CITY OF FULLERTON
PROFESSIONAL SERVICES AGREEMENT
WITH
GLASS BOX TECHNOLOGY, INC.
THIS AGREEMENT is made and entered into this — day of June, 2020 (" Effective Date"), by and between the CITY OF FULLERTON, a California municipal corporation ("City"), and GLASS BOX TECHNOLOGY, INC., a California corporation (" Consultant").
WITNESSETH:
A. City proposes to utilize the services of Consultant as an independent contractorto providedesktopsupportservicesfortheCity's computersystem, asmorefully describedherein.
B. Consultantrepresentsthat it hasthat degreeof specialized expertisecontemplated withinCaliforniaGovernmentCodesection 37103, andholdsallnecessarylicensesto practice and perform the services herein contemplated.
C. City and Consultant desire to contract for the specific services described herein, and desire to set forth their rights, duties and liabilitiesin connectionwith the servicesto be performed.
D. No official or employee of City has a financial interest, within the provisionsof Sections1090-1092of the CaliforniaGovernmentCode, inthesubjectmatter ofthis Agreement.
NOW, THEREFORE, for and in considerationof the mutual covenants and conditions contained herein, theparties hereby agree as follows:
1. 0. SERVICES PROVIDED BY CONSULTANT
1. 1. Scope of Services. Consultant shall provide the professional services described in the "StatementofWork forthe Cityof Fullerton" attachedheretoas Exhibit "A" and incorporated herein by this reference.
1. 2. Professional Practices. All professionalservicesto be providedby Consultant pursuantto thisAgreementshallbe providedby personnelexperiencedin their respectivefields andina manner consistentwiththestandardsof care, diligenceandskillordinarilyexercisedby professional consultants in similar fields and circumstances in accordance with sound professional practices. Consultantalsowarrantsthatit isfamiliarwithalllawsthatmay affectits performanceofthisAgreementand shalladviseCityofany changesinany lawsthatmayaffect Consultant' s performance of this Agreement.
1. 3. Performanceto Satisfactionof City. Consultantagrees to perform all the workto the reasonable satisfactionofthe City, inaccordancewiththe applicableprofessionalstandardof care and City specifications and within the hereinafter specified. Evaluations of the work will be done by the City Manager or his designee. If the quality of work is not satisfactory, City in its discretion has the right to:
a) Meet with Consultantto reviewthe quality of the work and resolvethe matters of concern;
b) Require Consultant to repeat the work at no additional fee until it is satisfactory; and/ or
c) Terminate the Agreement as hereinafter set forth.
1. 4. Warranty. Consultant warrantsthatit shallperformthe servicesrequiredbythis Agreementin compliancewith all applicableand non -conflictingFederal and California employment laws, including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Consultant shall indemnifyandhold harmlessCityfrom andagainstall claims, demands, payments, suits, actions, proceedings, andjudgmentsof every natureanddescriptionincludingattorneys' feesandcosts, presented, brought, or recoveredagainstCityfor, or onaccountof anyliabilityunderanyofthe above-mentioned laws, which may be incurred by reason of Consultant's performance underthis Agreement.
1. 5. Non-discrimination. In performing thisAgreement, Consultantshall not engagein, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code.
1. 6. Non - Exclusive Agreement. Consultant acknowledges thatCity may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement.
1. 7. Delegation and Assignment. This is a personal service contract, and the duties setforthherein shallnotbedelegatedorassignedto anypersonorentitywithoutthepriorwritten consentofCity. Consultantmayengageasubcontractor(s) aspermittedbylawandmay employ other personnel to perform services contemplated by this Agreement at Consultant's sole cost and expense.
1. 8. Confidentiality. Employeesof Consultantin the courseof their duties may have access to financial, accounting, statistical, and personnel data of private individuals and employees of City. Consultant covenants that all data, documents, discussion, or other information developedor receivedby Consultantor provided forperformanceof this Agreement aredeemed confidentialandshallnotbedisclosedbyConsultantwithoutwrittenauthorizationby City. Cityshallgrantsuchauthorizationif disclosureis required bylaw. All City data shall be returned to City upon the termination of this Agreement. Consultant's covenant under this Section shall survive the termination of this Agreement.
2. 0. COMPENSATION AND BILLING
2. 1. Compensation. Consultant shall be paid in accordance with the fee schedule set forth in Exhibit " A."
2. 2. Method of Billing. Consultantmay submit invoicesto the City for approval on a progress basis, but no more often than two times a month. Said invoice shall be based on the total ofallConsultant's services whichhavebeencompletedtoCity's solesatisfaction. Cityshall payConsultant's invoice withinforty-five (45) daysfrom thedateCity receivessaidinvoice. Each invoice shall describe in detail, the services performed, the date of performance, and the GlassBoxTechnology, Inc.
associated time for completion. Any additional servicesapproved and performed pursuant to this Agreementshallbe designatedas "AdditionalServices" andshall identifythe numberof the authorized change order, where applicable, on all invoices.
