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AG 09-081 - Safe City I I RETURN TO: CITY OF FEDERAL WAY LAW DEPARTMENT REQUEST FOR CONTRACT PREPARATIONIDOCUMENT REVIEW/SIGNATURE ROUTING SLIP 1. ORIGINATING DEPT./DIV: :11" I1lu. S~I" ,. EXT: z,'i)O 3. DATEREQ.BY: y)~1 , 4. "'-. TYPE OF DOCUMENT REQUESTED (CHECK ONE) l!J PROFESSIONAL SERVICE AGREEMENT D MAINTENANCE/LABORAGREEMENT D PUBLIC WORKS CONTRACT D SMALL PUBLIC WORKS CONTRACT (LESS THAN $200,000) D PURCHASE AGREEMENT) (MATERIALS, SUPPLIES, EQUIPMENT) D REAL ESTATE DOCUMENT 2. 5. 6. 7. 8. 9. 10. 11. ORIGINATING STAFF PERSON: D SECURITY DOCUMENT (E.G. AGREEMENT & PERFIMAIN BOND; ASSIGNMENT OF FUNDS IN LIEU OF BOND) D CONTRACTOR SELECTION DOCUMENT (E_G., RFB, RFP, RFQ) ~ONTRACT AMENDMENT D CDBG D OTHER AG#: PROJECT NAME: +U4tt._:{ 6..-k,ec.Y'\ ~ C:.'r f 1+-c:..fr NAME OF CONTRACTOR: tk-rtt- C:.1r ADDRESS: SIGNATURE NAME: ty/l~~ .(;,/ U~:'l-l_ -..GJ..... r" TELEPHONE TITLE ATTACH ALL EXHIBITS AND CHECK BOXES D SCOPE OF SERVICES D ALL EXHIBITS REFERENCED IN DOCUMENT D INSURANCE CERTIFICATE D DOCUMENT AUTHORIZING SIGNATURE TERM: COMMENCEMENT DATE: '.4. 7 r" COMPLETION DATE: ,L...?Pt/~! 12 · is" 20li TOTAL COMPENSATION $ ~~c:2fs /ObO (INCLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: DYES DNO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED DYES D NO IF YES, $ f-:-.- o PURCHASING: PLEASE CHARGE TO:!16- tt\'\e~ U ~ ') CONTRACT REVIEW INITIALIDATE APPROVED D PROJECT MANAGER D DIRECTOR D RISK MANAGEMENT (IF APPLICABLE) DLAW PAID BY: 0 CONTRACTOR D CITY INITIAL/DATE APPROVED "- CONTRACT SIGNATURE ROUTING ~ LAW DEPARTMENT ~ CITY MANAGER ~ 9-TY CLERK t('"SIGN COPY BACK TO ORGINATING DEPT. Q-'f(SSIGNEDAG# oq,6~ r __ INITIAL/DATE APPROVED INITIAL/DATE APPROVED ~\ ~:~~~ COMMENTS fI~t:-'~ re:lvr" tt)4(V {!)/~JAJ> t t)",... apt ..,b M~t.-'-' , 02108 '\ "'" . , .''1-' . \1II ..~ f: ~, ," f' . \ . .. ;Oo.'oit . c ...~. . . . .-!"~ ..11 COUNCIL MEETING DATE: March 17.2009 ITEM #: ......_..n...__.__...._.__._.__._.____.....__......_..__________________...._......._.., _.____..__.__..._.__..____.,___~_._..._._._ ...._. .. .._.______....______..__'_..._.~______________..._.__ CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: ON-SITE SAFE CITY SYSTEMS MAINTENANCE AND SUPPORT AGREEMENT POUCY QUESTION: Should Council approve onsite maintenance and support services agreement with Safe City? COMMfITEE: FEDRAC MEETING DATE: February 24, 2009 CATEGORY: ~ Consent o City Council Business o Ordinance o Resolution .0 o Public Hearing Other ~:!~F RE!~RT B~.: Mehdi Sadri, IT Directo.!_ DEPT: Information Technology A IT ACHMENTS: Draft agreement between the City of Federal Way and Safe City Federal Way. SUMMARYIBACKGROUND: The City of Federal Way is a member of Safe City Federal Way, an IRC 501(c)(3) non profit organization (SCFW). The City utilizes a system installed by Lensec LLC containing 21 cameras, network equipment, and server & storage devices. Almost all this equipment is installed on the City's street poles and in City Hall. The ongoing maintenance and support of these systems includes remote and onsite services originally to be provided by Lensec. However, during the project implementation, Lensec preferred to utilize the King County Traffic Maintenance seIvices for installation because it was the most cost effective service. Furthermore, Lensec and Safe City agreed it is best to separate the onsite and remote systems maintenance with Lensec providing the remote services and City of Federal Way providing the onsite services. The attached agreement sets the tenus, compensation, and other roles and responsibilities for each entity. OPTIONS: I. Approve the staff reconunendation to provide onsite maintenance and support for Safe City as identified in the attached agreement and forward to the March 17,2009 City Council Consent Agenda. 2. Deny approval of onsite maintenance and support for Safe City as identified in the attached agreement and provide staff with further direction. CITY MANAGER APPROVAL: DlRECTOR ApPROVAL: COMMlTfEE RECOMMENDATION: Mike Park, Conunittee Chair Dini Duclos, Committee Member Eric Faison, Conunittee Member PROPOSED COUNCIL MOTION: "/ move approval of the Committee recommendation to accept Option D. " (BELOW TO BE COMPLETED 8Y CITY CLERKS OFFlCEj COUNCIL ACTlON: Q APPROVED a DENIED Q TABLEOIDEFERREDlNO ACTION Q MOVED TO SECOND READING (ordinall~u only) REVISED - 0210612006 COUNCIL 81LL # 1ST reading Eaac_.l rudl.g ORDINANCE # RESOLUTION # 60 AGREEMENT BETWEEN THE CITY OF FEDERAL WAY AND SAFE CITY FEDERAL WAY