1 PROFESSIONAL SERVICES AGREEMENT
This agreement (“Agreement”) is made as of July 23, 2024, by and between the City of Commerce, a municipal corporation ("City") and AssetWorks LLC. (“Consultant”).
City and Consultant are sometimes hereinafter individually referred to as a “Party” and collectively referred to as the “Parties.”
R E C I T A L S
WHEREAS, City desires to utilize the services of Consultant as an independent contractor to provide Fleet Maintenance Software and Support Services as set forth in the Scope of Services attached hereto as Exhibit A; and WHEREAS, the Consultant represents that it is fully qualified to perform such consulting services by virtue of its experience and the training, education, and expertise of its principals and employees.
NOW, THEREFORE, in consideration of the performance by the parties of the covenants and conditions herein contained, the parties hereto agree as follows:
1. Company's Scope of Services. The nature and scope of the specific services to be performed by the Consultant are described in Exhibit A.
2. Term of Agreement. This Agreement shall commence on July 23, 2024 (the “Commencement Date”). It shall remain and continue in effect until tasks described in Exhibit A are completed, but in no event later than January 31, 2025, unless sooner terminated pursuant to the provisions of this Agreement.
3. Compensation.
A. City agrees to compensate Consultant for services under this Agreement in compliance with the schedule set forth in Exhibit A. Consultant shall submit proper monthly invoices in the form and manner specified by City. Each invoice shall include a monthly breakdown of all monthly services performed together with the hours spent on each service. Consultant shall maintain appropriate and necessary documentation supporting the monthly invoices detailing the type of service provided. It shall be available for review by the City at all reasonable times upon request.
B. Total payment to Consultant pursuant to this Agreement shall not exceed $193,174.10.
C. If at the request of the City, Consultant is required to incur out of pocket expenses (including but not limited to, out-of-town travel and lodging) which are above and beyond the ordinary expenses associated with performance of this Agreement, Consultant shall be entitled to reimbursement of such expenses. Consultant shall only be reimbursed for those expenses which: (I) appear on Consultant’s monthly invoices; (II) are accompanied by a copy of the City’s written authorization for Consultant to incur 2 such expenses; and (III) receipts documenting such expenses.
4. General Terms and Conditions. The General Terms and Conditions set forth in Exhibit B are incorporated as part of this Agreement. In the event of any inconsistency between the General Terms and Conditions and any other exhibit to this Agreement, the General Terms and Conditions shall control unless it is clear from the context that both parties intend the provisions of the other exhibit(s) to control.
5. Addresses.
City of Commerce
City of Commerce
2535 Commerce Way
Commerce, CA 90040
Attn: Ernie Hernandez, City Manager
Company
AssetWorks Inc.
1001 Old Cassatt Road
Suite 204
Berwyn, PA 19312
Attn: Greg Richards, General Manager
6. Exhibits. All exhibits referred to in this Agreement are listed here and are incorporated and made part of this Agreement by this reference.
Exhibit A – Scope of Services and Compensation Schedule Exhibit B – General Terms and Conditions
SIGNATURES ON THE FOLLOWING PAGE
3 IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates written below.
CITY
CITY OF COMMERCE
By: ______________________________ ______________________ Hugo A. Argumedo, Mayor Date
CONSULTANT
ASSETWORKS, INC
By: _______________________________ ________________________ Greg Richards, General Manager Date
ATTEST:
By: ______________________________ ________________________ Lena Shumway, City Clerk Date
APPROVED AS TO FORM:
By: ______________________________ ________________________ Noel Tapia, City Attorney Date
ORDER FORM
AssetWorks Inc.
1001 Old Cassatt Road Suite 204
Berwyn, PA 19312
Order #: Q-12543-5
Date: 1/29/2024
Expires On: 6/30/2024
Ship To
Greg Guzman
City of Commerce
5555 Jillson St
Commerce, California 90032
United States
(323) 887-4484
[email protected]
Bill To
City of Commerce
152 N. Ponderosa Street
LaPuente, California 91744
United States
This Order Schedule is issued pursuant to GSA Contract #: GS-35F-317GA between AssetWorks and the above named Customer. Parties agree to be bound by those terms and conditions.
FA SaaS Annual Subscription Fee
Description QTY Annual Total
SaaS - FleetFocus Annual Fee 250 USD 27,125.94
KPI/Dashboards Module Included
Shop Activity Module Included
Reporting Module Included
Crystal Reports Server OEM Embedded Edition - includes one report writer Included AssetWorks APIs Subscription Included
Customer Access Module Included
Motor Pool Module USD 2,854.38
Motor Pool Reservations Module USD 1,292.19
KeyValet Module USD 906.80
Telematics Module USD 2,854.38
MobileFocus / Smart Apps, Enterprise USD 5,166.25
FA SaaS Total: USD 39,659.94
EXHIBIT A - SCOPE OF WORK & COMPENSATION
FA Implementation Professional Services SaaS Implementation. Up to 250 units.