2. 3. RecordsandAudits. Recordsof Consultant's servicesrelatingto this Agreement shallbe maintainedin accordancewithgenerallyrecognized accountingprinciplesandshallbe madeavailableto City orits ProjectManagerfor inspectionand/or auditat mutuallyconvenient times from the Effective Date of this Agreement until three (3) years afterthe terminationdate.
2. 4. W-9. ConsultantmustprovideCitywith a currentW-9 form, to be attachedhereto as Exhibit "C." It istheConsultant's responsibilityto provideto theCityanyrevised orupdatedW- 9 form.
3. 0. TIME OF PERFORMANCE
3. 1. Commencement and Completion of Work. The professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of thisAgreement. Failureto commence workinatimelymannerand/ordiligentlypursueworkto completion may be grounds for termination of this Agreement.
3. 2. Excusable Delays. Neither party shall be responsible for delays or lack of performanceresultingfrom actsbeyond thereasonablecontrolof the partyor parties. Suchacts shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliancewith lawsor regulations, riots, actsof war, or any otherconditionsbeyondthe reasonablecontrolofa party.
4. 0. TERM AND TERMINATION
4. 1. Term. This Agreement shall commence on the Effective Date and continue for a period of twelve ( 12) months, ( 52 weeks), unless terminated as provided.
4. 2. Notice of Termination. The City or the Consultant may terminate, suspend or abandonthe execution of all or any part of the work contemplatedby this Agreement, withor without cause, at any time, by providing a thirty ( 30) day written notice to the other. The termination of this Agreement shall be deemed effective upon receipt of the notice of termination.
Intheevent ofsuchtermination, Consultantshallimmediatelystoprenderingservicesunderthis Agreementunlessdirected otherwiseby the City.
4. 3. Compensation. In the event of termination, City shall pay Consultant for reasonablecostsincurredandprofessionalservicessatisfactorilyperformedupto andincluding the date of City's written notice of termination. Compensation for work in progress shall be prorated based on the percentage of work completed as of the effective date of termination in accordance with the fees set forth herein. In ascertaining the professional services actually rendered hereunder up to the effective date of termination of this Agreement, consideration shall be given to both completed work and work in progress, to complete and incomplete drawings, and to other documents pertaining to the services contemplated herein whether delivered to the City or in the possession of the Consultant.
4. 4. Documents. In the event of termination of this Agreement, all documents prepared by Consultantin its performance ofthis Agreementincluding, but not limitedto, finishedor unfinished design, development and construction documents, data studies, drawings, maps and GlassBoxTechnology, Inc.
reports, shall be deliveredto the Citywithinten (10) days of deliveryof terminationnoticeto Consultant, at no cost to City. Any use of uncompleted documents without specific written authorizationfromConsultantshallbeat City's sole risk andwithoutliabilityorlegalexpenseto Consultant.
5. 0. INSURANCE
5. 1. Insurance Required. Consultant shall procure and maintain throughout the duration of this Agreement, insurance against claims for injuries to persons or damages to propertywhich may arise fromor in connectionwiththe performanceof the workhereunderby Consultant, its agents, representatives, employees or subcontractors. Consultant shall provide current evidenceof the required insurance in a form acceptableto City and shall provide replacement evidence for any required insurance which expires prior to the completion, expiration, or termination of this Agreement.
Nothingin this section shallbe construedas limitingin anyway, the IndemnificationandHold HarmlessclausecontainedhereininSection6.8 ortheextenttowhichConsultantmaybeheld responsible forpaymentsof damagesto personsor property.
5. 2. Minimum Scope and Limits of Insurance.
A. CommercialGeneral LiabilityInsurance. Consultantshall maintain commercial general liability insurance coverage in a form at least as broad as ISO Form #CG 00 01, with a limit of not lessthan $1,000, 000each occurrence. If such insurance containsa generalaggregate limit, it shall apply separately to the Agreement or shall be twice the required occurrence limit.
B. Business Automobile Liability Insurance. Consultant shall maintain business automobile liability insurance coverage in a form at least as broad as ISO Form # CA 00 01, with a limit of not less than $ 1,000, 000 each accident. Such insurance shall include coverage for owned, hired and non -owned automobiles.
C. Workers' Compensationand Employers' LiabilityInsurance. Consultantshall maintain workers' compensation insurance as required by the State of California and employers' liability insurance with limits of not less than $ 1,000, 000 each accident.
