•
AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into this 3RD day of JuNE, 2019, by and between the City of Merced, a California Charter Municipal Corporation, whose address of record is 678 West 18th Street, Merced, California 95340, (hereinafter referred to as "City") LABWORKS, LLC., a Wisconsin Limited Liability Company, whose address of record is 230 North 1200 East, Suite 202 , Lehi, Utah 84043 (hereinafter referred to as "Consultant").
WHEREAS, City is undertaking a project to utilize a laboratory information management system (LIMS); and,
WHEREAS, Consultant represents that it possesses the professional skills to provide data management and training services in connection with said project.
NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants hereinafter recited, hereby agree as follows:
1. SCOPE OF SERVICES. The Consultant shall furnish the following services: Consultant shall provide the services described in Exhibit "A" attached hereto.
No additional services shall be performed by Consultant unless approved in advance in writing by the City, stating the dollar value of the services, the method of payment, and any adjustment in contract time. All such services are to be coordinated with City and the results of the work shall be monitored by the Director of Public Works or designee. However, the means by which the work is accomplished shall be the sole responsibility of the Consultant.
2. TIME OF PERFORMANCE. All of the work outlined in the Scope of Services shall be completed in accordance with the Schedule outlined in Exhibit "A" attached hereto and incorporated herein by reference. By mutual agreement and written addendum to this Agreement, the City and the Consultant may change the requirements in said Schedule.
3. RESERVED.
4. COMPENSATION. Payment by the City to the Consultant for actual services rendered under this Agreement shall be made upon presentation of an invoice detailing services performed under the Scope of Services, in accordance X: \Agreements WWTP-General\2019\PSA - LABWORKS Re LIMS.docx 1 with the fee schedule set forth in Exhibit "B" attached hereto and incorporated herein by reference. The Consultant agrees to provide all services required under the Scope of Services in Exhibit "A" within the compensation amount set forth in Exhibit "B". For Consultant's services rendered under this Agreement, City shall pay Consultant the not to exceed sum of One Hundred Eight Thousand Four Hundred Dollars ($108,400.00) for service, license, training and implementation, plus an annual cost of Sixteen Thousand Four Hundred Fifty Dollars ($16,450.00) for support services.
5. METHOD OF PAYMENT. Compensation to Consultant shall be paid by the City after submission by Consultant of an invoice delineating the services performed.
6. RECORDS. It is understood and agreed that all plans, studies, specifications, data magnetically or otherwise recorded on computer or computer diskettes, records, files, reports, etc., in possession of the Consultant relating to the matters covered by this Agreement shall be the property of the City, and Consultant hereby agrees to deliver the same to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials including but not limited to those set forth hereinabove, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use.
7. CONSULTANT'S BOOKS AND RECORDS. Consultant shall
maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. Any records or documents required to be maintained shall be made available for inspection, audit and/or copying at any time during regular business hours, upon oral or written request of the City.
8. INDEPENDENT CONTRACTOR. It is expressly understood that Consultant is an independent contractor and that its employees shall not be employees of or have any contractual relationship with the City. Consultant shall be responsible for the payment of all taxes, workers' compensation insurance and unemployment insurance. Should Consultant desire any insurance protection, the Consultant is to acquire same at its expense.
X:\Agreements|WWTP-General\2019\PSA - LABWORKS Re LIMS.docx 2 In the event Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall indemnify, protect, defend, and hold harmless the City for the payment of any employee and/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 of City.
9. INDEMNITY. Consultant shall indemnify, protect, defend (with legal counsel selected by the City, save and hold City, its officers, employees, and agents, harmless from any and all claims or causes of action for death or injury to persons, or damage to property resulting from intentional or negligent acts, errors, or omissions of Consultant or Consultant's officers, employees, volunteers, and agents during performance of this Agreement, or from any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct, negligent acts, or omissions of Consultant or its employees, subcontractors, or agents, or by the quality or character of Consultant's work, or resulting from the negligence of the City, its officers, employees, volunteers and agents, except for loss caused by the sole negligence or willful misconduct of the City or its officers, employees, volunteers or agents. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall survive the termination of this Agreement and shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration.
10. INSURANCE. During the term of this Agreement, Consultant shall maintain in full force and effect at its own cost and expense, the following insurance coverage:
a. Workers' Compensation Insurance. Full workers' compensation insurance shall be provided with a limit of at least One Hundred Thousand Dollars ($100,000) for any one person and as required by law, including Employer's Liability limits of $1,000,000.00 per accident. The policy shall be endorsed to waive the insurer's subrogation rights against the City.