Description Line Total
Project Management Services USD 13,831.74
Project Kickoff & Orientation Services USD 2,593.45
One-Time SaaS Environment and Reporting Database Setup Fee USD 10,639.80 System Setup Services USD 6,915.87
System Configuration/Design Services USD 8,644.84
Fueling System Import Configuration Services USD 1,728.97 Data Conversion Services USD 8,644.84
API Module Installation and Overview Services USD 2,216.62 Motor Pool Module and Reservations Portal Configuration Complete in Production USD 4,433.25 Installation of Customer Access Module with PM Scheduling in Production Environment USD 7,093.20 KeyValet Configuration and Testing Services (1 Kiosk) USD 12,967.25 Estimated Travel Services for KeyValet (1 Trip) USD 2,500.00 MobileFocus EDGE Implementation Services USD 5,186.90
MobileFocus SmartApps Implementation Services (Up to 3 Apps) USD 6,915.87 Installation of Telematics Cloud Geotab Integration in a Production Environment USD 7,093.20 Testing Services USD 2,593.45
Training Services USD 8,644.84
Go Live Support Services USD 12,102.77
Post Go Live Services USD 6,051.39
Estimated Travel Services for Training and Go Live (2 Trips) USD 5,000.00 FA Implementation Professional Services Total: USD 135,798.25 KeyValet Key Box Hardware: 32 Key
Part # Description QTY UNIT PRICE Line Total
KW-8059 Key Cabinet - 2 Modules (up to 32 Keys) 1 USD 7,787.16 USD 7,787.16 KW-8039 Key Module - 16 Keys 2 USD 2,027.69 USD 4,055.38 KW-8208 Reader, Proximity. (2152-000) 1 USD 493.01 USD 493.01 Hardware Shipping Hardware Shipping Fee 1 USD 302.27 USD 302.27 KeyValet Hardware: 32 Key Total: USD 12,637.82
Telematics Cloud - Geotab Integration Subscription
Description QTY Monthly
Fee/Unit
Line Monthly Total Annual Fee
FleetFocus Telematics Cloud interface adaptor - Geotab 140 USD 3.02 USD 423.17 USD 5,078.09 Telematics Cloud - Geotab Integration Total: USD 5,078.09 Grand Total: USD 193,174.10
KeyValet Site Readiness Requirements
The following represents a checklist of items to be completed for a site to be considered "KeyValet Ready". Items marked “VDC ONLY” apply to customers who have purchased the wireless Vehicle Data Collector (VDC) option and install Wireless Automated Fuel (WAF/FJ3) in motor pool units.
AssetWorks assumes all KeyValet sites will be “KeyValet Ready” before the onsite arrival of any AssetWorks personnel. “KeyValet Ready” means that all items outlined below, where applicable, have been configured by the customer. Failure to comply with these requirements will lead to delays in the projected deployment date. AssetWorks is not held responsible should the Customer not meet the documented “KeyValet Ready” requirements. • Core Software
Customers will be on a currently supported version of the core application defined as FleetFocus FA, FleetFocus M5 or AssetWorks EAM. Minimum versions are referenced in AssetWorks Product Documentation and available on the AssetWorks Community site. • Customers may be required to upgrade if new features and/or fixes are available and considered necessary for project success; upgrade services are not included, unless otherwise noted. • MAXQueue
FleetFocus FA and AssetWorks EAM customers must have a separate MAXQueue Instance installed to run the “KeyValetServices” service. “KeyValetServices” cannot be configured on an existing MAXQueue Instance.
• FleetFocus M5 customers are required to install a MAXQueue Instance to run “KeyValetServices”.
MAXQueue is AssetWorks software that is used to implement KeyValet and connect data back to the core application.
Hardware Mounting
• All KeyValet system(s) (cabinet & controller) will be mounted to an appropriate wall location. • All KeyValet system(s) must be installed indoors within a temperature environment of 45° to 105°F. • All KeyValet system(s) must avoid direct sunlight. This is due to the increased heat it would apply to the system.
Network
• Customer will provide a tested and functional Ethernet network connection for the KeyValet controller. This connection needs to ping the core application server successfully. • Customer will assign the KeyValet controller a static IP address on the corresponding network. • TightVNC will be installed on the system administrator’s workstation for remote access to the KeyValet controller.
Electrical
• Customer to provide two grounded 110V outlets at the installation location of the KeyValet controller. The KeyValet controller can be hard wired, which is optional. If selected, it is the responsibility of the customer to do any required hard wiring.