D. ProfessionalLiabilityInsurance. Consultantshall maintainprofessionalliability insurance appropriate to Consultant' s profession with a limit of not less than $ 2, 000, 000.
Architects' andengineers' coverageshallbeendorsedto includecontractualliability. Ifpolicyis written as a "claims made" policy, the retro date of the policy shall be prior to the start of the contract work.
E. Cyber Liability Insurance. Consultantshall maintaincyber liabilityinsurance coverage with a limit of not less than $2,000, 000 per claim and $2,000, 000aggregate. Coverage shallbesufficientlybroadto respondtothedutiesandobligationsasisundertakenbyConsultant in this Agreementand shall includebut not be limitedto claimsinvolving infringementof intellectual property, includingbut notlimitedto infringement of copyright, trademark, tradedress, invasion of privacy violations, information theft, damage to or destruction of electronic information, releaseofprivateinformation, alterationofelectronicinformation, extortionandnetworksecurity.
The policyshallprovidecoverageforbreachresponsecostsaswellasregulatory fines, penalties and credit monitoring expenses with limits sufficient to respond to these obligations.
GlassBoxTechnology, Inc.
5. 3. DeductiblesandSelf-insured Retentions. Any deductibleorself-insuredretention must be declaredto and approved by City.
5. 4. Other Insurance Provisions. The required insurance policies shall contain or be endorsed to contain the following provisions:
A. Commercial General Liability. City, its elected or appointed officials, officers, employeesandvolunteersareto becoveredasadditionalinsuredswithrespectto liability arising out of work or operations performedby or on behalf of Consultant, including materials, parts or equipment furnished in connection with such work or operations. Such coverage as an additionalinsured shallnotbelimitedtothe periodoftimeduringwhichConsultantisconducting ongoing operations for City but rather, shall continue after the completion of such operations. The coverageshallcontainno speciallimitationson the scopeof its protectionaffordedto City, its officers, employees and volunteers.
B. CommercialGeneralLiability. Thisinsuranceshallbeprimaryinsuranceas respectsCity, itsofficers, employeesandvolunteersandshallapplyseparatelyto eachinsured againstwhoma suit is broughtor a claimis made. Any insuranceor self-insurancemaintained by City, its officers, employeesand volunteersshall be excess of this insuranceand shallnot contribute with it.
C. Professional Liability. If the ProfessionalLiability policy is written on a claims made" form, the Retroactive Date must be shown and must be before the date of the contract or beginning of contract work. The insurance must be maintained and evidence of insurance must be provided for at least (5) years after completion of the contract work. If the coverageiscanceledornon -renewedand notreplacedwithanotherclaims -madepolicyformwith a Retroactive Date prior to the contract effective date, the Consultant must purchase "extended reporting coverage" for a minimum of five ( 5) years after completion of work.
D. Workers' Compensationand Employers' LiabilityInsurance. Insurershall waive their right of subrogationagainst City, its officers, employees and volunteersfor work done on behalf of City.
E. All Coverages. Each insurance policy required by this clause shall be endorsedto statethat coverageshall not be canceled, exceptafterthirty (30) days' priorwritten noticebycertifiedmail, returnreceiptrequested, has beengivento City.
If Consultantmaintainshigher limits or has broader coveragethan the minimumsshown above, City requiresandshallbe entitledto all coverage, andto the higherlimitsmaintainedby Consultant. Any available insurance proceeds in excess of the specified minimum limits of insuranceand coverageshallbe availableto City.
F. Subcontractors. Consultantshall requireand verifythat all subcontractors maintain insurance meeting all the requirements stated herein and Consultant shall ensure that City is an additional insured on insurance required from subconsultants.
G. Special Risks or Circumstances. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.
GlassBoxTechnology, Inc.
5. 5 Acceptability of Insurers. All required insurance shall be placed with insurers acceptable to City with current BEST' S ratings of no less than A, Class VII. Workers' compensation insurance may be placed with the California State Compensation Insurance Fund.
All insurers shall be licensed by or hold admitted statusin the State of California. At the sole discretionof City, insuranceprovidedby non -admittedor surplus carrierswith a minimumBEST'S rating of no less than A- Class X may be accepted if Consultant evidences the requisiteneedto the sole satisfaction of City.
5. 6 Verification ofCoverage. ConsultantshallfurnishCity withcertificatesofinsurance which bear original signatures of authorized agents and which reflect insurers names and addresses, policy numbers, coverage, limits, deductibles and self- insured retentions.
Additionally, Consultantshall furnish copies of all policy endorsementsrequiredherein. All certificates and endorsementsmust be receivedand approved by City before work commences.