X: \Agreements|WWTP-General\2019\PSA - LABWORKS Re LIMS.docx 3 General Liability.
(i) Consultant shall obtain and keep in full force and effect general liability coverage at least as broad as ISO commercial general liability coverage occurrence Form CG 0001.
(ii) Consultant shall maintain limits of no less than One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage.
(ili) The City, its officers, employees, volunteers and agents are to be named as additional insureds under the policy, as respects liability arising out of work or operations performed by or on behalf of the Consultant.
(iv) The policy shall stipulate that this insurance will operate as primary insurance for work performed by Consultant and its sub-contractors, and that any other insurance or self insurance maintained by City or other named insureds shall be excess and non-contributory.
(v) Consultant shall maintain its commercial general liability coverage for three (3) years after completion of the work and shall add an additional insured endorsement form acceptable to the City naming the City of Merced, its officers, employees, agents and volunteers for each year thereafter for at least three (3) years after completion of the work. Copies of the annual renewal and additional insured endorsement form shall be sent to the City within thirty (30) days of the annual renewal. c. Automobile Insurance.
(i) Consultant shall obtain and keep in full force and effect an automobile policy of at least One Million Dollars ($1,000,000) per accident for bodily injury and property damage.
(ii) The City, its officers, employees, volunteers and agents are to be named as additional insureds under the policy, as respects automobiles owned, leased, hired or borrowed by the
Consultant.
X: \Agreements|WWTP-General\2019\PSA - LABWORKS Re LIMS.docx 4 (iii) The policy shall stipulate that this insurance will operate as primary insurance for work performed by Consultant and its sub-contractors, and that any other insurance or self insurance maintained by City or other named insureds shall be excess and non-contributory.
d. Professional Liability Insurance. Consultant shall carry professional liability insurance appropriate to Consultant's profession in the minimum amount of One Million Dollars ($1,000,000). Architects and engineers' coverage is to be endorsed to include contractual liability.
e. Qualifications of Insurer. The insurance shall be provided by an acceptable insurance provider, as determined by City, which satisfies all of the following minimum requirements:
(i) An insurance carrier admitted to do business in California and maintaining an agent for service of process within this State; and,
(ii) An insurance carrier with a current A.M. Best Rating of A: VII or better (except for workers' compensation provided through the California State Compensation Fund).
f. Certificate of Insurance. Consultant shall complete and file with the City prior to engaging in any operation or activity set forth in this Agreement, certificates of insurance evidencing coverage as set forth above and which shall provide that no cancellation or expiration by the insurance company will be made during the term of this Agreement, without thirty (30) days written notice to City prior to the effective date of such cancellation—including cancellation for nonpayment of premium.
g. Notwithstanding any language in this Agreement to the contrary, Consultant shall be entitled to be paid pursuant to the terms of this Agreement until Consultant has obtained the insurance required by this Section 10 and provided documentation of said insurance to the City. In addition to any other remedies City may have, City reserves the right to withhold payment if Consultant's insurance policies are not current.
X: \Agreements| WWTP-General\2019\PSA - LABWORKS Re LIMS.docx 5 11. ASSIGNABILITY OF AGREEMENT. It is understood and agreed that this Agreement contemplates personal performance by the Consultant and is based upon a determination of its unique personal competence and experience and upon its specialized personal knowledge. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of the City.
12. TERMINATION FOR CONVENIENCE OF CITY. The City may
terminate this Agreement any time by mailing a notice in writing to Consultant that the Agreement is terminated. Said Agreement shall then be deemed terminated, and no further work shall be performed by Consultant. If the Agreement is so terminated, the Consultant shall be paid for that percentage of the phase of work actually completed, based on a pro rata portion of the compensation for said phase satisfactorily completed at the time the notice of termination is received.
13. CONFORMANCE TO APPLICABLE LAWS. Consultant shall
comply with its standard of care regarding all applicable Federal, State, and municipal laws, rules and ordinances. No discrimination shall be made by Consultant in the employment of persons to work under this contract because of race, color, national origin, ancestry, disability, sex or religion of such person.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act (8 U.S.C.A. 1101 et seq.), as amended; and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any agency or instrumentality of the federal or state government, including the courts, impose sanctions against the City for such use of unauthorized aliens, Consultant hereby agrees to, and shall, reimburse City for the cost of all such sanctions imposed, together with any and all costs, including attorneys' fees, incurred by the City in connection therewith.
