PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") is dated _ 2020 ("Effective Date") and is between the City of
Manhattan Beach, a California municipal corporation ('City") and docuLynx Operations, LLC, a Delaware limited liability company ("Consultant"). City and Consultant are sometimes referred to herein as the "Parties", ", and individually as a "Party".
RECITALS
A. City desires to utilize the services of Consultant as an independent contractor to provide micrographic and document scanning services.
B. Consultant represents that it is fully qualified to perform such services by virtue of its experience and the training, education and expertise of its principals and employees.
City desires to retain Consultant and Consultant desires to serve City to perform these services in accordance with the terms and conditions of this Agreement.
The Parties therefore agree as follows:
1. Consultant's Services.
A. Scope of Services. Consultant shall perform the services described in the Scope of Services (the "Services") for document scanning services, attached as Exhibit A. City may request, in writing, changes in the Scope of Services to be performed. Any changes mutually agreed upon by the Parties, and any increase or decrease in compensation, shall be incorporated by written amendments to this Agreement.
B. Party Representatives. For the purposes of this Agreement, the City Representative shall be the City Manager, or such other person designated in writing by the City Manager (the "City Representative"). For the purposes of this Agreement, the Consultant Representative shall be Diane Kipp, Senior Client Executive - Government Accounts (the "Consultant Representative"). The Consultant Representative shall directly manage Consultant's Services under this Agreement. Consultant shall not change the Consultant Representative without City's prior written consent.
C. Time for Performance. Consultant shall commence the Services on the Effective Date and shall perform all Services by the deadline established by the City Representative or, if no deadline is established, with reasonable diligence.
D. Standard of Performance. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City.
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2171848v6.doc City of MB Form
E. Personnel. Consultant has, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of the Services required under this Agreement shall be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such Services.
F. Compliance with Laws. Consultant shall comply with all applicable federal, state and local laws, ordinances, codes, regulations and requirements.
G. Permits and Licenses. Consultant shall obtain and maintain during the Agreement term all necessary licenses, permits and certificates required by law for the provision of Services under this Agreement, including a business license.
2. Term of Agreement. The term of this Agreement shall be from the Effective Date and shall terminate when the project amount set forth in Section 3.A of this Agreement is depleted, unless sooner terminated as provided in Section 12 of this Agreement or extended.
3. Compensation.
A Compensation. As full compensation for Services satisfactorily rendered, City shall pay Consultant at the hourly rates set forth in the Approved Fee Schedule attached hereto as Exhibit B. In no event shall Consultant be paid more than $49,900 (the "Maximum Compensation") for such Services.
B. Expenses. City shall not reimburse Consultant for any expenses.
C. Unauthorized Services and Expenses. City will not pay for any services not specified in the Scope of Services, unless the City Council or the City Representative, if applicable, and the Consultant Representative authorize such services in writing prior to Consultant's performance of those services or incurrence of additional expenses. Any additional services or expenses authorized by the City Council, or (where authorized) the City Manager shall be compensated at the rates set forth in Exhibit B, or, if not specified, at a rate mutually agreed to by the Parties. City shall make payment for additional services and expenses in accordance with Section 4 of this Agreement.
4. Method of Payment.
A. Invoices. Consultant shall submit to City an invoice, on a monthly basis, for the Services performed pursuant to this Agreement. Each invoice shall itemize the Services rendered during the billing period, hourly rates charged, if applicable, and the amount due. City shall review each invoice and notify Consultant in writing within ten Business days of receipt of any disputed invoice amounts.
B. Payment. City shall pay all undisputed invoice amounts within 30 calendar days after receipt up to the Maximum Compensation set forth in Section 3 of this Agreement. City does not pay interest on past due amounts. City shall not withhold federal payroll, state payroll or other taxes, or other similar deductions, from payments made to Consultant. Notwithstanding the preceding sentence, if Consultant is a nonresident of California, City will withhold the amount required by the Franchise Tax Board pursuant to Revenue and Taxation Code Section 18662 and applicable regulations.
C. Audit of Records. Consultant shall make all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement available during Consultant's regular working hours to City for review and audit by City.
5. Independent contractor. Consultant is, and shall at all times remain as to City, a wholly independent contractor. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of City.
