Agreement No. 11509 (CCS)
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (“Agreement”), entered into as of _________________ (“Execution Date”), by and between the City of Santa Monica (“City”) and Enterprise Automation (“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 Agreement.
C. The City and Contractor now desire to enter into an agreement for Contractor to provide professional services to the City.
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, 2028, 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 MILLION, ONE HUNDRED EIGHTY-SIX THOUSAND, TWENTY-TWO DOLLARS AND NO CENTS ($2,186,022.00), as set forth in Exhibit B.
DocuSign Envelope ID: 4AC65D0A-442D-4898-9239-9844BBC73CFE 3/15/2024
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.
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
Water Resources Division
2500 Michigan Ave, Bldg 1
Santa Monica, California 90404
Attention: Tim Vosecky
Re: Agreement No. 11509 (CCS)
with a copy to:
Santa Monica City Attorney’s Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: City Attorney
Re: Agreement No. 11509 (CCS)
6.2 All notices, demands, requests or approvals to Contractor:
Enterprise Automation
9050 Irvine Center Dr
Irvine, CA 92618
Attention: Paul Rahmanian
[email protected]
Re: Agreement No. 11509 (CCS)
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 Agreement. 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 DocuSign Envelope ID: 4AC65D0A-442D-4898-9239-9844BBC73CFE 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 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 Indemnification. As to Contractor’s Services produced under this Agreement, 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 acts, 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 DocuSign Envelope ID: 4AC65D0A-442D-4898-9239-9844BBC73CFE 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.
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.
DocuSign Envelope ID: 4AC65D0A-442D-4898-9239-9844BBC73CFE 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 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. 11509 (CCS) entered into between the City of Santa Monica and Contractor on^^____________________.
DocuSign Envelope ID: 4AC65D0A-442D-4898-9239-9844BBC73CFE 3/15/2024
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 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. //
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DocuSign Envelope ID: 4AC65D0A-442D-4898-9239-9844BBC73CFE
25. Execution in Counterparts. This Agreement may be executed in counterparts with the same effect as if both parties hereto had executed the same document. All counterparts shall be construed together and shall constitute a single modification.
Any signature to this Agreement transmitted electronically through DocuSign or PDF shall be deemed an original signature and be binding upon the parties hereto (it being agreed that such electronic signature shall have the same force and effect as an original signature).
26. Exhibits. The following exhibits are incorporated by reference into this Agreement 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
ABC Corporation
#VENDOR
By:________________________________
DocuSign Envelope ID: 4AC65D0A-442D-4898-9239-9844BBC73CFE 3/14/2024
DOUGLAS SLOAN
City Attorney
Partners in Control Inc
3/15/2024
Josh Riley
President
3/15/2024
City Manager
David White
3/19/2024
Nikima Newsome
Interim City Clerk
Exhibit A
Scope
Task 1 Project Management
o Project setup
accounting setup
scheduling
resource loading
o Execution planning
develop initial detailed project task execution plans o Internal kickoff meeting
review project scope
review design documentation
purpose, schedule, team roles, expectations risk matrix and due dates
o Prepare materials for kickoff (agenda, coordination)
o Project kickoff meeting with customer
review scope, roles, expectations
review schedule
site inspection
o Notes compilation
o Test Platform Design Workshop
o Procure hardware and software
o Design, configure, and validate test platform
o Change and Source Control Design Workshop
o Develop specifications
o Set up mantis and svn
o Request, obtain, and load documentation and config backups o Agenda Development
o Monthly Progress Meeting (1 hr/month, virtual)
review progress on tasks
discuss prioritization of upcoming work
o Minutes (submit within 5 working days of meeting)
o Coordination, project management, overhead, meetings
o Project schedule updates across all active tasks