14. WAIVER. In the event that either City or Consultant shall at any time or times waive any breach of this Agreement by the other, such waiver shall not constitute a waiver of any other or succeeding breach of this Agreement, whether of the same or any other covenant, condition or obligation. Waiver shall not be deemed effective until and unless signed by the waiving party.
X: Agreements|WWTP-General\2019\PSA - LABWORKS Re LIMS.docx 6 15. INCONSISTENT OR CONFLICTING TERMS IN AGREEMENT
AND EXHIBITS. In the event of any contradiction or inconsistency between any attached documents) or exhibits) incorporated by reference herein and the provisions of the Agreement itself, the terms of the Agreement shall control.
Any exhibit that is attached and incorporated by reference shall be limited to the purposes for which it is attached, as specified in this Agreement. Any contractual terms or conditions contained in such exhibit imposing additional obligations on the City are not binding upon the City unless specifically agreed to in writing, and initialed by the authorized City representative, as to each additional contractual term or condition.
16. AMBIGUITIES. This Agreement has been negotiated at arms' length between persons knowledgeable in the matters dealt with herein. Accordingly, any rule of law, including, but not limited to, Section 1654 of the Civil Code of California, or any other statutes, legal decisions, or common-law principles of similar effect, that would require interpretation of any ambiguities in this Agreement against the party that drafted this Agreement is of no application and is hereby expressly waived.
17. VENUE. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this agreement shall be held exclusively in a state court in the County of Merced.
18. AMENDMENT. This Agreement shall not be amended, modified, or otherwise changed unless in writing and signed by both parties hereto.
19. INTEGRATION. This Agreement constitutes the entire
understanding and agreement of the parties and supersedes all previous and/or contemporaneous understanding or agreement between the parties with respect to all or any part of the subject matter hereof.
20. AUTHORITY TO EXECUTE. The person or persons executing this Agreement on behalf of the parties hereto warrants and represents that he/she/they has/have the authority to execute this Agreement on behalf of their entity and has/have the authority to bind their party to the performance of its obligations hereunder.
21. COUNTERPARTS. This Agreement may be executed in one or more counterparts with each counterpart being deemed an original. No counterpart shall X: \Agreements\WWTP-General\2019\PSA - LABWORKS Re LIMS.docx 7 be deemed to be an original or presumed delivered unless and until the counterparts executed by the other parties hereto are in the physical possession of the party or parties seeking enforcement thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first above written.
CITY OF MERCED
A California Charter Municipal
Corporation
BY: stephani Out, Am
ity Manage
ATTEST:
STEVE CARRIGAN, CITY CLERK
BY:
Assistant/Deputy City Clerk
688,
APPROVED AS TO FORM:
BY: hucha Ce nnhe 4.15-19
City Attorney Date
300940 Port 134606
ACCOUNT DATA:
Unse
BY:
Verified by Finance Offider V 18225
Funds available. ms 414119
RL 4419
553-1108-532-17-00
Year 1 #108,400,00
1l0.450.00
Year 2
110,450.00
Year 3
16.450.00
year 4 16,450.00
Year 5
X: Agreements|WWTP-General|2019 PSA -I ABWORKS Re LIMS.docx Tota) #174,200:00 8
CONSULTANT
LABWORKS, LLC,
A Wisconsin Limited Liability Company
(Signature,
M Lane Franks
(lyped Name)
Its: CEO
(Title)
BY:
(Signature)
(Typed Name)
Its:_
(Title)
Taxpayer I.D. No. 81-0852512
ADDRESS: 230 N. 1200 East, Ste. 200
Lehi, UT 84043
TELEPHONE: (844) 452-2967
FAX:
E-MAIL: LFRANKSeLAPWiRKS. ioin
X: \Agreements|WWTP-General\2019\PSA - LABWORKS Re LIMS.docx Exhosite A
LABWORKS 230 North 1200 East, Suite 202
Lehi, UT 84043
Phone: 844 452-2967
www.labworks.com
- Scope of Services and Timing
Scope of Services:
Labworks LLC (Labworks) will perform the following functions:
1- System set-up and installation
2- Initial System Training for Admin or those designated to help with the configuration 3- System configuration - Labworks will train and show City of Merced resources how to enter data for each of the items below as it is important that Merced resources learn these simple functions.
