CONTRACT 5411 Professional Services Agreement CLOSED DocuSign Envelope ID:9389666D-1E41-4A95-A097-4FCABDACC1BB
Agreement No. 5411
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
ABTECH TECHNOLOGIES,INC.
This AGREEMENT is entered into this 20th day of October, 2017, by and between the
CITY OF EL SEGUNDO, a municipal corporation and general law city ("CITY") and ABTECH
TECHNOLOGIES, INC, a California Corporation("CONSULTANT").
1. CONSIDERATION.
A. As partial consideration, CONSULTANT agrees to perform work listed in the
SCOPE OF SERVICES, below;
B. As additional consideration, CONSULTANT and CITY agree to abide by the
terms and conditions contained in this Agreement;
C. As additional consideration, CITY agrees to pay CONSULTANT a sum not to
exceed four thousand, five hundred dollars ($4,500.00) for CONSULTANT's
services. CITY may modify this amount as set forth below. Unless otherwise
specified by written amendment to this Agreement, CITY will pay this sum as
specified in the attached Exhibit"A", which is incorporated by reference.
2. SCOPE OF SERVICES.
A. CONSULTANT will perform services listed in the attached Exhibit "A", which is
incorporated by reference.
B. CONSULTANT will, in a professional manner, furnish all of the labor, technical,
administrative, professional and other personnel, all supplies and materials,
equipment, printing, vehicles, transportation, office space and facilities, and all
tests, testing and analyses, calculation, and all other means whatsoever, except as
herein otherwise expressly specified to be furnished by CITY, necessary or proper
to perform and complete the work and provide the professional services required
of CONSULTANT by this Agreement.
3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT
will use the appropriate generally accepted professional standards of practice existing at the time
of performance utilized by persons engaged in providing similar services. CITY will
continuously monitor CONSULTANT's services. CITY will notify CONSULTANT of any
deficiencies and CONSULTANT will have fifteen (15) days after such notification to cure any
shortcomings to CITY's satisfaction. Costs associated with curing the deficiencies will be borne
by CONSULTANT.
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4. PAYMENTS, For CITY to pay CONSULTANT as specified by this Agreement,
CONSULTANT must submit a detailed invoice to CITY which lists the hours worked and
hourly rates for each personnel category and reimbursable costs (all as set forth in Exhibit "A")
the tasks performed, the percentage of the task completed during the billing period, the
cumulative percentage completed for each task, the total cost of that work during the preceding
billing month and a cumulative cash flow curve showing projected and actual expenditures
versus time to date.
5. 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.
6. ADDITIONAL WORK.
A. CITY's city manager ("Manager") may determine, at the Manager's sole
discretion, that CONSULTANT must perform additional work ("Additional
Work") to complete the Scope of Work. If Additional Work is needed, the
Manager will give written authorization to CONSULTANT to perform such
Additional Work.
& If CONSULTANT believes Additional Work is needed to complete the Scope of
Work, CONSULTANT will provide the Manager with written notification that
contains a specific description of the proposed Additional Work, reasons for such
Additional Work, and a detailed proposal regarding cost.
C. Payments over $1000.00 for Additional Work must be approved by CITY's city
council. All Additional Work will be subject to all other terms and provisions of
this Agreement.
7. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONSULTANT agrees that it has:
i. Carefully investigated and considered the scope of services to be
performed;
ii. Carefully considered how the services should be performed; and
iii. Understands the facilities, difficulties, and restrictions attending
performance of the services under this Agreement.
B. If services involve work upon any site, CONSULTANT agrees that
CONSULTANT has or will investigate the site and is or will be fully acquainted
with the conditions there existing, before commencing the services hereunder.
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Should CONSULTANT discover any latent or unknown conditions that may
materially affect the performance of the services, CONSULTANT will
immediately inform CITY of such fact and will not proceed except at
CONSULTANT's own risk until written instructions are received from CITY.
8, TERM. The term of this Agreement will be from October 20th, 2017 to October 20th,2018.
Unless otherwise determined by written amendment between the parties, this Agreement will
terminate in the following instances:
A. Completion of the work specified in Exhibit "A";
B. Termination as stated in Section 16,
9. TIME FOR PERFORMANCE.
A. CONSULTANT will not perform any work under this Agreement until:
i. CONSULTANT furnishes proof of insurance as required under Section 23
of this Agreement; and
ii. CITY gives CONSULTANT a written notice to proceed.
B. Should CONSULTANT begin work on any phase in advance of receiving written
authorization to proceed, any such professional services are at CONSULTANT's
own risk.
10. TIME EXTENSIONS. Should CONSULTANT be delayed by causes beyond
CONSULTANT's control, CITY may grant a time extension for the completion of the contracted
services. If delay occurs, CONSULTANT must notify the Manager within forty-eight hours (48
hours), in writing, of the cause and the extent of the delay and how such delay interferes with the
Agreement's Exhibit. The Manager will extend the completion time, when appropriate, for the
completion of the contracted services.
11. 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: Scope of Work and Equipment List
12. CHANGES. CITY may order changes in the services within the general scope of this
Agreement, consisting of additions, deletions, or other revisions, and the contract sum and the
contract time will be adjusted accordingly. All such changes must be authorized in writing,
executed by CONSULTANT and CITY. The cost or credit to CITY resulting from changes in
the services will be determined in accordance with written agreement between the parties.
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13. TAXPAYER IDENTIFICATION NUMBER, CONSULTANT will provide CITY with a
Taxpayer Identification Number.
14, PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and
maintain during the term of this Agreement, all necessary permits, licenses, and certificates that
may be required in connection with the performance of services under this Agreement,
15. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by
CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights
CITY may have under this Agreement or of any cause of action arising from CONSULTANT's
performance. 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.
16. TERMINATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any time
with or without cause.
B. CONSULTANT may terminate this Agreement at any time with CITY's mutual
consent. Notice will be in writing at least thirty (30) days before the effective
termination date.
C. Upon receiving a termination notice, CONSULTANT will immediately cease
performance under this Agreement unless otherwise provided in the termination
notice. Except as otherwise provided in the termination notice, any additional
work performed by CONSULTANT after receiving a termination notice will be
performed at CONSULTANT" own cost; CITY will not be obligated to
compensate CONSULTANT for such work.
D. Should termination occur, all finished or unfinished documents, data, studies,
surveys, drawings, maps, reports and other materials prepared by CONSULTANT
will, at CITY's option, become CITY's property, and CONSULTANT will
receive just and equitable compensation for any work satisfactorily completed up
to the effective date of notice of termination, not to exceed the total costs under
Section 1(C).
E. Should the Agreement be terminated pursuant to this Section, CITY may procure
on its own terms services similar to those terminated.
F. By executing this document, CONSULTANT waives any and all claims for
damages that might otherwise arise from CITY's termination under this Section.
17. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models,
photographs and reports prepared by CONSULTANT under this Agreement are CITY's
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property. CONSULTANT may retain copies of said documents and materials as desired, but
will deliver all original materials to CITY upon CITY's written notice. CITY agrees that use of
CONSULTANT's completed work product, for purposes other than identified in this Agreement,
or use of incomplete work product, is at CITY's own risk.
18. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service
under this Agreement, no copies, sketches, or graphs of materials, including graphic art work,
prepared pursuant to this Agreement, will be released by CONSULTANT to any other person or
public CITY without CITY's prior written approval. All press releases, including graphic
display information to be published in newspapers or magazines, will be approved and
distributed solely by CITY, unless otherwise provided by written agreement between the parties.
19. 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,
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.
B. For purposes of this section "CITY" includes CITY's officers, officials,
employees, agents, representatives, and certified volunteers.
C. It is expressly understood and agreed that the foregoing provisions will survive
termination of this Agreement.
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D. The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT as required by Section 23, 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.
20. ASSIGNABILITY. This Agreement is for CONSULTANT's professional services.
CONSULTANT's attempts to assign the benefits or burdens of this Agreement without CITY's
written approval are prohibited and will be null and void.
21. INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that
CONSULTANT will act as an independent contractor and will have control of all work and the
manner in which is it performed. CONSULTANT will be free to contract for similar service to
be performed for other employers while under contract with CITY. 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. Any provision in this Agreement that
may appear to give CITY the right to direct CONSULTANT as to the details of doing the work
or to exercise a measure of control over the work means that CONSULTANT will follow the
direction of the CITY as to end results of the work only.
22. AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records with
respect to all services and matters covered under this Agreement. CITY will have free access at
all reasonable times to such records, and the right to examine and audit the same and to make
transcript therefrom, and to inspect all program data, documents, proceedings and activities.
CONSULTANT will retain such financial and program service records for at least three (3)years
after termination or final payment under this Agreement.
23. 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:
pe of Insurance Limits
Commercial general liability: $1,000,000
Professional Liability $1,000,000
Business automobile liability $1,000,000
Workers compensation Statutory requirement
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B, Commercial general liability insurance will meet or exceed the requirements of
the most recent 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 endorsement must be reflected on ISO Form No. CG 20 10 11 85 or 88, or
equivalent. 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 renew the
insurance for a period of three (3) years after this Agreement expires or is
terminated. Such 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. Automobile coverage will be written on ISO Business Auto Coverage Form CA
00 01 06 92, including symbol 1 (Any Auto).
E. CONSULTANT will furnish to CITY duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement 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."
F. 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 pursuant to Section 16.
24. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written
approval to use any consultants while performing any portion of this Agreement. Such approval
must approve of the proposed consultant and the terms of compensation.
25. INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the
status on the project, which will include a Exhibit update and a short narrative description of
progress during the past month for each major task, a description of the work remaining and a
description of the work to be done before the next Exhibit update.
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26. NOTICES. All communications to either party by the other party will be deemed made
when received by such party at its respective name and address as follows:
If to (m:(:. NSlJl:TAN'F: If to CITY:
btech Teclinoloaies, Inc.
2042 Corte Del Nogal, #D City of El Segundo
Carlsbad, CA 90211 350 Main Street
El Segundo, CA
Attention: Randy Henniger Attention: Dave Gray
rhenniger@abtechnologies.com dgray@elsegundo.org
Any such written communications by mail will be conclusively deemed to have been received by
the addressee upon deposit thereof in the United States Mail, postage prepaid and properly
addressed as noted above. 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.
27. CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest
laws and regulations including, without limitation, CITY's conflict of interest regulations.
28. SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor
retained any company or person, other than CONSULTANT's bona fide employee, to solicit or
secure this Agreement. Further, CONSULTANT warrants that it has not paid nor has it agreed
to pay any company or person, other than CONSULTANT's bona fide employee, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting
from the award or making of this Agreement. Should CONSULTANT breach or violate this
warranty, CITY may rescind this Agreement without liability.
29. THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is
generally for the exclusive benefit of CONSULTANT and CITY and not for the benefit of any
other party. There will be no incidental or other beneficiaries of any of CONSULTANT's or
CITY's obligations under this Agreement.
30. INTERPRETATION. This Agreement was drafted in, and will be construed in accordance
with the laws of the State of California, and exclusive venue for any action involving this
agreement will be in Los Angeles County.
31. COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state,
and local laws applicable to this Agreement.
32. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the entire
understanding of the parties. There are no other understandings, terms or other agreements
expressed or implied, oral or written. There is one (1) Attachment to this Agreement. This
Agreement will bind and inure to the benefit of the parties to this Agreement and any subsequent
successors and assigns.
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33. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review this
Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a whole,
and in accordance with its fair meaning; it will not be interpreted strictly for or against either Party.
34. 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.
35. AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary
action has been taken by the Parties to authorize the undersigned to execute this Agreement and to
engage in the actions described herein. This Agreement may be modified by written amendment.
CITY's executive manager, or designee, may execute any such amendment on behalf of CITY.
36. ACCEPTANCE OF FACSIMILE SIGNATURES. 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
facsimile transmission. Such facsimile signature will be treated in all respects as having the
same effect as an original signature.
37. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
38. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
39. 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.
40. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT
represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity
to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that its
financial resources, surety and insurance experience, service experience, completion ability,
personnel, current workload, experience in dealing with private consultants, 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 CITY.
[Signatures on next page]
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IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first hereinabove written.
CITY,i,61)�� u6UN _0'
`U
DocuSigned by,
e
Greg C, )�cntcr
City a a er,� President
ATTEST:
Taxpayer ID No. 91-1943825
�rr0y,Wcaver,
CiCl��k
APPROVED AS TO FORM:
4 - �
MHensley,
i—i�y ttorney
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Exhibit A
Addendum: Hardware ware land Sci tware Maintenance Aero hent
This HARDWARE AND SOFTWARE MAINTENANCE AGREEMENT is made between Abtech Technologies, Inc. and any of Abtech's subsidiaries,
DBAs,agents,successors,or parent companies("Abtech")and City of E1 Segundo and any of its subsidiaries,DBAs,agents,successors,or parent companies
("Client")to establish the specific terms and conditions that govern the Service relationship between both parties.
Upon mutual written consent, Client and Abtech may add Amendments,Exhibits,and Schedules each an"Addendum"and collective) "Addenda")that
define more s ecilic services and additional terms and,conditions as Client and Abtech a cc to..
1„I)E ILIITIONIa
F'
i
The definitions in this section shall apply to this Maintenance Agreement.
• Authorized Contract Administrator ("Administrator"): Client designated administrator who may make changes to this Maintenance Agreement or
request,authorize,and commit Client to Projects.
• Authorized User:Any user designated by the Administrator who may place a Service Request.
• Covered Hardware: shall mean the various machines,hardware options,hardware features and interconnections as listed in Schedule A:Equipment List
for which Abtech agrees to provide Service and any subsequent amendments modifying Schedule A and accepted by Abtech.
• Covered Software:shall mean any unique intellectual property,including but not limited to operating systems,databases,applications,updates,tools,
diagnostics,firmware,patches,fixes,and documentation thereof which is detailed in Schedule A and any subsequent amendments modifying Schedule
A and accepted by Abtech for which Abtech agrees to provide Service.
• Covered Environment:The complete Client environment initially listed in Schedule A to include Covered Hardware and Covered Software and any
subsequent amendments modifying Schedule A and accepted by Abtech for which Abtech agrees to provide Service.
• Monthly Management Charge(MMC):Monthly fee paid to Abtech by Client in consideration of Service of the Covered Environment
• Period of Maintenance(POM):Shall mean the standard hours during which the maintenance services shall be performed. The POM shall be defined as
set forth in Schedule A with the exception of Abtech recognized holidays unless explicitly included in Schedule A. Abtech recognized holidays are
available upon request.
• Project:Any Service that Client requires that is outside the scope of this Maintenance Agreement as outlined in Section 3. Projects are not part of the
Service and are invoiced to Client separately.
• Service.The performance of a series of reactive and proactive services as outlined in Section 2.
• Service Request:A request made by an Authorized User to Abtech for the delivery of Service. Such Service Requests shall only be made through the
Abtech toll free service request telephone number or via the Abtech Client Portal.Direct communication by Client to Abtech engineers,salespeople,or
management shall not be considered a Service Request and as such any and all Service Level Agreements regarding that particular Client incident will
not be applicable.
2.SERVIC°F DESCRIPTION
2.1 In consideration for the MMC and if specified in Schedule A,Abtech shall provide one or more of the following Services defined below:
A. Preventive Maintenance-Abtech shall perform routine preventive maintenance,of a type and frequency to be determined by Abtech,to help prevent
hardware product failures and extend the useful life of the equipment. All Preventive Maintenance calls shall be scheduled at a mutually agreed upon
date and time.
B. Remedial Maintenance-Abtech shall respond to a hardware Service Request by placing a qualified Client Engineer at the Client's site within the
response time set forth in Schedule A provided that the call is received within the POM. Abtech agrees that calls responded to within the POM which
continue beyond the POM shall be considered work performed during the POM.
C. Maintenance Costs-Abtech shall assume all responsibilities and costs for tools,test equipment,spare parts,replacement units,and any other items
required to provide adequate preventive and remedial maintenance on the system(s)hardware and equipment.
D. Swap Equipment-Abtech may at its option swap failed equipment with like equipment when extensive repairs may be necessary,or when extensive
system"down time"may result. Swapped equipment will be equal to or better than the original,with respect to form,fit,function,capabilities and
reliability and shall not exceed the maintenance cost of the original item. The swapped equipment will become the property of the Client and will
replace the original item in the Covered Environment.Displaced parts or systems shall become the property of Abtech unless explicitly agreed to in
advance.
E. Remote Hardware Support: In some instances Client may opt to replace defective hardware with Abtech replacement parts themselves. Abtech
shall help the Client diagnose the hardware failure remotely,and,to the best of Abtech's ability,provide the most likely suspected failed part via
priority overnight shipping or an alternative shipping method of Client's choice(priority overnight shipping only available for parts under 30 pounds).
Abtech shall not be held responsible for delays in shipment beyond Abtech's reasonable control.Damage to equipment by Client is not normal wear
and tear and is therefore not covered under this Agreement.
F. Software Support:At any time,Client may call Abtech regarding use of Covered Software. Abtech's engineers shall assist Client via telephone in
the use of Covered Software products,identify problems and provide fixes and workarounds,if possible.The maximum response time for returning
calls after a telephone request has been received is two(2)hours,unless otherwise specified.Abtech may,from time to time,require access to Client's
system via remote dial-up,VPN,or other remote facilities,in order to remediate a Service Request. Abtech will safeguard any temporary logins or
passwords provided by Client,however,in no event shall Abtech be liable for the security of Client's system.Software support does not include the
distribution of any third party Intellectual Property,training Client staff that does not have a base level understanding of the Covered Software,or data
recovery.
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1,;IfITA III 1,3NOF COVERED ENVIRONWNT
3.1 In order for Client's Covered Environment to qualify for Services, some minimum standards apply, Tbesc standards include adhomice to Intellectual
Property Warranties in that all equipment is in good working and cosmetic condition,and that all c(lUiPa1cat is being used in an industry standard
way within the usage guidelines, configuration, and controlled environment appropriate for the equipment as recommended by the manufacturer. Other
standards shall be discussed before and during the Service. Items in the Covered Environment that do not meet these standards will be identified,presented to
Client,and Abtech and Client shall determine if the device will be provided the Services on a good faith basis or not,
3.2 Should the Covered Environment not meet the minimum standards,all Services shall be performed on a good faith effort basis.Abtech shall make no
guarantees regarding the ability of Abtech's engineers or technologies to provide Services to any item of the Covered Environment that does not meet the
minimum standards. Abtech's may be required to,and without breach,delay in providing Services on any item in the Covered Environment that does not
meet these minimum standards until such minimum standards are met and after which Services on those items will resume,
3.3 Client shall provide Abtech escorted access to Covered Environment both physically and remotely. Client agrees to allow the installation of Services
technology on Client's network as necessary to allow for the performance of Services,subject to client approval and participation. Client agrees that any
restrictions regarding full and free access to Covered Environment Or installation of Service technology may hinder Abtech's ability to perform Services and
that any Services provided to Covered Environment with such restrictions shall be performed on a good faith basis.Abtech may be required to,and without
being deemed to be breach,delay in providing Services on any part of the Covered Environment with restricted access until such access is given and after
which Service on those items will resume. Abtech shall make no guarantees regarding the ability of Abtech's engineers or technologies to perform Services
on any part of the Covered Environment that is considered to be restricted.
4.EXCLUDED SERVICES
4.1 Service rendered under this Maintenance Agreement does not include any service not explicitly stated in Schedule A,including but not limited to the
following out of scope tasks:
a) Any service that changes or is the result of a change the Covered Environment including but not limited to hardware or software installations,
relocations,moves,or adding more storage or servers,service or repair made necessary by the alteration,upgrading,configuration,or modification
of Covered Environment by Client,manufacturer,or any other party including Abtech.
b) Services to any user,equipment,software,or location that is not included in Schedule A.
c) Repair of equipment prior to becoming part of Covered Environment.All products shall require a pre-inspection by Abtech. Should products not
be up to proper maintenance standards,Client may elect to employ Abtech to do the necessary work. Only when the product meets Abtech standards
will it be regarded as covered under this Maintenance Agreement;
d) Repair of damage resulting from acts of God including but not limited to flood,lightning,fire,earthquake;failure of air conditioning or humidity
control;abuse,misuse or neglect;accident,transportation or moving by parties other than Abtech;physical breakage due to any other party other
than Abtech working on the Covered Environment'or any causes other than normal usage;
e) Consumable supplies including but not limited to batteries of any sort,toner,toner cartridges,ink,ink cartridges,pens,ribbons,paper goods,film
and vellums,tape,tape cartridges,floppy disks,removable hard discs,and CD-ROMs;
f) Structural,cosmetic,electrical work or cabling external to the system(s)or equipment;
g) Relocating,installing,or upgrading system(s)or equipment;installing,upgrading,configuring,or training for software packages or programs;
h) Non-standard configurations.Only standard systems as determined by the OEM will be maintained. Any 3rd party accessories,unless specifically
listed in Schedule A, are not covered under this Maintenance Agreement.Any breakage due to non-standard,non-OEM configurations,unless
specifically listed in Schedule A,is not covered under this Maintenance Agreement.
i) Any programming,scripting,compiling,configuration,or consulting level work on software.
j) System administration or day to day management of Client's environment
k) Any additional services required to accommodate Client's regulatory requirements(including but not limited to HIPAA,PCI,or Sarbanes-Oxley)
to bring Client and Abtech into compliance
4.2 Client understands and agrees that any request which is beyond the scope of this Maintenance Agreement is considered a Project.Client may elect to have
Abtech perform these Projects and will be invoiced at Abtech's then current consulting rates. Additional materials,supplies,and equipment may also be
required which may be quoted to Client upon Client's request. Project Services and products will be provided only after Client's written acceptance of Abtech's
written estimate and shall be invoiced separately from the MMC.
5.FEES AND PAYMENT
5.1 Annual payment of MMC and any setup fee shall be due upon execution of this Maintenance Agreement. The MMC will be invoiced to Client on an
annual basis and will become due and payable on the first day of each month in advance of Service rendered. If applicable, any onboarding fees will be
invoiced after the onboarding of Client has been completed.
5.2 Payment method will be Automated Clearing House(ACH)payment, or by bank or company check. Checks returned for insufficient funds shall be
assessed the maximum returned check fee as limitedby state low. Late payments shall accrue 1.5%interest for ever da Z that Ea ent is late.
5.4 Client shall pay all applicable state and local sales and use taxes(notwithstanding their designation as excise or privilege taxes)in connection with Abtech's
performance of Services to Client.
5.5 Client understands and agrees that the MMC to provide Service for the Covered Environment was calculated in good faith and based on information given
to Abtech by Client,including but not limited to:type,make,age,configuration,reliability,adherence to any Minimum Support Requirements,and quantity
of Covered Hardware and Covered Software;quantity and level of sophistication in terms of technical knowledge of Authorized Users;and past service history
of Covered Environment,
nDra
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.., ii, I, i , ii i i•' ilii "wu 'i n i '"I li, 'l 'I' iii,i li
5.8 Client agrees that failure to pay invoices is a material breach of the Maintenance Agreement and is subject to the termination remedies in Section 6.
6.T:11M ANI)TEI1I j i�,„,�1 f
6,1 This Maintenance Agreement shall commence on the Service Start Date when countersigned by Abtech, Regardless of date of the execution of the
Maintenance A 1reernent Service's and ia meat for such Services will continue for the hi her of a twelve l2 months from Service Start Date
ii I. „ i' II
6.2 Notwithstanding the foregoing,either party may terminate this Maintenance Agreement or any Addendum immediately if the other party: (a)experiences
a Change of Control;(b)experiences a Bankruptcy Event unless it is succeeded by a permitted assignee under this Maintenance Agreement;(c)fails to fulfill
in any material respect its obligations or breaches any material term or condition under this Maintenance Agreement and does not cure such failure within
thirty(30)days of receipt of written notice;(d)or is no longer in the commercial interest of Abtech to continue the Maintenance Agreement or any Addendum.
6.3 Upon termination of this Maintenance Agreement and any Addenda for any reason(including the expiration of this Maintenance Agreement by its terms
for the termination of the Maintenance Agreement for cause):
6.3.1 Client shall permit the removal of all Abtech property, Services,and supplies by Abtech within fifteen(15)days from date of termination.Failure to
return these items within the time allotted will result in further invoices until such time that the items are received by Abtech.Abtech is responsible for any
damage in transit from Client back to Abtech.Client to put any Abtech owned equipment under Client insurance policy to cover for damage while at Client
site.
6.3.2 Client shall sa to Abteeh within ten(10)dat s of the termination date all cha es due,includin ,if an l'i uidated damages.
6.4'irtermination by either party results from any reason besides Abtech's failure under 6.2(c)or 6.2(d),Client agrees that it would be difficult to ascertain
the damages to Abtech of such termination,and that Client shall pay Abtech all MMC for the remainder of the term and any term-based discounts as liquidated
damages,and not as a penalty.
6.5 If termination by either party results from Abtech's failure under 6.2(c)or 6.2(d)within the cure period defined in 6.2(c),Abtech agrees to refund any pre-
paid amount from Client for Services minus the charges to provide such Services to Client up to the last date that Abtech provides Services to Client.
6.6 Client may delete equipment no longer in use at any time during the Maintenance Agreement term by providing a thirty(30)day written notice to Abtech
unless Client and Abtech has agreed that such equipment must be on contract for a minimal term.If Client adds the cancelled system back on support,Abtech
shall first inspect the equipment to verify it is in good working condition.If it is not in good,working condition,the repair shall be considered a Project and
quoted accordingly. Client may add equipment at any time during the Maintenance Agreement term by providing notice to Abtech and signing a new
Addendum.If equipment is removed with 30 day notice,and there is a prepaid amount to be refunded,Abtech will provide either a check or account credit.
6.7 Sections 5.2,5.4,5.7,and any section stating an explicit duration will survive the termination of this Maintenance Agreement.
7. ONSITE AIITE'CII PROPERTY
7.1 In the event that Abtech owned Property(including but not limited to onsite spare parts,tools,or software)is kept at a Client site,Client agrees to take
reasonable care to protect Property from loss,damage,or tampering during the term of this Maintenance Agreement. Client shall keep Property in a climate
controlled,accessible location,and have Client staff'familiar with Property's physical location so as to not delay Service.
7.2 Property is, and will remain,and at all times be deemed to be the sole and exclusive property of Abtech,and Client has no rights of Property herein.
Property shall not be transferred or delivered to any person or corporation without prior written consent or instruction of Abtech.Client shall be responsible
for bi-annual inventory verification scheduled by Abtech and/or periodic site audits. Abtech shall create an Addendum to this Maintenance Agreement which
details Property,including quantity,part numbers,and description.
7.3 Client agrees to notify Abtech immediately upon consumption of Property,if Property"seal(s)"and/or anti-static package with seal is opened or damaged,
or if any physical damage to Property is observed.Client shall be responsible for the replacement of Property that Client damages.
7.4 Should Client fail to redeliver the Property in the condition it was received within thirty(30)days after termination of this Maintenance Agreement and/or
written request of redelivery by Abtech,Client agrees to remit payment of the full value of the Property as determined by Abtech.
8.ACCEPTANCE
8.1 Each party to this Maintenance Agreement represents that it is a sophisticated commercial party capable of understanding all terms of this Maintenance
Agreement,that it has had the opportunity to review this Maintenance Agreement with its counsel,and that it enters this Maintenance Agreement with full
knowledge of the terms of the Maintenance Agreement,
8.2 Client acknowledges that it has read this Maintenance Agreemen and any Addenda prior to acceptance and once are all are accepted be bound
hereto.When accepted,this and each Addendum will form a separate and complete agreement between both parties and will replace any other agreements or
communications regarding that subject matter.This Maintenance Agreement may not be modified or altered except by mutual written agreement and signed
by both parties.
8.3.Any terms that are in conflict with City of EI Segrndo's standard purchase tams,the City's terms will be superior.
Signature Page to Follow
DS
Page 3 of 5 Hardware Maintenance Agreement v20160208.1 Initial. _ �"
DocuS!gn Envelope ID:9389666D-1E41-4A95-A097-4FCABDACC1BB
Agreement No. 5411
Agreed to, Agreed to(Client):
Abtach Technologies,Inc.
_g!y: —'-'AAA ,�aU&
n s
Name: Nonc-
Title: President Title:
Date: 10/24/2017 Date:
..........
Page 4 of 3 Hardware Maintenance Agreement v20160208.1 Initial
DocuSign Envelope ID:9389666D-1E41-4A95-A097-4FCABDACC1BB
Agreement No. 5411
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