Agenda packet — Thousand Oaks City Council, June 20, 2023 (part 2 of 8)

materials furnished, if any, shall be subject to City's inspection and approval. The inspection of such work shall not relieve Supplier of any of its obligations to fulfill its contract requirements.

Audit. Supplier shall maintain, in accordance with generally accepted accounting principles, complete and accurate records of all activities and operations relating to this Agreement. Records, including but not limited to, timecards, employment records, work progress reports, reimbursements, invoices, project records, proprietary data and information, as well as licensed software and any electronic records shall be kept for a period of four years beyond the termination or expiration of this Agreement. Supplier agrees that City, or its authorized representative, shall have the right to examine, audit, excerpt, copy or transcribe any of the records pertaining to this Agreement at any time during normal business hours. Supplier shall reimburse City for all reasonable costs of the audit, including travel time and auditor costs, should such audit reveal an overcharge of five (5) percent or more. Any overcharge will be considered a breach of this Agreement and could be cause for termination. The obligations of this section shall be explicitly included in any subcontracts or other agreements entered into by Supplier with respect to this Agreement, if allowed by this Agreement.

6. TERM, PROGRESS AND COMPLETION
This Agreement shall expire on June 30, 2025, unless Supplier's authorized work assigned before the expiration of the term is not completed by that date. If work has not been completed during the allotted Agreement period, the terms and conditions of the Agreement, including all rights and obligations, shall remain in effect and bind the parties until the work is completed.

Supplier shall not commence work on the services to be performed until (i) Supplier furnishes proof of insurance as required by paragraph 9 below, and (ii) City gives written authorization to proceed with the work provided by City’s Project Manager.

7. NO ASSIGNMENT
This Agreement is not assignable by Supplier without City's prior consent in writing.

8. HOLD HARMLESS AND INDEMNITY
(a) Hold Harmless for Supplier's Damages. Supplier holds City, its elected officials, officers, agents, employees and volunteers, harmless from all of Supplier's claims, demands, lawsuits, judgments, damages, losses, injuries or liability to Supplier, to Supplier's employees, to Supplier’s contractors or Item No.7J
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subcontractors, or to the owners of Supplier's firm, which damages, losses, injuries or liability occur during the work or services required under this Agreement, or performance of any activity or work required under this Agreement. (b) Defense and Indemnity of Third-Party Claims/Liability. Supplier shall indemnify, defend with legal counsel approved by City, and hold harmless City, its elected officials, officers, agents, employees and volunteers from and against all liability including, but not limited to, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with Supplier’s negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in the Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of City. Should conflict of interest principles preclude a single legal counsel from representing both City and Supplier, or should City otherwise find Supplier’s legal counsel unacceptable, then Supplier shall reimburse City its costs of defense, including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation. Supplier shall promptly pay City any final judgment rendered against City (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of Supplier’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination or expiration of this Agreement.

Supplier’s obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of City under any provision of this Agreement, Supplier shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City’s active negligence accounts for only a percentage of the liability involved, the obligation of Supplier will be for that entire portion or percentage of liability not attributable to the active negligence of City. (c) Nonwaiver. City does not waive, nor shall be deemed to have waived, any indemnity, defense or hold harmless rights under this section because of the acceptance by City, or the deposit with City, of any insurance certificates or policies described in Section 9.

9. MINIMUM SCOPE AND LIMIT OF INSURANCE
Without limiting Supplier’s indemnification of City, and prior to commencement of Work, Supplier shall obtain, provide, and maintain at its own Item No.7J
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expense during the term of this Agreement, and any extension thereof, policies of insurance of the type and amounts described below in a form that is satisfactory to City.

Coverage shall be at least as broad as:
(a) Commercial General Liability (CGL): Supplier shall, at Supplier’s sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry General Liability insurance coverage at least as broad as Insurance Services form CG 00 01 in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate for bodily injury, personal and advertising injury and property damage, including with limitation, blanket contractual liability.
(b) Automobile Liability: Supplier shall, at Supplier’s sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry Automobile Liability insurance coverage at least as broad as Insurance Services form CA 00 01 or the exact equivalent covering bodily injury and property damage for all activities of Supplier arising out of or in connection with the work to be performed under this Agreement, including coverage of any owned, hired, nonowned, or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(c) Worker’s Compensation: Supplier shall, at Supplier’s sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry workers’ compensation statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident for bodily injury or disease.