Cityreservestherightto requireat anytimecomplete, certifiedcopiesof anyor all required insurance policies and endorsements. Certificates of Insurance are attached hereto as Exhibit B
6. 0. GENERAL PROVISIONS
6. 1. Entire Agreement. This Agreement constitutes the entire agreement betweenthe parties with respectto any matter referencedherein and supersedesany and all other prior writings and oral negotiations. ThisAgreementmaybe modifiedonlyin writing, andsignedby the parties in interest at the time of such modification. The terms of this Agreement shall prevail overanyinconsistentprovisionin any other contractdocument appurtenanthereto, including exhibits to this Agreement.
6. 2. Representatives. The City Manager or his designee shall be the representativeof City for purposes of this Agreement and may issue all consents, approvals, directivesand agreementsonbehalfof theCity, calledfor bythisAgreement, exceptas otherwiseexpressly provided in this Agreement.
Consultant shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalfof Consultantcalledfor by this Agreement, exceptas otherwiseexpresslyprovidedin this Agreement.
6. 3. Project Managers. City shalldesignatea Project Managerto work directlywith Consultant in the performance of this Agreement.
Consultant shall designate a Project Manager who shall represent it and be its agent in all consultationswith City during the term of this Agreement. Consultant or its Project Managershallattendandassistinallcoordination meetingscalledbyCity.
6. 4. Notices. Any notices, documents, correspondence or other communications concerning thisAgreementor thework hereundermaybeprovidedbypersonaldelivery, facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) atthe timeofdeliveryif suchcommunicationis sent bypersonaldelivery; b) at the time of transmissionif suchcommunicationissent byfacsimile; and c) 48 hoursafterdeposit in the U.S. Mail as reflectedby the official U.S. postmarkif such communicationis sent through regular United States mail.
GlassBoxTechnology, Inc.
IF TO CONSULTANT:
Glass Box Technology, Inc.
1902 Wright Place, Suite 200
Carlsbad, CA 92008
Attn: City Manager
IF TO CITY:
City of Fullerton
303 W. Commonwealth Ave.
Fullerton, CA 92832
Attn: Marty Miller
6. 5. Attorneys' Fees. In the eventthat litigationis broughtby any partyin connection with thisAgreement, theprevailingpartyshallbeentitledto recoverfromtheopposingpartyall costsandexpenses, includingreasonableattorneys' fees, incurredbytheprevailingpartyinthe exercise ofany of its rightsor remedieshereunderor the enforcementof any of the terms, conditions, or provisions hereof.
6. 6. GoverninqLaw. ThisAgreementshallbegovernedby andconstrued underthe lawsoftheStateof Californiawithoutgivingeffecttothatbodyof lawspertainingto conflictof laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California.
6. 7. Assignment. Consultant shall not voluntarily or by operation of law assign, transfer, subletorencumberalloranypartof Consultant'sinterestinthisAgreementwithoutCity's prior written consent. Any attemptedassignment, transfer, sublettingor encumbranceshall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement.
Regardlessof City's consent, nosublettingor assignmentshallreleaseConsultantof Consultant's obligationto performall other obligationsto be performedby Consultant hereunderfor the term of this Agreement.
6. 8. Indemnification and Hold Harmless. To the fullest extent of the law, Consultant agreesto defend, indemnify, holdfreeandharmless the City, itselected officials, officers, agents, and employees, at Consultant' s sole expense, from and against claims, actions, suits or other legal proceedingsbrought againstthe City, its elected officials, officers, agents, and employees arising out of the performance of the Consultant, its employees, and/or authorized subcontractors, of the professional services undertaken pursuant to this Agreement. The defense obligation providedforhereundershallapplywithoutanyadvanceshowingofnegligenceorwrongdoingby the Consultant, its employees, and/or authorized subcontractors, but shall be requiredwhenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or misconductof Consultant, itsemployees, and/orauthorizedsubcontractors, and/orwheneverany claim, action, complaint or suit asserts liability against the City, its elected officials, officers, agents, and employees based upon the work performedby Consultant, its employees, and/or authorized subcontractors under this Agreement, whether or not Consultant, its employees, and/ or authorized subcontractors are specifically named or otherwise asserted to be liable.
Notwithstandingtheforegoing, the Consultantshallnotbe liablefor the defense orindemnification of the Cityfor claims, actions, complaints, or suits arisingout ofthe soleor activenegligenceor willful misconduct of the City. This provisionshallsupersedeand replaceall otherindemnity provisions contained either in the City's specifications or Consultant's Proposal, which shall be of no force and effect.
GlassBoxTechnology, Inc.
6. 9. Independent Contractor. Consultantis and shall be acting at all times as an independentcontractorandnotasanemployeeof City. Consultantshallhavenopowerto incur anydebt, obligation, orliabilityonbehalfofCity orotherwiseactonbehalf ofCityasanagent.