6. Information and Documents.
A. Consultant covenants that all data, reports, documents, discussion, or other information (collectively "Data") developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed or released by Consultant without prior written authorization by City. City shall grant such authorization if applicable law requires disclosure. Consultant, its officers, employees, agents, or subcontractors shall not without written authorization from the City Manager or unless requested in writing by the City Attorney, 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.
B. Consultant shall promptly notify City should Consultant, its officers, employees, agents or subcontractors 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 party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the City. City may, but has no obligation to, represent Consultant or be present at any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and to provide City with 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 the response.
C. All Data required to be furnished to City in connection with this Agreement shall become City's property, and City may use all or any portion of the Data submitted by Consultant as City deems appropriate. Upon completion of, or in the event of termination or suspension of this Agreement, all original documents, designs, drawings, maps, models, computer files containing data generated for the Services, surveys, notes, and other documents prepared in the course of providing the Services shall become City's Sole property and may be used, reused or otherwise disposed of by City without Consultant's permission. Consultant may take and retain copies of the written products as desired, but the written products shall not be the subject of a copyright application by Consultant.
D. Consultant's covenants under this Section shall survive the expiration or termination of this Agreement.
Conflicts of Interest. Consultant and its officers, employees, associates and subcontractors, if any, shall comply with all conflict of interest statutes of the State of California applicable to Consultant's Services under this Agreement, including the Political Reform Act (Gov. Code § 81000, et seq.) and Government Code Section 1090.
During the term of this Agreement, Consultant may perform similar Services for other clients, but Consultant and its officers, employees, associates and subcontractors shall not, without the City Representative's prior written approval, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subcontractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute. Consultant shall incorporate a clause substantially similar to this Section into any subcontract that Consultant executes in connection with the performance of this Agreement.
8. Indemnification, Hold Harmless, and Duty to Defend.
A. Indemnities.
To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively "Indemnitees"), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively "Liabilities"), in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, subcontractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees' active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.
Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of the Indemnitees' choice, and shall pay all costs and expenses, including all attorneys' fees and experts' costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by Indemnitees in connection therewith.
Consultant shall pay all required taxes on amounts paid to Consultant under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Consultant shall fully comply with the workers' compensation law regarding Consultant and Consultant's employees. Consultant shall indemnify and hold City harmless from any failure of Consultant to comply with applicable workers' compensation laws. City may 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 subparagraph A.2).
Consultant shall obtain executed indemnity agreements with provisions identical to those in this Section from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. If Consultant fails to obtain such indemnity obligations, Consultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant's subcontractor, its officers, agents, servants, employees, Subcontractors, materialmen, consultants or their officers, agents, servants or employees (or any entity or individual that Consultant's subcontractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees' active or passive negligence, except for Liabilities arising from the sole negligence or willful misconduct of the Indemnitees as determined by court decision or by the agreement of the Parties.
Workers' Compensation Acts not Limiting. Consultant's indemnifications and obligations under this Section, or any other provision of this Agreement, shall not be limited by the provisions of any workers' compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.
C. Insurance Requirements not Limiting. City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The indemnities in this Section shall apply regardless of whether or not any insurance policies are determined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.
D. Survival of Terms. Consultant's indemnifications and obligations under this Section shall survive the expiration or termination of this Agreement.
9. Insurance.
A. Minimum Scope and Limits of Insurance. Consultant shall procure and at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:
1) Commercial General Liability Insurance with a minimum limit of $2,000,000.00 per occurrence for bodily injury, personal injury and property damage and a general aggregate limit of $2,000,000.00 per project or location. If Consultant is a limited liability company, the commercial general liability coverage shall be amended so that Consultant and its managers, affiliates, employees, agents and other persons necessary or incidental to its operation are insureds.
2) Automobile Liability Insurance for any owned, non-owned or hired vehicle used in connection with the performance of this Agreement with a combined single limit of $2,000,000.00 per accident for bodily injury and property damage. If Consultant does not use any owned, non-owned or hired vehicles in the performance of Services under this Agreement, Consultant shall obtain a non-owned auto endorsement to the Commercial General Liability policy required under subparagraph A.1) of this Section.
Workers' Compensation Insurance as required by the State of California and Employer's Liability Insurance with a minimum limit of $1,000,000.00 per accident for bodily injury or disease. If Consultant has no employees while performing Services under this Agreement, workers' compensation policy is not required, but Consultant shall execute a declaration that it has no employees.
Professional Liability/Errors and Omissions Insurance with minimum limits of $2,000,000.00 per claim and in aggregate.