This Agreement ("Agreement") is entered into by and between the City of Federal Way, a Washington municipal corporation ("City"), and the Safe City Federal Way, an IRC 501(c)(3) nonprofit corporation ("SCFW"). The City and the SCFW shall collectively be referred to as the "Parties". WHEREAS, the Parties previously entered into an Agreement ("SafeCity Program Agreement")to create a cooperative arrangement between the Parties to fund, create, operate, and administer a SafeCity Program which included a system of a network of wired and wireless video surveillance equipment within the City of Federal Way monitored in real time by the City of Federal Way and/or authorized SCFW persormel to deter and investigate criminal activities, respond to emergencies, and maintain traffic safety; and WHEREAS, the Parties desire the City of Federal Way provide certain support and service for the SafeCity Program. I. PURPOSE. The purpose of the Agreement is for the City of Federal Way to provide certain support and service for the SafeCity Program in exchange for compensation. 2. TERM. The initial term ofthis Agreement shall be in force for a period of five (5) years unless terminated pursuant to section 5 of this agreement. The agreement shall be automatically renewed for subsequent 10 year periods unless terminated pursuant to section 6 of this Agreement. This Agreement shall terminate automatically if the SafeCity Program Agreement terminates. 3. DUTIES AND RESPONSIDILlTlES. The City will provide Services as described in Exhibit A to this agreement. 4 COMPENSATION/FINANCING. In consideration of the Duties and Responsibilities, SCFW agrees to pay Twenty Eight Thousand and 00/100 Dollars ($28,000.00) to the City. The payment shall be made within 30 days after execution ofthis Agreement and within 30 days of Final Acceptance of the System, with subsequent payments made by the anniversary date of the Final Acceptance of the System described in the SafeCity Program Agreement of each year. 5 TERMINATION AGREEMENT BETWEEN THECIlY OF fEDERAL WAY AND SAFE CITY FEDERAL WAY 61 ~. AGREEMENT BETWEEN THE CITY OF FEDERAL WAY AND SAFE CITY FEDERAL WAY - This Agreement ("Agreement") is entered into by and between the City of Federal Way, a Washington municipal corporation ("City"), and the Safe City Federal Way, an IRC 501(c)(3) nonprofit corporation ("SCFW"). The City and the SCFW shall collectively be referred to as the "Parties". WHEREAS, the Parties previously entered into an Agreement ("SafeCity Program Agreement")to create a cooperative arrangement between the Parties to fund, create, operate, and administer a SafeCity Program which included a system of a network of wired and wireless video surveillance equipment within the City of Federal Way monitored in real time by the City of Federal Way and/or authorized SCFW personnel to deter and investigate criminal activities, respond to emergencies, and maintain traffic safety; and WHEREAS, the Parties desire the City of Federal Way provide certain support and service for the SafeCity Program. 1. PURPOSE. The purpose ofthe Agreement is for the City of Federal Way to provide certain support and service for the SafeCity Program in exchange for compensation. 2. TERM. The initial term of this Agreement shall be in force for a period of five (5) years unless terminated pursuant to section 5 of this agreement. The agreement shall be automatically renewed for subsequent 10 year periods unless terminated pursuant to section 6 of this Agreement. This Agreement shall terminate automatically if the SafeCity Program Agreement terminates. 3. DUTIES AND RESPONSIBILITIES. The City will provide Services as described in Exhibit A to this agreement. 4 COMPENSATION/FINANCING. In consideration of the Duties and Responsibilities, SCFW agrees to pay Twenty Eight Thousand and 00/100 Dollars ($28,000.00) to the City. The payment shall be made within 30 days after execution of this Agreement and within 30 days of Final Acceptance of the System, with subsequent payments made by the anniversary date of the Final Acceptance of the System described in the SafeCity Program Agreement of each year. 5 TERMINA nON 1 AGREEMENT BETWEEN THE CITY OF FEDERAL WAY AND SAFE CITY FEDERAL WAY ... 5.1 For Cause: The City may terminate this Agreement ifSCFW is in material breach of any terms of this Agreement, and such breach has not been corrected within fifteen (15) days from notice of breach. For purposes of this subsection, a material breach is defined as a failure to comply with the duties or obligations contained in the paragraphs of this Agreement. 