meet our unique needs. Ultimately, the Department found that the CivicPlus software called CivicRec, to be one of the leading registration software companies in the industry and most closely aligned with the needs of the Department.
With a focus on local government, CivicPlus provides comprehensive solutions for a variety of city needs, including employee management (CivicHR), mass communications (CivicReady), agendas and meeting processes (CivicClerk), and more.
CivicRec is the specific platform dedicated to supporting and enhancing the parks and recreation industry. CivicPlus offers customers a user-friendly interface, ensuring that navigation is intuitive and simple.
CivicPlus offers an all-in-one recreation software solution with activity registration, facility management, membership management, special event ticketing, quantifiable insights through reporting, and more. CivicPlus will also allow the Department to establish a strong online presence with built-in marketing tools such as the ability to connect social media networking profiles, engage patrons through text or email, and gain community feedback through surveys. Contactless payment options will facilitate more safe and secure processes through CivicPlus.
The proposed agreement incorporates the standard agreement CivicPlus utilizes for government agencies throughout the country, incorporating terms developed by the US General Services Agency; the agreement is not a contract with GSA. Approving this contract will assist with the Department’s ability to deliver excellent customer service, improve overall efficiencies, and provide a platform for future development within the Department.
The term of the contract is for one year, renewing for a second one-year term with each party having the option to terminate the renewal period on 60 days notice before renewal.
Fiscal Impact
State and Local Fiscal Recovery Funds (SLFRF) in the amount of $50,000 for these services were included in the Fiscal Year 2022-2023 budget, as approved at the City Council meeting held on June 15, 2022 and are currently housed in the NonDepartmental Overhead Account No. 101-3010-3041-8020 (Finance - Special Department Expense). If approved, it is requested that $50,000 be transferred from Account No. 101-3010-3041-8020 to Account No. 101-8030-8031-8180 (Community Services - Contract Services).
The first-year fee is $29,709.50 which includes project implementation and initial term annual services. The remaining SLFRF balance of $20,290.50 will be used towards the annual service fee for Fiscal Year 2023-2024. The annual fee of $25,356.45 is partly based on the Department’s revenue and will be included in the annual budget. There will be an impact for Fiscal Year 2024-2025 as funds from SLFRF will be depleted.
Attachment: Professional Services Agreement with CivicPlus 14 - 2
ATTACHMENT
Professional Services Agreement with CivicPlus
14 - 3
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
PROFESSIONAL SERVICES AGREEMENT
FOR CONSULTANT SERVICES
(City of South Pasadena / CivicPlus)
1. IDENTIFICATION
This PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is entered into by and between the City of South Pasadena, a California municipal corporation (“City”), and CivicPlus (“Consultant”).
2. RECITALS
2.1. City has determined that it requires the following professional services from a consultant: Provide Community Services Department Management Software Program.
2.2. Consultant represents that it is fully qualified to perform such professional services by virtue of its experience and the training, education and expertise of its principals and employees. Consultant further represents that it is willing to accept responsibility for performing such services in accordance with the terms and conditions set forth in this Agreement.
2.3. Consultant represents that it has no known relationships with third parties, City Council members, or employees of City which would (1) present a conflict of interest with the rendering of services under this Agreement under Government Code Section 1090, the Political Reform Act (Government Code Section 81000 et seq.), or other applicable law, (2) prevent Consultant from performing the terms of this Agreement, or (3) present a significant opportunity for the disclosure of confidential information.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, City and Consultant agree as follows:
3. DEFINITIONS
3.1. “Scope of Services”: Such professional services are set forth in the Consultant’s Statement of Work for South Pasadena proposal to City attached hereto as Exhibit A and incorporated herein by this reference.
3.2. “Agreement Administrator”: The Agreement Administrator for this project is Sheila Pautsch, Community Services Director. The Agreement Administrator shall be the principal point of contact at the City for this project. All services under this Agreement shall be performed at the request of the Agreement Administrator. The Agreement Administrator will establish the timetable for 14 - 4
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
completion of services and any interim milestones. City reserves the right to change this designation upon written notice to Consultant
3.3. “Approved Fee Schedule”: Consultant’s compensation rates are set forth in Exhibit A and incorporated herein by this reference. This fee schedule shall remain in effect for the duration of this Agreement unless modified in writing by mutual agreement of the parties.
3.4. “Maximum Amount”: The highest total compensation and costs payable to Consultant by City under this Agreement for the initial term is Twenty-nine Thousand Seven Hundred and 50/100 Dollars ($29,709.50). The Maximum Amount under this Agreement for subsequent years extended through extension options shall not exceed Annual Service Term Fee amount of Twenty-five Thousand Three Hundred Fifty-six and 45/100 Dollars ($25,356.45).
3.5. “Commencement Date”: September 21, 2022.
3.6. “Termination Date”: September 1, 2023.
4. TERM
The term of this Agreement shall commence at 12:00 a.m. on the Commencement Date and shall expire at 11:59 p.m. on the Termination Date unless extended by written agreement of the parties or terminated earlier under Section 16 (“Termination”) below.
This Agreement shall be in effect for an initial term of one year from signing with the option of automatic renewal each anniversary for additional one year terms each anniversary until terminated by either Party. Such extensions shall be effective unless notice is provided by either Party of its intent to Terminate this Agreement pursuant to section 16.
5. CONSULTANT’S DUTIES
5.1. Services. Consultant shall perform the services identified in the Scope of Services. City shall have the right to request, in writing, changes in the Scope of Services. Any such changes mutually agreed upon by the parties, and any corresponding increase or decrease in compensation, shall be incorporated by written amendment to this Agreement.
5.2. Coordination with City. In performing services under this Agreement, Consultant shall coordinate all contact with City through its Agreement Administrator.
5.3. [Intentionally Omitted].
5.4. Business License. Consultant shall obtain and maintain in force a City business license for the duration of this Agreement.
14 - 5
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
5.5. Professional Standards. Consultant shall perform all work to the standards of Consultant’s profession and in a manner reasonably satisfactory to City.
Consultant shall keep itself fully informed of and in compliance with all local, state, and federal laws, rules, and regulations in any manner affecting the performance of this Agreement, including all Cal/OSHA requirements, the conflict of interest provisions of Government Code § 1090 and the Political Reform Act (Government Code § 81000 et seq.).
5.6. Avoid Conflicts. During the term of this Agreement, Consultant shall not perform any work for another person or entity for whom Consultant was not working at the Commencement Date if such work would present a conflict interfering with performance under this Agreement. However, City may consent in writing to Consultant’s performance of such work.
5.7. Appropriate Personnel. Consultant has, or will secure at its own expense, all personnel required to perform the services identified in the Scope of Services.
All such services shall be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. CivicPlus shall be Consultant’s project administrator and shall have direct responsibility for management of Consultant’s performance under this Agreement. No change shall be made in Consultant’s project administrator without City’s prior written consent.
5.8. Substitution of Personnel. Any persons named in the proposal or Scope of Services constitutes a promise to the City that those persons will perform and coordinate their respective services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. If City and Consultant cannot agree as to the substitution of key personnel, City may terminate this Agreement for cause.
5.9. Permits and Approvals. Consultant shall obtain, at its sole cost and expense, all permits and regulatory approvals necessary for Consultant’s performance of this Agreement. This includes, but shall not be limited to, professional licenses, encroachment permits and building and safety permits and inspections.
5.10. Notification of Organizational Changes. Consultant shall notify the Agreement Administrator, in writing, of any change in name, ownership or control of Consultant’s firm or of any subcontractor. Change of ownership or control of Consultant’s firm may require an amendment to this Agreement.
5.11. Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and 14 - 6
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such documents shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City. In addition, pursuant to Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds ten thousand dollars, all such documents and this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
6. SUBCONTRACTING
6.1. General Prohibition. This Agreement covers professional services of a specific and unique nature. Except as otherwise provided herein, Consultant shall not assign or transfer its interest in this Agreement or subcontract any services to be performed without amending this Agreement.
6.2. Consultant Responsible. Consultant shall be responsible to City for all services to be performed under this Agreement.
6.3. Identification in Fee Schedule. All subcontractors shall be specifically listed and their billing rates identified in the Approved Fee Schedule, Exhibit B. Any changes must be approved by the Agreement Administrator in writing as an amendment to this Agreement.
6.4. Compensation for Subcontractors. City shall pay Consultant for work performed by its subcontractors, if any, only at Consultant’s actual cost plus an approved mark-up as set forth in the Approved Fee Schedule, Exhibit B.
Consultant shall be liable and accountable for any and all payments, compensation, and federal and state taxes to all subcontractors performing services under this Agreement. City shall not be liable for any payment, compensation, or federal and state taxes for any subcontractors.
7. COMPENSATION
7.1. General. City agrees to compensate Consultant for the services provided under this Agreement, and Consultant agrees to accept payment in accordance with the Fee Schedule in full satisfaction for such services. Compensation shall not exceed the Maximum Amount. Consultant shall not be reimbursed for any expenses unless provided for in this Agreement or authorized in writing by City in advance.
7.2. Invoices. Consultant shall submit to City an invoice, on a monthly basis or as otherwise agreed to by the Agreement Administrator, for services performed pursuant to this Agreement. Each invoice shall identify the Maximum Amount, 14 - 7
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
the services rendered during the billing period, the amount due for the invoice, and the total amount previously invoiced. All labor charges shall be itemized by employee name and classification/position with the firm, the corresponding hourly rate, the hours worked, a description of each labor charge, and the total amount due for labor charges.
7.3. Taxes. City shall not withhold applicable taxes or other payroll deductions from payments made to Consultant except as otherwise required by law. Consultant shall be solely responsible for calculating, withholding, and paying all taxes.
7.4. Disputes. The parties agree to meet and confer at mutually agreeable times to resolve any disputed amounts contained in an invoice submitted by Consultant.
7.5. Additional Work. Consultant shall not be reimbursed for any expenses incurred for work performed outside the Scope of Services unless prior written approval is given by the City through a fully executed written amendment.
Consultant shall not undertake any such work without prior written approval of the City.
7.6. [Intentionally Omitted].
7.7. Right to Withhold Payments. If Consultant fails to provide a deposit or promptly satisfy an indemnity obligation described in Section 11, City shall have the right to withhold payments under this Agreement to offset that amount.
8. PREVAILING WAGES
Consultant is aware of the requirements of California Labor Code Section 1720, et seq., 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. Consultant shall defend, indemnify, and hold the City, tis elected officials, officers, employees, and agents free and harmless form any claim or liability arising out of any failure or alleged failure of Consultant to comply with the Prevailing Wage Laws.
9. OWNERSHIP OF WRITTEN PRODUCTS
City will own the website, graphic designs, webpage or Services content, module content, importable/exportable data, and archived information (“City Content”) created by Contractor on behalf of City pursuant to this Agreement. “City Content” also includes any elements of text, graphics, images, photos, designs, artworks, logos, trademarks, services marks, and other materials or content which City provides inputs into any website, software or module in connection with any Services. City Content excludes any content in the public domain; and any content owned or licensed by Contractor, whether in 14 - 8
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
connection with providing Services or otherwise. Contractor shall not use any City logos, trademarks or other City Content without written permission of City.
10.RELATIONSHIP OF PARTIES
10.1. General. Consultant is, and shall at all times remain as to City, a wholly independent contractor.
10.2. No Agent Authority. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise to act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement. Consultant shall not represent that it is, or that any of its agents or employees are, in any manner employees of City.
10.3. Independent Contractor Status. Under no circumstances shall Consultant or its employees look to the City as an employer. Consultant shall not be entitled to any benefits. City makes no representation as to the effect of this independent contractor relationship on Consultant’s previously earned California Public Employees Retirement System (“CalPERS”) retirement benefits, if any, and Consultant specifically assumes the responsibility for making such a determination. Consultant shall be responsible for all reports and obligations including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation, and other applicable federal and state taxes.
10.4. Indemnification of CalPERS Determination. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or CalPERS to be eligible for enrollment in CalPERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for CalPERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
11.INDEMNIFICATION
11.1 Definitions. For purposes of this Section 11, “Consultant” shall include Consultant, its officers, employees, servants, agents, or subcontractors, or anyone directly or indirectly employed by either Consultant or its subcontractors, in the performance of this Agreement. “City” shall include City, its officers, agents, employees and volunteers.
11.2 Consultant to Indemnify City. To the fullest extent permitted by law, Consultant shall indemnify, hold harmless, and defend City from and against 14 - 9
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
any and all third party claims, losses, costs or expenses for any personal injury or property damage arising out of or in connection with Consultant’s alleged negligence, recklessness or willful misconduct or other wrongful acts, errors or omissions of Consultant or failure to comply with any provision in this Agreement.
11.3 Scope of Indemnity. Personal injury shall include injury or damage due to death or injury to any person, whether physical, emotional, consequential or otherwise, Property damage shall include injury to any personal or real property. Consultant shall not be required to indemnify City for such loss or damage as is caused by the sole active negligence or willful misconduct of the City.
11.4 Attorneys Fees. Such costs and expenses shall include reasonable attorneys’ fees for counsel of City’s choice, expert fees and all other costs and fees of litigation. Consultant shall not be entitled to any refund of attorneys’ fees, defense costs or expenses in the event that it is adjudicated to have been nonnegligent.
11.5 Defense Deposit. The City may request a deposit for defense costs from Consultant with respect to a claim. If the City requests a defense deposit, Consultant shall provide it within 15 days of the request.
11.6 Waiver of Statutory Immunity. The obligations of Consultant under this Section 11 are not limited by the provisions of any workers’ compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City.
11.7 Indemnification by Subcontractors. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor or any other person or entity involved in the performance of this Agreement on Consultant’s behalf.
11.8 Insurance Not a Substitute. City does not waive any indemnity rights by accepting any insurance policy or certificate required pursuant to this Agreement. Consultant’s indemnification obligations apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense.
12.INSURANCE
12.1. Insurance Required. Consultant shall maintain insurance as described in this section and shall require all of its subcontractors, consultants, and other agents to do the same. Approval of the insurance by the City shall not relieve or decrease any liability of Consultant Any requirement for insurance to be maintained after completion of the work shall survive this Agreement. 14 - 10
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
12.2. Documentation of Insurance. City will not execute this agreement until it has received a complete set of all required documentation of insurance coverage.
However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. Consultant shall file with City:
• Certificate of Insurance, indicating companies acceptable to City, with a Best's Rating of no less than A:VII showing. The Certificate of Insurance must include the following reference: Provide Community Services Department Management Software Program.
• Documentation of Best’s rating acceptable to the City. • Original endorsements effecting coverage for all policies required by this Agreement.
• City reserves the right to obtain a full certified copy of any Insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of the right to exercise later.
12.3. Coverage Amounts. Insurance coverage shall be at least in the following minimum amounts:
• Cyber Liability Insurance: $2,000,000 per occurrence, $2,000,000 aggregate
• General Liability:
• General Aggregate: $2,000,000
• Products Comp/Op Aggregate $2,000,000
• Personal & Advertising Injury $2,000,000
• Each Occurrence $2,000,000
• Fire Damage (any one fire) $ 100,000
• Medical Expense (any 1 person) $ 10,000
• Workers' Compensation:
• Workers' Compensation Statutory Limits
• EL Each Accident $1,000,000
• EL Disease - Policy Limit $1,000,000
• EL Disease - Each Employee $1,000,000
• Automobile Liability
• Any vehicle, combined single limit $1,000,000
Any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements or limits shall be available to the additional insured. Furthermore, the requirements for coverage and limits shall be the greater of (1) the minimum coverage and limits specified in this 14 - 11
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
Agreement, or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured
12.4. General Liability Insurance. Commercial General Liability Insurance shall be no less broad than ISO form CG 00 01. Coverage must be on a standard Occurrence form. Claims-Made, modified, limited or restricted Occurrence forms are not acceptable.
12.5. Worker’s Compensation Insurance. Consultant is aware of the provisions of Section 3700 of the Labor Code which requires every employer to carry Workers' Compensation (or to undertake equivalent self-insurance), and Consultant will comply with such provisions before commencing the performance of the work of this Agreement. If such insurance is underwritten by any agency other than the State Compensation Fund, such agency shall be a company authorized to do business in the State of California.
12.6. Automobile Liability Insurance. Covered vehicles shall include owned if any, non-owned, and hired automobiles and, trucks.
12.7. Cyber Liability Insurance or Errors & Omissions Coverage. The deductible or self-insured retention may not exceed $50,000. If the insurance is on a Claims-Made basis, the retroactive date shall be no later than the commencement of the work. Coverage shall be continued for two years after the completion of the work by one of the following: (1) renewal of the existing policy; (2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement of the work under this Agreement.
12.8. Claims-Made Policies. If any of the required policies provide coverage on a claims-made basis the Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. Claims-Made Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work.
12.9. Additional Insured Endorsements. The City, its City Council, Commissions, officers, and employees of South Pasadena must be endorsed as an additional insured for each policy required herein, other than Professional Errors and Omissions and Worker’s Compensation, for liability arising out of ongoing and completed operations by or on behalf of the Consultant. Consultant’s insurance policies shall be primary as respects any claims related to or as the result of the Consultant’s work. Any insurance, pooled coverage or self-insurance maintained by the City, its elected or appointed officials, directors, officers, 14 - 12
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
agents, employees, volunteers, or consultants shall be non-contributory. All endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf. General liability coverage can be provided using an endorsement to the Consultant’s insurance at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10 and CG 20 37.
12.10. Failure to Maintain Coverage. In the event any policy is canceled prior to the completion of the project and the Consultant does not furnish a new certificate of insurance prior to cancellation, City has the right, but not the duty, to obtain the required insurance and deduct the premium(s) from any amounts due the Consultant under this Agreement. Failure of the Consultant to maintain the insurance required by this Agreement, or to comply with any of the requirements of this section, shall constitute a material breach of this Agreement.
12.11. Notices. Contractor shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required policies are reduced; (3) or the deductible or self-insured retention is increased. Consultant shall provide no less than 30 days’ notice of any cancellation or material change to policies required by this Agreement.
Consultant shall provide proof that cancelled or expired policies of insurance have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished at least two weeks prior to the expiration of the coverages. The name and address for Additional Insured Endorsements, Certificates of Insurance and Notices of Cancellation is: City of South Pasadena, Attn: Sheila Pautsch, Community Services Director, 1102 Oxley St., South Pasadena, CA 91030.
12.12. Consultant’s Insurance Primary. The insurance provided by Consultant, including all endorsements, shall be primary to any coverage available to City.
Any insurance or self-insurance maintained by City and/or its officers, employees, agents or volunteers, shall be in excess of Consultant’s insurance and shall not contribute with it.
12.13. Waiver of Subrogation. Consultant hereby waives all rights of subrogation against the City. Consultant shall additionally waive such rights either by endorsement to each policy or provide proof of such waiver in the policy itself.
12.14. Report of Claims to City. Consultant shall report to the City, in addition to the Consultant’s insurer, any and all insurance claims submitted to Consultant's insurer in connection with the services under this Agreement. 14 - 13
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
12.15. Premium Payments and Deductibles. Consultant must disclose all deductibles and self-insured retention amounts to the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within retention amounts. Ultimately, City must approve all such amounts prior to execution of this Agreement.
City has no obligation to pay any premiums, assessments, or deductibles under any policy required in this Agreement. Consultant shall be responsible for all premiums and deductibles in all of Consultant’s insurance policies. The amount of deductibles for insurance coverage required herein are subject to City’s approval.
12.16. Duty to Defend and Indemnify. Consultant’s duties to defend and indemnify City under this Agreement shall not be limited by the foregoing insurance requirements and shall survive the expiration of this Agreement.
13.MUTUAL COOPERATION
13.1. City Cooperation in Performance. City shall provide Consultant with all pertinent data, documents and other requested information as is reasonably available for the proper performance of Consultant’s services under this Agreement.
13.2. Consultant Cooperation in Defense of Claims. If any claim or action is brought against City relating to Consultant’s performance in connection with this Agreement, Consultant shall render any reasonable assistance that City may require in the defense of that claim or action.
14.NOTICES
Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on: (i) the day of delivery if delivered by hand, facsimile or overnight courier service during Consultant’s and City’s regular business hours; or (ii) on the third business day following deposit in the United States mail if delivered by e-mail, mail, postage prepaid, to the addresses listed below (or to such other addresses as the parties may, from time to time, designate in writing).
If to City
Sheila Pautsch, Community Services
Director
City of South Pasadena
815 Mission Street
South Pasadena, CA 91030
If to Consultant
CivicPlus
302 S. 4th Street, Suite 500
Manhattan, Kansas 66502
Telephone: (888) 228-2233
Fax: (785) 587-8951
14 - 14
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
Telephone: (626) 403-7380
With courtesy copy to:
Andrew Jared
South Pasadena City Attorney
Colantuono, Highsmith & Whatley, PC
790 E. Colorado Blvd. Ste. 850
Pasadena, CA 91101
Telephone: (213) 542-5700
Facsimile: (213) 542-5710
15.SURVIVING COVENANTS
The parties agree that the covenants contained in paragraph 5.11 (Records), paragraph 10.4 (Indemnification of CalPERS Determination), Section 11 (Indemnity), paragraph 12.8 (Claims-Made Policies), paragraph 13.2 (Consultant Cooperation in Defense of Claims), and paragraph 18.1 (Confidentiality) of this Agreement shall survive the expiration or termination of this Agreement, subject to the provisions and limitations of this Agreement and all otherwise applicable statutes of limitations and repose.
16.TERMINATION
16.1. City Termination. City may terminate this Agreement for any reason on ten calendar days’ written notice to Consultant. Consultant agrees to cease all work under this Agreement on or before the effective date of any notice of termination. All City data, documents, objects, materials or other tangible things shall be returned to City upon the termination or expiration of this Agreement.
16.2. Consultant Termination. Consultant may terminate this Agreement for a material breach of this Agreement upon 10 days’ notice.
16.3. Compensation Following Termination. Upon termination, Consultant shall be paid based on the work satisfactorily performed at the time of termination.
In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the services required by this Agreement. The City shall have the benefit of such work as may have been completed up to the time of such termination.
16.4. Remedies. City retains any and all available legal and equitable remedies for Consultant’s breach of this Agreement.
17.INTERPRETATION OF AGREEMENT
14 - 15
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
17.1. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California.
17.2. Integration of Exhibits. All documents referenced as exhibits in this Agreement are hereby incorporated into this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any exhibit or document incorporated herein by reference, the provisions of this Agreement shall prevail. This instrument contains the entire Agreement between City and Consultant with respect to the transactions contemplated herein. No other prior oral or written agreements are binding upon the parties. Amendments hereto or deviations herefrom shall be effective and binding only if made in writing and executed on by City and Consultant.
17.3. Headings. The headings and captions appearing at the commencement of the sections hereof, and in any paragraph thereof, are descriptive only and for convenience in reference to this Agreement. Should there be any conflict between such heading, and the section or paragraph thereof at the head of which it appears, the language of the section or paragraph shall control and govern in the construction of this Agreement.
17.4. Pronouns. Masculine or feminine pronouns shall be substituted for the neuter form and vice versa, and the plural shall be substituted for the singular form and vice versa, in any place or places herein in which the context requires such substitution(s).
17.5. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then such term or provision shall be amended to, and solely to the extent necessary to, cure such invalidity or unenforceability, and shall be enforceable in its amended form. In such event, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
17.6. No Presumption Against Drafter. Each party had an opportunity to consult with an attorney in reviewing and drafting this agreement. Any uncertainty or ambiguity shall not be construed for or against any party based on attribution of drafting to any party.
18.GENERAL PROVISIONS
18.1. Confidentiality. All data, documents, discussion, or other information developed or received by Consultant for performance of this Agreement are deemed confidential and Consultant shall not disclose it without prior written consent by City. City shall grant such consent if disclosure is legally required. 14 - 16
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
All City data shall be returned to City upon the termination or expiration of this Agreement.
18.2. Conflicts of Interest. Consultant maintains and warrants that it has not 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. Consultant further agrees to file, or shall cause its employees or subcontractor to file, a Statement of Economic Interest with the City’s Filing Officer if required under state law in the performance of the services. 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 member, 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.
18.3. Non-assignment. Consultant shall not delegate, transfer, subcontract or assign its duties or rights hereunder, either in whole or in part, without City’s prior written consent, and such prior written consent shall not be unreasonably withheld. Any attempt by Consultant to delegate, transfer, subcontract or assign its duties or rights hereunder without City’s prior written consent shall render such action void and of no effect. City shall not be obligated or liable under this Agreement to any party other than Consultant.
18.4. Binding on Successors. This Agreement shall be binding on the successors and assigns of the parties.
18.5. No Third-Party Beneficiaries. Except as expressly stated herein, there is no intended third-party beneficiary of any right or obligation assumed by the parties.
18.6. Time of the Essence. Time is of the essence for each and every provision of this Agreement.
18.7. Non-Discrimination. Consultant shall not discriminate against any employee or applicant for employment because of race, sex (including pregnancy, childbirth, or related medical condition), creed, national origin, color, disability as defined by law, disabled veteran status, Vietnam veteran status, religion, age (40 and above), medical condition (cancer-related), marital status, ancestry, or sexual orientation. Employment actions to which this provision applies shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; or in terms, 14 - 17
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
conditions or privileges of employment, and selection for training. Consultant agrees to post in conspicuous places, available to employees and applicants for employment, the provisions of this nondiscrimination clause.
18.8. Waiver. No provision, covenant, or condition of this Agreement shall be deemed to have been waived by City or Consultant unless in writing signed by one authorized to bind the party asserted to have consented to the waiver. The waiver by City or Consultant of any breach of any provision, covenant, or condition of this Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other provision, covenant, or condition.
18.9. Excused Failure to Perform. Consultant shall not be liable for any failure to perform if Consultant presents acceptable evidence, in City’s sole judgment, that such failure was due to causes beyond the control and without the fault or negligence of Consultant.
18.10. Remedies Non-Exclusive. Each right, power and remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise shall be cumulative and shall be in addition to every other right, power, or remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise. The exercise, the commencement of the exercise, or the forbearance from the exercise by any party of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by such party of any or all of such other rights, powers or remedies.
18.11. Attorneys’ Fees. If legal action shall be necessary to enforce any term, covenant or condition contained in this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys’ fees and costs expended in the action.
18.12. Venue. The venue for any litigation shall be Los Angeles County, California and Consultant hereby consents to jurisdiction in Los Angeles County for purposes of resolving any dispute or enforcing any obligation arising under this Agreement.
TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representatives to execute this Agreement on the dates set forth below. “City”
City of South Pasadena
By:_____________________________
Signature
Printed:_________________________
“Consultant”
CivicPlus
By:________________________________
Signature
Printed:_____________________________
14 - 18
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
Title:___________________________
Date:______________________
Title:_______________________________
Date:______________________
Attest:
By:__________________________________
Desiree Jimenez, CMC
Chief City Clerk
Date:________________________
Approved as to form:
By:__________________________________
Andrew Jared, City Attorney
Date:________________________
14 - 19
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
EXHIBIT A
C;, Contract Information
Contact Information
Organization URL
Street Address
Address 2
City State Code
CivicPlus provides telephone support for all trained clients from 7am -?pm Central Time, Monday-Friday (excluding holidays). Emergency Support is provided on a 24/7/365 basis for representatives named by the Client. Client is responsible for ensuring Civic Plus has current updates.
Emergency Contact & Mobile Phone
Emergency Contact & Mobile Phone
Emergency Contact & Mobile Phone
Billing Contact
Phone
Billing Address
Address 2
City
Tax ID#
Billing Terms Annual
Info Required on Invoice (PO or Job #)
Contract Contact
Phone
Project Contact
Phone
Ext.
ST
Ext.
Ext.