Supplier shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers for all work performed by Supplier, its employees, agents and subcontractors.

If Supplier maintains higher limits than the minimum shown above, City requires and shall be entitled to coverage for the higher limits maintained by Supplier. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.

Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:

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out of work or operations performed by or on behalf of Supplier including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to Supplier’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 10 01 and CG 20 37 10 01 if a later edition is used). The provision shall also apply to any excess liability policies. In addition, Supplier shall ensure that the automobile liability policy contains a provision covering City as an additional insured, and shall obtain an endorsement to that effect if it does not.

Excess Insurance
The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. Umbrella or excess policies shall provide coverage at least as broad as specified for underlying coverages and covering those insured in the underlying policies. Coverage shall be “pay on behalf” with defense costs payable in addition to policy limits. There shall be no cross-liability exclusion of claims or suits by one insured against the other. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City as required in written contract or agreement before City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

City’s Rights of Enforcement
In the event any policy of insurance required under this Agreement does not comply with these specifications or is cancelled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Supplier, or City will withhold amounts sufficient to pay premium from Supplier’s payments. In the alternative, City may cancel this Agreement.

City’s Right to Revise Specifications
City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Supplier ninety (90) days advance written notice of such change. If such change results in substantial additional cost to Supplier, City and Supplier may renegotiate Supplier's compensation.

Primary and Non-Contributory Coverage
For any claims related to this Agreement, Supplier's insurance coverage shall be primary insurance as respects City, its elected officials, officers, agents, employees and volunteers. Any insurance or self-insurance maintained by City, its Item No.7J
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elected officials, officers, agents, employees or volunteers shall be excess of Supplier's insurance and shall not contribute with it and be at least as broad as CG 20 01 04 13.

Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to City.

Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by City. City may require Supplier to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

Acceptability of Insurers
All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with a current A.M. Best’s rating of no less than A:VII, (unless otherwise acceptable to City).

Waiver of Subrogation
All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected officials, officers, agents, employees or volunteers or shall specifically allow Supplier, or others providing insurance evidence in compliance with these specifications, to waive their right of recovery prior to a loss. Supplier hereby waives his own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. Copies of these waivers shall be submitted to City prior to commencement of work.

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(c) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Agreement effective date, Supplier must purchase “extended reporting” coverage for a minimum of five (5) years after completion of Agreement work.

Verification of Coverage
Supplier shall provide City with copies of certificates (on City certificate form or an Accord form as modified per City direction) for all policies, with the appropriate named additional insured coverage and an endorsement that they are not subject to cancellation without 30 days prior written notice to City. All certificates and endorsements are to be received and approved by City before work commences.

However, failure to obtain the required documents prior to the work beginning shall not waive Supplier's obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Subcontractors
Supplier shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Supplier shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.

10. RELATION OF THE PARTIES
(a) Consultant is and shall at all times remain as to the City a wholly independent contractor. The personnel performing the services under this Agreement on behalf of Contractor shall at all times be under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, agents, or volunteers shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of the City. Consultant shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner. (b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder.

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11. TERMINATION BY CITY
City may terminate any portion, or all of the services agreed to be performed under this Agreement by notifying Supplier in writing 30 calendar days prior to any termination. In the event of such termination, Supplier shall have the right and obligation to immediately assemble work in progress for the purpose of closing out the job. All compensation for actual work performed and charges outstanding at the time of termination shall be payable by City to Supplier within 30 days following submission of a final statement by Supplier.

12. CORRECTIONS
Supplier shall correct, at its expense, all errors in the work which may be disclosed during City's review of Supplier's work. Should Supplier fail to make such correction in a reasonably timely manner, such correction shall be made by City, and the cost thereof shall be charged to Supplier.

13. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE
The acceptance by Supplier of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Supplier for anything done, furnished or relating to Supplier's work or services. Acceptance of payment shall be any negotiation of City's check or the failure to make a written extra compensation claim within five (5) calendar days of the receipt of that check, whichever occurs first. However, any approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Supplier, its employees, subcontractors, agents and consultants for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Supplier, its employees, subcontractors, agents and consultants.