o Maintain project documentation within City's SharePoint Task 2 System Evaluation & Recommendations
o Year 1 workshop to determine goals and approach
o Documentation and configuration collection and review o On-site audit
o In-office audit report development
o Report submittal
o Audit report review workshop
o Master plan updates
o Annual Master Plan Review & Updates
DocuSign Envelope ID: 4AC65D0A-442D-4898-9239-9844BBC73CFE Facilitate on-site workshop
Agenda & meeting preparation
Meeting minutes
Task 3 PLC Efficiency Improvements
o PLC Review and Improvements Discovery Workshop
agenda, minutes
on-site workshop
o Develop PLC improvements plan
investigate preliminary improvements list
develop scope, budget, schedule
submit for approval and City prioritization
o Annual PLC Efficiency Improvements Review Workshop
agenda, minutes
on-site workshop
o PLC improvements design, testing, configuration, and deployment Task 4 HMI Enhancements
o Operator Interviews for HMI Improvements
prep for interviews
o Develop HMI improvements plan
investigate improvements, develop scope, budget, schedule submit for approval and City prioritization
o Annual HMI Improvements Review Workshop
agenda, minutes
on-site workshop
o HMI improvements design, testing, and configuration
deployment
Task 5 On-Call Services
o Routine Services
scheduled maintenance visits, annual
capital project support
o 24/7 Urgent Support
Process Optimization & Machine Learning Platform
o Workshop to determine goals and approach
o Select and evaluate options
o Implement pilot solution(s)
o Hardware/software budget
o Coordination, project management, meetings
Best Practices & Standards
o Workshop and investigation
o Protocols and practices
source control, change control
DocuSign Envelope ID: 4AC65D0A-442D-4898-9239-9844BBC73CFE o Develop and Update Standards
o Review standards
HMI, PLC, Tag Naming, Standards Usage Guide, I&C, Networking, Platform, Security, Testing, Control Panel Design, Remote access, etc.
o Coordination, project management, meetings
IT-OT Cybersecurity Audit
o Workshop and investigation
o Audit City IT/OT assets
o Perform gap analysis
o Develop evaluation report including projects and budgets o Coordination, project management, meetings
Disaster Recovery Planning
o Workshop and investigation
o Develop DR plan
o Review workshop
o Coordination, project management, meetings
Reporting System Evaluation & Remediation
o Workshop and investigation
o Recommendations document
o Review workshop
o Hardware/software budget
o Coordination, project management, meetings
Machine Learning Pilot Implementation
o Evaluate options
o Facilitate installation, including access to required process data o Coordinate with third-party software provider
o Manage required hardware on-site
o Configure real-time and reporting dashboards
o Coordination, project management, meetings
DocuSign Envelope ID: 4AC65D0A-442D-4898-9239-9844BBC73CFE Exhibit B
Budget
Task Cost
Task 1 - Project Management $272,203
Required
Scope
Task 2 - Sys Eval & Recs $90,608
Task 3 - PLC Efficiency Improvements $419,427
Task 4 - HMI Enhancements $257,764
Task 5 - On-Call Services $582,420
Process Optimization & ML $52,240
Optional
Scope
Best Practices & Standards $54,760
IT-OT Cybersecurity Audit $28,540
Disaster Recovery Planning $19,030
Reporting System Eval & Rem $59,030
ML Pilot Implementation $350,000
GRAND TOTAL $2,186,022
Total NTE: $2,186,022
DocuSign Envelope ID: 4AC65D0A-442D-4898-9239-9844BBC73CFE 1 Rev. October 2023
Professional Services Agreement Insurance Requirements
Professional Liability Insurance Required
Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property 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 (nonowned), 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. Professional Liability: Insurance appropriate to the Consultant’s profession with limits of no less than $1,000,000 per occurrence or claim/$2,000,000 in the annual aggregate.
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 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 DocuSign Envelope ID: 4AC65D0A-442D-4898-9239-9844BBC73CFE 2 Rev. October 2023
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 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
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:
DocuSign Envelope ID: 4AC65D0A-442D-4898-9239-9844BBC73CFE 3 Rev. October 2023
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.
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
# 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: 4AC65D0A-442D-4898-9239-9844BBC73CFE