E-Mail
Fax
Postal
Code
Sales Tax
Exempt #
Rep
Email
Fax
Email
Fax
CivicPlus • 302 S. 4th street, Suite 500 • Manhattan, KS 66502 • www.CivicPlus.com Toll Free 888-228-2233 • Accounting Ext. 291 • Support Ext. 307 • Fax 785-587-8951 14 - 20
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
C 1111111 GSA Statement of Work for South Pasadena, CA
,.. GSA Contract GS-35F-01 24U
GSA CivicPlus Statement of Work
Labor Category GSA Hourly Rate with IFF
Website Consultant $149.01
Project Manager $135.86
Network Consultant $135.86
Wireless Network Technician $1 35.86
Programmer $131.48
Graphic Designer $109.57
Writer $109.57
Server and Network $109.57 Technician
Trainer $109.57
PC Technician $89.41
Content Developer $80.64
Hours
4 32
0 0
44 78
0 64
16 0
180
Subtotal
Discount (Valid through September 30, 2022)
Project Implementation and Deployment
CivicRec Premium Implementation
• Initial Term Annual Services
4x Half Day Virtual Training Blocks
1x Half Day Virtual Consulting Block
User Import
Membership/Passes Import
CivicRec Pay - Forte
CivicRec GIS Integration
CivicRec AudioEye Enterprise
CivicRec Document Management
Total First Year Fee
Annual Services Fees (Includes Subscription, Support and Maintenance) Total Cost
$596.04
$4,347.52
$0.00
$0.00
$5,785.12
$8,546.46
$0.00
$7,012.48
$1,753.12
$0.00
$14,515.20
$42,555.94
($12,846.44)
$29,709.50
$29,709.50
$25,356.45
1. Performance and payment under this Statement of Work ("SOW') by and between South Pasadena, California("Client") and CivicPlus ("CivicPlus") shall be subject to the terms & conditions of the Agreement by and between the General Services Administration and CivicPlus.
2. This SOW shall remain in effect for an initial term of one year (the "Initial Term") from signing.
3. In the event that neither party gives 60 days' notice to terminate prior to the end of the initial or any subsequent renewal term, this SOW will automatically renew for an additional 1-year Renewal Term.
V CPA03.01 .165-0001
Civic Plus • 302 S. 4th Street, Suite 500 • Manhattan, KS 66502 • www.CivicPlus.com Toll Free 888-228-2233 • Accounting Ext. 291 • Support Ext. 307 • Fax 785-587-8951
14 - 21
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
C 1111111 GSA Statement of Work for South Pasadena, CA
,.. GSA Contract GS-35F-0124U
4. Payment is due 30 days from date of invoice. Unless otherwise limited by law, a finance charge of 1.5 percent (%) per month or $5.00, whichever is greater, will be added to past due accounts. Payments received will be applied first to finance charges, then to the oldest outstanding invoice(s).
5. The Total First Year Fees shall be invoiced at signing
6. Annual Services Fees shall be invoiced on the date of signature of relevant calendar years beginning 12 months from signing, and occurring every 12 months thereafter. Annual services, including but not limited to hosting, support and maintenance services, shall be subject to a 5% annual increase beginning in Year 2 of service.
7. The Client's Annual Services Fees agreed upon herein are based on Client processing up to $510,000 of revenue per year ("Predicted Processing Volume") Starting with the first renewal year of this SOW, CivicPlus reserves the right (but not the obligation) to audit Client once every 12 months to determine Client's actual processing volume ("Actual Processing Volume") In the event Client's Actual Processing Volume exceeds the Predicted Processing Volume, CivicPlus will notify client within 30 days of the audit of the Actual Processing Volume and the applicable increase in the Annual Fees resulting from such Actual Processing Volume. The increase in the Annual Fees shall be implemented the first of the month following the notice.
8. For the purposes of obtaining merchant account services through CivicPlus Pay, Client may choose to utilize the designated merchant account for CivicRec through an integrated partnership with a merchant providers that is within CivicPlus's network ("Partner Network"). In the event Client chooses a merchant account from the Partner Network ("Integrated Partner"), Client will enter into a merchant account such Integrated Partner. Such agreement's terms and conditions will solely enure to the benefit and obligation of Client; CivicPlus shall not be a party to such agreement. In the event Client chooses an Integrated Partner merchant account provider, CivicPlus will provide Client and Integrated Partner contact information to the other party for contracting purposes, and shall integrate the Integrated Partner merchant account system at no additional charge to Client. If Client desires to use an integrated merchant account processor gateway besides one of the Integrated Partners designated as members of the Partner Network, CivicPlus will provide Client with a list of approved processors and an integration fee will be charged to Client. Client agrees to assume responsibility for ensuring execution of a merchant account contract with Client's select merchant account provider, to comply with all terms and conditions of such contract and pay all fees required to maintain the services. Client acknowledges that the fees set forth in this SOW do not include any transaction, processing or other fees imposed by Client's merchant account processor Client is fully responsible for their relationship with their selected processor. In no event will CivicPlus:
(i) take part in negotiations, (ii) pay any fees incumbent on the Client or merchant account, or (iii) acquire any liability for the performance of services of any chosen merchant account processor, including those in the Partner Network. Client acknowledges switching to a different merchant account processor after signing this SOW may incur additional fees and require a written and signed modification to this SOW. Client shall continue to be responsible for negotiating and executing any merchant account agreement as described herein for any additional merchant account processor changes
9. When Client uses CivicPlus Pay, then Client may take online credit card payments for certain services or products they provide via the Client websites supported by CivicPlus. As such, through CivicPlus Pay, CivicPlus facilitates an automated process for redirecting credit card payments to Client's chosen payment gateways / merchant account processors. For card payments, CivicPlus will redirect any payments processing to the Client's merchant account processor gateway, and the merchant account processor gateway presents the payment form page and processes the card payment. CivicPlus does not transmit, process or store cardholder data and does not present the payment form. CivicPlus implements and maintains PCI compliant controls for the system components and applications that provide the redirection services only.
10. Client understands and agrees that CivicPlus is not liable for any failure of service or breach of security by any merchant account processor gateway provider selected by Client, whether such provider is an Integrated Partner or not.
11. If a client change in timeline causes CivicPlus to incur additional expenses (i.e. airline change fees), CivicPlus must notify Client in writing of such additional charge and obtain Client's written consent to the additional charge before Client will be liable forpayment of the additional charge Notwithstanding the foregoing, the City V. CPA03.01 .165-0001
Civic Plus• 302 S. 4th Street, Suite 500 • Manhattan, KS 66502 • www.CivicPlus.com Toll Free 888-228-2233 • Accounting Ext. 291 • Support Ext. 307 • Fax 785-587-8951
14 - 22
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
C 1111111 GSA Statement of Work for South Pasadena, CA
,.. GSA Contract GS-35F-0124U
acknowledges requesting changes to scheduled services without adequate notice may compromise CivicPlus' ability to deliver such services if the City does not provide such written consent to additional charges.Upon full and complete payment of submitted invoices for the Project Development and launch of the website, Client will own the Customer Content (defined as website graphic designs, the page content, all module content, all importable/exportable data, and all archived information).
12. Upon completion of the development of the site, Client will assume full responsibility for website content maintenance and content administration Client, not CivicPlus, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Content
13. Client agrees that CivicPlus shall not migrate, convert, or port content or information that could reasonably be construed to be time-sensitive, such as calendar or blog content Intellectual Property
14. Intellectual Property of any software or other original works created by CivicPlus prior to the execution of this SOW ("CivicPlus Property") will remain the property of CivicPlus.
15. Client shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any CivicPlus Property in any way; (ii) modify or make derivative works based upon any CivicPlus Property; (iii) create Internet "links" to the CivicPlus Property software or "frame" or "mirror" any CivicPlus Property administrative access on any other server or wireless or Internet-based device; or (iv) reverse engineer or access any CivicPlus Property in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of any CivicPlus Property, or (c) copy any ideas, features, functions or graphics of any CivicPlus Property The CivicPlus name, the CivicPlus logo, and the product and module names associated with any CivicPlus Property are trademarks of CivicPlus, and no right or license is granted to use them.
Taxes
16. It is CivicPlus' policy to pass through sales tax in those jurisdictions where such tax is required. If the Client is tax-exempt, the Client must provide CivicPlus proof of their tax-exempt status, within fifteen (15) days of contract signing, and this SOW will not be taxed If the Client's state taxation laws change, the Client will begin to be charged sales tax in accordance with their jurisdiction's tax requirements and CivicPlus has the right to collect payment from the Client for past due taxes.
Indemnification
17. CivicPlus shall defend, indemnify and hold the Client harmless, its partners, employees, and agents from and against any and all lawsuits, claims, demands, penalties, losses, fines, liabilities, damages, and expenses including attorney's fees of any kind, without limitation, in connection with the operations of and installation of software contemplated by this SOW, or otherwise arising out of or in any way connected with the CivicPlus provision of service and performance under this SOW This section shall not apply to the extent that any loss or damage is caused by the gross negligence or willful misconduct on the part of the Client Liabilities
18. CivicPlus will not be liable for any act, omission of act, negligence or defect in the quality of service of any underlying carrier or other service provider whose facilities or services are used in furnishing any portion of the service received by theClient.
19. CivicPlus will not be liable for any failure of performance that is caused by or the result of any act or omission by Client or any entity employed/contracted on the Client's behalf.
20. Client agrees that it is solely responsible for any solicitation, collection, storage, or other use of end-users' Personal Data on the website. Client further agrees that CivicPlus has no responsibility for the use or storage of end-users' Personal Data in connection with the website or the consequences of the solicitation, collection, storage, or other use by Client or by any third party of Personal Data.
21. Notwithstanding any other provision of this SOW or the Master Services Agreement, the Client shall not be V. CPA03.01 .165-0001
Civic Plus• 302 S. 4th Street, Suite 500 • Manhattan, KS 66502 • www.CivicPlus.com Toll Free 888-228-2233 • Accounting Ext. 291 • Support Ext. 307 • Fax 785-587-8951
14 - 23
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
C 1111111 GSA Statement of Work for South Pasadena, CA
,.. GSA Contract GS-35F-0124U
obligated or liable for the CivicPlus's performance hereunder or by any provision of this SOW during any of the Client's future fiscal years unless and until the Client's City Council appropriates funds for this SOW in the Client's Budget for each such future fiscal year In the event that funds are not appropriated for this SOW, then this SOW shall terminate as of September 30 of the last fiscal year for which funds were appropriated The Client shall notify CivicPlus in writing of any such non- appropriation. Additionally, notwithstanding any other provision of this SOW or the Master Services Agreement, the Client shall not be obligated or liable for any increase in fees unless (i) CivicPlus provides sixty (60) days' notice of such increase and (ii) the Client does not terminate this SOW within such sixty-day period. It is expressly understood and agreed, thatthe Client may terminate this Agreement without any further liability should CivicPlus fees be increased by providing notice of such termination within sixty days after receiving notice of the proposed increase in fees.
22. Client is solely responsible for the updating and accuracy of their public-facing privacy policy.
23. Client acknowledges that any forms to be used in Document Management must be created in Document Management, and such forms cannot be unencrypted or exported to un-encrypted modules.
24. Client shall complete a Privacy Impact Statement (PIA), which shall detail Client's privacy practices and policies surrounding the use of, and any data stored within or collected by the Document Management. Client further warrants appropriate employees have been adequately trained on the use and deployment of Document Management.
25. Client and CivicPlus each jointly acknowledge that for the duration of this SOW, CivicPlus shall serve as the "Data Custodian" and is solely responsibility for the Security Controls, including safe custody, transport and storage of data and Client shall serve as the "Data Owner", and is solely responsible for the Operational and Privacy Specific Controls, including data collection, content, context, and use. Notwithstanding the foregoing, Client acknowledges that CivicPlus cannot detect or prevent unauthorized individuals accessing any CivicPlus system through use of valid log-in credentials as set up by Client Client has sole responsibility for maintaining the security of such log-in credentials and assigning and defining roles and permission to each individual end-user.
26. Client acknowledges that due to the nature of the encryption employed in Document Management, CivicPlus staff are unable to access any data submitted or stored within Document Management.
27. Client understands and agrees that Document Management is not intended to collect or store any credit card information, or related identifiable or financial information and that Client shall not collect or store any such information in Document Management. For the sake of clarity, Document Management is not PCI DSS or HIPAA compliant, and Client shall not use it for PCI DSS or HIPAA purposes
Acceptance
We, the undersigned, agreeing to the conditions specified in this document, understand and authorize the provision of services outlined in this SOW
Client
By:
Name:
Title:
Date:
V. CPA03.01 .165-0001
CivicPlus
By:
Name:
Title:
Date:
Civic Plus• 302 S. 4th Street, Suite 500 • Manhattan, KS 66502 • www.CivicPlus.com Toll Free 888-228-2233 • Accounting Ext. 291 • Support Ext. 307 • Fax 785-587-8951
14 - 24
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
C ;» Statement of Work for South Pasadena, CA
AUDIOEYE MANAGED
FOR CIVICREC
STATEMENT OF WORK
No. 1
This Statement of Work (the "SOW'), effective as of the later of the two dates accompanying the signatures below ("Effective Date"), is entered into and governed under the CivicRec Statement of Work (the "Agreement") between CivicPlus, LLC. ("CivicPlus") and South Pasadena, CA ("Client"). Services performed by CivicPlus under this SOW will be conducted in accordance with and be subject to the terms and conditions of this SOW and the Agreement. If there is a conflict between this SOW and the Agreement, the terms and conditions of this SOW shall prevail. Capitalized terms used in this SOW but not defined herein shall have the meaning set forth in the Agreement. The responsibil ities of CivicPlus and Client are defined below.
IN WITNESS WHEREOF, each party, in consideration of the mutual promises and agreements set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed by the parties, agree and hereto has caused this Agreement to be executed by its duly authorized representatives.
Client CivicPlus
By: By:
(Signature) (Signature)
Name: Name:
(Print) (Print)
Title: Title:
Date: Date:
1. TERM
The duration of this AudioEye Platform Subscription for CivicRec and this SOW shall begin at signing and be co-termed and aligned with Client's CivicRec subscription. 14 - 25
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
2. SERVICES ORDERED & COSTS
AudioEye will provide the following Saas Subscription:
Web Accessibility Solutions Subscription Order 12 Month Term Product Subscription Cost
AudioEye Managed for CivicRec I $5,000 per domain
Total Subscription Cost* $5,000 per domain*
*Recurring subscript ion pricing is subject to an annual 5% increase.
The subscription purchased herein applies only to a single domain (Client's CivicRec Instance).
Upon execution of this SOW, CivicPlus will invoice Client for the first year's Total Subscription Cost If needed, CivicPlus will pro-rate Client's first year's Total Annual Subscription Cost to match up with Client's current CivicRec billing schedule. All renewal years Total Subscription Cost shall be invoiced on the date of Client's current CivicRec bill ing schedule. The parties acknowledge the pricing herein is not in addition to the amounts listed in the GSA Statement of Work to which this SOW is attached.
All payments shall be made in accordance with the terms and conditions of the Agreement Invoices will be expressed in US Dollars (USO).
The Services in this SOW shall apply to:
SOUTH PASADENA CA -CIVICREC
CIVICPLUS STATEMENT OF WORK - AUDIOEYE - v20200917 2
14 - 26
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
3. CONTACT INFORMATION
Technical Contact Information
Client will identify a project lead to function as a single point of contact for the project.
Name: ______________ _
Email: ______________ _
Phone: ______________ _
Billing Contact Information
Invoices for fees, associated with this Agreement, should be sent to the following email address(es):
Billing Email: _________ _
Contact Name: ________ _ Billing Address 1: ___________ _ (if different from Corporate Address provided with MSA) Contact Email: ________ _ Billing Address 1: ____________ _ (if different from billing email address provided above) City: ____________ _ State/Zip: ___________ _
Payment Method: __________ _
All payments shall be made in accordance with the terms and conditions of the Agreement.
Invoices will be expressed in US Dollars (USO).
CIVICPLUS STATEMENT OF WORK - AUDIOEYE - v20200917 3
14 - 27
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
STATEMENT OF WORK
APPENDIX A
Package Features I Services
AudioEye Managed for CivicRec
Activation
Upon Activation, AudioEye to begin tracking usage analytics. Audio Eye to conduct, at least, monthly ongoing and continuous monitoring based on the usage analytics tracked by Audio Eye. This always-on monitoring ensures that the pages being accessed by end-users - the pertinent pages relative to the end-user's experience - are being regularly prioritized and evaluated for accessibility conformance. For the duration of the Term of the agreement between the Parties, AudioEye will maintain the always-on monitoring service.
To ensure compliance with ADA Title 11/111 , Section 504, Section 508 Information and Communication Technology, and any future changes in conjunction with ADA-related laws & guidelines, and any applicable state laws, AudioEye tests against internationally recognized W3C Web Content Accessibility Guidelines (WCAG) 2.1 Level AA Success Criteria. These tests are conducted through, both, automated and manual processes, which are facilitated and managed through the Digital Accessibility Platform ("OAP"), Audio Eye's proprietary system for facilitating the Ally Managed Service solution.
Audio Eye engineers do not make any changes to the web environment that impact the visual display of the website. For any Success Criteria that cannot be met through the application of fixes facilitated through the Digital Accessibility Platform and applied to the frontend website/application through the AudioEye JavaScript, Audio Eye collaborates with software/web designers/developers and recommends best practices for effective resolution to be applied at the source and/or through universal design standards. The combination of this collective and collaborative effort helps ensure usability for Customer's site visitors.
Audio Eye to provide the necessary tools and/or instruction, allowing Reseller and/or Customer to implement fixes within the product source ("Source Remediation").
AudioEye Managed
Features/Services
WCAG
Accessibility
Reports
Automated Global
Remediations
Details
Reporting available upon request for point-in-time compliance status and WCAG conformance level.
Certain common issues of accessibility can be programmatically detected and remediated by AudioEye Dynamic Remediation Technology.
CIVICPLUS STATEMENT OF WORK - AUDIOEYE - v20200917
14 - 28
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
Monitoring Ongoing evaluation and continuous WCAG testing.
Web Personalization Tools that allow end-users to customize Accessibility their user experience to meet their individual needs. The Toolbar internationally recognized accessibility icon marks the entrance to the Audio Eye Toolbar.
Certification
Audio Eye Trusted Certification, which is attestation of a site owner's ongoing commitment to digital inclusion as defined by Statement WCAG Success Criteria. Includes AudioEye Trusted Certification badae.
Accessibility Standardized accessibility messaging site owners may utilize on Statement their site informing visitors of the digital inclusion efforts (if aoolicable) underway.
Training (On- User access to archive of recorded Accessibility Training Demand Webinar Seminars covering various topics to encourage digital Archive) accessibility best practices and universal design thinking Live Training User access to Accessibility Training Seminars covering various topics to encourage digital accessibility best practices and Webinars universal design thinking Manual Assistive Site-level technical analysis and functional usability testing Technology (manual testing) conducted by Assistive Technology (AT) Testing testers.
Automated and manual test results provide feedback for
Site Remediation Audio Eye Engineers to develop custom, site-specific remediations to fix issues of accessibility. Remediations scripts are served via AudioEye Dynamic Remediation Technology.
Sustainable
Testing & Official accessibility auditor documentation to assist site owner in Remediation Plan addressing any accessibility complaints .
International Language Support:
27 Languages/Dialects supported for display within the Ally Toolbar. Valid language attribute must be present in source. Supported languages, include:
• Arabic • Greek (Greece)
• Cantonese (Hong Kong S.A.R.) • Hungarian (Hungary)
• Catalan (Catalan) • Italian (Italy)
• Chinese (Taiwan) • Japanese (Japan)
• Chinese (People's Republic of China) • Korean (Korea) • Czech (Czech Republic) • Norwegian (Norway)
• Danish (Denmark) • Polish (Poland)
• Dutch (Netherlands) • Portuguese (Portugal)
CIVICPLUS STATEMENT OF WORK - AUDIOEYE - v20200917 5
14 - 29
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
. English (United States) . Portuguese (Brazil)
. English (United Kingdom) . Russian (Russia)
. Finnish (Finland) . Spanish (Spain)
. French (France) . Spanish (Mexico)
. French (Canada) . Swedish (Sweden)
. German (Germany)
4. WEB ACCESSIBILITY COMPLIANCE REPRESENTATIONS & WARRANTIES AudioEye continually monitors the relevant World Wide Web Consortium's 0JV3C) Web Content Accessibility Guidelines 0/VCAG) to improve conformance with WCAG guidelines and to eradicate issues of accessibility that may impede access for persons with disabilities.
AudioEye periodically monitors current law and practice regarding digital accessibility compliance including, but not limited to the Americans with Disabilities Act (ADA) and other similar state and international laws.
AudioEye has and will continue to take steps necessary to help improve and maintain equal access to Client website(s).
AudioEye monitors Client website(s) and/or the platform hosting Client website(s) to take the steps necessary to improve conformance with WCAG standards.
AudioEye evaluates Client website(s) and/or the platform hosting Client website(s) on a periodic basis to improve conformance with WCAG standards.
AudioEye periodically reviews automated and manual test results to develop remediations to Client website(s) and/or the platform hosting Client website(s) to increase conformance with WCAG Success Criteria.
AudioEye provides support and training resources and hosts training seminars that promote accessibility best practices including, but not limited to, universal design, WCAG Success Criteria, video captioning, and document remediation .
AudioEye works with and/or takes measures to provide product stakeholders in charge of managing the platform hosting Client website(s) with information a) to improve the accessibility of the platform hosting Client website(s), the site template , and web components that comprise Client website(s), b) to incorporate accessibility into the design process, and c) to better ensure an optimal user experience for individuals with disabilities.
AudioEye supports a 24/7 help desk for site visitors, w hich enables them to report accessibility issues and grievances should they be encountered. AudioEye prioritizes the remediation of validated issues as submitted via the Help Desk.
AudioEye provides technical analysis and functional usability testing (manual testing) of Client website(s) and/or the platform hosting Client website(s), which is conducted by assistive technology (AT) testers.
Via proprietary and patented AudioEye Dynamic Remediation Technology, AudioEye remediates issues of accessibility identified within Client website(s) and/or the platform hosting Client CIVICPLUS STATEMENT OF WORK-AUDIOEYE - v20200917 6
14 - 30
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
website(s) and conducts retesting of issues to validate usability of remediated content and functionality.
AudioEye provides limited to full implementation of the AudioEye Toolbar, which provides web personalization tools permitting site visitors to customize their user experience to meet individual needs.
5. ASSUMPTIONS
To streamline communication during the project, Client will be assigned an account manager who will be responsible for the quality and timeliness of all deliverables. The account manager will oversee and track the progress of the entire project and will be available to escalate concerns.
Website/Platform updates or structural changes that impact existing CSS ID/class selector attributes may require re-configuration and subsequent testing that demands a level of effort beyond the typical maintenance included with the AudioEye Services.
AudioEye engineers do not make any changes to the web environment that impact the visual display of the website. Required changes that impact visual display require collaboration with Client and any visual changes implemented through the Audio Eye Services require sign-off from Client. In many cases, these changes are implemented by Client at the source. For deficiencies impacting visual display or site structure/features/functions, Audio Eye to obtain written permission from Client to provision and apply the required fixes. Audio Eye shall not be held liable for delays impacting, if applicable, delivery timelines pertaining to Client supplying AudioEye with written approvals.
For any Success Criteria that cannot be met through the application of fixes facilitated through the AudioEye Services and applied to the frontend website/application through the AudioEye JavaScript, AudioEye collaborates, via CivicPlus, with software/web designers/developers and recommends best practices for effective resolution to be applied at the source and/or through universal design standards. The combination of this collective and collaborative effort helps ensure usability for Client's site visitors. AudioEye to provide the necessary tools and/or instruction, allowing CivicPlus to implement fixes within the CMS product source ("Platform Remediation").
For each project, the start date of Activation is determined by AudioEye.
AudioEye shall issue an AudioEye Trusted Certification indicating that Client has a commitment to accessibility and inclusion in striving to maximize and continually improve conformance with the informative guidance supplied through W3C WCAG. If applicable, certification statements may indicate conformance exclusions and/or statements of partial conformance and/or reference to on-demand source feedback reports to inform end-users about features/functions that do not conform to the target standard and/or remain a work in a progress.
Common exclusions resulting in conformance clarifications, as documented through source feedback reports, include: flash objects, highly visual/dynamic display widgets/modules, high volume content changes, maps, inaccessible PDFs, videos without captioning and/or audio descriptions, and 3,d party content.
6. CLIENT RESPONSIBILITIES
Client will identify a project lead to function as a single point of contact for the project.
CIVICPLUS STATEMENT OF WORK-AUDIOEYE -v20200917
14 - 31
Professional Services Agreement – Consultant Services
Mod. 9/14/2022; Ver. 11/15/16
Client will make all reasonable efforts to address conformance exclusions indicated within the source remediation report.
Client will make all reasonable efforts to educate AudioEye on the specific technical constraints of its Web environment, including details about its publication and hosting environments.
Prior to execution of this Agreement, Client to inform Audio Eye of anticipated traffic exceeding 20 million monthly impressions. Client understands and agrees that AudioEye will charge Client the following overage fees, to be billed at the end of the current month, in which the overage occurred: $52 per million impressions above and beyond the monthly allotment. Please note:
some single page requests may make multiple requests to AudioEye, and, therefore, trigger multiple impressions (i.e. iFrames on the page).
Client to provide advanced notification to AudioEye prior to implementing or removing the Audio Eye JavaScript within their web environment, including but not limited to Client's production, staging, UAT, development, and/or sandbox environment(s).
Client will provide AudioEye with feedback, comments, approvals and acceptance on all deliverables in a timely manner.
If Client receives a legal demand letter or is served a legal notice, Client may request a sustainable testing and remediation (STAR) plan (aka auditor notification letter) to inform plaintiff of the proactive steps already taken and being taken by Client to ensure digital inclusion. Should plaintiff continue to pursue their legal efforts, Client may request consulting or legal support services, which may be separate from and in addition to the Services included in this SOW.
Client will make all reasonable efforts to send project and accessibility stakeholders to attend online accessibility training presentations provided by Audio Eye.
7. CHANGE CONTROL PROCEDURES
To make a change to this SOW, Client will submit a written request to CivicPlus specifying the proposed changes in detail. CivicPlus will submit to Client an estimate of the charges and the anticipated changes in the delivery schedule that will result from the proposed change in the services ("Change Order") stated within this SOW. Audio Eye will continue performing the services in accordance with this SOW until the Civic Plus and Client agree in writing on the change in scope of work, scheduling, and fees therefore. Any Change Order shall be agreed to by the parties in writing prior to implementation. No additional fees shall be incurred without Client's prior written authorization.
CIVICPLUS STATEMENT OF WORK-AUDIOEYE -v20200917
14 - 32
City Council
Agenda Report
DATE: September 21, 2022
FROM: Armine Chaparyan, City Manager W
ITEM NO.
PREPARED BY: Belinda Varela, Acting Management Services Director SUBJECT: Agreement with NEOGOV for Subscription Services to Enhance Hiring and Employee Management Efficiencies
Recommendation
It is recommended that the City Council:
--
1. Authorize the City Manager to Execute an Agreement with NEOGOV, for subscription services to enhance the recruitment, onboarding and employee efficiency, in the amount of $51,222.29, for the period of October 3, 2022, through June 30, 2024; and
2. Transfer $51,229.29 in State and Local Fiscal Recovery Funds from Account No. 101-3010-3041-8020 (Finance- Special Department Expense) to Account No, 101-3010 to fully fund the agreement, with funds for the second year of subscription services rolling over to Fiscal Year 2023-2024.
Background
In 2013, the City began using NEOGOV for Performance Management (Perform) and an automated applicant tracking system (ATS - Insight). The applicant tracking system provides an efficient and user-friendly portal for job applicants, by allowing them to easily apply online for open positions and receive notifications regarding the recruitment process. The performance management system has also provided tracking for performance evaluations and approvals. The City's current online application system does not include upgraded capabilities, which enhance the functionality of the system for the City, and staff is recommending an enhancement to the overall candidate experience.