B. Acceptability of Insurers. The insurance policies required under this Section shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VIl or better in the latest edition of the A.M. Best Insurance Rating Guide. Self insurance shall not be considered to comply with the insurance requirements under this Section.
C. Additional Insured. The commercial general and automobile liability policies shall contain an endorsement naming City and its elected and appointed officials, officers, employees, agents and volunteers as additional insureds. This provision shall also apply to any excess/umbrella liability policies.
Primary and Non-Contributing. The insurance policies required under this Section shall apply on a primary non-contributing basis in relation to any other insurance or self-insurance available to City. Any insurance or self-insurance maintained by City, its elected and appointed officials, officers, employees, agents or volunteers, shall be in excess of Consultant's insurance and shall not contribute with it.
E. Consultant's Waiver of Subrogation. The insurance policies required under this Section shall not prohibit Consultant and Consultant's employees, agents or subcontractors from waiving the right of subrogation prior to a loss. Consultant hereby waives all rights of subrogation against City.
F. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. At City's option, Consultant shall either reduce or eliminate the deductibles or self-insured retentions with respect to City, or Consultant shall procure a bond guaranteeing payment of losses and expenses.
G. Cancellations or Modifications to Coverage. Consultant shall not cancel, reduce or otherwise modify the insurance policies required by this Section during the term of this Agreement. The commercial general and automobile liability policies required under this Agreement shall be endorsed to state that should the issuing insurer cancel the policy before the expiration date, the issuing insurer will endeavor to mail 30 days' prior written notice to City. If any insurance policy required under this Section is canceled or reduced in coverage or limits, Consultant shall, within two Business Days of notice from the insurer, phone, fax or notify City via certified mail, return receipt requested, of the cancellation of or changes to the policy.
H. City Remedy for Noncompliance. If Consultant does not maintain the policies of insurance required under this Section in full force and effect during the term of this Agreement, or in the event any of Consultant's policies do not comply with the requirements under this Section, City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may, but has no duty to, take out the necessary insurance and pay, at Consultant's expense, the premium thereon.
Consultant shall promptly reimburse City for any premium paid by City or City may withhold amounts sufficient to pay the premiums from payments due to Consultant.
I. Evidence of Insurance. Prior to the performance of Services under this Agreement, Consultant shall furnish City's Risk Manager with a certificate or certificates of insurance and all original endorsements evidencing and effecting the coverages required under this Section. The endorsements are subject to City's approval. Consultant may provide complete, certified copies of all required insurance policies to City.
Consultant shall maintain current endorsements on file with City's Risk Manager.
Consultant shall provide proof to City's Risk Manager that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Consultant shall furnish such proof at least two weeks prior to the expiration of the coverages.
J. Indemnity Requirements not Limiting. Procurement of insurance by Consultant shall not be construed as a limitation of Consultant's liability or as full performance of Consultant's duty to indemnify City under Section 8 of this Agreement.
K. Broader Coverage/Higher Limits. If Consultant maintains broader coverage and/or higher limits than the minimums required above, City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
L. Subcontractor Insurance Requirements. Consultant shall require each of its subcontractors that perform Services under this Agreement to maintain insurance coverage that meets all of the requirements of this Section.
10. Mutual Cooperation.
A. City's Cooperation. City shall provide Consultant with all pertinent Data, documents and other requested information as is reasonably available for Consultant's proper performance of the Services required under this Agreement.
B. Consultant's Cooperation. In the event any claim or action is brought against City relating to Consultant's performance of Services rendered under this Agreement, Consultant shall render any reasonable assistance that City requires.
11. Records and Inspections. Consultant shall maintain complete and accurate records with respect to time, costs, expenses, receipts, correspondence, and other such information required by City that relate to the performance of the Services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to City, its designees and representatives at reasonable times, and shall allow City to examine and audit the books and records, to make transcripts therefrom as necessary, and to inspect 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 years after receipt of final payment.
12. Termination of Agreement.
A. Right to Terminate. City may terminate this Agreement at any time, at will, for any reason or no reason, after giving written notice to Consultant at least five calendar days before the termination is to be effective. Consultant may terminate this Agreement at any time, at will, for any reason or no reason, after giving written notice to City at least 60 calendar days before the termination is to be effective.
