Contract No. 4823
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 Herc Rentals, Inc. (“Contractor”), 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. Contractor is qualified to do business, and is doing business, in the State of California. Contractor represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Contract.
C. The City and Contractor desire to enter into an agreement for the Contractor 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, 2026, unless sooner terminated in accordance with Section 14.
2. Contractor Services. Contractor will perform all of the services (“Services”) described in Exhibit A, Scope of Services. Contractor will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to Contractor 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 Contractor.
4. Compensation. The City will compensate Contractor for the Services performed in an amount not to exceed TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000), as set forth in Exhibit B.
5. Invoices. Contractor 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.
DocuSign Envelope ID: 4C053649-5761-41F8-BFE6-68B4B1DB43F6 10/19/2021
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, 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:
City of Santa Monica
2500 Michigan Ave. Bldg. 1
Santa Monica, California 90404
Attention: Thomas Poon
Re: Contract No. 4823
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. 4823
6.2 All notices, demands, requests or approvals to Contractor:
Herc
27500 Riverview Center Blvd.
Bonita Springs, FL 34134
Attention: Richard Shugg
Re: Contract No. 4823
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 Contractor or any of Contractor’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 Contractor, and approved as to form by the City Attorney.
9. Insurance. Prior to commencing work, Contractor 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 Contractor or Contractor’s agents, representatives, employees or subconsultants for the duration of DocuSign Envelope ID: 4C053649-5761-41F8-BFE6-68B4B1DB43F6 this Agreement. Contractor 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 Contractor 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 Contractor, or Contractor’s employees, agents, officers, and subconsultants. Contractor’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 Contractor, its employees, agents or officers, or subconsultants; provided, however, that Contractor’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 Contractor’s obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from Contractor, if City chooses to do so.
10.2 Enforcement Costs. Contractor 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 Contractor 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 Contractor or of any general partner or joint venturer or syndicate member of Contractor, if a partnership or joint venture or syndicate exists, which results in changing the control of Contractor, 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. Contractor, at its sole expense, must obtain and maintain during the term of this Agreement all required business and professional permits, licenses and certificates.
DocuSign Envelope ID: 4C053649-5761-41F8-BFE6-68B4B1DB43F6
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 Contractor 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 Contractor.
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 Contractor. Upon termination of this Agreement, City will pay Contractor any compensation earned and unpaid up to the effective date of termination.
15. Compliance with Law. Contractor 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. Contractor 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. Contractor 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 Contractor 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. Contractor 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 Contractor must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles.
Contractor must clearly identify all records and make them readily accessible to the City. At the City’s request, Contractor must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records.
18.3 Contractor must allow the City to have free access to Contractor’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 Contractor’s records, and Contractor agrees to cooperate with any examination DocuSign Envelope ID: 4C053649-5761-41F8-BFE6-68B4B1DB43F6 or audit of its records. If a City audit discloses an error of 5% or more in information reported by Contractor, Contractor 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 Contractor or any subconsultant for this Agreement will be the exclusive property of City. No work product given to or prepared by Contractor or any subconsultant pursuant to this Agreement may be made available to any individual or organization by Contractor without prior written approval by City.
19.2 At the City’s request, Contractor must furnish reports concerning the status of the Services.
20. Standard of Care. Contractor 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 Contractor‘s profession currently practicing in the same locality under similar conditions.
21. Subconsultants.
21.1 If Contractor proposes to have any subconsultant perform any part of the Services, Contractor 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 Contractor will be responsible for the quality of any subconsultant’s work. Every subcontract or agreement of any kind entered into between Contractor 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. 4823 entered into between the City of Santa Monica and Contractor 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 Contractor 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: 4C053649-5761-41F8-BFE6-68B4B1DB43F6 10/19/2021
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. Counterparts. This Agreement and all amendments and supplements to it may be executed in counterparts, and all counterparts together shall be construed as one document. Counterparts hereof that are transmitted by facsimile or electronic transmission shall be given identical legal effect as an original.
26. 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
Herc Corporation
#VENDOR
By: ________________________________
DocuSign Envelope ID: 4C053649-5761-41F8-BFE6-68B4B1DB43F6 Joseph Lawrence
Interim City Attorney
10/13/2021 10/14/2021
Vice President
Jason Oosterbeek
Herc Rentals Inc.
City Manager
David White
10/19/2021
Denise Anderson-Warren
10/20/2021
City Clerk
Exhibit A
Scope of Services
Heavy duty construction vehicle rental
Herc Rentals, Inc. will provide as needed rental agreement for heavy duty construction vehicles. Vehicles shall be available for pickup or delivery to City Yards within one week of request. No minimum rental period is guaranteed. Vehicles will be requested by Water Resources as needed for operations.
Vehicles will include, but not limited to, the following:
5 - 6 yard dump truck
12 - 14 yard dump truck
22 foot stakebed truck
18 foot crane truck
70 - 97 horsepower 4wd extendable backhoe
Vendor shall provide all maintenance and repair needed for rental vehicles and provide replacement vehicles for those receiving service.
Delivery/Pickup address:
Water Resources – City Yards
2500 Michigan Ave, Bldg 1
Santa Monica, CA 90404
DocuSign Envelope ID: 4C053649-5761-41F8-BFE6-68B4B1DB43F6 Exhibit B
Budget
Contract Total NTE: $250,000 over 5 years.
Herc Rentals Inc.
Description Unit of Measure Unit Cost
12-14 YARD DUMP TRUCK HOURLY $599.00
5-6 YARD DUMP TRUCK HOURLY $299.00
22 FOOT STAKEBED TRUCK HOURLY $324.00
18 FOOT CRANE TRUCK HOURLY $599.00
70-97 HORSEPOWER 4WD EXTENDABLE
BACKHOE HOURLY $324.00
12-14 YARD DUMP TRUCK DAILY $599.00
5-6 YARD DUMP TRUCK DAILY $299.00
22 FOOT STAKEBED TRUCK DAILY $324.00
18 FOOT CRANE TRUCK DAILY $599.00
70-97 HORSEPOWER 4WD EXTENDABLE
BACKHOE DAILY $324.00
12-14 YARD DUMP TRUCK WEEKLY $1,799.00
5-6 YARD DUMP TRUCK WEEKLY $924.00
22 FOOT STAKEBED TRUCK WEEKLY $1,024.00
18 FOOT CRANE TRUCK WEEKLY $1,799.00
70-97 HORSEPOWER 4WD EXTENDABLE
BACKHOE WEEKLY $874.00
12-14 YARD DUMP TRUCK MONTHLY $4,599.00
5-6 YARD DUMP TRUCK MONTHLY $2,464.00
22 FOOT STAKEBED TRUCK MONTHLY $2,699.00
18 FOOT CRANE TRUCK MONTHLY $4,599.00
70-97 HORSEPOWER 4WD EXTENDABLE
BACKHOE MONTHLY $2,149.00
DELIVERY TO CITY YARDS EACH $125.00
PICKUP FROM CITY YARDS EACH $125.00
Annual increase, years 2-5 of contract: 2%
DocuSign Envelope ID: 4C053649-5761-41F8-BFE6-68B4B1DB43F6