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HomeMy WebLinkAbout09 - Authorization to Accept Funding from the U.S. Department of Homeland Security Grant Program to Purchase Software Licenses for an Evacuation Planning ToolQ SEW Pp�T CITY OF z NEWPORT BEACH c�<,FORN'P City Council Staff Report March 28, 2023 Agenda Item No. 9 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Joe Cartwright, Chief of Police - 949-644-3701, jartwright@nbpd.org PREPARED BY: Katie Eing, Emergency Services Coordinator, keing@nbpd.org PHONE: 949-644-3670 TITLE: Authorization to Accept Funding from the U.S. Department of Homeland Security Grant Program to Purchase Software Licenses for an Evacuation Planning Tool ABSTRACT: The City of Newport Beach (City) and Orange County Harbor Region have been awarded $60,000 from the 2021 Homeland Security Grant Program (HSGP), which is administered through the California Office of Emergency Services (Cal OES) and the Orange County Sheriff's Department, to purchase 10 software platform licenses for an evacuation planning tool to be utilized for disaster and emergency planning. The Orange County Harbor Region includes the cities of Costa Mesa, Irvine, Laguna Beach, Newport Beach and the University of California, Irvine. For this project, Newport Beach will be the lead city to procure the licenses and obtain reimbursement. RECOMMENDATIONS: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; b) Accept the $60,000 grant award from the 2021 Homeland Security Grant Program to purchase 10 evacuation software platform licenses for the Orange County Harbor Region and obtain reimbursement from the grant; c) Authorize the City Manager to enter into the SAAS Agreement for Cloud Services with Ladris Technologies, Inc., for a trial term of nine months, not to exceed sixty thousand dollars ($60,000); and d) Approve Budget Amendment No. 23-059 to accept Homeland Security grant funds, increase revenue estimates by $60,000 in account 0103511-431453-G2320, and increase expenditure appropriations by $60,000 in account 0103511-911027-G2320. 9-1 Authorization to Accept Funding from the U.S. Department of Homeland Security Grant Program to Purchase Software Licenses for an Evacuation Planning Tool March 28, 2023 Page 2 DISCUSSION: The Homeland Security Grant Program (HSGP) plays an important role in the implementation of the National Preparedness System (NPS) by supporting the building, sustainment, and delivery of core capabilities essential to achieving the National Preparedness Goal (NPG) of a secure and resilient nation. Delivering core capabilities requires the combined effort of the whole community, rather than the exclusive effort of any single organization or level of government. In FY 2020-21, Cal OES awarded the Orange County Sheriff's Department and area a total of $3,216,641 in State Homeland Security Grant Program funds. The federal priorities for the FY 2020-21 grant are: • Enhancing information, intelligence sharing and cooperation with federal agencies, including DHS • Enhancing the protection of soft targets/crowded places • Enhancing cybersecurity • Addressing emerging threats • Combating violent domestic extremism through enhanced intelligence collection and analysis, training and community resilience The Orange County Harbor Region took into consideration the FY 2020-21 priorities and identified the need for an evacuation software platform that will help plan for large evacuations or movement of people during disasters and emergencies. The software would allow the region to dynamically model evacuation times, traffic conditions, and infrastructure adjustments across a wide range of what -if scenarios. This information will be used by cities, university planners, and emergency management officials to predict evacuation times in the event of wildfires, terrorism, tsunamis and other disasters; implement training and tabletop exercises for emergency operations center (EOC) personnel; and plan for the impact of new infrastructure, including housing and road network alterations, upon evacuation readiness and emergency response capabilities. Ladris Artificial Intelligence (AI) Technologies software allows governments to forecast and visualize hypothetical population risks, and provides infrastructure to extend critical information to citizens at the precise times when it is needed most. The traffic models will cover large geographic areas and simultaneously extend down to vehicles on individual road segments where congestion is most likely to occur, with projections that cascade via a microsimulation model to create a four-dimensional evacuation simulation of the wider area, showing progression of traffic patterns over time. This permits emergency management to study the effects of traffic control points, contraflow, lane additions, and other critical mitigation and response decisions. 9-2 Authorization to Accept Funding from the U.S. Department of Homeland Security Grant Program to Purchase Software Licenses for an Evacuation Planning Tool March 28, 2023 Page 3 Ladris is the only vendor that provides user -defined, flexible evacuation areas. Unlike other vendors that are limited to prepackaged zones, Ladris has no constraints on the type or extent of the geographic region that can be modeled. Consequently, emergency planners can select and change geographic areas for modeling evacuations across city borders, allowing for better joint regional planning. It is also the only vendor that provides automated modeling across billions of potential starting conditions, so that users can see the most common points of failure and expected evacuation outcomes. Further, by examining the statistical results of a huge number of simulations, users can determine the factors that most affect potential outcomes. FISCAL IMPACT: The Budget Amendment appropriates $60,000 in additional revenue from the Homeland Security Grant Program and $60,000 in increased expenditure appropriations. The revenue will be posted to the Emergency Preparedness Federal Grants account in the Police Department, 0103511-431453-G2320, and the purchase will be expensed to the Emergency Preparedness Software License, New account in the Police Department, 0103511-911027-G2320. The purchase of 10 software licenses is a one-time grant purchase and the term is nine (9) months to conduct an unlimited amount of disaster and evacuation simulations. The price of $60,000 includes all training, maintenance and technical support of the software program. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — 2021 Homeland Security Transfer Agreement Attachment B — Ladris Technologies, Inc. Proposed Contract Attachment C — Budget Amendment No. 23-059 9-3 Attachment A 2021 Homeland Security Transfer Agreement Attachment A r 1 AGREEMENT TO TRANSFER PROPERTY OR FUNDS 2 FOR 2021 HOMELAND SECURITY GRANT PROGRAM PURPOSES 4 THIS AGREEMENT is entered into this 1q—day of which 5 date is enumerated for purposes of reference only, by and between the COUNTY OF ORANGE, a 6 political subdivision of the State of California, hereinafter referred to as 7 "COUNTY", and CITY OF NEWPORT BEACH a (municipal corporation/special 8 district/not-for-profit corporation), hereinafter referred to as "SUBGRANTEE." 9 WHEREAS, COUNTY, acting through its Sheriff -Coroner Department in its capacity as the lead 10 agency for the Orange County Operational Area, has applied for, received and accepted a grant from 11 the State of California, acting through its California Office of Emergency Services, to enhance county- 12 wide emergency preparedness, hereinafter referred to as "the grant'`, as set forth in the grant documents 13 that are attached hereto as Attachments A (FY 21 CA Supplement to the Federal Notice of 14 Funding Opportunity), B (FY 21 Homeland Security Grant Program Notice of Funding Opportunity). 15 and C (FY 21 Homeland Security Grant Assurances) and incorporated herein by reference. 16 WHEREAS, the terms of the grant require that COUNTY use certain grant funds to purchase 17 equipment, technology or services that will be transferred to SUBGRANTEE to be used for 18 grant purposes. 19 NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS: 20 1. COUNTY shall transfer to SUBGRANTEE the equipment, technology or services as 21 speciFed in Attachment D hereto, which is incorporated herein by reference. If the grant requires 22 COUNTY to transfer to SUBGRANTEE equipment, technology or services that COUNTY has not yet 23 acquired, COUNTY shall transfer said equipment; technology or services to SUBGRANTEE as soon after 24 acquisition by COUNTY as is reasonably practicable. 25 2. If COUNTY transfers grant funds to SUBGRANTEE, SUBGRANTEE shall use said grant 26 funds only to acquire equipment, technology or services as set forth in Attachment B hereto and/or to 27 perform such other grant functions, if any, for which Attachments A, B and C permit SUBGRANTEE to 28 CFDA: 97.067 Homeland Security Grant Program Page 1 of Department of Homeland Security 9-5 Attachment A 1 2 3 4 S 6 7 8 9 10 l2 I i 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expend grant funds. SUBGRANTEE shall provide COUNTY with a budget breakdown signed by the ] authorized agent. 