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Contract No. 4756
CONTRACTUAL SERVICES AGREEMENT
This Contractual Services Agreement (“Contract”), entered into as of _________________(“Execution Date”), by and between the CITY OF SANTA MONICA, a municipal corporation (“City”), and TruePoint Solutions (“TruePoint”), is made with reference to the following:
RECITALS:
A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. TruePoint is qualified to do business, and is doing business, in the State of California.
TruePoint represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Contract.
C. The City and TruePoint desire to enter into an agreement for the TruePoint to provide contractual services to the City as set forth herein, upon the terms and conditions set forth below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERMS AND CONDITIONS
1. Term. This Agreement begins on the Execution Date and terminates on June 30, 2021, unless sooner terminated in accordance with Section 14.
2. TruePoint Services. TruePoint will perform all of the services (“Services”) described in Exhibit A, Scope of Services. TruePoint will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to TruePoint any currently existing documents, data or information required for the performance of the Services.
3.2 Designate a representative authorized to act on behalf of City.
3.3 Promptly examine and render findings on all documents submitted for staff review by TruePoint.
4. Compensation. The City will compensate TruePoint for the Services performed in an amount not to exceed $75,000, as set forth in Exhibit B.
5. Invoices. TruePoint will invoice the City for the Services in accordance with Exhibit B and the City will pay any undisputed amount within 30 days of receipt.
6. Notices. All notices, demands, requests or approvals to be given under this Agreement, must be in writing and will be deemed served when delivered personally, DocuSign Envelope ID: E8574A25-8107-4B7B-8022-748404A7B449 7/24/2020
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by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:
6.1 All notices, demands, requests or approvals to the City:
Information Services Department
City of Santa Monica
1685 Main Street, Room 105
Santa Monica, California 90401
Attention: Joseph Cevetello, CIO
Re: Contract No. 4756
with a copy to:
Santa Monica City Attorney’s Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: City Attorney
Re: Contract No. 4756
6.2 All notices, demands, requests or approvals to TruePoint:
TruePoint
774 Mays Blvd, 10-377
Incline Village, NV 89451
Attention: Kent Johnson, CEO
[email protected], (916) 607-4490
Re: Contract No. 4756
7. Independent Parties. Both parties to this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers of one another.
Neither the City nor its officers or employees will have any control over the conduct of TruePoint or any of TruePoint’s agents, employees, or subconsultants, except as otherwise provided in this Agreement.
8. Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties. Any preliminary negotiations and agreements of any kind or nature are merged into this Agreement. No oral agreement or implied covenant may be held to vary the provisions of this Agreement.
This Agreement may be modified only by written agreement signed by City and TruePoint, and approved as to form by the City Attorney.
9. Insurance. Prior to commencing work, TruePoint must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by TruePoint or TruePoint’s agents, representatives, employees or subconsultants for the duration of DocuSign Envelope ID: E8574A25-8107-4B7B-8022-748404A7B449 - 3 -
this Agreement. TruePoint must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit C, Insurance Requirements and Verifications.
10. Defense and Indemnification.
10.1 TruePoint agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, boards and commissions, and employees (collectively, “City”) from and against any and all liability, claims, demands, damages, or costs, including but not limited to attorney’s fees, or payments for injury to any person or property (collectively, “Losses”) caused or claimed to be caused by the act, errors, and/or omissions of TruePoint, or TruePoint’s employees, agents, officers, and subconsultants. TruePoint’s responsibilities under this Section
10.1 include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, which may be in combination with the acts or omissions of TruePoint, its employees, agents or officers, or subconsultants; provided, however, that TruePoint’s duty to defend, indemnify, protect and hold harmless shall not include any Losses arising from the sole negligence or willful misconduct of the City.
Notwithstanding TruePoint’s obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from TruePoint, if City chooses to do so.
10.2 Enforcement Costs. TruePoint agrees to pay any and all costs the City incurs enforcing the indemnity, defense and hold harmless provisions set forth in Section 10.1.
11. Prohibition Against Transfers.
11.1 TruePoint may not assign, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any attempt to do so without the City’s consent will be null and void, and any assignee, hypothecatee or transferee acquires no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.2 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of TruePoint or of any general partner or joint venturer or syndicate member of TruePoint, if a partnership or joint venture or syndicate exists, which results in changing the control of TruePoint, will be construed as an assignment of this Agreement. Control means 50% or more of the voting power of the corporation.
12. Permits and Licenses. TruePoint, at its sole expense, must obtain and maintain during the term of this Agreement all required business and professional permits, licenses and certificates.
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13. Waiver. A waiver of any breach of this Agreement may not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition of this Agreement.
14. Default and Termination.
14.1 If TruePoint fails or refuses to perform any of the provisions of this Agreement, and if the default is not cured within a period of five days after the City’s written notice of default specifying the nature of the default, City may immediately terminate this Agreement by written notice to TruePoint.
14.2 The City has the option, at its sole discretion and without cause, of terminating this Agreement by giving ten days’ written notice to TruePoint. Upon termination of this Agreement, City will pay TruePoint any compensation earned and unpaid up to the effective date of termination.
15. Compliance with Law. TruePoint must comply with all laws of the State of California and the United States, and all ordinances, rules and regulations enacted or issued by City.
16. Discrimination. TruePoint may not discriminate in the provision of services hereunder because of race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability.
17. Nuisance. TruePoint may not maintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Agreement.
18. Records.
18.1 TruePoint must maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by the City for any services provided where compensation is on the basis of hourly rates, subconsultant costs, or other direct costs. TruePoint must keep the records, together with supporting documents, separate from other documents and records and maintain them for a period of three years after receipt of final payment.
18.2 TruePoint must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles.
TruePoint must clearly identify all records and make them readily accessible to the City. At the City’s request, TruePoint must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records.
18.3 TruePoint must allow the City to have free access to TruePoint’s books and records and to inspect all work, data, documents, proceedings and activities related to this Agreement. The City has the right to examine or audit TruePoint’s records, and TruePoint agrees to cooperate with any examination or DocuSign Envelope ID: E8574A25-8107-4B7B-8022-748404A7B449 - 5 -
audit of its records. If a City audit discloses an error of 5% or more in information reported by TruePoint, TruePoint agrees to pay the cost of the City’s audit computed on the basis of four times the direct payroll of the audit staff completing the audit and audit report.
19. Work Product; Reports.
19.1 Any work product prepared or caused to be prepared by TruePoint or any subconsultant for this Agreement will be the exclusive property of City. No work product given to or prepared by TruePoint or any subconsultant pursuant to this Agreement may be made available to any individual or organization by TruePoint without prior written approval by City.
19.2 At the City’s request, TruePoint must furnish reports concerning the status of the Services.
20. Standard of Care. TruePoint agrees to provide all Services, including services performed by any subconsultant, in a manner consistent with the level of care and skill ordinarily exercised by members of TruePoint’s profession currently practicing in the same locality under similar conditions.
21. Subconsultants.
21.1 If TruePoint proposes to have any subconsultant perform any part of the Services, TruePoint must submit a request for approval in writing, describing the scope of work to be subcontracted, the name of the proposed subconsultant, and the total price or hourly rates used in preparing an estimated cost for the subconsultant’s services. The City, in its sole discretion, may grant or deny the request.
21.2 TruePoint will be responsible for the quality of any subconsultant’s work. Every subcontract or agreement of any kind entered into between TruePoint and any subconsultant (or between any subconsultant and others) must contain the following provision:
This agreement is consistent with all terms and conditions of the Agreement No. 4756 entered into between the City of Santa Monica and TruePoint on^^____________________.
22. Governing Law. The laws of the State of California, without regard to any choice of law provisions, will govern this Agreement.
23. Venue and Jurisdiction. The City and TruePoint agree that the Services will take place in Los Angeles County. Any litigation arising out of this Agreement may only be brought in either the United States District Court, Central District of California, or the Superior Court of California, County of Los Angeles, West District, as appropriate. The parties agree that venue exists in either court, and each party DocuSign Envelope ID: E8574A25-8107-4B7B-8022-748404A7B449 7/24/2020
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expressly waives any right to transfer to another venue. The parties further agree that either court will have personal jurisdiction over the parties to this Agreement.
24. Survival of Provisions and Obligations. Any provision of this Agreement, which by its nature must be exercised after termination of this Agreement, will survive termination and remain effective for a reasonable time. Any obligation that accrued prior to termination of this Agreement will survive termination of this Agreement.
25. Exhibits. The following exhibits are incorporated by reference into this Contract as though fully set forth herein.
Exhibit A Scope of Services
Exhibit B Budget
Exhibit C Insurance Requirements
In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.
ATTEST:
______________________________
DENISE ANDERSON-WARREN
City Clerk
APPROVED AS TO FORM:
______________________________
LANE DILG
City Attorney
CITY OF SANTA MONICA,
a municipal corporation
By: ______________________________
RICK COLE
City Manager
TruePoint Corporation
#VENDOR
By: ________________________________
DocuSign Envelope ID: E8574A25-8107-4B7B-8022-748404A7B449 George Cardona
7/21/2020
Interim City Attorney
CEO
7/21/2020
Kent Johnson
TruePoint Solutions, LLC
7/24/2020
Lane Dilg
City Clerk Interim City Manager
Denise Anderson-Warren
7/24/2020
Exhibit A
Scope of Services
TruePoint Solutions appreciates the opportunity to continue our relationship with the City to enhance the utilization of your Accela Civic Platform products and support the day to day needs of your end users. TruePoint has experience with your current configuration. As we support your needs, we will also focus on knowledge transfer of the Accela Civic Platform features.
TruePoint Solutions proposes a blanket as needed support agreement to work with your staff to support and enhance the Accela Automation functionality. TruePoint can advise, configure, support and train all aspects of the Accela Civic platform and currently works with over 50 Accela customers in a support role.