5.2 For Parties' Convenience: Either Party may terminate this Agreement without cause, upon one hundred and eighty (180) days advance written notice. 5.3 Dissolution: This Agreement shall be deemed terminated immediately if SCFW dissolves, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, or is wound up or liquidated, voluntarily or otherwise. 5.4 Notice: The City is not required to provide advance notice of termination except as otherwise specifically provided in this section. Notwithstanding, the City may issue a termination notice with an effective date later than the termination notice itself. In such case, SCFW shall continue to provide products and services as required by the City until the effective date provided in the termination notice. 5.5 Effects of termination: In the event of termination of the Agreement; SCFW shall transfer all of the Equipment, all funds designated for the Program, and all of SCFW's other property and assets to the City of Federal Way. Termination shall not alter the obligations of the Parties undertaken prior to termination. 6 ADMINISTRATION AND CONTACT PERSONS. The Parties stipulate that the following persons shall be the administrators of this Agreement and shall be the contact person for their respective jurisdiction. All notices shall be sent in writing to these persons. The parties may change this information at any time by written notice to the other party. , City of Federal Way: SCFW: Neal Beets City of Federal Way 33325 8th Avenue South P.O. Box 9718 Federal Way, WA 98003-9718 Tom Pierson, Chairperson Safe City Federal Way P.O. Box Federal Way, WA 98003-9718 7 INDEMNIFICATION. 2 AGREEMENT BETWEEN THE CITY OF FEDERAL WAY AND SAFE CITY FEDERAL WAY 8.1 SCFW Indemnification. The SCFW agrees to indemnify and hold the City, its elected officials, officers, employees, agents, and volunteers harmless from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this Agreement or connected with any of the employment agreements contemplated by this Agreement to the extent caused by the negligent acts, errors or omissions of the SCFW, its employees, or agents. 8.2 City Indemnification. The City agrees to indemnify and hold the SCFW, its elected officials, officers, employees, agents, and volunteers harmless from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this Agreement to the extent caused by the negligent acts, errors or omissions of the City, its employees or agents. 8.3 Survival. The provisions of this Indemnification Section shall survive the expiration or termination of this Agreement with respect to any event occurring prior to such expiration or termination. 8 BOOKS AND RECORDS. The records and documents maintained by SCFW with respect to all matters covered by this Agreement shall be subject to audit by the City during the term of this contract and three (3) years after termination. Recordings of surveillance will remain solely in the possession of the City except as required to deter and investigate criminal activities, respond to emergencies, and maintain traffic safety or as required under the Public Records Act. 9 COMPLIANCE WITH LAWS. Each party accepts responsibility for compliance and will comply with federal, state, or local laws and regulations. 10 NON-DISCRIMINATION. In all contractor services, programs or activities, and all hiring and employment made possible by or resulting from this Agreement, the SCFW shall abide by all federal, state, and local laws prohibiting discrimination. 12 MISCELLANEOUS PROVISIONS. 12.1. Entire A~eement. This Agreement contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Agreement and no prior agreements shall be effective for any purpose. 3 AGREEMENT BETWEEN THE CITY OF FEDERAL WAY AND SAFE CITY FEDERAL WAY 12.2. Records. Any of either Party's records related to any matters covered by this Agreement not otherwise privileged shall be subject to inspection, review, and/or audit by either party at the requesting party's sole expense. 12.3. Amendments. No provision of this Agreement may be amended or modified except by written agreement signed by the Parties. 12.4.' Severability. If one or more of the clauses of this Agreement is found to be unenforceable, illegal, or contrary to public policy, the Agreement will remain in full force and effect except for the clauses that are unenforceable, illegal, or contrary to public policy. 12.5. Assignment. Neither Party shall have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent ofthe other Party. 