(1) The number of days reasonably required to repair or replace the covered "auto". If "loss" is caused by theft, this number of days is added to the number of days it takes to locate the covered "auto" and return it to you. (2) Thirty (30) days.
c. Our payment is limited to the lesser of the following amounts (1) Necessary and actual expenses incurred.
(2) $50 any one day per private passenger "auto";
$100 any one day per truck;
$1,500 any one period per private passenger "auto";
$3,000 any one period per truck; or
Higher limits if shown elsewhere in this policy.
d. This coverage does not apply while there are spare or reserve "autos" available to you for your operations.
e. If "loss" results from the total theft of a covered "auto" of the private passenger type, we will pay under this coverage only that amount of your rental reimbursement expenses which is not already provided for under the Physical Damage Coverage Extension.
2. Extra Expense — Broadened Coverage
We will pay for the expense of returning a stolen covered "auto" to you.
3. Personal Effects Coverage
If you have purchased Comprehensive Coverage on this policy for an "auto" you own and that "auto" is stolen, we will pay, without application of a deductible, up to $500 for "personal effects" stolen from the "auto".
As used in this endorsement, "personal effects" means tangible property that is worn or carried by an "insured". "Personal effects" does not include tools, jewelry, money or securities.
4. Lease Gap
XIC 421 1013
In the event of a total "loss" to a covered "auto" shown in the Declarations, we will pay any unpaid amount due on the lease or loan for a covered "auto", less:
a. The amount paid under the Physical Damage Coverage Section of the policy; and b. Any:
(1) Overdue lease/loan payments at the time of the "loss"; (2) Financial penalties imposed under a lease for excessive use, abnormal wear and tear or high mileage;
(3) Security deposits not returned by the lessor;
(4) Costs for extended warranties, Credit Life Insurance, Health, Accident or Disability Insurance purchases with the loan or lease; and
(5)
Carry-over balances from previous loans or leases.
© 2013 X.L. America, Inc. All Rights Reserved.
May not be copied without permission.
Includes copyrighted material of Insurance Services Office, Inc., with its permission.
5. Glass Repair — Waiver Of Deductible
No deductible applies to glass damage if the glass is repaired rather than replaced.
F. Physical Damage Coverage Extensions
SECTION III — PHYSICAL DAMAGE COVERAGE, A. Coverage, 4. Coverage Extensions is amended by the following:
1. Additional Transportation Expense
Sections a. and b. are amended to provide a limit of $50 per day and a maximum limit of $1,000.
2. Hired Auto Physical Damage
The following section is added:
Any "auto" you lease, hire, rent or borrow is deemed to be a covered "auto" for physical damage coverage. The most we will pay for each covered "auto" is the lesser of:
(1) the actual cash value;
(2) the cost for repair or replacement; or
(3) $50,000, or higher limit if shown on the Declarations for Hired Auto Physical Damage Coverage.
For each covered "auto" a deductible of $100 for Comprehensive Coverage and $1,000 for Collision Coverage will apply.
G. Business Auto Conditions
SECTION IV — BUSINESS AUTO CONDITIONS, A. Loss Conditions is changed by the following:
1. Notice Of Occurrence
Section 2. — Duties In The Event Of Accident, Claim, Suit Or, Loss, a. is changed by adding the following:
If you report an injury to an "employee" to your workers' compensation carrier and if it is subsequently determined that the injury is one to which this insurance may apply, any failure to comply with this condition will be waived if you provide us with the required notice as soon thereafter as practicable after you know or reasonably should have known that this insurance may apply.
2. Waiver Of Subrogation
XIC 421 1013
Section 5. Transfer Of Rights Of Recovery Against Others To Us is changed by adding the following:
However, this Condition does not apply to any person(s) or organization(s) with whom you have a written contract, but only to the extent that subrogation is waived prior to the "accident" or the "loss" under such contract with that person or organization.
© 2013 X.L. America, Inc. All Rights Reserved.
May not be copied without permission.
Includes copyrighted material of Insurance Services Office, Inc., with its permission.
SECTION IV — BUSINESS AUTO CONDITIONS, B. General Conditions is changed by the following:
3. Unintentional Failure To Disclose Hazards
The following condition is added:
Your unintentional failure to disclose all hazards as of the inception date of the policy shall not prejudice any insured with respect to the coverage afforded by this policy.
4. Primary Insurance
Condition 5. Other Insurance is changed by adding the following:
For any covered "auto" this insurance shall apply as primary and not contribute with any other insurance where such requirement is agreed in a written contract executed prior to a "loss".
H. Bodily Injury Redefined
SECTION V — DEFINITIONS, C. "Bodily injury' is replaced by the following:
"Bodily injury" means bodily injury, sickness or disease sustained by a person including mental anguish, mental injury, shock, fright or death resulting from any of these at any time.
Extended Cancellation Condition
COMMON POLICY CONDITIONS (Form IL 00 17), A. Cancellation, 2.b. is replaced by the following:
The greater of sixty (60) days or the time required by any applicable state amendatory endorsement before the effective date of cancellation if we cancel for any other reason.
All other terms and conditions of this policy remain unchanged.
XIC 421 1013
© 2013 X.L. America, Inc. All Rights Reserved.
May not be copied without permission.
Includes copyrighted material of Insurance Services Office, Inc., with its permission.
TO:
VIA:
FROM:
DATE:
CITY COUNCIL
CITY ADMINISTRATOR
DIRECTOR OF FINANCE
MAY 2, 2023
Placentia City Council
AGENDA REPORT
SUBJECT: SOFTWARE AGREEMENT WITH KRONOS SAASHR, INC. FOR A
WORKFORCE MANAGEMENT SYSTEM
FISCAL
IMPACT: EXPENSE: $13,387 One-time implementation fee, $63,250 annual software license fee
BUDGETED: Human Resources 101523-6136
SUMMARY:
The City upgraded their legacy Enterprise Resource Planning (ERP) financial system in July 2022 after delays due to staff turnover spanning multiple fiscal years. The City did not implement a new ERP system, instead choosing to upgrade from an outdated, unsupported version to a more recent version of the software with the same vendor, Central Square. The new version was implemented with the understanding that it would modernize the City's processes, including online timekeeping, workflow for accounts payable and purchasing, an online employee benefit portal and help streamline interactions between human resources and payroll. Unfortunately, these functionalities have not worked as planned and as a result, the City has needed to contract with a third -party vendor to manage day-to-day payroll and Human Resources functions and troubleshoot errors within the Central Square software which arise consistently each pay period.
Staff from both the Finance and Human Resources departments have reviewed demonstrations from multiple timekeeping and human capital management systems and are recommending Kronos (aka UKG) software to enable the City to implement an electronic, web -based timekeeping system including leave and overtime requests, payroll, and a human resources module capable of managing various leaves, recruitment, benefits and training programs.
In accordance with the City's purchasing policy section 10D, staff is proposing to utilize a cooperative agreement competitively solicited through Omnia Partners.
RECOMMENDATION:
It is recommended that the City Council take the following actions:
1. Approve the software agreement with Kronos SaasHR, Inc. for a workforce management system.
1.h.
May 2, 2023
City Council Agenda
May 2, 2023
2. Authorize the City Administrator and/or his designee to execute all the necessary documents in a form approved by the City Attorney.
STRATEGIC PLAN STATEMENT:
This item is consistent with the City Council approved 5 -Year Strategic Goal #8 to Improve City Governance but is not directly related to a specific objective.
DISCUSSION:
The City currently relies on outdated, paper based processes for payroll and human resources functions including employee timecards, overtime and leave requests, employee benefit and leave management, withholding changes as well as coordination of mandated citywide training. These processes are time-consuming, vulnerable to human error and are challenging to coordinate due to the complexity of work schedules, particularly for public safety employees.
The City's current Enterprise Resource Planning (ERP) system, Finance Enterprise, is currently used to process payroll and maintain employee records. However, this system does not have the capability for workflow for approvals of changes, allow employees to enter timecards electronically, make changes to their records such as address or withholding changes or view W2 or past paystubs online. In addition, Finance Enterprise is difficult to extract data from, is not user- friendly and consistently produces errors, particularly in payroll resulting in the need for the City to contract with a third -party consultant to make basic changes to the system such as the creation of new payroll codes or formatting reports to streamline reporting to outside agencies such as CaIPERS. This additional contract cost, in addition to the annual five (5%) increase in license fees for Finance Enterprise plus a one-time "inflation" charge of five (5%) — ten percent total for FY23/24- led to the City exploring options for a cost-effective system that would enable the City to achieve the level of modernity and efficiency the City is striving for.
Over recent months, Finance and Human Resources staff reviewed different software products for online timekeeping, payroll and human resources functions. Both teams agreed that UKG (formerly Kronos) would be the best tool for the City to modernize operations, save significant staff time and reduce the potential for human error. The UKG system offers many valuable features including the capability:
• For employees to submit and approve timecards electronically via app or web -based portal. • For employees to submit and approve leave and overtime requests electronically. • To process payroll in the UKG system with seamless integration of timekeeping data. • Allow employees to review pay stubs and W2 information through an employee portal. • Allow employees to modify personal information such as address changes, W4 adjustments and direct deposit changes directly through an employee portal. • Allow Human Resources to accurately track various leaves such as FMLA, Workers' Comp, long and short-term disability, etc. including ability for employees to upload letters from doctors and other correspondence.
• Allow employees to select benefits during open enrollment. • Allow Human Resources to manage training and recruitment programs more effectively.
City Council Agenda
May 2, 2023
Staff is recommending the procurement of the UKG Ready program through the OMNIA Cooperative Contract for timekeeping, payroll and human resources operations. Implementation of the software can take up to 120 days, with UKG providing technical support and expertise to implement the system and train City staff.
Once implementation is complete, Staff is also recommending the City issue an RFP for a new ERP system for financials only that would enable the city to modernize, implement workflows, reduce reliance on paper processes and take advantage of improved technology. Once a vendor is selected, it will take up to one-two years to implement the new system which would include cleaning data, migrating 2-3 years of historical data from the old system to the new, possibly rewriting the chart of accounts and training Staff on the new system. The schedule will be determined by availability of funding as well as the availability of Staff dedicated to the project and will be presented to City Council once funding is identified and a vendor has been selected.
Prepared by: Reviewed and approved:
Jenn(fer Lampman
Director of Finance
Reviewed 7d -op -proved:
Darin X rrula
City Administrator
Sek.tik
Ia Burnett
Director of Human Re urces
Attachments:
1. Software agreement with Kronos SaasHR, Inc.
2. Master Agreement with Cobb County Board of Commissioners
uKG
Quote#: Q-156295
Expires: 24 May, 2023
Sales Executive: David Yacoubian
Bill To Contact:
Bill To: CITY OF PLACENTIA
401 E CHAPMAN AVE
PLACENTIA, CA 92870-6101 USA
Currency: USD
Customer PO Number:
Solution ID: 6172218
Term: Co -Term
Billing Start Date: 90 Days from Execution of Order Form Order Notes:
ORDER FORM
Order Type: Quote
Date: 17 Apr, 2023
Ship To Contact:
Ship To: CITY OF PLACENTIA
401 E CHAPMAN AVE
PLACENTIA, CA 92870-6101 USA
Ship to Phone:
Ship to Mobile:
Contact: Jennifer Lampman
Email: [email protected]
Shipping Terms: Shipping Point
Ship Method: FedEx Ground
Freight Term: Prepay & Add
Renewal Term: 12 months
Payment Terms: Net 30 Days
Quote#: Q-156295
The Professional Services Engagement Overview attached to this Order Form is a summary for the implementation services to be provided by UKG for the UKG Ready Setup Fees set forth on this Order Form.
This order entered into between the Customer and Kronos SaaShr, Inc. (a UKG company) is subject to the terms and conditions of the Master Agreement Reference #18221 dated March 18th, 2019 between the Lead Agency (acting as "Owner") and Kronos SaaShr, Inc. (as the "Contractor"), as amended (collectively referred to as the "US Communities Agreement #18221"). The Attachment 1 is included with this Order Form. Customer agrees that additional fees may be invoiced and owed if Customer incurs fees as outlined in https://www.ukg.com/ukg-payroll-services-miscellaneous-pricing-schedule-August2019 ("Attachment 2").
Telestaff integration is included within the one time setup fees listed below.
SaaS Services
Billing Frequency: Monthly in Arrears
Product Name Quantity PEPM Monthly Price
UKG READY TIME
UKG READY ACCRUALS MANAGER
UKG READY LEAVE
uKG
255
255
255
USD 3.78
USD 0.63
USD 0.95
USD 963.90
USD 160.65
USD 242.25
Kronos SaaShr, Inc., A LIKG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
Quote#: Q-156295
Product Name Quantity PEPM Monthly Price
UKG READY HR
UKG READY BENEFITS
UKG READY PAYROLL
UKG READY ACA MANAGER
UKG READY COMPENSATION
UKG READY PERFORMANCE
UKG READY ATTESTATION
UKG READY RECRUITING
UKG READY INTEGRATION HUB
UKG READY PAYROLL SERVICES
Total Price
One Time Setup Fee
Billing Frequency: Billed 100% upon signature of the order form 255
255
255
255
255
255
255
255
1 255
USD 3.78
USD 3.47
USD 3.78
USD 0.32
USD 0.63
USD 0.63
USD 0.32
USD 0.63
USD 0.00
USD 1.75
USD 963.90
USD 884.85
USD 963.90
USD 81.60
USD 160.65
USD 160.65
USD 81.60
USD 160.65
USD 0.00
USD 446.25
USD 5,270.85
Item
Total Price
IOne Time Setup Fees
Optional Services
Billing Frequency: Billed 100% upon signature of the order form USD 13,387.50 I
Item
Total Price
UKG Ready Other Services Fee
Monthly Total
Quote Summary
USD 0.00
USD 0.00
Item
Total Price
IMinimum Monthly SaaS Service & Equipment Rental Fee
USD 5,270.85
Item
Total Price
IMinimum Annual SaaS Service & Equipment Rental Fee
USD 63,250.20
Item
Total Price
ITotal One Time Fees
uKG
USD 13,387.50
Kronos SaaShr, Inc., A LIKG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
Quote#: Q-156295
CITY OF PLACENTIA Kronos SaaShr, Inc.
Signature: Signature:
Name: Name:
Title: Title:
Effective Date: Effective Date:
Invoice amount will reflect deposit received. All professional services are billed as delivered with payment due, in accordance with the Payment Term set out in this Order Form. Unless otherwise indicated above, this order is subject to the relevant Kronos Terms and Conditions executed between the parties. THIS ORDER IS SUBJECT TO APPLICABLE TAXES. THE ACTUAL TAX AMOUNT TO BE PAID BY CUSTOMER WILL BE SHOWN ON CUSTOMER'S INVOICE. Shipping and handling charges will be reflected on the final invoice. The Monthly Price on this Order Form has been rounded to two decimal places for display purposes. As many as eight decimal places may be present in the actual price. Due to the rounding calculations, the actual price may not display as expected when displayed on your Order Form. Nonetheless, the actual price on your invoice is the true and binding total for this order for purposes of amounts owed for the term. If you are tax exempt; please provide a copy of your "Tax Exempt Certificate" with your signed quote.
uKG
Kronos SaaShr, Inc., A LI KG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
April 17, 2023
EKG
Professional Services Engagement Overview
Purpose and Overview of Engagement
This Professional Services Engagement Overview outlines the scope of services to be provided by Kronos for the Setup Fees indicated on the applicable Order for, to CITY OF PLACENTIA ("Customer") related to the Core Modules, Value - add Modules, and/or Optional Services contained in the document. Our Professional Services engagements are designed to help our Customers successfully implement your Core Modules, aswell as enable you to easily layer Value - add Modules and functionality over time based on your priorities, schedule, and resources.
The Ready® Professional Services engagement described herein is fixed price based and is subject to the terms and conditions governing your Ready — Software as a Service (the "Agreement"). Unless otherwise defined herein, words and expressions defined in the Agreement shall have the same meaning in this Professional Services Engagement Overview.
Your Ready SaaS Solution
CITY OF PLACENTIA and Kronos are deploying the following Ready modules with 1 location(s), 1 EINS and 0 collective bargaining agreements(s).
Core Modules Employees Deployments Estimated Duration
UKG READY TIME 255 1
UKG READY ACCRUALS MANAGER 255 1
UKG READY HR 255 1 120 Days
UKG READY PAYROLL 255 1
UKG READY PAYROLL SERVICES 255 1
Value Add Modules Employees Deployments Estimated Duration I UKG Ready Attestation 255 1 10 Days
UKG Ready ACA Manager 255 1 15 Days
UKG Ready Recruiting 255 1 30 Days
UKG Ready Compensation 255 1 15 Days
UKG Ready Performance Management 255 1 30 Days
UKG Ready Leave 255 1 30 Days
CITY OF PLACENTIA and Kronos Collaboration
A successful Professional Services Engagement will require close collaboration between CITY OF PLACENTIA and Kronos.
The Kronos Professional Services team is equipped to help keep you on target for meeting project milestones and requirements, as well as to assist you in configuring and deploying the Ready solution that meets your organization's specific requirements. Your organizations participation and commitment to the project goals and timeline are critical to help ensure success.
The Estimated Duration stated above is an estimate based upon our experience with our customers and products.
Depending upon the preparation and engagement of your organization, there may be opportunity to accelerate the completion of this engagement. However, the Estimated Duration may be exceeded based on the level of preparedness, UKG
Kronos SaaShr, Inc., A UKG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
bandwidth, and skill level of your available resources. Other examples that may extend the Estimated Duration include:
separate deployments of the solution, having a unionized workforce, and policies that vary across employee groups.
Core Functionality Deliverables
Working in close collaboration, CITY OF PLACENTIA and Kronos will deploy the following core modules and functionality in 120 estimated days from project kick-off. Any quantified deliverables listed herein are based on services deliverables and are not to be considered system constraints.
Ready Core Kronos Delivered Value
UKG Ready Time
UKG Ready Accruals
Manager
UKG
UKG Ready Time deployment gets you started with the ability to accept punches and pay employees accurately through these core components:
• Total Cost Centers
• Profiles
• Timesheet
• Time Off Request
• Pay Calculations
• Pay Prep
• Security
• Points
• Tables
• Rate
• Holiday
• Manager Levels
• Employee Perspective Scorecards
• Workflows
• Time Off Requests
• Timesheet Change Requests
• Schedules
• Daily Rules
• Work Schedule Profiles
• Pay Periods
• Counters
• Time Off Categories
• Reports
• 61 commonly used pre -configured reports are included in the implementation
• Kronos will configure up to 5 additional custom reports using the standard functionality in thesoftware
• Timekeeping Admin Training
UKG Ready Accruals Manager adds comprehensive accrual administration to UKG Ready Time by automatically enforcing your time off policies through:
• Consistent enforcement of policy
• Configurable calculation methods & grants
• Time -Off routing & approval workflow (requires UKG Ready Time) • Time -Off requests at data collection devices
• Automatic updates to schedule & timecard (requires UKG Ready Time) • Visibility to projected balances
• Automatic balance reduction (requires UKG Ready Time or UKG Ready Kronos SaaShr, Inc., A LIKG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
UKG Ready HR
UKG Ready Payroll
UKG
Payroll)
• View time -off calendars for groups
• Mobile access
• One -Time data load using customer -supplied data for current year in a standard Kronos-supplied format
• Configure accruals profiles and assign to employees
Please note that UKG Ready Accruals Manager requires UKG Ready Time.
UKG Ready HR core functionality deployment gets you started by establishing HR as the system of record for employees, one of
the most important foundational components, through:
• Core employee demographics
• Onboarding
• Checklists
• Up to 10 will be configured by the Kronos project team, however the Customer can configure asmany as needed
• Personnel management
• Benefits administration
• Open enrollment / life event
• Work Flows
• Up to 10 will be configured by the Kronos project team, however the Customer can configure asmany as needed
• HR documents & forms
• Up to 10 custom forms will be configured by the Kronos project team, however the Customer canconfigure as many as needed • Incident tracking
• Certification / Credential
• Asset management
• Compliance reporting
• Standard reporting
• One -Time data load using customer -supplied data for current year in a standard Kronos-supplied format
• Interface bundle using customer supplied data in standard file formats • HR Admin Training
UKG Ready Payroll deployment gets you started with the end-to-end payroll process with the ability to calculate gross -to -net, pay employees, make adjustments and export data needed for tax filing (if using a provider other than UKG Ready Payroll Services) through:
• Pay Period Profiles
• Up to two Parallel Payroll Tests
• Company Tax Setup (Jurisdictions)
• Custom Exports/Reports
• Company Deduction Types
• Company Earning Types
• Configure Default Banks
• Workers Comp Types
• Payroll History up to 4 Quarter of Current Year
Kronos SaaShr, Inc., A LI KG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
UKG Ready Payroll Services
UKG Ready Benefits
UKG
• All Payroll Configurations Include:
• Standard Dashboard Widgets
• Global Payroll Settings
• Standard Notifications
• GL Set Up
• In-house manual check printing
• Employee Imports
• Vendor Payments (ACH/Check)
• Payroll Administrative Training
Please note: If UKG Ready Payroll Services module has been purchased, see UKG Ready Payroll Services deliverables in this document. If UKG Ready Payroll Services module has not been purchased, Kronos will configure tax filing options for one of the following vendors — BSI, ADP, Ceridian.
UKG Ready Payroll Services deployment prepares you to manage post payroll calculation functions utilizing the services as indicated in the Payroll Processing Addendum through:
• Election of services
• Confirmation of Funding method
• Testing of Funding bank account
• Tax Account ID, Frequency & Rate*
• Balancing Current Year Payroll Tax Payments
• Collection of Power of Attorney forms for all jurisdictions • Delivery policy configuration
• Shipping account authorization and configuration
• Confirmation Multi -state new hire registration (if applicable) • Master Vendor maintenance
• Payroll Processing Notifications
• Tax Code configuration verification reporting
• UKG Ready Payroll Services New administrator training *Services can only be provided for tax accounts with valid Tax ID provided Please note: It is the responsibility of the customer to provide all requested information including year-to-date payroll andtax payment information, valid tax account ID's for all active tax jurisdictions and requested Power-of-attorney forms.
UKG Ready Benefits deployment gets you started with the end-to-end benefit administration process with the ability to automate carrier connectivity through:
• Employee Self -Service capabilities including open enrollment/life events • Dependent and beneficiary record keeping
• Drag -n -Drop scheduling tools
• One time data load of benefit enrollments, including dependents and beneficiaries
• Benefit maintenance training
• 10 carrier feeds including benefit providers, COBRA connectivity to a TPA, and Financial Connectivity (Each file needed, even to the same vendor, will Kronos SaaShr, Inc., A LIKG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
count as one feed)
• Smart Forms
• Standard Reporting
Please note: UKG Ready Benefits requires UKG Ready HR for benefit plan feeds and UKG Ready Payroll for retirement/401(k) feeds
Value -Add Functionality Deliverables
Once your core functionality is deployed, Kronos will work in close collaboration with CITY OF PLACENTIA to deploy the following Value -Add modules and/or functionality over time in short, agile deployments aligned with your priorities, schedule, and resources:
Value -Add Kronos Delivered Value
UKG Ready Leave
UKG Ready ACA Manager
UKG
UKG Ready Leave adds comprehensive leave administration through:
• Federal & state leave policy enforcement
• Employer -specific leave policy enforcement
• Qualifying questionnaire
• Leave eligibility, type & duration determination
• Leave case routing workflow
• Leave case life cycle monitoring
• Leave hour interface with timesheets
• Employee self-service leave request & history
• Standard reporting & email notification alerts
• One -Time data load using customer -supplied data — current leave cases, leave case entries & entitlementbalances in a standard Kronos-supplied format
Please note: This module provides maximum value when used with UKG Ready Time, UKG Ready Accruals & UKG Ready HR.
UKG Ready ACA Manager provides proactive administration of your ACA compliance strategy across the Ready solution through:
• Configurable time periods & rules
• Set measurement periods & hours threshold
• Calculation of employee ACA full-time (FT) status
• Identify employees ACA standing by month
• Flag part-time (PT) employees approaching ACA FT status • Flag ACA FT employees no longer qualifying
• Calculation of plan's affordability*
• Settings for minimum value plan**
• Year -End government compliant forms
• Standard ACA compliance reporting
One -Time Data load using customer -supplied data — EE hours for look back in a standard Kronos-supplied format
*ACA Function requires UKG Ready Payroll
Kronos SaaShr, Inc., A LIKG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
UKG Ready Compensation
UKG Ready Attestation
UKG Ready Performance
UKG Ready Recruiting
UKG
**ACA Function requires UKG Ready HR
Please note: This module provides maximum value when used with UKG Ready Time, UKG Ready HR & UKG Ready Payroll.
UKG Ready Compensation automates the entire compensation management process from defining programs and guidelines through budgeting and modeling to routing proposals for approval through:
• Configurable compensation cycles
• Tie compensation to performance outcomes
• Import/export Excel -based compensation proposals
• Routing & approval workflows
• Complete compensation process visibility
• Budget vs. proposed comparison
Please note: UKG Ready Compensation requires UKG Ready HR.
UKG Ready Attestation module provides documentation proof of compliance for required administration to UKG Ready Time by automatically enforcing your policies through:
• Configurable questions & response choices
• Automated notification & reminders
• Several employee prompts with workflows
• Prompts differ based on attestation prompt
• Work Flows
• Up to 3 will be configured by the Kronos project team, however the Customer can configure asmany as needed
• Functionality for the InTouch Clock vs. the Web may differ • Full Audit Report
Please note: UKG Ready Attestation requires UKG Ready Time.
UKG Ready Performance provides performance management process from defining programs and guidelines through budgeting and modeling to routing proposals for approval through:
• Full Performance Configuration
• Up to 3 review profiles will be configured by the Kronos project team, however the Customer can configure as many as needed
• Performance Development - Customer will be trained on how to setup Goal Categories, Goal Types and howto assign them to Employees. Customer will be responsible for the setup of each development area.
Please note: UKG Ready Performance requires UKG Ready HR.
UKG Ready Recruiting provides proactive administration of your Recruitment strategy across the Ready solution through:
Kronos SaaShr, Inc., A LI KG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
UKG Ready Integration Hub
UKG
• Applicant Configuration
• Job Requisitions
• Work Flows
• Up to 5 will be configured by the Kronos project team, however the Customer can configure asmany as needed
• Applicant Administration
- Checklists
• Up to 5 will be configured by the Kronos project team, however the Customer can configure asmany as needed
• Tracking/recruitment custom forms
• Up to 5 custom forms will be configured by the Kronos project team, however the Customer canconfigure as many as needed • Talent tracking — training, skills, certifications
• Communication and Notification templates
• Up to 5 will be configured by the Kronos project team, however the Customer can configure asmany as needed
• Standard reporting
Please note: UKG Ready Recruiting requires UKG Ready HR.
