C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
PROFESSIONAL SERVICES AGREEMENT
FOR CONSULTANT SERVICES
(City of Barstow / Trimax Systems, LLC)
1. IDENTIFICATION
This PROFESSIONAL SERVICES AGREEMENT is entered into as of the last date indicated below by and between the City of Barstow, a California municipal corporation and Trimax Systems, LLC, a California Limited Liability Company.
2. RECITALS
2.1 City has determined that it requires the following professional services from a consultant: Professional consulting, software integration, programming, system assessment, testing, and training services for the upgrade of the City’s existing Ignition SCADA system to Perspective with Mobile SCADA.
2.2 Consultant represents that it is fully qualified to perform such professional services by virtue of its experience and the training, education and expertise of its principals and employees. Consultant further represents that it is willing to accept responsibility for performing such services in accordance with the terms and conditions set forth in this Agreement.
2.3 Consultant represents that it has no known relationships with third parties, City Council members, or employees of City which would (1) present a conflict of interest with the rendering of services under this Agreement under Government Code Section 1090, the Political Reform Act (Government Code Section 81000 et seq.), or other applicable law, (2) prevent Consultant from performing the terms of this Agreement, or (3) present a significant risk of the disclosure of confidential information.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, City and Consultant agree as follows:
3. DEFINITIONS
3.1 “Scope of Services” means such professional services as described in “Exhibit A” attached herewith and fully incorporated herein by this reference.
3.2 “Approved Fee Schedule” means the compensation and payment terms set forth in “Exhibit B,” attached hereto and fully incorporated herein by this reference. The Approved Fee Schedule shall remain in effect for the duration of this Agreement unless modified in writing by mutual agreement of the parties. For the duration of this Agreement unless modified in writing by mutual agreement of the parties.
C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
3.3 “Commencement Date” means the date this Agreement is fully executed by both parties.
3.4 “Termination Date” means July 31, 2027.
3.5 “City Agreement Administrator” means Wesley Garrison. The Agreement Administrator shall be the principal point of contact at the City for this project.
3.6 “Consultant Project Administrator” means Mike Denning.
4. CAMPAIGN CONTRIBUTIONS
This Agreement is subject to Government Code section 84308, as amended by Senate Bill 1439 (2022), Senate Bill 1181 (2024), and Senate Bill 1243 (2024). Consultant shall disclose any contribution to an elected or appointed City official’s campaign or committee in an amount of more than five hundred dollars ($500) made within 12 months preceding the Commencement Date, by Consultant, its, her, or his agent, or another party affiliated with Consultant. Consultant shall provide a signed copy of the attached Campaign Contribution Disclosure Form to City prior to, or concurrent with, Consultant's execution of this Agreement and no later than the Commencement Date.
5. TERM
The term of this Agreement shall commence at 12:00 a.m. on the Commencement Date and shall terminate at 11:59 p.m. on the Termination Date unless extended in writing by mutual agreement of the parties or terminated earlier in accordance with Section 19 (“Termination”) below.
6. CONSULTANT’S SERVICES
6.1 Time is of the essence in Consultant’s performance of services under this Agreement.
6.2 Consultant shall perform the services identified in the Scope of Services. City shall have the right to request, in writing, changes in the Scope of Services. Any such changes mutually agreed upon by the parties, and any corresponding increase or decrease in compensation, shall be incorporated by written amendment to this Agreement. Consultant shall notify the City Agreement Administrator, in writing, when fees and expenses incurred under this Agreement have reached eighty percent (80%) of the maximum amount payable above. Consultant shall concurrently inform the City Agreement Administrator, in writing, of Consultant’s estimate of total expenditures required to complete its current assignments before proceeding, when the remaining work on such assignments would exceed the Maximum Amount payable above.
C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
6.3 Consultant shall obtain and maintain in force a City business license for the duration of this Agreement.
6.4 Consultant shall perform all work to the highest standards of Consultant’s profession and in a manner reasonably satisfactory to City. Consultant shall comply with all applicable federal, state and local laws and regulations, including the conflict of interest provisions of Government Code Section 1090 and the Political Reform Act (Government Code Section 81000 et seq.).
