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CONTRACT 6621 Service AgreementAgreement No. 6621 Revised 217/23 ` SOFTWARE SERVICES AGREEMENT BETWEEN THE CITY OF EL SEGUNDO AND IDENTIV, INC. This AGREEMENT is entered into this I st day of March 2023, by and between the CITY OF EL SEGUNDO, a municipal corporation and general law city ("CITY") and IDENTIV, INC., a California corporation ("CONSULTANT"). 1. CONSIDERATION.. A. As partial consideration, CONSULTANT agrees to perform the scope of services attached as Exhibit "A," and incorporated by reference ("SERVICES"). The SERVICES include installing and maintaining a software program for various tasks associated with programming the door access badges ("SOFTWARE'). B. As additional consideration, CONSULTANT and CITY agree to abide by the terms and conditions contained in this Agreement; C. As additional consideration, CITY will pay CONSULTANT the compensation set forth in Exhibit A, but in no event more than $10,000. D. CITY will not be liable for any costs or expenses exceeding the sum paid to CONSULTANT pursuant to Section I (C) unless otherwise agreed to by the Parties and by written amendment to this Agreement. 2. TERM. The term of this Agreement will be from April 1, 2023 to April 1, 2024. Unless otherwise determined by written amendment between the parties, this Agreement will terminate in the following instances: 3. A. Completion of the work specified in Exhibit "A' ; A. Termination as stated in Section 8. 4. "SELF-HELP" AND "MALICIOUS" CODES PROHIBITED. A. CONSULTANT understands and agrees that CONSULTANT's use of any "self- help" or "malicious" codes, as defined by this Section, is prohibited and constitutes an "unfair business practice" as defined by California law. Notwithstanding any other provision of this Agreement that limits CONSULTANT's liability, CONSULTANT will be fully liable for all penalties and damages arising from use of a self-help or malicious code. B. "Self-help code" means any back -door, time -bomb, drop -dead, time-out, lock -up, slow -down, data freezing, logic bombs, or other software routine, code, devices, techniques intended to disable, slow, prevent operation of, or otherwise interfere Agreement No. 6621 Revised 2/7/23 with or change any operation of any computer system, software or other property automatically with the passage of time or under the prior instruction, triggering event or control of someone other than Client. C. "Malicious Code" means any virus, "spyware," "'Trojan horse," "worm," "Easter egg," "cancelbot," "trapdoor," or other unapproved or malicious software routine, code, command, device, technique, or instruction or other contaminant intended to Permit unauthorized access to, detection of, modification of, or monitoring of any code, system, or data; ii. Alter, supplement, disable, erase, limit, threaten, infect, assault, vandalize, defraud, disrupt, damage, disable, shut down or delete, threaten, slow or otherwise inhibit the functioning of, or otherwise harm any of the code, documentation or data or any computer system, software or other property; iii. Render any data irretrievable, modified, or disrupted so as to be unreliable in any regard; iv. Perform any other unauthorized action, or prevent, limit, condition or inhibit performance of authorized actions or any function including, without limitation, to its security or end user data. 5. LAWS AND REGULATIONS. CONSULTANT will be responsible for complying with any and all applicable Federal, State, County, and Municipal laws and regulations and the conditions of any required licenses and permits before entering into this Agreement. Such compliance will be at CONSULTANT's sole cost and without any increase in price or time on account of such compliance, regardless of whether compliance would require additional labor, equipment, and/or materials not expressly provided for in the Agreement or CONSULTANT's proposal. 6. INDEMNIFICATION. A. CONSULTANT agrees to the following: i. Indemnification for Professional Services. CONSULTANT will save harmless and indemnify and at CITY's request reimburse defense costs for CITY and all its officers, volunteers, employees and representatives from and against any and all suits, actions, or claims, of any character whatever, brought for, or on account of, any injuries or damages sustained by any person or property resulting or arising from any negligent or wrongful act, error or omission by CONSULTANT or any of CONSULTANT's officers, agents, employees, or representatives, in the performance of this Agreement, 2 Agreement No. 6621 Revised 2/7123 except for such loss or damage arising from CITY's sole negligence or willful misconduct. ii. Indemnification for other Damages. CONSULTANT indemnifies and holds CITY harmless from and against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, arising out of this Agreement, or its performance, except for such loss or damage arising from CITY's sole negligence or willful misconduct. Should CITY be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of this Agreement, or its performance, CONSULTANT will defend CITY (at CITY's request and with counsel satisfactory to CITY) and will indemnify CITY for any judgment rendered against it or any sums paid out in settlement or otherwise. iii. Intellectual PropertyInfringement. Notwithstanding any provision to the contrary, CONSULTANT will, at its own expense, indemnify and defend CITY against any claim that CONSULTANT's services or work product furnished under this Agreement infringes a patent or copyright in the United States or Puerto Rico. In such event, CONSULTANT will pay all costs damages and attorney's fees that a court finally awards as a result of such claim. To qualify for such defense and payment, CITY must (a) give CONSULTANT prompt written notice of any such claim; and (b) allow CONSULTANT to control, and fully cooperate with CONSULTANT in the defense and all related settlement negotiations. CITY agrees that if the use of CONSULTANT's services or work product becomes, or CONSULTANT believes is likely to become, the subject of such an intellectual property