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Home My WebLink AboutC-4125 - PSA for On-Call Security and Fire Monitoring, Maintenance and Installation Services• PROFESSIONAL SERVICES AGREEMENT WITH ADT SECURITY SERVICES, INC. FOR ON -CALL SECURITY AND FIRE MONITORING, MAINTENANCE AND INSTALLATION SERVICES THIS AGREEMENT is made and entered into as of this 12th day of November, 2008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and ADT SECURITY SERVICES, INC., a DELAWARE corporation whose address is 4161 East La Palma Avenue, Anaheim, California 92807 ( "Consultant"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City has a need for on -call assistance for maintenance, repair, monitoring and installation of security and fire systems at the Utilities facilities. C. City desires to engage Consultant to perform on -call security and fire systems maintenance, monitoring and installations services at the Utilities Yard on an as need basis ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be James J. Simmons. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 30'h day of June, 2013, unless terminated earlier as set forth herein. • 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call" security maintenance and installation services as described in the Statement of Qualifications attached as Exhibit "A." Upon verbal or written request from the Project Administrator, Consultant shall provide a letter proposal for services requested by the City (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include the following: A. A detailed description of the services to be provided; B. The position of each person to be assigned to perform the services, and the name of the individuals to be assigned, if available; C. The estimated number of hours and cost to complete the services; and D. The time needed to finish the specific project. No services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 0 0 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to -exceed basis, in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit "B° and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Consultant's compensation for services performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as approved by the Project Administrator. Any Letter Proposal that sets forth fees in excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a separate Professional Service Agreement approved by per Council Policy F -14. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person and /or classification of employee who performed the work, a brief description of the services performed and /or the speck task in the letter proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in the Letter Proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement and the Letter Proposal, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Letter Proposal and which the parties did not reasonably anticipate would be • necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated James Simmons to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City s approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Utilities Department. George Murdoch shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner s commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate directly to any work performed or services provided under this Agreement including, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award cf attorney's fees in any 0 • action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY 13. Consultant shall discuss and review all matters relating to policy and project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. S_gnature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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. D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed r i under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and properly damage for all activities of the 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 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 5. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. 0 0 G. Additional 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. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without spec written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for 0 i such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. All such records shall be dearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 20. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 21. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be bome by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. 23. 24. • 0 CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personalty, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: George Murdoch Utilities Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone: 949 -644 -3011 Fax: 949 -646 -5204 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: James J. Simmons ADT Security Services, Inc. 4161 East La Palma Avenue Anaheim, CA 92807 Phone: 949- 292 -7671 Fax: 949- 586 -6122 0 0 25. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 26. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 27. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. • • 29. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 30. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 31. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 32. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 33. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 34. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: PVK4.,— By: G �✓ LaVonne Harkl s, City Clerk EWP CITY OF AA M Mayor for the City of Newport Beach CONSULTANT: By: orate Officer) Title: �, IRJ Print Name: =>,fj b- C By: /F",ar>Ai'l"bff icer) Title: 1 '�7a Print Name: -t7;V4sl h�/�4i,jel�- Attachments: Exhibit A — Statement of Qualifications Exhibit B — Schedule of Billing Rates Service and Maintenance Systems Proposal Prepared for The City of Newport Beach Utilities Department Rev. II Thursday, October 30, 2008 Prepared By James J Simmons 949-292-7671 ACCOUNT MANAGER ADT Security Services, Inc. ADT Security Services, Inc. October 30, 2008 Introduction We at ADT believe that our vast experience and history of leadership in the security services industry enables us to provide the best products and services for our most valuable asset, our customers. New Synergy Since it's founding in 1874, the ADT Security Services name has been synonymous with quality and peace of mind. ADT proudly serves more than one million customers including major financial institutions, high security government clients, large retailers, and the majority of the Fortune 500. In human terms, ADT helps protect more than twenty million people everyday. ADT has evolved from a burglar alarm company to a Corporation that strives to provide business solutions for your business problems. We value our customer partnerships that have been formulated and will continue to strive and learn the fundamentals of your business. The better we understand your business, the better we can offer solutions that encompass the entire management scope of your operations. Brief History of ADT In 1874, the American District Telegraph Company was founded in Baltimore and was ESTERN acquired by Western Union in 1901. American Telephone & Telegraph (AT&T) gained L/N/ON control of ADT and Western Union in 1909. Sharing offices with Western Union, district telegraph companies derived their income from messenger services. A multi -function call box could transmit a signal to the telegraph office with a service request where a messenger was dispatched to summon the doctor, taxi, police, or fire service. The call box also enabled watchmen to transmit a signal that all was well. Failure to transmit a signal on schedule caused someone to be sent to find out why. The burglar detection industry was spawned when ADT stretched a wire across a room and connected it to the call box. If a burglar entered the premises, the line would be tripped and activate the call box; a process commonly referred to, even today, as "tripping an alarm". For the first time, a business could be protected from burglars without the expense of a watchman. During World War I concern over sabotage and espionage focused attention on ADT's burglar alarm systems. Through their own efforts, ADT engineers developed new security devices that helped ADT's business expand rapidly. As the United States prepared for the Second World War, even greater attention was focused on security devices for the protection of property and production capacity. As manpower availability became acute, the need for automatic fire and burglar detection systems became more important. It was during this period that ADT introduced automatic fire detection systems and ultrasonic burglar alarm detectors. In 1956, ADT expanded into Canada, and Europe in 1959. In 1987, ADT was purchased by The Hawley Group, Ltd. which has since been renamed ADT, Limited. In 1997, Tyco International acquired ADT as a part of its Fire and Safety Services segment. ADT Security Services continues its tradition of "Pride In Excellence" by providing the finest security technology and service at a fair price. James J Simmons 949.292.7671 ADT Security Services. Inc. Company Profile - 11� 9► . Field Offices October 30. 2008 Corporate Offices ADT Security Services 1 Boca Place 2255 Glades Road Suite 421 Boca Raton, FL FL 33431 Most major cities throughout North America and Europe. demarks: Focus, CentraScan, SignaLink, merLink, Unibank, Safewatch, Unimode, :erm, Telebreak, Telasound, Teletherm, isonics, Telaquick, Photo -Electronic, rgy-Gard, CardGard, On -Track, and ADT. James J Simmons 949.292.7671 ADT Security Services, Inc. Profile October 30. 2008 ADT Security Services helps protect more than 20 million people in the United States, Canada, and Europe. Security services are provided primarily through a network of Service Offices and Customer Monitoring Centers where ADT responds to signals from fire and security systems. Systems may also be sold directly to customers who arrange for their own response capability. Of the company's approximately 10,000 employees, more than 5,000 are involved in installing, monitoring, and maintaining alarm systems. ADT installs and maintains protection and access control systems that safeguard life and property from a wide range of hazards. These include burglary, holdup, fire, duress and other emergencies demanding swift, responsive action. In order to perform this task effectively, ADT relies on its dedicated employees organized into specialized groups including: ENGINEERING — This group of professionals maintain ADT's high level of technology by designing systems to satisfy the most sophisticated requirements. SERVICE — ADT's Service Technicians operating from more than 225 locations, insure the services provided by ADT are professionally supported. OPERATIONS — A network of Customer Service Centers, located strategically throughout North America and Europe, are staffed by trained ADT employees who provide 24 hour system monitoring and emergency response services. MARKETING — ADT's experienced Marketing staff helps insure customer satisfaction by mandating state-of-the-art equipment and cost-effective services as the company standard. James J Simmons 949.292.7671 ADT Security Services, Inc. ADT SECURITY SERVICES, INC. FACT SHEET UPDATED AS OF NOVEMBER 2, 2007 October 30, 2008 Incorporated: Wilinhigton. Delaware (New Castle County) on October 20. 