3. Throughout its useful life, SUBGRANTEE shall use any equipment, technology or services acquired with grant funds only for those purposes permitted under the terms of the grant, and shall make it available for mutual aid response. 4. SUBGRANTEE shall exercise due care to preserve and safeguard equipment acquired with grant funds from damage or destruction and shall provide regular maintenance and repairs for said equipment as are necessary, in order to keep said equipment in continually good working order. Such maintenance and servicing shall be the sole responsibility of the SUBGRANTEE, wlao shall pay for material and labor costs for any maintenance and repair of the said equipment throughout the life of the said equipment. 5. SUBGRANTEE shall assume all continuation costs of said equipment, technologies and/or services to include but not limited to upgrades, licenses and renewals of said equipment, technologies and/or services. 6. if equipment acquired with grant funds becomes obsolete or unusable, SUBGRANTEE shall notify COUNTY of such condition. SUBGRANTEE shall transfer or dispose of grant -funded I equipment only in accordance with the instructions of COUNTY. 7. SUBGRANTEE agrees to indemnify, defend and save harmless COUNTY and their elected and appointed officials, officers, agents and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, laborers, and any other person, firm or corporation furnishing or supplying work services, materials or supplies in connection with SUBGRANTEE's use of grant -funded equipment, technology or services and SUBGRANTEE's performance of this Agreement, including Attachments A, B and C hereto, and from any and all claims and losses accruing or resulting to any person, firm, or corporation who may be injured or damaged by SUBGRANTEE in SUBGRANTEE's use of grant -funded equipment, technology or services and SUBGRANTEE's performance of this Agreement, including Attachments A, B and C hereto. 8. By executing this Agreement, SUBGRANTEE agrees to comply with and be fully bound by all applicable provisions of Attachments A, 13 and C hereto. SUBGRANTEE shall notify COUNTY CFDA: 97.067 Homeland Security Grant Program Page 2 of Department of Homeland Security Attachment A 1. 2 3 4 S 6 7 8 9 10 12 13 14 15 16 17 is 19 20 21 22 23 24 25 26 27 28 immediately upon discovery that it has not abided or no longer will abide by any applicable provision of Attachments A, B and C hereto. 9. SUBGRANTEE and COUNTY shall be subject to examination and audit by the State Auditor .Genera) with respect to this Agreement for a period of three years aver final payment hereunder. 10. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by duly authorized representatives of the parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. 11. SUBGRANTEE may not assign this Agreement in whole or in part without the express written consent of COUNTY. 12. For a period of three years after final payment hereunder or until all claims related to this Agreement are finally settled, whichever is later, SUBGRANTEE shall preserve and maintain all documents, papers and records relevant to the work performed or property or equipment acquired in accordance with this Agreement, including Attachments A, B and C hereto. For the same time period, SUBGRANTEE shall snake said documents, papers and records available to COUNTY and the agency from which COUNTY received grant funds or their duly authorized representative(s), for examination, copying, or mechanical reproduction on or off the premises of SUBGRANTEE, upon request during usual working hours. 13. SUBGRANTEE shall provide to COUNTY all records and information requested by. COUNTY for inclusion in quarterly reports and such other reports or records as COUNTY may be' required to provide to the agency from which COUNTY received grant funds or other persons or agencies, 14. COUNTY may terminate this Agreement and be relieved of the payment of any consideration to SUBGRANTEE if a) SUBGRANTEE fails to perform any of the covenants contained in this Agreement, including Attachments A, B and C hereto, at the time and in the manner herein provided, or b) COUNTY loses funding under the grant. In the event of termination, COUNTY may proceed with the work in any manner deemed proper by COUNTY. 15. SUBGRANTEE and its agents and employees shall act in an independent capacity in the performance of this Agreement, including Attachments A, B and C hereto, and shall not be considered I officers, agents or employees of COUNTY or of the agency from which COUNTY received grant funds. C:FDA: 97.067 Homeland Security Grant Program Page 3 of 4 Department of Homeland Security 9-7 Attachment A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN WITNESS WHEREOF, the parties have executed this Agreement in the County of Orange, State of California. DATED: f6 Z l , 2023 APPROVED AS TO FORM: COUNTY COUNSEL By (,f _ Wendy Phil eps eputy Cowity Counsel 1 DATED: December 3, 2021 I DATED: I ATTEST: DATI APPROVED AS TO FORM; CITY ATfORNEY'S OFF" - °t'vvf As= C. Harp, Gly Arismey M14F CFDA: 97,067 Homeland Security Grant Program Department of Homeland Security COUNTY OF ORANGE, noliticall subdiv's► n of the tat o alifornia By � obit r ' Sherif�C�i r f�f' "COUNTY" SUBGRANTEE By. -- Dated: Page 4 of 4 .; Attachment 6 Ladris Technology, Inc. Proposed Contract Attachment B SAAS AGREEMENT FOR CLOUD BASED SERVICES (ENTERPRISE VERSION) This Software as a Service Agreement (the "Agreement"), is between Ladris Technologies, Inc., a California Corporation ("Ladris") with offices located at 10090 Stable Lane, Nevada City, California 95959 and the City of Newport Beach, a California municipality with offices at 100 Civic Center Drive, Newport Beach, CA 92660. WHEREAS, Ladris is a sole source of evacuation modeling software that provides visual & statistical analysis of traffic congestion for evacuation scenarios; WHEREAS, Orange County Emergency Management has expressed an interest in acquiring a license to the Ladris evacuation software; WHEREAS, the City of Newport Beach has been chosen, together with the other Harbor Cities (as defined below), to undertake an evaluation of the Ladris Operator SaaS; NOW THEREFORE, Ladris and the City of Newport Beach (each a "Party" and collectively, the "Parties") hereby agree, as of the Effective Date, as follows: ARTICLE 1. 1.1 Selected Terms Effective Date means: April 1", 2023 Prior NDA means: N/A The business contact for Ladris is Attn: Customer Service Title: Ladris Technologies, Inc Address: 10090 Stable Lane Nevada City, CA 95959 Tel.: +l (999) 985-0031 Email: service@]adris.com 1.2 Additional Defined Terms. Initial Term means: 9 months from the Effective Date. The business contact for the City of Newport Beach is: Attn: Katie Eing Title: Emergency Services Coordinator Address: 100 Civic Center Drive, Newport Beach, CA 92660. Tel.: (949) 644-3670 Fax: Email: keing anbpd. Ladris Confidential Information ver.12-14-2022 Page 1 of 26 9-10 Attachment B "Access Credentials" means any user name, password, license or security key, security token, or other method, technology or device used, alone or in combination, to authenticate and authorize access to and use of the Cloud Services. "Affiliate" means, with respect to any corporate entity, a company controlled by, controlling, or under common control of a parent entity. "Authorized User" means an employee of Customer, authorized to use the Cloud Services pursuant to Section 3.1 and the other terms and conditions of this Agreement. "Cloud Services" means the Ladris software application or applications and any third -party or other software (other than Open Source Software), listed on Attachment 2 as made available to Customer on a software as a service model and all new versions, updates, revisions, improvements and modifications of the foregoing, that Ladris uses to provide remote access to and use of the Cloud Services. "Contract Year" means the period of twelve (12) consecutive months during the Initial Term of this Agreement, commencing on the Effective Date, and with, with respect to any contract renewal, each subsequent period of twelve (12) consecutive months commencing on the anniversary of the Effective Date. "Customer" means the Harbor Cities and, during the Extended Term, as defined below, the entities specified in Attachment 1. "Customer Data" means information, data, images, video and other content, regardless of form or medium, that is collected, downloaded or otherwise received from Customer or an Authorized User for processing by the Cloud Services, but does not include metadata derived from Customer usage. "Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks operated by Customer. "Documentation" means any manuals, instructions or other documents or materials in any medium, as updated from time to time, that the Ladris provides or makes available to Customer. "Harbor Cities" means the City of Newport Beach, City of