HID Cards and/or Fuel Fobs
• If operators will be using HID cards for “Reservations on the Fly”, all pertinent HID card information is to be supplied to AssetWorks. In addition, a spare HID card must be sent to AssetWorks Hardware Support to test compatibility. The same process applies for use of the FuelFocus proxy fobs for vehicle return. If the HID card is not compatible, custom development may be required and AssetWorks will provide a quote for these services.
AssetWorks
Attn: Lars Jorgensen
998 Old Eagle School Rd. Suite 1215
Wayne, PA 19087
•
VDC OnlyCustomer to mount VDC Antenna centrally to reach all applicable vehicles with a radius of up to 300 feet with conduit from the VDC unit to the KeyValet controller. The VDC Antenna can be installed up to 300 feet away in “open air” or line of sight from the KeyValet system. Structures, buildings, and other objects, natural or man-made, can dramatically reduce the range covered by the VDC antenna. Please consult with AssetWorks on the optimal site location.
• Customer to run a network cable and a single 14 AWG (at minimum) THHN green wire for grounding purposes from the VDC antenna to the KeyValet controller, if WAF/FJ3 option is purchased. Network cable to be terminated with RJ45 adapters 8 pin. Wire run is limited to 300 feet. • A third receptacle must be provided inside the KeyValet controller to provide power for the Radio Frequency Unit (RFU box). A receptacle can simply be a small power strip placed inside the KeyValet controller. • WAF/FJ3 devices must be installed and configured by the customer.
Motor Pool
• Customer to ensure motor pool units are set up in the core application by motor pool location and pool type. • Customer to provide the list of motor pool units and motor pool locations to AssetWorks for KeyValet configuration.
• If using VDC, WAF/FJ3 devices must be set up and configured with an associated equipment fuel card ID. • Customer to ensure operators are set up with an Operator ID and an email address in the core application to use Notifications. If using HID cards for “Reservations on The Fly”, and/or FuelFocus proxy fobs for vehicle returns, the cards and fobs are required to be setup in the core application. • The Motor Pool Reservation portal is to be configured for operators to access and create motor pool reservations online.
Vise
• Purchase of a vise is recommended for use opening and closing the Smartkeys that are used with the modules.
• Locking cables can be purchased to accommodate multiple keys per Smartkey or to better accommodate key fobs
AssetWorks Professional Services Standard Terms – New FA Customer • FleetFocus license is based on active units in Fleet; rolling stock, trailers, yellow iron, etc. • Additional Components can be licensed.
• Crystal Reports Enterprise is required for FleetFocus Standard Reports. • AssetWorks assumes that the customer will install the required Oracle or SQL Server database licenses if the customer chooses to install FleetFocus on premise.
• All costs are quoted in USD and do not include applicable taxes. • All software licenses and first-year maintenance fees and/or subscription fees will be invoiced upon contract execution. All first year SaaS fees will be invoiced upon contract execution. • All warranties conveyed by the manufacturer to AssetWorks are included. • This is a high-level Professional Services estimate. A detailed statement of work (SOW) and project plan can be provided upon request and is required before contract signing. The final signed SOW which specifies scope and pricing terms takes precedence over the “AssetWorks Professional Services Standard Terms – New Customer”.
• Data conversion services include data load training and AssetWorks to load and provide troubleshooting assistance for the items listed below.
• Equipment Master Records – fleet assets and components (estimated based on license) • Part Master Records - up to two inventory locations
• Summary Cost History - summed totals of data by year and month • Data conversion services assume the customer will extract the agreed-upon data from its current systems and populate AssetWorks provided Microsoft Excel™ templates with scrubbed and cleansed final data combined of all groups assets and parts. AssetWorks will consult with the customer on the data required to gather, necessary formatting and general mapping of items into the application but does expect the customer will do recommended and/or required clean-up as the customer has first-hand knowledge of their data. • Detailed work order and purchase order/receipt history is not included, unless noted on quote. • Crystal report training for modification or creation of reports is not included. • All functional and operational groups who will be using and/or impacted by the new system should participate in all sessions, which will be conducted once. Repeating previously conducted sessions (i.e., system setup, data load training, system training, etc.) will require a change order for additional project budget. • Training assumes train-the-trainer approach and one physical or remote location for training for all groups.
The max class size is ten (10) participants. If the size of the organization is smaller and meets this class size for sessions such as technical, supervisor and storekeeper, direct end user training will be utilized over a train the trainer approach.
• Where applicable, standard training materials will be utilized. Quote does not include customized training materials, unless otherwise noted.
• Costs are estimated for a time & materials project however all technical services including custom interfaces, product enhancements, custom reports, out of the box integration setup services, etc. are provided at a fixed fee.
• All software licenses and first-year maintenance and/or subscription fees will be invoiced upon contract execution.
• Annual maintenance for quoted custom deliverable(s) is billed upon delivery of the item(s) as defined the scope.