6.5 During the term of this Agreement, Consultant shall not perform any work for another person or entity for whom Consultant was not working at the Commencement Date if both (i) such work would require Consultant to abstain from a decision under this Agreement pursuant to a conflict of interest statute and (ii) City has not consented in writing to Consultant’s performance of such work.
6.6 Consultant represents that it has, or will secure at its own expense, all personnel required to perform the services identified in the Scope of Services. All such services shall be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. Mike Denning shall be the Consultant Project Administrator and shall have direct responsibility for management of Consultant’s performance under this Agreement.
No other person shall serve as Consultant Project Administrator without City’s prior written consent.
6.7 This Agreement covers professional services of a specific and unique nature.
Except as otherwise provided herein, Consultant shall not assign or transfer its interest in this Agreement or subcontract any services to be performed without amending this Agreement.
6.8 Consultant shall be responsible to City for all services to be performed under this Agreement. All subconsultants shall be approved by the City Agreement Administrator and their billing rates identified in the Approved Fee Schedule, Exhibit B. City shall pay Consultant for work performed by its subconsultants (including labor) only at Consultant’s actual cost plus an approved mark-up as set forth in the Approved Fee Schedule, Exhibit B. Consultant shall be liable and accountable for any and all payments, compensation, and federal and state taxes to all subconsultants performing services under this Agreement. City shall not be liable for any payment, compensation, or federal and state taxes for any subconsultants.
6.9 Consultant shall notify the City Agreement Administrator, in writing, of any change in name, ownership or control of Consultant’s firm or of any subconsultant. Change of ownership or control of Consultant’s firm may require an amendment to the Agreement.
C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
6.10 This Agreement is subject to prevailing wage law, for all work performed under the Agreement for which the payment of prevailing wages is required under the California Labor Code. In particular, Consultant acknowledges that prevailing wage determinations are available for the performance of inspection and survey work.
6.11 Pursuant to California Labor Code Sections 1773.2 and 1775, the Consultant shall forfeit as a penalty to City $200.00 or any greater penalty provided in the Labor Code for each Calendar Day, or portion thereof, for each worker paid less than the prevailing wage rates for any work done under the Contract employed in the execution of the work by Consultant or by any Subcontract under Consultant in violation of the provisions of the Labor Code. In addition, the difference between such prevailing wage rates and the amount paid to each worker for each Calendar Day, or portion thereof, for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Consultant.
6.12 Pursuant to Labor Code § 1776, each consultant and subcontractor shall keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct. (2) The employer has complied with the requirements of Labor Code §§ 1771, 1811, and 1815 for any work performed by his or her employees on the public works project.
The payroll records enumerated under subdivision (a) shall be verified and shall be available for inspection at all reasonable hours as required by Labor Code § 1776.”
7. COMPENSATION
City agrees to compensate Consultant for the services provided under this Agreement, and Consultant agrees to accept payment in accordance with the Approved Fee Schedule in full satisfaction for such services. In no event shall the total compensation and costs payable to Consultant under this Agreement exceed the sum of One Hundred C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
Four Thousand Seven Hundred Dollars($104,700.00) (“Maximum Amount”) unless specifically approved in advance and in writing by City.
7.1 Consultant shall submit to City an invoice, on a monthly basis or less frequently, for services performed pursuant to this Agreement. Each invoice shall identify the maximum amount payable above, the services rendered during the billing period, the amount due for the invoice, and the total amount previously invoiced. All labor charges shall be itemized by employee name and classification/position with the firm, the corresponding hourly rate, the hours worked, a description of each labor charge, and the total amount due for labor charges. City shall not withhold applicable taxes or other payroll deductions from payments made to Consultant except as otherwise required by law. Consultant shall include a copy of each subconsultant invoice for which reimbursement is sought in the invoice.
7.2 The parties agree to meet and confer at mutually agreeable times to resolve any disputed amounts contained in an invoice submitted by Consultant.
7.3 Additional Work. Consultant shall not be reimbursed for any expenses incurred for work performed outside the Scope of Services unless prior written approval is given by the City through a fully executed written amendment to this Agreement.
Consultant shall not undertake any such work without prior written approval of the Project Administrator.