Irvine, City of Laguna Beach, City of Costa Mesa, and University of California at Irvine. "Harmful Code" means any software, hardware or other technology, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent a customer or end user from accessing or using the Cloud Services as intended by this Agreement. "Intellectual Property Rights" means any and all patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. "Ladris Data" means (i) all data and information provided by the Cloud Services that is proprietary to Ladris or its licensors, (ii) all metadata captured by the Cloud Services, including time and duration of simulations, parameters set by Customer in running simulations, and frequency of use, and (iii) all Resultant Data. "Ladris Materials" means the Specifications, Documentation and any and all other information, data, documents, materials and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided to Customer or used by Ladris or any Subcontractor in connection with the Cloud Services or Ladris Systems. For the avoidance of doubt, Ladris Materials include Ladris Data and Resultant Data, but do not include Third Party Materials or Customer Data. Ladris Confidential Information ver.12-14-2022 Page 2 of 26 9-11 Attachment B "Ladris Personnel" means all individuals involved in the performance of Cloud Services as employees, agents or independent contractors of Ladris or any Subcontractor. "Ladris Systems" means the information technology infrastructure used by or on behalf of Ladris to operate, maintain and make available the Cloud Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Ladris or through the use of Subcontractors. "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction. "Losses" means any and all losses, damages, or other liabilities, awarded in a final judgment, including interest, awards, penalties, fines, costs and expenses, as well as reasonable attorneys' fees; provided, however, that losses shall not include (i) any amounts resulting from loss of property, loss of services, personal injury, or death resulting from an evacuation or wildfire, or loss resulting from any other hazardous activity. "Open Source Program(s)" means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models. "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity. "Representatives" means, with respect to a Party, that Party's and its Affiliates' employees, officers, directors, consultants and legal advisors. "Resultant Data" means information, data and other content that is derived by or through the Cloud Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content. Resultant Data includes but is not limited to information, data or other content derived from Ladris' analysis of Customer's access of the Cloud Services. "Specifications" means the published technical description for the Cloud Services or Documentation. "Third Party Materials" means materials and information, in any form or medium, including any open -source or other software, documents, data, content, specifications, APIs, products, equipment or components of or relating to the Cloud Services that are not proprietary to Ladris or its licensors. ARTICLE 2. CLOUD SERVICES. 2.1 Cloud Services. During the Term of this Agreement (set forth in Section 11.2), Ladris shall provide to Customer, and their Authorized Users the Cloud Services described in the attached Attachment 2 (collectively, the " Cloud Services"), in substantial conformity with the Specifications. The Cloud Services shall be provided 24 hours per day, seven days per week every day of the year, except as provided in Article 5 (Service Levels and Service Credits.) 2.2 Cloud Services and System Control. Except as otherwise expressly provided in this Agreement, as between the parties: (a) the Cloud Services, Ladris Materials and Ladris Systems shall be operated, maintained and managed by Ladris; (b) the Cloud Services may be operated on hardware and at locations owned, maintained and managed by a third -party supplier to Ladris; and Ladris Confidential Information ver.12-14-2022 Page 3 of 26 9-12 Attachment B (c) Customer will retain sole control over the operation, maintenance and management of the Customer Systems, and shall have sole responsibility for all access to and use of the Cloud Services and Ladris Materials by or through the Customer Systems, including any: (i) Customer Data, or other information, instructions or materials provided by Customer or any Authorized User; and (ii) the distribution of Customer Data based on use of the Cloud Services. 2.3 Changes. Ladris reserves the right, in its sole discretion, to make any changes to the Cloud Services and Ladris Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Ladris' Cloud Services to its customers, (ii) the competitive strength of or market for Ladris' Cloud Services or (iii) the Cloud Services' cost, efficiency or performance; or (b) to comply with applicable Law. 2.4 Subcontractors. Ladris may from time to time in its discretion engage third parties to operate, maintain, and make available perform the Cloud Services (each such third party being a "Subcontractor"). 2.5 Suspension or Termination of Cloud Services. Ladris may, directly or indirectly, suspend, terminate or otherwise deny access to or use of all or any part of the Cloud Services or Ladris Materials by Customer, or any Authorized User if (a) Ladris receives a judicial or other governmental demand or order, or law enforcement request that requires Ladris to do so; or (b) Ladris believes, in its good faith and sole discretion, that: (i) Customer or such Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Cloud Services beyond the scope of the rights granted; or (ii) Customer or such Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities. This Section 2.5 does not limit any of Ladris' other rights or remedies, whether at law or in equity. ARTICLE 3. AUTHORIZATION AND CUSTOMER RESTRICTIONS. 3.1 Authorization. Ladris authorizes Customer and its Authorized Users to access and use the Cloud Services and such Ladris Materials as Ladris may supply to Customer for the internal use of Customer. This authorization is non-exclusive and non -transferable, other than as may be set forth in Section 16.4 (Assignment) and Section 3.2. 3.2 Prohibitions. Customer shall not (i) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code or object code of the Cloud Service software, in whole or in part, or (ii) copy, modify, or prepare derivative works of the Cloud Service software or the Ladris Materials. 3.3 Additional Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, copy, distribute, reproduce, incorporate, use, or access the Cloud Services or Ladris Materials in any manner except as expressly permitted by this Agreement and, in the case of Third -Party Materials, the applicable third -party license agreement. Without limiting the generality of the foregoing, Customer shall not, except as this Agreement (or any applicable open source license) expressly permits: (a) access or use the Cloud Services other than through the use of valid Access Credentials; (b) input, upload, transmit or otherwise provide to or through the Cloud Services any information or materials that are unlawful, injurious, or contain, transmit or activate any Harmful Code; (c) remove, delete, alter or obscure any trademarks, terms of service, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Cloud Services or Ladris Materials, including any copy thereof, or (d) access or use the Cloud Services or Ladris Materials for the development of a competing software service or product or any other purpose that is to Ladris' detriment or commercial disadvantage. Ladris Confidential Information ver.12-14-2022 Page 4 of 26 9-13 Attachment B ARTICLE 4. SUPPORT. 4.1 Customers. Support and maintenance shall be provided for Customers as set forth in Attachment 3. ARTICLE 5. SERVICE LEVELS AND CREDITS. ONLY TO CUSTOMERS 5.1 Service Levels. During the Term of this Agreement, Ladris will use commercially reasonable efforts to make the Cloud Services Available at least 99.5% of the time as measured over the course of each calendar month during the Term (each such calendar month, a "Cloud Service Period"), excluding unavailability as a result of any of the Exceptions described below in Section 5.4 (the "Availability Requirement"). "Service Level Failure" means a material failure of the Cloud Services to meet the Availability Requirement. "Available" means the Cloud Services are available for access and use over the Internet and are operating in substantial accordance with the Specifications. 