NeitherCitynor anyof itsagents shallhavecontrolovertheconductof Consultantoranyof Consultant'semployees, exceptasset forthinthisAgreement. Consultantshall not, atanytime, or in anymanner, representthat it or anyof its or employeesare in anymanneragentsor employees ofCity. Consultantshall secure, at itssoleexpense, andbe responsiblefor anyand all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Consultant and its officers, agents, and employees, and all business licenses, if any are required, in connectionwith the servicesto beperformedhereunder. Consultantshallindemnifyand holdCityharmlessfromany and all taxes, assessments, penalties, and interest assertedagainstCity by reasonof the independentcontractorrelationshipcreated by this Agreement. Consultant furtheragreesto indemnifyand holdCityharmlessfrom anyfailureof Consultantto complywiththeapplicable worker's compensationlaws. Cityshallhavetherighttooffsetagainsttheamountofanyfeesdue to Consultantunderthis Agreementany amountdue to City from Consultantas a resultof Consultant's failuretopromptlypayto City anyreimbursementorindemnificationarisingunder this paragraph.
6. 10. PERS Eligibility Indemnification. In the event that Consultantor any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdictionor the California PublicEmployeesRetirement System (PERS) tobeeligibleforenrollmentinPERSasanemployeeofthe City, Consultantshall indemnify, defend, and holdharmlessCityfor the paymentof anyemployeeand/or employer contributions for PERS 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 ofCity.
Notwithstandingany other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providingserviceunderthis Agreementshallnotqualifyfor or become entitledto, andhereby agreetowaiveanyclaimsto, anycompensation, benefit, oranyincidentof employmentbyCity, includingbutnotlimitedtoeligibilitytoenrollinPERSasanemployeeofCityandentitlementto any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
6. 11. Cooperation. In the eventany claimor actionis brought againstCity relatingto Consultant's performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation which City might require.
6. 12. Ownership of Documents. All findings, reports, CAD drawings, documents, information and data, including, but not limited to, computertapes or discs, files and tapes furnished or preparedby Consultantor any of its subcontractorsin the courseof performanceof thisAgreement, shallbeandremain the solepropertyofCity. Consultant agreesthat anysuch documentsor informationshall notbe madeavailableto any individualor organizationwithout thepriorconsentofCity. Anyuseofsuchdocumentsforotherprojectsnotcontemplatedbythis Agreement, andanyuseof incompletedocuments, shallbeat thesole riskof Cityand without liabilityor legalexposureto Consultant. City shallindemnifyand holdharmlessConsultantfrom allclaims, damages, losses, andexpenses, includingattorneys' fees, arisingoutofor resulting fromCity's useofsuchdocumentsforotherprojectsnotcontemplatedbythisAgreementoruse of incompletedocuments furnishedbyConsultant. Consultantshalldeliverto Cityanyfindings, GlassBoxTechnology, Inc.
reports, documents, information, data, in anyform, includingbut notlimitedto, computertapes, discs, files, audiotapesoranyother Projectrelated itemsasrequestedbyCityoritsauthorized representative, at no additional cost to the City.
6. 13. Public Records Act Disclosure. Consultant has been advised and is aware that thisAgreementandall reports, documents, informationanddata, including, but notlimitedto, computertapes, discsorfilesfurnishedorpreparedbyConsultant, oranyof itssubcontractors, pursuantto this Agreementand providedto City maybe subjectto publicdisclosureas required by the CaliforniaPublicRecordsAct (CaliforniaGovernmentCode Section 6250et seq.).
Exceptionsto publicdisclosuremaybethosedocuments orinformationthatqualifyas trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which ConsultantinformsCityof suchtrade secret. TheCitywill endeavorto maintainas confidentialall information obtainedbyitthatisdesignatedasatradesecret. TheCityshall not, inanyway, be liable orresponsiblefor the disclosureof any trade secretincluding, withoutlimitation, those recordsso markedif disclosureis deemedto be requiredby lawor byorderof the Court.
6. 14. Conflict of Interest. Consultant and its officers, employees, associates and subconsultants, if any, will comply with all conflict of interest statutes of the State of California applicableto Consultant's services under thisagreement, including, but notlimitedto, thePolitical ReformAct (GovernmentCode Sections81000, et seq.) and Government Code Section 1090.
During the term of this Agreement, Consultant and its officers, employees, associates and subconsultants shall not, without the prior written approval of the City Representative, perform workforanotherpersonor entityforwhomConsultantisnotcurrently performingworkthatwould requireConsultantor one of its officers, employees, associatesor subconsultantsto abstainfrom a decision under this Agreement pursuant to a conflict of interest statute.