• Actual costs might be greater or lesser than those presented in this quote. • Travel: If travel is required and quoted, expenses will be reimbursed as incurred, unless otherwise noted. Expenses include actual costs for lodging, air and ground travel and per diem rates for meal expenses (corporate rate/government agreement).
• If this order is abandoned, paused, or cancelled by the customer for any reason mid-effort, the customer will be billed for all AssetWorks time incurred at the current contracted labor rate. • Professional Services engagements have an 8-12 week lead time from execution of contract/order.
Motor Pool & Reservations Module Setup and Training Professional Services Terms • AssetWorks will provide remote professional services to setup and train on the motor pool module functionality and the Reservations module/portal for online reservations. • Setup and training agenda to include:
• Motor Pool module setup and overview
• Pool Vehicle Types
• Operators
• Calendars
• Locations
• Departments
• Fleet Equipment
• Creating a Motor Pool Reservation
• Dispatching a Motor Pool Reservation
• Returning a Motor Pool Reservation
• Reservation Status Definitions
• Printing a Reservation Confirmation
• Reservations Module setup and overview
• Creating a Motor Pool Reservation
• Printing a Reservation Confirmation
• Reservations can also be made available in the SmartApps Reservations app if installed and setup; this Order Form does not include SmartApps implementation services unless specifically noted. • After training and configuration sessions are complete, the customer will finalize the setup in FleetFocus and is responsible for loading all data (ex: Operators/Employees) required for project success. • This Order Form does not provide for any interfaces to keep Operators/Employees in sync with a 3rd party system or services to setup SSO (Single Sign On) unless specifically noted. • Assumes fleet assets are setup and ready for configuration with Motor Pool functionality in FleetFocus. • Costs are for a fixed fee project and do not include applicable taxes. Milestone(s) are to be billed as noted below in the milestone names, with the amounts noted below:
• Milestone - Motor Pool Module and Reservations Portal Configuration Complete in Production:
$4,433.25 USD
Key Valet Project Scope and Assumptions
• Customer must be on supported version of FleetFocus per KeyValet site readiness document. • Upgrade services for FleetFocus are not included, unless otherwise noted. • Training on KeyValet software and hardware is for Motor Pool Administrators. Customer personnel to conduct end-user training.
• Assumes setup of up to one (1) kiosk.
• Quote includes setup of Motor Pool and training on core Motor Pool screens / Reservations Portal in FleetFocus; see the above scope.
• Assumes fleet assets are setup and ready for configuration with Motor Pool functionality in FleetFocus. • Assumes one (1) physical onsite trip for testing, training and go live support. • KeyValet site readiness document attached to quote must be reviewed and accepted by Customer. • KeyValet site readiness document will be reviewed at project kick off by the services delivery team. • Requires use of MAXQueue and will require a stand-alone instance of MAXQueue for KeyValet services.
• All warranties conveyed by the manufacturer to AssetWorks are included. • Shipping: Hardware shipping expense is an estimate. Actual shipping cost will be invoiced. • Customer to confirm receipt of goods and verify hardware delivered per AssetWorks order form within 5 business days of delivery. AssetWorks will communicate to the customer the expected delivery date after the hardware is shipped. If hardware is not delivered on the date expected, customer shall contact AssetWorks within 2 business days of expected date.
• Customer to install all hardware and mount box ahead of AssetWorks trip. • Customer should not install software and/or computer related services without AssetWorks’ onsite assistance.
• During the project kick-off, AssetWorks will discuss with the customer if travel restrictions are in place and if the installation needs to be remote. If that is the case and it is agreed upon by all parties, then the customer can install software and/or computer related services without AssetWorks' onsite assistance however, if any damage is done to the hardware it is the financial responsibility of the Customer. • WAF training is not included in this quote; would require a separate quote to add hardware and services for go live / training.
• Limited 1 year HARDWARE warranty includes parts (labor not included). • Key Cabinets are Ethernet enabled and all Key Cabinets must have access to a Customer’s network. • Two sets of control keys: default cam locks.
• All components that comprise the KeyValet Product, specifically software and hardware, must be purchased from and delivered by AssetWorks.
• Current supported version of FleetFocus is required and adheres to the minimum versions as documented in AssetWorks Product Documentation located on the Customer Care site. • Customer may be required to upgrade if new features and/or fixes are available for the module that are considered necessary for the project success however upgrade services for FleetFocus are not included, unless otherwise noted on the order form.
• Customer will be responsible for working with AssetWorks’ Professional Services to move the module into a production environment.
• AssetWorks will assign a Project Manager 4 weeks after a fully executed and processed order. The Project Manager will engage with the customer to kick-off the project and begin scheduling services. The delivery schedule of the project requirements will be set during the project planning phase. All implementers, consultants and/or trainers for professional services will be secured by the Project Manager within a 2–4- week lead time once the project is kicked off.