The current new-hire process is paper-based, and a new employee's initial meeting with Human Resources is largely for the completion of forms and to be provided with informational material regarding benefits, policies and procedures. As the Human Resources department works on enhancing the candidate and employee experience, with an emphasis on a positive experience from "Pre-hire to Retire," the need to update processes is crucial to the success of newly hired employees. 15 15 - 1
Agreement with Governmentjobs.com Inc., dba NEOGOV
September 21, 2022
The City is also working towards providing employees with additional training opportunities, career development and ensuring institutional knowledge is retained through succession planning and enhancing our employer brand, to attract and retain top qualified candidates.
Staff is recommending the NEOGOV subscriptions below:
• Candidate Text Messaging: will enhance communication with candidates, decrease the hiring timeline and keep candidates informed of the hiring process.
• New Hire Export: will streamline processes from the applicant tracking system into the new hire process by being able to download and upload employee data into Springbrook, the City’s Finance system. This also eliminates double data entry, ensuring accuracy and saving time. • Onboard: will digitize the new-hire process by creating a portal for newly hired employees to complete documents and review information, prior to their first day. This allows for an employee’s first day to include orientation, training, and provide a more welcoming onboarding experience. • Employee Import: will support the employee life cycle as position changes, promotions occur, and will automatically update the employee profile as it relates to performance evaluation categories and mandatory trainings.
• Learn: will provide a centralized online platform for training. The Learn platform includes over 1,500 courses, a course-builder which would allow the City to create unique training programs, geared specifically to departmental needs and the ability to track employee technical license and certification renewals.
Analysis
As the City continues to streamline and modernize business practices, the Human Resources Division is seeking to improve the employee experience by enhancing communication with candidates and currently employees. The integration of NEOGOV modules provides for seamless and efficient processes, leading to a positive workplace experience and environment, to include updated training capabilities and ensuring the success of our employees.
A positive and welcoming onboarding experience for a new employee, increases employee retention. The purpose of onboarding should be setting new hires up for success and decreasing the time it takes for them to become comfortable in their new roles. According to the Harvard Business Review, organizations that implement a formal onboarding program could see 50% greater employee retention among new recruits and 62% greater productivity within the same group. Additionally, according to Gallup’s onboarding report, employees who have a positive onboarding experience are almost three times as likely to feel prepared and supported in their role, boosting their confidence and improving their ability to perform their role well. 15 - 2
Agreement with Governmentjobs.com Inc., dba NEOGOV
September 21, 2022
Per South Pasadena Municipal Code 2.99-29 (12), Professional and Contractual Services contracts for services of specially trained and professional persons or businesses shall be exempt from bidding.
Highlights of the proposed agreement:
• The City will receive a pro-rated pricing for the first year of services, beginning from October 3, 2022 and ending on June 30, 2023 since it will not be a full year’s worth of services during the initial term of the agreement, as demonstrated in the Order Form in the Proposed Service Agreement (Attachment) • One-time setup costs for the additional modules added through the agreement, as demonstrated in the Order Form in the Proposed Service Agreement (Attachment)
• Cost savings – 50% discount for setup fees
• Ability to text message prospective candidates, ensuring engagement and efficient communications during the recruitment phase
• Allows for streamlining of interconnected employee life-cycle processes, from pre-hire to recruitment, onboarding, training and leading into development and future succession planning.
• Supports cultivating a professional and efficient employer brand, increasing retention and attracting top qualified candidates.
Fiscal Impact
State and Local Fiscal Recovery Funds (SLFRF) for these services were included in the Fiscal Year 2022-23 budget, as approved at the City Council meeting held on June 15, 2022 and are currently housed in the Non-Departmental Overhead Account No. 101- 3010-3041-8020 (Finance- Special Department Expense). If the proposed agreement is approved, it is requested that $51,222,29 be transferred from Account No. 101-3010- 3041-8020 to Account 101-2030-2034-8180 (Human Resources Contract Services).
The City will pay a total of $21,962.29 for the first year, composed of $10,862.29 for the nine months of services (October 3, 2022 through June 30, 2023) and the one-time set up costs of $11,100. For the second year of the agreement, the City will pay a total of $29,260, for a full year’s worth of services from July 1, 2023 through June 30, 2024.
Attachment: Proposed Service Agreement with NEOGOV
15 - 3
ATTACHMENT 1
Proposed Services Agreement with
Governmentjobs.com Inc. dba NEOGOV
15 - 4
SERVICES AGREEMENT
V032122
You agree that by placing an order through a NEOGOV standard ordering document entitled an “Order Form”, “Service Order,” or “SOW” (each, an “Order Form” for purposes of this Agreement) you agree to follow and be bound by the terms and conditions set forth herein. “Governmentjobs.com”, “NEOGOV”, “we”, and “our” means Governmentjobs.com, Inc. (D/B/A/ NEOGOV), for and on behalf of itself and its subsidiaries PowerDMS, Inc., Cuehit, Inc., Ragnasoft LLC (D/B/A/ PlanIT Schedule), and Design PD, LLC (D/B/A Agency360) (collectively, “NEOGOV” and, where applicable, its other affiliates; “Customer”, “you”, “your” means the NEOGOV client, customer, or subscriber identified in the Order Form).
If you are placing an order on behalf of a legal entity, you represent that you have the authority to bind such entity to the terms and conditions of the Order Form and these terms and, in such event, “you” and “your” as used in these agreement terms shall refer to such entity. “Agreement” shall be used to collectively refer to this NEOGOV Services Agreement (the “Services Agreement” or the “Agreement”), documents incorporated herein including the applicable Order Form, Exhibits, Schedule(s), and Special Conditions (if any). “Special Conditions” means individually negotiated variations, amendments and/or additions to this Service Agreement of which are either drafted, or incorporated by reference, into the Order Form.
1. Provision of Services. Subject to the terms of this Agreement NEOGOV hereby agrees to provide Customer with access to its SaaS Applications and Professional Services (each defined below) included or ordered by Customer in the applicable Order Form (collectively referred to as the “Services”). Customer hereby acknowledges and agrees that NEOGOV’s provision and performance of, and Customer’s access to, the Services is dependent and conditioned upon Customer’s full performance of its duties, obligations and responsibilities hereunder. This Agreement entered into as of the date of your signature on an applicable Order Form or use of the Services commences (the “Effective Date”). The Agreement supersedes any prior and contemporaneous discussions, agreements or representations and warranties.
2. SaaS Subscription.
a) Subscription Grant. “SaaS Applications” means each proprietary NEOGOV web-based software-as-a-service application that may be set forth on an Order Form and subsequently made available by NEOGOV to Customer, and associated components as described in any written service specifications made available to Customer by NEOGOV (the “Service Specifications”). Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, NEOGOV hereby grants to Customer a limited, non-exclusive, non-transferable, and non-sublicensable right to (a) onboard, access and use, and to permit Authorized Users to onboard, access and use, the SaaS Applications specified in the Order Form solely for Customer’s internal, non-commercial purposes; (b) generate, print, and download Customer Data as may result from any access to or use of the SaaS Applications; and (c) train Authorized Users in uses of the SaaS Applications permitted hereunder (these rights shall collectively be referred to as the “SaaS Subscription”). “Authorized Users” means (i) Customer employees, agents, contractors, consultants (“Personnel”) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Services Agreement and (ii) for whom access to the Services has been purchased hereunder. You may not access the SaaS Applications if you are a direct competitor of NEOGOV or its affiliates. In addition, you may not access the SaaS Applications for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes. You shall be responsible for each Authorized User’s access to and use of the SaaS Applications and compliance with applicable terms and conditions of this Agreement.
b) Subscription Term. Unless otherwise specified in an applicable Order Form, SaaS Subscriptions shall commence on the Effective Date and remain in effect for twelve (12) consecutive months, unless terminated earlier in accordance with this Agreement (the “Initial Term”). Thereafter, SaaS Subscriptions shall automatically renew for successive twelve (12) month terms (each a “Renewal Term” and together with the Initial Term, collectively, the “Term”) unless a party delivers to the other party, at least thirty (30) days prior to the expiration of the Initial Term or the applicable Renewal Term, written notice of such party’s intention to not renew this Agreement, or unless terminated earlier in accordance with this Agreement. The Term for the Services is a continuous and non-divisible commitment for the full duration regardless of any invoice schedule. The purchase of any Service is separate from any other order for any other Service. Customer may purchase certain Services independently of other Services. Your obligation to pay for any Service is not contingent on performance of any other Service or delivery of any other Service.
3. Customer Responsibilities. Customer will not, and will ensure its Authorized Users do not (a) make any of the Services available to anyone other than Authorized Users or use any Services for the benefit of anyone other than Customer and its 1 15 - 5
Authorized Users, unless otherwise agreed in writing by the parties, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any of the Services, or include any of the Services in a service bureau or outsourcing offering, unless otherwise agreed in writing by the parties, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of the privacy rights, publicity rights, copyright rights, or other rights of any person or entity, (d) use the Services to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, (e) interfere with or disrupt the integrity or performance of the Services (including, without limitation, activities such as security penetration tests, stress tests, and spamming activity), (f) attempt to gain unauthorized access to the Services or its related systems or networks, (g) disassemble, reverse engineer, or decompile the Services, or modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof, (h) remove the copyright, trademark, or any other proprietary rights or notices included within NEOGOV Intellectual Property and on and in any documentation or training materials, or (i) use the Services in a manner which violates the terms of this Agreement, any Order Form or any applicable laws.
4. Professional Services. “Professional Services” shall mean consulting, training services purchased by Customer in an applicable Order Form or detailed in a NEOGOV Scope of Work (SOW) relating to assistance, training, deployment, usage, customizations, accessory data processing, and best practices of and concerning the SaaS Applications. Professional Services may be ordered by Customer pursuant to a SOW and Service Specifications describing the work to be performed, fees, and any applicable milestones, dependencies, and other technical specifications or related information. Order Forms or SOWs must be signed by Customer before NEOGOV shall commence work. If Customer does not execute a separate SOW, the Services shall be provided as stated on the Order Form and this Agreement and documents incorporated herein shall control. All Professional Services purchased by Customer must be utilized within twelve (12) months of the date of the applicable Order Form or SOW.
5. Payment Terms.
a) Fees. Unless otherwise stated in an Order Form, Customer shall pay all Subscription, Onboarding and Set-Up fees (“Subscription Fees”) and Professional Service fees (“Professional Service Fees”, collectively the “Fees”) within thirty (30) days of Customer’s receipt of NEOGOV’s invoice. Fees shall be invoiced annually in advance and in a single invoice for each Term. Invoices shall be delivered to the stated “Bill To” party on the Order Form. Unless explicitly provided otherwise, once placed the Order Form is non-cancellable and sums paid nonrefundable. Any invoiced amount that is not received by NEOGOV when due as set forth in an Order Form will be subject to a late payment fee of 1.5% per month or the maximum rate permitted by law, whichever is lower. If any amount owing by Customer is more than 30 days overdue, NEOGOV may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full. Subscription Fees are based upon the Authorized User count unless otherwise stated in an Order Form and Customer shall owe NEOGOV supplemental Subscription Fees to the extent Customer exceeds the number of Authorized Users set forth in the Order Form. Except as otherwise specifically stated in the Order Form, NEOGOV may change the charges for the Services with effect from the start of each Renewal Term by providing Customer with a new Order Form at least thirty (30) day notice prior to commencement of a Renewal Term. The new Order Form shall be deemed to be effective if Customer (a) returns the executed Order Form to NEOGOV, (b) remits payment to NEOGOV of the fees set forth in the invoice referencing the Order Form, or (c) the Customer or any of its Authorized Users access or use the Services after the expiration of the previous Term. b) Taxes. Customer will pay all taxes, duties and levies imposed by all federal, state, and local authorities (including, without limitation, export, sales, use, excise, and value-added taxes) based on the transactions or payments under this Agreement, except those taxes imposed or based on NEOGOV’s net income or those exempt by applicable state law.
Customer shall provide NEOGOV with a certificate or other evidence of such exemption within ten (10) days of NEOGOV’s request therefor.
c) Customer Purchase Orders. Except as otherwise specified in an Order Form, Customer will not require any purchase order to pay fees due or otherwise to perform its obligations with respect to any Order Form. Any reference to a purchase order in an Order Form or any associated invoice is solely for Customer's convenience in record keeping, and no such reference or any delivery of services to Customer following receipt of any purchase order shall be deemed an acknowledgement of or an agreement to any terms or conditions referenced or included in any such purchase order. If a purchase order is delivered by Customer in connection with the purchase of Services, none of the terms and conditions contained in such purchase order shall modify or supersede the terms and conditions of this Agreement. NEOGOV’s failure to object to terms contained in any such purchase order shall not be a waiver of the terms set forth in this provision or in this Agreement.
6. Term and Termination.
2 15 - 6
a) Term. Unless otherwise specified in an applicable Order Form, this Agreement shall commence on the Effective Date.
This Agreement shall remain in effect until all SaaS Subscriptions have expired and/or both parties have achieved full performance of Professional Services or other services detailed in a SOW, unless it is terminated earlier in accordance with this Agreement.
b) Termination for Cause; Effect of Termination. Either Party may terminate this Agreement immediately if the other is in material breach of this Agreement and such breach is not cured within thirty (30) days following non-breaching party’s written specification of the breach. NEOGOV may suspend the Services or terminate this Agreement immediately in the event the Services or Customer’s use of the Services provided hereunder pose a security risk to the Services, NEOGOV or any third party, or become illegal or contrary to any applicable law, rule, regulation, or public policy.
Upon expiration or any termination of this Agreement, Customer shall cease all use and refrain from all further use of the Services and other NEOGOV Intellectual Property. Additionally, Customer shall be obligated to pay, as of the effective date of such expiration or termination, all amounts due and unpaid to NEOGOV under this Agreement. Unless otherwise specified, after expiration or termination of this Agreement NEOGOV may remove Customer Data from NEOGOV Services and without Customer consent or notice.
7. Audit Rights. Upon reasonable notice, NEOGOV or its agent shall have the right to audit Customer’s records relating to its compliance with this Agreement. Customer shall cooperate fully with this audit. If any audit conducted under this Section indicates that any amount due to NEOGOV was underpaid, Customer shall within three (3) business days pay to NEOGOV the amount due. All expenses associated with any such audit shall be paid by NEOGOV unless the audit reveals underpayment in excess of five percent (5%), in which case Customer shall pay such expenses as well as any amount due to NEOGOV.
8. Maintenance; Modifications; Support Services.
a) Maintenance, Updates, Upgrades. NEOGOV maintains NEOGOV’s hardware and software infrastructure for the Services and is responsible for maintaining the NEOGOV server operation and NEOGOV database security. NEOGOV may in its sole discretion, periodically modify, Update, and Upgrade the features, components, and functionality of the Services during the Term. “Update” means any update, bug fix, patch or correction of the Services or underlying NEOGOV software that NEOGOV makes generally available to its customers of the same module, excluding Upgrades. Updates are automatic and available upon Customer’s next login to the Services following an Update at no additional cost to Customer. “Upgrade” means any update of the Services or underlying NEOGOV software such as platform updates, and major product enhancements and/or new features that NEOGOV makes commercially available.
NEOGOV shall have no obligation to provide Upgrades to customers and retains the right to offer Upgrades free of cost or on a per customer basis at additional cost. NEOGOV shall have no liability for, or any obligations to, investments in, or modifications to Customer’s hardware, systems or other software which may be necessary to use or access the Services due to a modification, Update, or Upgrade of the Services. b) Program Documentation; Training Materials. “Program Documentation” shall mean all user guides, training, and implementation material, and Service descriptions provided by NEOGOV to Customer in connection with the Services.
NEOGOV hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use, print, and distribute internally via non-public platforms, the Program Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services. Primary training of NEOGOV Services is conducted by self-review of online materials. NEOGOV’s pre-built, online training consists of a series of tutorials to introduce the standard features and functions (the “Training Materials”). The Training Materials may be used as reference material by Customer Personnel conducting day-to-day activities. c) Implementation. For Services requiring implementation, NEOGOV implementation supplements the Training Materials and is conducted off-site unless otherwise agreed in the Order Form. NEOGOV personnel will provide consultation on best practices for setting up the Services, answer Customer questions during the implementation period, and use commercially reasonable efforts to ensure Authorized User Admins grasp the system. The length of the implementation time is dependent on the type of Service and the Customer’s responsiveness. NEOGOV is not responsible or liable for any delay or failure to perform implementation caused in whole or in part by Customer's delay in performing it obligations hereunder and, in the event of any such delay, NEOGOV may, in its sole discretion, extend all performance dates as NEOGOV deems reasonably necessary.
d) Support. Phone support for the Services is available to Customer Monday through Friday, excluding NEOGOV holidays. Customer may submit a request for online support for the Services 24 hours a day, seven days a week, and the 3 15 - 7
NEOGOV support desk will acknowledge receipt of the request within a reasonable time. The length of time for a resolution of any problem is dependent on the type of case. e) Limitations. Unless otherwise specified in the Order Form, this Agreement does not obligate NEOGOV to render any maintenance or support services that are not expressly provided herein, including, but not limited to data uploads, manual data entry, migration services, data conversion, refinement, purification, reformatting, SQL dump, or process consultation.
9. NEOGOV Intellectual Property. NEOGOV shall exclusively own all right, title and interest in and to all pre-existing and future intellectual property developed or delivered by NEOGOV including all Services, products, systems, software (including any source code or object code) or Service Specifications related thereto, Updates or Upgrades, trademarks, service marks, logos and other distinctive brand features of NEOGOV and all proprietary rights embodied therein (collectively, the “NEOGOV Intellectual Property”). This Agreement does not convey or transfer title or ownership of the NEOGOV Intellectual Property to Customer or any of its users. All rights not expressly granted herein are reserved by NEOGOV. Other than recommendation use or as required by law, all use of NEOGOV trademarks must be pre-approved by NEOGOV prior to use. Trademarks shall include any word, name, symbol, color, designation or device, or any combination thereof that functions as a source identifier, including any trademark, trade dress, service mark, trade name, logo, design mark, or domain name, whether or not registered.
10. Data Processing and Privacy.
a) Customer Data. “Customer Data” shall mean all data that is owned or developed by Customer, whether provided to NEOGOV by Customer or provided by a third party to NEOGOV in connection with NEOGOV’s provision of Services to Customer, including Personnel data collected, loaded into, or located in Customer data files maintained by NEOGOV. NEOGOV Intellectual Property, including but not limited to the Services and all derivative works thereof, NEOGOV Confidential Information, and Platform Data do not fall within the meaning of the term “Customer Data”.
Customer exclusively owns all right, title, and interest in and to all Customer Data. Customer grants NEOGOV a license to host, use, process, display, create non-personal derivative works of, and transmit Customer Data to provide the Services. NEOGOV reserves the right to delete or disable Customer Data stored, transmitted or published by Customer using the Services upon receipt of a bona fide notification that such content infringes upon the Intellectual Property Rights of others, or if NEOGOV otherwise reasonably believes any such content is in violation of this Agreement.
b) Platform Data. “Platform Data” shall mean any anonymized data reflecting the access or use of the Services by or on behalf of Customer or any user, including statistical or other analysis and performance information related to the provision and operation of the Services including any end user visit, session, impression, clickthrough or click stream data, as well as log, device, transaction data, or other analysis, information, or data based on or derived from any of the foregoing. NEOGOV shall exclusively own all right, title and interest in and to all Platform Data. Customer acknowledges NEOGOV may compile Platform Data based on Customer Data input into the Services. Customer agrees that NEOGOV may use Platform Data to the extent and in the manner permitted under applicable law. c) Data Processing Agreement. To the extent Customer uses the Services to target and collect personal information from users located in the European Union, European Economic Area, or Switzerland (the “EU”) or the United Kingdom (“UK”), or has Authorized Users accessing the Services from the EU or UK, the following NEOGOV Data Processing Addendum (“DPA”) is incorporated herein by reference:
https://www.neogov.com/hubfs/Legal%20Documents/Customer%20Data%20Processing%20Addendum-signed.pdf. d) Data Responsibilities.
i) NEOGOV will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by NEOGOV personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by applicable law, or (c) as Customer expressly permits in writing. Customer acknowledges and agrees that it is commercially reasonable for NEOGOV to rely upon the security processes and measures utilized by NEOGOV’s cloud infrastructure providers.
ii) Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Data.
NEOGOV will have no responsibility or liability for the accuracy of the Customer Data prior to receipt of such 4 15 - 8
data into the Services. Customer shall be solely responsible for and shall comply with all applicable laws and regulations relating to (i) the accuracy and completeness of all information input, submitted, or uploaded to the Services, (ii) the privacy of users of the Services, including, without limitation, providing appropriate notices to and obtaining appropriate consents from any individuals to whom Customer Data relates; and (iii) the collection, use, modification, alteration, extraction, retention, copying, external storage, disclosure, transfer, disposal, and other processing of any Customer Data. NEOGOV is not responsible for lost data caused by the action or inaction of Customer or Authorized Users. Unless otherwise mutually agreed in writing, Customer shall not maintain any financial, health, payment card, or similarly sensitive data that imposes specific data security or data protection obligations within the Services.
e) Breach Notice. NEOGOV will notify Customer of unauthorized access to, or unauthorized use, loss or disclosure of Customer Data within its custody and control (a “Security Breach”) within 72 hours of NEOGOV’s confirmation of the nature and extent of the same or when required by applicable law, whichever is earlier. Each party will reasonably cooperate with the other with respect to the investigation and resolution of any Security Breach. If applicable law or Customer’s policies require notification of its Authorized Users or others of the Security Breach, Customer shall be responsible for such notification.
f) Data Export, Retention and Destruction. Customer may export or delete Customer Data from the Services at any time during a Subscription Term, using the existing features and functionality of the Services. Customer is solely responsible for its data retention obligations with respect to Customer Data. If and to the extent Customer cannot export or delete Customer Data stored on NEOGOV’s systems using the then existing features and functionality of the Services, NEOGOV will, upon Customer's written request, make the Customer Data available for export by Customer or destroy the Customer Data. If Customer requires the Customer Data to be exported in a different format than provided by NEOGOV, such additional services will be subject to a separate agreement on a time and materials basis. Except as otherwise required by applicable law, NEOGOV will have no obligation to maintain or provide any Customer Data more than ninety (90) days after the expiration or termination of this Agreement.
11. Third Party Services. The Services may permit Customer and its Authorized Users to access services or content provided by third parties through the Services (“Third Party Services”). Customer agrees that NEOGOV is not the original source and shall not be liable for any inaccuracies contained in any content provided in any of the Third Party Services. NEOGOV makes no representations, warranties or guarantees with respect to the Third Party Services or any content contained therein.
NEOGOV may discontinue access to any Third Party Services through the Services if the relevant agreement with the applicable third party no longer permits NEOGOV to provide such access. If loss of access to any Third Party Services (to which Customer has a subscription under this Agreement) occurs during a Subscription Term, NEOGOV will refund to Customer any prepaid fees for such Third Party Services covering the remainder of the Subscription Term.
12. Nondisclosure.
a) Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer's Confidential Information includes its Customer Data. NEOGOV Confidential Information includes the NEOGOV Intellectual Property and the Services. The Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
b) Obligations. The Receiving Party will: (i) use the same degree of care it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (iii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not less protective of the Confidential Information than those herein.
5 15 - 9
c) Exceptions. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
d) Equitable Relief. The parties recognize and agree there is no adequate remedy at law for breach of the provisions of the confidentiality obligations set forth in this Section 12, that such a breach would irreparably harm the Disclosing Party and the Disclosing Party is entitled to seek equitable relief (including, without limitation, an injunction) with respect to any such breach or potential breach in addition to any other remedies available to it at law or in equity.
13. Representations, Warranties, and Disclaimers.
a) Mutual Representations. Each party represents and warrants to the other party that (i) it has full power and authority under all relevant laws and regulations and is duly authorized to enter into this Agreement; and (ii) to its knowledge, the execution, delivery and performance of this Agreement by such party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it. b) Service Performance Warranty. NEOGOV warrants that it provides the Services using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND NEOGOV STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD PARTY SERVICES. c) No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS WARRANTY SECTION, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. NEOGOV DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS
AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEOGOV
DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, OR THAT ANY ERROR WILL BE CORRECTED. d) Disclaimer of Actions Caused by and/or Under the Control of Third Parties. NEOGOV DOES NOT AND CANNOT
CONTROL THE FLOW OF DATA TO OR FROM THE NEOGOV SYSTEM AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH NEOGOV WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL
ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, NEOGOV CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, NEOGOV DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
14. Indemnification.
a) Customer Indemnity. To the extent permitted by applicable law, Customer will defend and indemnify NEOGOV from and against claim, demand, suit or proceeding made or brought against NEOGOV (a) by a third party alleging that any Customer Data infringes or misappropriates such third party's intellectual property rights, (b) in connection with Customer’s violation of any applicable laws, or (c) any claim or allegation by any third party resulting from or related to Customer’s or any of its Authorized User’s breach of Section 3 of this Agreement, in each case provided that Customer is promptly notified of any and all such claims, demands, suits or proceedings and given reasonable assistance and the opportunity to assume sole control over defense and settlement. b) NEOGOV Indemnity. Subject to subsections 14(b)(i) through 14(b)(iii) of this Section, if a third party makes a claim against Customer that any NEOGOV intellectual property furnished by NEOGOV and used by Customer infringes a third party’s intellectual property rights, NEOGOV will defend the Customer against the claim and indemnify the Customer from the damages and liabilities awarded by the court to the third-party claiming infringement or the settlement agreed to by NEOGOV, provided that NEOGOV is promptly notified of any and all such claims, demands, suits or proceedings and given reasonable assistance and the opportunity to assume sole control over defense and settlement.
6 15 - 10
i) Alternative Resolution. If NEOGOV believes or it is determined that any of the Services may have violated a third party’s intellectual property rights, NEOGOV may choose to either modify the Services to be non-infringing or obtain a license to allow for continued use. If these alternatives are not commercially reasonable, NEOGOV may end the subscription or license for the Services and refund a pro-rata portion of any fees covering the whole months that would have remained, absent such early termination, following the effective date of such early termination.
ii) No Duty to Indemnify. NEOGOV will not indemnify Customer if Customer alters the Service or Service Specifications, or uses it outside the scope of use or if Customer uses a version of the Service or Service Specifications which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Services or Service Specifications which was provided to Customer, or if the Customer continues to use the infringing material after the subscription expires. NEOGOV will not indemnify the Customer to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by NEOGOV. NEOGOV will not indemnify Customer for any portion of an infringement claim that is based upon the combination of Service or Service Specifications with any products or services not provided by NEOGOV. NEOGOV will not indemnify Customer for infringement caused by Customer’s actions against any third party if the Services as delivered to Customer and used in accordance with the terms of the Agreement would not otherwise infringe any third-party intellectual property rights.
iii) Exclusive Remedy. This Section provides the exclusive remedy for any intellectual property infringement claims or damages against NEOGOV.