UKG Ready Integration Hub enables data to flow between Ready and 3rd party applications and/or vendors. If the 3rd party application and/or vendor does not accept the standard Ready formatting and/or methods for automated delivery, a formatted file will be delivered instead. The customer is responsible for providing import files to Kronos in the standard Ready format and utilizing the standard Ready delivery method. Kronos will deliver a standard bundle of up to 5 interfaces as part of this project. Each direction (to/from) any 3rd party system and Kronos is considered a separate interface. Interfaces will be accomplished via standard file Exchange. Customer will work with Kronos and 3rd party vendors to facilitate design and testing. The Method of the file exchange will be determined by UKG Ready Professional Services Delivery Team. Kronos will provide standard Import/Export files using UKG Ready Integration Hub. Customer will work with the 3rd parties and Kronos to provide the data in the Kronos format for imports. Kronos will create a report from standard Ready fields in the 3rd party format to send to the 3rd party system.
The types of interfaces/integrations that can be supplied under this project include:
• UKG Ready Time Interface bundle using customer -supplied data in standard file formats
• UKG Ready Accruals Interface bundle using customer -supplied UKG Ready Scheduler Interface bundle using customer -supplied data in standard file formats
• Employee Availability Import from 3rd party system
• Schedule detail export
UKG Ready HR Interface bundle using customer -supplied data in standard file formats
• Benefit enrollment exports
• Employee deduction election imports
• Employee demographic exports
UKG Ready Payroll Interface bundle using customer -supplied data in standard file formats
Kronos SaaShr, Inc., A LIKG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
• ACH payroll employee direct deposit file exports
• ACH payroll payment for vendors (e.g. 401k, HSA, garnishments, etc.)
• Payroll employee withholding amount exports
• Pension enrollment export (e.g. 401k)
• Pension census export (e.g. 401k
• New hire reporting export
• Positive pay export
• Payroll journal export to G/L, 1 acct structure
• Tax payment & filing Interface
Kronos will use commercially reasonable effort to ensure all integrations/interfaces provide for the vendors below are designed in a manner which they can successfully pass data contained in standard Ready data fields to said 3rd party vendor and/or can accept data from said 3rd party vendor into Ready standard data fields. Below are some examples of interfaces which are typically part of the Integration Hub. Vendors and integration types may vary by customer.
• John Hancock Retirement Planning Service
• Blue Cross Blue Shield of Texas
• HSA Bank
• Discovery Benefits
• Bankers Fidelity
• The Standard
Please note: Non-standard, multi -directional, or API based integrations/interfaces are not included in the scope of this project. Custom Reports that cannot be delivered through the standard software functionality are also not included. If suchintegrations or reports are required, a separate quote will be provided after all requirements and specifications have been received.
Administrator and Super User Training
Included in each Customer's software subscription, Kronos will provide the following training:
Ready Core Training Kronos Delivered Value
Administrator and Super User Training
uKG
Each Customer will have access to:
• Learning Center, Ready's learning management system and training delivery platform, for each user. Learning experiences found within include, but not limited to:
• Interactive self -paced, on -demand modules
• "How to" videos and snippets
• Printable job aids
• Recommended learning plan(s) aligned to each user's roles within Ready
Kronos SaaShr, Inc., A LIKG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
Change Management and User
Adoption Training
Assumptions & Notes
• Online, public instructor -led class(es)
• "Train the Trainer" enablement and materials
• Editable templates and tools to be leveraged by the
administrators to deliver manager and employee training • Manager and employee -focused job aids for common
tasks within Ready
Each Customer will have access to:
• Change management training for the project team on building a change management plan for Customer's organization
• Change management toolkit that includes pre -populated templates and supporting resources to be leveraged to deliver Customer's change management plan
Kronos has used the following assumptions and dependencies in preparing this Professional Services Engagement Overview:
All services will be delivered remotely, unless otherwise stated in the Order Form or this Professional Services Engagement Overview.
o Please note that In the event that Customer requests Kronos to travel to Customer's location during the implementation, Customer agrees to pay any travel expenses, such as airfare, lodging, meals and local transportation, incurred by Kronos.
o Such expenses shall be subject to the then -current standard Kronos travel and expense policies, which Kronos will provide toCustomer upon request.
o Kronos shall bill Customer for such travel expenses and payment thereof shall be due net thirty (30) days from date of invoice.
• The project kick-off date will be determined based on complexity of the implementation and resource availability, and may occur up to 30 days after a Ready Order Form is executed by the Customer. • The customer agrees to accept specific responsibilities as part of this project including:
o Completing all required, Kronos supplied templates used to complete the Discovery process o Physical installation and/or mounting of all time clocks associated with this project. ■ Kronos will complete the configuration of up to 5 clocks and will provide training to the Customer's staff to replicateadditional configurations
■ The Customer will configure any additional clocks unless otherwise agreed upon by both parties o Configuring the Customer's network to allow inbound/outbound communications to and from the clocks, based on specificationsprovided by Kronos
o Providing all required tax and wage history information (when applicable) for the configuration of Tax Filing services
o Providing all required data imports in the approved Kronos format o Providing all required specifications for any exports from Kronos to a 3rd party system • Prior to the start of the configuration build, the Customer will confirm (in writing) the business and technical requirements of the project as part of the Ready Professional Services Discovery process. • Kronos will communicate with Customer's Project Manager, the appointed Point of Contact for Customer on this project. He/she will be responsible for all communications and project management among all Customer parties (staff, vendors, consultants) and for the escalationand resolution of any issues for Customer. uKG
Kronos SaaShr, Inc., A LI KG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
• Customer is responsible for all hardware, software, and services provided by other consultants or third party vendors that may also beinvolved with the project. • Kronos will not be responsible for troubleshooting the Customer's environment such as their operating system, hardware resources,database schema, or any applications and/or hardware not provided by Kronos.
• Change Orders are subject to scope review and may impact the project timeline or cost. If additional work beyond the initial scope of thisProfessional Services Engagement Overview is required as a result of a Change Order, the Customer may be charged.
• During the testing phase, the customer will be responsible for leading testing and providing documentation of testing results back to theKronos implementation team.
Project Delays
Should the need arise to place a project on hold due to issues not controlled by Kronos, Kronos will collaborate with a client to ensure appropriate project hold/delay procedures are executed. Secondly, Kronos reserves the right to execute project hold/delay procedures as a result of, but not limitedto (1) a client not attending or cancelling more than three scheduled meetings or (2) if the client has been unable to contribute required deliverables to milestones to close the project or (3) has become non-responsive after 10 business days. Please note that any project hold and/or delays, whetherapproved or otherwise, will not impact the Fees and Payment Terms of the Agreement unless otherwise agreed to by both parties.
When resuming the project Kronos will follow normal assignment and staffing procedures. This may result in a new or modified project team based on resource availability at the time of re-engagement.
Change Orders
Requests for change to this Professional Services Engagement Overview or the project it covers must be submitted to your Kronos Sales Executive and UKG Ready Consultant in writing.
Any of the following items will be considered Out of Scope and require a Change Order:
• Material changes in the Scope or effort (i.e. # of deployments or EIN's, request of onsite assistance, etc.) • Material changes in the number or type of Deliverables to meet the defined scope of effort (i.e. additional integrations, profiles, etc.)
• Changes to the project resource requirements
• Changes to scheduled dates after acceptance of the Project Plan Kronos will estimate the time and fixed cost needed to implement the change and the impact it may have on the delivery of project covered under thisProfessional Services Engagement Overview. Kronos will perform the requested work once the Change Order has been completed and signed by the Customer.
Completion Criteria
The project covered under this Professional Services Engagement Overview will be considered complete when any one of the following completion criteria is met. Once one of these is met, no further work will be completed. If additional work is required, a Change Order or new Professional ServicesEngagement Overview must be generated.
Completion Criteria:
•The Customer has approved in writing
UKG
Kronos SaaShr, Inc., A LIKG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
•The system has been used to generate, retain, or export data that is used to produce a live pay statement for an active employee
• More than twelve (12) months has passed since the date of signature of the Ready Order Form The Customer may provide approval in writing via email or an alternative agreed upon method. uKG
Kronos SaaShr, Inc., A LIKG Company 3040 Route 22 West, Suite 200 Branchburg, NJ 08.876 +1 800 225 1561
Attachment 1
Covered Entities
Company Name FEIN Address City State Zip
Rev 08082018
COBB COUNTY, GA
Contract #18221
for
Workforce Management Systems and Related Products,
Services and Solutions
with
Kronos SaaShr, Inc.
Effective: March 18, 2019
The following documents comprise the executed contract between the Cobb County, GA, Kronos SaaShr,Inc., effective March 18, 2019:
I. Vendor Master Agreement Reference No. 18221 and
Signature Form
II. Kronos SaaShr, Inc.Terms and Conditions for
Participating Public Agencies
1 Reference Number
1 Reference Depart. Purchasing Department
Owner:
Contractor.
Description:
Terms:
Price:
Billi ng:
Master Agreement
Cobb County Board of Commissioners
100 Cherokee Street
Marietta, GA 30090
Kronos SaaShr, Inc.
3040 Route 22 West, Suite 200
Branchburg, NJ 08876
IReference No. R a \
WORKFORCE MANAGEMENT SYSTEMS AND RELATED PRODUCTS, SERVICES AND SOLUTIONS: The undersigned parties understand and agree to comply with and be bound by the entire contents of Sealed Bid #18-6390 ("the RFP") and the Contractor's Proposal submitted September 27, 2018 which is incorporated herein by reference.
Contractor understands and agrees that insurance required in the Request for Proposals are to be kept current at all times through the length of each term and for ninety (90) days following the completion of each term. Insurance must be renewed and presented to the Owner at the time of each renewal term if Owner chooses to renew. Insurance shall be written by a fir m acceptable to the Owner as specified in the Request for Proposals.
U.S. COMMUNITIES GOVERNMENT PURCHASING ALLIANCE: Contractor agrees to enter into the U.S.
Communities Administration Agreement that is included in the RFP and the memorandum of understanding with U.S.
Communities ("Administration Agreement"). Any Public Agency, as defined in the Administration Agreement. may purchase Products and Services at the prices indicated in the Contractor' s Proposal upon prior registration with U.S. Communities, and in accordance with the terms of the Administration Agreement.
March 18, 2019 to March 17, 2022 with full renewal options per the Request for Proposals. Owner shall exercise renewal options by issuance and delivery to Contractor of a written notice to renew this agreement. Orders executed with public entities in the state of Georgia shall be in compliance with multi-year contract provisions of O.C.G.A. Section 36-60-1 3. The products and services which are subject to this Master Agreement are also covered by the applicable Contractor commercial service or maintenance terms and conditions incorporated as Appendix A. The tern of the Commercial service or maintenance terms and conditions shall be governed by that applicable order and may extend beyond the expiration date of this Master Agreement. In the event of conflicting language between the Terms and Conditions of the Master Agreement, including the RFP, and the terms and conditions contained in Appendix A, the Master Agreement shall prevail.
Prices for services and equipment, if applicable, as stated in the Contractor's proposal For purchases made by Cobb Count y Govemment, all original invoices shall be submitted directly to the Cobb County Finance Department. Invoices shall bill only for items received during the period covered by the invoice and shall clearly identify such items in accordance with invoicing guidelines in the Sealed Bid Proposal. For purchases made by participating public agencies, the Contractor shall comply with each agency' s invoicing and billing requirements outlined on the applicable order. {SIGNATURES ON NEXT PAGE}
a
Page
IN WITNESS, WHEREOF, this Agreement has been executed by Owner and accepted by Contractor to be effective as of the date first above written.
APPROVED
PER MINUTES OF
COBB COUNTY
BOARD OF COMMISSIONERS
Cobb County Board of Commissioners
100 Cherokee Street
Marietta, GA 3
Cobb County... Expect the Best!
Michael H. Boyce, Chairman b
Cobb County Board of Commissioners
3-S -x.0\4
Date
Kronos SaaShr, Inc.
3040 Route 22 West, Suite 200
Bra. • .urg, J 0887
Auth rized Signature 1C)--A-
Title Title
Date I 1
FEDERAL TAX ID NUMBER
'S— 617 el 'S
Approved as to form
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Coun ttomey's Offi
3('1L9
Date
KRONOS TERMS AND CONDITIONS FOR PARTICIPATING PUBLIC AGENCIES ADMINISTERED BY US COMMUNITIES (092018)
KRONOS TERMS
A PARTICIPATING PUBLIC AGENCY ("CUSTOMER"), BY SIGNING AN ORDER FORM OR PURCHASE ORDER WITH KRONOS SAASHR INC., AGREES TO THE APPLICATION OF THESE TERMS AND CONDITIONS FOR ALL PRODUCTS, SERVICES AND OFFERINGS SET FORTH ON SUCH ORDER FORM (OR PURCHASE ORDER) WHICH REFERENCES THESE TERMS AND CONDITIONS.
SECTION A: GENERAL TERMS AND CONDITIONS. This Section apply for all transactions.
SECTION B: KRONOS WORKFORCE READY SAAS TERMS AND CONDITIONS. This Section applies only for Workforce Ready transactions.
SECTION C: PAYROLL PROCESSING SERVICES. This Section applies to the Workforce Payroll Services. 1 SECTION A: GENERAL TERMS AND CONDITIONS
1. APPLICATION OF THESE TERMS
These terms and conditions apply to each order accepted by Kronos SaaShr Inc. ("Kronos") from an eligible Participating Public Agency ("Customer") for all Kronos Equipment, Software, Professional and Educational Services, Support and such other Kronos offerings, as specified on an order form (an "Order").
In addition to the terms set forth in this Section A: General Terms and Condition, the following sections apply for the specific offering referenced:
(I) Section B shall apply to the Workforce Ready Saas Orders; and (ii) Section C shall apply to Workforce Payroll Services.
All orders are subject to the approval of Kronos' corporate office in Lowell, Massachusetts. This Agreement and the Order Form shall supersede the pre-printed terms of any Customer purchase order or other Customer ordering document, and no such Customer pre-printed terms shall apply to the items ordered.
2. APPLICABLE LAWS
This Agreement shall be governed by the state law in which Customer is based, provided however, if such jurisdiction has adopted the Uniform Computer Information Transactions Act (UCITA), or such other similar law, the parties expressly agree to "opt -out" of and not be governed by UCITA or such other similar law. The parties waive the application of the United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of this Agreement.
3. EXPORT
Customer acknowledges that the Equipment and Software may be restricted by the United States Government or by the country in which the Equipment or Software is installed from export to certain countries and certain organizations and individuals, and agrees to comply with such laws.
Customer agrees to comply with all applicable laws of all of the countries in which the Equipment and Software may be used by Customer.
Customer's obligations hereunder shall survive the termination or expiration of the Order Form. Customer must obtain Kronos prior written consent before exporting the Software.
4. CONFIDENTIAL INFORMATION
"Confidential Information" is defined as information that is: i) disclosed between the parties after the date of this Agreement that is considered confidential or proprietary to the disclosing party; and ii) identified as "confidential" at the time of disclosure, or would be reasonably obvious to the receiving party to constitute confidential information because of legends or other markings, by the circumstances of disclosure or the nature of the information itself.
Additionally, Customer acknowledges and agree that the Software (and Software documentation), and the Specifications shall be deemed to be Kronos' Confidential Information and trade secret. Each party shall protect the Confidential Information of the other party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which such party utilizes for its own information of similar character that it does not wish disclosed to the public. Neither party shall disclose to third parties (except the parent company or the wholly owned subsidiaries of the receiving party who have a need to know) the other party's Confidential Information, or use it for any purpose not explicitly set forth herein, without the prior written consent of the other party. Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (a) to any subsidiary or affiliate of such Party, or (b) to any consultants, contractors, and counsel who have a need to know in connection with the Agreement and who are under obligations of non -disclosure agreement at least as stringent as this section 4, or (c) by law (including the applicable public record laws), or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under the Agreement; provided, the receiving party shall, unless legally prohibited, provide the disclosing party with reasonable prior written notice sufficient to permit the disclosing party an opportunity to contest such disclosure. If a party commits, or threatens to commit, a breach of this Section 4, the other party shall have the right to seek injunctive relief from a court of competent jurisdiction. The obligation of confidentiality shall survive for three (3) years after the disclosure of such Confidential Information.
This Agreement imposes no obligation upon either party with respect to the other party's Confidential Information which the receiving party can establish by legally sufficient evidence: (a) was rightfully possessed by the receiving party without an obligation to maintain its confidentiality prior to receipt from the disclosing party, (b) is generally known to the public without violation of this Agreement; (c) is obtained by the receiving party in good faith from a third party having the right to disclose it without an obligation with respect to confidentiality; (d) is independently developed by the receiving party without use of the disclosing party's confidential information, which can be shown by tangible evidence.
5. TAXES
If Customer presents to Kronos a validly issued tax-exempt certificate, or other sufficient evidence of tax exemption, Customer shall not be liable for those taxes for which Customer is exempt. Otherwise, Customer agrees to pay all other applicable duties and customs fees relating to this Agreement , as well as all taxes levied or based on the products, services or other charges hereunder, including federal, state and local sales and excise taxes, and any taxes or amount in lieu thereof paid or payable by Kronos, exclusive of taxes based on Kronos net income or business privilege.
6. TRAVEL EXPENSES
Customer agrees to reimburse Kronos for all pre -approved, reasonable and necessary travel incurred by Kronos in the performance of its obligations under this Agreement, in accordance with the Kronos Travel and Expenses Policies as such mutually agreed policies or as mutually agreed between the parties in the statement of work. Customer further agrees to pay any travel expenses such as airfare, lodging, meals and local transportation, incurred by Kronos in the performance of its obligations under this Agreement provided such expenses comply with the Agreement. Customer will be billed by Kronos for such travel expenses and payment thereof shall be due net 30.
7. GENERAL
(a) The invalidity or illegality of any provision of this Agreement shall not affect the validity of any other provision. The parties intend for the remaining unaffected provisions to remain in full force and effect. (b) Customer shall not assign this Agreement or the license to the Software without the prior written consent of Kronos and any purported assignment, without such consent, shall be void.
(c) Neither Party shall be responsible for any failure to perform or delay in performing any of its obligations under this Agreement (other than a failure to comply with payment obligations) where and to the extent that such failure or delay results from an unforeseeable event beyond a party's reasonable control, including but not limited to, acts of war; acts of nature; earthquake; flood; embargo; riot; sabotage; labor shortage or dispute; 2 changes in government codes, ordinances, laws, rules, regulations or restrictions; failure of the Internet; terrorist acts; failure of data, products or services controlled by any third party, including the providers of communications or network services; utility power failure; material shortages or unavailability or other delay in delivery not resulting from the responsible party's failure to timely place orders therefor, or lack of or delay in transportation (each a "Force Majeure Event").
(d) All notices given under this Agreement shall be in writing and sent postage pre-paid, if to Kronos, to the Kronos address on the Order Form, or if to Customer, to the billing address on the Order Form. (e) The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. (f) The parties agree that the Order signed by both parties and expressly reference this Agreement, which is delivered via fax or electronically delivered via email it shall constitute a valid and enforceable agreement. (g) This Agreement and any information expressly incorporated herein (including information contained in any referenced URL), together with the applicable Order Fomi, constitute the entire agreement between the parties for the products and services described herein and supersede all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the subject matter of this Agreement.
This Agreement may be amended only in writing signed by authorized representatives of both parties. Customer understands and acknowledges that while Kronos may disclose to customers certain confidential information regarding general product development direction, potential future products and/or product enhancements under consideration, Customer is not entitled to any products or product enhancements other than those contained on the Order Form. Customer has not relied on the availability of any future version of the Software or Equipment identified on an Order Form, nor any other future product in executing this Agreement.
(h) Use, duplication, or disclosure by the United States Govemment is subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraph (c)(1)(2) of the Commercial Computer Software Restricted Rights clause at FAR 52.227-19, as applicable. Manufacturer/distributor is Kronos SaaShr Inc., 297 Billerica Road, Chelmsford, MA. (i) The JBoss® Enterprise Middleware components embedded in the Software are subject to the End User License Agreement found at htto:// www.redhat.com/licenses/i boss eula.html.
(j) Customer may pay an invoice by credit card if the amount is not greater than $50,000.00. (k) Kronos agrees to comply with any applicable federal, state and local laws and regulations. (I) Additionally, Kronos agrees to be liable for tangible property damage or personal injury to the extent caused by the negligence or willful misconduct of its employees.
3 SECTION B
KRONOS WORKFORCE READY° - SOFTWARE AS A SERVICE TERMS AND CONDITIONS Customer and Kronos agree that the terms and conditions set forth in this Section B shall apply to the Kronos supply of the commercially available version of the Workforce Ready® SaaS Applications in Kronos' hosting environment, the services related thereto, and the sale or rental of Equipment (if any) specified on a Kronos Order Form. The Applications described on the Order Form shall be delivered by means of Customer's permitted access to the Kronos infrastructure hosting such Applications.
1. DEFINITIONS
"Agreement" means these terms and conditions and the Order Form(s). "Application(s)" or "SaaS Application(s)" means those Kronos software application programs set forth on an Order Form which are made accessible for Customer to use under the terms of this Agreement. "Billing Start Date" means the date the billing of the Monthly Service Fees commences as indicated on the applicable Order Form. The Billing Start Date of the Monthly Service Fees for any Services ordered by Customer after the date of this Agreement which are incremental to Customer's then -existing Services shall be the date the applicable Order Form is executed by Kronos and Customer. "Customer Content" means all content Customer, or others acting on behalf of or through Customer, posts or otherwise inputs into the Services.
"Documentation" means technical publications published by Kronos relating to the use of the Services. "Educational Content" has the meanings ascribed in Section 7.3. "Equipment" means the Kronos equipment purchased or rented by Customer under this Agreement. "Initial Term" means the initial term of the Services as indicated on the Order Form. "Monthly Service Fee(s)" means the monthly fees described in an Order Form. Monthly Service Fees include fees for usage of the Applications, the Services, and Equipment rental, if any. Billing of the Monthly Service Fee(s) commences on the Billing Start Date. "Order Form" means an order form mutually agreed upon by Kronos and Customer setting forth the items ordered by Customer and to be provided by Kronos and the fees to be paid by Customer. "Personally Identifiable Data" means information concerning individually identifiable employees of Customer that is protected against disclosure under applicable law or regulation.
"Renewal Term" means the renewal term of the Services as indicated on the Order Form. "Services" means (i) accessibility to the commercially available version of the Applications by means of access to the password protected customer area of a Kronos website, and all such services, items and offerings accessed by Customer therein, and (ii) the Equipment rented hereunder, if any.
"Supplier" means any contractor, subcontractor or licensor of Kronos providing software, equipment and/or services to Kronos which are incorporated into or otherwise related to the Services. "Term" means the Initial Term and any Renewal Terms thereafter.
2. TERM
2.1 The Services shall commence on the Billing Start Date, and shall continue for the Initial Term or until terminated in accordance with the provisions hereof. At the expiration of the Initial Term and each Renewal Term as applicable, the Services shall automatically renew for additional Renewal Terms until terminated in accordance with the provisions hereof.
2.2 Customer may terminate the Services and this Agreement for convenience upon ninety (90) days prior written notice subject to Customer's payment of the Services performed and Equipment delivered prior to the effective date of termination. Kronos may terminate the Services and this Agreement to be effective at the expiration of the then current Term upon no less than sixty (60) days prior written notice.
2.3 Either party may terminate the Services and the Agreement upon a material breach of the Agreement by the other party if such breach is not cured within fifteen (15) days after receipt of written notice. Notwithstanding the foregoing, Kronos may suspend the Services immediately upon notice in the event of any Customer breach of Sections 4 (Rights to Use), 5 (Acceptable Use), or Section B.4 (Confidential Information).
2.4 In the event that either party becomes insolvent, makes a general assignment for the benefit of creditors, is adjudicated a bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, the other party may request adequate assurances of future performance. Failure to provide adequate assurances, in the requesting party's reasonable discretion, within ten (10) days of delivery of the request shall entitle the requesting party to terminate the Agreement immediately upon written notice to the other party.
2.5 If the Agreement is terminated for any reason:
(a) Customer shall pay Kronos within thirty (30) days of such termination, all fees accrued under this Agreement prior to the effective date of such termination, provided however, if Customer terminates for material breach of the Agreement by Kronos, Kronos shall refund Customer any pre -paid fees for services not delivered by Kronos;
(b) Customer's right to access and use the Applications shall be revoked and be of no further force or effect and return rented Equipment as provided in Section 9.1 below;
4 (c) No more than fifteen (15) days after termination (or upon Customer's written request at any time during the Term), Kronos will provide to Customer, at no charge to Customer, the Customer Content. After such time period, Kronos shall have no further obligation to store or make available the Customer Content and will securely delete any or all Customer Content without liability; (d) Customer agrees to timely return all Kronos-provided materials related to the Services to Kronos at Customer's expense or, alternatively, destroy such materials and provide Kronos with an officer's certification of the destruction thereof; and (e) All provisions in the Agreement, which by their nature are intended to survive termination, shall so survive.
3. FEES AND PAYMENT
3.1 Customer shall pay Kronos the Setup Fees, the Monthly Service Fees and any additional one time, set-up or recurring fees, all as defined on the Order Form. Billing will commence on the Billing Start Date with the Monthly Service Fees to be billed on the frequency set forth on the Order Form ("Billing Frequency"). Unless otherwise indicated on the Order Form, Kronos will bill Customer for all implementation services in advance.
Purchased Equipment will be billed upon shipment of such Equipment. Customer authorizes Kronos to charge the debit card or credit card on file with Kronos in an amount equal to the Monthly Service Fees as all such fees become due under this Agreement. For all other payments and fees due under this Agreement, payment shall be due 30 days following date of invoice unless otherwise indicated on an Order Form. Except as expressly set forth in the Agreement, all amounts paid to Kronos are non-refundable. Customer is responsible for all applicable taxes relating to the goods and services provided by Kronos hereunder (including without limitation GST and/or VAT if applicable), excluding taxes based on Kronos' income or business privilege.
3.2 The Setup Fees shall be invoiced upon execution of the Agreement and shall be due net 30 days following date of invoice. Customer acknowledges that setup fees may be charged to Customer by third parties for Add-on Features. Third party setup and monthly fees shall be set forth on an Order Form . Monthly Service fees shall be based on monthly periods that begin on the Billing Start Date. Monthly Service Fees shall include fees for Equipment rental, if any. Monthly Service Fees for Services added on or before the 15th day of a given month will be charged for that full monthly period and each monthly period of the Term thereafter; Monthly Service Fees for Services added after the 15th day of a given month will begin to accrue as of the 1st day of the following month and will be charged for each monthly period of the Term thereafter. Monthly Service Fees shall be invoiced promptly following the end of the calendar month in which the Monthly Service Fees were accrued. Kronos will monitor Customer's "Usage" of the Services (as defined below) in order to calculate the Usage portion of the Monthly Service Fees to be charged. Usage of the Services, depending on applicable features, components, or services, shall be priced as identified on the Order Form either on a: (a) per month basis; (b) per active employee (herein "Active Employee") per month usage basis; (c) per transaction basis (e.g.: pay statement); or, (d) per access point. For purposes of the Agreement, an employee shall be deemed an Active Employee during any applicable billing period if through the Services: (i) time has been entered for such employee; (ii) records have been included for such employee for the purpose of processing payroll; (iii) records have been included for such employee within an import/export process; (iv) such employee has accessed the Services, regardless of the purpose; (v) benefit time has been accrued for such employee; or (vi) such employee has been marked by Customer as having an "Active" status during the period.
3.3 Customer agrees that except in those circumstances in which Customer is entitled to invoke the termination for cause provision set forth in Section 2.3 above, in consideration of Kronos' delivery of the Services on a variable fee basis, Customer agrees to pay Kronos each month during the Term in which charges accrue no less than the minimum monthly fees ("Minimum Monthly Fees") which shall be calculated by Kronos based the amounts identified on all Order Forms for Customer's Usage of the Services, plus Equipment rental fees, if any. In the event that Customer does not reach the anticipated Usage upon which the Minimum Monthly Fees was based for any given month during the Term, Customer shall remain responsible for paying the Minimum Monthly Fees for that month. If an Order Form or the Agreement is suspended by Kronos for non- payment or otherwise terminated by Kronos for cause, Customer shall remain liable to pay the applicable Minimum Monthly Fees up to and including the last day of the month in which the effective date of termination occurs.
3.4 If any amount owing under this or any other agreement between the parties is thirty (30) or more days overdue, Kronos may, without limiting Kronos' rights or remedies, suspend Services until such amounts are paid in full. Kronos will provide at least seven (7) days' prior written notice that Customer's account is overdue before suspending Services.
3.5 At the latest of (i) one (1) year after the effective date of this Agreement, or (ii) expiration of the Initial Term, and at each annual anniversary of that date thereafter, Kronos may increase the Monthly Service Fee rates in an amount not to exceed four percent (4%). The increased Monthly Service Fees will be reflected in the monthly invoice following the effective date of such increase without additional notice.
4. RIGHTS TO USE
4.1 Subject to the terms and conditions of the Agreement, Kronos hereby grants Customer a limited, revocable, non-exclusive, non -transferable, non -assignable right to use during the Term and for internal business purposes only: a) the Applications and related services, including the Documentation and training materials; and, b) any embedded third party software, libraries, or other components, which form a part of the Services.
The Services contain proprietary trade secret technology of Kronos and its Suppliers. Unauthorized use and/or copying of such technology are prohibited by law, including United States and foreign copyright law. Customer shall not reverse compile, disassemble or otherwise convert the Applications or other software comprising the Services into uncompiled or unassembled code. Customer acknowledges and agrees that the right to use the Services is limited based upon authorized Usage and the amount of the Monthly Service Fees to be paid by Customer. Customer agrees to use only the modules and/or features described on the Order Form. Customer agrees not to use any other modules or features unless Customer has licensed such additional modules or features. Customer may not relicense or sublicense the Services, or otherwise permit use of the Services (including timesharing or networking use) by any third party. Customer may not provide service bureau or other data processing services that make use of the Services without the express prior written consent of Kronos. No license, right, or interest in any Kronos trademark, trade name, or service mark, or those of Kronos' licensors or Suppliers, is granted hereunder. When using and applying the information generated by the Services, Customer is responsible for ensuring that Customer complies with applicable laws and regulations.
4.2 Customer may authorize its third party contractors and consultants to access the Services through Customer's administrative access privileges on an as needed basis, provided Customer: a) abides by its obligations to protect Confidential Information as set forth in this Agreement; b) remains responsible for all such third party usage and compliance with the Agreement; and c) does not provide such access to a competitor of Kronos who provides workforce management services.
4.3 Customer acknowledges and agrees that, as between Customer and Kronos, Kronos retains ownership of all right, title and interest to the Services, all of which are protected by copyright and other intellectual property rights, and that, other than the express rights granted herein and under any other agreement in writing with Customer, Customer shall not obtain or claim any rights in or ownership interest to the Services or any 5 associated intellectual property rights in any of the foregoing. Customer agrees to comply with all copyright and other intellectual property rights notices contained on or in any information obtained or accessed by Customer through the Services.
4.4 Kronos will make updates and upgrades to the Services (tools, utilities, improvements, third party applications, general enhancements) available to Customer at no charge as they are released generally to its customers as part of the Services. Customer agrees to receive those updates automatically as part of the Services. Kronos also may offer new products and/or services to Customer at an additional charge. Customer shall have the option of purchasing such new products and/or services under a separate Order Form.
4.5 Kronos reserves the right to change the Services, in whole or in part, including but not limited to, the Internet based services, technical support options, and other Services -related policies. Customer's continued use of the Services after Kronos posts or otherwise notifies Customer of any changes indicates Customer's agreement to those changes.
5. ACCEPTABLE USE
5.1 Customer shall take all reasonable steps to ensure that no unauthorized persons have access to the Services, and to ensure that no persons authorized to have such access shall take any action that would be in violation of this Agreement.
5.2 Customer represents and warrants to Kronos that Customer has the right to publish and disclose the Customer Content in connection with the Services. Customer represents and warrants to Kronos that the Customer Content: (a) does not infringe or violate any third -party right, including but not limited to intellectual property, privacy, or publicity rights, (b) is not abusive, profane, or offensive to a reasonable person, or, (c) is not hateful or threatening.
5.3 Customer will not (a) use, or allow the use of, the Services in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (b) introduce into the Services any virus or other code or routine intended to disrupt or damage the Services, or alter, damage, delete, retrieve or record information about the Services or its users; (c) excessively overload the Kronos systems used to provide the Services; (d) perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan; (e) use any tool designed to automatically emulate the actions of a human user (e.g., robots); or, (f) otherwise act in a fraudulent, malicious or negligent manner when using the Services.
6. CONNECTIVITY AND ACCESS
Customer acknowledges that Customer shall (a) be responsible for securing, paying for, and maintaining connectivity to the Services (including any and all related hardware, software, third party services and related equipment and components); and (b) provide Kronos and Kronos' representatives with such physical or remote access to Customer's computer and network environment as Kronos deems reasonably necessary in order for Kronos to perform its obligations under the Agreement. Customer will make all necessary arrangements as may be required to provide access to Customer's computer and network environment if necessary for Kronos to perform its obligations under the Agreement. Kronos is hereby (i) granted access to such Customer data to perform its obligations under the Agreement and (ii) authorized to audit the number of Active Employee counts or other transactions that have occurred to measure Usage.
7. IMPLEMENTATION AND SUPPORT
7.1 Implementation. Kronos will configure the Services utilizing scheduled remote resources. Software module configuration will be based on information and work flows obtained from Customer during the discovery portion of the implementation. Customer shall provide Kronos with necessary configuration -related information in a timely manner to ensure that mutually agreed implementation schedules are met. Kronos and Customer's implementation responsibilities are described more specifically in the Services Implementation Guideline set forth at:
http://www . kronos.com/products/workforce-readv/implementation-auidlines.asox
7.2 Standard Support. Kronos will provide telephone support 8:00 a.m. to 5:00 p.m., local time, Monday — Friday. Customers also shall be provided the capability to log questions online via the Kronos Customer Portal.
7.3 Equipment Support. If Equipment is rented in accordance with Section 9.1 below or if Equipment Support Services are purchased for Equipment purchased in accordance with Section 9.2 below, Kronos will provide the following Depot Exchange Support Services to Customer:
(a) Upon the failure of installed Equipment, Customer shall notify Kronos of such failure and Kronos will provide remote fault isolation at the FRU (Field Replacement Unit) or subassembly level and attempt to resolve the problem. Those failures determined by Kronos to be Equipment related shall be dispatched to a Kronos Depot Repair Center, and Customer will be provided with a Return Material Authorization Number (RMA) for the failed Equipment if Customer is to return the failed Equipment to Kronos, as reasonably determined by Kronos. Customer must return the failed Equipment with the supplied RMA number. Hours of operation, locations and other information related to Kronos' Depot Repair Centers are available upon request and are subject to change. Return and repair procedures for failed Equipment shall be provided based on the Depot option - Depot Exchange or Depot Repair - selected by Customer on the applicable Order Form and as specified herein and in Kronos' then -current Support Services Policies.
(b) Kronos will provide a replacement for the failed Equipment at the FRU or subassembly level on an "advanced exchange" basis, utilizing a carrier of Kronos' choice. Replacement Equipment will be shipped the same day, for delivery to Customer's location as further described in the Support Policies. REPLACEMENT EQUIPMENT MAY BE NEW OR RECONDITIONED. Customer shall specify the address to which the Equipment is to be shipped. All shipments will include the Kronos provided RMA designating the applicable Kronos Depot Repair Center, as the recipient. Customer, upon receipt of the replacement Equipment from Kronos, shall package the defective Equipment in the materials provided by Kronos, with the RMA supplied and promptly return failed Equipment directly to Kronos. (c) Equipment support also includes Customer access to Equipment service packs via the Kronos Customer Portal.
7.4 Educational Materials and Content. Customer will have access to certain educational materials and content (the "Educational Content") within the Services. Customer recognizes and agrees that the Educational Content is copyrighted by Kronos. Customer is permitted to make copies of the Educational Content provided in *pdf form solely for Customer's internal training purposes and may not disclose such Educational Content to any third party other than Customer's employees. Customer may not edit, modify, revise, amend, change, alter, customize or vary the Educational Content without the written consent of Kronos, provided that Customer may download and modify contents of Training Kits solely for Customer's internal use
6 8. Customer content
Customer shall own all Customer Content. Kronos acknowledges that all of the Customer Content is deemed to be the Confidential Information of Customer. Notwithstanding the foregoing, Customer grants Kronos permission to combine Customer's business data with that of other customers in a manner that does not identify the Customer or any individual in order to evaluate and improve the services Kronos offers to customers. In addition, Kronos may, but shall have no obligation to, monitor Customer Content from time to time to ensure compliance with the Agreement and applicable law.
9. EQUIPMENT
If Customer purchases or rents Equipment from Kronos, a description of such Equipment (model and quantity), the applicable pricing, and delivery terms shall be listed on the Order Form.
9.1 Rented Equipment. The following terms apply only to Equipment Customer rents from Kronos:
a) Rental Term and Warranty Period. The term of the Equipment rental and the "Warranty Period" for such Equipment shall run coterminously with the Term of the other Services provided under the Agreement. b) Insurance. Customer shall insure the Equipment for an amount equal to the replacement value of the Equipment for loss or damage by fire, theft, and all normal extended coverage at all times. No loss, theft or damage after shipment of the Equipment to Customer shall relieve Customer from Customer's obligations under the Agreement. c) Location/Replacement. Customer shall not make any alterations or remove the Equipment from the place of original installation without Kronos' prior written consent. Kronos shall have the right to enter Customer's premises to inspect the Equipment during normal business hours. Kronos reserves the right, at its sole discretion and at no additional cost to Customer, to replace any Equipment with newer or alternative technology Equipment as long as the replacement Equipment at least provides the same level of functionality as that being replaced.
d) Ownership. All Equipment shall remain the property of Kronos. All Equipment is, and at all times shall remain, separate items of personal property, notwithstanding such Equipment's attachment to other equipment or real property. Customer shall not sell or otherwise encumber the Equipment. Customer shall furnish any assurances, written or otherwise, reasonably requested by Kronos to give full effect to the intent of terms of this paragraph (d).
e) Equipment Support. Kronos shall provide to Customer the Equipment support services described in Section 7. f) Return of Equipment. Upon termination of the Agreement or the applicable Order Form, Customer shall return, within thirty (30) days of the effective date of termination and at Customer's expense, the Equipment subject to this Section 9.1. Equipment will be returned to Kronos in the same condition as and when received, reasonable wear and tear excepted. If Customer fails to return Equipment within this time period, upon receiving an invoice from Kronos, Customer shall pay Kronos the then list price of the unreturned Equipment.
9.2 Purchased Equipment. The following terms apply only to Equipment Customer purchases from Kronos:
a) Ownership and Warranty Period. Title to the Equipment shall pass to Customer upon delivery to the carrier. The "Warranty Period" for the Equipment shall be for a period of ninety (90) days from such delivery (unless otherwise required by law). b) Equipment Support. Kronos shall provide to Customer the Equipment support services described in this Agreement if purchased separately by Customer as indicated on the applicable Order Form. If purchased, Equipment support services have a term of one (1) year commencing upon expiration of the Warranty Period. Equipment support services will be automatically extended for additional one year terms on the anniversary of its commencement date ("Renewal Date"), unless either party has given the other thirty (30) days written notification of its intent not to renew. Kronos may change the annual support charges for Equipment support services effective at the end of the initial one (1) year term or effective on the Renewal Date, by giving Customer at least thirty (30) days prior written notification.
10. SERVICE LEVEL AGREEMENT
Kronos shall: (a) provide basic support for the Services at no additional charge, (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (when it shall give at least 8 hours notice via the Services and shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday, Eastern Time), or (ii) any unavailability caused by circumstances beyond Kronos' reasonable control, including without limitation, acts of nature, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Kronos employees), internet service provider failures or delays, or denial of service attacks, and (iii) provide Services in accordance with applicable laws and government regulations.
11. LIMITED WARRANTY; DISCLAIMERS OF WARRANTY
11.1 Kronos represents and warrants to Customer that the Services, under normal operation as specified in the Documentation and when used as authorized herein, will perform substantially in accordance with such Documentation during the Term.
11.2 Kronos' sole obligation and Customer's sole and exclusive remedy for any breach of the foregoing warranty is limited to Kronos' reasonable commercial efforts to correct the non -conforming Services at no additional charge to Customer. In the event that Kronos is unable to correct material deficiencies in the Services arising during the Warranty Period, after using Kronos' commercially reasonable efforts to do so, Customer shall be entitled to terminate the then remaining Term of the Agreement as Customer's sole and exclusive remedy. Kronos' obligations hereunder for breach of warranty are conditioned upon Customer notifying Kronos of the material breach in writing, and providing Kronos with sufficient evidence of such non -conformity to enable Kronos to reproduce or verify the same.
11.3 Kronos warrants to Customer that each item of Equipment shall be free from defects in materials and workmanship during the Warranty Period.
In the event of a breach of this warranty, Customer's sole and exclusive remedy shall be Kronos' repair or replacement of the deficient Equipment, at Kronos' option, provided that Customer's use, installation and maintenance thereof have conformed to the Documentation for such Equipment.
This warranty is extended to Customer only and shall not apply to any Equipment (or parts thereof) in the event of:
a) damage, defects or malfunctions resulting from misuse, accident, neglect, tampering, (including without limitation modification or replacement of any Kronos components on any boards supplied with the Equipment), unusual physical or electrical stress or causes other than normal and intended use;
b) failure of Customer to provide and maintain a suitable installation environment, as specified in the published specifications for such Equipment; or
c) malfunctions resulting from the use of badges or supplies not approved by Kronos. 7 Except as provided for in this Section 11, Kronos hereby disclaims all warranties, conditions, guaranties and representations relating to the Services, express or implied, oral or in writing, including without limitation the implied warranties of merchantability, fitness for a particular purpose, title and non -infringement, and whether or not arising through a course of dealing. The Services are not guaranteed to be error -free or uninterrupted. Except as specifically provided in this Agreement, Kronos makes no warranties or representations concerning the compatibility of the Services, the SaaS Applications or the equipment nor any results to be achieved therefrom.
12.0 DATA SECURITY
12.1 As part of the Services, Kronos shall provide administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Customer data. Customer acknowledges that such safeguards endeavor to mitigate security incidents, but such incidents may not be mitigated entirely or rendered harmless. Customer should consider any particular Kronos supplied security -related safeguard as just one tool to be used as part of Customer's overall security strategy and not a guarantee of security. Both parties agree to comply with all applicable privacy or data protection statutes, rules, or regulations governing the respective activities of the parties under the Agreement.
12.2 As between Customer and Kronos, all Personally Identifiable Data is Customer's Confidential Information and will remain the property of Customer. Customer represents that to the best of Customer's knowledge such Personally Identifiable Data supplied to Kronos is accurate.
Customer hereby consents to the use, processing or disclosure of Personally Identifiable Data by Kronos and Kronos' Suppliers wherever located only for the purposes described herein and only to the extent such use or processing is necessary for Kronos to carry out Kronos' duties and responsibilities under the Agreement or as required by law.
12.3 Prior to initiation of the Services under the Agreement and on an ongoing basis thereafter, Customer agrees to provide notice to Kronos of any extraordinary privacy or data protection statutes, rules, or regulations which are or become applicable to Customer's industry and which could be imposed on Kronos as a result of provision of the Services. Customer will ensure that: (a) the transfer to Kronos and storage of any Personally Identifiable Data by Kronos or Kronos' Supplier's data center is permitted under applicable data protection laws and regulations; and, (b) Customer will obtain consents from individuals for such transfer and storage to the extent required under applicable laws and regulations.
13. INDEMNIFICATION
13.1 Kronos shall defend Customer and its respective directors, officers, and employees (collectively, the "Customer Indemnified Parties"), from and against any and all notices, charges, claims, proceedings, actions, causes of action and suits, brought by a third party (each a "Claim") alleging that the permitted uses of the Services infringe or misappropriate any United States or Canadian copyright or patent and will indemnify and hold harmless the Customer Indemnified Parties against any liabilities, obligations, costs or expenses (including without limitation reasonable attorneys' fees) actually awarded to a third party as a result of such Claim by a court of applicable jurisdiction or as a result of Kronos' settlement of such a Claim. In the event that a final injunction is obtained against Customer's use of the Services by reason of infringement or misappropriation of such copyright or patent, or if in Kronos' opinion, the Services are likely to become the subject of a successful claim of such infringement or misappropriation, Kronos, at Kronos' option and expense, will use commercially reasonable efforts to (a) procure for Customer the right to continue using the Services as provided in the Agreement, (b) replace or modify the Services so that the Services become non -infringing but remain substantively similar to the affected Services, and if neither (a) or (b) is commercially feasible, to (c) terminate the Agreement and the rights granted hereunder after provision of a refund to Customer of the Monthly Service Fees paid by Customer for the infringing elements of the Services covering the period of their unavailability.
13.2 Kronos shall have no liability to indemnify or defend Customer to the extent the alleged infringement is based on: (a) a modification of the Services by anyone other than Kronos; (b) use of the Services other than in accordance with the Documentation for such Service or as authorized by the Agreement; (c) use of the Services in conjunction with any data, equipment, service or software not provided by Kronos, where the Services would not otherwise itself be infringing or the subject of the claim; or (d) use of the Services by Customer other than in accordance with the terms of the Agreement. Notwithstanding the foregoing, with regard to infringement claims based upon software created or provided by a licensor to Kronos or Suppliers, Kronos' maximum liability will be to assign to Customer Kronos' or Supplier's recovery rights with respect to such infringement claims, provided that Kronos or Kronos' Supplier shall use commercially reasonable efforts at Customer's cost to assist Customer in seeking such recovery from such licensor.
13.3 Customer shall be responsible and liable for all damages and cost of Kronos, its Suppliers and their respective directors, officers, employees, agents and independent contractors (collectively, the "Kronos Indemnified Parties") from and against any and all Claims alleging that: (a) employment-related claims arising out of Customer's configuration of the Services; (b) Customer's modification or combination of the Services with other services, software or equipment not furnished by Kronos, provided that such Customer modification or combination is the cause of such infringement and was not authorized by Kronos; or, (c) a claim that the Customer Content infringes in any manner any intellectual property right of any third party, or any of the Customer Content contains any material or information that is obscene, defamatory, libelous, or slanderous violates any person's right of publicity, privacy or personality, or has otherwise caused or resulted in any tort, injury, damage or harm to any other person.
Customer will have sole control of the defense of any such action and all negotiations for its settlement or compromise.
13.4 The Indemnified Party(ies) shall provide written notice to the indemnifying party promptly after receiving notice of such Claim. If the defense of such Claim is materially prejudiced by a delay in providing such notice, the purported indemnifying party shall be relieved from providing such indemnity to the extent of the delay's impact on the defense. The indemnifying party shall have sole control of the defense of any indemnified Claim and all negotiations for its settlement or compromise, provided that such indemnifying party shall not enter into any settlement which imposes any obligations or restrictions on the applicable Indemnified Parties without the prior written consent of the other party. The Indemnified Parties shall cooperate fully, at the indemnifying party's request and expense, with the indemnifying party in the defense, settlement or compromise of any such action. The indemnified party may retain its own counsel at its own expense, subject to the indemnifying party's rights above.
14. LIMITATION OF LIABILITY
14.1 Except as specifically provided in this Agreement, Kronos and its Suppliers will not be liable for any damages or injuries caused by the use of the Services or by any errors, delays, interruptions in transmission, or failures of the Services.
14.2 except for Kronos' indemnification obligations set forth in Section 13 above, the total aggregate liability of Kronos or Kronos' Suppliers to Customer and/or any third party in connection with the Agreement shall be limited to direct damages proven by Customer, such direct damages not to exceed an amount equal to the total net payments received by Kronos for the services in the Twelve (12) month period immediately preceding the date in which such claim arises.
14.3 Except for Kronos' indemnification obligations set forth in Section 13 above, in no event shall Kronos or Kronos' Suppliers, their respective affiliates, service providers, or agents be liable to Customer or any third party for any incidental, special, punitive, consequential or other indirect damages or for any lost or imputed profits or revenues, lost data or cost of procurement of substitute services resulting from delays, nondeliveries, 8 misdeliveries or services interruption, however caused, arising from or related to the Services or the Agreement, regardless of the legal theory under which such liability is asserted, whether breach of warranty, indemnification, negligence, strict liability or otherwise, and whether liability is asserted in contract, tort or otherwise, and regardless of whether Kronos or Supplier has been advised of the possibility of any such liability, loss or damage.
14.4 EXCEPT WITH RESPECT TO LIABILITY ARISING FROM KRONOS' GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, KRONOS
DISCLAIMS ANY AND ALL LIABILITY, INCLUDING WITHOUT LIMITATION LIABILITY RELATED TO A BREACH OF DATA SECURITY AND
CONFIDENTIALITY OBLIGATIONS, RESULTING FROM ANY EXTERNALLY INTRODUCED HARMFUL PROGRAM (INCLUDING WITHOUT
LIMITATION VIRUSES, TROJAN HORSES, AND WORMS), CUSTOMER'S CONTENT OR APPLICATIONS, THIRD PARTY UNAUTHORIZED ACCESS OF EQUIPMENT, SAAS APPLICATIONS OR SYSTEMS, OR MACHINE ERROR. 9 SECTION C
PAYROLL PROCESSING TERMS AND CONDITIONS
This Payroll Processing terms and condition Section C, and all included exhibits, schedules, attachments or other addenda (the "Section C") is made part of the Kronos Workforce Ready Software -as -a -Service WFR Terms outlined in Section A and B (the "WFR Terms") and governs the provision of the Workforce Payroll Services (the "Payroll Services") Kronos to Customer.
In rendering the Payroll Services, Kronos will use the Workforce Ready software -as -a -service platform (the "WFR Platform"). Attachment 1 sets forth the applicable entities, including Customer itself (collectively the "Covered Entities"), along with each of their EINs and other information, if these Covered Entities are receiving Payroll Services from Kronos. Customer is responsible for ensuring that all Covered Entities are bound by and comply with this Section C. Covered Entities may be added or removed from Attachment 1, by Customer completing and signing the appropriate change form provided by Kronos. Capitalized terms not defined within this Section C are defined in the WFR Terms.
GENERAL TERMS AND CONDITIONS
Article 1. Payroll Services
1.1 Subject to all of the terms and conditions of the WFR Terms and this Section C, Kronos shall provide Customer with the Payroll Services during the Term to the extent set forth on an Order Form. The Payroll Services are provided only in the United States (which includes Puerto Rico, U.S. Virgin Islands, Guam and Marianna) and shall only be provided with respect to Customer's payroll obligations for United States - based employees of Customer and those Covered Entities included in Attachment 1. The following provisions shall apply to the extent the Payroll Service listed below is selected by Customer as indicated in writing on the Order Form or as part of the Kronos Payroll Services (KPS) Services Election Form to be completed by the parties during implementation:
1.1.1 Payroll, Tax and Treasury Payroll Services.
a. Customer agrees that the PayrollServices shall be provided in accordance with the pricing set forth on the Order Form and the responsibilities of Customer and Kronos SaaShr set forth throughout this Agreement. Kronos SaaShr's standard descriptions for certain miscellaneous services, such as W2/1099 filing fees, fees for tax accounts with an "applied for" status, ACH returns, off -cycle payrolls, split wrap (delivery of checks to multiple locations, and preparing/filing of amended returns, is described in the Payroll Services Additional Items attached as Attachment 2 ("Payroll Services Additional Items") and the responsibilities of Customer and Kronos set forth throughout this Section C. b. Customer will submit the payroll information to Kronos in the format and including the information specified by Kronos from time to time not less than two (2) Business Days prior to Customer's scheduled check date. "Business Day" means any day of the year other than (a) a Saturday, Sunday or (b) on day on which banking institutions in any jurisdiction of the banking institution of any applicable Client Entity are closed or (c) a statutory or civic holiday in the United States. Without limitation, Kronos is not responsible for Customer errors, wage and hour violations, wage assignment errors, employment discrimination, or other employment policies that may violate any applicable laws, codes, legislative acts, regulations, ordinances, rules, rules of court, orders or similar, as well as any National Automated Clearing House Association ("NACHA") operating rules ("Applicable Law(s)". The deadline for Customer's submission of payroll is determined by the time zone in which the processing occurs, as follows.
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On the date Customer's payroll is scheduled to be submitted, if Customer payroll processing emanates from the Eastern or Central Time Zone, then the deadline for submission is 12:00 p.m.
Eastern Time; if Client payroll processing emanates from the Mountain or Pacific Time Zone, then the deadline for submission is 1:30 p.m. Eastern Time on the scheduled processing date.
If Customer's payroll is submitted timely, Kronos will initiate a Draw Down Wire not later than 2:30 p.m. Eastern Time, to be settled not later than 4:30 p.m. Eastern Time on the date the payroll is finalized. Late submission by Customer may result in delayed processing of banking and other transaction or additional fees may be imposed, including, without limitation, by the applicable financial institutions and/or as set forth in the Payroll Services Pricing Exhibit.
Customer shall be responsible and liable for any claims, losses or any other liabilities arising from or relating to Customer's late submission of transactions. If Customer has elected for Kronos to provide direct deposit/ACH Payroll Services (if available), Kronos will provide on behalf of Customer electronic money movement and related banking services via its ACH credit facilities at one or more financial institutions in support of the direct deposit of funds into Customer's employee and third -party vendor accounts. Customer agrees to be bound by the then -current NACHA operating rules. "ACH" means the network used for electronic payments and money transfers, Automated Clearing House.
c. Customer authorizes Kronos to prepare and file payroll tax returns and cause the issuance of payments on related tax obligations for Covered Entities and tax jurisdictions. Customer authorizes Kronos via draw down wire transfer to: (a) debit Customer's or as applicable a Client Entity's demand deposit account or accounts at an applicable financial institution to be used in connection with the Payroll Services (the "Customer Account") for all payroll tax obligations and credit a like amount to an account designated by Kronos, which may be held in trust by a third party trustee (the "Payroll Services Accounts") not less than two (2) Business Days prior to Customer's scheduled check date of the applicable payroll under this Section C, which funds shall be held in such Payroll Services Accounts until such time as such funds are due to the appropriate taxing authorities; (b) remit such funds by electronic funds transfer ("EFT") or via check to the appropriate taxing authority; and (c) prepare, sign, and file with the appropriate taxing authorities all returns for such taxes on an ongoing basis. d. Kronos shall not be responsible for the payment of any Customer taxes or the filing of any Customer tax returns prior to the check date of the payroll under this Section C, nor is Kronos responsible in relation to any taxes which Kronos did not collect from Customer (including without limitation, failure to collect due to non -sufficient funds or other funding issues ("NSF")).