Obligations upon Termination. Consultant shall cease all work under this Agreement on or before the effective date of termination specified in the notice of termination. In the event of City's termination of this Agreement due to no fault or failure of performance by Consultant, City shall pay Consultant based on the percentage of work satisfactorily performed up to the effective date of termination. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the Services required by this Agreement. Consultant shall have no other claim against City by reason of such termination, including any claim for compensation.
13. Force Majeure. Consultant shall not be liable for any failure to perform its obligations under this Agreement if Consultant presents acceptable evidence, in City's sole judgment, that such failure was due to acts of God, embargoes, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, governmental regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond Consultant's reasonable control and not due to any act by Consultant.
14. Default.
A Consultant's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default.
B. In addition to the right to terminate pursuant to Section 12, if the City Manager determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, City shall serve Consultant with written notice of the default. Consultant shall have ten calendar days after service upon it of the notice in which to cure the default by rendering a satisfactory performance. In the event that Consultant fails to cure its default within such period of time, City may, notwithstanding any other provision of this Agreement, terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
15. Notices. Any notice, consent, request, demand, bill, invoice, report or other communication required or permitted under this Agreement shall be in writing and conclusively deemed effective: (a) on personal delivery, (b) on confirmed delivery by courier service during Consultant's and City's regular business hours, or (c) three Business Days after deposit in the United States mail, by first class mail, postage prepaid, and addressed to the Party to be notified as set forth below:
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If to City: If to Consultant:
Attn: Information Technology Attn: Diane Kipp
c/o Leilani Emnace docuLynx Operations, LLC
City of Manhattan Beach 5660 Greenwood Plaza Blvd, Suite 400N 1400 Highland Avenue Greenwood Village, CO 80111
Manhattan Beach, California 90266 Telephone: (714) 580-6728 Telephone: (310) 802-5571 Email: [email protected] Email: [email protected]
With a courtesy copy to:
Quinn M. Barrow, City Attorney
1400 Highland Avenue
Manhattan Beach, California 90266
Telephone: (310) 802-5061
Email: [email protected]
16. Non-Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor or applicant for employment because of race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information, sexual orientation or other basis prohibited by law. Consultant will take affirmative action to ensure that subcontractors and applicants are employed, and that employees are treated during employment, without regard to their race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information or sexual orientation.
17. Prohibition of Assignment and Delegation. Consultant shall not assign any of its rights or delegate any of its duties under this Agreement, either in whole or in part, without City's prior written consent. City's consent to an assignment of rights under this Agreement shall not release Consultant from any of its obligations or alter any of its primary obligations to be performed under this Agreement. Any attempted assignment or delegation in violation of this Section shall be void and of no effect and shall entitle City to terminate this Agreement. As used in this Section, "assignment" and "delegation" means any sale, gift, pledge, hypothecation, encumbrance or other transfer of all or any portion of the rights, obligations, or liabilities in or arising from this Agreement to any person or entity, whether by operation of law or otherwise, and regardless of the legal form of the transaction in which the attempted transfer occurs.
18. No Third Party Beneficiaries Intended. This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
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19. Waiver. No delay or omission to exercise any right, power or remedy accruing to City under this Agreement shall impair any right, power or remedy of City, nor shall it be construed as a waiver of, or consent to, any breach or default. No waiver of any breach, any tailure of a condition, or any right or remedy under this Agreement shall be (1) effective unless it is in writing and signed by the Party making the waiver, (2) deemed to be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy, or (3) deemed to constitute a continuing waiver unless the writing expressly so states.
20. Final Payment Acceptance Constitutes Release. The acceptance by Consultant of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for anything done, furnished or relating to Consultant's work or services. Acceptance of payment shall be any negotiation of City's check or the failure to make a written extra compensation claim within ten calendar days of the receipt of that check. However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, subcontractors and agents for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Consultant, its employees, subcontractors and agents.
21. Corrections. In addition to the above indemnification obligations, Consultant shall correct, at its expense, all errors in the work which may be disclosed during City's review of Consultant's report or plans. Should Consultant fail to make such correction in a reasonably timely manner, such correction may be made by City, and the cost thereof shall be charged to Consultant. In addition to all other available remedies, City may deduct the cost of such correction from any retention amount held by City or may withhold payment otherwise owed Consultant under this Agreement up to the amount of the cost of correction.