15. Limitations of Liability.
a) EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS
SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY OR PROFIT, OR LOSS OF REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY,
SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE
ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE
OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
a) CAP ON MONETARY LIABILITY. EXCEPT FOR DAMAGES ARISING OUT OF LIABILITY WHICH CANNOT BE LAWFULLY EXCLUDED OR LIMITED, CUSTOMER’S OBLIGATIONS TO MAKE PAYMENT
UNDER THIS AGREEMENT, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF NEOGOV
INTELLECTUAL PROPERTY RIGHTS, THE TOTAL LIABILITY OF EITHER PARTY FOR ANY AND ALL
CLAIMS AGAINST THE OTHER PARTY UNDER THIS AGREEMENT, WHETHER ARISING UNDER OR
RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY
OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE AMOUNT OF ALL PAYMENTS
ACTUALLY RECEIVED BY NEOGOV FROM CUSTOMER IN CONNECTION WITH THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE DATE OF THE EVENT INITIALLY GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATION OF LIABILITY IS CUMULATIVE WITH ALL PAYMENTS FOR
CLAIMS OR DAMAGES IN CONNECTION WITH THIS AGREEMENT BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF
LIABILITY IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES
AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
16. Text Message Communications. NEOGOV may offer Personnel the opportunity to receive text messages regarding job application or hiring process reminders, applicant status updates, or other human resource related notices. Since these text message services depend on the functionality of third-party providers, there may be technical delays on the part of those 7 15 - 11
providers. NEOGOV may make commercially reasonable efforts to provide alerts in a timely manner with accurate information, but cannot guarantee the delivery, timeliness, or accuracy of the content of any alert. NEOGOV shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert. NEOGOV cannot vouch for the technical capabilities of any third parties to receive such text messages. To the extent you utilize text messaging features, NEOGOV shall not be responsible for your use of such features, and you shall indemnify NEOGOV with respect to any damages resulting from your use including but not limited any violations of applicable law. NEOGOV MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY, OR IMPLIED AS TO: (i) THE AVAILABILITY OF TELECOMMUNICATION SERVICES; (ii) ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND (iii) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS, OR SETTINGS CONNECTED WITH THE SERVICES.
17. Publicity. Unless otherwise provided in the applicable Order Form, NEOGOV may identify Customer as one of its customers and use Customer’s logo for such purposes, subject to any trademark usage requirements specified by Customer.
18. Force Majeure. Except for Customer’s payment obligations to NEOGOV, neither party shall be liable for any damages, costs, expenses or other consequences incurred by the other party or by any other person or entity for any act, circumstance, event, impediment or occurrence beyond such party’s reasonable control, including, without limitation: (a) acts of God; (b) changes in or in the interpretation of any law, rule, regulation or ordinance; (c) strikes, lockouts or other labor problems; (d) transportation delays; (e) unavailability of supplies or materials; (f) fire or explosion; (g) riot, pandemic, military action or usurped power; (h) actions or failures to act on the part of a governmental authority; (i) internet service interruptions or slowdowns, vandalism or cyber-attacks, or (j) any other cause beyond the reasonable control of such party.
19. Independent Contractor; No Third Party Beneficiary; Fulfillment Partners. The relationship of the parties shall be deemed to be that of an independent contractor and nothing contained herein shall be deemed to constitute a partnership between or a joint venture by the parties hereto or constitute either party the employee or agent of the other. Customer acknowledges that nothing in this Agreement gives Customer the right to bind or commit NEOGOV to any agreements with any third parties.
This Agreement is not for the benefit of any third party and shall not be deemed to give any right or remedy to any such party whether referred to herein or not. NEOGOV may designate any third-party affiliate, or other agent or subcontractor (each a “Fulfillment Partner”), without notice to, or the consent of, Customer, to perform such tasks and functions to complete any Services.
20. Entire Agreement; Amendment. This Services Agreement, the Exhibits hereto and documents incorporated herein, the applicable Order Form, and Special Conditions (if any) constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior or contemporaneous oral and written statements of any kind whatsoever made by the parties with respect to such subject matter. Any Customer proposal for additional or different terms, or Customer attempt to vary in any degree any of the terms of this Agreement is hereby objected to and rejected but such proposal shall not operate as a rejection of this Service Agreement and Order Form unless such variances are in the terms of the description, quantity, or price but shall be deemed a material alteration thereof, and this Service Agreement and the applicable Order Form shall be deemed accepted by the Customer without said additional or different terms. It is expressly agreed that the terms of this Agreement and any NEOGOV Order Form shall supersede the terms in any non-NEOGOV purchase order or other ordering document. Notwithstanding the foregoing, any conflict of terms shall be resolved by giving priority in accordance with the following order: 1) Special Conditions (if any), 2) NEOGOV Order Form, 3) the NEOGOV Services Agreement, and 4) incorporated documents. This Agreement supersedes the terms and conditions of any clickthrough agreement associated with the Services. This Agreement may not be modified or amended (and no rights hereunder may be waived) except through a written instrument signed by the parties to be bound.
21. General. This Agreement shall be governed by and construed in accordance with the laws of the state of California, without giving effect to conflict of law rules. Any legal action or proceeding relating to this Agreement shall be instituted only in any state or federal court in Los Angeles, California. If any provision of this Agreement is held to be illegal or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that the remainder of this Agreement will continue in full force and effect. Provisions that survive termination or expiration are those relating to, without limitation, accrued rights to payment, acknowledgements and reservations of proprietary rights, confidentiality obligations, warranty disclaimers, and limitations of liability, and others which by their nature are intended to survive. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given either when personally delivered, one (1) business day following delivery by recognized overnight courier or electronic mail, or three (3) business days following deposit in the U.S. mail, registered or certified, postage prepaid, return receipt requested. All such communications shall be sent to (i) Customer at the address set forth in the Order Form and (ii) NEOGOV at the address specified in the applicable Order Form. The waiver, express or implied, by either party of any 8 15 - 12
breach of this Agreement by the other party will not waive any subsequent breach by such party of the same or a different kind. Delivery of a copy of this Agreement or an Order Form bearing an original signature by facsimile transmission, by electronic mail or by any other electronic means will have the same effect as physical delivery of the paper document bearing the original signature. Customer may not assign this Agreement without the express written approval of NEOGOV and any attempt at assignment in violation of this Section shall be null and void. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. 9 15 - 13
Exhibit A
Government Customer Addendum
If Customer is a Government Customer, the following Government Customer Addendum (“Government Addendum”) forms part of the Services Agreement, and in the case of any conflict or inconsistency between the terms and provisions of this Addendum and any other provision of the Services Agreement, the terms of this Government Addendum shall control. For purposes hereof, a “Government Customer” means a Customer which is a (a) U.S. Federal agency, (b) state government, agency, department, or political subdivision (including a city, county or municipal corporation), or (c) instrumentality of any of the foregoing (including a municipal hospital or municipal hospital district, police or fire department, public library, park district, state college or university, Indian tribal economic development organization, or port authority).
1. Applicability. The provisions of this Addendum shall apply only if Customer is a Government Customer under the Services Agreement.
2. Termination for Non-Appropriation of Funds. If Customer is subject to federal, state or local law which makes Customer’s financial obligations under this Services Agreement contingent upon sufficient appropriation of funds by the applicable legislature (or other appropriate governmental body), and if such funds are not forthcoming or are insufficient due to failure of such appropriation, then Customer will have the right to terminate the Services Agreement at no additional cost and with no penalty by giving prior written notice documenting the lack of funding. Customer will provide at least thirty (30) days advance written notice of such termination. Customer will use reasonable efforts to ensure appropriated funds are available. If Customer terminates the Services Agreement under this Section 2, Customer agrees not to replace the Services with functionally similar products or services for a period of one year after the termination of the Services Agreement.
3. Indemnification. If Customer is prohibited by federal, state or local law from agreeing to hold harmless or indemnify third parties, Section 14(a) of the Services Agreement shall not apply to Customer, to the extent disallowed by applicable law.
4. Open Records. If the Customer is subject to federal or state public records laws, including laws styled as open records, freedom of information, or sunshine laws (“Open Records Laws”) the confidentiality requirements of Section 12 of the Services Agreement apply only to the extent permitted by Open Records Laws applicable to the Customer. This Section is not intended to be a waiver of any of the provisions of the applicable Open Records Laws, including, without limitation, the requirement for the Customer to provide notice and opportunity for NEOGOV to assert an exception to disclosure requirements in accordance with the applicable Open Records laws.
5. Cooperative Purchasing. If Customer is a Government Customer, but is not a U.S. Federal Agency or subdivision thereof, NEOGOV agrees to allow any other state agency, department, political subdivision or instrumentality of the state but in all cases located in the same state as the Customer (“Related Agency”) to purchase Services under the terms of the Services Agreement, at the Related Agency’s discretion with the following requirements, exceptions and limitations: (a) any purchases made by a Related Agency shall be transactions between the Related Agency and NEOGOV; for clarity, Customer shall not be responsible for any transactions between the Related Agency and NEOGOV, (b) the terms (including pricing) specified in the Order Forms entered into between NEOGOV and Customer shall not be incorporated into the transactions between the Related Agency and NEOGOV, and (c) the Related Agency will confirm in writing it has the authority to use the Services Agreement for the purchase and that the use of the Services Agreement for the purchase is not prohibited by law or procurement regulations or standards applicable to the Related Agency.
10 15 - 14
Exhibit B
PowerEngage Platform Addendum
If Customer is purchasing the PowerEngage Platform pursuant to an Order Form, the following terms are hereby incorporated into the Services Agreement (“PowerEngage Addendum”). This PowerEngage Platform Addendum forms part of the Services Agreement, and in the case of any conflict or inconsistency between the terms and provisions of this PowerEngage Addendum and any other provision of the Services Agreement, the terms of this PowerEngage Addendum shall control.
1. Applicability. The provisions of this PowerEngage Addendum shall apply only if Customer has purchased the PowerEngage Platform pursuant to an Order Form.
2. CAD/RMS Assumptions. The parties agree that the fees specified with respect to the PowerEngage Platform on the applicable Order Form do not include any additional fees that the Customer’s CAD or RMS vendor may charge, if any. The Services Agreement and this Exhibit B is entered into with the mutual assumption that the PowerEngage Platform will be able to make a connection to Customer’s CAD or RMS replicated or reporting database directly or will be able to read from a file produced for such a purpose.
3. CAD/RMS Provisions. The definition of Confidential Information in Section 12 of the Services Agreement shall also include any Customer CAD and/or RMS data made available to NEOGOV in connection with the provision of the PowerEngage Platform.
4. SOW. NEOGOV agrees to provide the training, configuration and support services with respect to the PowerEngage Platform, and Customer acknowledges that its cooperation is required for efficient and timely implementation of the PowerEngage Platform, in accordance with the following:
PowerEngage Software
NEOGOV will be used to survey citizens that have interacted with Customer, send messages to citizens or other stakeholders and gather and report on data. Customer will be able to configure the surveys and rules based on data received from the Computer Aided Dispatch System. The results of the surveys will be stored within PowerEngage and available for display in a Feedback Board and within the analytics component called Measure. Other rules and messages can be built to be triggered to send on certain events as driven by the rules engine.
NEOGOV and Customer Responsibilities
The bullet points below outline when NEOGOV, Customer, or both NEOGOV and Customer have responsibility with respect to a particular deliverable.
1. NEOGOV will configure a tenant and telephone number group for the Customer
2. NEOGOV will schedule a 90-minute kickoff call with the Customer to review the objectives, timeline and mutual deliverables ● Configure Customer administrator account - NEOGOV
● Walk Customer through the survey builder - NEOGOV
● Walk Customer through the rules builder - NEOGOV
● Walk Customer through the Feedback Board- NEOGOV
● Walk Customer through Activity /Survey tools- NEOGOV
● Walk Customer through the CueHit CAD Data Agent and what is needed for the connection to CAD - NEOGOV
3. Customer will gather information needed for Surveys, Rules, Tasks and CAD/RMS Data – Customer
4. NEOGOV will coordinate a CAD/RMS Connection Workshop with Customer ● Configure PowerEngage CAD/RMS agent- NEOGOV and Customer ● Connect to Customer CAD/RMS Data – Customer
● Test data – NEOGOV and Customer
5. NEOGOV will coordinate a 2-hour Survey Workshop with Customer ● Consult on the questions to ask in a satisfaction survey (maximum of 3 to 5 questions) = NEOGOV and Customer ● Configure the questions in the survey tool = NEOGOV and Customer 11 15 - 15
● Configure the acceptable responses in the survey tool = NEOGOV and Customer ● Configure additional criteria (Follow Up question only) = NEOGOV and Customer ● Send sample survey to Customer on text message = NEOGOV and Customer ● Review in Feedback Board and Activity Screens= NEOGOV and Customer
6. NEOGOV will coordinate a 2- 4 hour Rules Workshop with Customer to jointly ● Consult on the rules for surveys and automatic text notifications = NEOGOV and Customer ● Configure the rules and texts = NEOGOV and Customer
● Send example encounters to test rules = NEOGOV and Customer ● Review in Activity= NEOGOV and Customer
7. NEOGOV will coordinate a 2 Hour Task Creation and Notification Workshop with Customer to jointly:
● Configure Tasks and Task Assignments
● Identify Personnel information needed for notifications and digest emails ● Import Personnel information for receiving messages and emails from Customer provided .xls or .csv
8. NEOGOV will schedule a 2-hour Analytics Workshop with the Customer to review the ideas for the Dashboards to reflect the results of the surveys.
● NEOGOV will review standard visualizations and data in the dashboard ● NEOGOV will request from the Customer, input on the data and visualization to be presented in the Measure Tool ● Once agreed, a maximum of 1 custom visualizations will be created by NEOGOV and deployed to the Customer’s environment
9. NEOGOV will train the Customer Administrators on the use of the PowerEngage configuration tools, Measure tools and Activity logs.
Support Services
Telephone Assistance. Customer will be given the telephone number for a support line and will be entitled to contact the support line during normal operating hours, (between 7:30am and 5:30pm Central Time) on regular business days, excluding NEOGOV holidays, to consult with NEOGOV technical support staff concerning problem resolution, bug reporting, documentation clarification, and general technical guidance. Assistance may include remote connectivity, modem, or electronic bulletin board.
Software Problem Reporting. Customer may submit requests to NEOGOV identifying potential problems in the PowerEngage software. Requests should be in writing and directed to NEOGOV by e-mail, or through the NEOGOV support website.
NEOGOV retains the right to determine in the final disposition of all requests and will inform Customer of the disposition of each request. If NEOGOV acts upon a request, it will do so by providing a bug fix.
Scheduled Maintenance. Software may be unavailable periodically for system maintenance. Regular system maintenance includes installation of the software updates, operating system updates/patches and updates to other third-party applications as needed. Customers are notified of maintenance periods via an email message or via a banner on the main page of the PowerEngage Platform.
Exclusions from Technical Support Services:
NEOGOV shall have no support obligations with respect to any third-party hardware or software product. 12 15 - 16
Exhibit C
HRIS Addendum
The following terms govern the use of the HRIS Services (the “HRIS Addendum”) as they relate to specific HRIS Services ordered by Customer in an Order Form. “HRIS Services” refers to the following SaaS Applications or any Add-Ons (defined below) or Professional Services related to such SaaS Applications: NEOGOV Core HR, NEOGOV Payroll, and NEOGOV Time and Attendance. If any provision within the HRIS Addendum directly conflicts with any other provision of the Services Agreement, the terms of this Addendum shall control.
Implementation; Add-Ons; and Configuration Limitation. Implementation of HRIS Services as detailed in the standard statement of work (“SOW”) and the mutually agreed-upon scope document (“Scope”) will proceed in accordance with the estimated implementation schedule provided by NEOGOV and as further detailed in the SOW and Scope. Implementation services not included in the SOW and Scope may be subject to additional fees. Customer acknowledges that the timeline for the implementation schedule is an estimate only and dependent on a number of variables, including but not limited to Customer’s responsiveness to NEOGOV’s requests during the implementation process and Customer’s obligation to fill out the “Implementation Workbook” to facilitate the implementation process. In the event that Customer does not order the full suite of HRIS services offered, NEOGOV may be required to generate custom feeds for Customer for an additional fee. During implementation, Customer may elect optional add-on services that supplement the SaaS Applications (the “Add-Ons”). After completion of implementation, any subsequent changes Customer requests to the configuration of the HRIS Services will be at cost.
NEOGOV will have no responsibility for nor any duty to review, verify, correct or otherwise perform any investigation as to the completeness, accuracy or sufficiency of any data or information input into the HRIS system by or on behalf of the Customer. Customer is solely responsible for ensuring that all data entered into and stored in the HRIS system is accurate and complete, and for correcting any errors or discrepancies in such data.
CORE HR and Benefits – Additional Terms
The following terms shall apply to the extent that Customer orders the NEOGOV Core HR, and HRIS Services involving benefits administration (the “Benefits Module”):
1. Benefits Module Representative. Customer shall designate one or more persons who shall serve as NEOGOV’s designated contact for the Benefits Module (the “Benefits Representative”). Customer represents and warrants to NEOGOV that the Benefits Representative has, and shall at all times have, the requisite authority to transmit information, directions and instructions on behalf of Customer, each “plan administrator” defined in Section 3(16)(A) of the ERISA and Section 414(g) of the Code and, if applicable, each “fiduciary” (as defined in Section 3(21) of ERISA) of each separate employee benefit plan covered by the Benefits Module (each, a “Benefit Plan”). The Benefits Representative also shall be deemed to have authority to issue, execute, grant, or provide any approvals, requests, notices, or other communications required or permitted under the Services Agreement or requested by NEOGOV in connection with the Benefits Module.
2. Use of the Benefits Module.
a) HR Users. Customer shall authorize an administrator to input information and access certain information relating to (i) the benefits offered by Customer and (ii) Customer’s employees/plan participants and their benefit options and elections as well as view certain personal and company information regarding company employees. The Benefits Module permits Customer’s employees/plan participants to make various benefits elections and to view and update certain personal and company information. It is Customer’s responsibility to submit instructions and information relating to the Benefits Module and to verify the accuracy and completeness of all such instructions and information submitted by Customer, employees, and plan participants. b) NEOGOV Not Fiduciary Advisor. Customer acknowledges and agrees that, in making the Benefits Module available, NEOGOV is not acting as an investment advisor, broker-dealer, insurance agent, tax advisor, attorney or intermediary or a financial or benefit planner. NEOGOV is not providing any benefits, tax advice, or any information related thereto; Customer is responsible for making available all benefits and information related thereto referenced or included in the Benefits Module.
13 15 - 17
c) NEOGOV’s Health Care Clearinghouse Status. Customer expressly acknowledges and agrees that NEOGOV is not a “Health Care Clearinghouse”, a “Covered Entity” or a “Business Associate” within the meaning of HIPAA, and Customer shall not request or otherwise require NEOGOV to act as such. To the extent that NEOGOV is required to enter into any additional agreement as a result of Customer’s use of the Benefits module, Customer shall be responsible for any liability incurred by NEOGOV thereunder.
3. Additional Termination Rights. NEOGOV may terminate Core HR, the Benefits Module, or this Services Agreement immediately upon written notice to the Customer upon (a) the failure of Customer to maintain its Benefit Plan(s) in compliance with ERISA or other applicable laws or regulations or (b) NEOGOV’s determination that the exercise of any of the rights granted hereunder or the continued performance by NEOGOV of its obligations under this Services Agreement would cause NEOGOV to violate any applicable international, federal, state or local law(s) and/or regulation(s).
4. ERISA. The terms of this Section only shall apply to the extent Customer uses services governed, in whole or in part, by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) a) NEOGOV’s Non-Fiduciary Status. Customer expressly acknowledges and agrees that NEOGOV is not an “Administrator”, “Plan Sponsor,” or a “Plan Administrator” as defined in Section 3(16)(A) of ERISA, and Section 414(g) of the Internal Revenue Code of 1986, as amended (the “Code”), respectively, nor is NEOGOV a “fiduciary” within the meaning of ERISA Section 3(21), and Customer shall not request or otherwise require NEOGOV to act as such. NEOGOV shall not exercise any discretionary authority or control respecting management of any of Customer’s benefit or welfare plans (“Plan” or “Plans”) or management or disposition of any of Customer’s benefit or welfare Plan assets. NEOGOV shall not render investment advice for a fee or other compensation, direct or indirect, with respect to any monies or other property of any Plan, nor does NEOGOV have any authority or responsibility to do so. NEOGOV has no discretionary authority or discretionary responsibility in the administration of the Plan(s).
b) Use of NEOGOV’S Name. Customer or the Plan Administrator must obtain the prior written consent of NEOGOV to insert any references to NEOGOV or its affiliates, or to NEOGOV Services, with respect to any communication or document pertaining to a Plan prepared by Customer, or on behalf of Customer (other than documents prepared by NEOGOV), unless the reference only identifies NEOGOV as a service provider or the reference is required in a filing or document required by ERISA or any other applicable law. Without limiting the foregoing, in no event may Customer or the Plan Administrator identify or refer to NEOGOV as “administrator”, “plan administrator”, “third-party administrator”, “plan sponsor”, “fiduciary”, “plan fiduciary” or similar title.
5. Direct to Carrier Services. Customer may elect direct to insurance carrier services (each a “Carrier Link”) at its option, each for an additional cost. Reconfiguration of existing Carrier Links, establishing new Carrier Links, and additional elections are available for an additional fee and may be completed by NEOGOV at NEOGOV’s then current rates.
Customer may access and use the NEOGOV HRIS Services to electronically transmit employee data, including employee benefits enrollment data, to Customer’s carriers or other third parties authorized by Customer. NEOGOV’s ability to transmit data is subject to the provision of a current functional interface between HRIS Services and the carriers’ systems. NEOGOV will not be obligated to transmit Customer’s data to carriers if at any time Customer’s carriers fail to provide the proper interface as solely determined by NEOGOV. If Customer requires development of any special or customized interfaces to transmit such data, all work performed by NEOGOV to create such interfaces will be at NEOGOV’s then current fees for such services. NEOGOV makes no warranty that each carrier’s specifications will conform with NEOGOV’s current functional interfaces. In the event a carrier provides formats or specifications not supported by the NEOGOV HRIS Services, Customer will be solely responsible for transmitting the data to such carrier using an alternative system to be determined solely by Customer. Customer shall be responsible for promptly reviewing all records of transmissions to carriers and other reports prepared by NEOGOV for validity and accuracy according to Customer’s records, and Customer will notify NEOGOV of any discrepancies promptly after receipt thereof.
Payroll Services – Additional Terms
The following terms shall apply to the extent that Customer orders the NEOGOV Payroll Services module:
1. Payroll Processing and Tax Filing. NEOGOV will deliver (i) payroll administrative services to Customer through NEOGOV’s payroll software as a service (the “Payroll Module”), (ii) at Customer’s election, direct deposit administration to those employees electing such service via ACH processing (collectively referred to as the “Payroll Services”), remit payroll taxes on Customer’s behalf to those federal, state, and local taxing jurisdictions designated by 14 15 - 18
Customer, and file related tax returns (such remitting of payroll taxes and filing of related tax returns, the “Tax Services”). At NEOGOV’s then current fees, NEOGOV may also process calendar year-end W-2 forms for Customer’s employees and Forms 1099-MISC. NEOGOV will, and Customer hereby authorizes NEOGOV and Fulfillment Partners to, initiate debits or reverse wire transfers prior to each paydate for Customer’s payroll (“Paydate”) and credit the bank accounts of Customer’s employees and others to be paid by Customer by direct deposit payment on Paydate (a “Payee”), all in compliance with the operating rules of the National Automated Clearing House Association and the terms and conditions hereof. For purpose of clarity, the parties understand and agree that NEOGOV does not print and/or send paychecks for or on behalf of Customer.
2. Documentation and Required Information.
a) Authorization Forms; Proof of Name. Customer will be required to complete and submit the following documents in order to use the payroll processing components of Payroll Module: (i) power of attorney forms for each jurisdiction in which Customer will use the HRIS Services (the “POA”), (ii) Authorization to Debit/Credit Bank Account(s)/Obtain Bank Account Information (the “Authorization Form”), (iii) an IRS proof of legal name/FEIN and (iv) any authorization form for Fulfillment Partner authorizing debiting and crediting Customer’s bank account. b) Proof of Existence. Customer will provide NEOGOV, and authorize NEOGOV to provide to Fulfillment Partner, Customer’s (i) legal name, and “doing business as” name if applicable, (ii) physical street address (not a PO Box or PMB), (iii) phone number, (iv) Primary Business Activity (Nature of Business), (v) Duns Number (if one exists), (vi) Tax ID Number, (vii) estimated transaction count and dollar volume, (viii) number of employees, and (ix) supporting evidence via (A) either certified Articles of Incorporation, IRS EIN Letter, unexpired government issued business license, trust instrument or other government-issued evidence showing legal existence, and (B) either a voided business check, copy of utility bill, other evidence of legal name, physical address, DBA Name, or Tax ID. c) Permitted Disclosure Authorization. Customer hereby authorizes NEOGOV to (i) provide Customer’s data to Fulfillment Partner for the purposes of performing the Payroll and Tax Services, and (ii) take such action as is necessary to perform the Payroll and Tax Services.
d) Time and Attendance Information. Prior to commencement of Time and Attendance Services, Customer shall provide to NEOGOV all necessary information and guidance relating to its time and attendance policies and guidelines and coordinate with NEOGOV to establish standards for NEOGOV in its execution of the Time and Attendance Services. Customer agrees to promptly comply with NEOGOV’s request for such additional documentation and understands that Payroll or Tax Services may be impaired or delayed if Customer does not comply with such request.
3. Customer Obligations, Representations, and Warranties. Customer acknowledges that NEOGOV's obligation to perform the HRIS Services is subject to Customer’s obligations, representations, and warranties. Customer represents and warrants the following:
a) Processing Authorization. Customer authorizes NEOGOV to process payroll entries on behalf of Customer.
Customer acknowledges that NEOGOV is acting solely in the capacity of data processing agent and is not a source of funds for Customer. Customer shall be liable for each payroll related transaction initiated by NEOGOV on behalf of Customer, whether by electronic entry or wire transfer. NEOGOV, or its Fulfillment Partners, electronically transmit employee data, including employee payroll data, to designated third parties, and Customer authorizes NEOGOV and its Fulfillment Partners, to provide such transmission on Customer’s behalf. Customer agrees that NEOGOV maintains specific Fulfillment Partner(s) for NEOGOV Payroll and Tax Services fulfillment during the term of and in accordance with this Services Agreement and that Customer shall not, directly or indirectly, supplement, substitute, or otherwise modify the provision of such Payroll and Tax Services without terminating this Services Agreement.
b) Information Accuracy; Reliance; Change Notice. Customer shall input, maintain, and verify the accuracy of any and all information, including payroll and tax information, and Customer shall continually ensure that such information is kept complete, accurate, delivered on time, and up to date at all times. Customer acknowledges that NEOGOV and NEOGOV Fulfillment Partners will rely on the accuracy of this information as it performs its requested functions. NEOGOV shall not be responsible for any delays or inaccuracies in Customer’s delivery of data to NEOGOV. Customer will notify NEOGOV immediately of any change in the processing information, including the Authorization Form. Customer will also obtain a voluntary written authorization from any Payee prior to the initiation of the first credit to the account of such Payee and shall provide upon demand a copy of such written authorization to NEOGOV.