5.2 Service Level Failures and Remedies. In the event of a Service Level Failure, and if Customer otherwise meets its obligations under this Agreement, Ladris shall issue a credit to Customer in the amount of a percentage of the Fees due for the Cloud Service Period in which the Service Level Failure occurred (each a "Service Credit") as set forth in the following table: In the first column, the Percentage of Availability shall be calculated according to the formula set forth in Section 5.3 below. Percentage of Availability Amount of Service Credit between 98.0% and 99.5% 10% between 95.0% and 98.0% 18% below 95.0% 40% In addition, all Service Credits shall be subject to the following: (a) Ladris has no obligation to issue any Service Credit unless Customer requests such Service Credit and provides to Ladris the supporting information set forth in Section 5.2(b) below within seven (7) days following the end of the applicable Cloud Service Period, (b) Customer must provide to Ladris all information necessary to document the Service Level Failure, including without limitation, log files showing the period(s) when the Cloud Services were not Available, the date(s) and time(s) on which they occurred, the number and location(s) of the affected Authorized Users (if applicable); descriptions of Customer's attempts to resolve the matter; and any other pertinent information; (c) in no event will a Service Level Credit for any Cloud Service Period exceed fifty percent (50%) of the total Fees that would be payable for that Cloud Service Period if no Service Level Failure had occurred; (d) if a dispute arises with respect to any Service Level Failure, Ladris will make a good faith determination to resolve the dispute based on its system logs, monitoring reports, configuration records, and other available information, which Ladris shall make available to Customer upon Customer's request; and (e) any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Cloud Service Period in which the Service Level Failure occurred. This Section 5.2 sets forth Ladris' sole obligation and liability and Customer's sole remedy for any Service Level Failure. Ladris Confidential Information ver.12-14-2022 Page 5 of 26 9-14 Attachment B 5.3 Measurement. If the Cloud Services are provided from servers operated and maintained by a nationally recognized cloud service provider (such as AWS or Azure), then availability will be measured by such provider's standard processes and formulas therefore. In all other cases, the percentage Availability shall be calculated according to the following formula: Percentage of Availability = 100 x (Anticipated Available Minutes — Unavailable Minutes) Anticipated Available Minutes In this Percentage of Availability formula: "Anticipated Available Minutes" means the Total Minutes less the Excluded Minutes. '`Excluded Minutes' means that the total number of minutes the Cloud Services were not available as a consequence of the exclusions set forth below in Section 5.4. as reasonably determined by Ladris. "Unavailable Minutes" means the number of minutes during the relevant Cloud Service Period that the Cloud Services were not available, not including Excluded Minutes. "Total Minutes" means the total number of minutes in the relevant Cloud Service Period. 5.4 Exceptions. For purposes of calculating the Availability Requirement, the following are "Exclusions" to the Availability Requirement, and neither the Cloud Services will be considered not Available nor any Service Level Failure be deemed to occur that is due, in whole or in part, to any: (a) access to or use of the Cloud Services by Customer or any Authorized User, or using Customer's or an Authorized User's Access Credentials, in a manner that does not strictly comply with this Agreement and the Documentation, (b) Any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement; (c) Customer's or its Authorized User's Internet connectivity; (d) Force Majeure Event; (e) Scheduled Downtime in accordance with Section 5.5; and (f) any suspension or termination of Customer's or any Authorized Users' access to or use of the Cloud Services as permitted by this Agreement. 5.5 Scheduled Downtime. Ladris will use commercially reasonable efforts to give Customer at least five hours prior notice of all scheduled outages of the Cloud Services, "Scheduled Downtime" shall mean any such scheduled outage for which at least five hours prior notice has been given and which does not persist for more than 90 consecutive minutes. There shall not be more than one Scheduled Downtime event per week. 5.6 Cloud Service Support. Basic Cloud Service Support is included in the License Fee set forth in Attachment 1. Customer may purchase enhanced support for Cloud Services separately at Ladris' then -current rates. ARTICLE 6. RESERVED Ladris Confidential Information ver.12-14-2022 Page 6 of 26 9-15 Attachment B ARTICLE 7. SECURITY. 7.1 Ladris Measures and Policies. Ladris will employ security measures in accordance with Ladris' data privacy and security policy as amended from time to time, (the "Privacy and Security Policy") a summary of which is available to Customer upon request. Subcontractors which supply platforms for the operation of Cloud Services may have their own security policies, which may be available to Customer upon request. 7.2 Prohibited Data. Customer agrees that it shall not submit the following categories of information (each of the following being "Prohibited Data") to Ladris for processing: (a) Personal Information without appropriate consent or authorization under applicable Law; (b) Content or other data (including video) that Customer does not have full rights to copy, transmit, store, process or distribute; (c) (i) articles, services and related technical data designated as defense articles or defense services, (ii) data that is classified and or used on the U.S. Munitions list and (iii) ITAR (International Traffic in Arms Regulations) related data. Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Cloud Services, the Ladris Systems or any Ladris Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data. 7.3 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) the content and use of all Customer Data; (b) the security and use of Customer's and its Authorized Users' Access Credentials; and (c) all access to and use of the Cloud Services and Ladris Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials (whether made with or without Customer's knowledge or consent). ARTICLE 8. FEES; PAYMENT TERMS. 8.1 Fees. This Article 8 applies only to the City of Newport Beach. The City of Newport Beach shall pay Ladris the fees set forth in the Ladris price list on Attachment 1 of this Agreement (as it may be revised by Ladris from time to time) (the "Fees") in accordance with this Article 8. 8.2 Fee Increases. Fees are fixed for the first year of this Agreement. Thereafter, Ladris may increase Fees on the calendar anniversary, if any, of the Effective Date during the remaining Initial Term of the Agreement in amount equal to the increase in the Consumer Price Index (Average Price Data) for the prior contract year. Following the expiration of the Initial Term, Ladris may increase its Fees to Customer by providing Customer with at least 60 days written notice prior to the expiration of the Initial Term of a revised price list to be effective upon commencement of the Extended Term. 8.3 Taxes. All Fees and other amounts payable by the City of Newport Beach under this Agreement are net of all applicable taxes, customs charges, duties or other amounts, including freight and insurance, all of which shall be paid by the City of Newport Beach. Any claim for sales tax or duty exemption by the City of Newport Beach must be provided to Ladris in writing prior to shipment of product or access to the Cloud Services, and shall be effective only after Ladris' receipt of all proper exemption forms. 8.4 Payment. The City of Newport Beach shall pay all Fees in US dollars within thirty (30) days following the date of the invoice therefore. The City of Newport Beach shall make payments to the address or account that Ladris may specify in writing from time to time. 8.5 Late Payment. If the City of Newport Beach fails to make any payment when due then, in addition to all other remedies that may be available, if such payment is not made within 90 days of the Ladris Confidential Information ver.12-14-2022 Page 7 of 26 9-16 Attachment B date when due, Ladris may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable Law. ARTICLE 9. INTELLECTUAL PROPERTY RIGHTS. 9.1 Acknowledgment. Customer acknowledges that Ladris owns all right, title and interest, including all Intellectual Property Rights in the Cloud Services, Cloud Service software, Ladris Data, Ladris Materials, and Ladris Confidential Information. As between Customer and Ladris, Ladris shall own all intellectual property rights to any derivative works of Cloud Services and Customer shall not acquire any Intellectual Property Rights with respect to the Cloud Services, Cloud Service software or Ladris Materials (including Third -Party Materials), except for the limited authorization set forth in Section 3.1 and any applicable third -party licenses and in each case subject to the restrictions of Section 3.3. 9.2 Open Source Programs. The Cloud Service software may include Open Source Programs. Any use of Open Source Programs by Customer is subject to and governed solely by the terms and conditions of the applicable open source license agreement(s). On Customer's written request, Ladris will provide Customer (at no additional cost) information how to obtain a copy of the source code for such Open Source Programs in accordance with the terms of the controlling open source license agreement(s). 