22. Non-Appropriation of Funds. Payments to be made to Consultant by City for services performed within the current fiscal year are within the current fiscal budget and within an available, unexhausted fund. In the event that City does not appropriate sutticient tunds for payment of Consultant's services beyond the current fiscal year, this Agreement shall cover payment for Consultant's services only to the conclusion of the last fiscal year in which City appropriates sufficient funds and shall automatically terminate at the conclusion of such fiscal year.
23. Exhibits. Exhibits A and B constitute a part of this Agreement and are incorporated into this Agreement by this reference. If any inconsistency exists or arises between a provision of this Agreement and a provision of any exhibit, or between a provision of this Agreement and a provision of Consultant's proposal, the provisions of this Agreement shall control.
24. Entire Agreement and Modification of Agreement. This Agreement and all exhibits referred to in this Agreement constitute the final, complete and exclusive statement of the terms of the agreement between the Parties pertaining to the subject matter of this Agreement and supersede all other prior or contemporaneous oral or written understandings and agreements of the Parties. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty except those expressly set forth in this Agreement. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by both Parties.
25. Headings. The headings in this Agreement are included solely for convenience of reference and shall not affect the interpretation of any provision of this Agreement or any of the rights or obligations of the Parties to this Agreement.
Word Usage. Unless the context clearly requires otherwise, (a) the words "shall," "will" and "agrees" are mandatory and "may" is permissive; (b) "or" is not exclusive; and (c) "includes" or "including" are not limiting.
27. Time of the Essence. Time is of the essence in respect to all provisions of this Agreement that specify a time for performance; provided, however, that the foregoing shall not be construed to limit or deprive a Party of the benefits of any grace or use period allowed in this Agreement.
28. Business Days. "Business days" means days Manhattan Beach City Hall is open for business.
29. Governing Law and Choice of Forum. This Agreement, and any dispute arising from the relationship between the Parties to this Agreement, shall be governed by and construed in accordance with the laws of the State of California, except that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in interpreting this Agreement. Any dispute that arises under or relates to this Agreement (whether contract, tort or both) shall be resolved in a superior court with geographic jurisdiction over the City of Manhattan Beach.
30. Attorneys' Fees. In any litigation or other proceeding by which a Party seeks to enforce its rights under this Agreement (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party shall be entitled to recover all attorneys' fees, experts' fees, and other costs actually incurred in connection with such litigation or other proceeding, in addition to all other relief to which that Party may be entitled.
31. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable for any reason, the validity of and enforceability of the remaining provisions of this Agreement shall not be affected and continue in full force and effect.
32. Counterparts. This Agreement may be executed in multiple counterparts, all of which shall be deemed an original, and all of which will constitute one and the same instrument.
33. Corporate Authority. Each person executing this Agreement on behalf of his or her Party warrants that he or she is duly authorized to execute this Agreement on behalf of that Party and that by such execution, that Party is formally bound to the provisions of this Agreement.
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The Parties, through their duly authorized representatives are signing this Agreement on the date stated in the introductory clause.
City: Consultant:
City of Manhattan Beach, docuLynx Operations, LLC
a California municipal corporation a Delaware limited liability company By: BY Name:
Name:/Bruce Moe Douglas Phela.
Title: City Manager Title: President
ATTEST:
PROOF OF AUTHORITY TO BIND CONTRACTING
PARTY REQUIRED
By: 2-27-2020
Name: Liza Tamura
Title: City Clerk
APPROVED AS TO FORM:
Zmba
By: _
Name: Quinn M. Barrow
Title: City Attorney
APPROVED AS TO FISCAL CONTENT:
By:
Name: Steve S. Charelian
Title: Finance Director
EXHIBIT A
SCOPE OF SERVICES
Consultant shall pick up, scan, index and return to the City, in the manner set forth herein, documents pertaining to the Community Development department. docuLynx team takes responsibility for the technical configuration of the system, application design, and image capture workflow. The Consultant works with the product manager to obtain customer sample media and understand the customer's technical and detailed requirements.
The docuLynx approach addresses a comprehensive quality assurance program capable of monitoring its performance. The Consultant has developed a multi-level approach to implementing quality control at every level of the scan processes in order to achieve high-quality output.
docuLynx Data Center scanning location is at 10107 Carroll Canyon Road, San Diego, CA 92131.
docuLynx Key Personnel Task Assignments
Prepper - The success of a project starts with properly preparing documents for scanning. As the first step in the process, preppers are assigned the task of performing the manifest verification when boxes are received. Once the verification is completed, the preppers are responsible for preparing documents to be scanned by performing duties such as staple removal, removing documents from folders or binders, inserting bar code sheets for index identification, taping small items to larger pieces of paper, straightening bent corners, unfolding plans, etc. Once documents are scanned, it is the prepper's job to reassemble documents as required.