Customer should confirm the appropriate federal tax deposits are being paid on behalf of the applicable Client Entity by enrolling in the Electronic Federal Tax Payment System (please visit:
https://www.eftps.gov/eftps) .
e. Customer shall maintain and provide Kronos accurate tax identification numbers, filing frequencies, filing jurisdictions, tax rates, tax types, and employee tax forms to enable Kronos to properly complete all applicable tax returns and payments. If, as an accommodation to Customer and without implying any obligation, Kronos files a tax return containing "Applied For" status, then Customer agrees and acknowledges that it releases Kronos from any and all liability that may arise in connection with such accommodation (including without limitation, penalties and interest).
1.1.2 Additional Payroll Services.
a. Check Printing and Fulfillment Services. - means the printing of employee payroll checks, direct deposit advices and third party checks drawn on Customer's bank account, to distribute same
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to locations/destinations via FedEx or UPS either Next Day Air or Ground, all as directed by Customer. For delivery purposes, Customer shall obtain and provide either a FedEx or UPS account number for use by Kronos for shipping of documents and/or checks. b. ACH Child Support Processing - means the impoundment and remittance of funds for third party payments via ACH for child support payments to the applicable state child support agencies.
c. W2 Filing - means the electronic filing of employee W2 forms with all applicable Federal and State tax jurisdictions. Specific timelines are established for Customer to promptly complete its year end requirements in order for Kronos to fulfill its obligations in a timely manner. This service includes filing of employee W2 information with the SSA, as well as all 50 State and local tax agencies, excluding Puerto Rico, U.S. Virgin Islands, Guam and Marianna. d. 1099 Filing- means the electronic filing of contractor forms with the IRS only. Specific timelines are established for Customer to complete its year end requirements in order for APS to timely fulfill its obligations.
1.1.3 Workforce Ready Platform. Customer acknowledges and agrees that the Payroll Services may only be used in conjunction with the WFR Platform or any other product expressly authorized by Kronos, and hereby authorizes and directs Kronos to interface the WFR Platform with such product for the purpose of providing the Payroll Services. Furthermore, Customer hereby grants Kronos consent to administrative access rights to the WFR Platform for the purpose of fulfilling Kronos' obligations under this Section C.
Article 2. Fees; Billing
Payroll Services shall be considered part of the Services for purposes of Fees and Billing under the WFR Terms. Kronos will invoice the Fees for a particular item or Payroll Service on the Billing Frequency and in accordance with the payment terms and processes indicated on the applicable Order Form and in the WFR Terms and this Section C. Customer agrees payment for the Fees will be made by direct debit facility to be established by Kronos, and that Customer will complete all necessary and reasonable forms and documents to establish such direct debit payments. Should Customer cancel direct debit payments during the Term, Kronos reserves the right to suspend the Payroll Services without notice and to terminate the WFR Terms if not reinstated within ten (10) business days of Kronos' written notice to Customer. The Fees set forth in Attachment 2 are subject to change after the Initial Term (as defined in the WFR Terms) upon thirty (30) days written notice from Kronos to Customer.
Article 3. Customer Content
3.1.1 Kronos will not be responsible for storing copies of Customer Content when Kronos no longer requires such information to provide Payroll Services to Customer, and Customer shall be responsible for retaining its own tax and payroll records according to the schedules established by governmental authorities for Customer. Customer will reimburse Kronos for the costs of producing any information in Kronos' possession or control relating to Customer's business or employees that Kronos produces in response to a Customer request or court order. Unless otherwise required by Applicable Law, upon termination of this Section C, Kronos may dispose of Customer Content in accordance with Kronos' data retention policy in effect from time to time. In the case of termination of one but not all Payroll Services, Kronos may dispose of Customer Content not related to the remaining Payroll Services, unless otherwise required by Applicable Law, in accordance with Kronos' data retention policy in effect from time to time.
3.1.2 Notwithstanding anything to the contrary in this Section C, each party's use and disclosure of tax
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return information pursuant to or in connection with this Section C shall be conducted in compliance with and subject to the limitations of Section 7216 of the Internal Revenue Code of 1986, as amended.
Article 4. Customer Covenants
4.1 Customer shall, and shall cause any Covered Entities to, accurately and timely complete all forms and documents requested by Kronos from time to time in order for Kronos to provide the applicable Payroll Services, including, without limitation, all necessary credential and related action required by Kronos to integrate Payroll Services with the WFR Platform as described in Section 1.1.3. Payroll Services will not commence until Customer (or the applicable Client Entity) provides to Kronos all of the forms and documents requested by Kronos, and any agreed timelines shall be automatically adjusted accordingly with no liability to Kronos attributable to any failure or delay by Customer with respect to the foregoing.
In addition to forms and documents requested at the commencement of Payroll Services, Customer shall, and shall cause any Client Entity to, timely provide to Kronos other forms and documents requested by Kronos necessary to deliver the Payroll Services during the Term.
4.2 To the extent required in connection with any Payroll Services, Customer hereby appoints Kronos as its attorney-in-fact with authority to receive, sign and file state and local tax returns and to cause the issuance of payments in connection therewith. Kronos shall also be authorized as Customer's designee to receive correspondence and transcripts with respect to federal, state or local tax returns designated by Customer. Customer shall cooperate in executing and filing any and all forms or other documents required by a taxing authority to appoint Kronos as its reporting agent, or otherwise to make effective the appointments and designations described in the preceding two sentences, including but not limited to IRS Form 8655. Such appointment and authorization shall commence as of the Effective Date and remain in effect through subsequent tax periods until the earlier of the termination date of this Section C and the date Kronos is notified by Customer of revocation of the authorization, and Customer shall cooperate in executing and filing any and all forms and documents required by any taxing authority to do so. Customer hereby revokes all earlier powers of attorney and tax authorizations on file with the respective taxing authorities with respect to the same tax matters and tax period covered by this Section C and shall execute and file all documents necessary to effectuate such revocation. Kronos reserves the right to remove itself as attorney-in-fact or reporting agent in its sole discretion, upon at least ten (10) Business Days' written notice to Customer. An authorization does not relieve the Customer of responsibility (or from liability for failing) to ensure that all tax returns are filed timely and that all FTDs and FTPs are made timely.
4.3 Customer shall at all times maintain balances sufficient to fund its payroll and related obligations two (2) Business Days prior to the applicable check date. Customer acknowledges that if Customer fails to properly fund the Customer Account or otherwise prevents the timely receipt of funds, then Customer's payroll and related services will be delayed and/or suspended at Kronos' sole discretion and Kronos may immediately terminate this Section C upon notice to Customer.
4.4 Banking and Funding Covenants
4.4.1 Funding Payroll Obligations via Draw Down Wire Except as noted below, all monies caused to be transferred by Kronos on behalf of Customer will be funded via a draw down wire ("Draw Down Wire") initiated by Kronos to Customer's account in accordance with this Section 4.4.1. Customer agrees to execute with its financial institution any WFR Terms necessary to allow Kronos to cause the initiation of Draw Down Wires to Customer's bank account in accordance with the operating rules governing such transactions. Customer acknowledges that if Customer fails to properly fund its account or otherwise prevents the successful completion of a Draw Down Wire, then Customer's payroll and related services
Rev. 09202018MHR
will be delayed or suspended. Customer shall be solely responsible and liable for properly funding its account and ensuring Kronos can effect a Draw Down Wire. For quarter end and year end reconciliation purposes only, Kronos will utilize standard ACH services to reconcile Customer tax remittances and liability variances. Kronos shall use commercially reasonable efforts to notify Customer not less than five (5) Business Days prior to Kronos causing a debit of the Customer's bank account for the amount required to satisfy such variances.
4.4.2 Funding Payroll Obligations via Direct Wire In the sole discretion and upon the written authorization of Kronos, a direct wire (Customer initiates Customer's own wire transfer to a Payroll Services Account) may be utilized as an exception. Exceptions may arise for various reasons, including (a) due to funds not being available in the Customer Account at the time that Draw Down Wires are initiated, or (b) proper authorization was not granted to Kronos to cause the collection of funds via the Draw Down Wire. Any exception processing, by its very nature, runs the risk of delayed funding to third parties such as employees, tax agencies, and child support or garnishment recipients. Penalties, interest and other charges related to Customer's failure in meeting timelines, sufficient debit limit authorization or funding adequacy will be the liability of the Customer, and except to the extent arising from Kronos' gross negligence or willful misconduct, Customer is responsible for any claim made in relation with exception processing.
4.4.3 Payment Scheduling Collection for payroll direct deposits, vendor or garnishment payments, and payroll tax liabilities will be made as needed, based on the Payroll Services elected, and will depend on the payroll schedules that Customer utilizes to pay its employees and/or contractors. The draft for the collection will be via the Draw Down Wire request mechanism. Payments made to employees on Customer's behalf are dependent on the check date associated with those payments. Payments made to agencies and garnishment recipients are based on payroll check date(s). These payments are disbursed to the receiving parties utilizing the ACH network (where possible) in compliance with the NACHA guidelines and regulations or by check drawn on Customer's account. All payments made on Customer's behalf via ACH money movement will be caused to be released by Kronos only after Kronos receives confirmation of collection of amounts drafted from Customer's account. Therefore, even if amounts are due, Kronos will not cause the release of the ACH payments unless confirmation of receipt of funds has been received by Kronos.
4.4.4 Collection Account Testing. Customer hereby authorized Kronos to perform collection account testing as described in this Section 4.4.4. The Customer's collection account(s) used for funding and the drafting process is required to be thoroughly tested to avoid funding failures. Any such failure may result in agency penalties, delayed employee direct deposit payments, etc. This funding account test will ensure the originating bank identifiers for the applicable Payroll Services Accounts have successfully been added to Customer's debit filters. To test the collection account(s), Kronos will cause the initiation of a test Draw Down Wire transactions in the amount of $1.00 each. The transactions will be initiated from every unique Payroll Services Account provided to Customer during implementation. Testing of the funding account(s) shall occur two (2) to four (4) weeks prior to the first payroll check date to insure a successful processing of the first payroll. Customer must notify Kronos in writing not less than two (2) weeks prior to the effective date of a change in Customer bank account(s), which shall be tested as described in this Section
4.4.4. 4.4.5 Customer agrees to: (a) complete and execute any necessary forms with Customer's Receiving Depository Financial Institution ("RDFI") providing authorization that will require Customer's RDFI to honor all Draw Down Wire drawdown requests and standard ACH transfers received from Kronos and/or
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its agent, (b) promptly notify Kronos of any discrepancies between drawdown amounts and the amounts expected by Customer; and (3) notify Kronos immediately if any circumstances arise that could impact the collection of sufficient funds from Customer's account.
4.5 The ACH Reversal function allows Customer to submit a request to cancel a previously submitted ACH transaction. This function is utilized primarily to reverse direct deposits from employee accounts where the original direct deposits were in error. Kronos' and/or the applicable financial institution's then - standard fees for ACH reversals will apply. Customer may initiate an ACH reversal request by submitting a voiding transaction in the WFR Platform. Once the ACH reversal request is submitted to the financial institution, a credit is generated to the Customer Account and a request to debit the funds is sent to the employee's bank account. If the debit request for the ACH reversal to the employee's account is denied (for example, due to NSF), Kronos will debit the total amount of the NSF and any banking fees/charges associated with the NSF from Customer's authorized funding account. Kronos will not reattempt collection of any NSF's from employee accounts. Customer shall be solely responsible for obtaining reimbursement from its employees for the NSF amounts and any related fees/charges, whether the employees are active or terminated.
4.6 If Customer defaults under this Section C, including, without limitation, by Customer's failure to have in the Customer Account sufficient, readily available funds to cover the payroll, payroll tax, and other disbursements, or if a financial institution rescinds a Customer credit to one or more Payroll Services Accounts, then Kronos may, in its sole discretion: (a) terminate this Section C with written notice, and/or (b) exercise any and all reasonable actions necessary and appropriate to limit the loss to, or liability of, Kronos or its Affiliates. "Affiliate" means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where "Control" (in this context) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of the entity in respect of which the determination is being made through the ownership of the majority of its voting or equity securities, contract, voting trust or otherwise.
4.7 Customer shall promptly review all reports and documents provided or made accessible by Kronos or through the Payroll Services and shall inform Kronos of any inaccuracies not later than three (3) Business Days after receipt or notification of availability.
4.8 Customer is responsible for ensuring that the use of the Payroll Services to effect payments to or for its authorized users does not contravene any Applicable Law, including, without limitation, the Bank Secrecy Act, as amended by the USA PATRIOT Act, and any and all anti -money laundering laws and regulations now existing or promulgated after the date of this Section C. Any use of the Payroll Services in contravention of the foregoing sentence will be a material breach of this Section C by Customer.
4.9 Credentialing. Customer understands and acknowledges that the implementation and ongoing provision of Payroll Services are conditioned upon Customer and each Client Entity passing (and continuing to pass) a credentialing process that Kronos may deem necessary in connection with the provision of Payroll Services. Kronos shall have the right to (i) refuse to provide the Payroll Services for Customer with respect to any Client Entity that does not pass Kronos' initial credentialing process (ii) terminate the Payroll Services for Customer with respect to any Client Entity that does not continue to pass Kronos' ongoing credentialing process and (iii) terminate this Section C, and the WFR Terms, if Customer does not continue to pass Kronos' ongoing credentialing process. Customer shall be solely responsible for complying with all Applicable Laws, including, without limitation, ensuring the Covered Entities and payees of Customer on whose behalf Kronos
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is causing the delivery of payments are not sanctioned parties under the regulations promulgated by the Office of Foreign Assets Control (OFAC). Customer shall also be responsible for (i) performing, and ensuring passage of, know your customer due diligence on all Covered Entities prior to requesting Kronos to provide any Payroll Services to such Covered Entities, and (ii) providing Kronos with the information as may be reasonably requested by Kronos, for each Client Entity prior to Kronos providing Payroll Services to such Client Entity. Customer agrees to provide Kronos with an accurate and complete listing of Covered Entities receiving any Payroll Services and to inform Kronos promptly of any changes in any Client Entity information previously provided to Kronos.
Article 5. Warranty
5.1 Kronos warrants that the Payroll Services will be provided in a professional and workmanlike manner. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, KRONOS DISCLAIMS ALL OTHER
WARRANTIES RELATED TO THE SERVICES, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. If Customer informs Kronos in writing that there is a material deficiency in the Payroll Services which is making this warranty untrue, Kronos will use its commercially reasonable efforts to correct the non -conforming Payroll Service at no additional charge, which, subject to Section 5.2 below, will be Customer's sole and exclusive remedy.
Customer shall provide Kronos with reasonable information and assistance to enable Kronos to reproduce or verify the non- conforming aspect of the Payroll Services.
5.2 If Kronos makes an error or omission in the preparation or filing of Customer payroll tax returns, or breaches its obligation to cause the issuance of timely payments of payroll tax and/or business tax obligations, which error or failure results in an assessment of penalty or interest by any taxing authority against Customer, then Kronos' sole responsibility, and Customer's only remedy, will be for Kronos to correct the error or omission under this Section C and pay such penalty and interest (notwithstanding the dollar limitation on Kronos liability contained in this Section C). As a condition precedent to Kronos' obligation to pay such penalty and interest, Customer will provide Kronos timely notice of any such assessment, and Kronos shall be responsible for all defense actions for any such tax claim for penalties and interest, provided however, Customer shall be consulted during all stages of any defense. Timely notice to Kronos shall mean within ten (10) Business Days of receipt of the initial notice of assessment by Customer delivered to Kronos in accordance with the notice provisions described in the WFR Terms.
Customer's failure to provide timely notice to Kronos shall release Kronos from any and all obligations to indemnify Customer for the payment of penalty and interest hereunder and/or for effecting such payments on Customer's behalf, but only to the extent such delay caused such or additional penalty, interest or other losses. At all times as between Kronos and Customer, Customer shall be exclusively responsible for any tax assessed but without limiting Kronos' remittance obligations included in the Payroll Services.
Article 6. Independent Contractor and Subcontractors
6.1 Kronos is acting as an independent contractor of Customer under this Section C. Without limiting the foregoing, Kronos shall serve as a limited agent for Customer solely for purposes of any required agency for filings and/or payments with the appropriate taxing authorities. Kronos is not otherwise an agent of Customer, nor are the Parties in a partnership, joint venture, or other similar relationship, and this Section C shall not be construed to authorize either Party to act as agent for the other except as expressly provided herein.
6.2 Customer acknowledges that in providing the Payroll Services, Kronos may use any agent, subcontractor or third party and may delegate its duties to such agent or third party to perform such tasks
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and functions as Kronos chooses, including without limitation, third party software to perform Payroll Services and to store Customer Data, data security, and other services provided by third parties. Upon written request by the Customer, Kronos will notify Customer, in writing, if applicable with the thirty party used for specifically for the delivery of services for which Customer is ordering the services.
6.3 Customer acknowledges that Kronos is not rendering legal, tax, or accounting advice in connection with the Payroll Services, including without limitation Customer's obligation to withhold in a particular jurisdiction, nor is Kronos a fiduciary of Customer.
6.4 No third -party beneficiaries exist under this Section C.
Article 7. Effects of Termination
7.1 If this Section C is terminated or expires in accordance with its terms or otherwise terminated pursuant to a termination of the WFR Terms, for any reason, all rights and obligations of the parties hereunder shall terminate upon such expiration or termination, provided that all Customer indemnification obligations in Sections 1.1.1(b), 4.4.1, 4.4.2 and Article 8, as well as Sections 2 (with respect to amounts owed through the effective date of termination), 3, and 5 through and including 9 shall survive any expiration or termination of this WFR Terms.
Article 8. Customer Responsibility
8.1 Customer is solely responsible for: (a) any expense or financial obligation which is the responsibility of Customer hereunder; (b) any allegation that the Customer Content or its collection or use by Customer violates Applicable Laws; (c) the performance by Kronos of any of Customer's payroll tax duties (including, without limitation, acting as Customer's attorney-in-fact or reporting agent), except to the extent attributable to the gross negligence or willful neglect of Kronos; (d) the breach of any WFR Terms, covenant, duty or obligation of Customer arising hereunder, (e) Kronos filing an "APPLIED FOR" return as an accommodation to Customer, or (f) Customer directing Kronos to make a payment to any person or entity where issuance or receipt of such payment violates Applicable Law. This Section 8.1 shall survive the termination of this Section C.
8.2 Kronos and/or the applicable Kronos Indemnified Party will provide written notice to Customer promptly after receiving notice of any third -party Claim for which it seeks indemnification under this Section C. If the defense of such Claim is materially prejudiced by a delay in providing such notice, Customer will be relieved from providing such indemnity to the extent of the delay's impact on the defense. Customer shall immediately take control of the defense and investigation of such Claim and shall employ counsel reasonably acceptable to the applicable Kronos Indemnified Party to handle and defend the same, at the Customer's sole cost and expense. Customer will have sole control of the defense of any indemnified Claim and all negotiations for its settlement or compromise, provided that (i) Customer will not enter into any settlement which imposes any obligations or restrictions on the applicable Kronos Indemnified Parties without the prior written consent of applicable Kronos Indemnified Parties; and (ii) if Customer has refused or failed to assume control of the defense or to diligently pursue the defense thereafter, Kronos and/or applicable Kronos Indemnified Parties may assume sole control of the defense and all negotiation for any settlement or compromise of the applicable Claim in such a manner as Kronos and/or applicable Kronos Indemnified Parties may deem appropriate, at the applicable Kronos Indemnified Party's sole expense, until such time as Customer does assume such control. The applicable Kronos Indemnified Parties will cooperate fully (at Customer's request and expense) with Customer in the defense, settlement or compromise of any such action. The applicable Kronos Indemnified Parties may
Rev. 09202018MHR
retain their own counsel at its own expense, subject to Customer's rights above.
Article 9. Extent and Limitations of Liability
9.1 THE TOTAL AGGREGATE LIABILITY (REGARDLESS OF THE NUMBER OF CLAIMS) OF KRONOS TO
CUSTOMER OR TO ANY THIRD PARTY IN CONNECTION WITH THIS SECTION C AND THE PROVISION OF
PAYROLL SERVICES WILL BE LIMITED TO ACTUAL AND DIRECT DAMAGES PROVEN BY CUSTOMER, SUCH
DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE TOTAL NET PAYMENTS RECEIVED BY KRONOS FOR THE PAYROLL SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY ARISES.
9.2 EXCEPT AS EXPRESSLY STATED IN THIS SECTION C, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES. NEITHER PARTY WILL BE LIABLE FOR THE COST OF ACQUIRING SUBSTITUTE OR REPLACEMENT SERVICES. NEITHER PARTY WILL BE
LIABLE FOR ANY LOST OR IMPUTED PROFITS OR REVENUES OR LOST DATA RESULTING FROM DELAYS,
NONDELIVERIES, MISDELIVERIES OR SERVICES INTERRUPTION, HOWEVER CAUSED, ARISING FROM OR RELATED TO THE PAYROLL SERVICES OR THIS SECTION C. THESE LIMITATIONS APPLY FOR ANY REASON, REGARDLESS OF ANY LEGAL THEORY AND FOR WHATEVER REASON LIABILITY IS ASSERTED. THIS IS TRUE
EVEN IF KRONOS AND CUSTOMER HAVE TOLD EACH OTHER THAT EITHER ONE IS CONCERNED ABOUT A PARTICULAR TYPE OF LIABILITY.
Rev. 09202018MHR
ATTACHMENT 1
COVERED ENTITIES
Company Name FEIN Address City State Zip
Rev 08082018
ATTACHMENT 2: PAYROLL SERVICES ADDITIONAL ITEMS
These items are charged in addition to the normal monthly per employee per month fee (PEPM) as they are incurred. For each miscellaneous item listed below, there is a brief description of how/when that charge could be incurred and the pricing detail and information are outline in the pricing information.
1. W-2/1099 Filings Price is per filiwng
This fee covers the creation and submission of the electronic files for W2s at the federal and state level. There is no additional fee for printing W2 forms. This fee will apply to all records filed with the SSA each calendar year.
2. NSF Fee the Price is on per
transaction basis
If client utilizes the ACH Funding Method and fails to have the required funds in their designated account as required by and provided in the Agreement, causing Kronos to be issued a notice of Non -Sufficient Funds, Kronos, in addition to all its rights under the Agreement, will also charge Client an NSF Fee for each applicable transaction.
3. Fed Wire Fee
4. State Wire Fee
Price is per wire
Price is per wire
If a client submits payroll that requires federal and/or state taxes to be deposited the same or next day, an additional charge of $82.50 for federal and $82.50 for state will be incurred. This would typically only occur if the client has submitted or funded their account late and order to avoid tax penalties Kronos must cause the issuances of a wire for the payment to the tax agency.
5. "Applied For" Status of Tax Jurisdictions Price is /month per account
When a company begins to withhold taxes for their employees in a new state/jurisdiction the company has to apply
to that jurisdiction for a tax filing ID number. They are allowed to file tax returns under an "applied for" status until they get their official tax id number. In the application on each of the tax codes, there is a box that can be checked called "Applied For Status" and the actual ID number field is left blank. Kronos will file returns under "Applied For" status but they charge a fee of $38.50/month until a tax ID number is obtained, because a lot of the work is manual and requires additional effort.
6. ACH Returns/ Notice of Change - 1st/EE account
7. ACH Returns/ Notice of Change - 2nd if on same EE account
8. ACH Returns/ Notice of Change — Additional occurrence if on same EE account This fee is charged when either an employee's direct deposit account number has been rejected by the bank and the funds cannot be applied to the account (ACH Return), or when there has been a change to the employee's direct deposit routing number or account number that was not updated in the system and the bank has to manually change the information to apply the funds (Notice of Change — NOC). In either case, KRONOS will charge a fee of $11.00 the first time it occurs for each specific employee direct deposit. If the client doesn't fix the account before the next payroll, and an additional notice from the bank is received, KRONOS will charge an additional $55.00. Thereafter KRONOS will charge an additional $82.50 for each notice received on the same employee account.
9. Off Cycle Payrolls
Every scheduled payroll is included in the PEPM charge of $1.55. This would include the regular payrolls (bi-weekly, weekly, monthly, semi-monthly) and could also include a regularly scheduled 20 bonus payroll (done each quarter, etc.). Off cycle payrolls occur outside this process. These are usually done to fix errors in the current payroll that cannot wait for the next scheduled payroll processing. This fee applies only to those off -cycle or "one off" payroll runs. This fee does not apply to manual checks issued by the client.
10. Spilt Distributions Price per split
Pay Statements/Direct Deposit Vouchers can be delivered overnight to different locations for each EIN for no additional cost. The Split Distribution fees covers the cost to package pay statements/direct deposit vouchers to ship to multiple locations within the same EIN. Note that this does not include combining checks/vouchers from different payrolls (i.e. weekly and bi weekly) into one package for distribution. That is not a supported delivery process.
11. Amended Returns Price per
amendment
Filing all applicable payroll federal/state/local tax returns as indicated in this WFR Terms is included in the base PEPM fee of $1.55. When adjustments are made to prior period payroll transactions that require Payroll Services to create a modified or "corrected" tax return to be filed with the taxing authorities, a fee of $137.50 will be incurred.
12. Mailing Individual Checks Price per
document
The preferred method of delivery is for each client to have their checks/direct deposit vouchers, W2s and 1099s to be delivered using the client's FedEx account to central location(s). If the client wants to have the employee's pay checks, direct deposit vouchers, W2s and/or 1099 statements delivered directly to their home address, this fee ($0.75) will apply to each form mailed through the USPS and is in addition to the applicable posted fees. KRONOS will guarantee that W2s/1099s will be mailed by January 28' of each year but cannot guarantee that delivery to the employee will occur by January 31" of each year.
13. 1095C Printing Price per form
printed
Client's may request that KRONOS print their 1095C forms at the end of the calendar year. This will require an annual election and clients will be charged the fee above. Forms are only printed on pressure seal stock and shipped to the client for distribution to employees. Clients may also print the forms themselves directly from the Kronos system.
14. Payroll Rollback—after Payroll Submission Date Price per request Request initiated by client to rollback a payroll after a payroll submission deadline—each request.
15. Reopen Quarter End or Year End Price per request
Request initiated by client to reopen a QTR End or YR End—each request.