9.3 Customer Data. Customer hereby irrevocably grants to Ladris, its Subcontractors and Ladris Personnel all such rights and permissions in or relating to Customer Data as are necessary or useful to perform the Cloud Services. In addition, to the extent that Customer may have intellectual property rights in Ladris Data or Resultant Data, Customer hereby grants to Ladris a perpetual, royalty free, non-exclusive worldwide license to reproduce, use and license and sublicense such intellectual property rights for use in connection with the Cloud Services and such other products and services as may be developed and marketed by Ladris. its successors or assigns. 9.4 Evacuation Maps. Customer shall supply Ladris with evacuation maps and zones it uses in planning evacuation routes in the geographic area served by Customer. Customer represents and warrants that such evacuation maps and evacuation zones are in the public domain, or alternatively Customer hereby irrevocably grants to Ladris a perpetually, royalty -free, worldwide license to reproduce, use, license and sublicense such evacuation maps and zones with respect to the Cloud Services and as embedded in such other products and services as may be developed and marketed by Ladris. 9.4 Feedback. If Customer or any of its employees or contractors submits, orally or in writing, ideas, suggestions or recommended changes to the Cloud Services or Documentation, including without limitation, new features or functionality relating thereto ("Feedback"), Ladris is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Ladris on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Ladris is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Ladris is not required to use any Feedback. Notwithstanding the provisions of Article 10 below (Confidentiality), Feedback will not be considered Confidential Information. 9.5 U.S. Government. The Cloud Services are a "Commercial Item," as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation,' as such terms are used in 48 C.F.R. 12.212, 48 C.F.R. 227.7202, and 48 C.F.R. 12.211, respectively. Consistent with 48 C.F.R. 12.212, and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users' rights to use, modify, reproduce, release, perform, display, or disclose the Cloud Services and the Documentation are as provided by this Agreement. This U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, is in lieu of, and supersedes, Ladris Confidential Information vcr.12-14-2022 Page 8 of 26 9-17 Attachment B any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software, computer software documentation or technical data related to the Cloud Services and Documentation. ARTICLE 10. CONFIDENTIALITY. 10.1 Confidential Information. In connection with this Agreement each Party (as the "Disclosing Party") may disclose or make available Confidential Information to the other Party (as the "Receiving Party"). "Confidential Information" means information of the Disclosing Parry which (a) is in written, graphic, machine readable or other tangible form and is marked "Confidential," "Proprietary" or in some other manner to indicate its confidential nature and, (b) such information as would be considered confidential based on the circumstances surrounding its disclosure by a reasonable person familiar with the Disclosing Parry's business and the industry in which the Disclosing Party operates. If given orally, Confidential Information may be, but is not required to be, confirmed in writing as having been disclosed as confidential or proprietary within 30 days after the oral disclosure. Confidential Information includes in all cases information and data which a Party has received from others that may be made known to the other Party and which such Party is obligated to treat as confidential or proprietary. Confidential Information that consists of software (including source and object code), algorithms, design details, data structures, specifications, hardware configuration, computer programs, engineering and manufacturing information and all other information of a technical nature shall be considered "Technical Confidential Information." All other Confidential Information, including agreements with third parties, business plans, products, marketing information, research, development, design details and specifications, financial information, procurement requirements, customer lists, business forecasts, and sales information shall be considered "Business Confidential Information." Without limiting the foregoing, all product and other specifications, unpublished documentation, non- public marketing materials, the terms of this Agreement and the discounts provided hereunder are and will remain the Confidential Information of both parties. 10.2 Exclusions. Except for Personal Information or any third -party information that the Receiving Party is under a contractual or other binding obligation to maintain in confidence, Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement, (c) was or is received by the Receiving Party on a non -confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information. 10.3 Protection of Confidential Information. The Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement except as may be permitted by and subject to its compliance with Section 10.4 (Compelled Disclosures). Ladris Confidential Information ver.12-14-2022 Page 9 of 26 9-18 Attachment B (b) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (c) not disclose or permit access to Confidential Information other than to those of its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Parry's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Article 10; (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Article 10; and (iv) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Article 10. 10.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10.3 (Protection of Confidential Information) and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. 10.5 Period of Confidentiality and Return of Information. A Receiving Party's obligations with respect to (i) Technical Confidential Information and Business Confidential information that contains Ladris trade secrets, shall survive indefinitely and (ii) Business Confidential Information that does not constitute a Ladris trade secret, shall survive for three (3) years following termination of this Agreement. Upon termination of this Agreement, a Receiving Party shall, within 7 days return to the Disclosing Party, or at the Disclosing Parry's written request destroy, all documents and tangible materials containing or based on any Confidential Information; and (ii) permanently erase all Confidential Information from all systems that Customer directly or indirectly controls. ARTICLE 11. TERM AND TERMINATION. 11.1 Initial Term. The initial term of this Agreement begins on April 1, 2023 and, unless terminated earlier pursuant the provisions hereof, ends on December 31, 2023 ("Initial Term") 11.2 Credit for Orange County. Prior to expiration of the Initial Term, the Parties may elect to extend the term of this Agreement via a written amendment duly executed by both Parties ("Extended Term" and, collectively with the Initial Term, the "Term"). The Parties acknowledge that a quote to Orange County for an expanded license to the Cloud Services was based upon the execution of this Agreement by March 31 ", 2023 for, in part, evaluation purposes by the County. Ladris agrees to honor the quotes provided to Orange County in connection with this Agreement until and through January 30", 2024. 11.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement: (a) Ladris may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 30 days Ladris Confidential Information ver.12-14-2022 Page 10 of 26 9-19 Attachment B after Ladris' delivery of written notice thereof, or (ii) breaches any of its obligations under Section 3.3 (Additional Limitations and Restrictions), Section 7.2 (Prohibited Data) or Article 10 (Confidentiality). (b) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 11.4 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (a) all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate; (b) Ladris may disable all Customer and Authorized User access to the Cloud Services; (c) Customer shall immediately cease all use of any Cloud Services and Ladris Materials and (i) within 7 days return to Ladris, or at Ladris' written request destroy, all documents and tangible materials containing or based on any Ladris Materials; (ii) permanently erase all Ladris Materials from all systems Customer directly or indirectly controls; and (iii) comply with the comparable provisions with respect to the return, destruction, or erasure set forth in Section 10.5 above; (d) if Ladris terminates this Agreement pursuant to Section 11.3(a) or Section 11.3(b), Customer shall pay all Fees previously accrued but not yet paid for services rendered prior to termination, on receipt of Ladris' invoice therefor. (e) for a period of two weeks following termination, Customer may access and download any previously saved evacuation scenarios, and related data. 11.5 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 3.2 and 3.3 (Prohibitions and Additional Limitations and Restrictions), Article 9 (Intellectual Property) Article 10 (Confidentiality), Section 11.4 (Effect of Expiration or Termination), Section 11.5 (Surviving Terms), Article 12 (Representations and Warranties), Article 13 (Indemnification), Article 14 (Limitations on Liability) and Article 16 (Miscellaneous). ARTICLE 12. REPRESENTATIONS AND WARRANTIES. 