8. OWNERSHIP OF WRITTEN PRODUCTS
9. All reports, documents, electronic files, configurations, graphics, system architecture documents, written recommendations, and other materials created specifically for the City by Consultant in the performance of this Agreement (“Project-Specific Work Products”) shall be and remain the property of City without restriction or limitation upon their use or dissemination by City, except as otherwise provided by law.
Consultant may retain copies of the Project-Specific Work Products for its records.
10. Notwithstanding the foregoing, Consultant shall retain ownership of its pre-existing software, programming tools, methodologies, templates, and other intellectual property developed independently of this Agreement. Third-party software, including Inductive Automation Ignition software, shall remain subject to the applicable thirdparty license terms. Consultant shall provide City with all rights, licenses, credentials, configurations, documentation, and access reasonably necessary for City to operate, maintain, modify, and support the Project-Specific Work Products following completion or termination of this Agreement.
RELATIONSHIP OF PARTIES
C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
Consultant is, and shall at all times remain as to City, a wholly independent contractor.
Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise to act on behalf of City as an agent. Consultant, its officers, employees and agents shall not have any power to bind or commit the City to any decision or course of action, and Consultant, its officers, employees and agents shall not represent to any person or party that it or they are acting as agents of the City or that it or they have the power to bind or commit the City. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement. Consultant shall not represent that it is, or that any of its agents or employees are, in any manner employees of City.
Under no circumstances shall Consultant look to the City as its employer. Consultant shall not be entitled to any benefits. City makes no representation as to the effect of this independent contractor relationship on Consultant’s previously earned California Public Employees Retirement System (“CalPERS”) retirement benefits, if any, and Consultant specifically assumes the responsibility for making such a determination. Consultant shall be responsible for all reports and obligations including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, workers’ compensation, and other applicable federal and state taxes.
11. AGREEMENT ADMINISTRATOR
In performing services under this Agreement, Consultant shall coordinate all contact with City through its City Agreement Administrator. City reserves the right to change this designation upon written notice to Consultant. All services under this Agreement shall be performed at the request of the City Agreement Administrator, who will establish the timetable for completion of services and any interim milestones.
12. INDEMNIFICATION
11.1 The parties agree that City, its officers, agents, employees and volunteers should, to the fullest extent permitted by law, be protected from any and all loss, injury, damage, claim, lawsuit, cost, expense, attorneys’ fees, litigation costs, taxes, or any other cost arising out of or in any way related to the performance of this Agreement.
Accordingly, the parties intend the provisions of this indemnity provision to be interpreted and construed to provide the City with the fullest protection possible under the law. Consultant acknowledges that City would not enter into this Agreement in the absence of Consultant’s commitment to indemnify and protect City as set forth herein.
11.2 To the fullest extent permitted by law, Consultant shall indemnify, hold harmless, and when the City requests with respect to a claim provide a deposit for the defense of, and defend City, its officers, agents, employees and volunteers from and against any and all claims, losses, costs and expenses for any damage due to death or injury to any person, whether physical, emotional, consequential or otherwise, and injury C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
to any property arising out of or in connection with Consultant’s alleged negligence, recklessness or willful misconduct or other wrongful acts, errors or omissions of Consultant or any of its officers, employees, servants, agents, or subcontractors, or anyone directly or indirectly employed by either Consultant or its subcontractors, in the performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement, except such loss or damage which is caused by the sole active negligence or willful misconduct of the City. Such costs and expenses shall include reasonable attorneys’ fees due to counsel of City’s choice, expert fees and all other expenses of litigation. Consultant shall not be entitled to any refund of attorneys’ fees, defense costs or expenses in the event that it is adjudicated to have been non-negligent.
11.3 City shall have the right to offset against any compensation due Consultant under this Agreement any amount due City from Consultant as a result of Consultant’s failure to pay City promptly any indemnification arising under this section of this Agreement and any amount due City from Consultant arising from Consultant’s failure either to (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers’ compensation laws.
11.4 The obligations of Consultant under this section of this Agreement are not limited by the provisions of any workers’ compensation or similar statute. Consultant expressly waives its statutory immunity under such statutes as to City, its officers, agents, employees and volunteers.