6. 15. Responsibility for Errors. Consultant shall be responsible for its work under this Agreement. Consultant, when requested, shallfurnish clarificationand/or explanationasmaybe requiredby the City's representative, regardingany servicesrenderedunder this Agreementat no additional cost to City. In the event that an error or omission attributable to Consultant occurs, withoutprejudiceto anyotherremedytowhichCity maybeentitledto atlaworequity, Consultant shall, at no cost to City, provide all necessary design drawings, estimates and other Consultant professionalservices necessaryto rectifyand correctthe matterto the sole satisfactionof City and to participate in any meeting required with regard to the correction. In addition, Consultant shallreimburseCityfor anyandall costs, expensesand/ ordamages, if any, thatthe Cityhas incurred due to the aforementioned error or omission.
6. 16. ProhibitedEmployment. ConsultantwillnotemployanyregularemployeeofCity while this Agreement is in effect.
6. 17. OrderofPrecedence. Inthe eventofaninconsistencyinthisAgreementandany of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent thisAgreementincorporatesbyreferenceany provisionofanydocument, suchprovisionshallbe deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditionsof thisAgreementandthose ofanysuchprovisionor provisionssoincorporatedby reference, this Agreement shall govern over the document referenced.
6. 18. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
GlassBoxTechnology, Inc.
6. 19. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Consultant and no other parties are intended to be direct or incidental beneficiariesof this Agreementand no third partyshall haveany rightin, underor to this Agreement.
6. 20. Headings. Paragraphs and subparagraph headings contained in this Agreement are includedsolely for convenienceand arenot intendedto modify, explainor to be a fullor accuratedescriptionof the contentthereofandshall notin anyway affectthe meaningor interpretation of this Agreement.
6. 21. Construction. Thepartieshaveparticipatedjointlyinthe negotiationanddrafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respectto thisAgreement, thisAgreementshallbeconstruedas if draftedjointlybythe parties andinaccordancewithitsfairmeaning. Thereshallbenopresumptionor burdenofprooffavoring or disfavoringany partybyvirtueof the authorshipof anyof the provisionsof thisAgreement.
6. 22. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement.
6. 23. Waiver. The delay or failure of eitherpartyat any time to require performanceor complianceby the otherof anyof its obligationsor agreementsshallin no way be deemeda waiverofthose rightsto requiresuchperformanceorcompliance. Nowaiverof any provision of thisAgreementshallbeeffectiveunlessinwritingandsignedbya dulyauthorizedrepresentative ofthepartyagainstwhomenforcement ofawaiverissought. Thewaiverofany rightorremedy in respectto anyoccurrence oreventshallnotbedeemeda waiverof anyrightor remedyin respectto anyother occurrenceorevent, norshallanywaiverconstitutea continuing waiver.
6. 24. Severability. If any provisionof this Agreementis determinedby a courtof competent jurisdictionto be unenforceablein any circumstance, such determinationshall not affectthevalidityorenforceabilityoftheremaining termsandprovisions hereof oroftheoffending provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement, baseduponthesubstantial benefitofthebargainforany party, ismateriallyimpaired, which determinationmade by the presiding court or arbitrator of competent jurisdictionshallbe binding, thenboth parties agreeto substitutesuch provision(s) through goodfaith negotiations.
6. 25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement.
6. 26. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorizedto execute this Agreement on behalf of said parties and that by doing so the parties hereto are formally bound to the provisions of this Agreement.
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GlassBoxTechnology, Inc.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written.
CI FUL ERT
C
e eth A. Domer, City Manager
GLASS BOX TECHNOLOGY, INC.
C _ Date: 6/ 23/ 2020
NAME ND TITLE]
APPROVED AS TO FORM:
for
Richard D. Jones, CityAttorney
Date:
GlassBoxTechnology, Inc.
EXHIBIT A
SERVICES & FEES
41 O'
CERTIFICATE OF LIABILITY INSURANCE DAT6/30/
2D/
YYYY)
6/30/ 2020
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER( S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy( ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement( s).