• Costs are for a fixed fee project and do not include applicable taxes. Milestone(s) are to be billed as noted below in the milestone names, with the amounts noted below:
• Milestone - KeyValet Software Installation in a Test and Production Environment: $4,322 USD • Milestone - KeyValet Software Configuration in a Test and Production Environment: $4,322 USD • Milestone - KeyValet Training and Go Live in a Production Environment: $4,323.25 USD MobileFocus EDGE Project Scope and Assumptions
• AssetWorks will provide remote services to install Mobile Focus EDGE (EDGE) and perform base FleetFocus configuration to support EDGE as used by Customer. The module and integration assume usage of all EDGE settings out of the box and utilizes functionality built within supported versions, as noted in EDGE product documentation. The minimum version required for EDGE is v.20.1; additional portals will be added to future versions and noted in product documentation when released. • After training and configuration sessions are complete, Customer will finalize the setup in FleetFocus and is responsible for loading all data required for project success. • Assumes fleet assets are setup in FleetFocus and ready for configuration to support EDGE functionality. • EDGE supports the SSO methods per AssetWorks Product documentation per version. • EDGE, once installed, requires a connection to the application server and the database. • Services for other MobileFocus platforms including handheld devices are not included, unless otherwise noted on the Order Form.
• Training assumes train-the-trainer approach and a remote location for training for all groups. The max class size is ten (10) participants. If the size of the organization is smaller and meets this class size for sessions such as technician, supervisor and storekeeper, direct end user training will be utilized over a train-the-trainer approach.
• Costs are for a fixed fee project and do not include applicable taxes. Milestone(s) are to be billed as noted below in the milestone names, with the amounts noted below:
• Milestone - Review of EDGE Portals and Configurations Complete in Test and Production = $2,593.45 USD
• Milestone - Delivery of EDGE Training = $2,593.45 USD SmartApps Project Scope and Assumptions
• AssetWorks will provide remote services to install SmartApps and advise on base FleetFocus configuration to support up to three (3) apps as well as test the configuration. • After training and configuration sessions are complete, Customer will finalize the setup and is responsible for loading all data required for project success.
• Assumes fleet assets are setup in FleetFocus and ready for configuration to support SmartApps functionality. • The Inspections App will provide for one checklist setup and be conducted as a train-the-trainer for Customer to complete any additional checklists needed.
• All end users must have a FleetFocus user account (password required on user account) created with an attached operator account.
• SmartApps supports the SSO methods per AssetWorks Product documentation per version. • Services for other MobileFocus platforms including handheld devices are not included, unless otherwise noted on the Order Form.
• Costs are for a fixed fee project and do not include applicable taxes. Milestone(s) are to be billed as noted below in the milestone names, with the amounts noted below:
• Milestone: Installation of SmartApps in a Test and Production Environment = $3,457.94 USD • Milestone: Delivery of SmartApps Training = $3,457.93 USD AssetWorks Telematics Cloud Integration Scope and Assumptions • AssetWorks will provide remote professional services to install and configure the AssetWorks Telematics Cloud integration to FleetFocus for a single provider on the approved list of GPS/AVL providers integrating to FleetFocus. AssetWorks GPS will utilize the Telematics Cloud platform for the integration as of version 24.x. • If a customer uses AssetWorks GPS as the GPS/AVL provider, there is an additional bi-directional Asset Synchronization service that will be implemented using MAXQueue. Not all asset fields are available to be synced as part of this integration. Specific data fields are identified in Product documentation. • The project will utilize existing functionality and out-of-box FleetFocus settings and design features within the current supported versions of the FleetFocus product. Configuration services include meetings with the customer to review DTC management-related workflows.
• Data is limited to meters, DTCs, and GPS data.
• Assumes fleet assets are setup in FleetFocus and ready for configuration to support AssetWorks Telematics Cloud functionality.
• Customer will be responsible for identifying which trouble codes to categorize during setup. AssetWorks will not consult on DTCs for the customer. Rather, AssetWorks will provide and train on the tools available to allow the customer to configure DTCs to create work/service requests accordingly. • Training topics include:
• Setup of trouble code to create work/service requests • Setup of trouble code to create work/service requests with work orders • How to see work/service requests in out-of-box reporting • Dashboard gadget setup to show service requests and filter by trouble code • For FleetFocus FA customers, AssetWorks will enable an out-of-the-box notification that notifies the recipient of newly created service requests or work orders.
• After train-the-trainer training and configuration sessions are complete, the customer will finalize the setup in FleetFocus and is responsible for loading all data required for project success. • AssetWorks will configure the integration first in a testing environment to ensure the data is flowing in and displaying where expected in FleetFocus. Upon testing completion, AssetWorks will then configure the integration in the production environment.