16. QTR Filing — Inactive EIN's Price per return
each quarter.
If the client closes a business during the year and wants W -2's and year end processing completed this fee will apply. The $137.50 fee is for each quarter and each return filed with zero returns.
17. Quarter Closing Late Fee Price per day/per
EIN
The client closes quarter after the contracted deadline. 21 18. Year End Closing Late Fee Price per day/per
EIN
The client closes year end after the contracted deadline.
19. Reprint of W2 or 1099
reprinted
Client requests reprinting of a W2 or 1099.
Price per form
20. W-2 Combined Reporting Print Service — Price is based on Base Fee + an additional fee per Form
Combined W2 forms as may be required for firms designated as a Common Pay Agent as defined in the IRS Publication 15-A. IF so elected at the end of each calendar year, KRONOS will provide your W2 data to a third -party vendor to create combined forms and to generate printed copies.
Combined paper W2 forms will be shipped to the client's address unless regular mail is requested. Copies of the forms will not be available to employees in WFR Employee Self Service but will be provided to client in a separate file.
22 CONTRACT AMENDMENT #4
Sealed Bid # 18-6390
Contract #18220
Reference No. 092 6
Date of Amendment: February 6, 2023
Owner: Cobb County Board of Commissioners. Cobb County, Georgia Contractor: Kronos Incorporated
Project: Bid # 18-6390, Workforce Management Systems and Related Products, Services and Solutions
Current Contract Term: March 18, 2022 to March 17, 2023 This action provides written notice to renew the current contract dated March 18, 2019, for Sealed Bid #18-6390, in accordance with the terms contained therein. It is valid when signed by both the Owner and Contractor. The signature of the Contractor indicates his/her agreement herewith, including any adjustments in the contract pricing, contract term, or contract scope.
Contract Extension
The County exercises its option to extend the current contract for an additional one-year period. The effective date of the contract extension will commence on March 18, 2023 and end on March 17, 2024.
ACCEPTED - The above listed terms and conditions of this Amendment are satisfactory and are hereby accepted.
OWNER CONTRACTOR
Cobb County Board of Commission
100 Cherokee Street
Marietta, Georg' • ' ' 90
1'
IP
Signed: /i 'hr's_ j ► 31#ned: • /.fit ' c.
Director of Contracts & Procurement - Public Sector
Kronos Incorporated
900 Chelmsford Street
Lowell, MA 01851
Usa N. Cupid, C rwom n, Cobb
Title: County Board of Commissioners Title:
Date: eZll'-)/;z 3
Approved As To Form:
.41
*BB COT
IA d'41('S'OFFICE
APPROVED
PER MINUTES OF
COBB COUNTY
BOARD OF COMMISSIONERS
1,1,11.1/q
Date: 02/06/2023
CONTRACT AMENDMENT #5
Sealed Bid # 18-6390
Contract #18221
Reference No. 02 '7
Date of Amendment: February 6, 2023
Owner: Cobb County Board of Commissioners. Cobb County, Georgia Contractor: Kronos SaaShr, Inc.
Project: Bid # 18-6390, Workforce Management Systems and Related Products, Services and Solutions
Current Contract Term: March 18, 2022 to March 17, 2023 This action provides written notice to renew the current contract dated March 18, 2019, for Sealed Bid #18-6390, in accordance with the terms contained therein. It is valid when signed by both the Owner and Contractor. The signature of the Contractor indicates his/her agreement herewith, including any adjustments in the contract pricing, contract term, or contract scope.
Contract Extension
The County exercises its option to extend the current contract for an additional one-year period. The effective date of the contract extension will commence on March 18, 2023 and end on March 17, 2024.
ACCEPTED - The above listed terms and conditions of this Amendment are satisfactory and are hereby accepted.
OWNER CONTRACTOR
Cobb County Board of Commissio
100 Cherokee Street
Marietta, Georgia 300
Signed:
Lisa N. Cupid, C i • man, Co
County Board of Commissioners
Title:
Date: -1/2)/22,
Approved As To Form:
licYRNEY'S.OFFICE
APPROVED
PER MINUTES OF
COBB COUNTY
BOARD OF COMMISSIONERS
i.2 -//)-ISS
Kronos SaaShr, Inc.
3040Route 22 West, Suite 200
Branchburg, NJ 08876
Sig �ie!. __
Title:
Director of Contracts & Procurement - Public Sector
Date: 2/6/2023
TO:
VIA:
FROM:
DATE:
Placentia City Council
AGENDA REPORT
CITY COUNCIL
CITY ADMINISTRATOR
DEPUTY CITY ADMINISTRATOR/ PUBLIC SERVICES & INFRASTRUCTURE MAY 2, 2023
SUBJECT: APPROVAL OF PLANS & SPECIFICATIONS AND AWARD OF CONSTRUCTION CONTRACT TO LEGION CONTRACTORS, INC., FOR THE PARQUE DEL ARROYO VERDE RENOVATION PROJECT, CITY PROJECT NO. 7902
FISCAL
IMPACT: EXPENSE: $2.667.956.64
$2,286,378.76
$ 228,637.88
$ 152,940.00
BUDGET: $2.670.236.80
$1,316,859.76
$ 828,060.77
$ 525,316.27
SUMMARY:
TOTAL CONSTRUCTION COST
CONSTRUCTION CONTRACT AMOUNT
CONSTRUCTION CONTINGENCY AMOUNT
CONSTRUCTION MANAGEMENT/INSPECTION
COSTS
FY 2022-23 CIP BUDGET
PARK & REC IMPACT FEE (637902-6760)
MEASURE U (797902-6760)
CITY QUIMBY IN -LIEU FEE (697902-6760)
On September 12, 2019, the City issued and publicly advertised a Request for Proposal ("RFP") for professional landscape architecture design services for the Parque Del Arroyo Verde Renovation Project No. 7902 (the "Project"). The Project will provide new playground equipment and expanded play areas, new park furnishings and security lighting, shade structures for play, and picnic areas. It will also remove and replace broken concrete sidewalk panels and provide Americans with Disabilities Act (ADA) accessibility improvements to ensure the park and playgrounds are fully accessible and provide minor cosmetic improvements to the restroom building.
Staff received eight (8) proposals, and after a thorough review selected David Volz Design ("DVD"), based upon their response to the requirements of the RFP, their qualifications, and their experience in designing park and playground improvements. At the December 3, 2019 meeting, the City Council approved a Professional Services Agreement with DVD to complete design services for the renovation project.
The agreement with DVD was to provide the City with engineered construction plans, technical specifications, and cost estimates in addition to construction support services. DVD was to
3.a.
May 2, 2023
City Council Agenda
May 2, 2023
prepare park renovation conceptual plans based upon Staff and Council's input for review and consideration by the Parks, Arts, and Recreation Commission (PARC). The City Council approved the design concept at the July 6, 2021. Following the design approval Staff solicited an RFP for the construction of the project.
The City solicited competitive bids on February 1, 2023 for renovating Parque Del Arroyo Verde.
On March 6, 2023, Staff received a total of eight (8) bids for this project. The scope of this project entails rehabilitation of the parking lot, a new ADA ramp, new concrete pedestrian and vehicular paths, new playground equipment, amenities, irrigation, lighting, and landscaping. The lowest bid in the amount of $2,286,378.76 was received from Legion Contractors, Inc. Staff conducted a thorough review of their bid and their references. Their bid was found to be the lowest responsive and responsible bid. Staff recommends that the City Council award a construction contract to Legion Contractors, Inc., in the amount of $2,286,378.76. In addition to the construction cost, a ten percent (10%) construction contingency amount of $228,637.88 is being included to cover the cost of any unforeseen conditions that might be found during construction. The total construction contract cost including contingency amount is $2,515,016.64.
RECOMMENDATION:
It is recommended that the City Council take the following actions:
1. Approve the Engineering Plans and Specifications prepared by David Volz Design for the Parque Del Arroyo Verde Renovation Project, City Project No. 7902; and
2. Approve a Public Works Agreement with Legion Contractors, Inc., for the Parque Del Arroyo Verde Renovation Project in the amount of $2,286,378.76; and
3. Reject all other bids received and authorize the return of the bid bonds; and
4. Authorize the City Administrator to approve contract change orders up to ten percent (10%) of the contract amount, or $228,637.88, for a total construction contract not -to -exceed amount of $2,515,016.64; and
5. Approve Resolution No. R-2023-29, A Resolution of the City Council of the City of Placentia, California authorizing a budget amendment in Fiscal Year 2022-23 in compliance with City Charter of the City of Placentia §§1206 and 1209 pertaining to appropriations for actual expenditures; and
6. Authorize the City Administrator and/or his designee to execute all necessary documents, in a form approved by the City Attorney.
STRATEGIC PLAN STATEMENT:
This item is consistent with the City Council approved 5 -Year Strategic Goal to Implement Public Infrastructure to Meet Community Needs, under Objective #5.2, which is working to complete the Placentia Parks Initiative Plan.
City Council Agenda
May 2, 2023
DISCUSSION:
The POSUG Master Plan was completed in November 2019 and approved by the City Council at the December 3, 2019 meeting to be utilized as a guide for future Capital Improvement Program (CIP) Projects to be incorporated into the City's CIP plan and to allocate potential funding sources as available through the City's annual budgetary process. This Master Plan was the basis for the creation of the Placentia Parks Initiative (PPI); a citywide initiative which is aimed establishing a multi -million -dollar significant capital investment into the City's parks and open spaces by improving and renovating aging park infrastructure and amenities over the course of the next two (2) fiscal years.
To prepare the PPI, the City established a working group of City Council Members, City Administrator, Deputy City Administrator, Community Services Director, Public Works Superintendent and Staff from the Community Services and Police Departments to conduct a comprehensive review of the City's parks and open spaces. This exercise culminated in Staff developing a comprehensive draft Parks CIP plan along with PPI goals and objectives. The PPI was approved by the City Council at the May 18, 2021 meeting.
Although the design work of the renovation of Parque del Arroyo Verde Park began prior to the PPI, the park renovation project is part of the City-wide Placentia Park Initiative Plan. The design concepts provided by David Volz Design (DVD) for the renovation of the Parque Del Arroyo Verde project were approved by the City Council at the July 6, 2021 meeting. After the design concepts were approved, the second phase of the project began, and DVD started to work on the construction documents and engineering plans.
The City Council allocated funds in the FY 22-23 CIP Budget to construct much needed improvements to Parque Del Arroyo Verde. The scope of this project entails furnishing all labor, materials, tools, equipment, appurtenances, and incidentals for rehabilitation of the parking lot, a new ADA ramp, new concrete pedestrian and vehicular paths, new playground equipment, amenities, irrigation, lighting and landscaping and all items included within the plans and specifications.
On March 6, 2023, the City received eight (8) bids from contractors to construct the project. The following table provides the total bid amounts received from each contractor:
Contractor Bid Amount
Legion Contractors, Inc. $2,286,378.76
Klassic Engineering and Construction $2,343,191.30
KASA Construction Inc. $2,379,688.90
Urban Habitat $2,437,057.91
Environmental Construction, Inc. $2,574,592.20
RT Contractor Corp $2,588,890.62
PUB Construction, Inc. $3,124,709.18
Los Angeles Engineering, Inc. $3,308,308.00
City Council Agenda
May 2, 2023
After a review of the bids, it was determined that Legion Contractors, Inc. submitted the lowest responsible bid. Staff reviewed and analyzed their bid proposal, and it was found to be responsive and valid. Based upon Legion Contractor's Inc's. reference check and submitted bid, Staff recommends awarding a construction contract to Legion Contractors, Inc., for the Parque Del Arroyo Verde Renovation Project.
Initially, the project was advertised to have 60 working days to complete. Before bids were closed, an Addendum was issued to increase this time to 135 working days. The additional days were added to allow for long lead-times in ordering certain items within the project. Therefore, once the City Council approves the award of the contract, Staff will issue the first notice to proceed to allow the Contractor to order those items. A second notice to proceed will be issued when the material has arrived, and we are ready to start the construction.
On May 18, 2021, the City Council approved a bench list of professional consultants to provide on-call construction management and inspection services for the City's Capital Improvement Program. In utilizing this bench list, Staff would like to initiate a task order to PPM Group Inc for full-time inspection and part-time construction management services.
FISCAL IMPACT:
The total construction cost for the Parque Del Arroyo Verde Renovation Project amounts to $2,668,000.00. This cost consists of the bid amount submitted by Legion Contractors, Inc., in the amount of $2,286,378.76, a construction contingency in the amount of $228,637.88, and a Construction Management/Inspection contract with PPM Group Inc. in the amount of $152,940.
A total of $2,590,236.80 is currently available in the FY 2022-23 Capital Improvement Program for this project. Resolution No. R-2023-29 (Attachment 2) is recommended for approval to appropriate additional funds from existing Measure U Fund Balance and existing CIP funds towards the cost of this project. This Resolution is presented for the City Council's consideration to amend the FY 2022-23 CIP Budget by allocating $80,000 in unallocated Measure U Funds.
Accordingly, sufficient funds exist for the recommended actions.
Prepared
Masoud Sepahi, P.E.
City Engineer
City Council Agenda
May 2, 2023
Reviewed and approved:
Reviewed and approved:
Y�- r rte
Jenni Lampman Karen Crocker•V ~
Director of Finance Director of Community Services
Reviewed a•v roved: Reviewed and approved:
Luis Estevez Damien N. Arrula
Deputy City Administrator
City Administrator
Attachments:
1. Public Works Agreement with Legion Contractors, Inc.
2. Budget Amendment Resolution No. R-2023-29
Project No. 7902
CITY OF PLACENTIA
PUBLIC WORKS AGREEMENT FOR
PARQUE DEL ARROYO VERDE RENOVATION PROJECT
CITY PROJECT NO. 7902
THIS AGREEMENT (herein "Agreement"), is made and entered into this 2nd day of May, 2023 by and between the CITY OF PLACENTIA, a municipal corporation and charter city, (herein "City") and LEGION CONTRACTOR'S INC. (herein "Contractor"). The parties hereto agree as follows:
WITNESSETH:
A. WHEREAS, City requires the construction of park improvements that comply with all latest ADA accessibility requirements as set forth more fully in this Agreement.
B. WHEREAS, Contractor represents to City that Contractor is qualified to perform said work and has submitted a proposal to City for the same.
C. WHEREAS, City desires to have Contractor perform said services on the terms and conditions set forth herein.
D. WHEREAS, no official or employee of City has a financial interest, within the provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by both parties, City and Contractor hereby agree as follows:
1.0 DEFINITIONS
1.1 Definitions. As used in this Agreement, the following definitions shall be applicable:
(a) Contractor. Contractor shall mean LEGION CONTRACTOR'S INC. a California corporation located at 18008 Sky Park Circle, Suite 290, Irvine, CA 92614.
(b) City. City shall mean the City of Placentia, a Municipal Corporation and Charter City, located at 401 E. Chapman, Placentia, California 92870.
(c) City Council. City Council shall mean the City Council of the City of Placentia.
(d) Contract Officer shall mean the person designated by the City Administrator or City Engineer of City and shall have the duties set forth
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in Section 5.2.
(e) Services. Services shall mean the services to be performed by the Contractor pursuant to this Agreement.
(f) Satisfactory. Satisfactory shall mean satisfactory to the City Administrator or his/her designee.
2.0 SERVICES OF CONTRACTOR
2.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. Further, Contractor represents that it is knowledgeable and experienced in constructing improvements that are compliant with all applicable accessibility requirements and warrants that all work performed under this agreement will comply with all applicable accessibility requirements.
2.2 Documents Included in Contract. This contract consists of this Agreement and any Exhibits, which are incorporated herein by this reference. In the event of an inconsistency, the terms of this Agreement shall govern.
2.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered, including but not limited to, all applicable accessibility requirements and the claims procedure set forth in Public Contract Code Section 9204, a summary of which is attached to this agreement as Exhibit "E."
2.4 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement, including registration with the Department of Industrial Relations of the State of California as required by Labor Code Section 1725.5 before commencing performance under this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments, taxes penalties or interest levied, assessed or imposed against City hereunder.
Contractor shall be responsible for all subcontractors' compliance with this Section 2.4.
2.5 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor (a) has thoroughly investigated and considered the scope of services to be performed, including the requirement that the facilities being constructed must comply with all applicable accessibility requirements, (b) has carefully considered how the services should be performed, and (c) fully understands the facilities, difficulties and restrictions attending performance of the services
Project No. 7902
under this Agreement. If the services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of services hereunder. Should Contractor discover any latent or unknown conditions, which will materially affect the performance of the services hereunder, Contractor shall immediately inform the City of such fact and shall not proceed except at Contractor's risk until written instructions are received from the Contract Officer.
2.6 Standard of Performance. Contractor, its subcontractors and their employees, in the performance of Contractor's work under this Agreement shall be responsible for exercising the degree of skill and care required by customarily accepted good professional practices and procedures used in the Contractor's field.
Any costs for failure to meet the foregoing standard or to correct otherwise defective work that requires re -performance of the work, shall be borne in total by the Contractor and not by the City. The failure of a project to achieve the performance goals and objectives stated in this Agreement is not a basis for requesting re -performance unless the work conducted by Contractor and/or its subcontractors is deemed by the City to have failed the foregoing standard of performance.
In the event Contractor fails to perform in accordance with the above standard:
1. Contractor will re -perform, at its own expense, any task which was not performed to the reasonable satisfaction of City. Any work re -performed pursuant to this paragraph shall be completed within the time limitations originally set forth for the specific task involved.
Contractor shall work any overtime required to meet the deadline for the task at no additional cost to the City;
2. The City shall provide a new schedule for the re -performance of any task pursuant to this paragraph in the event that re -performance of a task within the original time limitations is not feasible; and
3. The City shall have the option to direct Contractor not to re -perform any task which was not performed to the reasonable satisfaction of the City Project Manager pursuant to application of (1) and (2) above. In the event the City directs Contractor not to re- perform a task, the City shall negotiate a reasonable settlement for satisfactory work performed. No previous payment shall be considered a waiver of the City's right to reimbursement.
Nothing contained in this section is intended to limit any of the rights or remedies which the City may have under law.
2.7 Care of Work. The Contractor shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work, and the equipment, materials, papers, documents, plans, studies and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence.
2.8 Further Responsibilities of Parties. Both parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both parties agree to act in good faith to execute all instruments, prepare all documents and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter specified,
Project No. 7902
neither party shall be responsible for the service of the other. Contractor shall require all subcontractors to comply with the provisions of this agreement.
2.9 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to or deducting from said work. No such extra work may be undertaken unless a written change order is first given by the Contract Officer to the Contractor, incorporating therein any adjustment in (i) the Contract Sum as set forth in Section
3.1, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore.
2.10 Prevailing Wage Laws. Contractor represents and warrants that it is registered with the Department of Industrial Relations pursuant to SB 854 and Labor Code 1725.5.
Contractor shall ensure that its subcontractors comply with said requirements. In accordance with Labor Code Section 1770 et seq., the Director of the Department of Industrial Relations of the State of California has ascertained a general prevailing rate of wages, which is the minimum amount, which shall be paid to all workers employed to perform the work pursuant to this Agreement. A copy of the general prevailing wage rate determination is on file in the Office of the City Clerk and is hereby incorporated by reference into this Agreement. In accordance with the provisions of Labor Code Section 1810 et seq., eight (8) hours is the legal working day. Contractor must forfeit to the City Twenty Five Dollars ($25.00) a day for each worker who works in excess of the minimum working hours when Contractor does not pay overtime. Contractor is required to post a copy of such wage rates at all times at the contract site. The statutory penalties for failure to pay prevailing wage or to comply with State wage and hour laws will be enforced. Contractor also shall comply with State law requirements to maintain payroll records and shall provide for certified records and inspection of records as required by California Labor Code Section 1770 et. seq., including Section 1776. Contractor shall comply with all statutory requirements relating to the employment of apprentices.
3.0 COMPENSATION
3.1 Contract Sum. For the services rendered pursuant to this Agreement, the Contractor shall be compensated as specified herein, but not exceeding the maximum contract amount of two million two hundred eighty-six thousand three hundred seventy-eight dollars and seventv-six cents ($2,286,378.76) (herein "Contract Sum"), except as provided in Section 2.9. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings.
3.2 Progress Payments. Prior to the first day of the month, during the progress of the work, commencing on the day and month specified in the Agreement, Contractor shall submit to the Contract Officer a complete itemized statement of all labor and materials incorporated into the work during the preceding month and the portion of the contract sum applicable thereto. Upon approval in writing by the Contract Officer, payment shall be made in thirty (30) days. City shall pay Contractor a sum based upon ninety-five percent (95%) of the
Project No. 7902
contract price apportionment of the labor and materials incorporated into the work under the contract during the month covered by said statement. The remaining five percent (5%) thereof shall be retained as performance security. Refer to Section 8.4 of this Agreement for retention of funds.
4.0 PERFORMANCE SCHEDULE
4.1 Time of Essence. Time is of the essence in the performance of this Agreement.
4.2 Schedule of Performance. Contractor shall commence the services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all services within the time period(s) established in the "Schedule of Performance" attached hereto as Exhibit "B", and incorporated herein by this reference. When requested by the Contractor, extensions to the time period(s) specified in the Scope of Services may be approved in writing by the Contract Officer.
4.3 Force Maieure. The time period(s) specified in the Scope of Services for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes for the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement.
4.4 Term. Unless earlier terminated in accordance with Section 8.9 of this Agreement, this Agreement shall continue in full force and effect until final approval and acceptance of the project by the Contract Officer. Notwithstanding the foregoing, this Agreement shall terminate no later than May 2nd, 2024, unless the parties mutually agree in writing to extend the term.
5.0 COORDINATION OF WORK
5.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
Legion Contractors, Inc.
Attn: Amir Movafegh, President
18008 Sky Park Circle, Suite 290
Irvine, CA 92614
It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder.
Project No. 7902
For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City.
5.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Administrator or City Engineer of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions that must be made by City to the Contract Officer.
Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
5.3 Prohibition Against Assignment. The experience, knowledge, capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City.
5.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its subcontractors, agents or employees, performs the services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or control of Contractor's employees, subcontractors, servants, representatives or agents, or in fixing their number, compensation or hours of service. Contractor shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contractor shall not at any time or in any manner represent that it or any of its subcontractors, agents or employees are agents or employees of City.
City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venture or a member of any joint enterprise with Contractor.
5.5 Identity of Persons Performing Work. Contractor represents that it employs or will employ at its own expense all personnel required for the satisfactory performance of any and all tasks and services set forth herein. Contractor represents that the tasks and services required herein will be performed by Contractor or under its direct supervision, and that all personnel engaged in such work shall be fully qualified and shall be authorized and permitted under applicable State and local law to perform such tasks and services.
5.6 Utility Relocation. City is responsible for removal, relocation, or protection of existing main or trunk line utilities to the extent such utilities were not identified in the invitation for bids or specifications. City shall reimburse contractor for any costs incurred in locating, repairing damage not caused by contractor and removing or relocating such unidentified utility facilities, including equipment idled during such work. Contractor shall not be assessed liquidated damages for delay arising from the removal or relocation of such unidentified utility facilities.
Project No. 7902
5.7 Trenches or Excavations. Pursuant to California Public Contract Code Section 7104, in the event the work included in this Agreement requires excavations more than four (4) feet in depth, the following shall apply.
(a) Contractor shall promptly, and before the following conditions are disturbed, notify City, in writing, of any: (1) material that Contractor believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; (2) Subsurface or latent physical conditions at the site different from those indicated; or (3) Unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the contract.
(b) City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in Contractor's cost of, or the time required for, performance of any part of the work shall issue a change order per Section 2.9 of this Agreement.
(c) That, in the event that a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor's cost of, or time required for, performance of any part of the work, Contractor shall not be excused form any scheduled completion date provided for by the contract, but shall proceed with all work to be performed under the contract. Contractor shall retain any and all rights provided either by contract or by law, which pertain to the resolution of disputes and protests between the contracting parties.
6.0 INSURANCE, INDEMNIFICATION AND BONDS
6.1 Insurance. The Contractor and all subcontractors, if any, shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement including any extension thereof, insurance as set forth in Exhibit "C" attached hereto and incorporated herein by this reference.
Conditions:
In accordance with Public Contract Code Section 20170, the insurance of surety companies who provide or issue the policy shall have been admitted to do business in the State of California with a credit rating of A- or better.
This insurance shall not be canceled, limited in scope or coverage or non -renewed until after thirty (30) days prior written notice has been given to the Community Development Director, City of Placentia, 401 E. Chapman Ave., Placentia, California 92870.
Any insurance maintained by the City of Placentia shall apply in excess of and not combined with insurance provided by this policy.
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The City of Placentia, its officers, employees, representatives, attorneys, and volunteers shall be named as additional named insureds.
Prior to commencement of any work under this contract, Contractor shall deliver to the City insurance endorsements confirming the existence of the insurance required by this contract, and including the applicable clauses referenced above.
Such endorsements shall be signed by an authorized representative of the insurance company and shall include the signatory's company affiliation and title. Should it be deemed necessary by the City, it shall be Contractor's responsibility to see that the City receives documentation, acceptable to the City, which sustains that the individual signing said endorsements is indeed authorized to do so by the insurance company.
If the Contractor fails to maintain the aforementioned insurance, or secure and maintain the aforementioned endorsement, the City may obtain such insurance, and deduct and retain the amount of the premiums for such insurance from any sums due under the agreement. However, procuring of said insurance by the City is an alternative to other remedies the City may have, and is not the exclusive remedy for failure of Contractor to maintain said insurance or secure said endorsement. In addition to any other remedies the City may have upon Contractor's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the City shall have the right to order Contractor to stop work hereunder, and/or withhold any payment(s) which became due to Contractor hereunder until Contractor demonstrates compliance with the requirements hereof.
Nothing herein contained shall be construed as limiting in any way the extent to which Contractor may be held responsible for payments of damages to persons or property resulting from Contractor's or its subcontractor's performance of the work covered under this agreement.
Each contract between the Contractor and any subcontractor shall require the subcontractor to maintain the same policies of insurance that the Contractor is required to maintain pursuant to this Section 6.1.
6.2 Certificates of Insurance. Contractor shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. The certificates of insurance and endorsements shall be attached to this Agreement as Exhibit "D" and are incorporated herein by this reference.
6.3 Indemnification. Contractor shall defend, indemnify, hold free and harmless the City of Placentia, its elected and appointed officials, officers, agents and employees, at Contractor's sole expense, from and against any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising or alleged to arise out of or in connection with the performance of the work, operations or activities of Contractor, its agents, employees, subcontractors, or invitees, provided for herein, or arising or alleged to arise from the negligent acts or omissions of Contractor hereunder, or arising or alleged to arise from Contractor's performance of or failure to perform any term, provision, covenant or condition of this Agreement.
Project No. 7902
(a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith. (b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising or alleged to arise out of or in connection with Contractor's (or its agents', employees', subcontractors' or invitees') negligent performance of or failure to perform such work, operations or activities hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom.
(c) In the event the City, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising or alleged to arise out of or in connection with the performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor shall pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees for counsel selected by City. (d) Contractor's duty to defend and indemnify as set out in this Section 6.3 shall include any claims, liabilities, obligations, losses, demands, actions, penalties, suits, costs, expenses or damages or injury to persons or property arising or alleged to arise from, in connection with, as a consequence of or pursuant to any state or federal law or regulation regarding hazardous substances, including but not limited to the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), Resource Conservation and Recovery Act of 1976 ("RCRA"), the Hazardous and Solid Waste Amendments of 1984, the Hazardous Material Transportation Act, the Toxic Substances control Act, the Clean Air Act, the Clean Water Act, the California Hazardous Substance Account Act, the California Hazardous Waste Control Law or the Porter -Cologne Water Quality Control Act, as any of those statutes may be amended from time to time.
Notwithstanding the foregoing, Contractor shall not be liable for the defense or indemnification of the City for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of the City.
The Contractor's indemnification obligations pursuant to this Section 6.3 shall survive the termination of this Agreement. Contractor shall require the same indemnification from all subcontractors.
6.4 Labor and Materials and Performance Bonds. Concurrently with execution of this Agreement, Contractor shall deliver to City a labor and materials bond and a performance bond each in the sum of the amount of this Agreement, in the forms provided by the City Clerk, which secures the faithful performance of this Agreement. The bonds shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bonds shall be unconditional and remain in force during
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the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement.
6.5 Sufficiency of Insurer or Surety. Insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City due to unique circumstances. In the event the Senior Management Analyst of City ("Senior Management Analyst") determines that the work or services to be performed under this Agreement creates an increased risk of loss to the City, the Contractor agrees that the minimum limits of the insurance policies required by this Section 6 may be changed accordingly upon receipt of written notice from the Senior Management Analyst; provided that the Contractor shall have the right to appeal a determination of increased coverage by the Senior Management Analyst to the City Council of City within ten (10) days of receipt of notice from the Senior Management Analyst.
6.6 Substitution of Securities. Pursuant to California Public Contract Code Section 22300, substitution of eligible equivalent securities for any monies withheld to ensure performance under the contract for the work to be performed will be permitted at the request and expense of the successful bidder.
7.0 RECORDS AND REPORTS
7.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement.
For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.
7.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records (including but not limited to payroll records as required herein) as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required.
7.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Contractor may
Project No. 7902
retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom.
7.4 Public Records Act Disclosure. Contractor has been advised and is aware that this Agreement and all reports, documents, information and data, including, but not limited to, computer tapes, discs or files furnished or prepared by Contractor, or any of its subcontractors, pursuant to this Agreement and provided to City may be subject to public disclosure as required by the California Public Records Act (California Government Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Contractor informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court.
8.0 GENERAL PROVISIONS
8.1 Governing Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action.
8.2 Representatives. The City Administrator or his or her designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement.
The Principal set forth in Section 5.1 above shall be the representative for Contractor for purposes of this Agreement, and shall be authorized to issue all consents, approvals, directives and agreements on behalf of Contractor called for by this Agreement, except as otherwise expressly provided in this Agreement.
8.3 Disputes. In the event either party fails to perform its obligations hereunder, the nondefaulting party shall provide the defaulting party written notice of such default. The defaulting party shall have ten (10) days to cure the default; provided that, if the default is not reasonably susceptible to being cured within said ten (10) day period, the defaulting party shall have a reasonable time to cure the default, not to exceed a maximum of thirty (30) days, so long as the defaulting party commences to cure such default within ten (10) days of service of such notice and diligently prosecutes the cure to completion; provided further that if the default is an immediate danger to the health, safety and general welfare, the defaulting party shall take such immediate action as may be necessary. Notwithstanding the foregoing, the nondefaulting party may, in its sole and absolute discretion, grant a longer cure period. Should the defaulting party fail to cure the default within the time period provided in this Section, the nondefaulting party shall have the right, in addition to any other rights the nondefaulting party may have at law or in equity, to terminate this Agreement. Compliance with the provisions of this Section 8.3 shall be a condition precedent to
Project No. 7902
bringing any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured.
8.4 Retention of Funds. Progress payments shall be made in accordance with the provisions of Section 3.2 of this Agreement. In accordance with said section, City shall pay Contractor a sum based upon ninety-five percent (95%) of the contract price apportionment of the labor and materials incorporated into the work under the contract during the month covered by said statement. The remaining five percent (5%) thereof shall be retained as performance security to be paid to the Contractor within sixty (60) days after final acceptance of the work by the City Council, after Contractor shall have furnished City with a release of all undisputed contract amounts if required by City. In the event there are any claims specifically excluded by Contractor from the operation of the release, the City may retain proceeds (per Public Contract Code 7107) of up to 150% of the amount in dispute. City's failure to deduct or withhold shall not affect Contractor's obligations hereunder.
8.5 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
8.6 Rights and Remedies. Rights and Remedies are cumulative except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
8.7 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
8.8 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, the Contractor and its sureties shall be liable for and shall pay to the City Five Hundred Dollars ($500) as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Scope of Services (Exhibit A) or Schedule of Performance (Exhibit B). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages.
8.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, Contractor shall vacate any City owned property which Contractor is permitted to occupy hereunder and City may, after compliance with the provisions of Section 8.3, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of setoff or partial payment of the amounts owed the City as previously stated.
Project No. 7902
8.10 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and shall be deemed to be given when served personally or deposited in the US Mail, prepaid, first-class mail, return receipt requested, addressed as follows:
To City:
To Contractor:
City of Placentia
401 E. Chapman Ave
Placentia, California 92870
Attn.: Masoud Sepahi, City Engineer
Legion Contractors, Inc.
Attn: Amir Movafegh, President
70 Dorman Avenue, Suite 3
San Francisco, CA 94124
8.11 Non -liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Contractor, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
8.12 Conflict of Interest. The Contractor warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
Contractor and its officers, employees, associates and subcontractors, if any, will comply with all conflict of interest statutes of the State of California applicable to Contractor's services under this agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090. During the term of this Agreement, Contractor and its officers, employees, associates and subcontractor shall not, without the prior written approval of the City Representative, perform work for another person or entity for whom Contractor is not currently performing work that would require Contractor or one of its officers, employees, associates or subcontractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute.
8.13 Covenant Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. To the extent required by law, contractor shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry.
8.14 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
Project No. 7902
8.15 Severabilitv. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
8.16 Hiring of Illegal Aliens Prohibited. Contractor shall not hire or employ any person to perform work within the City of Placentia or allow any person to perform work required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Further, Contractor shall comply with the following:
(a) Unauthorized Aliens. Contractor hereby represents and warrants that it will comply with all 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 Contractor so employ such unauthorized aliens for the performance of any work and/or services under this Agreement, and should any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to reimburse City for any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, or penalties which arise out of or are related to such employment, together with any and all costs, including attorneys' fees, incurred by City.
(b) E-Verifv. If Contractor is not already enrolled in the U.S. Department of Homeland Security's E -Verify program, Contractor shall enroll in the E - Verify program within fifteen (15) days of the effective date of this Agreement to verify the employment authorization of employees assigned to perform work hereunder. Contractor shall verify employment authorization within three (3) days of hiring a new employee to perform work under this Agreement. Information pertaining to the E -Verify program can be found at http://www.uscis.gov , or access the registration page at https://e- verify.uscis.gov/enroll. Contractor shall certify its registration with E -Verify and provide City its registration number within sixteen days of the effective date of this Agreement. Failure to provide certification will result in withholding payment until full compliance is demonstrated.
8.17 Unfair Business Practices Claims. In entering into a public works contract or a subcontract to supply goods, services or materials pursuant to a public works contract, the contractor or subcontractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C.
Sec. 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body renders final payment to the contractor without further acknowledgment by the parties. (Sec. 7103.5, California Public Contract Code).
Project No. 7902
8.18 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound.
8.19 PERS Eligibility Indemnification. In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement claims or 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, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor 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.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
8.20 Cooperation. In the event any claim or action is brought against City relating to Contractor's performance or services rendered under this Agreement, Contractor shall render any reasonable assistance and cooperation which City might require.
8.21 Legal Responsibilities. The Contractor shall keep itself informed of City, State, and Federal laws, ordinances and regulations, which may in any manner affect the performance of its services pursuant to this Agreement. The Contractor shall at all times observe and comply with all such laws, ordinances and regulations. Neither the City, nor its officers, agents, or employees shall be liable at law or in equity as a result of the Contractor's failure to comply with this section.
8.22 Termination for Convenience. The City may terminate this Agreement without cause for convenience of the City upon giving contractor 30 days prior written notice of termination of the Agreement. Upon receipt of the notice of termination the Contractor shall cease all further work pursuant to the Agreement. Upon such termination by the City the Contractor shall not be entitled to any other remedies, claims, actions, profits, or damages except as provided in this paragraph. Upon the receipt of such notice of termination Contractor shall be entitled to the following compensation:
1. The contract value of the work completed to and including the date of receipt of the notice of termination, less the amount of progress payments received by contractor.
2. Actual move -off costs including labor, rental fees, equipment transportation costs, the costs of maintaining on-site construction office for supervising the mover -off.
3. The cost of materials custom made for this Agreement which cannot be used by the Contractor in the normal course of his business, and which have not been paid for by City in progress payments.
Project No. 7902
4. All costs shall not include any markups as might otherwise be allowed by any plans or specifications which were a part of the Agreement.
The provisions of this paragraph shall supersede any other provision of the Agreement or any provision of any plans, specification, addendums or other documents which are or may become a part of this Agreement. City and Contractor agree that the provisions of this paragraph are a substantive part of the consideration for this Agreement.
8.23 Responsibility for Errors. Contractor shall be responsible for its work and results under this Agreement. Contractor, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Contractor occurs, then Contractor shall, at no cost to City, provide all necessary design drawings, estimates and other Contractor professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction.
8.24 Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent this Agreement incorporates by reference any provision of any document, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over the document referenced.
8.25 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.
8.26 No Third -Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Contractor and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement.
8.27 Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
8.28 Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
8.29 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.
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8.30 Funding Source Conditions — Contractor's Obligation. Contractor acknowledges that the City may be paying for the Project by using funds it receives or will receive from various funding sources in the form of grants and/or subsidies, and the like under certain terms and conditions. Contractor acknowledges and agrees that any failure of the Contractor and/or its subcontractors to perform its obligations under the Contract, including, but not limited to, timely submitting accurate reports and records, that in any way results in the City not meeting the terms and conditions placed on the funds by the funding source, or forfeiting its entitlement to or, otherwise, not receiving, the funds, then the Contractor shall be liable to pay the City for the funds not granted to the City on the Project.
8.31 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement.
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above.
ATTEST:
CITY OF PLACENTIA,
A municipal corporation and Charter City
Date:
City Administrator
ATTEST:
Robert S. McKinnell, City Clerk
APPROVED AS TO FORM:
CONTRACTOR
Date:
Signature
Name and Title
Social Security or Taxpayer ID Number
Project No. 7902
Date:
Christian L. Bettenhausen, City Attorney
APPROVED AS TO INSURANCE:
Date:
Rosanna Ramirez, Deputy City
Administrator
APPROVED AS TO CONTENT:
Date:
Project Manager
DEPARTMENTAL APPROVAL
Date:
Luis Estevez, Deputy City
Administrator
(Use of City Bond Form is Required)
LABOR AND MATERIAL PAYMENT BOND
PUBLIC WORK (CALIFORNIA)
KNOW ALL MEN BY THESE PRESENT:
WHEREAS,
entered into a contract dated , with the City
referred to and made a part hereof to perform the following work, to wit:
and all appurtenant work in accordance with PROJECT NO
requires Principal to file this bond to secure claims made in relation to the , as Principal, has
of Placentia (Obligee)
project.
, which
NOW THEREFORE, we, , as Principal,
and , a corporation organized under the
laws of and duly authorized to transact business in the State of California, as Surety, are held firmly bound unto the City of Placentia, as Obligee, and all sub- contractors, laborers, material persons and other persons employed in the performance of the referenced agreement, in the sum of
Dollars ($ .00), lawful money of the United States of America, for the payment whereof well and truly to be made the Principal and Surety bind themselves, their heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
If the above bounden PRINCIPAL, his or its heirs, executors, administrators, successors, assigns, or any of his or its sub -contractors, fails to pay for any materials, provisions, provender, or other supplies, or teams, implements or machinery, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor to persons named in Section 9100 or the Civil Code, thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to such work or labor deducted, withheld and paid over to the Employment Development Department from the wages of employees of the contractor and sub -contractors pursuant to Section 13020 of the Unemployment Insurance Code, that the SURETY on this bond will pay the same, in an amount not exceeding the sum specified in this bond, AND ALSO, in case suit is brought upon this bond, a reasonable attorney's fee, which shall be awarded by the court to the prevailing party in said suit, said attorney's fee to be taxed as costs in said suit and to be included in the judgment herein rendered.
As part of the obligation secured hereby, the SURETY shall not be exonerated or released from the obligation of the bond by any change, alteration, or modification in or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement or pertaining or relating to the furnishing of labor, materials, or equipment therefor, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme of work of improvement, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under
any such contract or agreement, or under the bond, nor, where the bond is given for the benefit of claimants, by any fraud practiced by any person other than the claimant seeking to recover on the bond.
This bond shall inure to the benefit of any and all persons, companies and corporations entitled to file claims under the Civil Code so as to give them a right of action in a suit on this bond.
This bond is executed for the purpose of complying with the laws of the State of California and shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code of the State of California.
IN WITNESS THEREOF, we have hereunto set our hands and seals this day of , 2023.
(Corporate Seal)
(Corporate Seal)
APPROVED AS TO FORM:
/s/ Christian L. Bettenhausen
City Attorney
Principal
By
Title
Principal
By
Title
(Use of City form is required)
SUPPLEMENTAL INFORMATION TO BE COMPLETED BY PRINCIPAL
If an individual, so state. If a firm or co -partnership, state the firm and give the names of all individual co-partners composing the partnership. If a Corporation, state legal name of corporation; state also the names of the president, secretary, treasurer and manager thereof.
Business Address:
Telephone Number:
Date:
Print Name:
Signature:
Principal
Title
(Use of City form
is required)
TAX IDENTIFICATION NUMBER
The Tax Equity and Fiscal Responsibility Act of 1982 requires the payer (City of Placentia) to report to the Internal Revenue Service taxable payments to payees.
You (as a payee) are required by law to provide us with your Taxpayer Identification Number (if an individual or partnership, your Social Security Number). If you do not provide us with your correct identification number, you may be subject to a penalty imposed by the Internal Revenue Service. The payments subject to withholdings may include, but are not limited to, interest, dividends, or other payments the City of Placentia and/or the Placentia Redevelopment Agency made to you. Other payments may include rents, royalties, commissions and fees for service of non -employees.
If you are exempt from income tax, we are still required, by law, to maintain a Tax Identification Number on file. PLEASE PROVIDE YOUR TAX IDENTIFICATION NUMBER next to the appropriate listing below, sign, date and return to:
CITY OF PLACENTIA FINANCE DEPARTMENT
401 E. Chapman
Placentia, CA 92870
Exempt: Yes No Telephone
CORPORATION:
U.S.A. OR ANY AGENCIES THEREOF:
IRS CODE #501 TAX-EXEMPT ORGANIZATION:
A NON-COMMISSIONED CITY OF PLACENTIA EMPLOYEE:
SOLE PROPRIETOR:
A PARTNERSHIP:
OTHER: (Explain)
Signature/Title: Date:
( )
BID GUARANTEE
TO THE CITY OF PLACENTIA
PROJECT NO.
As a material inducement to the City to award the contract for Project No. 7902 to
, the undersigned ("Guarantor") has agreed to enter
into this guarantee. The Guarantor hereby unconditionally guarantees to the fullest extent allowed by law the following work included in this project:
("the work").
Guarantor guarantees that the materials and equipment used by itself and its subcontractors will be free from defects and that the work will conform to the plans and specifications. Should any of the materials or equipment prove defective or should the work as a whole, or any part thereof, prove defective for any reason whatsoever (except due to intentional torts by the City), or should the work as a whole or any part thereof fail to operate properly or fail to comply with the plans and specifications, Guarantor will, at the City's sole election: 1) reimburse the City, upon written demand, for all of the City's expenses incurred replacing or restoring any such equipment or materials, including the cost of any work necessary to make such replacement or repairs; or 2) replace any such defective material or equipment and repair said work completely, all without any cost to the City. Guarantor further guarantees that any such repair work will conform to the plans and specifications for the project. This guarantee will remain in effect for five years from the date on which the contracted for work is accepted for use by the City.
Guarantor understands and agrees that the City shall have the unqualified option to make any replacements or repairs itself or to have such replacement, repair, performed by the undersigned.
The City shall have no obligation to consult with Guarantor before the City proceeds to perform any repair, replacement, or work itself. If the City elects to have Guarantor perform said repair, replacement, or work, Guarantor agrees that the repair, replacement, or work shall be performed within 15 days after receipt of a written demand from the City.
If the City elects to perform the replacement, repairs itself, Guarantor agrees to make reimbursement payment within 15 days after receipt of a written demand for payment from the City.
If the Guarantor fails or refuses to comply with this guarantee, the City shall be entitled to all costs and expenses, including attorneys and expert fees, reasonably incurred by reason of Guarantor's failure or refusal.
Guarantor Date:
Contractor: By:
Title:
CITY OF PLACENTIA
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENT: That,
WHEREAS, the CITY OF PLACENTIA (hereinafter called the "City") has awarded to ., a California corporation (hereinafter "Principal"), an Agreement, dated 20 ("Agreement") whereby Principal agreed to provide construction services including WHEREAS, the Public Work to be performed by the Principal is more particularly set forth in the Agreement which is incorporated herein by reference and made a part hereof; and WHEREAS, said Principal is required under the terms of the Agreement to furnish a bond for the faithful performance of the Agreement;
NOW, THEREFORE, we, ., as Principal, and as Surety, are held and firmly bound unto the City in the sum of
Dollars ($ ) this amount being not less than one hundred percent (100%) of the total contract price under Agreement, lawful money of the United States of America for payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, and successors jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT, the obligation shall become null and void if the above -bounded Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by well and truly keep and perform all the undertakings, terms, covenants, conditions, and agreements in the said Agreement and any alteration thereof, made as therein provided, all within the time and in the manner therein designated and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officer, agents and employees, as therein stipulated; otherwise it shall be and remain in full force and virtue.
As a part of the obligation secured hereby, and in addition to the face amount specified, costs and reasonable expenses and fees shall be included, including reasonable attorneys' fees, incurred in successfully enforcing the obligation on the bond, all to be taxed as costs and included in any judgment rendered.
The said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or modification of the Agreement, the contract documents or of the work to be performed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extensions of time, alteration or modification of Agreement, the contract documents or of the work to be performed thereunder.
Surety's obligation shall be a guarantee of payment and performance and shall not be diminished by any bankruptcy or reorganization in bankruptcy or liquidation or the result of the foregoing or otherwise of Principal. Accordingly, the filing of any petition in bankruptcy or for rearrangement or reorganization or liquidation (or proceedings similar in purpose or effect) of Principal under any federal or state laws ("Insolvency Case") will not toll or delay the date due for payment or performance hereunder as more particularly specified in of the Construction Management Agreement. The City shall be not be required to await the outcome of an Insolvency Case or to enforce any of their respective rights under the Agreement, respectively, prior to obtaining payment in full from Surety. If for any reason payment received by the City in respect of the obligations of the Principal under the Agreement guaranteed pursuant to this bond is
rescinded or must be returned or restored by the City, this bond shall be automatically reinstated and shall continue to be in effect as if such payment had not been made.
Collection of liquidated damages by City due to Principal's failure to timely achieve Substantial Completion shall not limit, modify, or act as an offset or credit against Surety's obligation to arrange for or cause the completion of the Public Work as and when required by the Agreement.
IN WITNESS WHEREOF three (3) identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety named herein, on the day of , 20, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of its governing body. (Seal)
SURETY
By
ADDRESS
APPROVED:
required from all
CITY ATTORNEY
INSTRUCTIONS
(Seal)
PRINCIPAL
By X
x
ADDRESS
Two (2) Notarized Signatures
Corporations.
1. The above bond must be executed by both the Principal and the Surety.
2. If the Principal is a corporation, the bond must be executed in the corporate name and signed by the President or a Vice -President and the Secretary or Assistant Secretary, and the corporate seal affixed. If the Principal is a partnership, all partners must sign it. If the Principal is an individual doing business under a fictitious name, it must be signed by all persons having an interest in the business, and the fictitious name must be signed also.
The bond must be notarized by both the Principal and the Surety.
3. The City Attorney of the City of Placentia must approve the bond.
4. The bond, after approval, must be filed with the City Clerk of the City of Placentia.
CITY OF PLACENTIA
PERFORMANCE BOND
Special requirements for construction/deconstruction waste CITY OF PLACENTIA MUNICIPAL CODE SECTION: 8.04.390
KNOW ALL MEN BY THESE PRESENT: That,
WHEREAS, the CITY OF PLACENTIA (hereinafter called the "City") has issued to ., a California corporation (hereinafter "Principal"), a permit, dated , 20 ("Agreement") whereby Principal agreed to comply with the City's Municipal Code Section 8.04.390 for includina
WHEREAS, the Public Work to be performed by the Principal is more particularly set forth in the Agreement which is incorporated herein by reference and made a part hereof; and WHEREAS, said Principal is required under the terms of the Agreement to furnish a bond for the faithful performance of the Agreement;
NOW, THEREFORE, we, ., as Principal, and as Surety, are held and firmly bound unto the City in the sum of
Dollars ($ ) this amount being not less than one hundred percent (100%) of the total contract price under Agreement, lawful money of the United States of America for payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, and successors jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT, the obligation shall become null and void if the above -bounded Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to and abide by well and truly keep and perform all the undertakings, terms, covenants, conditions, and agreements in the said Agreement and any alteration thereof, made as therein provided, all within the time and in the manner therein designated and in all respects according to their true intent and meaning, and shall indemnify and save harmless the City, its officer, agents and employees, as therein stipulated; otherwise it shall be and remain in full force and virtue.
As a part of the obligation secured hereby, and in addition to the face amount specified, costs and reasonable expenses and fees shall be included, including reasonable attorneys' fees, incurred in successfully enforcing the obligation on the bond, all to be taxed as costs and included in any judgment rendered.
The said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or modification of the Agreement, the contract documents or of the work to be performed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extensions of time, alteration or modification of Agreement, the contract documents or of the work to be performed thereunder.
Surety's obligation shall be a guarantee of payment and performance and shall not be diminished by any bankruptcy or reorganization in bankruptcy or liquidation or the result of the foregoing or otherwise of Principal. Accordingly, the filing of any petition in bankruptcy or for rearrangement or reorganization or liquidation (or proceedings similar in purpose or effect) of Principal under any federal or state laws ("Insolvency Case") will not toll or delay the date due for payment or performance hereunder as more particularly specified in of the Construction Management Agreement. The City shall be not be required to await the outcome of an Insolvency Case or to enforce any of their respective rights under the Agreement, respectively, prior to obtaining payment in full from Surety. If for any reason payment received by the City in respect of the obligations of the Principal under the Agreement guaranteed pursuant to this bond is rescinded or must be returned or restored by the City, this bond shall be automatically reinstated and shall continue to be in effect as if such payment had not been made.
Collection of liquidated damages by City due to Principal's failure to timely achieve Substantial Completion shall not limit, modify, or act as an offset or credit against Surety's obligation to arrange for or cause the completion of the Public Work as and when required by the Agreement.
IN WITNESS WHEREOF three (3) identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety named herein, on the day of 20, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of its governing body. (Seal)
SURETY
By
(Seal)
PRINCIPAL
By X
ADDRESS ADDRESS
APPROVED: Two (2) Notarized Signatures required from all Corporations.
CITY ATTORNEY
INSTRUCTIONS
1. The above bond must be executed by both the Principal and the Surety.
2. If the Principal is a corporation, the bond must be executed in the corporate name and signed by the President or a Vice - President and the Secretary or Assistant Secretary, and the corporate seal affixed. If the Principal is a partnership, all partners must sign it. If the Principal is an individual doing business under a fictitious name, it must be signed by all persons having an interest in the business, and the fictitious name must be signed also. The bond must be notarized by both the Principal and the Surety.
3. The City Attorney of the City of Placentia must approve the bond.
4. The bond, after approval, must be filed with the City Clerk of the City of Placentia.
STATEMENT OF NON -COLLUSION BY CONTRACTOR
The undersigned who submits herewith to the City of Placentia a bid or proposal does hereby certify:
a. That all statements of fact in such bid or proposal are true; b. That such bid or proposal was not made in the interest of or on behalf of any undisclosed person, partnership, company, association, organization or corporation; c. That such bid or proposal is genuine and not collusive or sham; d. That said bidder has not, directly or indirectly by agreement, communication or conference with anyone, attempted to induce action prejudicial to the interest of the City of Placentia or of any other bidder or anyone else interested in the proposed procurement; e. Did not, directly or indirectly, collude, conspire, connive or agree with anyone else that said bidder or anyone else would submit a false or sham bid or proposal, or that anyone should refrain from bidding or withdraw his bid or proposal;
f. Did not in any manner, directly or indirectly seek by agreement, communication or conference with anyone to raise or fix the bid or proposal price of said bidder or of anyone else, or to raise or fix any overhead, profit or cost element of his bid or proposal price, or that of anyone else; Did not, directly or indirectly, submit his bid or proposal price or any breakdown thereof, or the contents thereof, or divulge information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member agent thereof, or to any individual or group of individuals, except to the City of Placentia, or to any person or persons who have a partnership or their financial interest with said bidder in his business. h. Did not provide, directly or indirectly to any officer or employee of the City of Placentia any gratuity, entertainment, meals, or anything of value, whatsoever, which could be objectively construed as intending to invoke any form of reciprocation or favorable treatment. i. That no officer or principal of the undersigned firm is related to any officer or employee of the city by blood or marriage within the third degree or is employed, either full or part time, by the City of Placentia either currently or within the last two (2) years. j. That no officer or principal of the undersigned firm nor any subcontractor to be engaged by the principal has been convicted by a court of competent jurisdiction of any charge of fraud, bribery, collusion, conspiracy or any other act in violation of any state or federal antitrust law in connection with the bidding upon award of, or performance of, any public work contract, with any public entity, within the last three years.
g.
I certify, under penalty of perjury under the laws of the State of California, that the foregoing is true and correct and that this certification was executed:
On at California.
Firm
Street
City State Zip
(Signature)
(Print Name & Title)
EXHIBIT A
SCOPE OF SERVICES
The project includes providing all labor, materials, equipment, tools and incidentals as required to install park improvements, including ADA accessibility, as required by the Plans, Specifications and Contract Documents. The scope of work includes removal of existing sidewalk and other existing conditions throughout the park to allow construction of park improvements including, but not limited to, park parking lot pavement reconstruction, curb ramps, truncated domes, vehicular and pedestrian paths, drainage, curbs, relocation of existing signs and posts, pavement striping and markings, installation of playground equipment, bocce ball court and shade structure, site furnishings, landscaping, irrigation and electrical systems, and all items not mentioned but included in the plans and specifications. All work must be performed in accordance with the approved plans and specifications for this project.