11.5 Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section of this Agreement from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. If Consultant fails to obtain such indemnity obligations from others, Consultant agrees to indemnify, hold harmless and defend City, its officers, agents, employees and volunteers from and against any and all claims, losses, costs and expenses for any damage due to death or injury to any person and injury to any property resulting from any alleged intentional, reckless, negligent, or otherwise wrongful acts, errors or omissions of Consultant’s subcontractors or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. Such costs and expenses shall include reasonable attorneys’ fees incurred by counsel of City’s choice.
11.6 City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. This hold harmless and indemnification provision shall apply whether or not any insurance policies apply to a claim, demand, damage, liability, loss, cost or expense.
C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
11.7 In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or CalPERS to be eligible for enrollment in CalPERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for CalPERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
11.8 Notwithstanding any federal, state, or local policy, rule, regulation, law or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in CalPERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for CalPERS benefits.
13. INSURANCE
12.1 During the term of this Agreement, Consultant shall carry, maintain, and keep in full force and effect insurance against claims for death or injuries to persons or damages to property that may arise from or in connection with Consultant’s performance of this Agreement.
12.2 Any available insurance proceeds broader than or in excess of the specified minimum Insurance coverage requirements or limits shall be available to City as an Additional Insured as provided below. Furthermore, the requirements for coverage and limits shall be the greater of (1) the minimum coverage and limits specified in this Agreement, or (2) the broader coverage and maximum limits of coverage of any Insurance policy or proceeds available to the named Insured.
12.3 Insurance required under this Agreement shall be of the types set forth below, with minimum coverage as described:
12.3.1 Comprehensive General Liability Insurance with coverage limits of not less than One Million Dollars ($1,000,000) including products and operations hazard, contractual insurance, broad form property damage, independent consultants, personal injury, underground hazard, and explosion and collapse hazard where applicable.
12.3.2 Automobile Liability Insurance for vehicles used in connection with the performance of this Agreement with minimum limits of One Million C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
Dollars ($1,000,000) per claimant and One Million dollars ($1,000,000) per incident.
12.3.3 Worker’s Compensation insurance if and as required by the laws of the State of California.
12.3.4 Professional Errors and Omissions Insurance with coverage limits of not less than One Million Dollars ($1,000,000). In the event Consultant’s policy is a “claims made” policy only covering those claims made during the policy period, then Consultant agrees to maintain the professional liability insurance required hereunder and with respect to this project in effect for at least three (3) years after acceptance of the work. The retroactive date of the policy must be shown and must be before the Commencement Date of this Agreement. If coverage is canceled or nonrenewed, and not replaced with another claims-made policy form with a retroactive date before the Commencement Date of this Agreement, the Consultant must purchase “extended reporting” coverage for a minimum of three (3) years after completion of work.
12.4 Consultant shall require each of its subconsultants to maintain insurance coverage that meets all of the requirements of this Agreement provided however, that the City Agreement Administrator may waive the provision of Errors and Omissions Insurance by subconsultants in his or her sole discretion.
12.5 The policy or policies required by this Agreement shall be issued by an insurer admitted in the State of California and with a rating of at least A:VII in the latest edition of Best’s Insurance Guide.
12.6 Consultant agrees that if it does not keep the insurance coverages required by this Agreement in full force and effect, City may either (i) immediately terminate this Agreement; or (ii) take out the necessary insurance and pay the premium(s) thereon at Consultant’s expense.
12.7 At all times during the term of this Agreement, Consultant shall maintain on file with City’s Risk Manager a certificate or certificates of insurance showing that the required coverages are in effect and naming City and its officers, employees, agents and volunteers as Additional Insureds. Prior to commencement of work under this Agreement, Consultant shall file with City’s Risk Manager such certificate(s) and Forms CG 20 10 07 04 and CG 20 37 07 04 or the substantial equivalent showing City as an Additional Insured.
12.8 Consultant shall provide proof that policies of insurance required by this Agreement expiring during the term of this Agreement have been renewed or replaced with C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
other policies providing at least the same coverage. Such proof will be furnished at least two weeks prior to the expiration of the coverages.
12.9 The general liability and automobile policies of insurance required by this Agreement shall contain an endorsement naming City and its officers, employees, agents and volunteers as Additional Insureds. All of the policies required under this Agreement shall contain an endorsement providing that the policies cannot be canceled or reduced except on thirty days’ prior written notice to City. Consultant agrees to require its insurer to modify the certificates of insurance to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word “endeavor” with regard to any notice provisions.