1988 under the name of ADT Security Systems. Mid -South. Inc. Ivliieli 1,vas changed to ADT Security Services. Inc. [See Former wines below] Corporate Headquarters: One Town Center Road, Boca Raton. FL 33486-1010 PO Box 5035. Boca Raton. FL 33486-5035 Phone: (561) 988-3600: Fax: (561) 988-3892 Description of Business: Provider of electronic security services since 1874. Taxpayer ID: 58-181.1102 North American Industry 561621 Security Alarin Systems --) sales, installation. nionitorm?. Classification System maintenance. ("MICS") " Replaces 561612 Security Guard; Patrol Services "SIC'": DCB ;�: 19-657-8736 Customers: '-More thrill 6.000,000 custoluers in Forth America. Employees: Approximately 21.000 in the United States of America. Former Names: ADT Security Systems, Mid South, Inc. name was changed to ADT Security Systems, Inc. on 6/09/1995 — then name changed to ADT Securih, Services, Inc. on 12/18/1996 The following represent sone of the larger acquisitions and/or mergers nacre by ADT: .,: Sensor iatic Electronics Corporation (integration of sales and service business effective 1''31/01) Edison Select (nierger effective 10/31/2001) * SecurityLink. Inc. (merger effective 12%21/2001) Holmes Protection Group. Inc. (merger effective 03/22/1999) Wells Fargo Alann Services. hic, (merger effective 02/18/1999) ADT Limited merged with Tyco International Ltd (07/02/1997) * The alert Centre. Inc. (merger effective 12/18/1996) ADT Security Systems. Mountain West. Inc.. ... Northeast. Inc..... Southwest. Inc..... Mid -South. Inc. (nnerger effective 06/09/1995) Key Officers: John B. Koch. President Mark- N. Edoff. Vice President Jolui S. Jenkins. Jr.. Secretary Kevin MaeKay. Treasurer \. David Blei�,cli. Vice President and Assistant Secretary BE James J Simmons 949.292.7671 ADT Security Services, Inc. October 30, 2008 Directors: Bruce Ranlo. Director John B. Koch. Director N. David Bleisch. Director Insurance Company: J. H.. Marsh McClennan 1166 Avenue of the Americas. New fork. 'NY 10036 Bonding CompanN-: Willis of New fork. Ills.. One World Financial Center. 200 Liberty Street 6d' Floor. New York. NY 10281 Representative: Patricia O'Connell: Telephone: 212-915-8072: Fax: 212- 519-5443 Bonding Lilllit: Single Project 5100.000.000 — Aggregate $275.000.000 Bond Ratina: A—+ Parent: ADT General Holdings. Isle. Incorporated in Delaware on 12/21/1989: D& -B #: 618399778 Tax Payer ID #: 13-3554684 Registered Agent: CT Corporation Systelll (nationwide) Business Licenses: A list of licenses held for a specific region is available upon request. Professional _Memberships: 'National Fire Protection Association National Association of Security & Investigative Regulators National Bur-2lar and File Alarin Association Security Tiuhistry Association Central Station Alarn Association (C'SAA) Address for Payment: ADT Security Senvices. Inc.. Shared Accounts Services. 14200 E. Exposition Avenue. Aurora. CO 80012 Stock: ADT Security Seiviees. Inc. is a wholly owned subsidiary of its ultimate indirect parent. Tyco International. Ltd.. a publicly held corporation fonnned in Bermuda trading oil the Bernllula. London and New York Stock Exchanges. At record date August 9. 2005 there ,, ere 2.032.625.736 and 2.009.867.009 shares of Tyco conlnon stock outstanding. net of 4.152.563 and 12.864.837 shares owned by subsidiaries. respectively (see SEC' Forll 10-Q for quarter ended 08/09/05). Financial Statements: Tyco International Ltd. files consolidated financial statements fin its operations. Therefore. a separate financial statement is not available for any of its subsidiaries. -2- James J Simmons 949.292.7671 ADT Security Services, Inc. PYWIRIT "N' October 30, 2008 Hourly Charge Rate Through June 30, 2013 Installation Labor Rates Normal Business Hours $90.00 Installation Rates Non- Standard / Off Business Hours $140.00 *Installation rates are charged at 4 hour minimums unless otherwise stated. Service Rate Normal Business Hours Trip Charge $45.00 1 st Half hour $120.00 Each additional 1.4 hour $35.00 Service Rate Non- Standard / Off Business Hours Trip Charge $70.00 1St Half hour $180.00 Each additional 1.4 hour $55.00 James J Simmons 949.292.7671 i 0 CITY OF NEWPORT BEACH NOV 12 2M CITY COUNCIL STAFF REPORT Agenda Item No. 11 November 12, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Utilities Department George Murdoch, Utilities Operations Manger 644 -3401 or gmurdoch(@city.newport- beach.ca.us SUBJECT: PROFESSIONAL SERVICES AGREEMENT WITH ADT SECURITY SERVICES, INC. (ADT) FOR ON -CALL SECURITY AND FIRE MONITORING, MAINTENANCE AND INSTALLATION SERVICES RECOMMENDATION: Approve Professional Services Agreement with ADT Security Systems, Inc. for on -call security and fire monitoring, maintenance and installation services and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: Background: On -call agreements allow staff to retain specialized services that are required for various maintenance and repair of utility systems immediately. Vendors involved in on- call agreements have met the City's requirements for insurance and qualifications prior to entering into an agreement. The vendor will submit a letter proposal for all work prior to any work starting. Emergency repairs are handled by an understanding and agreed upon hourly rate. The Utilities Department has a need for on -call service for security and fire monitoring, maintenance and repair. Due to the nature of water system security, it is imperative that vendors servicing these types of systems have the experience required. Staff contacted several companies, including ADT that provide this type of service. ADT is the most qualified and cost effective company. Therefore, Utilities would like to include ADT as one of the City's on -call contractors for security and fire monitoring, maintenance and repair. 