• Once go live is determined, the interface will be activated, and the customer will be responsible for the ongoing monitoring of the interface schedule and all error management. • AssetWorks is responsible to assist the customer setting up the interface(s) for testing and validation that they connect and run successfully, however AssetWorks is not responsible for analyzing the results of the transactions.
• AssetWorks is not responsible for the data management of any legacy telematics data transactions prior to interface activation.
• AssetWorks is not responsible for providing, maintaining, or advising on any AssetWorks Telematics Cloud partner specific terms, conditions and/or functionality, login access, etc. The customer will be responsible for working with third-party vendors to obtain login access to transfer the telematic data. • Customer must have a valid agreement with an approved AssetWorks Telematics Cloud partner, contact account management for more details.
• Hardware installation is not included, unless otherwise noted on the order form. • Costs are for a fixed fee project and do not include applicable taxes. Milestone(s) are to be billed as noted below in the milestone names, with the amounts noted below:
• Milestone - Installation of Telematics Cloud Integration in Production Environment: $7,093.20 USD In the event Customer’s business practices require that Customer issue a purchase order number prior to payment of any AssetWorks invoices issued under this Agreement, then such purchase order number must be entered below. Customer’s execution of the Order Form without designating a purchase order number shall be deemed Customer’s acknowledgement that no purchase order number is required for payment of invoices hereunder.
Purchase Order Number:____________________
Accepted by Customer:
Signature:
Name (Print):
Title:
Date:
Accepted by AssetWorks:
Signature:
Name (Print):
Title:
Date:
Please sign and email to Tyler Beaty at [email protected].
THANK YOU FOR YOUR BUSINESS!
1 EXHIBIT B
GENERAL TERMS AND CONDITIONS
1. Status as Independent Contractor.
A. 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 the City of Commerce or otherwise act on behalf of Commerce as an agent.
Neither the City of Commerce 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, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City of Commerce.
B. Consultant agrees to pay all required taxes on amounts paid to Consultant under this Agreement, and to indemnify and hold City harmless from any and all taxes, assessments, penalties, and interests asserted against City by reason of the independent Consultant relationship created by this Agreement. In the event that City is audited by any Federal or State agency regarding the independent status of Consultant and the audit in any way fails to sustain the validity of a wholly independent Consultant relationship between City and Consultant, then Consultant agrees to reimburse City for all costs, including accounting and attorney's fees, arising out of such audit and any appeals relating thereto.
C. Consultant shall fully comply with the workers' compensation law regarding Consultant and Consultant’s employees. Consultant further agrees to indemnify and hold City harmless from any failure of Consultant to comply with applicable worker's compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant’s failure to promptly pay to City any reimbursement or indemnification arising under this Section 1.
D. Consultant represents to the City, and City relies on Consultant’s representations, that Consultant shall serve solely in the capacity of an independent contractor to the City. Neither the City nor any of its agents will have control over the conduct of Consultant or any of Consultant’s employees, except as otherwise set forth in the Agreement. Consultant may not, at any time or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City. The City has no duty, obligation, or responsibility to the Consultant’s agents or employees, including the Affordable Care Act coverage requirements. Consultant is solely responsible for any tax penalties associated with the failure to offer affordable coverage to its agents and employees under the Affordable Care Act with respect to Consultant’s agents and employees. Consultant warrants and represents that the City will not be responsible and will not be held liable for issues related to Consultant’s status as an independent contractor, including Consultant’s failure to comply with Consultant’s duties, obligations, and responsibilities under the Affordable Care Act.
Consultant further agrees to defend, indemnify, and hold the City harmless for any and 2 all taxes, claims, and penalties against the City related to Consultant’s obligations under the Affordable Care Act.
2. Standard of Performance
Consultant shall perform all work to the highest professional standards and in a manner reasonably satisfactory to the City Manager or his/her designee. No additional or different tasks or services shall be performed by Consultant other than those specified in Exhibit A.
3. Indemnification.
A. Consultant is skilled in the professional calling necessary to perform the services and duties agreed to be performed under this Agreement, and City is relying upon the skill and knowledge of Consultant to perform said services and duties.
B. City and its respective elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "Indemnities") shall have no liability to Consultant or any other person for, and Consultant shall indemnify, defend, protect and hold harmless Indemnities from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature, including reasonable attorneys' fees and disbursements (collectively "Claims"), which Indemnities may suffer or incur or to which Indemnities may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or other loss occurring as a result of or allegedly caused by Consultant’s performance of or failure to perform any services under this Agreement or by the negligent or willful acts or omissions of Consultant, its agents, officers, directors, subcontractor, sub consultant or employees, committed in performing any of the services under this Agreement. Notwithstanding the foregoing, the provisions of this subsection shall not apply to Claims occurring as a result of the City’s sole negligence or willful acts or omissions.
C. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth in this Section from each and every subcontractor, sub consultant or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required in this Section, Consultant agrees to be fully responsible according to the terms of this Section. Failure of the City to monitor compliance with these requirements imposes no additional obligations on City and will in no way serve as a waiver of any rights hereunder. This obligation to indemnify and defend Indemnities as set forth herein shall survive the termination of this Agreement and is in addition to any rights which City may have under the law. This indemnity is effective without reference to the existence or applicability of any insurance coverage which may have been required under this Agreement or any additional insured endorsements which may extend to City.
3 4. Insurance.
A. Without limiting Consultant’s indemnification of Indemnities pursuant to Section 3 of this Agreement, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement the types and amounts of insurance as described below:
(I) Consultant shall maintain Commercial General Liability Insurance with coverage at least as broad as Insurance Services Office Commercial General Liability Form CG 00 01 in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
(II) Consultant shall maintain Business Auto Coverage on ISO Business Auto Coverage Form CA 00 01 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, nonowned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(III) Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance with on a state approved policy form providing statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident for all covered losses; (IV) Consultant shall maintain Professional Liability or Errors and Omissions Insurance that covers the services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate.
Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.
B. City, its officers, officials, employees and volunteers shall be named as additional insureds on the policy(ies) as to commercial general liability and automotive liability.
C. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved 4 by the City’s Risk Manager.
D. All insurance policies shall provide that the insurance coverage shall not be non-renewed, canceled, reduced, or otherwise modified (except through the addition of additional insureds to the policy) by the insurance carrier without the insurance carrier giving City thirty (30) days' prior written notice thereof. Any such thirty (30) day notice shall be submitted to CITY via certified mail, return receipt requested, addressed to “Director of Human Resources & Risk Management,” City of Commerce, 2535 Commerce Way, Commerce, California, 90040. Consultant agrees that it will not cancel, reduce or otherwise modify said insurance coverage.
E. Consultant shall submit to City (I) insurance certificates indicating compliance with the minimum worker's compensation insurance requirements above, and (II) insurance policy endorsements indicating compliance with all other minimum insurance requirements above, not less than one (1) day prior to beginning of performance under this Agreement. Endorsements shall be executed on City’s appropriate standard forms entitled "Additional Insured Endorsement".
F. Consultant’s insurance shall be primary as respects the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees and volunteers shall be excess of Consultant’s insurance and shall not contribute with it.
G. Consultant agrees that if it does not keep the aforesaid insurance in full force and effect, and such insurance is available at a reasonable cost. City may take out the necessary insurance and pay the premium thereon, and the repayment thereof shall be deemed an obligation of Consultant’s and the cost of such insurance may be deducted, at the option of City, from payments due Consultant.
5. Release of Information/Confidentiality.
A. Consultant in the course of its duties may have access to confidential data of City, private individuals, or employees of the City. Consultant covenants that 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 written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Consultant, its officers, employees, agents, or subconsultants, shall not without written authorization from the City Manager, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena. Consultant’s covenant under this section shall survive the termination of this Agreement.
5 B. Consultant shall promptly notify City should Consultant, its officers, employees, agents, or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any person or party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with City and to provide the opportunity to review any response to discovery requests provided by Consultant. However, City's right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response
6. Ownership of Work Product.
A. Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by the City that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identi¬fied and readily accessible. Consultant shall provide free access to the representatives of the City or its designees at reasonable times to such books and records; shall give the City the right to examine and audit said books and records; shall permit the City to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment.
B. Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the City and may be used, reused, or otherwise disposed of by the City without the permission of the Consultant. With respect to computer files, Consultant shall make available to the City, at the Consultant's office and upon reasonable written request by the City, the necessary computer software and hardware for purposes of accessing, compiling, transferring, and printing computer files.
7. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be performed by Consultant under this Agreement, or which would conflict in any manner with the performance of its services hereunder. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it.
Furthermore, Consultant shall avoid the appearance of having any interest which would conflict in any manner with the performance of its services pursuant to this Agreement. 6 B. Consultant covenants not to give or receive any compensation, monetary or otherwise, to or from the ultimate vendor(s) of services to City as a result of the performance of this Agreement, or the services that may be procured by the City as a result of the recommendations made by Consultant’s covenants under this section shall survive the termination of this Agreement.
8. Termination. Notwithstanding any other provision, this Agreement may be duly terminated at any time by the City at its sole discretion with or without cause by serving upon the consultant at least ten (10) days prior written notice (“Notice of Termination”).
Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. Unless expressly agreed upon in writing by the City, the City shall not be obligated to pay for any services rendered nor any costs or expenses paid or incurred after the date of termination. The effective date of termination shall be upon the date specified in the written Notice of Termination.
Consultant agrees that in the event of such termination, Consultant must refund the City its prorated share, except for services satisfactorily rendered prior to the effective date of termination. Immediately upon receiving written Notice of Termination, Consultant shall discontinue performing services, preserve the product of the services and upon payment for services, turn over to City the product of the services in accordance with written instructions of City.