EXHIBIT B
SCHEDULE OF PERFORMANCE
All work must be complete within One Hundred Thirty -Five (135) work days from the issuance of the Notice to Proceed.
EXHIBIT C
INSURANCE REQUIREMENTS
Contractor shall maintain and shall require all its subcontractors, consultants, and other agents to maintain the insurance listed below. Any requirement for insurance to be maintained after completion of the work shall survive this agreement.
CITY reserves the right to review any and all of the required insurance policies and/or endorsements but has no obligation to do so. Failure to demand evidence of full compliance with the insurance requirements set forth in this agreement or failure to identify any insurance deficiency shall not relieve Contractor from, nor be construed or deemed a waiver of, its obligation to maintain the required insurance at all times during the performance of this agreement.
A. Workers Compensation & Employers Liability Insurance • Workers Compensation insurance with statutory limits as required by the Labor Code of the State of California.
• Employers Liability with limits of $1,000,000 per Accident; $1,000,000 Disease per employee; $1,000,000 Disease per policy.
• The policy shall include a written waiver of the insurer's right to subrogate against CITY.
• Required Evidence of Coverage:
1. Subrogation waiver endorsement; and
2. Properly completed Certificate of Insurance.
B. General Liability Insurance
• Commercial General Liability Insurance no less broad than Insurance Services Office (ISO) form CG 00 01.
• Coverage shall be on a standard occurrence form. Claims -Made forms are not acceptable without prior written consent. Modified, limited or restricted Occurrence forms are not acceptable without prior written consent. • Minimum Limits: $1,000,000 per Occurrence; $2,000,000 General Aggregate; $2,000,000 Products/Completed Operations Aggregate. The General Aggregate shall apply separately to each project. The required
limits may be provided by a combination of General Liability Insurance and Commercial Excess or Umbrella Liability Insurance. If contractor maintains higher limits than the specified minimum limits, CITY requires and shall be entitled to coverage for the higher limits maintained by contractor. • Any deductible or self-insured retention shall be shown on the Certificate of Insurance. If the deductible or self-insured retention exceeds $25,000 it must be approved in advance by CITY. Contractor is responsible for any deductible or self-insured retention and shall fund it upon CITY'S written request, regardless of whether Contractor has a claim against the insurance or is named as a party in any action involving CITY. • Coverage shall be continued for one (1) year after completion of the work. • CITY shall be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of the contractor. CITY shall continue to be an additional insured for completed operations for (1) year after completion of the work.
• The policy definition of "insured contract" shall include assumptions of liability arising out of both ongoing operations and the products-completed operations hazard ("f" definition of insured contract in ISO form CG 00 01, or equivalent).
• The insurance provided to the additional insureds shall be primary to, and non-contributory with, any insurance or self-insurance program maintained by them.
• The policy shall cover inter-insured suits and include a "Separation of Insureds" or "severability" clause which treats each insured separately. • The policy shall be endorsed to include a written waiver of the insurer's right to subrogate against all persons or entities that are, or are required to be, additional insureds.
• The policy shall not contain a Contractors' Warranty or other similar language which eliminates or restricts insurance because of a subcontractor's failure to carry specific insurance or to supply evidence of such insurance.
• Required Evidence of Coverage:
1. Copy of the additional insured endorsement or policy language granting additional insured status; (The City of Placentia, its
officers, employees, representatives, attorneys, and volunteers shall be named as additional named insureds with respect to: liability arising out of activities performed by or on behalf of the Contractor and all Subcontractors pursuant to its contract with the City; products and completed operations of the Consultant; premises owned, occupied or used by the Contractor and all Subcontractors; automobiles owned, leased, hired, or borrowed by the Contractor and all Subcontractors.)
2. 3. Copy of the endorsement or policy language indicating that coverage applicable to the additional insureds is primary and non-contributory;
4. Properly completed Certificate of Insurance; and
5. Completed and signed Agent/Broker Questionnaire with supporting documentation as required.
C. Automobile Liability Insurance
• Minimum Limit: $1,000,000 combined single limit per accident. • Coverage shall apply to all owned, hired and non -owned vehicles. • CITY shall qualify as an insured.
• Required Evidence of Coverage:
1. Copy of the endorsement or policy language indicating that CITY is an insured; and
2. Properly completed Certificate of Insurance.
D. Contractors Pollution Liability Insurance
• Minimum Limits: $1,000,000 per Pollution Incident; $1,000,000 Aggregate; • Coverage shall apply to pollution incidents at or from any location at which Contractor is performing work under this agreement.
• Any deductible or self-insured retention shall be shown on the Certificate of Insurance. If the deductible or self-insured retention exceeds $25,000 it shall be approved in advance by CITY. Contractor is responsible for any deductible or self-insured retention and shall fund it upon CITY written request, regardless of whether Contractor has a claim against the
insurance or is named as a party in any action involving CITY. • CITY shall be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of the Contractor.
Additional insured status shall continue for one (1) year after completion of the work.
• The insurance provided to the additional insureds shall apply on a primary and non-contributory basis with respect to any insurance or self-insurance program maintained by them.
• If the insurance is on a Claims -Made basis, the retroactive date shall be no later than the commencement of work.
• The insurance shall be continued for one (1) year after completion of the work. If the insurance is on a Claims -Made basis, the continuation coverage may be provided by: (a) renewal of the existing policy; (b) an extended reporting period endorsement; or (c) replacement insurance with a retroactive date no later than the commencement of the work. • Required Evidence of Coverage:
1. Copy of the additional insured endorsement or policy language granting additional insured status;
2. Copy of the endorsement or policy language indicating that coverage for the additional insureds is primary and non- contributory;
3. Properly completed Certificate of Insurance.
E. Surety Bonds
• Bid bond.
• Performance and payment bonds for the entire contract price. • The surety must be authorized to issue these bonds in the State of California.
F Standards for Insurance Companies
• Insurers, other than the California State Compensation Insurance Fund, shall have an A.M. Best's rating of at least A:VII.
G. Documentation
• The Certificate of Insurance shall include the following reference: Parque del Arroyo Verde Renovation Project — City Project No. 7902 • The name and address for Additional Insured endorsements and Certificates of Insurance is: City of Placentia
• Contractor shall provide immediate written notice if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required policies are reduced; or (3) the deductible or self-insured retention is increased.
• Current Evidence of Coverage shall be provided for the entire required period of insurance.
• Upon written request, certified copies of required insurance policies shall be provided within thirty (30) days.
EXHIBIT D
CERTIFICATES OF INSURANCE AND ENDORSEMENTS
ACCORD
CERTIFICATE OF LIABILITY INSURANCE
DATE (MM/DD/YYYY)
04/04/2023
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).
NAME GT CLIENT CONTACT CENTER
(A/C, No, Ext): 888-333-4949 FAX No): 507-446-4664
PHONE
kirDAAss:CLIENTCONTACTCENTERC FEDINS.COM
INSURERS AFFORDING COVERAGE NAIC #
INSURER A:FEDERATED MUTUAL INSURANCE COMPANY 13935
INSURED 497-082-8 INSURER B:
INSURER C:
INSURER D:
INSURER E:
INSURER F:
COVERAGES CERTIFICATE NUMBER: 24 REVISION NUMBER: 0
PRODUCER
FEDERATED MUTUAL INSURANCE COMPANY
HOME OFFICE: P.O. BOX 328
OWATONNA, MN 55060
LEGION CONTRACTORS, INC.
18008 SKY PARK CIR STE 290
IRVINE, CA 92614-6431
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 PEN REDUr'ED BY PAID CLAIMS.
INSRTR TYPE OF INSURANCE
COMMERCIAL GENERAL LIABILITY
CLAIMS -MADE X OCCUR
ADDL SUBR
(NCR wvn
POLICY NUMBER
( M/DD/YVYY) (MSI/nrSvYvvl
X BUSINESS OWNER'S LIABILITY
A Y N 6155593 05/12/2022 05/12/2023
GEN L AGGREGATE LIMIT APPLIES PER:
X
POLICY
OTHER:
PRO- LOC
ECT
LIMITS
EACH OCCURRENCE
DAMAGErTO RENTED PREMISES
MED EXP (Any one person)
PERSONAL & ADV INJURY
1 GENERAL AGGREGATE
PRODUCTS & COMP/OP ACC
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT
(Ea accident)
X ANY AUTO BODILY INJURY (Per Person)
A }WNED AUTOS ONLY AUTOS ULED N N 6155594 05/12/2022 05/12/2023 BODILY INJURY (Per Accident) AIRED AUTOSOWNLY 43TOSONLY I tPorAcidnenDAMAGE
X UMBRELLA LIAB OCCUR
A EXCESS LIAB CLAIMS -MADE N N
DED (RETENTION
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
ANY PROPRIETOR/PARTNERI EXECUTIVE
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH)
If yes, describe under
DESCRIPTION OF OPERATIONS below
POLLUTION LIABILITY
A
$1,000,000
$100,000
$1,000,000
$2.000.000
$2,000,000
$1,000,000
EACH OCCURRENCE $2,000,000
6155595 05/12/2022 05/12/2023 (AGGREGATE
YIN PER STATUTE bTHER
CN/A E.L EACH ACCIDENT
E.L DISEASE EA EMPLOYEE
E.L DISEASE • POLICY LIMIT
N N 1814037 05/12/2022 05/12/2023 EA POLL INCIDENT
AGGREGATE
DESCRIPTION OF OPERATIONS 1 LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
SEE ATTACHED PAGE
CERTIFICATE HOLDER CANCELLATION
497-082-8
CITY OF PLACENTIA
401 E CHAPMAN AVE
PLACENTIA, CA 92870-6101
24 0
$2,000,000
$1,000,000
$1,000,000
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
/0..044
© 1988-2015 ACORD CORPORATION. All rights reserved.
ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD
AGENCY CUSTOMER ID: 497-082-8
AC I LOC #:
ADDITIONAL REMARKS SCHEDULE
AGENCY
FEDERATED MUTUAL INSURANCE COMPANY
POLICY NUMBER
SEE CERTIFICATE # 24.0
CARRIER
NAIC CODE
NAMED INSURED
LEGION CONTRACTORS, INC.
18008 SKY PARK CIR STE 290
IRVINE, CA 92614-6431
EFFECTIVE DATE: SEE CERTIFICATE # 24.0
SEE CERTIFICATE # 24.0
ADDITIONAL REMARKS
THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE CITY PROJECT #7902
PARQUE DEL ARROYO VERDE RENOVATION PROJECT
ADDITIONAL INSURED ALSO INCLUDE THE CITY OF PLACENTIA, ITS OFFICERS, EMPLOYEES, REPRESENTATIVES, ATTORNEYS, AND
VOLUNTEERS
THE CERTIFICATE HOLDER IS AN ADDITIONAL INSURED SUBJECT TO THE CONDITIONS OF THE ADDITIONAL INSURED BY CONTRACT ENDORSEMENT FOR BUSINESSOWNERS LIABILITY.
ACORD 101 (2008/01) O 2008 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered marks of ACORD
FEDERATED INSURANCE COMPANIES
THIS ENDORSEMENT MODIFIES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED BY CONTRACT ENDORSEMENT
This endorsement modifies insurance provided under the following:
BUSINESSOWNERS LIABILITY COVERAGE FORM
A. Paragraph C. Who Is An Insured is amended to include as an additional insured any person or organization, other than a joint venture, for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured 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.
A person's or organization's status as an additional insured under this endorsement ends when your operations for that additional insured are completed.
This additional insurance does not apply to:
1. An employee, association of employees or labor union, except with respect to work performed by or for you for such employee, association of employees or labor union under direct contract between you as contractor and such employee, association of employees or labor union as owners;
2. Any railroad company except with respect to work performed by or for you for such railroad company under direct contract or agreement between you and such railroad company;
3. Any person or organization whose profession, business or occupation is that of an architect, surveyor or engineer with respect to liability arising out of the preparation or approval of or the failure in preparation or approval of maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs, drawings, specifications or the performance of any other professional services by such person or organization; or
4. Any of your Subcontractors, or any partner, officer, agent or employee of such Subcontractor.
B. The Coverage extended to any additional insured by this endorsement is limited to, and subject to, all terms, conditions, and exclusions of the coverage form to which this endorsement is attached.
In addition, Coverage shall not exceed the terms and conditions that are required by the terms of the written agreement to add any insured, or to procure insurance.
C. In the event that the Limits of Insurance shown in the Declarations exceeds the limits of liability required in a written contract or written agreement for an additional insured, the insurance provided to the additional insured shall be limited to the limits of liability required by that written contract or written agreement.
D. Additional Exclusions
The insurance afforded to any person or organization as an insured under this endorsement does not apply:
1. To "bodily injury", "property damage" or "personal and advertising injury" which occurs prior to the date of your contract with such person or organization;
2. To "bodily injury" or "property damage" included within the "products - completed operations hazard"; or
3. To "bodily injury", "property damage" or "personal and advertising injury" arising out of the sole negligence of any person or organization that would not be an insured except for this endorsement.
Includes copyrighted material of Insurance Services Office, Inc. with its permission.
BP -F-115 (07-09)
Policy Number: 6155593 Transaction Effective Date: 05-12-2022
®
ACRD
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,
CERTIFICATE OF LIABILITY INSURANCE
I DATE /MM+DDIYYYY)
11/22/2022
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the palicy(ies) crust have ADDITIONAL INSURED provisions or he endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions off 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
Primary Source Insurance Agency Inc
121 E Park Square
Owatonna MN 55060
INSURED
Legon Contractors Inc
70 Dorman Ave Ste 3
San Francisco CA 941 24-1 80 9
COVERAGES CERTIFICATE NUMBER:
22-23 WC
CONTACT Adele Steiter
NAME.
PHONE (600)760-2609
INC. No. Extl.
ADDRESS: [email protected]
I INC. NCI: /877) 446-4631
INSURER(S) AFFORDING COVERAGE NAIC #
INSURER A: State Comp Ins Fund
INSURER B
INSURER C
INSURER D .
INSURER E
INSURER F
REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW -IAVE 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 INSR HUUt SUE'R POLICY EFF POLICY EXP
LTR TYPE OF INSURANCE INSD WVD POLICY NUMBER (MAB/DDIYYYYI (MM1OD,YYYY) LIMITS
COMMERCIAL GENERAL LIABILITY
CANIS -MADE n OCCUR
GEN'LAGGREGATE LIMIT APPLIES PER
PUL:CY 950-
JECT El LOC
OTHER -
AUTOMOBILE LIABILITY
ANY AUTO
- OWNED
- AUTOS ONLY
HIRED
- AUTOS ONLY
UMBRELLA UAB
SCHEDULED
AUTOS
NON -OWNED
AUTOS ONLY
EXCESS LIAB
DEG I 1 RETENTION $
WORKERS COMPENSATIOA
AND EMPLOYERS' LIABILITY
A ANY PROPRIETORIPARTNER'EXECUTIVE
OFFICER/MEMBER EXCLUDED,
(Mandatory in NH)
I1 ves, descr he raider
DESCRIPTION CF OPERATIONS below
OCCUR
CLAIMS -MADE
YiN
Y
NIA Y 9264599-22
11/21/2022 11121/2023
DESCRIPTION OF OPERATIONS 1 LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may he attached if more space is. required) BLANKET WAIVER OF SUBROGATION APPLIES TO THE WORK COMP POLICY.
CERTIFICATE HOLDER
City of Placentia
401 E. Chapman Avenue
Placentia
CA 92870
CANCELLATION
EACH OCCURRENCE 0
DAMAGE 10 REN (ED
PREMISES (Ea occurrencel $
MED EXP (Any one person) 0
PERSONAL&ADV INJURY 0
GENERAL AGGREGATE $
PROL11UCTS-COMPIOPAGG $
$
COMBINED S,NGLE LIMIT
IEa accdentl
EODILY INJURY 1 Pe, person) $
SOD!Li INJURY (mer ceccent)
Y.`IOPERTY DAMAGE
!Per acc!denti
EACH OCCURRENCE 3
A5GREG4TE $
$
XI STATI TE I I EERH-
E L EACH ACCIDENT
E I_ DISEASE- EA EMPLOYEE
E.L DISEASE - POLICY LIMIT
1,000,000
$ 1.000,000
$ 1,000,000
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
© 1988-2015 ACORD CORPORATION. All rights reserved.
ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD
STATE
COMPENSATION
INSURANCE
FUND
ENDORSEMENT AGREEMENT
WAIVER OF SUBROGATION
BLANKET BASIS
BROKER COPY
HOME OFFICE
SAN FRANCISCO EFFECTIVE NOVEMBER 21, 2022 AT 12.01 A.M.
ALL EFFECTIVE DATES ARE AND EXPIRING NOVEMBER 21, 2023 AT 12.01 A.M.
AT 12:01 AM PACIFIC
STANDARD TIME OR THE
TIME INDICATED AT
PACIFIC STANDARD TIME
LEGION CONTRACTORS INC
70 DORMAN AVE STE #3
SAN FRANCISCO, CA 94124
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.
THE ADDITIONAL PREMIUM FOR THIS ENDORSEMENT SHALL BE
2.00% OF THE TOTAL POLICY PREMIUM.
SCHEDULE
PERSON OR ORGANIZATION JOB DESCRIPTION
ANY PERSON OR ORGANIZATION BLANKET WAIVER OF
FOR WHOM THE NAMED INSURED SUBROGATION
HAS AGREED BY WRITTEN
CONTRACT TO FURNISH THIS
WAIVER
9264599-22
RENEWAL
NF
8-55-97-01
PAGE 1 OF 1
NOTHING IN THIS ENDORSEMENT CONTAINED SHALL BE HELD TO VARY, ALTER, WAIVE
OR EXTEND ANY OF THE TERMS, CONDITIONS, AGREEMENTS, OR LIMITATIONS OF THIS POLICY OTHER THAN AS STATED. NOTHING ELSEWHERE IN THIS POLICY SHALL BE
HELD TO VARY, ALTER, WAIVE OR LIMIT THE TERMS, CONDITIONS, AGREEMENTS OR LIMITATIONS OF THIS ENDORSEMENT.
COUNTERSIGNED AND ISSUED AT SAN FRANCISCO:
2572
AUTHORIZED REPRESENT NE PRESIDENT AND CEO
SCIF FORM 10217 IREV.7-2014)
NOVEMBER 22, 2022
OLD DP 217
EXHIBIT E
CLAIMS PROCEDURE
SUMMARY OF PUBLIC CONTRACT CODE § 9204
The following procedure will apply to any claims by the Contractor on the City:
A "claim" is a separate demand on the City by a contractor on a public works project and sent by registered mail or certified mail with return receipt requested, for one or more of the following:
• A time extension, including relief from penalties for delay • Payment by the City of money damages under the terms of the contract • Payment of an amount that is disputed by the City
Initial Review
The claim must be supported by appropriate documentation. The City has 45 days within which to review the claim and provide the contractor with a written statement identifying the disputed and undisputed portions of the claim. If the City does not issue a written statement, the claim is deemed rejected in its entirety. The City will pay any undisputed portion of the claim within 60 days of issuing the statement.
Meet & Confer
If the contractor disputes the City's written response, or if the City does not issue one, the contractor may request in writing an informal conference to meet and confer for possible settlement of the claim. The City will schedule the meet and confer conference within 30 days of this request and provide a written statement identifying the remaining disputed and undisputed portions of the claim within 10 business days of the meet and confer. The City will pay the undisputed portion within 60 days of issuing this statement.
Mediation
With respect to any disputed portion remaining after the meet and confer, the City and contractor will submit the matter to nonbinding mediation, agree to a mediator within 10 business days after issuing the written statement, and share mediation costs equally. If mediation is unsuccessful, then the terms of the public works agreement and applicable law will govern resolution of the dispute.
Miscellaneous Provisions
Amounts not paid by the City in a timely manner bear interest at 7% per annum.
Subcontractors may submit claims via this procedure through the general contractor. The City and contractor may waive the requirement to mediate but cannot otherwise waive these claim procedures.
SECTION C
PROPOSAL
for the
PARQUE DEL ARROYO VERDE RENOVATION PROJECT
CITY PROJECT NO. 7902
in the
CITY OF PLACENTIA
TO THE HONORABLE MAYOR AND MEMBERS OF THE COUNCIL OF PLACENTIA:
In compliance with the Notice Inviting Sealed Bids, the undersigned hereby proposes and agrees to perform all the work therein described, and to furnish all labor, material, equipment and incident insurance necessary therefor, in accordance with the Scone of Work as described on the Bid Documents and depicted in Appendix I. The undersigned agrees to perform the work therein to the satisfaction of and under the supervision of the City Engineer of the City of PLACENTIA, and to enter into a contract at the following prices. The undersigned agrees to complete the work within Sixty (60) working days, starting from the date mentioned in the Notice to Proceed or liquidated damages of $500 per workday will be applied.
BIDDER declares that this proposal is based upon careful examination of the work site, plans, specifications, Instructions to Bidders and all other contract documents. If this proposal is accepted for award, BIDDER agrees to enter into a contract with AGENCY at the unit and/or lump sum prices set forth in the following Bid Schedule. BIDDER understands that failure to enter into a contract in the manner and time prescribed will result in forfeiture to AGENCY of the guaranty accompanying this proposal.
BIDDER understands that a bid is required for the entire work, that the estimated quantities set forth in the Bid Schedule are solely for the purpose of comparing bids, and that final compensation under the contract will be based upon the actual quantities of work satisfactorily completed. THE AGENCY RESERVES THE RIGHT TO DELETE ANY ITEM FROM THE CONTRACT. It is agreed that the unit and/or lump sum prices bid include all appurtenant expenses, taxes, royalties, fees, etc., and will be guaranteed for a period of ninety days from the bid opening date. If at such time the contract is not awarded, the AGENCY will reject all bids and will re -advertise the project.
In the case of discrepancies in the amounts bid, unit prices shall govern over extended amounts, and words shall govern over figures.
C-1
If awarded the Contract, the undersigned agrees that in the event of the BIDDER'S default in executing the required contract and filing the necessary bonds and insurance certificates within 10 working days after the date of the AGENCY'S notice of award of contract to the BIDDER, the proceeds of the security accompanying this bid shall become the property of the AGENCY and this bid and the acceptance hereof may, at the AGENCY'S option, be considered null and void.
Accompanying this proposal of bid, find Bidder's Bond in the amount of $10% of Total Bid which said amount is not less than 10% of the aggregate of the total bid price, as required by the Notice Inviting Sealed Bids, payable to the AGENCY. (Please insert the words "Cash", "Certified Check", or "Bidder's Bond", as the case may be).
Bidder shall signify receipt of all Addenda here, if any:
Addenda No. Date Received
1 02/15/2023
2 02/22/2023
3 02/27/2023
4 02/28/2023
C-2
Bidder's Signature
PARQUE DEL ARROYO VERDE RENOVATION PROJECT
CITY PROJECT NO. 7902
BID SCHEDULE
ITEM
NO. ITEMS DESCRIPTION
1. Mobilization (not to exceed 5% of total bid)
2. Traffic Control & Public Safety
3. Best Management Practices
4. Clearing & Grubbing
5. Demolition & Removals
6. Earthwork & Grading
7. Survey Markers, Monument Preservation and
Restoration & Construction Staking
8. Sawcut, Remove Existing & Construct AC
Paving
9. Pavement 2" Grind and Construct 2" AC
Overlay
10. Construct PCC Curb Ramp
11. Install 3/4" Diameter Type K Copper Water
Service Line
12. Install 6" Diameter PVC Schedule 80 Drain
Line
13. Install 2" Diameter PVC Schedule 80 Drinking
Fountain Drain Line
14. Install 3" Diameter PVC Schedule 40 Bocce
Court Drain Line
15. Install Drain Inlet / Catch Basin
16. Install Atrium Drain Inlet
17. Install Sump Drain
18. Remove and Replace Accessible Stall Signs
19. Signing, Striping, Marking and Pavement
Legends
20. Temporary Construction Fencing
21. Concrete Flatwork (4" Thick) Pedestrian
22. Concrete Flatwork (6" Thick) Vehicular
23. Stabilized Decomposed Granite (3" Thick)
24. Bocce Ball Court Decomposed Granite and
Oyster Flour Mix w/Filter Fabric & Drainage
QUANTITY UNIT
1 LS
1 LS
1 LS
1 LS
1 LS
1 LS
1 LS
240 SF
8,600 SF
1 EA
50 LF
1,200 LF
60 LF
60 LF
18 EA
8 EA
3 EA
2 EA
1 LS
1 LS
12,860 SF
9,320 SF
2,064 SF
1 LS
C-3
UNIT PRICE
TOTAL
$ 95,000 $ 95,000
$ 5,000
$ 25,000
$ 80,000
$ 40,000
$ 90,000
$ 20,000
$ 20
$5
$ 4,000
$ 100
$ 12
$ 10
$ 10
$ 3,000
$ 500
$ 1,500
$ 500
$ 3,500
$ 12,000
$ 17
$ 20
$ 2.50
$ 9,000
$ 5,000
$ 25,000
S 80,000
S 40,000
S 90,000
$ 20,000
$ 4,800
$ 43,000
$ 4,000
$ 5,000
$ 14,400
$ 600
$ 600
$ 54,000
$ 4,000
$ 4,500
S 1,000
S 3,500
S 12,000
S 218,620
S 186,400
S 5,160
S 9,000
ITEM
NO. ITEMS DESCRIPTION QUANTITY
UNIT
UNIT PRICE TOTAL
25. Concrete Header (8" Wide)
413 LF
26. Concrete Curb (12" Wide) at Bocce Ball Court 210 LF
27. Concrete Playground Curb (16" Wide) at 346 LF
Planter
$ 30
$ 70
$ 75
28. Concrete Playground Curb (16" Wide) at 392 LF $ 75
Hardscape
29. Concrete Ramp at Playground 260 SF $ 15
30. Engineered Wood Fiber (16" Depth) 430 CY $ 75
31. Kompan Round About Supernova 1 LS $ 16,000
32. Playground Safety Inspection Report 1 LS $ 2,500
33. Restroom Improvements 1 LS
(Allowance of $20,000)
34. Shade Structure Pergola (37'-6" x 37'-6") 1 LS
35. 6' Bench
14 EA
36. 6" Diameter Removable Pipe Bollard w/Lock 2 EA
and In -Ground Base Plate
$ 20,000
$ 335,000
$ 2,800
$ 1,500
37. 58" Picnic Rectangular Table 16 EA $ 1,800
38. 68" ADA Picnic Rectangular Table 9 EA $ 1,800
39. Double Waste Receptacle 17 EA $ 2,800
40. Precast Ping Pong Table 1 EA $ 24,000
41. Bike Rack 6 EA $ 1,000
42. ADA Drinking Fountain w/Bottle Filler 1 EA $ 8,500
43. Hot Ash Receptacle 2 EA $ 2,500
44. BBQ 2 EA $ 2,500
45. 6" Diameter Pipe Permanent Bollard 1 EA $ 3,000
46. Soil Preparation and Fine Grading 90,678 SF $ 0.30
47. Weed Abatement 90,678 SF $ 0.02
48. Relocating Existing Boulders 5 EA $ 320
49. Trees - 24" Box 29 EA $ 450
50. Shrubs - 15 Gallon 58 EA $ 127
51. Shrubs - 5 Gallon 128 EA $ 27
52. Shrubs - 1 Gallon 1,116 EA $ 10
53. Turf - Sod 82,359 SF $ 1.20
C-4
$ 12,390
S 14,700
S 25,950
S 29,400
S 3,900
$ 32,250
$ 16,000
$ 2,500
$ 20,000
$ 335,000
$ 39,200
S 3,000
S 28,800
S 16,200
$ 47,600
$ 24,000
$ 6,000
$ 8,500
S 5,000
S 5,000
S 3,000
S 27,203.40
S 1,813.56
S 1,600
S 13,050
S 7,366
S 3,456
S 11,160
S 98,830.80
ITEM
NO.