12.6. Successors in Interest. Subject to the foregoing Subsection, the rights and obligations of the Parties shall inure to the benefit of and be binding upon their respective successors in interest, heirs, and assigns. 12.7. Dispute Resolution. The Parties should attempt if appropriate use a formal dispute resolution process such as mediation, through an agreed upon mediator and process, if agreement cannot be reached regarding interpretation or implementation of any provision of this Agreement. All costs for mediation services would be divided equally between the Parties. Each jurisdiction would be responsible for the costs of their own legal representation. 12.8. Attorneys' fees. In the event either of the Parties defaults on the performance of any terms of this Agreement or either Party places the enforcement of this Agreement in the hands of an attorney, or files a lawsuit, each Party shall pay all its own attorneys' fees, costs and expenses. 12.9. No waiver. Failure of either Party to declare any breach or default immediately upon the occurrence thereof, or delay in taking any action in connection with, shall not waive such breach or default. 12.10. Applicable Law. Washington law shall govern the interpretation of this Agreement. King County shall be the venue of any arbitration or lawsuit arising out of this Agreement. 12.11. Authority. Each individual executing this Agreement on behalf of either Party represents and warrants that such individuals are duly authorized to execute and deliver the Agreement on behalf of such Party. 4 AGREEMENT BETWEEN THE CITY OF FEDERAL WAY AND SAFE CITY FEDERAL WAY .. 12.12. Notices. Any notices required to be given by the Parties shall be delivered at the addresses set forth above in Section 6. Any notices may be delivered personally to the addressee of the notice or may be deposited in .the United States mail, postage prepaid, to the addresses set forth above in Section 6. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. 12.13. Performance. Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor. 12.14. Equal Opportunity to Draft. The Parties have participated and had an equal opportunity to participate in the drafting of this Agreement. No ambiguity shall be construed against any party upon a claim that that party drafted the ambiguous language. 12.15. Third Partv Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties hereto. No other person or entity shall have any right of action or int<:::r~st in this Agreement based on any provision set forth herein. 12.16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and with the same effect as if all Parties hereto had signed the same document. All such counterparts shall be construed together and shall constitute one instrument, but in making proof hereof it shall only be necessary to produce one such counterpart. The signature and acknowledgment pages from such counterparts may be assembled together to form a single instrument comprised of all pages of this Agreement and a complete set of all signature and acknowledgment pages. The date upon which the last of all of the Parties have executed a counterpart of this Agreement shall be the "date of mutual execution" hereof. WHEREOF, this Agreement is executed as of the date of mutual execution hereof. THE CITY: CITY OF FEDERAL WAY, a Washington municipal corporation: .~ , 200t t:t , t,.~ 5 AGREEMENT BETWEEN THE CITY OF FEDERAL WAY AND SAFE CITY FEDERAL WAY .. APPROVED AS TO FORM: SAFE CITY: SAFE CITY FEDERAL WAY, a nonprofit corporatio-:J m By __ \JlV~ Its: Authorized Officer Dated this 74- day of Jt'"' ...)) , 20e1f "2- 5 Itpr, \ STATE OF WASHINGTON) ) ss. COUNTY OF ) On this day personally appeared before me '~l "'^- 1> \ e...., 3c,,,,, , to me known to be the ? <" ~ So~.i ~""i-, as;. DC"JQJ.,2 of SAFE CITY FEDERAL WAY that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN my hand and official seal this g.g.'i:;."'-day of ...Pr YO.'(" 't \ 200"t _~~ ~~ IA-J.~ (typed/printed name of notary) Notary Public in and for the State of Washington. My commission expires <J:~' ~ l... J a () ~ I K: \agreement\Safe Cityagreement """""\"'" ,$' ~1"TE 4t I", .:E:' ,~",,"""I\\\III {~ I,/, = "" ~~~$'Otf ~":""';-'1, ~ = ":ir 0'.\,6 "\Z/~ ~ ~ ;0'" 'TJ. lU ~ ~;u fI>>~ ~ JI' ~ iI# ."" ~ .a ~ .0. .CJ i ... ~ "- v.. ~ lI""\.' _.... - ,,-,., .. -0- ~ ,,~'IIIII,a_ 26. '\ ~$';:- ,c;; :- II ~ '11,"\\\\\\\,,, ~~.: 11111 Of: VVAS~~,..'-- 11!1\\\\, ,..'" 