12.10 The insurance provided by Consultant shall be primary to any other coverage available to City. Any insurance or self-insurance maintained by City and/or its officers, employees, agents or volunteers shall be in excess of Consultant’s insurance and shall not contribute with it.
12.11 All insurance coverage provided pursuant to this Agreement shall not prohibit Consultant, and Consultant’s employees, agents or subcontractors, from waiving the right of subrogation prior to a loss. Consultant hereby waives all rights of subrogation against the City. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. However, the Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Consultant, its employees, agents and subconsultants.
12.12 Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of City, Consultant shall either reduce or eliminate the deductibles or self-insured retentions with respect to City, or Consultant shall procure a bond in the amount of the deductible or self-insured retention to guarantee payment of losses and expenses.
12.13 Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duties to indemnify, hold harmless and defend under Section 11 of this Agreement.
12.14 Consultant may be self-insured under the terms of this Agreement only with express written approval from the City.
12.14.1 All self-insured retentions (SIR) must be disclosed to the City for approval and shall not reduce the limits of liability.
C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
12.14.2 Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named Insured or the City.
12.15 City reserves the right to obtain a full certified copy of any Insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of the right to exercise later.
14. MUTUAL COOPERATION
13.1 City shall provide Consultant with all pertinent data, documents and other requested information as is reasonably available for the proper performance of Consultant’s services under this Agreement.
13.2 If any claim, action, or proceeding is brought against City relating to Consultant’s performance in connection with this Agreement, Consultant shall render any reasonable assistance that City may require in the defense of that claim, action, or proceeding.
15. CONFIDENTIALITY
All data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without prior written consent by City. City shall grant such consent if disclosure is legally required. Upon request, all City data shall be returned to City upon the termination or expiration of this Agreement.
16. RECORDS AND INSPECTIONS
Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such documents shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City. City shall further have the right to make transcripts therefrom and to inspect all program data, documents, proceedings, and activities.
In addition, pursuant to Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds ten thousand dollars, all such documents and this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under the Agreement.
C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
17. PERMITS AND APPROVALS
Consultant shall obtain, at its sole cost and expense, all permits and regulatory approvals necessary for Consultant’s performance of this Agreement. This includes, but shall not be limited to, professional licenses, encroachment permits and building and safety permits and inspections.
18. NOTICES
Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on: (i) the day of delivery if delivered by hand, facsimile or overnight courier service during Consultant’s and City’s regular business hours; or (ii) on the third business day following deposit in the United States mail if delivered by mail, postage prepaid, to the addresses listed below (or to such other addresses as the parties may, from time to time, designate in writing).
If to City:
Wesley Garrison
Plant Superintendent
2200 Riverside Drive
Barstow, CA 92311
Telephone: 760-577-1001
If to Consultant:
Mike Denning
Trimax Systems, LLC
565 Explorer St.
Brea, CA 92821
Telephone: 714-710-2120
With courtesy copy to:
Andrew Jared, City Attorney
Colantuono, Highsmith & Whatley, PC
790 E. Colorado Blvd., Suite 850
Pasadena, CA 91101
Telephone: (213) 542-5719
Facsimile: (213) 542-5710
Email: [email protected]
C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
19. SURVIVING COVENANTS
The parties agree that the covenants contained in Section 11, Section 14, Paragraph 13.2 and Section 15 of this Agreement shall survive the expiration or termination of this Agreement.
20. TERMINATION
City may terminate this Agreement for any reason on five calendar days’ written notice to Consultant. Consultant may terminate this Agreement for any reason on thirty calendar days’ written notice to City. Consultant agrees to cease all work under this Agreement on or before the effective date of any notice of termination. All City data, documents, objects, materials or other tangible things shall be promptly returned to City upon the termination or expiration of this Agreement.
If City terminates this Agreement due to no fault or failure of performance by Consultant, then Consultant shall be paid based on the work satisfactorily performed at the time of termination. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the services required by this Agreement as provided in Section 5.2 above and as otherwise provided in this Agreement.