15 15 - 19
c) Processing Deadlines. Unless otherwise agreed to by the Parties, Customer will: (a) complete and execute all required documentation so that NEOGOV or Fulfillment Partner may withdraw funds from Customer’s account to process direct deposit payrolls, (b) input or report all relevant payroll data for ACH transmissions to NEOGOV no later than 2:00 p.m. Pacific Standard Time (PST) three (3) banking days prior to each Paydate, (c) input or report all other relevant payroll data to NEOGOV no later than 2:00 p.m. Pacific Standard Time (PST) two banking days prior to each Paydate, (d) have available in Customer’s bank account good, collectable funds in a sufficient amount to cover funding disbursements, checks, direct deposits, tax payments, or recurring payments to third parties no later than the opening of business (i) two banking days prior to each Paydate for debits by electronic entry, and (ii) two banking days prior to each Paydate for funding by wire transfer, and (e) compare all reports on credits or debits initiated by Customer to NEOGOV’s records and promptly notify NEOGOV of any discrepancies. In the event Customer does not meet the deadlines specified herein, NEOGOV shall make reasonable efforts to complete processing prior to the Paydate; however, NEOGOV makes no representation or warranty that payroll will process by the Paydate where Customer fails to provide all required documentation by the deadline. Additional Fees may apply for expedited processing.
d) Customer Review. Within seven (7) business days after receipt from NEOGOV, Customer will promptly conduct a detailed review of all payroll and tax registers produced by NEOGOV or Fulfillment Partners for accuracy, validity and conformity with Customer’s records. Customer will promptly notify NEOGOV of any error or omission discovered by Customer in any payroll registers, disbursement records, payroll or tax reports and documents produced by NEOGOV or Fulfillment Partners, or any discrepancy between the information provided by NEOGOV or Fulfillment Partners, and Customer’s records. Customer will not rely on any record, report or document containing any discovered error, omission or discrepancy until such error, omission or discrepancy, has been corrected. Customer will be responsible for any consequences resulting from instructions Customer may give to NEOGOV or Fulfillment Partners with regard to HRIS Services or any payroll registers, disbursement records, reports and documents prepared by NEOGOV based on information provided by Customer. e) Document Retention. Customer will retain copies of all information entered into or generated by the HRIS Services and Customer shall be solely responsible for maintaining such data, and all tax records, in accordance with any legal obligations.
f) Special Processing. Customer understands and acknowledges that administering processing dates beyond standard payroll dates, and correcting, amending, or cancelling payroll entries or mistaken reversals (collectively “Special Processing”), are complicated, highly manual, and may result in additional expenses, tax consequences, and penalties. Therefore, Special Processing may be subject to additional NEOGOV Fees. g) Recovery Cooperation. Customer agrees to undertake reasonable efforts to cooperate with NEOGOV and any other parties involved in processing any transactions hereunder to recover funds credited to any employee as a result of an error made by Customer, NEOGOV, or Fulfillment Partners, or any other loss recovery efforts and in connection with any actions that the relevant party NEOGOV may be obligated to defend or elects to pursue against any third-party.
h) Compliance with Laws. Customer acknowledges that, in order to put into effect the Payroll Services which include ACH transactions, Customer will be the Originator of the ACH transactions and will follow and be bound by the rules for ACH Originators as adopted from time to time by the NACHA. Customer agrees that it has assumed the responsibilities of an Originator under the ACH Rules and acknowledges that entries may not be initiated in violation of the laws of the United States. Customer agrees to be compliant with laws. Customer will comply with all laws including, but not limited to, the U.S. Patriot Act, the Unlawful Internet Gambling Enforcement Act, the Bank Secrecy Act, and Anti Money Laundering laws.
4. Effect of Failed Funds. If Customer fails to pay the taxes, direct deposits, employee payments or other charges, including fees, then Customer agrees to pay NEOGOV for all costs of collection, including reasonable attorney fees, which may be associated with collection of the amounts due. NEOGOV also may, at its sole option, terminate this Services Agreement and withhold or suspend any work in progress. This is in addition to any other rights NEOGOV may have under this contract or under law. NEOGOV also reserves the rights to reverse employee transactions and /or tax payments for which funds have not been received from Customer.
5. Rejection of Entries. NEOGOV shall reject any file or entry that does not comply with the requirements of this Services Agreement, the NACHA Rules, or uses an improper SEC Code, or if NEOGOV suspects fraud or illegal or improper activity. NEOGOV shall have no liability.
16 15 - 20
6. Resolution of Error Exceptions. For the purposes of this Section, the term “error exception(s)” shall mean any data requirements within the HRIS Services that, based on Customer’s configuration, have been assigned a severity level designation of “error”; such designation shall create a requirement for an operational task to be completed by Customer in order to proceed with Customer’s processing, including processing of Customer payroll for the designated period.
Failure to resolve an error exception will prevent Customer’s payroll from being processed as scheduled. NEOGOV is not obligated to clear any such error on behalf of Customer.
7. NEOGOV Errors and Omissions Warranty. NEOGOV warrants it will use commercially reasonable efforts to properly transmit the appropriate reports, data, or filings based on the information provided in Customer’s HRIS Services. In addition, NEOGOV will use commercially reasonable efforts to rectify any Customer report, data, or filing error, including any deposit, corrected or reversal debit or credit entry, for which NEOGOV is solely responsible; provided that, in each case Customer advises NEOGOV no later than ten (10) business days after the occurrence of such errors or omissions. This is Customer’s sole remedy in the event of a breach of the foregoing warranty. Notwithstanding the foregoing, Customer will be solely responsible for payment of all tax penalties, interest, and additional NEOGOV fees if: (i) the penalty is the result of incorrect, inaccurate, or incomplete information Customer provides to NEOGOV, (ii) Customer has insufficient funds in Customer’s designated bank account to process HRIS Services, or (iii) a party other than NEOGOV, or a NEOGOV Fulfillment Partner, fails to perform services in a timely manner.
8. Additional Liability and Warranty Limitations. NEOGOV, ITS PROVIDERS, AND FULFILLMENT PARTNERS, AND
THE OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS OF EACH WILL NOT BE LIABLE UNDER ANY
CIRCUMSTANCES OR UNDER ANY THEORY OF RECOVERY (WHETHER IN CONTRACT OR TORT OR OTHERWISE) FOR (i) ANY FEES, COSTS, CHARGES, OR ANY DAMAGES CAUSED BY LOST SHIPMENT OR
TRANSMISSION OF CHECKS OR ANY FORM OF DISBURSEMENT INCLUDING, BUT NOT LIMITED TO,
STOP PAYMENT FEES, REPRINTING OR RETRANSMISSION COSTS, SHIPPING CHARGES, OR CONSEQUENTIAL EXPENSES AND DAMAGE, (ii) ANY CHARGES, FEES, OR EXPENSES INCURRED BY CUSTOMER, CUSTOMER’S AGENTS, OR EMPLOYEES WHICH ARE DUE TO LATE PAYCHECKS,
REGARDLESS OF WHETHER SUCH PAYCHECKS ARE TO BE PREPARED AND DELIVERED BY NEOGOV, FULFILLMENT PARTNERS, OR BY CUSTOMER, (iii) NON‐PERFORMANCE OF HRIS SERVICES WHICH
HAVE BEEN SUSPENDED DUE TO FAILURE OR DELAY IN PAYMENT OF FEES OWED UNDER THIS
SERVICES AGREEMENT, AND (IV) FOR ANY DAMAGES TO CUSTOMER ARISING FROM OR IN
CONNECTION WITH A DECISION BY NEOGOV TO SUBMIT FILES FOR PROCESSING AFTER CUSTOMER HAS FAILED TO CLEAR OUTSTANDING ERROR EXCEPTIONS WITHIN THE SPECIFIED DEADLINE.
9. Additional Termination Rights.
a) Termination for Default. Customer’s breach of the NACHA Rules, violation of any applicable federal or state regulation, or failure to maintain account funding as required by this Services Agreement (and as a result any debit to Customer’s account is returned), shall each constitute a default. Upon default, NEOGOV may suspend the HRIS Services or terminate this Services Agreement in a manner that permits NEOGOV to comply with the NACHA Rules. Termination is effective immediately upon written notice of such termination to Customer. The right to suspend the HRIS Services and/or terminate this Services Agreement is in addition to any other rights and remedies provided under this Services Agreement or otherwise under law. b) Effect of Termination. No termination of this Services Agreement shall release Customer from any obligation to pay NEOGOV any amount that has accrued or becomes payable at or prior to the date of termination. No suspension of HRIS Services shall release Customer from any obligation to pay NEOGOV any amounts due under this Services Agreement. Customer shall not be entitled to any refund of any amounts paid to NEOGOV as a result of a termination based on Customer’s default. Notwithstanding the termination of this Services Agreement, the parties shall continue to comply with the NACHA Rules with respect to transmissions pursuant to this Services Agreement.
17 15 - 21
Exhibit D
Integration Terms Addendum
NEOGOV offers integrations and platform APIs for integrations to third party systems (“Integration Services”). Customer may use only those Integration Services purchased or subscribed to as listed within the NEOGOV Order Form. The following terms (the “Integration Terms Addendum”) shall apply to the extent that Customer utilizes a system integration between the Services and either: (a) an affiliated integrated service, including those found at https://api.neogov.com/connect/marketplace.html and/or https://apidocs.powerdms.com (“Affiliated API”) or to the extent that Customer utilizes a system integration between the Services and an unaffiliated third-party service (“Customer Application”) integrated using NEOGOV’s open API (“Open API”). Integration Services are not available for HRIS Services and this Exhibit D shall not apply to HRIS Services.
1. Provision of Integrations. Subject to and conditioned on compliance with all terms and conditions set forth in this Agreement, NEOGOV hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the applicable Term to use and/or access the Affiliated API as described in this Agreement, or the Open API for communication between Customer’s human resource related third application(s) that will interoperate with NEOGOV Services (collectively these uses shall be referred to as the “API” or “Integration”).
Customer acknowledges there are no implied licenses granted under this Agreement. NEOGOV reserves all rights that are not expressly granted. Customer may not use the API for any other purpose without our prior written consent.
Customer may not share the API with any third party, must keep the API and all log-in information secure, and must use the API key as Customer sole means of accessing the API.
2. Integration Intellectual Property. All right, title, and interest in the API and any and all information, data, documents, materials, inventions, technologies, know-how, descriptions, requirements, plans, reports, works, intellectual property, software, hardware, systems, methods, processes, and inventions, customizations, enhancements, improvements and other modifications based on or derived from the API are and will remain, as appropriate, with NEOGOV. All right, title, and interest in and to the third-party materials, including all intellectual property rights therein, are and will remain with their respective third-party rights holders subject to the terms and conditions of the applicable third-party license agreements. Customer has no right or license with respect to any third-party materials except as expressly licensed under such third-party license agreements.
3. Integration Terms of Use. Except as expressly authorized under this Agreement, you may not remove any proprietary notices from the API; use the API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; combine or integrate the API with any software, technology, services, or materials not authorized by NEOGOV; design or permit Customer Application(s) to disable, override, or otherwise interfere with any NEOGOV-implemented communications to end users, consent screens, user settings, alerts, warning, or the like; use the API in any of Customer Application(s) to replicate or attempt to replace the user experience of the Services; or attempt to cloak or conceal Customer identity or the identity of Customer Application(s) when requesting authorization to use the API.
4. Customer Integration Responsibilities. Customer, Customer developed web or other software services or applications, and Customer third-party vendors that integrate with the API (collectively the “Customer Applications”), shall comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on https://api.neogov.com/connect/index.html and/or https://apidocs.powerdms.com from time to time. In addition, Customer will not use the API in connection with or to promote any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email (“spam”), multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive, or otherwise offensive content, stolen products, and items used for theft, hazardous materials, or any illegal activities.
5. Cooperation. If applicable, Customer shall timely provide such cooperation, assistance, and information as NEOGOV reasonably requests to enable the API. NEOGOV is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement. NEOGOV will provide Customer maintenance and support services for API issues arising from the information technology designed, developed, and under then current control of NEOGOV. NEOGOV shall have no obligation to provide maintenance or support for issues arising from the inaction or action of Customer or third parties of which are outside NEOGOV control.
6. Provision of Open API. In the event license fees or other payments are not due in exchange for the right to use and 18 15 - 22
access the Open API, you acknowledge and agree that this arrangement is made in consideration of the mutual covenants set forth in this Agreement, including, without limitation, the disclaimers, exclusions, and limitations of liability set forth herein. Notwithstanding the foregoing, NEOGOV reserves the right to change for access with effect from the start of each Renewal Term by giving Customer at least ninety (90) day notice prior to commencement of a Renewal Term.
7. API Key. In order to use and access the Open API, you must obtain an Open API key through the registration process.
Customer agrees to monitor Customer Applications for any activity that violates applicable laws, rules and regulation, or any terms and conditions of this Agreement, including any fraudulent, inappropriate, or potentially harmful behavior. This Agreement does not entitle Customer to any support for the Open API. You acknowledge that NEOGOV may update or modify the Open API from time to time and at our sole discretion and may require you to obtain and use the most recent version(s). You are required to make any such changes to Customer Applications that are required for integration as a result of such Update at Customer sole cost and expense. Updates may adversely affect how Customer Applications communicate with the Services.
8. Efficient Processing. You must use efficient programming, which will not cause an overwhelming number of requests to be made in too short a period of time, as-determined solely by NEOGOV. If this occurs, NEOGOV reserves the right to throttle your API connections, or suspend or terminate your access to the Open API. NEOGOV shall use reasonable efforts to provide Customer notice and reasonable time to cure prior to taking such actions.
9. Open API Limitations. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT
WILL NEOGOV BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT,
NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, LOST
PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF
BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE OPEN API; OR ANY DAMAGES, IN THE
AGGREGATE, IN EXCESS OF FIFTY DOLLARS, EVEN IF NEOGOV HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE OR NEOGOV WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY CLAIM
YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.
10. Open API Termination. Notwithstanding the additional Termination rights herein, NEOGOV may immediately terminate or suspend Customer access to Open APIs in our sole discretion at any time and for any reason, with or without notice or cause. In addition, your Open API subscription will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. 19 15 - 23
Exhibit A
Order Form
NEOGOV Customer:
Governmentjobs.com, Inc. (dba "NEOGOV")
2120 Park Pl, Suite 100
El Segundo, CA 90245
United States
[email protected]
Sales Rep: Alan Paul
South Pasadena, City of (CA)
1414 Mission St.
South Pasadena, CA 91030
USA
Quote Valid From: 7/12/2022 Quote Number: Q-05385
Quote Valid To: 9/23/2022 PaymentTerms: Annual,Net 30
Employee Count: 220
Order Summary
Pro-Rated Year 1 Incentive Pricing 50% OFF Set Up Fee and License Service Description Start Date End Date Term Price
Onboard Subscription 10/3/2022 6/30/2023 $2,795.76
Learn Subscription 10/3/2022 6/30/2023 $6,070.77
Employee Import Subscription 10/3/2022 6/30/2023 $1,169.39 New Hire Export (IN+ON Data) Subscription 10/3/2022 6/30/2023 $506.74 Candidate Text Messaging Subscription 10/3/2022 6/30/2023 $319.63 Pro-Rated Year 1 Incentive Pricing TOTAL: $10,862.29
Year 2 Incentive ends, Bundle rate only
Service Description Start Date End Date Term Price
Onboard Subscription 7/1/2023 6/30/2024 $7,531.00
Learn Subscription 7/1/2023 6/30/2024 $16,353.00
Employee Import Subscription 7/1/2023 6/30/2024 $3,150.00 New Hire Export (IN+ON Data) Subscription 7/1/2023 6/30/2024 $1,365.00 Candidate Text Messaging Subscription 7/1/2023 6/30/2024 $861.00 Year 2 Incentive ends, Bundle rate only TOTAL: $29,260.00 15 - 24
Pro-Rated Year 1 Incentive Pricing 50% OFF Set Up Fee and License Service Description Start Date End Date Term Price
Onboard Setup $1,800.00
Learn Setup $3,000.00
Employee Import Setup $3,150.00
New Hire Export (IN+ON) Setup $3,150.00
Pro-Rated Year 1 Incentive Pricing TOTAL: $11,100.00
ORDER TOTAL: $51,222.29
15 - 25
A. Terms and Conditions
1. Agreement. This Ordering Document and the Services purchased herein are expressly conditioned upon the acceptance by Customer of the terms of the NEOGOV Services Agreement either affixed hereto or the version most recently published prior to execution of this Ordering Form available at https://www.neogov.com/service-specifications. Unless otherwise stated, all capitalized terms used but not defined in this Order Form shall have the meanings given to them in the NEOGOV Services Agreement.
2. Effectiveness & Modification. Neither Customer nor NEOGOV will be bound by this Ordering Document until it has been signed by its authorized representative (the “Effective Date”). Unless otherwise stated in this Ordering Document, all SaaS Subscriptions shall commence on the Effective Date. This Ordering Document may not be modified or amended except through a written instrument signed by the parties.
3. Summary of Fees. Listed above is a summary of Fees under this Order. Once placed, your order shall be non-cancelable and the sums paid nonrefundable, except as provided in the Agreement.
4. Order of Precedence. This Ordering Document shall take precedence in the event of direct conflict with the Services Agreement, applicable Schedules, and Service Specifications.
B. Special Conditions (if any).
Initial Term: 10/3/2022 - 6/30/2024
"South Pasadena,
City of (CA)"
Signature:
Customer_DS1
Print Name:
CustomerName_DS1
Date:
CustomerDate_DS1
15 - 26
16 16 - 1
DATE:
FROM:
PREPARED BY:
SUBJECT:
Recommendation
City Council
Agenda Report
September 21, 2022
Armine Chaparyan, City Manager ~
H. Ted Gerber, Director of Public Works
Clean Power Alliance Power Ready Program
ITEM NO.
It is recommended that the City Council authorize the City Manager to enter into a Memorandum of Understanding (MOU) with the Clean Power Alliance to participate in the Clean Power Alliance (CPA) Power Ready Program, which facilitates installation of solar panels at the Hope/Mound City parking lot and battery backup systems at City Hall to support building electrification.
Overview
The City's participation in the CPA Power Ready Program provides an opportunity to install energy resiliency solar photovoltaic panel power generation and battery energy storage backup equipment, described in Exhibit A of the attached proposed MOU. The CPA's site assessment overview is included as Exhibit B in the attached proposed MOU.
The City and CPA identified site for solar installation is the City owned public parking lot located at the southeast corner of Hope Street and Mound Avenue, across the street from City Hall. The system will support the critical electrical usage at City Hall. The system will not power Southern California Edison Charge Ready Level 2 electric vehicle chargers, if installed. CPA will include the City's site in a portfolio of other member agency sites and issue a competitive Request for Offers (RFO) to be bid by solar/storage developers, who will construct, install, own, operate, and maintain the installation at their cost. The City will lease the site to the developer for a term up to twenty (20) years. The City will pay less or the same rate for electric service to the CPA, than it would have if it did not participate in the Power Ready program, but with an additional benefit of continued service during power outages, up to four (4) hours of power supply for critical loads. If the Council decides to move forward with execution of the attached agreement, certain procurement, insurance, and indemnification requirements apply.
Clean Power Alliance Power Ready Program
September 21, 2022
Background
The City of South Pasadena has been a member of the Clean Power Alliance (CPA) since 2017, and as a member agency, has representation on CPA’s Board of Directors.
The CPA partners with Southern California Edison (SCE) to deliver green energy, including solar, wind, and hydroelectric to communities across Southern California.
South Pasadena residents therefore benefit from 100% green power/renewable energy services through the CPA.
In response to the increasing risk of weather and disaster related electricity outages, including Public Safety Power Shutoff (PSPS) and grid emergency events, in January 2020, the CPA Board of Directors authorized CPA staff to conduct a Request for Information (RFI) to member agencies related to solar and battery systems. The purpose of this RFI was to gauge interest in a program that would provide a solar-paired battery energy storage system or a standalone energy storage system for critical power loads at an essential facility in each of CPA’s 32 member jurisdictions. After receiving the results of the RFI, CPA staff designed the Power Ready to meet member agency needs for community energy resiliency. The CPA Power Ready program offers to provide the City an energy resiliency installation at no cost as an additional benefit to being a CPA member agency.
In contemplating CPA Power Ready Program participation, it is appropriate to consider the City’s sustainable electrification objectives outlined in the City’s Climate Action Plan (CAP), adopted in December 2020, which include:
• A municipal-sector goal (CAP M.3) to increase City's renewable energy production and energy resilience;
• And an energy-sector goal (CAP E.4) to develop and promote reduced reliance on natural gas through increased clean energy systems that build off of renewable energy development, production, and storage.
The CAP also identifies these initiatives as mid-term ‘high cost’ goals due to the significant infrastructure investments required. Therefore, in 2021, City staff began pursuing project and funding opportunities to implement electrification infrastructure at City Hall, including photovoltaic solar panels and battery backup systems. In this effort, City staff worked with the Clean Power Alliance (CPA) to identify the feasibility of implementing solar and battery backup electrical infrastructure at City Hall with a substantial benefit to the City.
Discussion/Analysis
Through the Power Ready program, City staff and the CPA have worked to select City Hall and the adjacent Hope/Mound parking lot site, at which CPA will install a solar panel array, battery energy storage system, and the supporting electrical infrastructure needed to interface with the current facility’s electrical system. Systems are installed at no cost to the City and no increase to monthly utility payments – including solar, storage, and resilience as additional value to existing electrical utility costs. This additional value is made possible by the electrical energy provided by the solar system and/or battery storage system, CPA’s ability to draw power from the batteries during 16 - 2
Clean Power Alliance Power Ready Program
September 21, 2022
peak demand (CPA Demand Response), and the energy arbitrage and the time-of-use configuration utilized to purchase electricity during off-peak lower rates and storing that energy for use during peak rates. In addition, the energy resiliency provided allows the facility to operate critical loads (less than 20% of the full load) for at least four hours during a power outage, such as Public Safety Power Shutoffs, natural disasters, and rolling black outs. The Power Ready program design stipulates that approximately 25% of the Battery Energy Storage System (BESS) capacity be maintained as a “Reserve Capacity” that is always ready for an unplanned outage. The remaining 75% of capacity may be used for daily energy management services, notably energy arbitrage and peak demand clipping.
During the site selection process, City staff nominated sites, considering community benefit, city logistics, emergency sheltering, public access, and communications, among other priorities. CPA’s contractor narrowed the selection to a site that would maximize economic value and provide resiliency to the critical loads identified at that site. CPA’s selection criteria considered: a single facility/meter served by CPA, energy resilience need, community benefit, a sufficient site energy use for net energy metering (NEM) solar offset, a means to identify and justify critical loads, ideal space and electrical utility proximity, modern switchgear and electrical equipment, existing energy-efficiency, the CalFire region or CalEnviroScreen Disadvantaged Community status, and an ability to execute a site agreement without major constraints.
The City sites considered included City Hall, the Library, and Garfield Reservoir.
However, the age and geometric dynamics of the roofs, as well as tree canopy shading, added complications to selecting City Hall or the Library. Therefore, the initial evaluation yielded Garfield Reservoir as the priority selection. However, an idea emerged to install the solar panels in the City public parking lot adjacent to City Hall at the southeast corner of Hope Street and Mound Avenue, and transfer generated power via underground conduit to City Hall. This arrangement had previously been thought infeasible, as there were several program and regulatory restrictions to implement this configuration, including solar/storage equipment installed on two parcels and across a public right-of-way, aggregating multiple SCE accounts, and transferring power between two sites. South Pasadena’s CPA Board Director facilitated a review of these restrictions with SCE, and SCE confirmed that the conceptual design could move forward without any regulatory complication.
The City Hall complex is well suited for the program as it serves a critical community function as a public-facing building that hosts offices for city staff, the Fire Department, and the Police Department - where most day-to-day business functions are located. In addition, the City Hall complex contains the Emergency Operations Center (EOC) and serves as the command post when the incident EOC system is activated.
During initial feasibility analysis, South Pasadena and CPA’s contractor have received acceptance from the SCE planning department to combine the Hope/Mound parking lot account and City Hall Complex account into a single account, to erect solar carports in 16 - 3
Clean Power Alliance Power Ready Program
September 21, 2022
the parking lot, and to use the solar panels to power City Hall loads, connecting the two via an underground conduit running under Mound Ave. In the event of a grid outage, the Power Ready goal is to enable some limited critical loads to remain operational. At City Hall, there is a 125 kW gas-powered generator currently backing up many plug loads, lighting loads, dispatch operations, Information Technology (IT) servers, and some additional critical infrastructure. One approach for the solar and storage system is to back up these same critical loads and take priority over the generator, allowing for carbon free resilience and relegating the generator to a backup of last resort.
The parking lot adjacent to City Hall can accommodate 230 kilowatts (kW) of photovoltaic solar panels, spread across three multi-vehicle carports. This is projected to generate approximately 400,000 kilowatt-hours (kWh) per year, roughly 75% of the facility’s current annual usage of 543,000 kWh (using 2019 interval data). This annual usage would increase after the transition to electric Police and Fire vehicles. The Battery Energy Storage System (BESS) would likely be located in the parking lot on the north, central side of City Hall next to the Fire Department, with a capacity of approximately 167 kW / 667 kWh. Altogether, the Power Ready Program anticipates CPA will install a total of 8 Megawatt-hours (MWh) of storage and 5 Megawatts (MW) of solar systems across member jurisdictions in its two-county service area.
Executing the MOU signifies the City’s intent to participate in the Power Ready program, which enables CPA to solicit bids through the Request for Offers (RFO) process for all sites combined. This collective RFO, planned for issuance in Fall 2022, allows CPA to obtain more cost effective bids from a developer than if agencies were to undertake projects individually. After a developer is selected from the RFO process, planned for Winter 2022-2023, the City would negotiate a site lease agreement directly with the developer, and CPA will negotiate a Power Purchase Agreement with the developer.
When the site lease agreement is executed, it would supersede the MOU, and the developer can start the project in 2023.
Fiscal Impact
The value of this project is that the City will receive an ‘islanded’ solar storage system at no cost for use in an emergency situation when the SCE/CPA power grid is not available. The cost of creating an islanded system that can provide this type of critical support is much higher than the cost of installing a solar and/or storage system. As a participating member, the City would pay no more for electricity than they would without participating in the program. However, It should be noted that the CPA Power Ready program agreements contain requirements that impose a financial liability on the City, i.e. claw back costs, if the agreed period of use for the new infrastructure is not realized.
Environmental Analysis
Environmental impact assessments for the installations are to be conducted by the developer of the solar and battery storage system as part of the CPA Power Ready program.
16 - 4
Clean Power Alliance Power Ready Program
September 21, 2022
Public Notification of Agenda Item
The public was made aware that this item was to be considered this evening by virtue of its inclusion on the legally publicly noticed agenda, posting of the same agenda and reports on the City’s website.
Attachment: CPA Power Ready Program Memorandum of Understanding 16 - 5
ATTACHMENT
CPA Power Ready Program Memorandum of Understanding
16 - 6
1 MEMORANDUM OF UNDERSTANDING (MOU)
This Memorandum of Understanding ("MOU"), made as of the last date signed below (the “Effective Date”), by and between The City of South Pasadena (“Member Agency”), the owner or long-term lessee as described in Section 4.a. of the real property described in Exhibit A and referred to herein as the “Site,” and Clean Power Alliance of Southern California, a Joint Powers Authority and Community Choice Aggregation program (“CPA”), referred to individually or collectively as “Party” or “Parties,” is to enroll the Site in the CPA Power Ready Program, described in more detail below.
RECITALS
WHEREAS, CPA desires to support community energy reliability efforts in its service territory through its Power Ready Program (described in the Power Ready Fact Sheet, attached hereto as Exhibit B), which seeks to provide Member Agency with a no-cost energy resiliency project that provides significant community benefit and demand response to CPA, and WHEREAS, the Member Agency has worked diligently with CPA to determine a suitable site for energy resilience as part of the Power Ready Program, and WHEREAS, the Member Agency is the owner of the Site identified in Exhibit A, which Member Agency and CPA have identified as a suitable site for the Power Ready Program because the Site serves a critical community function as a public-facing building that hosts offices for city staff, the Fire Department, the Police Department, and the City’s Emergency Operations Center (EOC), and
WHEREAS, to implement the Power Ready Program, CPA must enter into an agreement with a third-party developer (“Developer”), who will develop behind-the-meter battery energy storage and solar photovoltaic generation energy systems at the sites selected for the Power Ready Program, including the Member Agency Site, and
WHEREAS, CPA intends to issue and administer a competitive Request for Offers (“RFO”) to select the Developer, and
WHEREAS, CPA intends to include in the RFO a portfolio of development sites, including the Member Agency Site and sites belonging to other CPA member agencies, which portfolio will be relied upon by developers to submit bids to develop solar and storage on the Power Ready Program sites, and
WHEREAS, developers’ bids will include pricing that will be incumbent on the inclusion of the Member Agency Site in the portfolio, and
16 - 7
2 WHEREAS, the Member Agency will benefit from the installation of the battery energy storage system, which will provide the Site with power during planned and unplanned electrical outages to power certain critical electrical loads,
NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained, it is mutually understood and agreed by and between the Parties as follows:
1. Term. This MOU begins on the Effective Date and ends five (5) years after the Effective Date, at which point, CPA and Member Agency may agree, by mutual written agreement, to extend the term of this MOU.