6 AGREEMENT BETWEEN THE CITY OF FEDERAL WAY AND SAFE CITY FEDERAL WAY Exhibit A Duties and Responsibilities On-Site Service 1. Service Plan. 1.1. General. City of Federal Way agrees to provide Safe City Federal Way with the Support & Services as more fully described in this Exhibit. Safe City Federal Way must purchase and maintain a Remote Diagnostics and Software Support Plan with Lensec or similar entity. If Safe City Federal Way does not, the City of Federal Way is not obligated to provide any support or services under this agreement. 1.2. On-Site Service Plan. City of Federal Way will not charge for labor at or travel time to Safe City Federal Way's Designated Location(s). Safe City Federal Way shall pay for all parts and replacement equipment needed for repairs hereunder. City of Federal Way shall only invoice Safe City Federal Way for all such parts or replacement equipment, if applicable. Unless otherwise designated on the Statement of Work, the performance of City of Federal Way's On-Site Service Plan is limited to Safe City equipment. If in order to perform the On-Site Service Plan, City of Federal Way's personnel are required to update, modify, remove, install, alter or improve any hardware, software or other materials not originally part of the Safe City equipment, Safe City Federal Way will pay City of Federal Way for such labor at City of Federal Way's then published rates, as modified from time to time. Notwithstanding the foregoing, in no event will City of Federal Way be obligated to perform anyon-site service under an On-Site Service Plan if the problem can be remotely fixed under a Remote Diagnostics and Software Support Plan. Safe City Federal Way hereby grants City of Federal Way access to the Products at Safe City Federal Way's facilities, including, without limitation, the Designated Location(s). City of Federal Way service extension for on-site service plan can be provided on annual basis based on mutual agreement 1.3 Additional Services. In addition to the other obligations of City of Federal Way stated in this Agreement or specified in the Statement of Work, City of Federal Way shall render and perform such other services as the parties may mutually agree to at City of Federal Way's then current hourly rates, unless otherwise agreed to in writing by the parties. 2. Limited Warrantv. City of Federal Way represents and warrants that it has the requisite training, skill and experience necessary to provide the Support & Services and is appropriately accredited and licensed by all applicable agencies and governmental entities, and the Support & Services will be performed in a professional and workmanlike manner. Work performed will conform to the OEM requirements. Standard manufacturer warranty will apply to all products, and will commence at the time of final acceptance. City of Federal Way warranties any installation to the original purchaser to be free from defects in material and workmanship under normal use during the warranty period. 2.1. On-Site Services. City of Federal Way warrants that during the term of the On-Site Services Plan, (i) such services will substantially conform to the description of such services as stated in this Agreement, and (ii) the services will be performed in a good and workmanlike manner. If Safe City Federal Way notifies City of Federal Way that a service is not in conformance with this limited warranty during the applicable service plan term, City of Federal Way will, without charge to Safe City Federal Way (i) re- perform the service so that it conforms to this limited warranty, or (ii) at the sole discretion of City of Federal Way, return Safe City Federal Way's payment for that portion ofthe service and terminate all other obligations under this Agreement as to that specific service, with such remedy being the sole and exclusive remedy of Safe City Federal Way for breach of this warranty. 2.2. Warranty Disclaimer. Except as otherwise expressly described in this Section 2, City of Federal Way makes no representations or warranties, either verbal or written, expressed or implied, regarding any matter, including the merchantability, suitability, originality, fitness for a particular use or purpose, or results to be derived from the use, of any technology service, software, hardware, or other materials provided under this agreement, or that the operation of any such service, software, hardware or other materials will be uninterrupted or error-free. Safe City Federal Way shall pay the cost of removing and shipping any Products to City of Federal Way for repair or replacement and for shipment and installation of a repaired or replacement Product to