0 ADT Security Systems, Inc. — Approval Professional Services Agreement November 12, 2008 Page 2 ADT Security Systems, Inc. founded in 1874, has evolved from a burglar alarm company to a corporation that strives to provide business solutions. These systems include a wide variety, such as access control products, fire safety and life safety products to cctv & video surveillance and intrusion detection and control systems. Environmental Review: This action requires no environmental review, as it is not a project pursuant to CEQA. Funding Availability: Funding is available in Water and Wastewater Division line items 5500 -8197 and 5600- 8197 respectively. Expenditures more than $30,000 for an individual repair project will require a separate City Council action in accordance with Policy F -14. Prepared by: eo Murdoch, Utilities Manager Submitted by: Steve Myrter, Ut ities Director Attachments: Agreement with ADT Security Systems, Inc. 0 f PROFESSIONAL SERVICES AGREEMENT WITH ADT SECURITY SERVICES, INC. FOR ON -CALL SECURITY AND FIRE MONITORING, MAINTENANCE AND INSTALLATION SERVICES THIS AGREEMENT is made and entered into as of this 12th day of November, 2008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and ADT SECURITY SERVICES, INC., a DELAWARE corporation whose address is 4161 East La Palma Avenue, Anaheim, California 92807 ( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City has a need for on -call assistance for maintenance, repair, monitoring and installation of security and fire systems at the Utilities facilities. C. City desires to engage Consultant to perform on -call security and fire systems maintenance, monitoring and installations services at the Utilities Yard on an as need basis ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be James J. Simmons. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 30"' day of June, 2013, unless terminated earlier as set forth herein. • • 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call" security maintenance and installation services as described in the Statement of Qualifications attached as Exhibit "A." Upon verbal or written request from the Project Administrator, Consultant shall provide a letter proposal for services requested by the City (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include the following: A. A detailed description of the services to be provided; B. The position of each person to be assigned to perform the services, and the name of the individuals to be assigned, if available; C. The estimated number of hours and cost to complete the services; and D. The time needed to finish the specific project. No services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 2 • 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis, in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit "B" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Consultant's compensation for services performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as appmved by the Project Administrator. Any Letter Proposal that sets forth fees in excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a separate Professional Service Agreement approved by per Council Policy F -14. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person and/or classification of employee who performed the work, a brief description of the services performed and/or the specific task in the letter proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in the Letter Proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement and the Letter Proposal, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used .herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Letter Proposal and which the parties did not reasonably anticipate would be 3 • necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated James Simmons to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Utilities Department. George Murdoch shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner 0 0 0 commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate directly to any work performed or services provided under this Agreement including, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any 5 0 0 action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during 0 0 • the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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. D. Coverage Requirements. 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employers Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employers Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed 7 • i under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the 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 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 5. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. 1.1 0 0 G. Additional 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. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for 0 0 0 such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 20. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 21. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 10 0 0 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 23. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 24. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: George Murdoch Utilities Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone: 949 - 644 -3011 Fax: 949 - 646 -5204 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: James J. Simmons ADT Security Services, Inc. 4161 East La Palma Avenue Anaheim, CA 92807 Phone: 949 - 292 -7671 Fax: 949 -586 -6122 11 25. TERMINATION a In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting parry written notice thereof. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 26. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all govemmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 27. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 12 • i 29. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 30. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 31. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 32. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 33. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 34. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 13 0 0 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By:, C o ----�' Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: M LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH A Municipal Corporation Edward D. Seiich Mayor for the City of Newport Beach CONSULTANT: By: (Corporate Officer) Title: Print Name: By: (Financial Officer) Title: Print Name: Attachments: Exhibit A — Statement of Qualifications Exhibit B — Schedule of Billing Rates E • EXHIBIT "A" Service and Maintenance Systems Proposal Prepared for The City of Newport Beach Utilities Department Rev. II Thursday, October 30, 2008 Prepared By James J Simmons 949- 292 -7671 ACCOUNT MANAGER ADT Security Services, Inc. ADT Security Servicnc. • October 30, 2008 Introduction We at ADT believe that our vast experience and history of leadership in the security services industry enables us to provide the best products and services for our most valuable asset, our customers. New Synergy Since it's founding in 1874, the ADT Security Services name has been synonymous with quality and peace of mind. ADT proudly serves more than one million customers including major financial institutions, high security government clients, large retailers, and the majority of the Fortune 500. In human terms, ADT helps protect more than twenty million people everyday. ADT has evolved from a burglar alarm company to a Corporation that strives to provide business solutions for your business problems. We value our customer partnerships that have been formulated and will continue to strive and learn the fundamentals of your business. The better we understand your business, the better we can offer solutions that encompass the entire management scope of your operations. Brief History of ADT In 1874, the American District Telegraph Company was founded in Baltimore and was acquired by Western Union in 1901. American Telephone & Telegraph (AT &T) gained control of ADT and Western Union in 1909. Sharing offices with Western Union, district telegraph companies derived their income from messenger services. A multi- function call box could transmit a signal to the telegraph office with a service request where a messenger was dispatched to summon the doctor, taxi, police, or fire service. The call box also enabled watchmen to transmit a signal that all was well. Failure to transmit a signal on schedule caused someone to be sent to find out why. The burglar detection industry was spawned when ADT stretched a wire across a room and connected it to the call box. If a burglar entered the premises, the line would be tripped and activate the call box; a process commonly referred to, even today, as "tripping an alarm". For the first time, a business could be protected from burglars without the expense of a watchman. During World War I concern over sabotage and espionage focused attention on ADTs burglar alarm systems. Through their own efforts, ADT engineers developed new security devices that helped ADTs business expand rapidly. As the United States prepared for the Second World War, even greater attention was focused on security devices for the protection of property and production capacity. As manpower availability became acute, the need for automatic fire and burglar detection systems became more important. It was during this period that ADT introduced automatic fire detection systems and ultrasonic burglar alarm detectors. In 1956, ADT expanded into Canada, and Europe in 1959. In 1987, ADT was purchased by The Hawley Group, Ltd. which has since been renamed ADT, Limited. In 1997, Tyco International acquired ADT as a part of its Fire and Safety Services segment. ADT Security Services continues its tradition of Pride In Excellence" by providing the finest security technology and service at a fair price. James J Simmons 949.292.7671 ADT Security Sen icessfne. Company Profile aq W�. Field Offices • October 30. 