12.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate, governmental or other organizational action of such Party; and (b) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms. 12.2 Additional Customer Representations and Warranties. (a) Customer represents and warrants to Ladris that Customer has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Ladris and processed in accordance with this Agreement and the Specifications for the Cloud Based Services, Ladris will not infringe, misappropriate or otherwise Ladris Confidential Information ver.12-14-2022 Page I I of 26 9-20 Attachment B violate any US copyright, or any privacy, data security or other rights of any third party or violate any applicable Law. (b) Customer may supply Ladris with evacuation maps and zones/or it uses in planning evacuation routes in the geographic area served by Customer. Customer represents and warrants that such evacuation maps and evacuation zones are in the public domain. 12.3 Accuracy of Customer Data. Customer acknowledges that Ladris will have no responsibility for the content, accuracy or completeness of any Customer Data. 12.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1, ALL CLOUD SERVICES AND LADRIS MATERIALS ARE PROVIDED "AS IS" AND LADRIS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND LADRIS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LADRIS MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES OR LADRIS MATERIALS WILLL MEET CUSTOMER REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE ERROR FREE. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD -PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD -PARTY OWNER OF THE THIRD -PARTY MATERIALS. LADRIS MAKES NO REPRESENTATION OR WARRANTY THERETO. NOTWITHSTANDING THE FOREGOING, LADRIS REPRESENTS THAT IN PROVIDING CLOUD SERVICES IT HAS AND SHALL OBSERVE AT LEAST THAT STANDARD OF CARE, SKILL AND DILIGENCE GENERALLY OBSERVED BY AN EXPERIENCED PROFESSIONAL PERSON OR FIRM IN THE PERFORMANCE OF SIMILAR SERVICES, AND THAT THE CLOUD SERVICVES WILL AT LEAST SUBSTANTIALLY CONFORM WITH THE SPECIFICATIONS, BE FREE OF MATERIAL DEFECTS, AND BE AT LEAST OF FAIR AND AVERAGE QUALITY IN THE INDUSTRY. ARTICLE 13. INDEMNIFICATION. 13.1 Ladris Indemnification. Ladris shall indemnify, defend and hold harmless Customers and Customer's officers, directors, and employees (each, a "Customer Indemnitee") from and against any and all Losses incurred by such Customer Indemnitee resulting from a final judgment in any suit or proceeding by a third party to the extent that such Losses arise from any allegation in such action based on Ladris conduct in the performance of this Agreement, or that Customer's or an Authorized User's use of the Cloud Services (excluding Customer Data and Third Party Materials) in compliance with the Documentation and this Agreement infringes a United States copyright, trademark or trade secret. The foregoing obligation does not apply to any action or proceeding or Losses arising out of or relating to any: (a) access to or use of the Cloud Services or Ladris Materials in combination with any hardware, system, software, network or other materials or services not provided or authorized in the Specifications or otherwise in writing by Ladris; (b) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Ladris; or Ladris Confidential Information ver.12-14-2022 Page 12 of 26 9-21 Attachment B (c) act, omission or other matter described in Section 13.2(a) through Section 13.2(c), whether or not the same results in any action against or Losses by any Ladris Indemnitee. THIS SECTION 13.1 SETS FORTH CUSTOMER'S SOLE REMEDIES AND LADRIS' SOLE LIABILITY AND OBLIGATION FOR ANY FINAL JUDGMENTS THAT THIS AGREEMENT OR THE CLOUD SERVICES INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY THIRD -PARTY INTELLECTUAL PROPERTY RIGHT SET FORTH ABOVE. 13.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Ladris and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees (each, a "Ladris Indemnitee") from and against any and all Losses incurred by such Ladris Indemnitee in connection with any action or proceeding by a third party (other than an Affiliate of a Ladris Indemnitee) that arise out of or relate to any: (a) processing of Customer Data by or on behalf of Ladris in accordance with this Agreement; (b) disclosure or exposure of Personal Information to Ladris in violation of applicable Law; or (c) transmission of Prohibited Data to Ladris. 13.3 Mitigation. If any of the Cloud Services are, or in Ladris' opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third -party Intellectual Property Right, or if Customer's or any Authorized User's use of the Cloud Services is enjoined or threatened to be enjoined, Ladris may, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use the Cloud Services and Ladris Materials materially as contemplated by this Agreement; (b) modify or replace the Cloud Services in whole or in part, to seek to make the Cloud Services (as so modified or replaced) non -infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Cloud Services under this Agreement; or (c) by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Cloud Services and Ladris Materials, provided that if such termination occurs prior to the expiration of any period with respect to which Customer has paid a Fee, Customer will be entitled to a pro-rata refund of any portion of such period following termination. ARTICLE 14. LIMITATIONS OF LIABILITY. 14.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.4, IN NO EVENT WILL LADRIS OR ANY OF ITS LICENSORS, SUPPLIERS OR SUBCONTRACTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE CLOUD SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 5.2, OR (C) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER LADRIS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. 14.2 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.4, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF LADRIS AND ITS SUPPLIERS AND SUBCONTRACTORS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, Ladris Confidential Information ver.12-14-2022 Page 13 of 26 9-22 Attachment B INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE HIGHER OF (i) THE SUM OF ALL FEES PAID BY CUSTOMER UNDER THIS AGREEMENT FOR THE 12 MONTHS IMMEDIATELY PROCEEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY OR (ii) $500. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 14.3 THE PURPOSE OF THE FOREGOING PROVISIONS OF SECTIONS 14.1 AND 14.2 IS TO LIMIT LADRIS' LIABILITY UNDER THIS AGREEMENT AND, IN THE ABSENCE OF THESE PROVISIONS, LADRIS WOULD NOT HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT. 14.4 Exceptions. The exclusions and limitations in Section 14.1 and Section 14.2 do not apply to Ladris' obligations under Article 10 (Confidentiality) or liability for Ladris' gross negligence or willful misconduct. ARTICLE 15. RESERVED ARTICLE 16. MISCELLANEOUS. 16.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, between the parties. 16.2 Force Majeure Event. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by:(a) acts of God; (b) flood, fire, or explosion; (c) war, terrorism, invasion, riot, or other civil unrest; (d) embargoes or blockades in effect on or after the date of this Agreement; (e) national or regional emergency; (f) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (g) internet outage and denial of service attacks (each of the foregoing, a "Force Majeure"). A party may terminate this Agreement if a Force Majeure event affecting the other party continues substantially uninterrupted for a period of forty-five (45) Business Days or more. Press Release. The City of Newport Beach authorizes Ladris to use its name and logo in its list of customers. The parties agree that either party or both may issue a mutually acceptable news release regarding Customer's use of the applicable Cloud Services. Each parry's approval of such news release will not be unreasonably withheld or delayed. Once a press release has been issued, Ladris may publicly refer to Customer as being a customer of Ladris, and only in relation to this Agreement except as otherwise authorized by Ladris. 