21. GENERAL PROVISIONS
20.1 Consultant shall not delegate, transfer, subcontract or assign its duties or rights hereunder, either in whole or in part, without City’s prior written consent, and any attempt to do so shall be void and of no effect. City shall not be obligated or liable under this Agreement to any party other than Consultant.
20.2 The captions appearing at the commencement of the sections hereof, and in any paragraph thereof, are for convenience in reference to this Agreement. Should there be any conflict between such heading, and the section or paragraph thereof at the head of which it appears, the section or paragraph shall govern construction of this Agreement. Masculine or feminine pronouns shall be substituted for the neuter form and vice versa, and the plural shall be substituted for the singular and vice versa, in any place or places herein in which the context requires such substitution(s).
20.3 The waiver by City or Consultant of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any other term, covenant or condition or of any subsequent breach of the same or any other term, covenant or condition herein contained. No term, covenant or condition of this Agreement shall be deemed to have been waived by City or Consultant unless in writing signed by one authorized to bind the party to be charged with the waiver.
C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
20.4 Consultant shall not be liable for any failure to perform if Consultant presents acceptable evidence, in City’s sole judgment, that such failure was due to causes beyond the control and without the fault or negligence of Consultant.
20.5 Each right, power and remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise shall be cumulative and shall be in addition to every other right, power, or remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise. The exercise, the commencement of the exercise, or the forbearance from the exercise by any party of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by such party of any or all of such other rights, powers or remedies. If legal action shall be necessary to enforce any term, covenant or condition contained in this Agreement, the party prevailing in such action, whether or not reduced to judgment, shall be entitled to its reasonable court costs, including any accountants’ and attorneys’ fees expended in the action. The venue for any litigation shall be Los Angeles County, California and Consultant hereby consents to jurisdiction in Los Angeles County for purposes of resolving any dispute or enforcing any obligation arising under this Agreement.
20.6 If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then such term or provision shall be amended to, and solely to the extent necessary to, cure such invalidity or unenforceability, and in its amended form shall be enforceable. In such event, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
20.7 This Agreement shall be governed and construed in accordance with the laws of the State of California.
20.8 All documents referenced as exhibits in this Agreement are hereby incorporated into this Agreement. In the event of any material discrepancy between the provisions of this Agreement and those of any document incorporated herein by reference, the provisions of this Agreement shall prevail. This instrument contains the entire Agreement between City and Consultant with respect to the transactions contemplated herein. No other prior oral or written agreements are binding upon the parties. Amendments hereto or deviations herefrom shall be effective and binding only if made in writing and executed on behalf of the City and Consultant.
20.9 Consultant shall not discriminate against any employee or applicant for employment because of race, sex (including pregnancy, childbirth, or related medical condition), creed, national origin, color, disability as defined by law, disabled veteran status, Vietnam veteran status, religion, age (40 and above), C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
medical condition (cancer-related), marital status, ancestry, or sexual orientation.
Consultant shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to race, sex (including pregnancy, childbirth, or related medical condition), creed, national origin, color, disability as defined by law, disabled veteran status, Vietnam veteran status, religion, age (40 and above), medical condition (cancer-related), marital status, ancestry, or sexual orientation. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; or in terms, conditions or privileges of employment, and selection for training, Consultant agrees to post in conspicuous places, available to employees and applicants for employment, the provisions of this nondiscrimination clause.
C#___________
Professional Services Agreement
(City of Barstow / Trimax Systems, LLC
Professional Services Agreement — Consultant Services
Approved for use:02/24/2025
307952.6
TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representatives to execute this Agreement as of the last date indicated below:
“City” “Consultant”
By___________________________ By:_______________________________ [insert name], insert title]
Date:______________________ Date:_________________________ Attest:
By
Andrea Flores, City Clerk
Date:_______________________
Approved as to form:
By__________________________________
Andrew Jared, City Attorney
Date: __________________________
“EXHIBIT A”
SCOPE OF WORK
A-1
307952.6
Consultant shall provide software licensing, SCADA system assessment, programming, testing, and training services for the City’s existing Ignition SCADA system as follows:
1. Software deliverables
Consultant shall:
1. Upgrade the Perspective Module associated with the City’s existing primary Ignition license, license number HKI-TL2, by adding Browser and Workstation functionality.