2008 Corporate Offices ADT Security Services I Boca Place 2255 Glades Road Suite 421 Boca Raton, FL 33431 Most major cities throughout North America and Europe. demarks: Focus, CentraScan, Signal-ink, merLink, Unibank, Safewatch, Unimode, erm, Telebreak, Telasound, Teletherm, conics, Telaquick, Photo - Electronic, rgy -Gard, CardGard, On- Track, and ADT. James J Simmons 949.292.7671 0 ADT Security Services, Inc. Profile 0 October 30, 2008 ADT Security Services helps protect more than 20 million people in the United States, Canada, and Europe. Security services are provided primarily through a network of Service Offices and Customer Monitoring Centers where ADT responds to signals from fire and security systems. Systems may also be sold directly to customers who arrange for their own response capability. Of the company's approximately 10,000 employees, more than 5,000 are involved in installing, monitoring, and maintaining alarm systems. ADT installs and maintains protection and access control systems that safeguard life and property from a wide range of hazards. These include burglary, holdup, fire, duress and other emergencies demanding swift, responsive action. In order to perform this task effectively, ADT relies on its dedicated employees organized into specialized groups including: ENGINEERING — This group of professionals maintain ADT's high level of technology by designing systems to satisfy the most sophisticated requirements. SERVICE — ADT's Service Technicians operating from more than 225 locations, insure the services provided by ADT are professionally supported. OPERATIONS — A network of Customer Service Centers, located strategically throughout North America and Europe, are staffed by trained ADT employees who provide 24 hour system monitoring and emergency response services. MARKETING — ADT's experienced Marketing staff helps insure customer satisfaction by mandating state -of- the -art equipment and cost - effective services as the company standard. James J Simmons 949.292.7671 ADT Security Ser iiAnc. • October 30, 2008 ADT SECURITY SER1,7CES, INC. FACI SHEET 17PDATED AS OF NOVEMBER 2, 2007 Incorporated: Wilmington. Delaware (New Castle County) on October 20. 1988 under the name of ADT Security Systems. Mid- South. htc. which was changed to ADT Security Services. Inc. [See Former Names below] Corporate Headquarters: One Town Center Road, Boca Raton. FL 33486 -1010 PO Box 5035. Boca Raton. FL 33486 -5035 Phone: (561) 988 -3600: Fax: (561) 988 -3892 Description of Business: Prodder of electronic security services siuce 1874. Taxpayer ID: 58- 1814102 North American Industry 561621 Security Alarm Systems 4 sales. installation. monitoring. Classification System maintenance. ("NAICS ") * Replaces 561612 Security GuardiPatrol Services D&B #: 19-4557-8736 Customers: More than 6.000.000 customers in North America. Employees; Approximately 21.000 in the United States of America. Former Names: ADT Security Systems, Mid South, Inc. name was changed to ADS Security Systems, Inc. on 60911995 - then name changed to ADT Security Services, Inc. on 12/18/1996 The following represent some of the larger acquisitions and/or mergers made by ADT: * Sum uratic Electronics Corporation (integration of sales and seri ice business effective 12131/01) * Edison Select (merger effective 10/3112001) * SecurityLink, hic. (merger effective 12/21/2001) * Holmes Protection Group, Inc. (merger effective 03/21.1999) * Wells Fargo Alarm Services, Inc. (merger effective 02/18/1999) * ADT Limited merged with Tyco International Ltd (07/02/1997) " The Alert Centre. Inc. (merger effective 12/18/1996) * ADT Security Systems, Mountain West, Inc..... Northeast. Inc..... Southwest. hic..... Mid - South. Inc. (merger effective 06/09/1995) Key Officers: John B. Koch, President Mark N. Edoff. Vice President John S. Jenkins, Jr.. Secretary Kevin MacKay. Treasurer N. David Bleisch. Vice President and Assistant Secretary -1- James J Simmons 949.292.7671 ADT Security Servicene. 0 October 30, 2009 Directors: Bruce Ramo. Director John B. Koch. Director K David Bleisch. Director Insurance Company: J. H.. _Marsh McClermau 1166 Avenue of the Americas. New Yotic. .\Y 10036 Bonding Company: Willis of New York. Inc., One World Financial Center. 200 Liberty Street 6e' Floor. New York. NY 10281 Representative: Patricia O'Coimell: Telephone: 212-915-8072. Fax. 212- 519 -5443 Bouding Limit Single Project $100.000.000 — Aggregate $275,000.000 Bond Rating: A,—+ Parent: ADT General Holdings. Inc. Incorporated in Delaware on 12/2111989: D&B #: 618399778 Tax Payer ID #: 13- 3554684 Registered Ageut: C T Corporation System (nationwide) Business Licenses: A list of licenses held for a specific region is mailable upon request. Professional Memberships: National Fire Protection Association National Association of Security & Investigative Regulators National Burglar and Fire Alarm Association Security Industry Association Central Station Alarm Association (CSAA) Address for Payment: ADT Security Services, Inc., Shared Accounts Services. 1,4200 E. Exposition Avenue. Arcora, CO 80012 Stock: ADT Security Services, Inc. is a wholly owned subsidiary of its ultimate indirect parent. Tyco international, Ltd.. a publicly held corporation formed in Bermuda trading on the Bermuda. London and New York Stock Exchanges. At record date August 9. 2005 there were 1022,625,736 and 2.009,867,009 shares of Tyco common stock outstanding. net of 4.152.563 and 12.864.837 shares owned by subsidiaries, respectively (see SEC Form l0-Q for quarter ended 08/09/05). Financial Statements: Tyco Wernational Ltd. files consolidated financial statements for its operations. Therefore, a separate financial statement is not available for any of its subsidiaries. -2- James J Simmons 949.292.7671 ADT Security ServiceRne. PXNIRIT "R" Hourly Charge Rate Through June 30, 2013 Installation Labor Rates Normal Business Hours $90.00 Installation Rates Non- Standard / Off Business Hours $140.00 *Installation rates are charged at 4 hour minimums unless otherwise stated. Service Rate Normal Business Hours Trip Charge $45.00 1 s` Half hour $120.00 Each additional 1.4 hour $35.00 Service Rate Non- Standard / Off Business Hours Trip Charge $70.00 1" Half hour $180.00 Each additional 1.4 hour $55.00 October 30, 2008 James J Simmons 949.292.7671