16.3 Notices. All notices, requests, consents, claims, demands and waivers under this Agreement must be in writing and addressed to a Party as follows (or to such other address or such other person that such Party may designate from time to time in accordance with this Section 16.2): If to Ladris: Attention: Email: service@ladris.com Ladris Technologies, Inc. 10090 Stable Lane Nevada City, California 95959 With a copy to: Eric Little, Esq. 1793 East Main Street, Ladris Confidential Information ver.12-14-2022 Page 14 of 26 9-23 Attachment B Grass Valley, CA 95945 If to Customer: City of Newport Beach Newport Beach Police Department E-mail: keing@nbpd.org Attention: Katie Eing Notices sent in accordance with this Section 16.3 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile with confirmation of transmission), if sent during the addressee's normal business hours, and otherwise on the next business day; and (d) on the fourth day after the date mailed by certified or registered mail, return receipt requested, postage prepaid. 16.4 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral. 16.5 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Ladris' prior written consent, which shall not be unreasonably withheld. 16.6 Amendment and Modification. No Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, and signed by each Party (which signature may be by counterpart). No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. 16.7 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. 16.8 Conflicts. In the event of any conflict between this Agreement and any Ladris policy posted online, including without limitation the privacy policy, the terms of this Agreement will govern. 16.9 Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor or against either Party by reason of authorship. 16.10 Governing Law. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of California, as such laws are applied to agreements entered into and to be performed entirely within California between California residents without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. 16.11 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Article 10 (Confidentiality) would cause the other party irreparable harm for which monetary damages would not be an adequate and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. Ladris Confidential Information ver.12-14-2022 Page 15 of 26 WMI Attachment B 1 6.12 Counterparts, This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 16.13 insurance. Ladris shall obtain, provide and maintain at its own expense during the term of this Agreement policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Attachment 4, and incorporated herein by reference. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: ?1 NP /Z3 By: AC�-c A on C. Harp S_ City Attorney ATTEST: Date: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Grace K. Leung City Manager LADRIS TECHNOLOGIES, INC., a California Corporation Date: By: Leo Zlimen Chief Executive Officer Ladris Confidential Information ver.12-14-2022 Page 16 of 26 9-25 Attachment B Attachment l SCHEDULE OF CHARGES AND PAYMENTS Pilot: Harbor Region Extended Term: County -Wide Cities 5 35 + County EM Seats 10 75 (2 per city + 5 for County EM) Simulations 10M 75M Products Ladris Operator: Cloud -Hosted Ladris Operator: Cloud -Hosted Modules Evacuation Modeling Suite Pro, Infrastructure Data Studio Pro, GIS Integrations Hub Evacuation Modeling Suite Pro, Infrastructure Data Studio Pro, GIS Integrations Hub Term 9 Months 3 Years Commences April 1 St, 2023 Dec. 31 St, 2023, immediately upon conclusion of trial Fees* $60K for trial $490K per year (good through January 30th, 2024 Ladris Confidential Information ver.12-14-2022 Page 17 of 26 9-26 Attachment B Attachment 2 CLOUD SERVICES FEATURE LIST Modules: Operator Evacuations Simulator, Operator Data Studio • Model "what -if' hypothetical evacuation scenarios at -will for any area within the borders of the Harbor Cities. • Model radial, polygon, and zoned -based evacuations • Model impacts of new infrastructure, including additional user -defined roads, intersections, junctions, & addresses • Model impact of varying regional occupancy scenarios, with occupancy being a parameter defined by the user (allowing for simulations using permanent population addresses as well as temporary spikes/decreases in transient populations) • Model impacts of varying evacuation departure timeframes, including zone -specific departure start and end times • Model impacts of high -population events (beyond 100% capacity) • Model impacts of segment -by -segment capacity changes, speed differences, blockages, and contraflow • Model impacts of varying vehicle capacities for specific addresses (stadiums, schools, etc.) • Project and visualize traffic flow rates, congestion, and pinch points • Project evacuation time ranges with statistical analysis • Inform models with assumptions for: o Vehicles per address o Heavy vehicles per address (heavy vehicles are a broad class of vehicle that may include trucks, trailers, and other large equipment) o Varying global speed assumptions (freeway, highway, arterial, residential, service roads) • Identify dead-end roads (roads with one way in/one way out) • Generate reports & visualizations for scenarios that have been modeled • Export raw simulation results as GIS-compatible data • Create additional road, address and junction/intersection datasets at -will based on existing datasets • Mix and match combinations of road, address and junction/intersection datasets when simulating • Integrate GIS Feature Layers directly from ArcGIS Online • Source additional GIS data feeds: o Live traffic flows o Live traffic incident reports o Wind and weather overlays o Terrain overlays Ladris Confidential Information ver.12-14-2022 Page 18 of 26 9-27 Attachment B Attachment 3 CLOUD SERVICES SUPPORT AND MAINTENANCE 1.0 Scope of Agreement 1.1 This Attachment covers the maintenance and support of the Cloud Services. This Agreement provides maintenance services only with respect to Software, including third party software, supplied by Ladris to Customer pursuant to the terms of the Terms of Service Agreement. This Agreement does not provide for maintenance services for any third -party software not provided by Ladris to Customer or for any hardware. 1.2 Ladris' obligation to provide Support Services shall extend to the current Release and prior Versions whose Release number begins with the same number or immediately preceding number as the current Release. For example, if the current Release is 4.5, Ladris will support only those Versions between 3.x and 4.5. If Customer desires support for earlier Versions of the Software, such support may be treated by Ladris as additional consulting services for which Customer will be billed at Ladris' then -current time -and -materials rates. Customer understands that its implementation of a new Version may require Customer to upgrade its Computer System. 2.0 Data Backup, Retention and Disposal. Ladris shall be responsible for creating and maintaining timely, accurate and readable electronic back-ups of all data, program and system files. Periodically, in accordance with information technology best practices, Ladris shall restore such backups to a test server to validate that the data backups are recoverable without lost or corrupted data. Using appropriate and reliable storage media, Ladris will back up Customer data daily and retain such backup copies for a minimum of thirty-six months, or as consistent with requirements in federal, state and local law. At the end of that time period and at Customer's election, Ladris will direct the Hosting Vendor to destroy or overwrite the backup copies. Upon Customer's request, Ladris will supply Customer with a certificate indicating the nature of the storage media destroyed, the date the backups were destroyed or overwritten, and the method of destruction used. 3.0 Disaster Recovery The Ladris will maintain a Disaster Recovery Plan with respect to the services provided to the Customer. For purposes of this Agreement, a "Disaster" shall mean any unplanned interruption of the operation of or inaccessibility to the Ladris' service in which the Ladris, using reasonable judgment, requires relocation of processing to a recovery location. The Ladris shall notify the Customer as soon as possible after the Ladris deems a service outage to be a Disaster. The Ladris shall move the processing of the Customer's services to a recovery location as expeditiously as possible and shall coordinate the cut -over. During a disaster, optional or on -request services shall be provided by the Ladris only to the extent adequate capacity exists at the recovery location and only after stabilizing the provision of base services. 4.0 Administrative Functions Performed by Ladris. Ladris shall provide certain limited administrative services regarding the maintenance of the Software including, (i) setting permissions, (ii) adding, modifying or deleting attributes, events, statutes, program and case types Ladris Confidential Information ver.12-14-2022 Page 19 of 26 Attachment B and lookup items, (iii) adding and deleting case types, and (iv) creating and modifying workflows, (v) adding and modifying assessments and related scoring. 