2. Termination.
a. Convenience. Any time prior to CPA’s issuance of the RFO, either Party may terminate this MOU for convenience and without liability to the other Party upon giving the other Party written notice.
b. Default.
i. After CPA issues the RFO, the Parties acknowledge and agree that either Party’s failure to perform any of its material obligations under this MOU shall constitute an event of default and entitle the other Party to terminate the MOU immediately upon written notice of termination. ii. Member Agency Default. Member Agency recognizes that its default under this MOU could undermine CPA’s implementation of the Power Ready Program for other participating member agencies, invalidate Developer bids to develop Solar+Storage Systems under the Power Ready Program, increase costs of construction and reduce benefits to CPA and other member agencies, or a combination thereof. Member Agency acknowledges and agrees to reimburse CPA for all reasonable costs related to, resulting from, or arising from Member Agency’s default including but not limited to any qualified adjustment in the rate price, reasonable fees, or other direct charges that may be assessed by the Developer pursuant to the Power Purchase Agreement, and to be subject to any other remedies that may be available to CPA. Member Agency’s liability under this section shall in no circumstances exceed $75,000. iii. CPA Default. If CPA defaults, CPA acknowledges and agrees to reimburse Member Agency for Member Agency’s reasonably expended costs to prepare the Site for the Solar+Storage System in reliance on the MOU.
CPA shall not be liable for any other expenses incurred in reliance on the MOU, any Member Agency personnel time spent in reliance on the MOU, costs to pursue other renewable energy options, or any special or incidental damages. CPA’s liability under this section shall in no circumstances exceed $75,000.
16 - 8
3 iv. Force Majeure. Neither Party shall be liable for any default caused by reason of acts of God including volcanic eruption, landslide, lightning, earthquake, fire, or flood (but excepting reasonably anticipated weather conditions at the Site); explosion, sabotage, or similar occurrence; acts of a public enemy, extortion, terrorism, war, blockage, or insurrection; riot or civil disturbance; strikes, lockouts, or labor troubles; change in law or regulation; or other cause without fault and beyond the reasonable control of a Party (financial inability excepted).
3. The Solar+Storage System and Its Operation.
a. Construction.
i. CPA will select a Developer to construct, install, operate, and maintain at the Site a behind-the-meter battery energy storage and solar photovoltaic generation energy system at Developer’s sole cost and expense, with the anticipated general specifications set forth in Exhibit A hereto (the “Solar+Storage System” or “System”).
ii. In the RFO, CPA will make clear that Developer is required to comply with all provisions of California law applicable to public contracting, including but not limited to bond requirements and prevailing wage requirements. iii. CPA will require the Developer to submit a siting and construction plan for the Solar+Storage System for Member Agency’s approval, which shall include a commitment to obtain all necessary permits, a waste management plan, and a statement that Developer will adhere to the applicable building code and all local, state, and federal laws. iv. The Parties recognize that the Developer must secure interconnection approval for the Solar+Storage System from Southern California Edison. b. Financing. The Parties anticipate that construction, operation, and maintenance of the Solar+Storage System will be financed by a Power Purchase Agreement (“PPA”) between CPA and the Developer.
c. Ownership. The Parties acknowledge that the Developer will own the Solar+Storage System. However, the RFO will include a provision requiring the Developer to provide Member Agency with the opportunity to purchase the Solar+Storage System at the end of the Site Lease term. d. Maintenance. The Parties acknowledge that the Developer will be responsible for the maintenance of the Solar+Storage System, and Member Agency will provide reasonable access to Developer.
e. Control. The Solar+Storage System will be managed and operated pursuant to the terms of the PPA, as set forth in more detail below. f. Normal Operations. Except when in Power Outage Operations pursuant to Section 3.g, below, the Solar+Storage System will be managed to meet CPA’s 16 - 9
4 needs for demand-side management at its discretion, and such Solar+Storage System management will not impact Member Agency operations. g. Power Outage Operations.
i. The Solar+Storage System will have the ability to generate solar energy and charge the Solar+Storage System during power outages that occur during daylight hours.
ii. The Solar+Storage System will be managed to provide power, to the extent reasonably practicable, for certain critical loads at the Site during power outages. The Solar+Storage System will be managed to provide sufficient power to the Site for at least four (4) hours during Power Outage Operations based on the Site’s power needs identified at the time the Solar+Storage System is designed.
h. Operations Insight.
i. CPA will provide Member Agency continuous access to the Solar+Storage System electricity generation dashboard on the worldwide web or otherwise provide Member Agency with the ability to review the amount of electricity generated at any given time.
4. Member Agency Obligations.
a. Ownership. Member Agency warrants that it is the long-term lessee (with a lease term that does not end earlier than, or that Member Agency has the sole discretion to continue until at least, 2045) or owner of the Site and that it has the power to grant permission for use of the Site as part of the Power Ready Program.
b. Project Development.
i. Member Agency agrees to allow CPA’s selected Developer to construct the Solar+Storage System at the Site, subject to Developer entering a Site Lease Agreement with Member Agency and subject to Developer receiving all necessary permits and approvals.
ii. Member Agency recognizes that its Site will be included in a portfolio in support of an RFO to potential developers and that withdrawal of its Site from the Power Ready Program could invalidate developers’ bids for the entire program.
c. Site Function. Member Agency agrees that the Site will continue to serve a critical community function, as described in the Recitals above, for the Term of the MOU. If Site no longer serves a critical community function, or Member Agency wishes to change the Site to a different critical community function than the one described herein, and that different critical community function significantly alters electricity usage at the Site, this may constitute a material change to this obligation. Member Agency must immediately notify CPA of the 16 - 10
5 change and make best efforts to cooperate with CPA in remedying impacts related to the change in use.
d. Site Lease. Member Agency agrees to enter into a Solar+Storage Site Lease Agreement with the Developer, provided all material terms are agreed upon, or if the Member Agency does not own the Site, then Member Agency will use best efforts to secure a Solar+Storage Site Lease Agreement or any other agreements necessary to secure use of the Site between the Site owner and the Developer with Member Agency being a third-party beneficiary with a term length up to twenty (20) years. Member Agency shall act at all times in good faith to come to reasonable terms with the Developer and shall not unreasonably condition, delay, or refuse to enter into the Solar+Storage Site Lease Agreement.
Reasonable terms shall include, at a minimum, (a) a reasonable provision providing for indemnification of the Member Agency by the Developer, (b) a requirement the Developer carry reasonable insurance, and (c) a reasonable requirement that the Developer return the Site to its condition prior to the installation of the Solar+Storage System if, at the end of the Site Lease term, Member Agency requests that the Solar+Storage System be removed. Member Agency recognizes that it may not require Developer to pay to lease the Site; the consideration for lease of the Site is installation of and Member Agency’s benefit from the Solar+Storage System.
e. Cooperation. Member Agency agrees to cooperate with Developer to secure necessary approvals for Developer to develop the Solar+Storage System at the Site; however, nothing in this MOU constitutes approval of development of the Solar+Storage System. Member Agency is solely responsible for issuance of any permits, including but not limited to providing necessary information for the selected Developer to acquire permits or to comply with the California Environmental Quality Act, if applicable.
f. Billing. Member Agency will pay CPA as billed for electric service at the Site under CPA’s future Power Ready Rate Structure, which will be developed prior to Member Agency execution of the Site Lease. The future Power Ready Rate Structure is further described in Section 5.c. of this MOU. The Power Ready Rate charged to Member Agency annually will be equal to or less than the amount charged to Member Agency annually under the rate structure that would have otherwise been in place if the Member Agency did not participate in the Power Ready Program.
g. SGIP Funds. Developer will apply for the CPUC Self Generation Incentive Program (“SGIP”) administered by Southern California Edison (“SCE”) on behalf of the Member Agency. Member Agency agrees to transfer any awarded SGIP funds to Developer to support financing of the battery energy storage. 16 - 11
6 5. CPA Obligations.
a. CPA will prepare, issue, and administer the RFO to select the Developer to develop the Solar+Storage System at the Member Agency’s and other member agencies’ sites. CPA will provide Member Agency a reasonable amount of time to review and provide comments on the RFO prior to issuing the RFO. The draft RFO that CPA provides to Member Agency for review shall include a sample Site Lease that contains pro forma commercially reasonable terms or otherwise lists commercially reasonable terms that must be included in the Site Lease. b. CPA will make a commercially reasonable effort to ensure construction of the Solar+Storage System begins no later than June 30, 2023, and will coordinate with Member Agency to determine a mutually agreeable construction schedule.
However, CPA does not guarantee either (a) that the Solar+Storage System will actually be constructed, or (b) that construction will be free from delays beyond CPA’s control.
c. CPA will provide a construction liaison during construction of the Solar+Storage System that will make periodic on-site visits.
d. CPA will bill the Member Agency for generation service on a monthly basis under its Power Ready Rate Structure. The on-bill monthly charge will be calculated to approximate projected monthly bill savings generated by the Solar+Storage System. CPA will conduct a true-up of the Member Agency annual electricity costs annually during the April bill cycle and will credit or charge the Member Agency. Member Agency’s annual charges will be equal to or less than the amount that would have otherwise been charged to the Member Agency if the Member Agency did not participate in the Power Ready Program. e. CPA will provide Member Agency with educational/outreach materials and regular reporting on Solar+Storage System performance.
6. Indemnification. Each Party shall indemnify and hold harmless to the fullest extent permitted by law the other Party and its elected officials, officers, employees, members, volunteers, agents, and representatives from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements that may directly or indirectly arise and/or result from the indemnifying Party’s gross negligence or willful misconduct. This indemnification shall be only in proportion to and to the extent that such claims, judgments, causes of action, damages, penalties, costs, liabilities, and expenses, including attorneys’ fees and costs incurred in the defense of any such claim or any action or proceeding brought thereon arise from the negligent or intentional acts or omissions of indemnifying Party, and its officers, employees, invitees, or agents. 16 - 12
7 7. Insurance.
a. The Parties agree to provide and maintain throughout the term of this MOU, at their own expense, a program of insurance, or self-insurance, covering the activities and operations of their respective officers, agents and employees and contractors for the term of this MOU. This insurance shall include general liability insurance with coverage limits of $2,000,000 per occurrence and $2,000,000 aggregate (unless the aggregate is on a per-policy basis, in which case the aggregate shall be a minimum of $4,000,000). This insurance shall be endorsed to include the following: (i) CPA, its Board, Officers, Officials, Employees, Agents, Servants, and Volunteers are covered as additional insureds on Member Agency’s commercial general liability policy, and Member Agency’s Board, Officers, Officials, Employees, Agents, Servants, and Volunteers are covered as additional insureds on CPA’s commercial general liability policy; and (ii) a written notice to be mailed to the other Party 30 days prior to the effective date of a cancellation or non-renewal of such insurance.
b. The Parties agree to maintain throughout the term of this MOU, at their own expense, an automobile liability policy covering any auto (including owned, hired, and non-owned autos) with limits no less than $1,000,000 per occurrence for bodily injury and property damage.
c. The Parties agree to maintain throughout the term of this MOU, at their own expense, a workers’ compensation policy as required by the State of California, with Statutory Limits and Employer’s Liability Insurance of no less than $1,000,000 per occurrence for bodily injury or disease. d. Upon request, either Party shall provide the other evidence of such coverage naming the other Party as an additional insured including an additional insured endorsement issued by the insurance company or program of selfinsurance. e. CPA may waive or change any of the requirements in this Section 7 at its discretion, upon mutual agreement with the Member Agency. f. Nothing herein waives or reduces a Party’s indemnification obligations pursuant to Section 6.
8. Publicity. Any publicity generated by either Party related to the performance of this MOU should reference both Parties’ contributions. Each Party shall make best efforts to display the words “Clean Power Alliance” and “The City of South Pasadena” in all pieces of publicity, including flyers, press releases, posters, brochures, public service announcements, interviews, and newspaper articles (to the extent possible). Any piece of publicity, including those mentioned above, must be reviewed and approved by both Parties before issuing a press release. Each Party agrees to provide the other Party with reasonable time for review before such issuance.
16 - 13
8 Where CPA and Member Agency logos are used on any signage or documentation arising from this partnership, the logos of each Party will be of equal size. No signs may be posted, exhibited, or displayed on or about Member Agency property, except signage required by law or contemplated under this MOU, without prior written approval from Member Agency.
9. General Provisions.
a. Entire Agreement. This MOU represents the full and complete understanding between the Parties as to the subject matter of this MOU, and supersedes any other agreement(s) and understanding(s), either oral or written, between the Parties related to the subject matter of the MOU.
b. Amendment. Any amendment to or modification of this MOU will be effective only if in writing and signed by each Party’s authorized representative. No verbal agreement or implied covenant will be valid to amend or abridge this MOU. c. Governing Law and Venue. This MOU is governed by the laws of the State of California. Any lawsuits files related to this MOU must be filed with the Superior Court for the County of Los Angeles, State of California. d. Third Party Beneficiaries. There are no intended third-party beneficiaries of this MOU.
e. Independent Parties. Each Party shall perform its responsibilities and activities described herein separately and not as an officer, agent, employee, or volunteer of the other Party hereto. Each Party shall be solely responsible for the acts and omissions of its officers, agents, and employees. Nothing herein shall be considered as creating a partnership or joint venture between the parties. f. Headings. The headings in this MOU are for convenience only, are not a part of the MOU, and in no way affect, limit, or amplify the terms or provisions of this MOU.
g. Severability / Partial Invalidity. If any term or provision of this MOU, or its application to a particular situation, is found by the court to be void, invalid, illegal, or unenforceable, such term or provision shall remain in force and effect to the extent allowed by such ruling. All other terms and provisions of this MOU or their application to specific situations shall remain in full force and effect. The Parties agree to work in good faith to amend this MOU to carry out its intent. h. Survival. All provisions which by their nature must continue after the MOU expires or is terminated shall survive the MOU and remain in full force and effect, including but not limited to the indemnification requirement in Section 6 and the insurance requirements in Section 7.
i. Notices. All notices, requests, and approvals must be sent in writing to the persons below, which will be considered effective on the date of personal delivery; or the date confirmed by the reputable overnight delivery service; or on 16 - 14
9 the fifth calendar day after deposit in the United States Mail, postage prepaid; or the next business day following submission by electronic mail:
To CPA:
Theodore Bardacke, Chief Executive Officer
801 S. Grand Ave., Suite 400, Los Angeles, CA 90017
[email protected]
With a copy, which shall not serve as notice as required or specified herein, to:
Nancy Whang, General Counsel
801 S. Grand Ave., Suite 400, Los Angeles, CA 90017
[email protected]
To Member Agency:
H. Ted Gerber, Public Works Director
City of South Pasadena
Public Works Department
1414 Mission Street
South Pasadena, CA 91030
[email protected]
Telephone: (626) 403-7240
With courtesy copy to:
Andrew L. Jared
South Pasadena City Attorney
Colantuono, Highsmith & Whatley, PC
790 E. Colorado Blvd., Ste 850
Pasadena, CA 91101
Telephone: (213) 542-5700
Facsimile: (213) 542-5710
j. Electronic Signatures: This MOU may be executed by electronic signature(s) and transmitted either by facsimile or in a portable document format (“pdf”) version by email and such electronic signature(s) shall be deemed as original for purposes of this MOU and shall have the same force and effect as a manually executed original.
k. Execution in Counterparts: This MOU may be executed in two or more counterpart copies, each of which shall be deemed as an original and all of which, when taken together, shall constitute one and the same instrument. 16 - 15
10 IN WITNESS WHEREOF, the parties have executed this MOU on the latest date of execution set forth below.
___________________________________
Theodore Bardacke
Clean Power Alliance of Southern California
Title: Chief Executive Officer
Date:
___________________________________
Arminé Chaparyan
City of South Pasadena
Title: City Manager
Date:
Attest:
___________________________________
Desiree Jimenez, CMC
City of South Pasadena
Title: Chief City Clerk
Date:
Approved as to form:
___________________________________
Andrew L. Jared
City of South Pasadena
Title: City Attorney
Date:
16 - 16
11 EXHIBIT A
Clean Power Alliance: Power Ready Program
Last edited on May 5, 2022
South Pasadena Site Assessment Overview:
City Hall, Fire, & Police Complex
Address: 1414 Mission St. South Pasadena, CA 91030
Meter Number: 259000-019260
Solar Size 230 kW
BESS Size 167 kW / 667 kWh
Facility Age Unknown
Facility Size ≈30,000 ft2
Critical Loads 911 Dispatch Center, IT Servers, plug loads.
Some limited EV charging if feasible.
The South Pasadena City Hall, Fire Department, and Police Department are all housed in the same complex, centrally located in the community. East of this complex, across the street Mound Ave, there is a city-owned parking lot, with lightning loads on their own account (currently on an Edison lighting rate). South Pasadena and EcoMotion have received approval from the SCE planning department to combine the parking lot account and City Hall Complex account into a single account, to erect solar carports in the parking lot, and to use the solar panels to power City Hall loads, connecting the two via an underground conduit running under Mound Ave. The goal is to increase on-site carbon free generation at the facility, as well as create additional resilience for some critical loads in the event of grid outage.
Concurrent with the CPA Power Ready program, South Pasadena is pursuing fleet electrification in stages at this facility. Some DC Fast Charging is already installed (via AQMD grant) on its own electrical service. Additional Level 2 Charging is being installed (via SCE Charge Ready as well as other electrification programs), with some charging expected to be on its own electrical service, and some expected to be on the existing main service.
16 - 17
C~~ CLEAN
POWER
ALLIANCE
12 Intended Resilience
In the event of a grid outage, the Power Ready goal is to enable some limited critical loads to remain operational. There is a 125 kW generator currently backing up many plug loads, lighting loads, dispatch operations, IT servers, and some additional critical infrastructure.
One approach for the solar and storage system is to back up these same critical loads and take priority over the generator, allowing for carbon free resilience and relegating the generator to a backup of last resort.
Another approach would be to back up other loads not already backed up by the generator, increasing the amount of critical loads capable of operating during a grid outage. The ideal configuration will need to be determined with further input from the city.
Solar System Size and Location
The parking lot across the street (East of Mound Ave) from the City Hall can accommodate 230 kW of PV panels, spread across three carports. This is projected to generate approximately 400,000 kWh per year, roughly 75% of the facility’s current annual usage of 543,000 kWh (2019 interval data). Annual usage is expected to increase due to ongoing fleet electrification.
SCE planning has approved plans to consolidate the Parking lot and CIty Hall service accounts and run conduit under Mound Ave. SCE planning will continue to be involved in this project, in collaboration with the winning bidder.
16 - 18
13 BESS Size and Location
Our initial optimization suggests an ideal battery size of approximately 167 kW / 667kWh.
The facility has an annual peak kW demand of 131kW; through SGIP, a battery with 4-hour discharge may be sized up to 131kW / 524kWh. The Power Ready program design stipulates that approximately 25% of BESS capacity be maintained as a “Reserve Capacity” that is always ready for an unplanned outage. The remaining 75% of BESS capacity may be used for daily energy management services, notably energy arbitrage and peak demand clipping.
Ideally, the BESS will be sited close to the Main Electrical Service, in the parking lot on the north, central side of the facility. The city has indicated they will be able to site the BESS in this parking lot, giving up a parking space if necessary.
16 - 19
14 Electrical Infrastructure
The main 1,000A switchboard and meter is located outside, in the parking lot north of the facility, and west of the fire station bays. The backup generator (125 kW) is also located nearby, directly east of the MSB.
The main electrical room is located in the basement of the facility, directly underneath the central courtyard in the front of the facility (southernmost end of the complex). This main electrical room contains the generator ATS, which feeds Switchboard EDS (225 amp bus).
EDS feeds Transformer T1, which feeds Panel BE (lighting loads, phones, and plug loads in dispatch and computer office rooms), and Transformer T9, which feeds Panel BEE (IT Servers and Equipment), all located in this same room.
The single-line provided by the city is out of date: several additional panels have been backed up by the generator, via Switchboard EDS, that are not shown as such on the single line. These additional backup loads include Transformer T2 and Panel 1E, both located in the fire truck bay’s restroom (police plug loads, an exhaust fan, and a boiler control).
Additional information regarding critical loads and electrical and building plans are available in the Fulcrum App and Shared Drive.
16 - 20
15 EXHIBIT B
16 - 21
C~~ CLEAN
POWER
ALLIANCE
CPA's Power Ready Program
A CPA member agency benefit program that provides critical back-up power to a facility What is Power Ready?
The need for backup power systems is growing as power outages become more common than ever w ith increased w ildfires, frequent Public Safety Power Shutoffs, and increased summer grid emergencies due to high heat.
Clean Power Alliance's Power Ready program is a
commun ity benefit offered to its member agencies to
make a public building that serves a critica l comm unit y purpose energy-resilient by inst alling a solar and storage system so that there is a back -up source of energy w hen t here is an outage. CPA is providing this benefit at no cost to member agencies and making participation easy
by contracting w it h a developer/financier to build, own, and operate t he systems for 20 years.
Power Ready Benefits
• Back-up power system that provides power from its own source during outages (including Public Safety Power Shutoffs. natural disasters, rolling black outs)
• No up-front cost and no increase to annual energy bills for participating • Reduced harmful emissions and noise pollution associated with back-up diesel generators • The developer handles all operations and maintenance
• Enhanced grid resilience that helps to prevent grid emergencies • Member agency staff learn about hosting battery storage For more information contact
[email protected]
16 16 - 22
C LEAN
POWER
ALLIANCE
Clean Power Alliance Power Ready Program
Frequently Asked Questions for Member Agencies
1. W hat is the Power Ready program?
An opportunity to make a public building that serves a crit ic.al commun ity purpo se energy -resilient by installing a solar and storage In other c.ases, the generators can oper ate in tandem w ith t he Pow er Ready system t o enhance resilience. cut emissions, and protect against fuel shortage.
system so that critical loads are backed up in an outage. CPA can 9. What kinds of municipal facilit ies are suited for the program? City halls, lib raries. community centers, public works y ards. senior cen ters ... any municipal facility that has sufficient power load that c.an be profitably offset w ith solar. and t hat has a logical use case for the community during emergencies.
provide this opportunity at no cost to our member agencies by aggregating a portfolio of member agency sit es. CPA is making this opportunity easy for member agencies by contracting with a developer/ financier t o build. own, and oper ate the systems for 20 year s.
2. Why is CPA offering the Power Ready program?
Power Ready is one of the many community benefits offered to Clean Power AJliance Member Agencies. Member agencies identified a need for resiliency. CPA's Board of Directors dev eloped Power Ready t o meet t his need fo r resilience by using the collective purchase pow er of CPA.
3. W hat are my benefits as a participant?
Back-up power system that provides islanded power during outages (including Publ ic Safety Power Shutoffs. natural disasters, rolling black outs).
No up -f ront cost and no increase to annual energy bills for participating
Reduced harmful emissions associated w ith back-up diesel gener ators
The developer handles au oper ations and maintenance
Enhanced grid resilience that helps to prevent grid emergencies Member agency st aff learn about host ing battery st orage CPA will promote your agency's participation in this
innovative program
4. OK, who pays w ho?
The amount that member agencies w ill pay annually will be equal t o or less t han w hat they would hav e paid if t hey w ere not participating in the program. CPA uses the solar and storage syst ems to create optimal bill savings that are used to pay t he system cost to the developer, making it possibl e for us to provide t his syst em to member agencies at no cost .
5. How much energy resilience will CPA provide?
During hours of s unshine. the Power Ready facilities w ill be as the program name implies. ... "Power Ready!. The Power Ready sites will be highly functional during g rid outages during "blue sky· periods.
Power Ready has conducted deep dives int o each selected facility to determine w hich loads are critical during the night - "dar k sky periods." CPA offers member agencies a minimum of 4 -hour "dar k sky· duration of critical loads. In mos.t cases, these loads c.an be managed to extend the · dar1c sky" du ration unt il t he s.un ris.es the next day.
6. How were Power Ready sites chosen?
After a program briefing on suitable sites, member agencies w ere offered the opportunity to nomin ate up to fiv e sites for the program and their preferre d site. CPA's consultants - EcoMotion - then worked w ith t hes.e sit es and staff to determine the best program fit. Not e that the site checks in cluded solar and storage spatial analysis, roofing, and swit chgear condition.
10. Will t his program lower my electricity bills?
Participation in t he Power Ready program is not intended to lower your electricity bills. but it will not raise them either. CPA will ens.ure t hat the amount you pay will be equal to or less than what you would have paid if you w ere not participating in the program. The v alue of this project is that member agencies get an islanded solar and st orage sys.tern at no cost for use in an emergency situation. The cost of creating an islanded sys.tern that can provide this type of critical s.upport is much higher than the cost of installing a normal s.olar syst em or even a solar and s.torage syst em.
Cost to Participate
11. W hat will it cost to participate in Power Ready?
There is no cost for participating.
12. Will I save money?
Power Ready is not intended to sav e you money on your electricity bills.
The v alue you get is energy resilience at no additional cost . Participating members will pay no more for electricity than they would without. Power Ready.
13. How will my bill be computed?
CPA will annually audit your energy bills so that the annual amount paid is equal to or less w hat your f acility w ould pay had you not participated in the Pow er Ready program .
14. Will participating in the Power Ready program raise my bills? No. participants electricity bills w ill be equal to or less than w hat t hey w o uld have been. if they w ere not participating in t he program . Assuming the same general us.age. your bills w ill be the same. increasing only over the y ears as SCE and CPA rates increase. At no tim e w ill the presence of solar or batteries make your bill higher.
More on the Battery
15. How does CPA plan to use the battery?
CPA uses the ban ery to manage electricity demand in such a w ay that lowers procurement costs. Strategies such as Net Energy Metering. Peak Demand Reduction. Load Shifting from high Time of Use (TOU) periods to low TOU periods will be handled by CPA. These cost saving strrategies make it possib le for us t o provide you the islanded solar and s.torage system at no cos.t.
16. Will t he batteries onsite provide grid services?
The primar y purpose of the Pow er Ready program is to provide en ergy res ilience to member agencies· public facilities. A c.ar ve-out has been estab lished for every battery s.torage syst em such that the program commitment for resilience can be met.
7. How does the p rogram make buildings more energy resilient? 17. Under what circumstances does t he facility utilize powerfrom Solar. st orage. arnd sophist icated controls. The f acilit ies can island in t h e battery? the ev ent of a grid outage and maintain critical operations. The cost of creating an islanded system that can provide this type of critical s.upport is much h igher than the cost of inst alling a normal solar system or ev en solar and st orage syst em. CPA is able to offer this at no cos.t by aggregating a portfolio of member agency sit es.
8. What if the bui lding we choose has a generator?
Many of the facilf.ties in t he Power Ready program already have gener ators. Pow er Ready brings carbon-free generation and s.torage to the f acility. in some c.ases making the generators obsolete and im proving the air quality of the community.
If the SCE grid goes down. the member agency will be using both the banery and the solar for emergency power.
18. Is t here a portion of t he battery t hat is always on standby for emergencies?
Ye'S, only 75% of the battery will be flexed by CPA for demand reduction or load shifting. A minimum of 2 5% percent of t he battery is alw ays maintain ed to meet an unexpected outage. The batteries w ill be programmed to charge up prior to scheduled outages to giv e member agencies maxim um resilience.
17 17 - 1
Police Fleet EV Lease and Southern California Edison Charge Ready Program September 21, 2022
The total amount of the agreement with Enterprise Lease Management (EFM) proposed over sixty (60) months is $1,904,372, which includes $1,520,621 for vehicle lease financing and a one-time down payment of $383,752 (Attachment 11). The one-time down payment would become due when the vehicle order is placed. The annual lease payment would become due upon vehicle delivery. All related costs for vehicle up-fitting are included in the annual lease payment. Considering vehicle purchase/lease cost, fuel cost reduction, and maintenance cost reduction, transitioning to an all-electric fleet summates to about a fourth of the current cost, from $0.40 per mile to $0.10 per mile ($0.30 per mile savings). Total savings over ten years are projected at $312,282. Upon approval of the agreement, vehicles will be ordered with an estimated delivery time of 6- 12 months, depending on the model. Estimated up-fitting time for Police vehicles would be an additional 2-3 months.