Scan Operator (Scanner) - The scan operator/scanner performs the conversion of the media, paper or microform, to digital. Each day, at the start of shift and after the lunch break, the scanner will clean the scanner before scanning documents. The scanner is responsible for selecting the correct application to be used for the project before starting to scan. As jobs are scanned the scanner will monitor the output of scanned images to ensure quality. Adjustments will be made to the scanner setting as needed to produce a good quality image.
Quality Control (QC) Operator - docuLynx strives to produce a quality product through rigorous QC processes. Unlike most vendors, docuLynx QC personnel do not perform sampling of documents but performs a 100% QC of all images. The QC operator will review every image looking for clarity, bent corners, skewing, double feeds, etc. If an image fails the quality check, the QC operator will reject the image and send it back for rescan. The QC operator also rotates all documents such that they are top reading and A-1
deletes any blank pages that may have been captured due to bleed-thru or other reasons. A QC person will have performed prep and scanning duties.
Index Operator (Indexer) - In order to locate a scanned image, it is essential to be indexed correctly or the image is lost. The index operator/indexer is responsible for verifying that all bar codes were read correctly and the correct index information is extracted. Depending upon the application, the index operator will also manually index images by visually extracting and typing in the values using indexing tools written by the programmer. The indexer must have fast typing skills, understand documents and be very accurate. An indexer will have been trained in all other facets of the scan process.
Scheduler - The scheduler oversees the incoming and outgoing of all media boxes for scanning and is responsible for making sure proper chain-of-custody procedures are being followed. Upon approval of the particular statement of work, the scheduler will contact the customer to arrange the pick-up of the boxes. The scheduler creates the pick-up ticket (see Chain of Custody) and coordinates with the courier for the pickup.
The scheduler will communicate any exceptions found in the manifest verification back to the customer. The scheduler is responsible for assigning the job-id used to track each delivery and for keeping the inventory database accurate. Upon completion of a job, the scheduler will coordinate with the courier and the City for the return of the documents. If the documents are to be destroyed, the scheduler will arrange for their destruction with the shredding company.
Billing Coordinator - The billing coordinator (BC) captures the metrics for each job as it is processed. As jobs are completed during or at the end of the month, the BC is responsible for summarizing the metrics and entering the billing information into the billing system. After the invoices are created, the BC reviews all invoices to ensure all items were billed correctly. The BC handles any questions regarding billing.
Proof of Concept Testing (POC)
The purpose of the POC is to test the processes and procedures to make sure both parties fully understood the requirements in the same manner. The POC allows the City to see the results of what they are asking and to make sure that it is what they want before the project is fully started. Once the POC has been approved, the full production is started.
The success of past and current document conversion projects for State and Local Government result of the Client and docuLynx establishing a true partnership and collaborative process. The consultative approach provides the flexibility that the City may be looking for in a partner. Beginning with the initial project kick-off meeting our detailed requirements.
Release of Images into OnBase Content Management System A-2
docuLynx understands that documents being imaged are to be imported into a City's OnBase content management system. The Consultant will not be given direct access to the City's IT systems and will work closely with the City's IT group. docuLynx is familiar with the process of working with IT departments who will provide indexing rules, define file /data formats, import requirements and preferred media output types (i.e. CD, DVD, external hard drive, secure FTP site etc.) that must be followed.
DocuLynx Security
Each person within the docuLynx organization from the operations personnel to the corporate executives are committed to continually maintain the confidentiality, integrity, and availability of the customer information and the protection of the company assets from harm. The entire docuLynx enterprise is consistently pressing forward to maintain this commitment.
docuLynx employees assigned to perform duties under this contract will undergo a security screening. Determination of acceptability will be on one of (but not limited to) the following methods:
• Successful completion of a security background check; • Proof of a current "Secret" or "Top Secret" security clearance from a Federal Agency;
• Proof of a background check performed by a State of Local (California) government security staff.
Proof of security checks will be made available to the City upon request. docuLynx is responsible for protecting the City's assets and maintaining their integrity, confidentiality, and availability. We will maintain physical and data protection and control of files at all times. At any time, the City may conduct a formal walkthrough of our facility to validate that our physical security meets the minimum standards for security as described herein.