Safe City Federal Way. In all events, Safe City Federal Way assumes risk of loss of the products during transit and City of Federal Way assumes no responsibility for any delays, losses or damages to products in transit. To the fullest extent permitted by applicable law and except as expressly provided in this agreement or the statement of work, City of Federal Way specifically disclaims any and all warranties, express or implied, in fact or by operation of law or otherwise, contained in or derived from this agreement, the statement of work, any order or in any other materials, brochures, presentations, samples, models or other documentation or corrununications, whether oral or written, including, without limitation, implied warranties of merchantability, title, non-infringement or fitness for a particular purpose or otherwise, which would extend beyond the warranties expressly contained herein. City of Federal Way does not warrant that the operation of the products will be error free or uninterrupted. (a) Warranty Exceptions: In addition to other items not covered by the limited warranties contained in this Section 2, the following issues are not covered by such limited warranties: (i) any software, including, without limitation, the operating system and software added to the Products without approval by City of Federal Way, (ii) any hardware not supplied or approved by City of Federal Way to Safe City Federal Way under this Agreement, or (iii) problems resulting from: (1) external causes such as accident, abuse, misuse, faulty electrical power or other causes beyond the control of City of Federal Way, (2) any servicing not authorized by City of Federal Way, (3) usage not in accordance with the applicable specifications, (4) Safe City Federal Way's failure to follow the applicable specifications, except to the extent that indoor nodes are used in outdoor settings, (5) usage of accessories, parts or components not supplied by City of Federal Way or modifications to the Products not made or authorized in writing by City of Federal Way, except to the extent that indoor nodes are used in outdoor settings, or (6) Safe City Federal Way's non-compliance with the Temperature, Ventilation and Humidity Requirements. City of Federal Way reserves the right to condition performance of warranty services upon an inspection of the relevant facilities at the Designated Location(s) except to the extent that indoor nodes are used in outdoor settings. (b) Safe City Federal Way Duties: Safe City Federal Way acknowledges and agrees that notwithstanding anything contained herein to the contrary, City of Federal Way shall not be obligated to perform any Support & Services hereunder, and the limited warranties contained herein shall not apply, until Safe City Federal Way has: (1) reported to City of Federal Way the number of cameras not providing an image on Safe City Federal Way's monitors, (2) confmned that power is available and being provided to each Product, (3) confmned that Safe City Federal Way has working access to its internal network, and (4) confirmed that Safe City Federal Way has working access to the Internet. If City of Federal Way has to perform any of the items set forth in the preceding sentence and the problem(s) with the Products are not covered by the limited warranties contained herein, then Safe City Federal Way will be obligated to pay to City of Federal Way on a time and materials basis for the performance of any such four items set forth in the preceding sentence. In the event that power is not available or being provided to each Product or Safe City Federal Way does not have working access to the Internet or its internal network, then City of Federal Way will not be obligated to perform any Support & Service hereunder until Safe City Federal Way has remedied its power, Internet or internal network problems. 3. Limitation of Liabilitv. Safe City Federal Way agrees that regardless of the claim or other form in which any legal or equitable action may be brought by Safe City Federal Way against City of Federal Way (or its successors or assigns) and/or its affiliates and their respective officers, directors, members, shareholders, representatives, agents, subcontractors and employees (each a "City of Federal Way party" and collectively, the "City of Federal Way parties") that none of the City of Federal Way parties shall be liable for any in direct, special, incidental, consequential, exemplary or punitive damages, including, without limitation, loss of profits, revenue, promotional expenses, injury to reputation or loss of Safe City Federal Ways. Safe City Federal Way's recovery from the City of Federal Way parties or any of them for any claim .in any way arising from or related to the products or this agreement shall not in the aggregate exceed the lesser of (i) the quoted price for the products or (ii) the amount actually paid to City of Federal Way by Safe City Federal Way for the products irrespective of the nature of the claim, whether in contract, . tort, warranty, strict liability, product liability or otherwise and whether arising in whole or in part from the negligence of any City of Federal Way party. 4. Indemnification. Parties hereby agree, without limitation and without regard to thecause or causes thereof, to release, defend, indemnify and hold each other harmless from and against any and all suits, claims, actions, demands, causes of action, arbitration, mediations, proceedings, losses, damages, liabilities, judgments, fmes, fees, penalties and expenses (including, without limitation, reasonable attorneys' fees): (i) arising from, based upon, related to or associated with the actual or alleged violation of the privacy rights of any individual or individuals (or any applicable law related thereto) in connection with the products, a party's use thereof, or a party's perfonnance under this agreement, or (ii) caused solely by the negligence or willful misconduct of such party, its agents, affiliated corporations, officers, officials, employees, volunteers, or lower tier subcontractors, (hereinafter tortfeasors), arising out of or in connection with the perfonnance of this agreement If the negligence or willful misconduct of more than one party or its tortfeasors is a cause of such claims then the liability shall be shared between parties in proportion to the relative degree of negligence or willful misconduct between such parties and such proportion shall apply to the rights of indemnity and defense. City of Federal Way waives any immunity that may be granted to it under the washington state indu~trial insurance act, title 51 RCW. City of Federal Way's indemnification shall not be limited in any way by any limitation on the amount of damages, compensation or benefits payable to or by any third party under workers' compensation acts, disability benefit acts or any other benefits acts or programs. The provisions of this section shall survive the expiration or termination of this agreement with respect to any event occurring prior to such expiration or termination. 5. Access. Notwithstanding anything contained in this Agreement or the Statement of Work to the contrary, Safe City Federal Way acknowledges and agrees that City of Federal Way will not be obligated to perfonn any service under a an On-Site Service Plan in the event that. Safe City Federal Way does not grant City of Federal Way remote access to the Products or the live or archived images resulting from the Products at Safe City Federal Way's facilities, including, without limitation, the Designated Location(s). If City of Federal Way is not granted remote access to the Products or the live or archived images resulting from the Products within twenty (20) days from Safe City Federal Way's receipt of City of Federal Way's written request for such remote access, then City of Federal Way may, at its sole option and without incurring any liabilities, terminate the On-Site Service Plan without any refunds to Safe City Federal Way. In the event thaLCity of Federal Way tenninates an On-Site Service Plan, then the provisions of Section 1.2 above shall apply with respect to the repair, replacement, support and/or servicing of the Products. Safe City Federal Way hereby agrees, without limitation (and without regard to the cause or causes thereof, to release, defend, indemnify and hold each of the City of Federal Way parties harmless from and against any and all suits, claims, actions, demands, causes of action, arbitrations, mediations, proceedings, losses, damages, liabilities, judgments, fines, fees, penalties and expenses (including, without limitation, reasonable attorneys' fees) arising from, based upon, related to or associated with any and all circumstances or events occurring during any time period that City of Federal Way was not granted remote access to the products or the live or archived images resulting from the products. 