The City has an opportunity to install thirty-four (34) Level 2 electric vehicle charger ports (19 chargers) through the SCE Charge Ready Program in the three parking lots behind City Hall: the Police Department, Fire Department, and City Staff parking lots.
For reference, Level 2 chargers can fully charge an electric vehicle overnight. If the Council decides to move forward with this opportunity, the SCE Charge Ready program requires the City to enter into a 10-year agreement, where the City procures, installs, and maintains the chargers, while SCE funds and installs the electrical infrastructure (transformers, service wiring/conduits, panels and wiring, and meters) to support the chargers. The infrastructure would be owned and maintained by SCE, and the City would grant SCE an easement through the parking lot areas. The easement will be brought back to Council at a later date. In order to meet SCE’s minimum cost-benefit of electrical support infrastructure, thirty-four (34) is the minimum number of charger ports required for this installation. The chargers must be powered from SCE’s electrical system (not solar or battery) and must be selected from SCE’s approved product list.
The SCE agreement (Attachment 4) includes certain indemnification, liability, early termination costs, demand response, data collection/reporting, and network service provider requirements. The sample easement, which will be brought back to Council at a later date, is included as Attachment 5, and the conceptual installation plan is included as Attachment 6.
Background
During the July 20, 2022 Council Meeting, the City Council heard presentations from the Public Works and Police Departments on this matter, and held a discussion on the Police Department’s proposed transition to battery electric vehicles, and the proposed installation on electric vehicle chargers through the SCE Charge Ready Program. The Police Department’s staff report (Attachment 1) included the Department’s methodology, justification and recommendation to transition the vehicle fleet, all at once, to vehicles manufactured by Tesla. The Public Works Department staff report (Attachment 2) provided information on the related infrastructure needs and available programs to support public safety fleet electrification. The Council requested the items return for future consideration, with additional requested information, and for the item to be taken up before a full City Council for the policy decision related to electrification. 17 - 2
Police Fleet EV Lease and Southern California Edison Charge Ready Program September 21, 2022
Analysis
The South Pasadena Police Department currently owns and maintains a high-mileage, aged fleet of Internal Combustion Engine (ICE) vehicles with significant maintenance and reliability issues. The fleet inventory and related metrics can be found in Attachment
7. The Police Department has purchased one vehicle in the past three years. In order to bring the fleet up to a sustainable and well-maintained fleet, the Police Department has identified a need to acquire ten (10) vehicles now, and an additional ten (10) over the course of the next two to three years.
Through a comprehensive evaluation of cost benefits and savings, reliability, vehicle selection, performance and safety, climate impacts, and facility charging infrastructure, staff are recommending the City pursue a vehicle lease program and participation in an infrastructure installation incentive through Southern California Edison.
Cost Benefits & Savings
Through the conversion to electric vehicles, the South Pasadena Police Department is projected to realize a cost savings of approximately $312,282 over a ten (10) year period. Furthermore, the infrastructure costs are estimated at approximately $250,000, realizing an overall costs savings. This does not include additional cost benefits from the potential to earn revenue on public-facing electric vehicle chargers, and the generation of Low Carbon Fuel Standard Credits (LCFS), which could yield thousands of dollars per month. This cost savings is in addition to the environmental impacts associated with the 42,198 pounds of carbon dioxide emissions released each year, ahead of implementing an electric vehicle conversion.
Analyzing the economics of transitioning to electric vehicles demonstrates that energy costs will be reduced more than ten-fold from $4,355 in gasoline fuel costs per year to $336 in electrical energy costs per year. Therefore, including vehicle purchase/lease cost, fuel cost reduction, and maintenance cost reduction, transitioning to an all-electric fleet summates to about a fourth of the current cost, from $0.40 per mile to $0.10 per mile, a $0.30 per mile savings (ten-year total of $312,282 as mentioned above).
Through a vehicle-leasing program with Enterprise Fleet Management (EFM), the Police Department can acquire an entire fleet of electric vehicles for an annual lease payment less than the cumulative annual budgets of maintaining a sustainable gaspowered/hybrid fleet. The annual lease payment for the proposed electric vehicle lease is $304,124. The cumulative annual budgets (vehicle purchase/upfitting, fuel and maintenance) to acquire three (3) hybrid vehicles per year (minimum necessary to maintain a sustainable fleet) is estimated at current costs to be $389,108.
EFM is a well-established, high-performance, vehicle-leasing vendor with significant experience leasing electric vehicles, offering an “Open Ended (Equity) Lease.” Other EFM governmental clients in our region include: Baldwin Park, Santa Monica, Rosemead, Temple City, Covina, Downey, Norwalk, Oxnard, Corona, Long Beach, Azusa, Santa Barbara County Sheriff’s Department, Riverside County Sheriff’s Department, Imperial County Sheriff’s Department, Glendale Unified School District, Los 17 - 3
Police Fleet EV Lease and Southern California Edison Charge Ready Program September 21, 2022
Angeles County Development Authority, and Mountains Recreation and Conservation Authority.
The agency with the most comprehensive research and similar needs to the South Pasadena Police Department is the Fremont Police Department in Northern California.
The Fremont Police Department conducted a lifecycle comparison study of 90,000 miles over 5 years (Attachment 1) between a gas Ford Police Pursuit Vehicle (PPV) and a 2014 Tesla Model S85 pilot vehicle. According to their study, the Fremont PD is expected to realize a $27,977 savings in energy/fuel costs, $11,677 savings in maintenance costs and 100% reduction or 210,994 lbs of CO2 per vehicle over a fiveyear period based upon data compiled during their one-year pilot study. With a recent City purchase of gasoline at $5.37 per gallon compared with $3.00 per gallon in the Fremont PD study, the South Pasadena Police Department is anticipating energy cost savings approximately 79% higher than those realized by Fremont PD. Staff expects maintenance costs and greenhouse gas (GHG) emissions reduction to be consistent with that projected by Fremont PD.
Based on staff’s research, the cost to operate a gas-powered Ford Police Pursuit Vehicle is approximately $0.40 per mile. In comparison, the projected cost per mile to operate a Tesla Model Y is approximately $0.10. Tesla electric vehicle products have matured to the point where they now meet or exceed the operational needs of the Police Department. The Tesla Model Y (Attachment 2) is recommended for Police Department patrol operations and the Model 3 is recommended for administrative and detective use.
A comparison matrix detailing vehicle purchase price, energy, and maintenance costs between a Tesla Model Y and current Ford Police Patrol Vehicle is shown below:
Factors 2022 Tesla Model Y (Electric) Ford PPV (Gas)
Vehicle Cost $68,890 $44,850
Range
(EPA estimate based on
Original Equipment
Manufacturer)
330 miles
(74 kilowatt-hour [kWh] battery)
344 miles
(18.6 gallon tank
capacity)
Cost of Energy/Fuel
(Full Capacity) $7.40 ($0.10 kWh Average) $99.88 ($5.37 per gallon) Annual Cost of
Energy/Fuel
(15,000 mi/year)
$336 $4,355
Annual Cost of
Maintenance/Repair
(Estimated)
$846 $1,653
Cost per Mile
(Estimated) $0.10 $0.40
17 - 4
Police Fleet EV Lease and Southern California Edison Charge Ready Program September 21, 2022
At the conclusion of the proposed sixty (60) month “Open Ended (Equity) Lease,” the Police Department would have three options:
(1) Purchase the vehicles for the remaining residual amount; (2) Extend the lease for an estimated 6-7 additional months to pay down the residual to a zero balance and acquire the vehicles; or
(3) Use the end of term equity in the fleet to enter into a new lease.
The residual amounts of the vehicles at the conclusion of the proposed lease are shown below:
Vehicle Build Per vehicle residual at end of lease
Tesla Model 3 Admin/Detective $3,731.85
Tesla Model 3 Cadet $3,899.70
Tesla Model Y Patrol $7,744.65
Tesla Model Y K9 $7,939.05
The total residual amount at end of lease term of an entire electric fleet as proposed would be $115,127.85.
The most significant cost benefit available to the City is the funding and installation of the necessary transformers, electrical panels, meters, and service wiring/conduits for Level 2 charging infrastructure by Southern California Edison, if the City agrees to operate and maintain the system for ten (10) years, with monthly monitoring. For reference, Level 2 chargers can fully charge an electric vehicle overnight. The value of this SCE-funded design and construction work is estimated around $500,000 to $700,000. The City is responsible for installing the chargers and charger pedestals or wall mounts. This initial investment is estimated at approximately $125,000, and has been appropriated from the General Fund by the City Council in the adoption of the annual Fiscal Year (FY) 2022-2023 Capital Improvement Program (CIP) budget.
Of the proposed thirty-four (34) Level 2 charging ports, thirty (30) are associated with fifteen (15) dual-port chargers, and the remaining four (4) are associated with single port chargers, totaling nineteen (19) chargers. The chargers themselves are expected to cost about $47,500, estimated at $2,500 each. The nineteen (19) chargers require installation and setup at approximately $11,400 ($600 each), totaling $58,900.
However, SCE offers a rebate program for these chargers at $725 per charger port, which would reduce the total cost by $24,650 to $34,250 for the initial purchase and installation.
Each charger port would require network services for monitoring purposes at about $15/month, for a total 10-year cost of $61,200. In addition, maintenance costs on chargers can cost several hundred dollars a year. A recent quotation for an extended charger warranty (8-years) was received on the order of $200 (single port) to $250 (dual port) per year per charger, with a total warranty cost of $36,400. In total, the cost to 17 - 5
Police Fleet EV Lease and Southern California Edison Charge Ready Program September 21, 2022
purchase chargers, including applied rebates, installation, network services for 10- years, and warranties is estimated at $131,850. This value does not include costs to repurchase chargers that must be replaced prior to 10-year program commitment, however, the value also does not include additional revenue to the City from the fourteen (14) charger ports that could utilized by the public, or the revenue from Low Carbon Fuel Standard Credits, described below.
Several parking spaces on the south side of the Police parking lot near the SCE electric meter have been reserved apart from the SCE Charge Ready Level 2 plan, for the installation of additional DCFC/Level 3 electric vehicle chargers to quickly charge patrol vehicles between shifts. Level 3 chargers can fully charge an electric vehicle in as little as 30-60 minutes. A budget of $225,000 has also been appropriated from the General Fund for this work by the City Council in the annual FY 2022-2023 CIP budget, however, it is expected that the installation cost will be around $150,000 or less.
Installation of the electric vehicle chargers will qualify the City for Low Carbon Fuel Standard (LCFS) credits. The LCFS program is a market-based incentive to reduce carbon impact of California transportation fuels, with goals set by the California Air Resource Board (CARB). Carbon-based fuel importers and refiners must offset the impacts of their product by purchasing LCFS credits from generators and consumers of lower carbon-intensity fuels (i.e. electricity, biofuel, renewable diesel, etc.) to meet compliance. One LCFS credit represents one metric ton (MT) of CO2 displaced, and the value of a credit changes daily based on the market. Through an environmental commodity broker, the City can generate credit revenue in this program, where one LCFS credit represents approximately 1,200 kilowatt-hours (kWh) of low carbon electrical energy use, valued between $160 and $200 each. With electric vehicle battery capacities estimated at 50-80 kWh, the credit generation from charging a full electric fleet each day, could yield thousands of dollars in LCFS credits per month in addition to fuel and maintenance cost savings. Overall, combined fuel savings and LCFS credits can save at least $0.40 per mile with a fully electrified police and fire administrative fleet. This is in addition to the cost savings achieved by entering into one or more of the program opportunity agreements, which will provide the City use of equipment costing hundreds of thousands of dollars without the need to purchase the equipment or pay leasing fees.
Electrical Grid Reliability
During times of extreme weather conditions or natural disasters, charging redundancy is an important consideration for reliable and dependable public safety fleet operations.
As a balancing authority, the California Independent System Operator (CAISO) manages the flow of electricity across the high-voltage, long-distance power lines for the grid serving 80% of California, including the cities of South Pasadena and Pasadena. A balancing authority matches generation with load and maintains consistent electric frequency of the grid, even during extreme weather conditions or natural disasters.
Regionally and independent of CAISO, the Los Angeles Department of Water and Power (LADWP) serves as the Balancing Authority for the cities of Glendale and 17 - 6
Police Fleet EV Lease and Southern California Edison Charge Ready Program September 21, 2022
Burbank. The presence of multiple balancing authorities maintains the stability and safety of electrical grids. When outages occur, such as those caused by caused fires or earthquakes, impacts can be isolated and controlled while limiting risk to other parts of the electric grid.
The recently constructed and publicly available twenty-stall (20) Tesla Supercharger location at Glenarm Street and the Pasadena (110) Freeway in the City of Pasadena is ideally suited to meet our charging infrastructure redundancy and supplemental energy needs.
The Glenarm Supercharger site is supplied with electricity from the Pasadena Department of Water & Power, a completely independent provider of electricity from South Pasadena’s provider, Southern California Edison. Availability of electricity from multiple sources to support electric vehicle charging needs minimizes the risk of concurrent outages. Installation of solar panels and battery storage at the City Hall complex, being considered separately, will further enhance charging redundancy.
Tesla owns and operates the largest global fast-charging network of 35,000+ superchargers with regional locations in the cities of Pasadena, Glendale, Burbank and Los Angeles. The closest Tesla v3 Supercharger location with power managed by a balancing authority other than CAISO is located at the 134 and 2 Freeways, in the City of Glendale. This Glendale Tesla Supercharger location at 300 Harvey Drive, has sixteen (16) stalls available 24 hours/day, 7 days/week, up to 250 kilowatts (kW), and is approximately nine (9) miles from South Pasadena City Hall.
Additionally, the City of Pasadena recently tested new equipment as part of their Grid Reliability Project that quickly transfers customer load from CAISO to LADWP to minimize the impact of any load curtailment events (i.e. rotating outages) from CAISO.
The successful test was the first time in over fifty years the LADWP system served electrical load in Pasadena.
Vehicle Selection
Staff is aware and tracking the progress of thirty-five (35) other law enforcement agencies across the United States who have integrated Tesla vehicles into their respective fleets. Those agencies and additional related information can be found in Attachment 8. In addition to the cost benefits realized from converting internal combustion vehicles to electric vehicles, which is discussed above, the Police Department conducted over three years of extensive research and due diligence into electric vehicle manufacturer and related technology, to determine the vehicle selection most beneficial to the City. This evaluation considered organizational safety, advanced safety features, reliability, total cost of ownership, vehicle product maturity, maintenance, energy cost, availability of chargers, on-board technology, City climate goals, related health benefits, and environmental impact over the entire vehicle lifecycle including the manufacturing, use, and end-of-life phases.
Since 2003, Tesla has evolved and emerged as the all-electric EV market leader with the safest, most mature products with advanced technology. Safety, reliability, and 17 - 7
Police Fleet EV Lease and Southern California Edison Charge Ready Program September 21, 2022
performance are critical elements of successful public safety fleet operations. The Tesla Model Y proposed for patrol operations outperforms existing vehicle options, both electric vehicle and gas-powered, in all relevant metrics. In addition, the Tesla Model Y is the safest vehicle ever crash tested by the Insurance Institute for Highway Safety (IIHS), and received a 5-star safety rating in all categories and sub-categories by the National Highway Safety Administration (NHTSA). Active safety features that come standard in all Tesla vehicles and further enhance safety include Automatic Emergency Braking, Forward Collision Warning, Side Collision Warning, Obstacle Aware Acceleration, Blind Spot Monitoring, Lane Departure Avoidance, and Emergency Lane Departure Avoidance.
Legacy internal combustion engines automakers have been plagued by recent significant recalls and performance issues by General Motors and Ford related to the Chevy Bolt and Mach-e, respectively. These automakers have struggled in the transition to the manufacture of all-electric vehicles at scale and have yet to demonstrate mature, reliable products in the electric vehicle space. As a result of staff’s extensive research of all-electric product offerings from existing legacy auto manufacturers, which include the Ford Mach-e, Volkswagen ID.4, Hyundai Ioniq 5, and the KIA EV 6, none were found to be immediately suitable for the Police Department’s needs as Tesla’s Model Y and Model 3.
SCE Charge Ready Program to install Level 2 Chargers
The Climate Action Plan identifies electric vehicle conversion initiatives as ‘high cost’ goals due to the significant infrastructure investments required. Therefore, in 2021, City staff began pursuing project and funding opportunities to implement electrification infrastructure at City Hall, including planning for electric vehicle chargers, photovoltaic solar panels, and battery backup systems. In this effort, City staff worked with Southern California Edison (SCE) and to identify assistance programs to implement electrical infrastructure at City Hall at relatively low cost and substantial benefit to the City.
The California Public Utilities Commission (CPUC) issued a decision adopted on September 2, 2020 approving SCE’s Charge Ready program. The decision approved the 4-year program and $436 million in funding, comprised of approximately $417.5 million for charging infrastructure, $14.5 million for marketing, education, and outreach, and $4.3 million for an evaluation of the Charge Ready infrastructure and market education programs. The Charge Ready program supports both local air-quality requirements and California greenhouse gas (GHG) reduction goals, including a 40% reduction of GHG emissions from 1990 levels by 2030 and an 80% reduction by 2050.
The program provides financial and technical assistance to expand the charging infrastructure available for electric vehicles, where SCE non-residential customers apply for EV charger installation assistance for specific sites with SCE accounts. SCE is generally responsible for designing and installing the supporting infrastructure (transformers, service wiring/conduits, and meters), and participants are generally responsible for the selection, purchase, and installation of the charging equipment.
However, the City has selected a ‘Make-Ready SCE-Built’ program option where SCE, at their cost, installs the customer-side equipment including charger electrical panels, 17 - 8
Police Fleet EV Lease and Southern California Edison Charge Ready Program September 21, 2022
conduits, and wires, in lieu of the City procuring its own contractor to install equipment.
At present, the program does not support the installation of DC Fast Charging (DCFC) or Level 3 chargers, and only Level 1 or Level 2 chargers are being considered.
SCE evaluates each Charge Ready applicant site for compliance with its program criteria, including proximity to transformers, adequate space for installation, public utilization, American Disabilities Act (ADA) access requirements, overall project complexity, cost thresholds, and other goals established by the CPUC. The City Hall parking lots with a proposed collective count of thirty-six (36) Level 2 charger ports, were selected as a viable candidate. This was later updated to thirty-four (34) Level 2 charger ports, after a Direct Current Fast Charging (DCFC)/Level 3 electric vehicle charger co-funded by the City and South Coast Air Quality Management District (SCAQMD) Mobile Source Review Committee (MSRC), was installed in the Fire Department parking lot. One basis for this selection was the joint-municipal utilization by police and fire departments, and the availability of the City staff parking lot for public opportunity charging.
The subject parking area behind City Hall is divided into three sections: the Police Department lot to the west, the City staff lot to the east, and the Fire Department lot between the east and west parking lots. The City staff lot will require ADA improvements that will be included in the design and construction performed by SCE.
The Police and Fire parking lots will not require ADA improvements, as these areas are not accessible to the general public, and it is assumed that parking spots would be assigned to specific staff members. The conceptual installation plan for all three lots is included as Attachment 6.
Thirty-four (34) electric vehicle chargers would be installed across the three lots, where thirty-four is the minimum number required in order for this site to qualify for Charge Ready program acceptance. The sixteen (16) chargers in the Police Department lot would support the department’s transition of twenty (20) internal combustion engine vehicles to battery electric vehicles, while the four (4) chargers in the Fire Department lot would support that department’s transition of its two (2) administrative internal combustion engine vehicles, and support other City staff electric vehicles. Fourteen (14) chargers would be installed in the City staff parking lot, and primarily used by City staff during normal business hours, but also available for paid-access public use during all other times.
SCE has prepared a participation agreement for the City to review (Attachment 4). If approved, the City must procure the necessary chargers and provide proof of procurement to SCE. SCE will then develop the preliminary design and site plans for the project, which the City must accept – then permitting, design, and construction may began. To participate, the City must grant SCE an easement, a sample of which is included as Attachment 5, and install the charging equipment. The easement will be brought back to Council at a later date. Once the systems are installed as proposed, the City would then request applicable incentive rebates offered by SCE. From agreement execution, the process is expected to take about 9 months. 17 - 9
Police Fleet EV Lease and Southern California Edison Charge Ready Program September 21, 2022
Additional City Installation of Level 3 Chargers
Staff also recommend utilization of General Fund Capital Improvement Program (CIP) designated funds to develop plans to install Level 3 electric vehicle chargers in the City Hall Police Department parking lot to support Public Safety fleet electrification. For reference, Level 3 chargers can fully charge an electric vehicle in as little as 30-60 minutes. Full electrification of the Police fleet would require both Level 3 and Level 2 chargers. The selection of a proposed location for Level 3 chargers within the Police Department parking lot was facilitated by proximity to the station, current use as a patrol set-up area, and proximity to the SCE power supply switchboard and meter for City Hall.
The City Hall meter is rated to provide 1000 amperes of electricity, and it is expected that the Level 3 chargers may be able to draw on this supply. However, much of the City Hall electrical equipment is located in the basement of the facility, underneath the central courtyard, and therefore Level 3 charger installation will likely require additional distribution hardware located in the Police Department parking lot, reducing parking space. An unleaded gasoline underground storage tank, which is currently in use, is also located in the Police Department parking lot. Pursuant to the direction provide by the City Council, City staff are prepared to move forward contracting a design professional to develop a plan for Level 3 charger installation at this location.
Climate Impacts
In contemplating the replacement strategy for fleet vehicles, it is appropriate to consider the City’s sustainable transportation and electrification objectives outlined in the City’s Climate Action Plan (CAP), adopted in December 2020. These goals include:
• A municipal-sector goal (CAP M.2) to electrify the municipal fleet and mobile equipment and install electric vehicle charging stations at City buildings; • A transportation-sector goal (CAP T.1) to increase zero-emission vehicle and equipment to 13% by 2030 and 25% by 2045.
Research conducted by the South Pasadena Police Department on United States Environmental Protection Agency (EPA) statistics, shows that each gallon of gasoline burned produces 8,887 grams or 19.6 pounds of CO2. On an annual basis, a gaspowered Ford Patrol Vehicle (FPV) is responsible for producing 42,198 pounds, or
19.14 metric tons, of CO2 emissions. Based on EPA data, the City estimates that existing administrative vehicles in the police and fire department fleets produce approximately 4.6 metric tons of CO2 emissions annually. As the Police Department plans to replace 23 internal combustion engine vehicles with 20 battery electric vehicles, the City expects to realize an estimated reduction of approximately 1,850 metric tons of CO2 projected by 2030. These 1,850 metric tons of CO2 represents 10% of the City’s overall 2030 GHG emissions reduction target of 18,578 metric tons of CO2, and far exceed the CAP’s ‘M.2’ greenhouse gas emissions reduction goal of 1,827 metric tons of CO2e (carbon dioxide equivalents).
17 - 10
Police Fleet EV Lease and Southern California Edison Charge Ready Program September 21, 2022
Facility Concerns
The aforementioned installations will be constructed on City owned property at or near City Hall. Based on the findings of a facility condition assessment conducted in 2017, City Hall, Council Chambers, and the Police and Fire Departments each required significant capital needs for repairs: $440,000 recommended immediately, and an additional $315,000 over ten years (in 2017 dollars).
This fiscal year, the City is planning a comprehensive condition, safety, space planning, and functional use assessment of facilities, including the City Hall complex, to develop short-and-long-term facility repair and replacement plans. It is expected that the findings of this assessment may yield significant repair needs for City Hall, in addition to the 2017 findings, if not full replacement of the facility. It should be noted that the SCE Charge Ready program agreement contains requirements that impose a financial liability on the City, i.e. clawback costs, if the agreed period of use for the new infrastructure is not realized. Given the infrastructure investment considered in this report, it is appropriate to also consider the future facility improvements at City Hall, and the short-and-long term projected energy savings. In one view, the future facility infrastructure needs at City Hall may warrant deferring one or more of these projects, until an assessment and/or other projects can be completed. In another view, the immediate public safety vehicle needs, the energy cost savings realized in a short period of time, the current availability of the SC Charge Ready program, and the achievement of Climate Action Plan goals, may warrant proceeding with the project now, and amortizing the potential clawback costs into future facility budget.
Commission Review and Recommendation
On December 6, 2021, the Natural Resources and Environmental Commission, and on December 13, 2021, the Public Safety Commission, both recommended to the City Council that the Police Department transition their entire vehicle fleet, and the Fire Department transition their administrative vehicle fleet, to battery electric vehicles.
These recommendations were made in concert with the Commission’s consideration of the electric vehicle-charging infrastructure necessary to support this transition through the Charge Ready program. Staff continues to explore appropriate vehicles for the Fire Department’s needs, and will return to City Council at a later date.
Alternatives Considered
The City Council could make a finding that it is more appropriate to incrementally implement the transition of the Police Department fleet to electric vehicles. In doing so, the Police Department would maintain existing gasoline infrastructure in parallel with new charging infrastructure. Other options and alternatives for consideration could be:
(1) Lease twenty (20) electric vehicles over a two-year period. Transition ten (10) vehicles in the Police Department’s fleet to electric vehicles in the first year while retaining half of our existing gas-powered fleet. In the second year, transition the remaining ten (10) vehicles to electric. An incremental transition in this manner 17 - 11
Police Fleet EV Lease and Southern California Edison Charge Ready Program September 21, 2022
will give the opportunity to assess, evaluate, and report back to the City Council on issues such as performance, operational issues, and feedback on use. (2) Lease twenty (20) electric vehicles over a three-year period. Transition ten (10) vehicles in the Police Department’s fleet to electric in the first year, then transition an additional five (5) vehicles per year in years two and three. Transitioning over a three-year period provides further opportunities for assessment, evaluation, and possibly additional viable electric vehicle options maturing in the marketplace.
Cost savings and climate benefits inherent to electric vehicles (e.g. maintenance, fuel, eliminated GHG emissions, etc.) would be reduced proportionally to the number of proposed electric vehicles removed or delayed from the proposal recommendation.
Fiscal Impact
The SCE Charge Ready program requires the City to purchase chargers, operate and maintain them for ten (10) years, as well as provide networking services for monitoring.
City staff expect the initial charger equipment, installation, and ten-year network services procurement to cost approximately $125,000, after equipment rebates are applied. However, an overall cost savings is expected through energy conservation in the application of the project. Level 3 charger installations, if they proceed, are expected to cost approximately $150,000. A budget of $350,000 has also been appropriated from the General Fund by the City Council in the annual FY 2022-2023 Capital Improvement Program (CIP) budget for both of these efforts into CIP Account No. 101-9000-9188-9188-000.
On June 10, 2022, City staff submitted a grant application to the South Coast Air Quality Management District (SCAQMD) Mobile Source Review Committee (MSRC) Transformative Transportation Strategies & Mobility Solutions Program. The grant program awards funding to innovative and transformative transportation and mobility concepts that not only are effective in reducing air pollution and congestion, but also serve as a reproducible model for other agencies to follow. The City requested $1,000,000 in grant funding to both finance the infrastructure installations identified in this report, and support the lease/purchase of public safety fleet vehicles. The City awaits the grant funding award decision.
The total amount of this agreement with EFM as proposed over sixty (60) months is $1,904,372, which includes $1,520,621 for vehicle lease financing ($304,124 per year for 5 years) and a one-time down payment of $383,752. The one-time down payment would become due when the vehicle order is placed. The annual lease payment would become due upon vehicle delivery. All related costs for vehicle up-fitting are included in the annual lease payment.