ITEMS DESCRIPTION
QUANTITY
UNIT
UNIT PRICE
TOTAL
54. Irrigation System
55. Wood Mulch (3" Layer)
56. Ninety (90) Day Maintenance
57. Electrical
1 77
1 1
LS $ 207,000
CY $ 77
LS $ 10,000
LS $ 295,000
TOTAL BID PRICE WRITTEN IN FIGURES: $ 2,286,378.76
S 207,000
S 5,929
S 10,000
S 295,000
TOTAL BID PRICE WRITTEN IN WORDS:
Two Million, Two Hundred Eighty -Six Thousand, Three Hundred Seventy -Eight Dollars and Seventy Six Cents Through submission on PlanetBids, the bidder certifies that he/she has followed the bidder instructions, acknowledges the requirements set forth in this proposal form for bid submission, and has thoroughly checked the figures set forth in this proposal and inputted into PlanetBids, that they are correct to the best of his/her knowledge and constitute his/her proposal to perform all the work called out and implied throughout these contract documents. ***BID ITEMS TO BE INPUTTED ON-LINE VIA PLANETBIDS***
C-5
LIST OF SUBCONTRACTORS
In accordance with Public Contract Code Section 4104, the Bidder shall set forth the name and business address of each subcontractor who will perform work or render service to the bidder on said contract in an amount in excess of one-half of one percent of the total bid or $10,000, whichever is greater, and the portion of the work to be done by such subcontractor.
Portion Name and Address of Subcontractor State License Class of Work Number
D2L Construction, Inc. A, B, C-10
Electrical 543 Palisades Dr., Pacific Palisades, CA 1065415 C-20, C-36
Painting Jeff Painting 1007768
3415 S. Sepulveda Blvd., Suite 1100, Los Angeles, CA C 33 Asphalt Hardy & Harper Inc.
Concrete 32 Rancho Cir., Lake Forest, CA 215952 A, C-8, C-12 Wood Fiber Robertson Industries, Inc. 667261 C -61/D-12 2414 West 12th Street, Suite 5, Tempe, AZ
ABC Resources, Inc. 538680
Striping 1527 W State Street, Ontario, CA A, C-12, C-32 By submission of this proposal, the Bidder certifies:
1. That he is able to and will perform the balance of all work, which is not covered in the above subcontractors listing.
2. That the AGENCY will be furnished copies of all subcontracts entered into and bonds furnished by subcontractor for this project.
C-6
NONCOLLUSION AFFIDAVIT
TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID
State of California
ss.
County of Orange
Amir Movafegh , being first duly sworn, deposes and says that he or she is President of Legion Con tractors, Inc. the party making the foregoing bid that the bid is not made in the interest of, or on the behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price, or that of any other bidder, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid.
Legion Contractors, Inc.
Name of Bidder
Signature of Bidder
Corporate: 70 Dorman Ave., Suite 3, San Francisco, CA 94124 Local: 18008 Sky Park Cir., Suite 290, Irvine, CA 92614 Address of Bidder
Subscribed and sworn to before me this 6th day of March , 2023.
NOTARY PUBLIC
SEE
ATTACHED
C-7
NOTARY SEAL
JURAT
A notary public or other officer complet this certificate verifies only the identity of the individual who signed the document to which this certificate Is attached, and not the truthfulness, accuracy, or valldity of that document.
State of Cali mia
County of V rctVte,
Subscribed end swom to (or affirmed) before me on
this �� day of .\(r/- 20 2?,
by 4tr
proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me.
Signature
JENNIFER PHCUIMCHARfNH
Commessixi, 2394162
Nonny Pubic • Cai orris
ORANGE County
My Cams Expires FEB 16, 2026 I
(Seal)
UTILITY AGREEMENT
HONORABLE MAYOR AND CITY COUNCIL
CITY OF PLACENTIA, CALIFORNIA
The undersigned hereby promises and agrees that in the performance of the work specified in the contract, known as PARQUE DEL ARROYO VERDE RENOVATION PROJECT, (I)(we)(it) will employ and utilize only qualified persons, as hereinafter defined, to work in proximity to any electrical secondary or transmission facilities. The term "Qualified Person" is defined in Title 8, California Administrative Code, Section 2700, as follows:
"Qualified Person: A person who, by reason of experience or instruction, is familiar with the operation to be performed and the hazards involved."
The undersigned also promised and agrees that all such work shall be performed in accordance with all applicable electrical utility company's requirements, Public Utility Commission orders, and State of California Cal -OSHA requirements.
The undersigned further promises and agrees that the provisions herein shall be and are binding upon any subcontractor or subcontractors that may be retained or employed by the undersigned, and that the undersigned shall take steps as are necessary to assure compliance by any said subcontractor or subcontractors with the requirements contained herein.
Date: 03/06/2023
C-8
Legion Contractors, Inc.
Contractor
By Amir Movafegh
President
Title
DISQUALIFICATION QUESTIONNAIRE
In accordance with Government Code Section 14310.5, the Bidder shall complete, under penalty of perjury, the following questionnaire.
QUESTIONNAIRE
Has the Bidder, any officer of the Bidder or any employee of the Bidder who has a proprietary interest in the Bidder ever been disqualified, removed or otherwise prevented from bidding on or completing a Federal, State or local government project because of a violation of law or a safety regulation?
CI Yes ®No
If the answer is yes, explain the circumstances in the space provided.
Note: This questionnaire constitutes a part of the Proposal, and a signature portion of the Proposal shall constitute signature of this questionnaire.
C-9
WORKERS COMPENSATION INSURANCE CERTIFICATE
Pursuant to Section 1861 of the State Labor Code, each contractor to whom a public works contract has been awarded shall sign the following certificate.
I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for worker's compensation or to undertake self- insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.
Date: 03/06/2023
C-10
Legion Contractors, Inc.
Contractor
By Amir Movafegh
President
Title
UNDERGROUND SERVICE ALERT
IDENTIFICATION NUMBER
(To be completed only by the awarded Contractor prior to excavation) No excavation will be permitted until this form is completed and returned to the AGENCY.
Section 4216/4217 of the Government Code requires a Dig Alert Identification Number be issued before a Permit to Excavate will be valid.
To obtain a Dig Alert Identification Number, call Underground Service Alert at 1-800-422-4133 a minimum of two working days before scheduled excavation.
Dig Alert Identification Number:
Legion Contractors, Inc.
Contractor
By Amir Movafegh
President
Title
Date: 03/06/2023
Note: This form is required for every Dig Alert Identification Number issued by U.S.A. during the course of the Work. Additional forms may be obtained from the AGENCY upon request.
C-11
BIDDER'S INFORMATION
BIDDER certifies that the following information is true and correct:
Legion Contractors, Inc.
Bidder's Name
70 Dorman Ave., Suite 3
Business Address
San Francisco California 94124
City State Zip
( 415 ) 655-3535
Telephone Number
Amir Movafegh
Contact Name
1000543172
Contractor's DIR Public Works Registration Number
1061257 Classes A, B, C15, C36, C61/D12, C61/034
State Contractor's License No. and Class
12/11/2019
Original Date Issued
12/31/2023
Expiration Date
The work site was inspected byEric Borbely, Superintendent ofour office on February 22
, 2023.
The following are persons, firms, and corporations having a principal interest in this proposal:
Legion Contractors, Inc. - CA Corporation
Amir Movafeqh - President
C-12
The undersigned is prepared to satisfy the Council of the City of PLACENTIA of its ability, financially or otherwise, to perform the contract for the proposed work and improvements in accordance with the plans and specifications set forth.
Legion Contractors, Inc.
Signature of Bidder
Amir Movafegh, President
Printed or Typed Signature
Subscribed and sworn to before me this 6th day of March , 2023.
NOTARY PUBLIC
SEE
ATTACHED
NOTARY SEAL
Listed below are the names, address and telephone numbers for three public agencies for which the bidder has performed similar work within the past two years:
1. City of Huntington Beach - 1706 Orange Ave., Huntington Beach, CA Name and Address of Public Agency
Name and Telephone No. of Project Manager:
Brian Polivka - (714) 536-5525
$2,738,000 Park Renovation
Contract Amount Type of Work
2. City of Long Beach & Camp Fire Angeles - 6525 DeForest Ave., Long Beach, CA Name and Address of Public Agency
Name and Telephone No. of Project Manager: Danny Kaye - (310) 351-0138 $744,000
Contract Amount
Park Renovation
Type of Work
3. San Jose Unified School District - 855 Lenzen Avenue, San Jose, CA Name and Address of Public Agency
Name and Telephone No. of Project Manager:
$1,263,000
Contract Amount
December 2022
Date Completed
January 2023
Date Completed
Mohammed Mhanna - (707) 438-3790
Site & Playground Renovation
Type of Work
C-13
February 2022
Date Completed
JURAT
A notary public or other officer complet this certificate verifies only the identity of the individual who signed the document to which this certificate Is attached, and not the truthfulness, accuracy, or valldity of that document.
State of Cali mia
County of V rctVte,
Subscribed end swom to (or affirmed) before me on
this �� day of .\(r/- 20 2?,
by 4tr
proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me.
Signature
JENNIFER PHCUIMCHARfNH
Commessixi, 2394162
Nonny Pubic • Cai orris
ORANGE County
My Cams Expires FEB 16, 2026 I
(Seal)
RESPONSIBLE BIDDER — SUPPLEMENTAL QUESTIONNAIRE
1. How many years has your organization been in business in California as a contractor under your present business name and license number? 5 Years
2. What is your firm's Average Gross Revenue for the last three years? 4,285,000
3. Is your firm currently the debtor in a bankruptcy case? ❑ Yes ® No
If " yes," indicate the case number, bankruptcy court, and the date on which the petition was filed.
Case Number
Bankruptcy Court Date Filed
4. Was your firm in bankruptcy any time during the last five years? (This question refers only to a bankruptcy action that was not described in answer to question 2, above.)
❑ Yes A No
If " yes," indicate the case number, bankruptcy court, and the date on which the petition was filed.
Case Number
Bankruptcy Court Date Filed
5. Has any CSLB license held by your firm or its Responsible Managing Employee (RME) or Responsible Managing Officer (RMO) been suspended within the last five years?
❑ Yes A No
6. At any time in the last five years, has your firm been assessed and paid liquidated damages after completion of a project, under a construction contract with either a public or private owner?
❑ Yes ® No
7. Has your firm ever defaulted on a construction contract? ❑ Yes ® No
If "yes," explain on a separate page.
C-14
8. In the last five years has your firm, or any firm with which any of your company's owners, officers or partners was associated, been debarred, disqualified, removed or otherwise prevented from bidding on, or completing, any government agency or public works project for any reason?
❑ Yes ®No
If "yes," explain on a separate page. State the name of the organization debarred, the year of the event, the owner of the project, and the basis for the action.
9. In the last five years, has your firm been denied an award of a public works contract based on a finding by a public agency that your company was not a responsible bidder?
❑ Yes ® No
If "yes," on a separate page identify the year of the event, the entity denied the award, the owner, the project, and the basis for the finding by the public agency.
10. In the past five years, has any claim against your firm concerning your firm's work on a construction project, been filed in court or arbitration? ❑ Yes ® No
If "yes," on a separate page identify the claim(s) by providing the project name, date of the claim, name of the claimant, the name of the entity the claim was filed against, a brief description of the nature of the claim, the court and case number, and a brief description of the status of the claim (pending or, if resolved, a brief description of the resolution).
11.In the past five years, has your firm made any claim against a project owner concerning work on a project or payment for a contract, and filed that claim in court or arbitration?
❑ Yes ® No
If "yes," on a separate page identify the claim be providing the name of claimant, the project name, date of the claim, name of the entity (or entities) against whom the claim was filed, a brief description of the nature of the claim, the court and case number, and a brief description of the status of the claim (pending, or if resolved, a brief description of the resolution.
12.At any time during the past five years, has any surety company made any payments on your firm's behalf as a result of a default, to satisfy any claims made against a performance or payment bond issued on your firm's behalf in connection with a construction project, either public or private?
❑ Yes ® No
C-15
13. In the last five years, has any insurance carrier, for any form of insurance, refused to renew the insurance policy for your firm?
❑ Yes ® No
14. Has your firm or any of its owners, officers, or partners ever been liable in a civil suit, or found guilty in a criminal action, for making any false claim or material misrepresentation to any public agency or entity?
❑ Yes ® No
15. Has your firm or any of its owners, officers or partners ever been convicted of a crime involving any federal, state, or local law related to construction? ❑ Yes ® No
If "yes," explain on a separate page, including identifying who was convicted, the name of the victim, the date of the conviction, the court and case number, the crimes, and the grounds for the conviction.
16. Has your firm or any of its owners, officers or partners ever been convicted of a federal or state crime of fraud, theft, or any other act of dishonesty? ❑ Yes ® No
If "yes," identify on a separate page, the person or persons convicted, the court and case number, the crimes, and the year convicted.
17.If your firm was required to pay a premium of more than one per cent for a performance and payment bond on any project(s) on which your firm worked at any time during the last three years, state the percentage that your firm was required to pay. You may provide an explanation for a percentage rate higher than one per cent, if you wish to do so.
2 %
18. During the last five years, has your firm ever been denied bond credit by a surety company, or has there ever been a period of time when your firm has no surety bond in place during a public construction project when on was required? ❑ Yes ® No
19. Has CAL OSHA cited and assessed penalties against the General Contractor or its associates for any "serious," "willful" or "repeat" violations of its safety or health regulations in the past five years?
(Note: If you have filed an appeal of a citation, and the Occupational Safety and Health Appeals Board has not yet ruled on your appeal, you need not include information about it.)
❑ Yes ® No
C-16
If "yes," on separate page describe the citations, the party against whom the citation was made, date of citation, nature of the violation, project on which the citation was issued, owner of project, and the amount of penalty paid, if any. State the case number and date of any OSHAB decision.
20. Has the Federal Occupational Safety and Health Administration cited and assessed penalties against the General Contractor or its associates in the past five years?
(Note: If an appeal of the citation has been filed and the Appeals Board has not yet ruled, or there is a court appeal pending, you need not include information about the citation.) ❑ Yes ® No
If "yes," on separate page describe the citation, the party against whom the citation was made, date of citation, nature of the violation, project on which the citation was issued, owner of project, and the amount of penalty paid, if any. State the case number and date of any decision.
21. Has there been more than one occasion during the last five years in which the General Contractor or its associates was required to pay either back wages or penalties for failure to comply with the state's prevailing wage laws? ❑ Yes ® No
If "yes," on separate page, describe the violator, nature of each violation, name of the project, date of its completion, the public agency for which it was constructed, the number of employees who were initially underpaid an the amount of back wages and penalties that were assessed.
22. During the last five years, has there been more than one occasion in which the General Contractor or its associates have been penalized or required to pay back wages for failure to comply with the Federal Davis -Bacon prevailing wage requirements?
❑ Yes ® No
If "yes," on separate page, describe the violator, nature of each violation, name of the project, date of its completion, the public agency for which it was constructed, the number of employees who were initially underpaid an the amount of back wages and penalties that were assessed.
C-17
DESIGN ENGINEER MAY NOT BID ON
CONSTRUCTION CONTRACT
No engineering or architectural firm which has provided design services for a project shall be eligible to bid on the contract to construct the project. The firms ineligible to bid include the prime contractor for design, subcontractors of portions of the design, and affiliates of either. An affiliate is a firm which is subject to the control of the same persons(s), through joint ownership or otherwise.
ACKNOWLEDGED this
Irvine, California
Authorized Signature
President
Position
Legion Contractors, Inc.
Company
6th day of March , 2023 at
C-18
NOTICE OF AFFIRMATIVE ACTION
By submitting a proposal on any job or entering into any contractual agreement with the City of Placentia, the undersigned agrees not to discriminate in employment decisions against any person on account of race, creed, national origin, ethnic background, color, sex, age, or handicap in performing the work required under this proposal.
ACKNOWLEDGED this 6th day of March
Authorized Signature
President
Position
Legion Contractors, Inc.
Company
C-19
, 2023, at Irvine, California
Bond No.: LEGCO-149
PARQUE DEL ARROYO VERDE RENOVATION PROJECT
CITY PROJECT NO. 7902
BIDDER'S BOND
(To Accompany Contract Proposal)
KNOW ALL MEN BY THESE PRESENTS,
That Legion Contractors, Inc. as PRINCIPAL, and
Great Midwest Insurance Company , as SURETY, are held and firmly bound unto the City of Placentia in the sum of TEN PERCENT (10%) of the total amount of the bid of said PRINCIPAL, to be paid to the said City or its certain attorney, its successors and assigns; for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors or assigns, jointly and severally, firmly by these presents.
In no case shall the liability of said SURETY here under exceed the sum of $ Ten Percent Of The Total Amount Bid (10% Of Bid)
THE CONDITION OF THIS OBLIGATION IS SUCH THAT,
WHEREAS, said PRINCIPAL has submitted the above-mentioned bid to the City of Placentia for certain construction for which bids are to be opened through the electronic bid management system PlanetBids on March 2, 2023 for:
PARQUE DEL ARROYO VERDE RENOVATION PROJECT
CITY PROJECT NO. 7902/7001
NOW, THEREFORE, if the aforesaid PRINCIPAL is awarded the contract and within the time and manner required under the specifications, after the prescribed forms are presented to him for signature, enters into a written consent in the prescribed form in accordance with the bid, and files the two bonds with the City of Placentia, one to guarantee faithful performance and the other to guarantee payment for Labor and Materials as required by law, then this obligation shall be null and void; otherwise, it shall be and remain in full force and effect.
C-20
PARQUE DEL ARROYO VERDE RENOVATION PROJECT
CITY PROJECT NO. 7902
In the event suit is brought upon this bond by the Obligee and judgment is recovered, said SURETY shall pay all costs incurred by the Obligee in such suit, including a reasonable attorney's fee to be fixed by the Court.
IN WITNESS WHEREOF, we have hereunto set our hands and seals on this 27th day of February 2023.
BY: .ter
Legion Contractors, Inc.
PRINCIPAL
BY:
e'rP. fr
d
V v Title
(SEAL)
BY:
Great Midwest Insurance Company
SURETY
800 Gessner Road, Suite 600
Houston TX 77024
Address
(SEAL)
Instructions: If the Contractor is a corporation, the agreement must be executed in the corporate name and signed by the President or Vice President and the Secretary or Assistant Secretary, and the corporate seal affixed. If the Contractor is an individual doing business under a fictitious name, it must be signed by all persons having an interest in the business, and the fictitious name must be signed also. All bond signatures must be notarized. The standard printed bid bond form of any bonding company approved by the City pursuant to Item 7, "Insurance Policies and Bonds", in the Instructions to Bidders may be used in lieu of the foregoing approved sample bond form provided the security stipulations protecting the City are in any way reduced by use of the surety company's standard printed form.
C-21
BID BOND
ACKNOWLEDGMENT OF SURETY
STATE OF C9,\.kn,tvl�
County of __ sTrow\sZ
ss
On this 6 •\." day of !\Ar ,/,-- h . 2023, A.D.
�Nn.t �"�.Cl\,l� 's► I personally apeared before me a
/\,n'av Vt Ar -)\C
(Notary Public, Judge or Other Officer)
in and for 7-v(wi, / County, tate of rn1;�nf ri-a
known to me to be the �J -1-)E ., F '�).-- of the corporation I- !..:1.--: -..vr .y- i
that executed the foregoing instrument and, upon -oath, did depose that he is the officer of said corporation as above designed; that he is acquainted with the seal of said corporate seal of said corporation; that the signatures to said instrument were made by officers of said corporation as indicated after said signatures; and that the said corporation executed the said instrument freely and voluntarily and for the uses and purposes therein mentioned.
SEE
ATTACHED
(Notary Public, Judge or Other Officer)
C-22
JURAT
A notary public or other officer complet this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of Califqmia
County of U rct,i�tn
Subscribed end sworn to (or affirmed) before me on
this �->, day of N\o,\((, 20 2-?)
by -1r Nldv et-Feg
proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me.
Signature
JENNIFER PHCIM ACHARINH
Commis on 0 2394162
Notary Pubic - C.Gtomia
ORANGE Canny
My Cortin Expires FEB 16, 2026
(Seal)
POWER OF ATTORNEY
Great Midwest Insurance Company
KNOW ALL MEN BY THESE PRESENTS, that GREAT MIDWEST INSURANCE COMPANY, a Texas Corporation, with its principal office in Houston, TX, does hereby constitute and appoint:
Randy Spohn, Matthew R. Dobyns, Hamilton Kenney, Ashley M. Spohn its true and lawful Attorney(s)-In-Fact to make, execute, seal and deliver for, and on its behalf as surety, any and all bonds, undertakings or other writings obligatory in nature of a bond.
This authority is made under and by the authority of a resolution which was passed by the Board of Directors of GREAT MIDWEST INSURANCE COMPANY, on the 1u day of October, 2018 as follows:
Resolved, that the President, or any officer, be and hereby is. authorized to appoint and empower any representative of the Company or other person or persons as Attorney -In -Fact to execute an behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other writings obligatory in nature of a bond not to exceed Ten Minion dollars ($10,000,000.00), which the Company might execute through its duly elected officers, and affix the seal of the Company thereto. Any said execution of such documents by an Attorney -In -Fact shall be as binding upon the Company as If they had been duly executed and acknowledged by the regularly elected officers of the Company, Any Attorney -In -Fact, so appointed, may be removed in the Company's sole discretion and the authority so granted may be revoked as specified in the Power of Attorney.
Resolved, that the signature of the President and the seal of the Company may be affixed by facsimile on any power of attorney granted, and the signature of the Secretary, and the seal of the Company may be affixed by facsimile to any certificate of any such power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certificate so executed and sealed shall, with respect to any bond of undertaking to which it is attached, continue to be valid and binding on the Company.
IN WITNESS THEREOF, GREAT MIDWEST INSURANCE COMPANY, has caused this instrument to be signed by its President, and its Corporate Seal to be affixed this 11th day of February, 2021
ACKNOWLEDGEMENT
BY
GREAT MIDWEST INSURANCE COMPANY
14,4, vetit
Mark W. Haushill
President
On this 11th day of February, 2021, before me, personally came Mark W. Haushill to me known, who being duly sworn, did depose and say that he is the President of GREAT MIDWEST INSURANCE COMPANY, the corporation described in and which executed the above instrument; chat he executed said instrument on behalf of the corporation by authority of his office under the By-laws of said corporation, .04, '+•, CHRISTINA BISHOP
'''�." iNotar Public,
y Sims 01 Texas
Comm. Expires 04.14-2026
ALF Notary ID 131090488
CERTIFICATE
BY
Christina Bishop
Notary Public
I, the undersigned, Secretary of GREAT MIDWEST INSURANCE COMPANY, A Texas Insurance Company, DO HEREBY CERTIFY that the original Power of Attorney of which the foregoing is a true and correct copy, is in full force and effect and has not been revoked and the resolutions as set forth are now in force.
Signed and Sealed at Houston, TX this 27th Day of February 20_2. �s1 wsv
v4
BY
K
Leslie K. Shaunt
Secretary
"WARNING: Any person who knowingly and with intent to defraud any insurance company or other person, files and application for insurance of claim containing any materially false information, or conceals for the purpose of misleading, information concerning any fact material thereto, commits a fraudulent insurance act, which is a crime and subjects such person to criminal and civil penalties.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of CALIFORNIA
County of ORANGE
On February 27th, 2023
before me, ERIKA G. MORGAN. NOTARY PUBLIC,
personally appeared RANDY SPOHN
® who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/shc/thcy executed the same in his/hcr/thcir authorized capacity (les), and that by his/hcr/thcir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
ERIKA G. MORGAN
COMM. #2354018
NOTARY PUBLIC • CALIFORNIA o
r ORANGE COUNTY
4� s Comm. Expires May 5, 2025
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my-hapd and official seal.
�,
tore o otary
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL
El CORPORATE OFFICER
❑ PARTNER(S) ❑ LIMITED
Z ATTORNEY-IN-FACT
❑ TRUSTEE(S)
LI GUARDIAN/CONSERVATOR
LI OTHER:
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
CITY OF PLACENTIA
PARQUE DEL ARROYO VERDE RENOVATION PROJECT
CITY PROJECT NO. 7902
DATE: February 15, 2023
SUBJECT: Addendum # 1
This letter comprises Addendum No. 1 for the above project, request for construction bid, issued by the City of Placentia on February 1, 2023. Please take note of the items listed below which will have to be used in the preparation of your bid for this project. The following clarifications/changes are hereby issued:
CLARIFICATIONS:
1. To Specifications, Section A, Notice Inviting Sealed Bids, Page A-2, Number 8 "Liquidated Damages" Last Sentence: Delete last sentence and replace with the following: Contractor shall have a total of 135 working days to complete the project once issued a Notice to Proceed.
2. To Specifications, Section C, Proposal, Page C-1, First Paragraph, Last Sentence: Delete last sentence and replace with the following: The undersigned agrees to complete the work within One Hundred Thirty -Five (135) working days, starting from the date mentioned in the Notice to Proceed or liquidated damages of $500 per workday will be applied.
3. To Specifications, Section A, Notice Inviting Sealed Bids, Page A-2, Add Number 10. Mandatory Pre -Bid Meeting: A mandatory pre-bid meeting will be held at the project site located at 1001 E. Palm Drive, Placentia, California 92870 on Wednesday, February 22, 2023 at 9:00 a.m. Failure to attend the mandatory pre-bid meeting shall give cause to deem your bid as non-responsive.
4. To Specifications, Section B, Instructions to Bidders, Page B-5, Number 20 "Questions to the Engineer", First Sentence: Delete first sentence and replace with the following: Any questions regarding the bid documents (i.e. plans, specifications, contract documents, bid forms, etc.) will be received by the Engineer up to Friday, February 24th, 2023 as specified in SECTION A.