claim, CITY will permit CONSULTANT, at its option and expense, either to secure the right for CITY to continue using CONSULTANT's services and work product or to replace it with comparable services and work product. B. For purposes of this section "CITY" includes CITY's elected and appointed officials, officers, employees, and volunteers. C. It is expressly understood and agreed that the foregoing provisions will survive termination of this Agreement. D. The requirements as to the types and limits of insurance coverage to be maintained by CONSULTANT as required by Section 7, and any approval of said insurance by CITY, are not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by CONSULTANT pursuant to this Agreement, including, without limitation, to the provisions concerning indemnification. Agreement No. 6621 Rcviscd 2/7123 7. INSURANCE. A. Before commencing performance under this Agreement, and at all other times this Agreement is effective, Consultant will procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below: Type of Ins sr n e Commercial general liability: Professional Liability Workers compensation Limits foombined single) $1,000,000 $1,000,000 Statutory requirement. B. Commercial general liability insurance will meet or exceed the requirements of the most current ISO-CGL Form. The amount of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability policies will be endorsed to name City, its officials, and employees as "additional insureds" under said insurance coverage and to state that such insurance will be deemed "primary" such that any other insurance that may be carried by City will be excess thereto. Such insurance will be on an "occurrence," not a "claims made," basis and will not be cancelable or subject to reduction except upon thirty (30) days prior written notice to City. C. Professional liability coverage will be on an "occurrence basis" if such coverage is available, or on a "claims made" basis if not available. When coverage is provided on a "claims made basis," Consultant will continue to maintain the insurance in effect for a period of three (3) years after this Agreement expires or is terminated ("extended insurance"). Such extended insurance will have the same coverage and limits as the policy that was in effect during the term of this Agreement and will cover Consultant for all claims made by City arising out of any errors or omissions of Consultant, or its officers, employees or agents during the time this Agreement was in effect. D. Consultant will furnish to City duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement, endorsements as requir d herein, and such other evidence of insurance or copies of policies as may be reasonably required by City from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "A: VII." E. Should Consultant, for any reason, fail to obtain and maintain the insurance required by this Agreement, City may obtain such coverage at Consultant's expense and deduct the cost of such insurance from payments due to Consultant under this Agreement or terminate. 4 Agreement No. 6621 Revised 2/7/23 TERMINATION OF AGREEMENT A. During the term of this Agreement, CITY may, in its sole discretion, terminate this Agreement with or without cause by giving written notice to CONSULTANT. Termination will become effective immediately upon the giving of notice as provided in this section of the Agreement. The City Manager may exercise such right of termination on behalf of CITY. B. Except as otherwise provided, upon termination of this Agreement, CITY will be liable to CONSULTANT only for all work done by CONSULTANT up to and including the date of termination of this Agreement unless the termination is for cause, in which event CONSULTANT need be compensated only to the extent required by law. 9. NOTICES A. CONSULTANT will notify CITY of changes in address. All notices given or required to be given pursuant to this Agreement will be in writing and may be given by personal delivery or by mail. Notice sent by mail will be addressed as follows: To CITY: Jose Calderon, ITSD Director 350 Main Street El Segundo, CA 90245 Phone: 310-524-2392 Email: jcalderon@elsegundo.org To CONSULTANT: Doug Tompkins 1900 Carnegie Ave., Bldg. B. Santa Ana, CA 97705-5520 Phone: 8584054917 Email: dompkins@identiv.com and, when addressed in accordance with this paragraph, will be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices will be deemed given at the time of actual delivery. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this paragraph. 10. AUDIT AND ACCESS TO RECORDS. CONSULTANT, including CONSULTANT's subcontractors, will maintain records and other evidence of all expenses incurred in the performance of this Agreement for a period of three (3) years after completion. CITY or any of its duly authorized representatives will, for the purpose of audit and examination, have access to and be permitted to inspect such records and other evidence of expenses and costs 5 Agreement No. 6621 Revised 2/7/23 charged to CITY and/or incurred for work related to SERVICES. For purposes of audit, the date of completion of the Agreement will be the date of CITY'S payment for CONSULTANT's final billing (so noted on invoice) under this Agreement. 11. NON -APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of the CITY. In the event the CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this Agreement will cover only those costs incurred up to the conclusion of the current fiscal year. 12. INDEPENDENT CONTRACTOR. CONSULTANT, CONSULTANT's subconsultants, employees, agents, and representatives, will act as independent contractors while performing the SERVICES and will have control of CONSULTANT's work and the manner in which it is performed, except as is otherwise provided herein. CONSULTANT will be free to contract for other services performed during the term of this Agreement. CONSULTANT is not an agent or employee of CITY and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY provides for its employees. 13. ASSIGNMENT. An essential element of this Agreement is the skill and creativity of CONSULTANT. CONSULTANT may not, therefore, assign the creative portions of the work to a third party for the production of the work without CITY's prior written consent. Failure to conform to this provision may result in termination of the Agreement. 14. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the attached Exhibits; this Agreement supersedes any conflicting provisions. Any inconsistency between the Exhibits will be resolved in the order in which the Exhibits appear below: A. Exhibit A: Identiv Quote # 00025351, dated 2/27/23; 15. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the Parties' entire understanding. There are no other understandings, terms or other agreements expressed or implied, oral or written. There are three (3) attachments to this Agreement. Except as otherwise provided, this Agreement will bind and inure to the benefit of the Parties to this Agreement and any subsequent successors and assigns. 16. MODIFICATION. No alteration, change or modification of the terms of the Agreement will be valid unless made in writing and signed by both Parties hereto and approved by appropriate action of CITY. The city manager may exercise this authority on behalf of CITY. 17. ELECTRONIC SIGNATURES. This Agreement may be executed by the Parties on any number of separate counterparts, and all such counterparts so executed constitute one Agreement binding on all the Parties notwithstanding that all the Parties are not signatories to the same counterpart. In accordance with Government Code § 16.5, the Parties agree that this Agreement, Agreements ancillary to this Agreement, and related documents to be entered into in connection with this Agreement will be considered signed when the signature of a party is delivered by 111 Agreement No. 6621 Revised 217/23 electronic transmission. Such electronic signature will be treated in all respects as having the same effect as an original signature. 18. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with CONSUL'TANT's 'Taxpayer Identification Number. 19. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT represents that CONSULTANT has demonstrated trustworthiness and possesses the quality, fitness, and capacity to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that CONSULTANT's financial resources, surety and insurance experience, service experience, completion ability, personnel, current workload, experience in dealing with private parties, and experience in dealing with public agencies all suggest that CONSULTANT is capable of performing the proposed contract and has a demonstrated capacity to deal fairly and effectively with and to satisfy a public agency. 20. WAIVER. A waiver by CITY of any breach of any term, covenant, or condition contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this Agreement whether of the same or different character. The payment or acceptance of fees for any period after a default will not be deemed a waiver of any right or acceptance of defective performance. 21. SEVERABILITY. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect. 22. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this Agreement. 23. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood, explosion, acts of terrorism, war, embargo, government action, civil or military authority, the natural elements, or other similar causes beyond the Parties' reasonable control, then the Agreement will immediately terminate without obligation of either party to the other. 24. INTERPRETATION; VENUE. This Agreement and its performance will be governed, interpreted, construed and regulated by the laws of the State of California. Exclusive venue for any action involving this Agreement will be in Los Angeles County. [SIGNATURES ON NEXT PAGE] Agreement No. 6621 Revised 2/7/23 IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written. CITY OF EL Identiv, Inc. .�.t 4s��3iwT9��,a�r 7F ,aldero , By: Director CFO Title: ATTEST: AkQTaxpayer ID No. 77-0444317 Tracy Weaver, City Clerk APPROVED AS TO FORM: Ioaq in. Vazquez, As,si ant City Attorney Digitall,,Igned by Joseph Lillio CND: rt'�eu Ju7re��ir l.letllr o City of El Segundo, Joseph Li l l io der-financeDe Pent signing for Flank Lu xra�IW JI@Idols ed"cyundomug, r--US f aw, "^kLW'2,7.0 3 2� 004.,G)-07'00' Hank Lu, Risk Manager EXHIBIT A Agreement No. 6621 Identiv, Inc. 1900 Carnegie Ave. Bldg B. Santa Ana, CA 97705-5520 +1949 250-8888 Fax: + 1949 250 7372 Quotation For: Bill To: City of El Segundo - El Segundo, CA 350 Main St. El Segundo, California, 90245 United States Bill To Contact: Jose Calderon Phone: (310) 524-2300 Email: icalderon@elsegundo.org End User: Sales Quote Number: 00025351 Issue Date: 02-27.2023 Customer ID: Quote Expiration Date: 04-13-2023 Sales Manager Doug Tompkins Sales Representative. Nathan Ferguson Sales Representative Phone: 604-323-7222 Sales Representative Email: nferguson@identiv.com Ship To: City of El Segundo - Ell Segundo, CA 350 Main St , CA, United States Ship To Contact: Phone: Email: IGS-SLA I Global Services Service Level Agreement. 1 1 Total Items Price: $10,000.00 Quote Notes: Please include the quote number as well as the individual part numbers on your Po to ensure faster processing once submitted. Please submit all purchase orders to orders@identiv.com. Taxes Prices above do not include any taxes, now or hereafter enacted, applicable to the goods sold on this transaction. Applicable taxes will be added to the invoice to the Buyer, will be paid by Buyer, unless Buyer provides Seller with a proper tax exemption certificate_ Freight, Customs, Duties Prices above do not include any Freight, Customs, or Duties applicable to the goods sold on this transaction. Applicable freight will be added to the invoice to the Buyer, will be paid by Buyer, and Buyer shall be responsible for any applicable Customs and Duties. This quote is not a binding contract and subject to product availability. Identiv General Terms and Conditions of Sale (GTCS) shall apply to all orders placed by buyer with Identiv and hence are deemed to be included in the accepted orders. Such GTCS take precedence over buyer's general terms and conditions of purchase.