The annual lease payment of $304,124 will be funded from Police Department Facilities and Maintenance Equipment Vehicle Lease Account No. 105-4010-4011-8101-000. In the Fiscal Year 2021-2022 Budget, $130,000 was appropriated to this account and was 17 - 12
Police Fleet EV Lease and Southern California Edison Charge Ready Program September 21, 2022
not used. In the Fiscal Year 2022-2023 Budget, $143,000 was additionally appropriated for a total value of $273,000, which was the anticipated cost of the annual lease. Staff is requesting the $130,000 from the previous fiscal year budget be carried over to the current fiscal year budget, with an additional appropriation of $31,124 necessary to cover a balance deficit of the first year lease, for a total amount of $304,124. The onetime down payment amount of $383,752 is proposed to be funded by an appropriation from undesignated general fund reserves. The annual lease payment and one-time down payment have been offset by the equity in the existing fleet proposed to be surplused through EFM pursuant to the Master Lease Agreement. The estimated value of the surplus vehicles is $139,400.
The current fiscal year 2022-23 budget for the Police Department fleet is $343,000; $143,000 for Vehicle Leases (105-4010-4011-8101), $80,000 for Vehicle Maintenance (101-4010-4011-8100) and $120,000 for Fuel (101-4011-8105).
Environmental Analysis
Installation of Level 2 and Level 3 electric vehicle chargers in the Police Department and Fire Department Parking Lots, where patrol and City vehicles are already staged or fueled, and Level 2 electric vehicle chargers in the City staff parking lot, where vehicles are already parked, does not expand current use. Similarly, the leasing of vehicles to replace existing vehicles does not expand current use. Therefore, public safety vehicle leasing and charger installations are exempt from the California Environmental Quality Act (CEQA) analysis based on State CEQA Guidelines Section requirements under Section 21084 of the Public Resources Code, in accordance with Article 19, Section 15301, Class (1) "existing facilities."
Public Notification of Agenda Item
The public was made aware that this item was to be considered this evening by virtue of its inclusion on the legally publicly noticed agenda, posting of the same agenda and reports on the City’s website.
Attachments:
1. July 20, 2022 City Council Meeting Staff Report: Police Electric Vehicle Lease
2. July 20, 2022 City Council Meeting Staff Report: City Hall Electrification Projects
3. Enterprise Lease Management Master Equity Lease Agreement
4. SCE Charge Ready Program Charging Infrastructure and Rebate Participation Agreement
5. SCE Charge Ready Program Sample Easement
6. SCE Charge Ready Program South Pasadena City Hall Conceptual Plan
7. South Pasadena Police Department Fleet Inventory (2022)
8. U.S. Law Enforcement Tesla Migration
9. Enterprise Proposals
10.Enterprise Quotes
11.Estimated Equity Lease Costs
17 - 13
ATTACHMENT 1
July 20, 2022 City Council Meeting Staff Report:
Police Electric Vehicle Lease
17 - 14
27 27 - 1
City Council
Agenda Report
DATE: July 20, 2022
FROM: Armine Chaparyan, City Manager .fs-u
PREPARED BY: Brian Solinsky, Police Chief
Shannon Robledo, Police Lieutenant
Tony Abdalla, Police Sergeant
ITEM NO. --
SUBJECT: Provide Direction Regarding a Proposed Master Lease Agreement Between the City of South Pasadena and
Enterprise Fleet Management Inc. for Police Department Fleet Transition to Battery Electric Vehicles
Recommendations
It is recommended that the City Council:
1. Provide direction regarding a Proposed Master Lease Equity Agreement between the City of South Pasadena and Enterprise Fleet Management Inc.;
2. Provide direction regarding appropriation of $304,124 for the leasing of ten (10) new Tesla Model Y and ten (10) Tesla Model 3 vehicles from Enterprise Fleet Management Inc.;
3. Provide direction regarding appropriation of $383,752 for a one-time down payment for twenty (20) vehicles from Enterprise Fleet Management Inc., and a 15% project contingency for unforeseen expenses, including inflationary cost pressures; and
4. Authorize the City Manager to execute all related documents on behalf of the City.
Background
In an effort to reduce costs, improve efficiencies, and ensure the City advances the goals and objectives in the 2020 Climate Action Plan (CAP) and City's General Plan, the Police Department is proposing to transition its current internal combustion engine (ICE) vehicle fleet to battery electric vehicles (BEVs). It is well established that BEVs substantially reduce energy and maintenance costs of fleet operations while simultaneously eliminating Greenhouse Gas (GHG) emissions. Transitioning to an allBEV fleet now will significantly advance the City towards the primary goal of achieving GHG emissions targets by 2030. This will also help the City potentially reach carbon neutrality by 2045, as detailed in the CAP adopted by the City Council on December 16, 2020. The resulting reduction in GHG related to this program is measurable, 17 - 15
Master Lease Agreement for Electrified Police Fleet
July 20, 2022
quantifiable, and can be tracked through CAPDash, a web-based dashboard providing transparency by communicating implementation of CAP.
Analysis
The South Pasadena Police Department currently owns and maintains twenty-three (23) Internal Combustion Engine (ICE) vehicles to provide public safety services to the community. The Police Department’s aging fleet is used extensively in response to public safety operations and is experiencing increasing maintenance issues, impacting the Department. Below is a snapshot of the age of the existing fleet.
Vehicle Year Quantity % of Fleet Age (Years) 100,000+
Miles
2001 2 9 21 1
2002-2012 8 35 20-10 1
2014-2017 9 39 8-5 2
2019 > 4 17 3 <
A utility pickup truck is still identified as a need by Police Department staff, but is not included in the proposed replacement, due to the fact that no viable BEV option is currently available for purchase or lease. A needs assessment determined the need to replace twenty (20) vehicles in the Police Department’s fleet to provide for safe and efficient operations while mitigating repair, maintenance, and rising fuel costs. If approved, the Police Department will replace twenty-one (21) of the twenty-three (23) vehicles listed in Table A with twenty (20) BEVs identified in Table B.
Table A (Existing Fleet)
Division Vehicle Make Vehicle Model Vehicle Year
Administration Toyota Highlander 2015
Administration Ford Explorer 2017
Administration Ford Fusion 2019
Patrol Dodge Charger 2007
Patrol Ford Crown Victoria 2011
Patrol Ford F250 2001
Patrol Ford Explorer 2014
Patrol Ford Explorer 2014
Patrol Ford Explorer 2014
Patrol Chevy Tahoe 2012
Patrol Ford Explorer 2014
Patrol Ford Explorer 2017
Patrol Ford Explorer 2017
Patrol Ford Explorer 2017
Patrol Dodge Charger 2019
Patrol Ford Explorer 2019
Patrol Ford Explorer 2021
17 27 - 2 - 16
Master Lease Agreement for Electrified Police Fleet
July 20, 2022
Detectives Ford Crown Victoria 2002
Detectives Ford Crown Victoria 2002
Detectives Ford Crown Victoria 2003
Detectives Ford Crown Victoria 2005
Detectives Ford Crown Victoria 2011
Pool Ford Crown Victoria 2001
Table B (Proposed Replacement Fleet)
No. of
Vehicles
Vehicle Make Vehicle Model Vehicle Year Division
10 Tesla Model Y 2022 Patrol
5 Tesla Model 3 2022 Detectives
4 Tesla Model 3 2022 Administration
1 Tesla Model 3 2022 Pool
Police Department staff has conducted over three years of extensive research and due diligence into BEVs, manufacturers, and related technology. Staff’s research focused on several areas identified as crucial to the needs of the Department and to the longterm success of a BEV fleet, which include, but are not limited:
• Safety (organizational safety ratings and advanced safety features) • Reliability
• Total Cost of Ownership
• BEV Product Maturity
• Maintenance
• Energy Expense
• Charging
• Technology
• Environmental Impact Over the Entire Vehicle Lifecycle o Manufacturing Phase
o Use Phase
o End-of-Life Phase
• Realizing City Climate Goals
• Related Health Benefits
The Department’s research identified Tesla, Inc. as the clear market-leading BEV manufacturer that meets or exceeds Department needs in the areas listed above. The Police Department anticipates returning to the City Council within the next 12-18 months with a BEV utility truck option for lease consideration through Enterprise Fleet Management, Inc. (EFM), should BEV manufacturers bring to market a utility pickup truck at a reasonable price through scaled production.
17 27 - 3 - 17
Master Lease Agreement for Electrified Police Fleet
July 20, 2022
Police Department staff also conducted comparison research to identify other law enforcement agencies where Tesla BEVs are currently deployed. Staff has identified 30 law enforcement agencies across the United States that have integrated Tesla BEVs into their fleet over the past nine months.
The agency with the most comprehensive research and similar needs to the South Pasadena Police Department is the Fremont Police Department in Northern California.
The Fremont Police Department conducted a lifecycle comparison study of 90,000 miles over 5 years (Attachment 1) between a gas Ford Police Pursuit Vehicle (PPV) and a 2014 Tesla Model S85 pilot vehicle. According to their study, the Fremont PD is expected to realize a $27,977 savings in energy/fuel costs, $11,677 savings in maintenance costs and 100% reduction or 210,994 lbs of CO2 per vehicle over a fiveyear period based upon data compiled during their one-year pilot study. With a recent City purchase of gasoline at $5.37 per gallon compared with $3.00 per gallon in the Fremont PD study, the South Pasadena Police Department is anticipating energy cost savings approximately 79% higher than those realized by Fremont PD. Staff expects maintenance costs and GHG emissions reduction to be consistent with that projected by Fremont PD.
A comparison matrix detailing vehicle purchase price, energy, and maintenance costs between a Tesla Model Y and Ford Police Patrol Vehicle (currently in our fleet) can be found in Table C:
Table C
Factors 2022 Tesla Model Y Gas Ford PPV
Vehicle Cost $62,990 $44,850
OEM Range (EPA) 330 miles (74kWh battery) 344 miles (18.6 gal tank capacity)
Cost of Energy $.10 kWh average $5.37 per gal
Cost for Capacity Fill $7.40 $99.88
Annual Energy/Fuel
Expense (15,000 mi.
per year)
$336 $4,355
Est. Annual
Maintenance/Repair
Cost
$846 $1,653
Avg. Annual CO2
Emissions
0 lbs. 42,198 lbs.
Based on staff’s research, the cost to operate a gas Ford Police Pursuit Vehicle is approximately $0.40 per mile. In comparison, the projected cost per mile to operate a Tesla Model Y is approximately $0.10.
17 27 - 4 - 18
Master Lease Agreement for Electrified Police Fleet
July 20, 2022
Tesla BEV products have matured to the point where they now meet or exceed the operational needs of the Police Department. Staff is proposing to transition the Police Department’s entire fleet to Tesla BEVs pursuant to the adopted 2020 CAP through a vehicle-leasing program. The Tesla Model Y (Attachment 2) would be recommended for Police Department patrol operations and the Model 3 would be recommended for administrative and Detective use.
Upon approval of the agreement, vehicles will be ordered with an estimated delivery time of 6-12 months, depending on the model. Estimated up-fitting time for Police Vehicles would be an additional 2-3 months.
Environmental Impact
According to the United States Environmental Protection Agency (EPA), each gallon of gasoline burned produces 8,887 grams or 19.6 pounds of CO21. On an annual basis, a gas-powered Ford Patrol Vehicle (FPV) is responsible for producing approximately 42,198 pounds, or 19.14 metric tons, of CO2 emissions (Attachment 2). Using these calculations, current administrative vehicles in the Police Department fleet produce approximately 4.6 metric tons of CO2 emissions annually.
Staff’s proposal includes a reduction of the Police Department fleet from the current twenty-three (23) vehicles to twenty (20) BEVs, while possibly retaining one of the newer ICE vehicles as backup for emergency use. This would lead to a projected reduction of approximately 1,850 metric tons of CO2 by 2030. These 1,850 metric tons of CO2 represent 10% of the City’s overall 2030 GHG emissions reduction target of 18,578 metric tons of CO2e to meet state goals (Attachment 3). The M.2 Play GHG Emissions Reduction Contribution as detailed in the CAP through the electrification of the municipal fleet and mobile equipment is 23 metric tons by 2030. If implemented as proposed, the conversion of the Police Department fleet to BEVs is estimated to exceed the CAP’s M.2 GHG emissions reduction goal by 1,827 metric tons by 2030.
Leasing
Police Department staff has been working with Enterprise Fleet Management Inc. (EFM) through the Sourcewell cooperative purchasing program to determine the viability of the City entering into a vehicle lease program. Sourcewell is a national program whose memberships include government and other entities in a number of states, including California. This cooperative purchasing program enables member entities to purchase on an “as needed” basis from competitively awarded contracts with high-performance vendors. EFM has secured a contract (Attachment 6) with Sourcewell through a competitive process for fleet leasing and management services under Sourcewell Contract No. 060618-EFM.
1 https://www.epa.gov/greenvehicles/greenhouse-gas-emissions-typical-passenger-vehicle 17 27 - 5 - 19
Master Lease Agreement for Electrified Police Fleet
July 20, 2022
Police Department staff seeks direction regarding the implementation of a BEV fleet transition commensurate with the scale of the charging infrastructure required to support it. At this time, based upon the scope of the proposed charging infrastructure project by the Public Works Department, a transition to an all-BEV fleet is viable. An all-BEV fleet transition will require the procurement of twenty (20) replacement vehicles through the EFM Master Lease Equity Agreement. Advantages of using a vehicle leasing program include, but are not limited to, the following:
• Maximizes cash flow opportunities by creating an on-going consistent annual payment for fleet vehicles as opposed to funding the entire cost of vehicles up front
• Increases employee safety by enabling the City to replace outdated vehicles sooner, consistent with vehicle replacement industry standards • Significantly reduces vehicle preventative maintenance and fuel/energy expenses by converting immediately and entirely to an all-electric fleet Fleet lease cycles for most vehicles are typically sixty (60) months. Using this bid to establish a vehicle lease program with EFM will provide a consistent annual lease payment and substantially reduce or eliminate preventative maintenance expenses and related downtime.
The proposed lease for these vehicles will be an “Open Ended (Equity) Lease”. At the end of the lease cycle, the City will have the option to continue to lease the vehicles (a $400 service charge will be due at the end of the sixty (60) month lease per vehicle), or exchange the equity in the vehicle(s) for a new replacement in a renewed lease, likely at a lower cost due to equity transfer. EFM does not offer a maintenance program for BEVs, as there is no preventative maintenance required for the proposed all-electric vehicles. The Police Department intends to maintain a greatly reduced vehicle maintenance budget to provide for traffic collision repair and consumables such as tires, windshield wiper fluid, and brakes.
Based on the EFM quote, the total annual cost to lease the twenty (20) vehicles referenced above will be $304,124 per year (Attachment 7). Over a 10-year period, cost savings is estimated to be $564,426, or an approximate average sustainable savings of $56,443 per year. Vehicle leasing costs will be budgeted annually on an ongoing basis from the appropriate fund(s). The City’s current insurance will cover the leased vehicle at no additional cost.
Why Tesla?
Safety, reliability, and performance are critical elements of successful public safety fleet operations. Legacy ICE automakers have been plagued by recent significant recalls and performance issues by General Motors and Ford related to the Chevy Bolt and Mach-e, respectively. These automakers have struggled in the transition to the 17 27 - 6 - 20
Master Lease Agreement for Electrified Police Fleet
July 20, 2022
manufacture of all-electric vehicles at scale and have yet to demonstrate mature, reliable products in the BEV space. As a result of staff’s extensive research of allelectric product offerings from existing legacy auto manufacturers, which include the Ford Mach-e, Volkswagen ID.4, Hyundai Ioniq 5, and the KIA EV 6, none were found to be immediately suitable for the Police Department’s needs.
As an organization, Tesla was built to address the negative impacts of climate change.
Founded in 2003, Tesla’s mission is to “accelerate the world’s transition to sustainable energy.” Over the course of the next 19 years, Tesla has evolved and emerged as the all-electric EV market leader with the safest, most mature products with advanced technology. Tesla’s corporate philosophy aligns closely with the City’s CAP and related goals.
In addition to the local benefits of this proposed adoption, it is also important to Police Department staff that a transition to BEVs results in meaningful, positive environmental impact at the national, and potentially global level. In March 2022, Tesla released their latest 2021 Impact Report (Attachment 4). The Impact Report comprehensively addresses Tesla’s global environmental impact from supply chain, through manufacturing, vehicle use, and vehicle end-of-life. The report demonstrated how Tesla is leading the EV automobile industry in minimizing negative climate and social impacts across the entire EV lifecycle.
Charging Infrastructure
Sufficient charging infrastructure to support an all-BEV fleet is a critical component to the success of this program and would serve as a significant step towards the long-term goal of a sustainable, carbon-neutral energy future. Working in partnership with Southern California Edison (SCE) and the City’s Public Works and Fire Departments, City staff has re-imagined the fleet parking lot areas to support the installation of chargers, solar panels and battery storage. The results and recommendations from these efforts will be brought before the City Council in a separate but complementary capital improvement project, and will require a significant investment as detailed in the CAP.
Charging infrastructure redundancy is also an important consideration for public safety entities in the event of power grid disruptions. Tesla has built a growing network of Superchargers to support the charging needs of their products. With more than 35,000 Superchargers, Tesla owns and operates the largest global fast-charging network in the world with reported 99.96% uptime as detailed in the 2021 Tesla Impact Report (Attachment 4). The recently constructed and publicly available twenty (20) stall Tesla Supercharger location at Glenarm Street and the Pasadena 110 Freeway helps meet the City’s charging infrastructure redundancy and supplemental energy needs.
The Glenarm Supercharger site is supplied with electricity from the Pasadena Department of Water & Power, a completely independent provider of electricity. The City of South Pasadena currently sources electricity from Southern California Edison 17 27 - 7 - 21
Master Lease Agreement for Electrified Police Fleet
July 20, 2022
(SCE), through which the City is a member of the Los Angeles County Clean Power Alliance, which provides 100% clean and renewable energy. Availability of electricity from multiple sources to support the City’s BEV charging needs minimizes the risk of concurrent outages. Installation of chargers, solar panels and battery storage at the City Hall complex will further enhance that safety net and put the City on the road to sustainable energy independence for the Police Department’s fleet operations.
Additionally, there are a number of other Tesla Supercharger locations in and around our region, further mitigating power grid disruption risk.
Alternatives Considered
The City Council may make a finding that it is more appropriate to incrementally implement the transition of the Police Department fleet to BEVs with a corresponding scaled-down investment in charging infrastructure. In doing so, the Police Department would be required to maintain existing gasoline infrastructure in parallel with new charging infrastructure. Additionally, cost savings and climate benefits inherent to BEVs (e.g. maintenance, fuel, eliminated GHG emissions, etc.) would be reduced proportionally to the number of proposed BEVs removed from the proposal. Other options and alternatives for consideration could be:
1. Transition half of the Police Department’s fleet to BEVs. A transition of half the fleet to BEVs would result in approximately half of the proposed project expenses; however, would also require maintaining existing ICE infrastructure, in addition to related fuel and maintenance expenses.
2. Purchase an immediate five (5) Ford Police Interceptor Explorer hybrids and a future three (3) on an annual basis as the minimum necessary to maintain a sustainable fleet. The Police Department would require an immediate five vehicles due to the fact that only one vehicle has been purchased over approximately the last three years. The current cost of one vehicle, including Police up-fitting is roughly $63,063.
Fiscal Impact
The total amount of this agreement with EFM over sixty (60) months is $1,904,372, which includes $1,520,620 for vehicle lease financing and a one-time down payment of $383,752. The one-time down payment would become due when the vehicle order is placed. The annual lease payment would become due upon vehicle delivery. All related costs for vehicle up-fitting are included in the annual lease payment.
The annual lease payment of $304,124 will be funded from account #105-4010-4011- 8101 Vehicle Lease, with an additional appropriation of $31,124 necessary to cover a balance deficit. The one-time down payment amount of $383,752 is proposed to be funded by an appropriation from undesignated general fund reserves. The annual lease payment and one-time down payment have been offset by the equity in the existing fleet proposed to be surplused through EFM pursuant to the Master Lease Agreement. The estimated value of the surplus vehicles is $139,400.
17 27 - 8 - 22
Master Lease Agreement for Electrified Police Fleet
July 20, 2022
The current fiscal year 2022-23 budget for the Police Department fleet is $343,000; $143,000 for Vehicle Leases (105-4010-4011-8101), $80,000 for Vehicle Maintenance (101-4010-4011-8100) and $120,000 for Fuel (101-4011-8105).
Commission Review and Recommendation
On December 6 and December 13, 2021 respectively, the Natural Resources and Environmental Commission and the Public Safety Commission reviewed the subject matter. Each Commission made a recommendation to the City Council that the Police Department transition their entire vehicle fleet to BEVs. This recommendation was made in concert with the Commission’s consideration of the electric vehicle charging infrastructure necessary to support this transition through the Southern California Edison (SCE) Charge Ready program.
Attachments:
1. Fremont Police Department Electric Patrol Vehicle Pilot Program Outcome Report
2. Fremont Police Department Tesla Model Y Media Kit
3. City of South Pasadena 2020 Climate Action Plan
4. Tesla 2021 Impact Report
5. City of South Pasadena General Plan
6. Enterprise Lease Management Master Lease Agreement
7. Estimated Equity Lease Costs
8. Enterprise Proposals
17 27 - 9 - 23
ATTACHMENT 2
July 20, 2022 City Council Meeting Staff Report:
City Hall Electrification Projects
17 - 24
City Council
Agenda Report
DATE: July 20, 2022
FROM: Armine Chaparyan, City Manager _F'(G'
PREPARED BY: H. Ted Gerber, Director of Public Works
ITEM NO.
SUBJECT: Discussion and Direction on City Hall Electrification & Related Improvement Projects
Recommendation
It is recommended that the City Council:
1. Provide direction on the City Council's interest in participating in the Southern California Edison (SCE) Charge Ready Program, including consideration of a 10- year commitment to share the cost of installing Level 2 electric vehicle chargers at City Hall parking lots (police department, fire department, and employee parking lots) to support Public Safety fleet electrification;
2. Provide direction to City staff on developing plans to install Level 3 electric vehicle chargers in the City Hall Police Department parking lot to support Public Safety fleet electrification;
3. Provide direction on the City Council's interest in participating in the Clean Power Alliance (CPA) Power Ready Program, including consideration of up to a 20-year commitment, to facilitate installation of solar panels at the Hope/Mound City parking lot and battery backup systems at City Hall to support building electrification;
4. Provide direction on the City's participation in the Metropolitan Water District (MWD) Stormwater for Direct Use Pilot Program, including cost sharing the installation of stormwater capture and reuse equipment in and around the City Hall parking lots, to support related sustainability electrification improvements;
5. Set a date for a public hearing to adopt contracts for energy conservation/alternative energy supply, pursuant to California Government Code Section 4217.10.
Background
The City's sustainable transportation and electrification objectives outlined in the City's Climate Action Plan (CAP), adopted in December 2020. These goals include:
• A municipal-sector goal (CAP M.2) to electrify the municipal fleet and mobile equipment and install electric vehicle charging stations at City buildings; • A transportation-sector goal (CAP T.1) to increase zero-emission vehicle and equipment to 13% by 2030 and 25% by 2045.
26 17 26 - 1 - 25
City Hall Electrification & Related Improvement Projects July 20, 2022
• An energy-sector goal (CAP E.4) to develop and promote reduced reliance on natural gas through increased clean energy systems that build off of renewable energy development, production, and storage.
The CAP also identifies these initiatives as ‘high cost’ goals due to the significant infrastructure investments required. Therefore, in 2021, City staff began pursuing project and funding opportunities to implement electrification infrastructure at City Hall, including planning for electric vehicle chargers, photovoltaic solar panels, and battery backup systems. In this effort, City staff worked with Southern California Edison (SCE) and the Clean Power Alliance (CPA) to identify assistance programs to implement electrical infrastructure at City Hall at relatively low cost and substantial benefit to the City. The City also identified an infrastructure-funding program from Metropolitan Water District (MWD) to implement stormwater capture and reuse improvements at City Hall, corresponding to the identified electrification updates.
This item seeks City Council discussion and direction on policy matters related to converting public safety fleet vehicles from gas-powered to electric-powered, and constructing the infrastructure necessary to support this conversion. As South Pasadena’s public safety fleet vehicles age beyond their useful service life, there is an immediate need to replace Police Department patrol, detective, and pool vehicles, and Fire Department administrative vehicles. This report focuses on the infrastructure component of this discussion, and the vehicle component is presented in a separate report.
Overview
A description of four program opportunities related to electrification and related improvement opportunities that could be utilized individually or in combination, are listed below.
1. SCE Charge Ready Program (Level 2 Chargers): An opportunity to install thirtyfour (34) Level 2 electric vehicle chargers through the SCE Charge Ready Program in the three parking lots behind City Hall: the Police Department, Fire Department, and City Staff parking lots. For reference, Level 2 chargers can fully charge an electric vehicle overnight. If the Council decides to move forward with this opportunity at a future public hearing, the SCE Charge Ready program requires the City to enter into a 10-year agreement, where the City procures, installs, and maintains the chargers, while SCE funds and installs the electrical infrastructure (transformers, service wiring/conduits, panels and wiring, and meters) to support the chargers. The infrastructure would be owned and maintained by SCE, and the City would need to grant SCE an easement through the parking lot areas. In order to meet SCE’s minimum cost-benefit of electrical support infrastructure, thirty-four (34) is the minimum number of chargers required for this installation. The chargers must be powered from SCE’s electrical system (not solar or battery) and must be selected from SCE’s approved product list. The SCE agreement (Attachment 1) includes certain 17 26 - 2 - 26
City Hall Electrification & Related Improvement Projects July 20, 2022
indemnification, liability, early termination costs, demand response, data collection/reporting, and network service provider requirements. The sample easement is included as Attachment 2, and the conceptual installation plan is included as Attachment 3.
2. City Installation of Level 3 Chargers: Utilization of General Fund Capital Improvement Program (CIP) designated funds to develop plans to install Level 3 electric vehicle chargers in the City Hall Police Department parking lot to support Public Safety fleet electrification. For reference, Level 3 chargers can fully charge an electric vehicle in as little as 30-60 minutes. Full electrification of the Police fleet would require both Level 3 and Level 2 chargers. Partial electrification of the Police fleet would require at least Level 3 chargers.
3. Clean Power Alliance Power Ready Program: An opportunity to install energy resiliency solar photovoltaic panel power generation and battery energy storage backup equipment through the CPA Power Ready Program, described in Attachment 4. The City and CPA identified site is the City owned public parking lot located at the southeast corner of Hope Street and Mound Avenue, across the street from City Hall. The system will support the critical electrical usage at City Hall, but the system will not power SCE Charge Ready Level 2 electric vehicle chargers, if installed. CPA will include the City’s site in a portfolio of other member agency sites and issue a competitive Request for Offers to be bid by solar/storage developers, who will construct, install, own, operate, and maintain the installation at their cost. The City will lease the site to the developer for a term up to twenty (20) years. The City will pay less or the same rate for electric service to the CPA, than it would have if it did not participate in the Power Ready program, but with an additional benefit of continued service during power outages, up to four (4) hours of power supply for critical loads. If the Council decides to move forward with this opportunity at a future public hearing, the CPA template agreement (Attachment 5) includes certain procurement, insurance, and indemnification requirements. The CPA’s site assessment overview is included as Attachment 6.
4. Metropolitan Water District (MWD) Stormwater for Direct Use Pilot Program: An opportunity to install new underground cisterns inside the existing City Hall staff parking lot, as well as drainage improvements in the surrounding area to redirect stormwater runoff to the cisterns through the 1:1 cost sharing MWD Stormwater for Direct Use Pilot Program. The project also includes improvements and minor alterations to existing landscaping, and an irrigation system to utilize the stored stormwater for landscape irrigation with solar powered pumps. The MWD requires the City to measure and report stormwater capture and use, with a minimum design capture of one acre-foot per year. An overview of the MWD Stormwater for Direct Use Pilot Program is included in Attachment 7. If the Council decides to move forward with this opportunity, the MWD agreement 17 26 - 3 - 27
City Hall Electrification & Related Improvement Projects July 20, 2022