRACTOR(S), when applicable, to purchase and maintain throughout the term of this Agreement, the following insurance policies: A. ® If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include Hired Autos Only and Non -Owned Autos Only. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of either $2,000,000 per occurrence and $4,000,000 a ggregate, or $1,000,000 per occurrence and $2,000,000 aggregate with a $2,000,000 umbrella policy, covering all bodily injury and property damage arising out of its operations, work, or performance under this Agreement. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". The "project" or "location" should be noted with specificity on an endorsement that shall be incorporated into the policy. D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of CONTRACTOR's employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the CITY. Said endorsement shall be provided prior to commencement of work under this Agreement. If CONTRACTOR has no employees subject to the California Workers' Compensation and Labor laws, CONTRACTOR shall execute a Declaration to that effect. Said Declaration shall be provided to CONTRACTOR by CITY. stenda,d Agreement Page 7 of 14 Revised May 2019 Kymeia Systems, LLC City of National City and E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, officials, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY's Risk Manager, at the address listed in subsection G below, of cancellation or material change. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. G. The Certificate Holder for all policies of insurance required by this Section shall be: City of National City c/o Risk Manager 1243 National City Boulevard National City, CA 91950-4397 H. Insurance shall be written with only insurers authorized to conduct business in California that hold a current policy holder's alphabetic and financial size category rating of not less than A: VII according to the current Best's Key Rating Guide, or a company of equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non - admitted "surplus lines" carriers, they must be included on t he most recent List of Approved Surplus Line Insurers ("LASLI") and otherwise meet rating requirements. I. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager If the CONTRACTOR does not keep all insurance policies required by this Section 18 in full force and effect at all times during the term of this Agreement, the CITY may treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. CITY reserves the right to modify the insurance requirements of this Section 18, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. K. If the CONTRACTOR maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY shall be entitled to the broader coverage or higher limits (or both) maintained by the CONTRACTOR. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. 18. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. Standard Agreement Page 8 of 14 City of National City and Revised May 2019 Kymeaa Systems. LLC For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 19. TERMINATION. A. This Agreement may be terminated with or without cause by either party. Termination without cause shall be effective only upon 60-day's written notice. During said 60- day period, the parties shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by either party for cause in the event of a material breach of this Agreement, misrepresentation by either party in connection with the formation of this Agreement or the performance of services, or the failure to perform services detailed in Exhibit "A". C. Termination with or without cause shall be effected by delivery of written Notice of Termination as provided for herein. D. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. 20_ NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: Jose Tellez Chief of Police National City Police Department City of National City 1243 National City Boulevard National City, CA 91950-4397 Standard Agreement Page 9of14 City ofNational City and Revised May 2019 Kymeaa Systems, LLC To CONTRACTOR_ Cesar Gonzalez Project Coordinator Kymera Systems, LLC 960 San Marcos Blvd., Ste 210 San Marcos, CA 92078 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 21. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720, 1720.2, 1720.3, 1720.4, and 1771. CONTRACTOR is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 22. ADMINISTRATIVE PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. To the extent any exhibits, schedules, or provisions thereof conflict or are inconsistent with the terms and conditions contained in this Agreement, the terms and conditions of this Agreement shall control. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. Standard Agreement Page III of 14 City of National City and Revised May 2019 Kymera Systems, LLC G. Assignment & Assumption of tights. CONTRACTOR shall nct assign this Agreement, in whole or in part, to any other party without first obtaining the written consent of CITY. H. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. I. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Califomia. The venue for any legal action arising under this Agreement shall be in either state or federal court in the County of San Diego, State of California. J. Audit. If this Agreement exceeds ten -thousand dollars ($ 10,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. K. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. L. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. M. Subcontractors orSutrconsultants. The CITY is engaging the services of the CONTRACTOR identified in this Agreement. The CONTRACTOR shall not subcontract any portion of the work, unless such subcontracting was part of the original proposal or is allowed by the CITY in writing. In the event any portion of the work under this Agreement is subcontracted, the subconsultant(s) shall be required to comply with and agree to, for the benefit of and in favor of the CITY, both the insurance provisions in Section 18 and the indemnification and hold harmless provision of Section 15 of this Agreement. /// /// /// /// /// /// /// /// /// n/ Siao3atil Aground Page llof14 City of National City and Revised May 2019 Kymera Systems. LLC N. Construction. The parties acknowledge and agree that (i) eachparty is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such parry's counsel and advisers have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY �y. APPROVED AS TO FORM: Angil P. Morris -:ones City Attorney By: Senior Assistant' City Attorney Standard Agreement KYMERA SYSTEMS, LLC, a Maryland limited liability company By: Page 12 of 14 H Friedman, Managing Member City of National City and Revised May 2019 Kymexa Systems, LLC EXHIBIT. "A" 1. CONTRACTOR'S OBLIGATIONS. CONTRACTOR's obligations with regard to the PILOT PROGRAM shall include: a) Providing the CITY with all equipment and software necessary to operate KYMERA MOBILE during the PILOT PROGRAM. b) Installing KYMERA MOBILE and all attendant hardware in each squad car participating in the PILOT PROGRAM with the assistance of the City's Management Information Software staff. Securing Radio Frey Ifcion (III?) tam to items accounted for in the CTTY'spolice department's pre -shift and post -shift inspection including, but not limited to, rifles, shotguns, ammo, flares, evidence kits, fire extinguishers, tasers, pepper ball guns, bag valve masks, fuel cards, body cameras, and communication devices. d) Maintaining .KYMERA MOBIL ,F and;relat+ed l dv re and..equip n eat for the duration of the PILOT PROGRAM. e) Providing operational instruction and training for KYMERA MOBILE to officers participating in the PILOT PROGRAM. 2. THE CITY'S OBLIGATIONS...The arr subligationswithregardtothe.P T PROGRAM shall include: Standard Agreement a) Pledging participation to the PILOT PROGRAM four (4) of the CITY's License Plate Reader (LPR) police vehicles, equipped with `Panasonic Tort b) If necessary, updating "Panasonic Toughbooks" or other department laptops participating in the PILOT PROGRAM to the appropriate version of the Java Platform. c) Facilitatingtheusage. of KYMERA MOBILE duringboth pre -shift and post -shift inspections for the duration of the PILOT PROGRAM. d) Providing CONTRACTOR unrestricted access to all information and data provided and/or collected by the CITY in connection with the CITY's participation in the PILOT PROGRAM e) Permitting CONTRACTOR's designated representative to occasionally ride -along with officers participating in the PILOT PROGRAM, on t he condition that the designated representative passes an appropriate background check and fills out the appropriate waiver of liability form. Page 13 of 14 City (it -National City and Revised May 2019 Kymera Systems. LLC Standard Agreement 4 Providing CONTRACTOR prompt notice, upon discovery, of any and each failu€eor malfunction of KYMERA MOBILE and/or equipment during the PILOT PROGRAM. g) Providing CONTRACTOR feedback regarding ease of use, hardware installation, as well as suggestions on ways to improve KYMERA MOBILE over the course of the PILOT PROGRAM. h) Cooperating with CONTRACTOR in demonstrating KYMERA MOBILE and presenting the results of the PILOT PROGRAM to various media and outside agencies. CITY shall havethe opportunity to review all data or information or results derived ° from the PILOT PROGRAM prior to its release to various media and outside agencies. Page 14of14. City of National. City and. Revised May 2019 Kymna Systems, LI.0 CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 Michael R. Dalla, CMC - City Clerk August 21, 2019 Mr. Cesar Gonzalez Project Coordinator Kymera Systems, LLC 960 San Marcos Blvd., Ste. 210 San Marcos, CA 92078 Dear Mr. Gonzalez, On July 23`d, 2019, an Agreement was entered into between the City of National City and Kymera Systems, LLC. We are enclosing a fully executed original Agreement for your records. Sin cra{ ely, Michael R. Dalla, CMC City Clerk Enclosure