5.0 Covered Maintenance Ladris will provide to Customer: (a) all services required to ensure that the Software operates in conformity with all Specifications; and (b) all Enhancements developed by Ladris for the Software and related Documentation during the Term of this Agreement. Covered Maintenance Services do not include the costs of accessories and expendable supplies necessary to operate the Software, such as magnetic tape cards, optical disks, disk packs, paper, and similar items, and such items are not provided free of charge by Ladris hereunder. 6.0 Customer Obligations 6.1 Customer may designate up to five (5) persons by whom requests by Customer for Support Services may be made ("Support Team"). Ladris shall not be required to accept calls or requests from anyone other than a designated contact person. Customer may change its designated contact person, or request that additional people be made contact persons, at any time upon notice to Ladris. 6.2 Customer shall implement and follow the reasonable written instructions of Ladris regarding operation of the Software. 6.3 Customer shall, at its own expense, protect the security of its Computer System and adopt policies and practices needed to prohibit unauthorized access to the Computer System. Ladris shall not be responsible for any security breach of Customer's Computer System and expressly disclaims any liability for loss or damage caused by the unauthorized access to Customer's Computer System other than that which is caused by an employee of Ladris. Ladris shall ensure that the Hosting Services Agreement includes provisions ensuring security of the Software and Data. 6.4 Software Administration. Customer, as a general matter, shall perform all tasks associated with the administration of the Software, other than those that are assigned to Ladris, including without limitation, adding, modifying, removing and otherwise maintaining users, templates, lookups, and logons and passwords, 6.5 Communications Equipment. Customer shall, at its sole expense, install and maintain communications equipment that will permit Customer to have high speed internet access to the Software. Customer acknowledges that maintenance of the appropriate communications equipment is a condition precedent to Ladris' provision of use for the Software. 7.0 Service Level Agreement 7.1 Ladris will maintain a website accessible by Customer, which contains information concerning the Software and Support Services. 7.2 Ladris will respond to Customer requests for software support services regarding the licensed software in accordance with the procedures identified below. In each case, Customer may describe and submit notice of the support need by telephone, facsimile or electronic mail. 7.3 All Ladris staff assigned to provide services to Customer will be appropriately qualified by education, training and experience to deliver those services, and will be familiar with the functional capabilities of the Software. Ladris Confidential Information ver.12-13-2022 Page 20 of 26 9-29 Attachment B 7.4 Telephone Support includes: (i) remote diagnostics; (ii) service desk and dispatch; (iii) question and answer consulting; and, (iv) non -chargeable user error remedies. Ladris shall provide a toll -free maintenance telephone number. Remote diagnostics equipment is required at Customer's location for remote support, which equipment is to be obtained by Customer at its sole expense. Ladris shall provide Customer with telephone support services for Software from 8:00 a.m. to 5:00 p.m. Pacific Time, Monday through Friday, excluding Customer -recognized holidays. 7.5 Response Policy. Ladris shall respond to any Errors reported by Customer based on the priority code assigned to each such Error. Customer shall identify the priority code when it initially reports the Error to Ladris. Ladris may, in its reasonable discretion, reclassify the Error after its initial investigation. In the event Ladris does not meet the service level response for the Error as described in the table below, the Customer may request to escalate the Error to a higher priority code, which request the Ladris shall not unreasonably deny. Priority Levels and Response Times: Evacuations Simulator (Support Tier: Basic) Priority Level Service Level Goals Software Urgent Response Time Within 8 Business Hours Initial Status Update Within 16 Business Hours Workaround Time Within 2 Business Days Restore Time Within 8 Business Days High Response Time Within 16 Business Hours Initial Status Update Within I Business Day Workaround Time Within 3 Business Days Restore Time Within 12 Business Days Ladris Confidential Information ver.12-14-2022 Page 21 of 26 Attachment B Normal Response Time Within 32 Business Hours Initial Status Update Within 64 Business Hours Workaround Time Within S Business Days Restore Time As mutually agreed Low Response Time Within 64 Business Hours Initial Status Update Within 4 Business Days Workaround Time As mutually agreed Restore Time As appropriate Priority Level Definition Trouble condition where the system is completely out of Urgent service or is causing significant business impact to the Customer and no immediate workaround is available High System affected with intermittent loss of simulation capability or a problem that significantly affects deployment Normal System issues alerts and/or exhibits unexpected behavior without affecting core functionality Low Technical consultations, feature suggestions Ladris Confidential Information ver.12-14-2022 Page 22 of 26 9-31 Attachment B Attachment 4 INSURANCE REQUIREMENTS Provision of Insurance. Without limiting Ladris (herein, Consultant) indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented Ladris Confidential Information ver.12-14-2022 Page 23 of 26 9-32 Attachment B vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. E. Cyber Liability. Contractor shall maintain cyber liability insurance with limits of not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate covering (1) all acts, errors, omissions, negligence, infringement of intellectual property, (2) network security and privacy risks, including but not limited to unauthorized access, failure of security, breach of privacy perils, wrongful disclosure, collection, or negligence in the handling of confidential information, privacy perils, including coverage for related regulatory defense and penalties, and (3) data breach expenses payable whether incurred by City or Contractor, including but not limited to consumer notification, whether or not required by law, computer forensic investigations, public relations and crisis management firm fees, credit file or identity monitoring or remediation services, in the performance of services for City or on behalf of City hereunder. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. tion. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as additional insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. Ladris Confidential Information ver.12-14-2022 Page 24 of 26 9-33 Attachment B D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at anytime during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Right to Review Subcontracts. Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13. D. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non- compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any Ladris Confidential Information ver 12-14-2022 Page 25 of 26 9-34 Attachment B party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. F. Self -insured Retentions. Any self -insured retentions must be declared to and approved by City. City reserves the right to require that self -insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. H. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Ladris Confidential Information ver.12-14-2022 Page 26 of 26 9-35 Attachment C Budget Amendment No. 23-059 9-36 Attachment C �?Ew�Rr e� City of Newport Beach BUDGET AMENDMENT cy[rcoaas' 2022-23 Department: Police Requestor: Katie Eing ONETIME: 0 Yes ❑ No BA#: 23-059 Approvals ❑ CITY MANAGER'S APPROVAL ONLY Finance Director: � Date Fz] COUNCIL APPROVAL REQUIRED City Clerk: Date EXPLANATION FOR REQUEST: To purchase short-term licenses for a disaster evacuation software platform under the 2021 Homeland Security Grant. ❑ from existing budget appropriations Under the grant guidelines, the City of Newport Beach must purchase the licenses first and then get reimbursed from ❑� from additional estimated revenues the County. ❑ from unappropriated fund balance REVENUES Fund # Org Object Project Description Increase or (Decrease) $ 010 0103511 431453 G2320 EMERGENCY PREPAREDNESS - FEDERAL GRANTS 60,000.00 Subtotal $ 60,000.00 EXPENDITURES Fund # Org Object Project Description Increase or (Decrease) $ 010 0103511 911027 G2320 EMERGENCY PREPAREDNESS - SOFTWARE LICENSE NEW 60,000.00 Subtotal $ 60,000.00 FUND BALANCE Fund # Object Description Increase or (Decrease) $ 010 300000 GENERAL FUND - FUND BALANCE CONTROL Subtotal $ No Change In Fund Balance 9-37