6. Termination. Tennination shall only occur pursuant to the provisions of this section. If Safe City Federal Way fails to perfonn any material obligation under this Agreement within fourteen (14) days after written notice from City of Federal Way specifying such failure, City of Federal Way may tenninate this Agreement by written notice to Safe City Federal Way; provided that upon the occurrence of the same or a similar failure twice during any six-month period, City of Federal Way may immediately terminate this Agreement by written notice without providing the above notice and opportunity to cure. In the event of tennination of this Agreement by Safe City Federal Way prior to the expiration of all of the Support & Service plans purchased by Safe City Federal Way hereunder, Safe City Federal Way shall immediately pay to City of Federal Way all amounts outstanding for any Support & Services rendered by City of Federal Way hereunder prior to Safe City Federal Way's tennination of this Agreement, provided that City of Federal Way expressly reserves any and all rights (at law or in equity) that it may possess in connection with Safe City Federal Way's early tennination of this Agreement, except as otherwise provided in this Agreement If City of Federal Way fails to perfonn any material obligation under this Agreement within fourteen (14) days after written notice from Safe City Federal Way specifying such failure, Safe City Federal Way may tenninate this Agreement by written notice to City of Federal Way. If the total cost of .. City of Federal Way Support & Services provided at the effective date of termination is less than the amount previously paid by Safe City Federal Way, City of Federal Way shall refund the excess within 30 days. 7. Relationship and City of Federal Way Oblil!ations. City of Federal Way will perform the Support & Services as an independent contractor and nothing in this Agreement shall be deemed or construed to create a partnership, joint venture or agency relationship between the parties. The Safe City Federal Way shall be neither liable nor obligated to pay City of Federal Way sick leave, vacation payor any other benefit of employment, nor to pay any social security, income, or other tax which may arise as an incident of employment. Industrial or any other insurance that is purchased for the benefit of the Safe City Federal Way, regardless of whether such may provide a secondary or incidental benefit to City of Federal Way, shall not be deemed to convert this Agreement to an employment contract. It is recognized that City of Federal Way mayor will be performing services during the Term for other parties; provided, however, that such performance of other services shall not conflict with or interfere with City of Federal Way's ability to perform the Support & Services. Contractor agrees to resolve any such conflicts of interest in favor of the Safe City Federal Way. City of Federal Way may use either its own personnel to perform the Support & Services hereunder or may subcontract for the provision of any of the Support & Services hereunder. Safe City Federal Way agrees to provide reasonable assistance to City of Federal Way in City of Federal Way's performance of the Support & Services. Unless specifically set forth in the Statement of Work or otherwise agreed, City of Federal Way shall have no obligation to perform any Support & Services on any hardware or software not supplied by City of Federal Way. City of Federal Way agrees to comply with any of the terms of Chapter 49.60 RCW, Title VI of the Civil Rights Act of 1964, the Americans With Disabilities Act, Section 504 of the Rehabilitation Act of 1973, 49 CFR Part 21, 21.5 and 26, or any other applicable federal, state, or local law or regulation regarding non-discrimination. City of Federal Way shall have no responsibility for, and Safe City Federal Way releases City of Federal Way from, any and all liability that arises from or that relates to the destruction or loss of any data or software that may reside on any hardware on which installation services are to be performed. City of Federal Way agrees to maintain books, records, and documents which sufficiently and properly reflect all direct and indirect costs related to the performance of the Support & Services and maintain such accounting procedures and practices as may be deemed necessary by the Safe City Federal Way to assure proper accounting of all funds paid pursuant to this Agreement. These records shall be subject, at all reasonable times, to inspection, review or audit by the Safe City Federal Way, its authorized representative, the State Auditor, or other governmental officials authorized by law to monitor this Agreement