Chain of Custody
docuLynx will pick up and receive City's documents in containers or boxes. These documents will be inventoried, prepared for imaging and handled in the most cost- effective manner possible (see City Requirements section for more details).
During the requirements gathering phase, it will be determined if a detailed manifest of the content of each box will be provided by the department. docuLynx adheres to a chain-of-custody that starts at the time of pickup. Each pick-up is assigned a unique tracking number (Job-ID).
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When scheduling the pick-up, the scheduler will confirm from the City the expected number of boxes and schedule the time for docuLynx employee to arrive. Upon arrival at the City facility, the Consultant will count the number of boxes received and compare it to the pickup/delivery receipt provided by the scheduler. If there is a variance in the number of boxes, docuLynx will note this on the Pickup & Delivery sheet (PUD).
Upon arrival at the docuLynx facility, the scheduler or designated person will verify the PUD to the number of boxes received and sign-off on the PUD. If there is a discrepancy, it will be immediately noted and the City representative will be contacted.
Once at the Data Center, docuLynx will create the Inactive Records Transfer Slip for the content of each box.
Transportation Security
docuLynx will pick up documents from the City's location and securely drive to the Data Center located in San Diego. All chain-of-custody described above will be followed.
Access to all work areas will be controlled. Only authorized and cleared staff will be permitted in the area where City's documents are stored, scanned or processed. The security and safety control at the San Diego DocuLynx conversion center consists of three major systems. These systems and subsystems are:
a) Access Control is through the use of a proximity badge reader system provided by Johnson Controls. No entry is allowed into the building without an access badge unless accompanied by a docuLynx employee. Once inside the building, access to the scan work area is further limited as it requires an additional level of security to enter as it is separated from the office area by a door controlled by a badge reader.
Only authorized and cleared personnel shall be permitted in the area where City's documents are stored, scanned, and indexed.
b) Intrusion Detection with the use of infra-red motion detection intrusion detection system in key areas, tamper monitors throughout key sensitive inside and outside areas of the facility, and a burglar alarm system at key areas throughout the facility.
Johnson Controls monitors any alarms set off due to forced entry or doors that are left open too long and immediately notify the Consultant staff of any detected intrusion.
c) Fire Suppression System with overhead water sprinkler system (including smoke detectors and sound alarms) in designated areas throughout the facility. docuLynx uses Johnson Controls to monitor the smoke detectors and will notify the fire department immediately if the alarms are activated.
In addition to the DocuLynx overall building security, docuLynx has implemented multilayered and compartmented security measures within our conversion centers to ensure the safety and confidentiality of each and every piece of customer information.
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docuLynx is compliant with the recognized international security standard ISO 17799 and committed to continually maintain the integrity and availability of the City's information and the protection of the company assets from harm.
The docuLynx Data Centers ensure the security and confidentiality of the City's information through the following security measures:
• The docuLynx conversion center is a limited access area; All operational premises are physically secure with electronic or keyless access at all times; Visitors may enter only if escorted by docuLynx personnel; • docuLynx utilizes daily logs to reconcile with master counters on the hardware to ensure only authorized work is processed and all work is recorded on the logs; • All distribution functions are double-checked by shift supervisors to ensure proper distribution;
Janitors and other building support people are only allowed in the scan center under personal escort by a Scan Center employee;
• All trash is moved outside of the center by Scan personnel in order to eliminate the improper disposal of material by the janitorial staff; • docuLynx's conversion center is available to all auditors involved with the City for review and analysis of all security and confidentiality procedures request.
City Requirements
All services rendered by this Contract shall be completed satisfactory and within the time limits as mandated by the City.