PRODUCER
NAME: Kyle Miller
Scott Held Insurance Agency A/CNNoExt): 858-332- 2220 ( AIC, No):
ADDRESS: comlttercial@srhinsurance. com616 Stevens Avenue Suite A INSURER( S) AFFORDING COVERAGE NAIC #
CLAIMS -MADE1 OCCUR
Solana Beach CA 92075 INSURERA: THE HARTFORDINSAXV( L) 30104 INSURED INSURER B:
Glass Box Technology INSURER C :
2855 Camino Serbal INSURER D:
INSURER E:
ENERAL AGGREGATE $ 2, 000, 000
Carlsbad CA 92009 INSURER F:
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
LTR TYPE OF INSURANCE INSD WVD POLICY NUMBER MMIDD/ YYYY) MM/ DDIYYYY) LIMITS X COMMERCIALGENERALLIABILITY EACH OCCURRENCE $ 1,000, 000 CLAIMS -MADE1 OCCUR PREMISES ( Ea occurrence) S 300, 000 MED EXP ( Anyone person) $ 10, 000
A Y 34UUQVT8369 3/ 7/ 2020 3/ 7/ 2021 PERSONAL& ADV INJURY $ 1, 000, 000 GEN' L AGGREGATE LIMIT APPLIES PER: ENERAL AGGREGATE $ 2, 000, 000 JC POLICY PEC LOC RODUCTS - COMP/ OP AGG S 2, 000, 000
APPROVED
OTHER:
By Olga Vellanoweth of 1:57 pm, Jul 01, 2020 $ 1,000, 000AUTOMOBILE LIABILITY a accident)
ANY AUTO BODILY INJURY ( Per person) S
A OWNED
OS ONLY
SCHEDULED
AUTOS 34UUQVT8369 3/ 7/ 2020 3/ 7/ 2021 BODILY INJURY ( Per accident) $
HIRED NON - OWNED
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UMBRELLA LIAB OCCUR EACH OCCURRENCE S
EXCESS LIAR CLAIMS - MADE AGGREGATE S
DEDI IRETENTION$ S
WORKERS COMPENSATION-
a STATUTEI IERAND EMPLOYERS' LIABILITY YIN
E. L. EACH ACCIDENT S 1,000, 000ANY PROPRIETOR/ PARTNER/ EXECUTIVE AOFFICER/ MEMBER EXCLUDED? NIA Y 34WECBX9113 03/ 07/ 2020 03/ 07/ 2021 E. L, DISEASE - EA EMPLOYEE S 1,000, 000Mandatory In NH) If yes, describe under
E. L. DISEASE - POLICY LIMIT S 1,000, 000DESCRIPTION OF OPERATIONS below PROFESSIONAL LIABILITY & OCCURRENCE 52, 000, 000
A CYBER LIABILITY 72TE0294146 03/ 07/ 2020 03/ 07/ 2021 AGGREGATE S3, 000, 000 DESCRIPTIONOF OPERATIONSI LOCATIONS I VEHICLES ( ACORD 101, Additional Remarks Schedule, may be attached if more space is required) OPERATIONS OF THE NAMED INSURED AS COVERED BY THESE POLICIES.
CERTIFICATE HOLDER IS NAMED AS ADDITIONAL INSURED PER ATTACHED COMPANY FORM # CG2010 04/ 13 WAIVER OF SUBROGATION FOR WC PER ATTACHED COMPANY FORM # CG2404 05/ 09 10 DAYS NOTICE OF CANCELLATION FOR NONPAYMENT OF PREMIUM. ** 30 DAYS ALL OTHERS
CERTIFICATE HOLDER CANCELLATION
CITY OF FULLERTON
ATTN: GRETCHEN BEATTY
303 W. Commonwealth Avenue
Fullerton CA 92832
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
Kytf, MUa er-
1988- 2015 ACORD CORPORATION. All rights reserved.
ACORD 25 (2016/ 03) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: 72 UUQ VT8369 COMMERCIAL GENERAL LIABILITY CG 20 10 04 13
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED - OWNERS, LESSEES OR
CONTRACTORS - SCHEDULED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name Of Additional Insured Person( s)
Or Organization( s) Location( s) Of Covered Operations
THE CITY OF FULLERTON 303 W COMMONWEALTH AVE
FULLERTON, CA 92832
Information required to complete this Schedule, if not shown above, will be shown in the Declarations.
A. Section II — Who Is An Insured is amended to
include as an additional insured the person( s) or
organization( s) shown in the Schedule, but only with
respect to liability for " bodily injury", " property
damage" or " personal and advertising injury"
caused, in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your
behalf;
in the performance of your ongoing operations for
the additional insured( s) at the location( s)
designated above.
However:
1. The insurance afforded to such additional
insured only applies to the extent permitted by
law; and
2. If coverage provided to the additional insured is
required by a contract or agreement, the
insurance afforded to such additional insured will
not be broader than that which you are required
by the contract or agreement to provide for such
additional insured.
B. With respect to the insurance afforded to these
additional insureds, the following additional
exclusions apply:
This insurance does not apply to " bodily injury" or
property damage" occurring after:
1. All work, including materials, parts or equipment
furnished in connection with such work, on the
project ( other than service, maintenance or
repairs) to be performed by or on behalf of the
additional insured( s) at the location of the
covered operations has been completed; or
2. That portion of " your work" out of which the injury or damage arises has been put to its intended
use by any person or organization other than
another contractor or subcontractor engaged in
performing operations for a principal as a part of
the same project.