Proposed Services
As Needed Expert Support and General Maintenance
This service will provide day-to-day as-needed or on call support above and beyond what is provided by Accela CRC. It will also provide a budget to continually enhance and expand the City’s Accela configuration.
Training as need on any aspect of Accela. Training can be done on-site or remote Advise on how to most efficiently configure the Accela Civic Platform based on experience we have gained from over 120 customers
Misc. Configuration changes as requested
Scripting for business process automation
Fee configuration and enhancements
Report Development and Support using Ad-Hoc, Crystal or SSRS ACA support and enhancements
Accela Mobile support
Accela GIS support
Day-to-day phone support and issue resolution
Accela install and upgrade support
DocuSign Envelope ID: E8574A25-8107-4B7B-8022-748404A7B449 Exhibit B
Budget
Services Costs
Tasks Hours Rate Total Comment
As Needed
Support
500 $150.00 $75,000.00
Travel Budget TBD
On-site support is
available if needed
Total $75,000.00
Services will be billed monthly on a T&M hourly basis as work is requested by the City.
DocuSign Envelope ID: E8574A25-8107-4B7B-8022-748404A7B449 Exhibit C
Insurance Requirements
Consultant shall procure and maintain for the duration of the Agreement insurance against claims that may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees or subcontractors.
Minimum Scope and Limits of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (Insurance Services Office Form CG 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and Code 9 (non-owned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: Workers’ Compensation insurance as required by the State of California, with Statutory Limits and Employers’ Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #1).
4. Technology Professional Errors and Omissions/Cyber Liability: Insurance with a limit of not less than $1,000,000 per occurrence or claim/$2,000,000 in the annual aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations undertaken by Consultant in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, invasion of privacy violations, information theft, release of private information, alteration of electronic information, extortion, and network security. The policy shall also provide coverage for breach response costs, regulatory fines and penalties, and credit monitoring expenses with limits sufficient to respond to these obligations. Further, the policy shall include, or be endorsed to include property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data or information “property” of the City of Santa Monica in the care, custody, and control of the Consultant.
If the Consultant maintains broader coverage or higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to any broader coverage and higher limits maintained by the Contractor. Any available insurance proceeds in excess of DocuSign Envelope ID: E8574A25-8107-4B7B-8022-748404A7B449 the specified minimum limits of insurance and coverage shall be available to the City of Santa Monica.
Other Insurance Provisions
1. The insurance policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status: The City of Santa Monica, its officers, officials, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Consultant including materials, parts, or equipment furnished in connection with such work or operations. CGL coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as Insurance Services Office Form CG 20 10 11 85, or if not available, through the addition of a combination of (1) CG 20 10, CG 20 26, CG 20 33, or CG 20 38 and (2) CG 20 37).
b. Primary Coverage: For any claims related to this Agreement, the Consultant’s insurance shall be primary coverage at least as broad as Insurance Services Offices Form CG 20 01 04 13 as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City of Santa Monica, its officers, officials, employees or volunteers shall be in excess of the Consultant’s insurance and shall not contribute with it. c. Notice of Cancellation: Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been given to the City of Santa Monica.
d. Waiver of Subrogation: Consultant hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Consultant may acquire against the City of Santa Monica by virtue of payment of any loss. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Santa Monica has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require the Consultant to purchase coverage with a lower deductible or retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City of Santa Monica.
Acceptability of Insurers
DocuSign Envelope ID: E8574A25-8107-4B7B-8022-748404A7B449 Insurance is to be placed with insurers authorized to conduct business in California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.
Claims Made Policies
1. If the Professional Liability policy provides “claims made” coverage:
a. The Retroactive Date must be shown and must be before the date of this Agreement or the start of work.
b. The insurance must be maintained, and evidence of insurance must be provided for at least 5 years after completion of work.
c. If the policy is cancelled or not renewed, and not replaced with another “claims made” policy form with a Retroactive Date prior to the effective Agreement date, the Consultant must purchase “extended reporting” coverage for a minimum of 5 years after completion of work.
Verification of Coverage
Consultant shall furnish the City of Santa Monica with original certificates and amendatory endorsements (or copies of the applicable policy language effecting coverage provided by this clause). All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them.
The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including the endorsements required herein, at any time.
Failure to Maintain Insurance Coverage
If Consultant, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its sole option, may terminate this Agreement and obtain damages from the Consultant resulting from said breach. Alternatively, the City of Santa Monica may purchase such coverage (but has no special obligation to do so), and without further notice to the Consultant, the City may deduct from sums due to the Consultant any premium costs advanced by the City for such insurance.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.
Footnotes
DocuSign Envelope ID: E8574A25-8107-4B7B-8022-748404A7B449 # 1: Workers’ Compensation insurance coverage is not required if the Consultant does not have employees. The Consultant must, however, execute the City’s Workers’ Compensation Coverage Exemption Declaration Form.
DocuSign Envelope ID: E8574A25-8107-4B7B-8022-748404A7B449