• Scanning requirements:
a) 300dpi
b) Black and white with the option to change to color as needed File format:
• Plans in PDF/A
• All other documents in TIFF
• Transmittal to the City (Community Development);
• The City will provide instructions for the submission of the scanned documents - external hard drive, upload to the City's Sharebase, or other means; A-5
• Accuracy of indexing, readability of images and ability to reproduce images - determined by the City (Community Development) through quality control review; • Optical Character Recognition (OCR) is performed on images if required by the City;
• The City must review and accept test samples prior to running production; • Problem identification and request resolution;
• City (Community Development) review and acceptance of required docuLynx documents:
a) Chain of Custody
Note section - if no boxes are returned, the notation will be provided by the City but it may be similar to "Deliver portable hard drive Boxes) No. (include the boxes) identification numbers)" or "Upload to the City's Sharebase Boxes) No. (include the boxes) identification numbers));
Per City's instructions, boxes must be either stored at docuLynx facility or transported to an alternate (City designated) facility until the City completes the Quality Control of the scanned documents; If boxes are not to be returned, the City will provide instructions on destruction, storage, or other shipping destination;
• If boxes are to be destructed, docuLynx must send a dated notice of destruction and list of addresses of all documents destroyed;
b) Sample invoice
Include Job ID matching the pickup Job ID on the chain of custody pick/delivery receipt;
Match the processing counts with the ones on the Audit Report; c) Audit Report - to be emailed at month-end to the City (Community Development);
• Note if any addresses or documents with images too poor to enhance;
• Provide hard copy report/spreadsheet of addresses or documents and # of images and sizes of the scanned plans or documents; the report should be signed by docuLynx quality control or project manager (maybe emailed per City request);
• Report to include also index counts, image counts,
plan/document size counts, and date;
d) Revised scanning Business Rules (applicable only to Community Development) - Plans and Documents:
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• Capture Summary - large shipment apply only to the backlog; after catching up, monthly shipments may drop to 4-6 boxes or as defined by the City (Community Development);
• Doc Separation and ID - spreadsheet description for each box; e) If the City sends a portable hard drive with the shipment:
• docuLynx processes and returns the hard drive;
• The hard drive content needs to be uploaded to the City Onbase document management system, counts confirmed and the data retained on the hard drive until upload is completed with no errors; Capture Configuration Request
• Document separation and identification
• Use the custom barcode separator sheets utilizing the City provided excel spreadsheet for each box that is part of the shipment;
• The City provided excel spreadsheet will include the Box Identification Number (ID) for all the documents contained in the respective box. In addition, the file must have the following indexing fields:
Street Number
Street Name
Unit
APN
Description
6. Issue Date
7. Area
8. Permit #
* If there are columns in shaded grey, those are for internal use only; • Document preparation (City)
• Label the boxes with documents according to the Box(es) No. (include the box(es) identification number(s));
Insert barcode sheets in front of each document type;
•For Community Development documents, there may be inserted document type separator sheets (custom barcode separator sheets) in A-7
front of each group of like documents i.e. Building, Demo, Electrical, Mechanical, Revision, etc.;
• Image enhancements - standard enhancements to be confirmed by the City; • Image quality control - 100% visual inspection and acceptance; • Validation - required index fields to be identified by the City (Community Development);
• Output format
• Place all scanned files at the City designated location i.e. hard drive, Sharebase;
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EXHIBIT B
APPROVED FEE SCHEDULE
Offsite Scanning & Document Services Pricing
Item Description Unit of Measure Price Special Notes
ff Site Scanning B&1
ixed Sizes <11x17 240 DP Per Image $0.035
Off Site Scanning Color
Mixed Sizes <11x17 240 DPI
Add On Price Per Image $0.010
Off Site Scanning Large
Format B&W > 11x17 <
36x48 240 DPI Per Image $0.980
Off Site Scanning Large
Format B&W 36x48 240 DPI Per Image $1.750
Off Site Scanning Large
Format Color Add On Price
240 DPI Per Image $0.100
Indexing (Manual) paper Per Keystroke $0.006
OCR (Optical Character
Recognition) Add On Price Per Page $0.015
Document Preparation Per Hour $20.500
Special Processing Per Hour $20.500
Off Site Scan 16 mm
Microfilm to Digital 240 DPI Per Image $0.019
Off Site Scan 35 mm
Microfilm to Digital 240 DPI Per Image $0.025
Off Site Scan Aperture Cards
240 DPI Per Card $0.45
Off Site Scan Microfiche
(jacketed & non jacketed)
standard sheets 240 DRI Per Image $0.035
DVD Output Per DVD $5.500
External Hard Drive ITB
Encrypted Per Device $100.000
Professional Services Per Hour $150.000
Secure Transportation Per Trip $240.000 plus $1.50/box! ... "
Onsite Scanning & Document Services Pricing
On-Site Set Up Fee One Time $5000-$7500
Providing all document
scanning services while on
On-Site Staff Per Hour/Person $40.00 site.
T&E At cost