CG 20 10 04 13 © Insurance Services Office, Inc., 2012 Page 1 of 2 C. With respect to the insurance afforded to these
additional insureds, the following is added to
Section III — Limits Of Insurance:
If coverage provided to the additional insured is
required by a contract or agreement, the most we
will pay on behalf of the additional insured is the
amount of insurance:
1. Required by the contract or agreement; or
2. Available under the applicable Limits of
Insurance shown in the Declarations;
whichever is less.
This endorsement shall not increase the applicable
Limits of Insurance shown in the Declarations.
3) Any manager, if you or the additional
insured is a limited liability company;
4) Any " executive officer" or insurance
manager, if you or the additional insured is
a corporation;
5) Any trustee, if you or the additional
insured is a trust; or
6) Any elected or appointed official, if you or
the additional insured is a political
subdivision or public entity.
This duty applies separately to you and any
additional insured.
3. Legal Action Against Us
No person or organization has a right under this
Coverage Part:
a. To join us as a party or otherwise bring us
into a " suit" asking for damages from an
insured; or
b. To sue us on this Coverage Part unless all of
its terms have been fully complied with.
A person or organization may sue us to recover
on an agreed settlement or on a final judgment
against an insured; but we will not be liable for
damages that are not payable under the terms of
this Coverage Part or that are in excess of the
applicable limit of insurance. An agreed
settlement means a settlement and release of
liability signed by us, the insured and the
claimant or the claimant' s legal representative.
4. Other Insurance
If other valid and collectible insurance is
available to the insured for a loss we cover under
Coverages A or B of this Coverage Part, our
obligations are limited as follows:
a. Primary Insurance
This insurance is primary except when b.
below applies. If other insurance is also
primary, we will share with all that other
insurance by the method described in c.
below.
b. Excess Insurance
This insurance is excess over any of the other
insurance, whether primary, excess,
contingent or on any other basis:
1) Your Work
That is Fire, Extended Coverage, Builder' s
Risk, Installation Risk or similar coverage
for " your work';
2) Premises Rented To You
That is fire, lightning or explosion
insurance for premises rented to you or
temporarily occupied by you with
permission of the owner;
3) Tenant Liability
That is insurance purchased by you to
cover your liability as a tenant for
property damage" to premises rented to
you or temporarily occupied by you with
permission of the owner;
4) Aircraft, Auto Or Watercraft
If the loss arises out of the maintenance or
use of aircraft, " autos" or watercraft to the
extent not subject to Exclusion g. of
Section I - Coverage A - Bodily Injury And
Property Damage Liability;
5) Property Damage To Borrowed
Equipment Or Use Of Elevators
If the loss arises out of " property damage"
to borrowed equipment or the use of
elevators to the extent not subject to
Exclusion j. of Section I - Coverage A -
Bodily Injury And Property Damage
Liability;
6) When You Are Added As An Additional
Insured To Other Insurance
Any other insurance available to you
covering liability for damages arising out
of the premises or operations, or products
and completed operations, for which you
have been added as an additional insured
by that insurance; or
7) When You Add Others As An
Additional Insured To This Insurance
Any other insurance available to an
additional insured.
However, the following provisions apply to
other insurance available to any person or
organization who is an additional insured
under this coverage part.
a) Primary Insurance When Required
By Contract
This insurance is primary if you have
agreed in a written contract or written
agreement that this insurance be
primary. If other insurance is also
primary, we will share with all that
other insurance by the method
described in c. below.
b) Primary And Non -Contributory To
Other Insurance When Required By
Contract
If you have agreed in a written
contract, written agreement, or permit
that this insurance is primary and non-
contributory with the additional
insured' s own insurance, this insurance
is primary and we will not seek
contribution from that other insurance.
ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
WAIVER OF OUR RIGHT TO RECOVER FROM
OTHERS ENDORSEMENT - CALIFORNIA
Policy Number: 72 WEC BX9113 Endorsement Number:
Effective Date: 03/ 07/ 20 Effective hour is the same as stated on the Information Page of the policy.
Named Insured and Address: GLASS BOX TECHNOLOGY
2855 CAMINO SERBAL
CARLSBAD CA 92009
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. ( This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule.
The additional premium for this endorsement shall be % of the California workers' compensation premium otherwise due on such remuneration.
Person or Organization Job Description
The City of Fullerton 303 W Commonwealth Ave Fullerton, CA 92832 Countersigned by
Authorized Representative
Form WC 04 03 06 ( 1) Printed in U. S. A.
Process Date: 01/ 27/ 20 Policy Expiration Date: 03/07/21