In the event this Agreement is terminated pursuant to this Section, the City shall pay to Consultant the actual value of the work performed up to the time of termination, provided that the work performed is of value to the City. Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the City.
9. Personnel. Consultant represents that it has, or will secure at its own expense, all personnel required to perform the services under this Agreement. All of the services required under this Agreement will be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services.
Consultant reserves the right to determine the assignment of its own employees to the performance of Consultant’s services under this Agreement, but City reserves the right, for good cause, to require Consultant to exclude any employee from performing services on City's premises.
10. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation, in the performance of its services and duties pursuant to this Agreement, and will comply with all rules and regulations of City relating thereto. Such nondiscrimination shall include but not be limited to the following: employment, upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
7 B. Consultant will, in all solicitations or advertisements for employees placed by or on behalf of Consultant state either that it is an equal opportunity employer or that all qualified applicants will receive consideration for employment without regard to race, color, creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or sexual orientation.
C. Consultant will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement except contracts or subcontracts for standard commercial supplies or raw materials.
11. Assignment. Consultant shall not assign or transfer any interest in this Agreement nor the performance of any of Consultant obligations hereunder, without the prior written consent of City, and any attempt by Consultant to assign this Agreement or any rights, duties, or obligations arising hereunder shall be void and of no effect.
12. Performance Evaluation. For any Agreement in effect for twelve months or longer, the City Manager may require a written annual administrative performance evaluation within ninety (90) days of the first anniversary of the effective date of this Agreement, and each year thereafter throughout the term of this Agreement. The work product required by this Agreement shall be utilized as the basis for review, and any comments or complaints received by City during the review period, either orally or in writing, shall be considered. City shall meet with Consultant prior to preparing the written report. If any noncompliance with the Agreement is found, City may direct Consultant to correct the inadequacies, or, in the alternative, may terminate this Agreement as provided herein.
13. Compliance with Laws. Consultant shall keep itself informed of State, Federal and Local laws, ordinances, codes and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. Consultant shall at all times comply with such laws, ordinances, codes and regulations. The City, its officers and employees shall not be liable at law or in equity occasioned by failure of Consultant to comply with this Section.
14. Licenses. At all times during the term of this Agreement, Consultant shall have in full force and effect all licenses (including a City business license) required of it by law for performance of the services hereunder.
15. Non-Waiver of Terms, Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Consultant constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Consultant, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default.
16. Attorney's Fees. In the event that either party to this Agreement shall commence 8 any legal or equitable action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney's fees and costs, including costs of expert witnesses and Consultant.
17. Notices. Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on (a) the day of delivery if delivered by hand during Consultant regular business hours or by facsimile before or during Consultant regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section.
18. Governing Law. This Agreement shall be construed and interpreted both as to validity and to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California. However, the Parties may agree to submit any dispute to non-binding arbitration.
19. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be the original, and all of which together shall constitute one and the same instrument.
20. Severability. If any provision or any part of any provision of this Agreement is found to be invalid or unenforceable, the balance of this Agreement shall remain in full force and effect.
21. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Consultant and City. This Agreement supersedes all prior oral or written negotiations, representations or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the Parties which expressly refers to this Agreement. Amendments on behalf of the City will only be valid if signed by the Mayor and attested by the City Clerk.
22. Authority. The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of Consultant and has the authority to bind Consultant to the performance of its obligations hereunder.
23. Force Majeure. A Party’s performance of any obligation under this Agreement shall be suspended if, and to the extent that, the Party is unable to perform because of any event of Force Majeure. In any such event, the Party unable to perform shall be required to resume performance of its obligations under this Agreement upon the termination of the event or cause that excused performance hereunder. “Force Majeure” 9 herein means an event which is beyond the reasonable control of a Party, including without limitation, (a) acts of God including flood, fire, earthquake, hurricane or explosion, pandemic; (b) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (c) government order or law that prevents either Party from performing its obligations as set forth in this Agreement; (d) actions, embargoes or blockades in effect on or after the date of this Agreement; (e) action by any governmental authority that prevents either Party from performing its obligations as set forth in this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances, other than those involving the affected parties employees; (h) shortage of adequate power or transportation facilities.
Neither Party shall be liable for any delay or default in, or failure of, performance resulting from or arising out of any Force Majeure event, and no such delay, default in, or failure of performance shall constitute a breach by either Party hereunder. Where a Force Majeure event gives rise to a failure or delay in either Party performing its obligations under this Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure event. A Party who becomes aware of a Force Majeure event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will forthwith notify the other and inform the other of the period for which it is estimated that such failure or delay will continue. The affected Party shall take reasonable steps to mitigate the effects of the Force Majeure event.