Labworks will oversee it is done correctly and perform some of the more complicated tasks. The City of Merced will be required to provide the data and definitions that will be entered. Labworks will guide and lead each function. Configuration functions include:
a. Define and enter Sample Point/Location Code
b. Define and enter Analyses
c. Define workflow for each Location Code - Analysis Combination including but not limited Replicates
Il. Validation criteria
ill. Upper and lower limits
iv. Warning Specifications
v. Violation Actions
d. Establish sample schedule
e. Set-up Barcoding
f. Set up Chemical Inventory
4- Install and Test of Instrument interfaces. The quote provided to the City of Merced included up to three instrument interfaces. Additional instruments that need to be integrated will require additional costs ($2,000/instrument)
5- Out of box standard reports. Custom reports requested will require additional costs. 6- Conduct Admin/Super-User Training
7- Conduct End User Training
8- Post Go-Live support
Timing:
It is estimated that the above functions will be completed in 13 days spanning a 60-90 day period. The proposed work effort will be conducted using a series of work sessions that consist of on and off-site meetings. As part of the effort, under the guidance of Labworks resources, The City of Merced will be given tasks to gather data and process information associated with each of the tasks listed above. The project can move as fast or as slow as the City of Merced desires and/or is able to provide the requested information needed to complete each task.
Labworks will work with the City of Merced to determine the desired "Go-Live" date and will work with the City to adjust the Go-Live date as dictated by the city's needs and how the project progresses through the listed tasks.
EXHIBIT A
Labworks, LLC
ULABWORKS 230 North 1200 East, Suite 202
Lehi, UT 84043
Phone: 844 452-2967
www.labworks.com
Hosted Data Security
Hosted Data:
All data hosted by Labworks LLC on behalf of the City of Merced is the property of The City of Merced.
No copies or modifications will be made to the data without the permission of The City of Merced.
All hosted data, copies, or derivatives of the hosted data will remain on servers and services inside the continental United States. If, for any reason the data is planned to be moved, or moved outside of the continental United States, Labworks must notify The City of Merced 90 days prior. Labworks recognizes that if data is moved outside of the continental United States, the contract between The City of Merced and Labworks is considered in breach and is terminated.
Exhibit B
Labworks, LLC
ILABWORKS 230 North 1200 East, Suite 202
Lehi, UT 84043
Phone: 844452-2967
www.labworks.com
• Costs and Payment
Project Costs:
The City of Merced has chosen a "Perpetual License" model that is to be "Hosted" by Labworks.
Labworks has provided the following quote to the City of Merced that covers:
1- Software Licenses for:
a. Five "Concurrent" users
b. Three instrument interfaces
Cost = $67,000
2- Services to Install, configure and train users + travel Cost = $35,000
3- Annual Hosting
Annual Cost = $6,400 for 10 "Named" users
4- Annual Support and Maintenance
Annual Cost = $10,050 - This was discounted 100% for 12 months from the issue of the project PO but will be charged for years 2-N (N = life of software) and may be subject to a maximum 3% annual increase.
VLABWORKS
Discounted Unit Otscounted
Qty Unie of Measure Cont Extended Cost
Software
1 LABWORKS LIMS Base LIMs Suite 1 System 25,000.00 S 23,000.00 2 LABWORKS LINS Foil Concurrent Iser' 5 Consument lianes 4,21x).00 S 21.0020 00 3 Chemicai inventory/TAl Comoliance 1 Sistem 15,00000 s 15.000.00 " Instrument Intertaces 3 Unique instrument 200005) 6,000.00 67,000.00
5 Ances Hosting" 5,10020 s 6,400.00
6 Annual Support and Maintenance' 10,050.00 $
Services
Systers Insidil and configuratio:: a Day 2,000.30 > 20,000.00 System Training 2,000.00 S 6.000.00
26,000.00
9 Travel 6 Trips 1,00.00% .2.000.00
9,000.00
20 Estrmated Total Cost to Implement (TCI) 108,400.00
11 Annual Cost lo Ope-at- 16.4500 0K
12 Five Yr Cos: To Operate 82,250.00
3- Armual support and maintenance is no: charged for the first year, it wil be charged for years 2-N and may be subject to a maximum 3% arnual increase.
1- Annual hosting is for 10 users and icehoes servers, software, ratabase, and syetem armin fictions inching pack-up ant recovery services.
1 EXHIBIT B
CLABWORKS
Payment: As is common for "Perpetual License Agreements" Labworks will issue an invoice ($73,400) for Software Licenses and Hosting at the time a Purchase Order (PO) is issued by The City with payment terms of Net 30. The remaining amount for services and travel will be invoiced upon project "Go-Live". A project PO is required before Labworks resources can begin the project beyond initial project planning and coordination with the City of Merced.
2