14. WAIVER; REMEDIES CUMULATIVE
Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified.

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15. CONFLICT OF INTEREST
Supplier is unaware of any City employee or official that has a financial interest in Supplier's business. During the term of this Agreement and/or as a result of being awarded this Agreement, Supplier shall not offer, encourage or accept any financial interest in Supplier's business by any City employee or official. If a portion of Supplier's services called for under this Agreement shall ultimately be paid for by reimbursement from and through an agreement with a developer of any land within City or with a City franchisee, Supplier warrants that it has not performed any work for such developer/franchisee within the last 12 months, and shall not negotiate, offer or accept any contract or request to perform services for that identified developer/franchisee during the term of this Agreement.

16. NON-APPROPRIATION OF FUNDS
Payments due and payable to Supplier for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of City funds. In the event City has not appropriated sufficient funds for payment of Supplier’s services beyond the current fiscal year, this Agreement shall cover only those costs incurred up to the conclusion of the current fiscal year.

17. GOVERNING LAW; CAPTIONS; ENTIRE AGREEMENT BETWEEN

PARTIES
This Agreement, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California.

The provisions of this Agreement shall be construed as a whole according to its common meaning of purpose of providing a public benefit and not strictly for or against any party. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa. The captions or headings in this Agreement are for convenience only and in no other way define, limit or describe the scope or intent of any provision or section of the Agreement. This Agreement supersedes any other agreements, either oral or in writing, between the parties hereto with respect to the rendering or services and contains all of the covenants and agreements between the parties with respect to said services. Any modifications of this Agreement will be effective only if it is in writing and signed by the party to be charged.

18. MITIGATION OF DAMAGES
In all situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.

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19. TAXPAYER IDENTIFICATION NUMBER
Supplier shall provide City with a complete Request for Taxpayer Identification Number and Certification, Form W-9, as most recently issued by the Internal Revenue Service.

20. MODIFICATION/AMENDMENT OF AGREEMENT
Any amendment, modification, or variation of the terms or tasks of this Agreement shall be in writing and shall be effective only upon the mutual written approval of the City Manager, or his designee, and Supplier.

21. AUTHORIZATION
Each party has expressly authorized the execution of this Agreement on its behalf and binds said party and its respective administrators, officers, directors, shareholders, divisions, subsidiaries, agents, employees, successors, assigns, principals, partners, joint venturers, insurance carriers and any others who may claim through it to this Agreement.

22. PARTIAL INVALIDITY
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

23. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:

TO CITY: Kim Sherman, Sr Purchasing Specialist
Hill Canyon Treatment Plant
City of Thousand Oaks
9600 Santa Rosa Road
Camarillo, CA 93012
(805) 491-8116 | [email protected]
TO SUPPLIER: Tatyana Lipanovich, Director of Sales
California Water Technologies, LLC
8851 Dice Road
Santa Fe Springs, CA 90670
(313) 319-7868 | [email protected]
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24. SIGNATURES
(a) Counterparts. This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument.
(b) Scanned Signatures. In the event that any signature is delivered by facsimile transmission or submitted electronically as a scanned image (i.e. files with .pdf, .tiff or .jpeg extensions), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or scanned signature page were an original thereof.
(c) Digital/Electronic Signatures. This Agreement may be executed through the use of digital or electronic signatures provided they meet the requirements of the Electronic Signatures in Global and National Commerce (ESIGN) Act and the California Uniform Electronic Transactions Act (UETA) and are produced using a City-approved method. The presence of an electronic signature on this document shall be construed as the parties’ consent to do business electronically.

In concurrence and witness whereof, this Agreement has been executed by the parties effective on the date and year first written above.

CALIFORNIA WATER

TECHNOLOGIES, LLC
Lauren S. Stein, President
W. Dwight Glover
Chief Executive Officer

CITY OF THOUSAND OAKS
Kevin McNamee, Mayor
ATTEST:

Laura B. Maguire, City Clerk
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APPROVED AS TO ADMINISTRATION
Andrew P. Powers, City Manager

APPROVED BY DEPARTMENT HEAD
Clifford G. Finley, