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HomeMy WebLinkAbout21 - PSA for Pier and Boardwalk Safety - Staff Memof$� _ NEWPORT BEACH POLICE DEPARTMENT OFFICE OF THE CHIEF OF POLICE INTEROFFICE MEMORANDUM TO: Honorable Mayor & Members of City Council FROM: Jon T. Lewis, Chief of Police DATE: November 16, 2021 SUBJECT: Regular Meeting November 16, 2021, Agenda Item 21 — Professional Services Agreement for Pier and Boardwalk Safety - Revised Agreement Since the posting of the agenda, the Police Department is requesting a revision in Attachment A of Agenda Item 21, Professional Services Agreement for Pier and Boardwalk Safety. Staff is requesting that the agreement be revised with changes requested by the vendor, Contemporary Services Corporation, as shown in the attachment. The revised sections were previously approved as to form by the City Attorney's Office in the pilot program agreement. Staff recommends that you approve this item as revised. Submitted by: Jon T. Lewis Chief of Police Attachment: Revised sections of the Professional Services Agreement for Pier and Boardwalk Safety, dated November 16, 2021 November 16, 2021 Agenda Item No. 21 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any negligent Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's negligent presence or activities conducted on the Project (including the negligent,reckless, and/or willful misconduct asts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. 10. INDEPENDEN 10.1 It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are Lander the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party, unless privileged or confidential, as determined by a court of competent jurisdiction. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party, jurisdiction. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request, unless 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat.