PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO!
AND ASSUREHIRE
This Professional Services Agreement ("Agreement") is made and entered into as of March 1, 2021 by and between the City of San Bernardino, a charter city and municipal corporation organized and operating under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, CA 92401 ("City"), and AssureHire, a corporation with its principal place of business at 2206 Plaza Drive Suite 100, Rocklin, California 95765 (hereinafter referred to as "Consultant"). City and Consultant are hereinafter sometimes referred to individually as "Party" and collectively as the "Parties."
RECITALS
A. City is a public agency of the State of California and is in need of professional services for the following project:
Pre-employment background screening (hereinafter referred to as ''the Project").
B. Consultant is duly licensed and has the necessary qualifications to provide such services.
C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Incorporation of Recitals. The recitals above are true and correct and are hereby incorporated herein by this reference.
2. Services. Consultant shall provide the City with the services described in the Scope of Services attached hereto and incorporated herein as Exhibit "A." a. Consultant shall make available to City certain public and non-public information and database access (herein collectively referred to as a "Consumer Report") in accordance with requests for such information at prices set forth on Exhibit A. If the Consumer Report requested by City is a credit report, then City shall be subject to and shall comply with the additional requirements as set forth on an End User Certification, attached hereto and incorporated herein as Exhibit "B," with the exception that City shall be obligated to keep records of written authorizations for two (2) years not five (5) years. b. Consultant represents that it is experienced, well qualified, and a specialist in the provision and security of Consumer Reports. Consultant will use commercially reasonable efforts to make available Consumer Reports requested by City. 55600.00100\335 73414.2 1
2.1 Restrictions on Use. City will obtain and use any Consumer Report or Investigative Consumer Report, as those terms are defined in the Fair Credit Reporting Act ("FCRA"), solely for the permissible purpose(s) stated by City and in accordance with the End User Certification signed by the City. City will use the Services in compliance with all applicable local, state, federal and international laws, rules, regulations or requirements, including, but not limited to the FCRA and the' Fair and Accurate Credit Transactions Act ("FACTA") and applicable state and local laws and regulations. City will not provide any part of the Services to others, whether directly or indirectly, through incorporation in a database, report or otherwise.
City also certifies that it will retain any information it receives from Consultant for a period of two (2) years from the date the report was received and will make such reports available to Consultant upon request.
2.2 Confidentiality.
a. City shall not disclose any background screening reports provided by Consultant hereunder except as permitted by this Agreement or required by law, provided that City is not prohibited from disclosing such report to the subject of such report. b. Consultant will disclose to City the discovery that personal information owned by the subject of a report was, or is reasonably believed to have been, acquired by an unauthorized person ("Data Breach"), in accordance with applicable law to disclose the Data Breach to the subject of the report.
c. Each party ("City") will treat all information provided by the other party ("Consultant") that Consultant designates in writing to be confidential, or the nature of the information and the manner of disclosure are such that a reasonable person would understand it to be confidential, in the same manner as City treats its own confidential information. Consultant represents and warrants that it has all necessary legal rights, title, consents and authority to disclose such confidential information to City. Confidential information shall not include information that (I) is or becomes a part of the public domain through no act or omission of City; (II) was in City's lawful possession prior to Consultant's disclosure to City; (IIn is lawfully disclosed to City by a third-party with the right to disclose such information and without restriction on such disclosure; or (IV) is independently developed by City without use of or reference to the confidential information. City shall not disclose the negotiated pricing or terms of this Agreement to any third party, except as required by law.
2.3 Disclaimers
a. City acknowledges that the depth of information collected by Consultant varies among sources and Consultant cannot act as an insurer or guarantor of the accuracy, reliability or completeness of the data. City shall be responsible for determining that its use of the Services complies with all applicable federal, state or local law, rule or regulation, including but not limited to FCRA and F ACTA.
b. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. OTHER THAN
AS EXPLICITLY STATED IN THIS AGREEMENT, (A) ASSUREHIRE DISCLAIMS ALL 55600.00100\33573414.2 2
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (B)
ASSUREHIRE DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE AND DISCLAIMS ANY WARRANTY OR
REPRESENTATION REGARDING AVAILABILITY OF A SERVICE, SERVICE LEVELS OR PERFORMANCE.
c. Consultant does not, and cannot, provide legal advice to City or guarantee City's compliance with laws in use of the Service. City understands that any documents, information, conversations or communication with Consultant's representatives regarding reports, verifications or other services offered by Consultant are not to be considered a legal opinion regarding such use. City agrees to consult with its own legal counsel (1) about the use of an Adjudication Criteria and background screening information, including but not limited to, the legality of using or relying on reported information, and (2) to review any forms as well as the content of prescribed notices, adverse or pre-adverse action letters and any attachments to this Agreement for compliance with all Laws. City agrees that the provision of such notices, pre adverse or adverse action letters and the contents thereof is City's sole responsibility
3. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel identified in their proposal.
Consultant warrants that Consultant is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant's performance of this Agreement. Consultant further represents that no City employee will provide any services under this Agreement.
4. Compensation.
a. Subject to paragraph 4(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit "A." b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of $50,000. This amount is to cover all related costs, and the City will not pay any additional fees for printing expenses. Consultant may submit invoices to City for approval. Said invoice shall be based on the total of all Consultant's services which have been completed to City's sole satisfaction. City shall pay Consultant's invoice within thirty (30) days from the date City receives said invoice. The invoice shall describe in detail the services performed and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices.
Notwithstanding the foregoing, in the event state or local government fees payable by Consultant in connection with the provision of Services increase during the Term, Consultant may pass along such price increases to City upon thirty (30) days written notice, provided that Consultant provides to City adequate documentation to demonstrate the increase in fees and provided that the increase in price charged to City is no greater than the increase of such fees.
5. Additional Work. If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be 55600.00 I 00\33573414.2 3
processed in the following manner: a · 1etter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
6. Term. This Agreement shall commence on the Effective Date and continue for one (1) year and shall thereafter automatically renew for successive one (1) year periods unless the Agreement is previously terminated as provided for herein ("Term").
7. Maintenance of Records: Audits.
a. Records of Consultant's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City for inspection and/or audit at mutually convenient times for a period of four (4) years from the Effective Date.
b. Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City.
8. Time of Performance. Consultant shall perform its services in a prompt and timely manner and shall commence performance upon receipt of written notice from the City to proceed. Consultant shall complete the services required hereunder within Term.
9. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the non-performing Party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint.
b. Should such circumstances occur, the non-performing Party shall, within a reasonable time of being prevented from performing, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement.
10. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies. 55600.00100\335 73414.2 4
c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.
11. Standard of Care. Consultant's services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions.
12. Conflicts of Interest. During the term of this Agreement, Consultant shall at all times maintain a duty of loyalty and a fiduciary duty to the City and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the City.
13. City Business Certificate. Consultant shall, prior to execution of this Agreement, obtain and maintain during the term of this Agreement a valid business registration certificate from the City pursuant to Title 5 of the City's Municipal Code and any and all other licenses, permits, qualifications, insurance, and approvals of whatever nature that are legally required of Consultant to practice his/her profession, skill, or business.
14. Assignment and Subconsultant. Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shail be void and without legal effect and shall constitute grounds for termination.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.
15. Independent Consultant. Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided.
16. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Additional Insured. The City of San Bernardino, its officials, officers, employees, agents, and volunteers shall be named as additional insureds on Consultant's and its subconsultants' policies of commercial general liability and automobile liability insurance using the endorsements and forms specified herein or exact equivalents. b. Commercial General Liability
55600.00100\33573414.2 5
(i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City.
(ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following:
the following:
Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent.
(iii) Commercial General Liability Insurance must include coverage for (1) Bodily Injury and Property Damage
(2) Personal Injury/ Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclusion deleted
(7) Contractual Liability with respect to this Contract (8) Broad Form Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City, its elected and appointed officials, officers, employees, agents, and City-designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
(vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. c. Automobile LiabiliLv
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
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(ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol I, any auto).
(iii) The policy shall give City, its elected and appointed officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.
d. Workers' Compensation/Emplover's Liabilit
(i) Consultant certifies that he/she is aware of the prov1s1ons of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the "Workers' Compensation and Insurance Act," Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer's Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers' compensation coverage of the same type and limits as specified in this section.
e. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against act s, errors or omissions of the Consultant. "Covered Professional Services" as designated in the policy must specifically include work performed under this Agreement. The policy must "pay on behalf of' the insured and must include a provision establishing the insurer's duty to defend.
£ Minimum Policv Limits Required
(i) The following insurance limits are required for the Agreement:
Combined Single Limit
55600.00100133573414.2 7
Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property
damage
Automobile Liability $1,000,000 per occurrence for bodily injury and property damage
Employer's Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
(ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. g. Evidence Required. Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer's equivalent) signed by the insurer's representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
h. Policv Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten ( 10) days prior written notice of cancellation of any such policy due to non-payment of the premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant's policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant 55600.00100\33573414.2 8
shall purchase a one (1) year extended reporting period A) ifthe retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.
(iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.
Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant's indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
i. Qualifving Insurers
(i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance
through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
j. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including, but not limited to, the provisions concerning indemnification.
(ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
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(iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor the City Council, nor any member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. k. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section.
Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.
17. Limitations of Liability.
a. EXCEPT FOR BODILY INJURY AND DEATH, GROSS MISTAKES,
GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, AND CONSULTANT'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 17, NEITHER PARTY WILL BE
LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR
CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF WHETHER OR NOT
THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
b. EXCEPT FOR (I) ANY LIABILITY TO THE EXTENT COVERED BY
CONSULTANT'S INSURANCE, (II) RESULTING FROM GROSS MISTAKES, GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, (III) BODILY INJURY AND DEATH, OR (IV) FOR CONSULTANT'S INDEMNIFICATION OBLIGATIONS AS TO THIRD PARTY CLAIMS UNDER SECTION 17 OF THIS AGREEMENT, EACH PARTY'S MAXIMUM
LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF
THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY
OR OTHERWISE), WILL NOT EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY CITY HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING
THE DATE ON WHICH SUCH LOSS, DAMAGE, INJURY, CLAIM, COST OR EXPENSE OCCURRED. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF
LIABILITY UNDER THIS SECTION CONSTITUTE A FUND AMENT AL BASIS OF THEIR BARGAIN.
18. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with counsel reasonably approved by the City), indemnify and hold the City, its elected and appointed officials, officers, employees, agents, and authorized volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to 55600.00100\335 73414.2 10
property or persons, including wrongful death, (collectively, "Claims") in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant's services, the Project, or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys' fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to Claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, the City Council, members of the City Council, its employees, or authorized volunteers.
b. Additional Indemnity Obligations. Consultant shall defend, with counsel of City's choosing and at Consultant's own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against the City, its elected and appointed officials, employees, agents, or authorized volunteers. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against the City, its elected and appointed officials, employees, agents, or authorized volunteers as part of any such claim, suit, action or other proceeding. Consultant shall also reimburse City for the cost of any settlement paid by the City, its elected and appointed officials, employees, agents, or authorized volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for the City's attorney's fees and costs, including expert witness fees. Consultant shall reimburse the City, its elected and appointed officials, employees, agents, or authorized volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its elected and appointed officials, employees, agents, or authorized volunteers.
c. To the extent permitted by law, City agrees to defend, indemnify, and hold harmless Consultant, its respective officers, directors, employees, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to the City's violation of this Agreement and, if applicable, the End User Certification.
19. California Labor Code Requirements. Consultant is aware of the requirements of California Labor Code Sections 1720 et seg. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on certain "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws, if applicable. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which 55600.00100\33573414 .2 11
include but are not limited to prevailing wages, employment of apprentices, hours of labor and debarment of contractors and subcontractors.
If the Services are being performed as part of an applicable "public works" or "maintenance" project, then pursuant to Labor Code Sections 1725 .5 and 1771.1, the Consultant and all subconsultants performing such Services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant's sole responsibility to comply with all applicable registration and labor compliance requirements.
20. Verification of Employment Eligibility. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.
21. Laws and Venue. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of San Bernardino, State of California.
22. Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days' written notice to Consultant. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days' written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant. Prior to termination, Consultant may immediately suspend Services, in whole or in part, under this Agreement (i) upon City's failure to pay amounts when due, (ii) if City files bankruptcy or reorganization or fails to discharge an involuntary petition within sixty (60) days after filing date, or (iii) if AssureHire reasonably believes that its provision, or City's use of the Services shall violate the FCRA or other applicable law. In the event of a material 55600.00100\33573414.2 12
breach of this Agreement by City, Consultant may terminate this Agreement if such breach is not cured within forty-five ( 45) days of written notice of breach; provided that if such breach is not capable of being cured the Consultant may terminate this Agreement upon thirty (30) calendar days' written notice to City.
23. Attorneys' Fees. In the event that litigation is brought by any Party in connection with this Agreement, the prevailing Party shall be entitled to recover from the opposing Party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing Party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary, and expenses of the City Attorney's Office in enforcing this Agreement on behalf of the City shall be considered as "attorneys' fees" for the purposes of this Agreement.
24. Responsibility for Errors. Consultant shall be responsible for its work and results under this Agreement. Consultant, 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 Consultant's professional services occurs, Consultant shall, at no cost to City, provide all other services necessary to rectify and correct the matter to the sole satisfaction of the City and to participate in any meeting required with regard to the correction.
25. Prohibited Employment. Consultant shall not employ any current employee of City to perform the work under this Agreement while this Agreement is in effect.
26. 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.
27. Documents. Except as otherwise provided in "Termination or Abandonment," above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.
28. Organization. Consultant shall assign an FCRA Certified Customer Success Manager as the Project Manager. Jayme Dolan is the assigned Account Executive who will oversee the success of the project. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.
29. Limitation of Agreement. This Agreement is limited to and includes only the work included in the Project described above.
30. Notice. Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to the following addresses and shall be effective upon receipt thereof:
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CITY:
City of San Bernardino
VanirTower
290 North D Street
San Bernardino, CA 92401
Attn: Edelia Eveland, Director of Human
Resources
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Sonia Carvalho, City Attorney
CONSULTANT:
Assure Hire
2206 Plaza Drive, Suite 100
Rocklin, CA 95765
Attention: Jayme Dolan
30. Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and the Consultant.
31. Equal Opportunitv Employment. Consultant represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because ofrace, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
32. Entire Agreement. This Agreement, including Exhibits "A" and "B," represents the entire understanding of City and Consultant as to those matters contained herein, and supersedes and cancels any prior or contemporaneous oral or written understanding, promises or representations with respect to those matters covered hereunder. Each Party acknowledges that no representations, inducements, promises, or agreements have been made by any person which are not incorporated herein, and that any other agreements shall be void. This is an integrated Agreement.
33. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect.
34. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors in interest, executors, administrators and assigns of each Party to this Agreement. However, Consultant shall not assign or transfer by operation of law or otherwise any or all of its rights, burdens, duties or obligations without the prior written consent of City. Any attempted assignment without such consent shall be invalid and void. 55600.00100\33573414.2 14
35. Non-Waiver. The delay or failure of either Party at any time to require performance or compliance by the other Party of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
36. Time of Essence. Time is of the essence for each and every provision of this Agreement.
37. 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.
38. Amendments. Only a writing executed by all of the Parties hereto or their respective successors and assigns may amend this Agreement.
39. City's Right to Employ Other Consultants. City reserves its right to employ other consultants, including engineers, in connection with this Project or other projects.
40. Prohibited Interests. Consultant maintains and warrants that it has neither employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability.
For the term of this Agreement, no official, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
41. 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 single Agreement.
42. Authority. The persons executing this Agreement on behalf of the Parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by doing so, the Parties hereto are formally bound to the provisions of this Agreement. [SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND ASSUREHIRE
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY OF SAN BERNARDINO
Robert D. Field
City Manager
At~:
...... .....__A~~~~AZ--=...;._~~-
Genoveva Rocha, CMC, City Clerk
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CONSULTANT
Signature
Jayme Dolan
Name
Sr. Screening Consultant
Title
EXHIBIT A
SCOPE OF SERVICES AND PRICING
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Screening Services I Pricing
"1st month of background checks is free
assure hire
~
Standard Package Example Cost Per Item
AssureHire Proprietary SSN Trace Tool Included
DOJ National Sex Offender Search $1.95
Motor Vehicle Record Search*+ State Access Fee $5.00
Professional Reference Verification • Per Reference $10.00 Employment Verification • Per Employer $10.00
Education Verification • Highest Awarded $10.00
Automated Adverse Action Included
"Domestic Court, OMV and 3rd party record keeper access fees, as well as International in-country acquisitions fees, are at additional cost-passed through without ANY markup .
•
. .. .
e
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Screening Services I Pricing assure hire
~
DOT Position Example Cost Per Item
AssureHire Proprietary SSN Trace Tool
Federal Criminal Search
DOJ National Sex Offender Search
Commercial Driver's License Information System
•+State Access Fee
DOT Employment Verification
Automated Adverse Action
Included
$11.00
$1.95
$12.00
$13.00
Included
*Domestic Court, DMV and 3rd party record keeper access fees, as well as International in-country acquisitions fees, are at additional cost-passed through without ANY markup.
55600.00100\33573414.2 19
Screening Services I Pricing assure hire
~
Finance Position Example Cost Per Item
AssureHire Proprietary SSN Trace Tool Included
Federal Criminal Search $11.00
DOJ National Sex Offender Search $1.95
Motor Vehicle Record*+ State Access Fee
$5.00
Employment Verification $10.00
Education Verification - Highest Awarded $10.00
Employee Credit Report $8.00
Automated Adverse Action Included
"Domestic Court, DMV and 3rd party record keeper access fees, as well as International in-country acquisitions fees, are at additional cost-passed through without ANY markup.
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EXIIlBITB
END USER CERTIFICATION
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AddendumE
EMPLOYMENT CREDIT REPORTS
Terms for Agreement between A~ureffire and End User for Consumer Credit Reports ---- ---- ---- --- ("End-User") hereby certifies lO AssurcHire, Inc. (AssureHite) that it is ha.• a permissible purpose for obtaining consumer reports in accordance with the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) including. without limitation. all amendments thereto ("FCRA"). The End User certifies iis permissible purpose a.•:
I. Jn connection with a credit transaction involving the corummer 011 whom the information is to be furnished anti involving the extension of credit to. or review or collection of an account of the con.~umer: or IT. In connection with the underwriting of insurance involving the consumer or review of existing policy holders for insurance underwriting purposes, or in connection wilh an insurance claim where wriuen permission of the consumer has been obtained: or
Ill. In accordance with the written inMtructions of the consumer who is the subject of the ConRumer Report.
Hnd-User certifies lhal each such wrillen aulhorizalion will e.11pressly authorize Hod User lO obtain the Consumer Report. Nothing in this certification, or elsewhere in this Agreement. is intended 10 allow Hnd User to purebase 1he Consumer Report for the purpose of selling or giving the report. or infonnation contained in or derived from it. to lhe subjeel or lbe report. unles. required by law. or IO any other third party, and End User expressly agrees to refrain Crom such conduct: or NOTE: Verbal authorization of the consumers are penniued as long as such comply with the requirements of the Electronic Signatures in Glohal and Natiolllll Commerce Act (E-Sign Act) IV. In connection with End User's legitimate husiness need for information in connection with a business transaction that is initiated by the consumer, including, but not limited to. tenant screening: or V. As a potential investor, servicer or current insurer, in connection with a valuation of, or as.•essment of. the credit or prepayment risks associated with an existing credit ohligation; or VI. In connection with End User's legitimate business need for the information to review an account to determine whether the consumer continues to meet the terms of the account: or VTI. Available for use hy Government Agencies only: In connecti11n with a detem1ination of the consumer's eligibility for a license or other benefit granted by a governmental inslrumentality required by Jaw to consider an applicant's financial responsibility or status. End-User certifies that End User shall U!>C the Consumer Reports: (a) solely for the pennissible purpose(s) cenified by End User and for no other purpose; and (b) solely for End User's exclusive one-lime use. End-User shall not request, obtain or use Consumer Reports for any other purpose. including. but not limited to, for the {'Urpose of selling. leasing. renting or otherwise providing information obtained under this Agreement to any other party, whether alone. in conjunction with End User's own data. or otherwise in any service which is derived from the consumer reports. The Consumer Reports shall be requested by. and disclosed by End User only Lo l:lnd User's designated and authorized employeeti having a need to know and only to the llXtenl necessary to enable End User to use the Consumer Reports in accordance with this Agreement. End User shall ensure that such designated and authori1.ed employee~ shall not attempt to nhtain any Consumer Reports on themselves, a.~sociates, or any other pea;on except in the exercise of their official duties.
End-User agrees to reiain copies of all written authorizations for a minimum of five (5) years from the date of inquiry. and make such written authorizations availahle to the AssureHire upon request.
THE FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS Version 1.2 Updated 05/28/2020
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AddendumE
EMPLOYMENT CREDIT REPORTS
INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINBD UNDER TITLE 18 OF THE UNITED ST ATES CODE OR IMPRISONED NOT MORE THAN TWO YEARS. OR BOTH.
l:!nd-User shall use each Consumer Report only for a one-lime use and shall hold !he report in strict confidence, and not disclose it to any third parties; provided. however, !hat l:!nd User may, but is not required lo, disclose lhe report 10 the subject of the report only in connection with an adverse action based on the report. or as otherwise clearly required by law.
Moreover. unless otherwise e1>plicilly authoriied in an agreemen~ between AssureHire ood ils l:!nd User for scores obtained from TransUnion. o.r as explicitly otherwise authorized in advance and in writing by Traru;Union through Ai;sureHire. End User shall not disclose to consumers or any third party. any or all such scores provided under such agreement, unless clearly required hy law.
With just cause. such as violation of the terms of the End-User's contract or a legal requirement, or a material change in existing legal requirement~ that adversely affects the End User's agreement. AssureHire may. 11pon its election , discontinue serving the End User and cancel the agreement immediately.
Version 1.2 Updated 05/28/2020
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