2. Upgrade the Perspective Module associated with the City’s existing backup license, license number CTB-HLG, to the full version of Perspective.
3. Add the additional software and licenses to the City’s existing BasicCare Support Plan for the prorated period of February 18, 2026 through July 31, 2027, consisting of 527 days.
4. Upgrade the City’s Ignition SCADA software from version 7.9 through version 8.3. No additional software-upgrade charge shall apply because of the City’s active support plan.
2. Phase 1 – SCADA system assessment
Consultant shall:
1. Assess the City’s SCADA network hardware and software.
2. Develop and deliver a SCADA system architecture document to the City.
3. Evaluate the City’s existing SCADA hardware and software.
4. Provide written recommendations to assist City IT in meeting modern cybersecurity requirements.
Phase 1 does not include implementation of the assessment recommendations or the provision or configuration of new hardware, software, or system configurations.
3. Phase 2 – SCADA programming
Consultant shall:
1. Upgrade Ignition SCADA from version 7.9 to version 8.1.
2. Upgrade Ignition SCADA from version 8.1 to version 8.3.
3. Use the Perspective Module to develop high-performance mobile graphics for all applicable process and control areas.
4. Conduct a workshop with City staff to identify operational preferences and establish mobile application standards.
5. Retain the City’s existing SCADA screens. Newly developed Perspective graphics shall be for mobile application use unless otherwise authorized in writing.
6. Test the functionality and operation of the new mobile graphics and verify that the mobile functions operate appropriately with the City’s existing SCADA functions.
7. Provide onsite training covering the mobile application and its functionality.
4. City responsibilities
The City shall:
1. Provide Consultant with reasonable access to the existing SCADA system, facilities, personnel, documentation, and information necessary to perform the services.
2. Provide assistance through City IT for the transfer of existing historical data and the repopulation of that data into the upgraded application, as necessary.
3. Provide or configure servers, server hardware, virtual-machine software, Microsoft SQL Server software, and related City-controlled infrastructure unless otherwise authorized by Professional Services Agreement
(City of Barstow / [Trimax Systems, LLC
307952.6
166385.1
written amendment.
4. Designate appropriate staff to participate in the mobile-application standards workshop, testing, and training.
5. Exclusions
Unless authorized by a written amendment, the services do not include:
1. Providing or configuring the historical database.
2. Implementing recommendations contained in the Phase 1 assessment.
3. Providing or configuring servers, server hardware, virtual-machine software, or Microsoft SQL Server software.
4. Networking infrastructure or architecture modifications to existing facilities.
5. Trade labor, construction work, site improvements, or trade installation services.
6. Third-party testing, harmonic testing or analysis, protective-device coordination studies, short-circuit analysis, or arc-flash risk assessment services.
6. Acceptance
Consultant shall notify the City Agreement Administrator when the work is ready for review.
The services shall not be considered complete until:
1. The required software and licenses have been provided;
2. The SCADA assessment and architecture deliverable have been delivered;
3. The upgrades and mobile graphics have been successfully tested;
4. Onsite training has been completed; and
5. The City Agreement Administrator has provided written acceptance. “EXHIBIT B”
APPROVED FEE SCHEDULE
B-1
307952.6
Consultant shall provide all software, licenses, labor, programming, assessment services, project management, testing, training, travel, and other services identified in Exhibit A for a total lump sum amount not to exceed One Hundred Four Thousand Seven Hundred Dollars ($104,700.00).
The Maximum Amount includes all costs and expenses necessary to complete the Scope of Services unless expressly identified otherwise in this Exhibit.
Software deliverables are not subject to California sales tax. Any other tax or fee may be charged only when legally applicable and when the charge will not cause total compensation to exceed the Maximum Amount.
Consultant shall not perform or invoice the City for additional work without advance written authorization through a fully executed amendment to the Agreement.
Professional Services Agreement
(City of Barstow / [Trimax Systems, LLC
307952.6
NON-COLLUSION DECLARATION
TO BE EXECUTED BY
BIDDER AND SUBMITTED WITH BID
The undersigned declares:
I am the ____________________ of ____________________________, the party making the foregoing bid.
The bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The bid is genuine and not collusive or sham.
The bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid. The bidder has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or to refrain from bidding. The bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder. All statements contained in the bid are true.
The bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof, to effectuate a collusive or sham bid, and has not paid, and will not pay, any person or entity for such purpose.
Any person executing this declaration on behalf of a bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the bidder.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on ___________________[date], at ____________________________[city], __________________[state].” __________________________________________
Signature
__________________________________________
Printed Name of Signatory
Professional Services Agreement
(City of Barstow / [Trimax Systems, LLC
307952.6
WORKERS’ COMPENSATION
INSURANCE CERTIFICATE
The Contractor shall execute the following form as required by the California Labor Code, Sections 1860 and 1861:
I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.
DATE: ______________________ __________________________________________ Contractor
By: __________________________________________
Signature
__________________________________________
Title
Attest:
By: __________________________________________
Signature
__________________________________________
Title
CAMPAIGN CONTRIBUTION DISCLOSURE
PROVISIONS
Cities are subject to the campaign disclosure provisions detailed in Government Code Section 84308.
Please carefully read the following information to determine if the provisions apply to you. If you determine that the
provisions are applicable, the Campaign Disclosure Form must be completed and returnedtothe Citywithyourapplication.
1. No City councilmember or commissioner shall accept,solicit, or direct a contribution of more than $500 from any party,1 financially interested participant,2 or agent3 while a proceeding is pending or for 12 months subsequent to the date a final decision is rendered by the City. This prohibition commences when your application has been filed, or the proceeding is otherwise initiated.
2. A party to a City proceeding shall disclose on the record of the proceeding any contribution of more than $500 made to any councilmember or commissioner by the party, or agent, during the preceding 12 months. No party to or participant in a City proceeding shall make a contribution of more than $500 to a councilmember or commissioner during the proceeding and for 12 monthsfollowing the date a final decision is rendered by the City.
No agent to a party or participant shall make a contribution in any amount to a councilmember of commissioner during the proceeding and for 12 months following the date a final decision is rendered by the City.
3. Prior to rendering a decision on a City proceeding, any councilmember or commissioner who received contribution of more than $500 within the preceding 12 months from any party, or agent, to a proceeding shall disclose that fact on the record of the proceeding, and shall be disqualified from participating in the proceeding. However, if any councilmember or
commissioner receives a contribution that otherwise would require disqualification, and returns the contribution within 30 days of making the decision, or knowing about the contribution and the relevant proceeding, whichever comes last, that councilmember or commissioner shall be permitted to
participate in the proceeding.
1 “Party” is defined as any person who files an application for, or is the subject of, a proceeding.2 “Participant” is defined as any person who actively supports or opposes a particular decision in a proceeding.
3 “Agent” is defined as a person who represents a party in connection with a proceeding for compensation who appears before or otherwise communicates with the City for the purpose of influencing the proceeding. If an individual acting as an agent also is acting as an employee or member of a law, architectural, engineering, or consulting firm, or a similar entity or corporation, both the individual and the entity or corporation are agents.
When a closed corporation is a party to a proceeding, the majority shareholder is subject to these provisions.
To determine whether a campaign contribution of more than $500 has been made by you or your agent to a
councilmember or commissioner within the preceding 12
months, all contributions made by you or your agent during that period must be aggregated.
Names of current City councilmembers and commissioners are available on the City’s website. If you have questions about Government Code Section 84308, FPPC regulations, or the Campaign Disclosure Form, please contact the City Clerk.
CAMPAIGN CONTRIBUTION DISCLOSURE
FORM
(a) Document:
□ License
□ Lease
□ Permit
□ Franchise
□ Other Contract
□ Other Entitlement
Name and address of any party, participant, or agent who has contributed more than $500 to any councilmember or
commissioner within the preceding 12 months:
1. ____________________________________
2. ____________________________________
3. ____________________________________
(b) Date and amount of contribution:
Date Amount $
Date Amount $
Date Amount $
(c) Name of councilmember or commissioner to whom
contribution was made:
1. ____________________________________
2. ____________________________________
3. ____________________________________
(d) I certify that the above information is provided to the best of my knowledge.
Printed Name
Signature
Date Phone
To be completed by City:
Document No: ______________________________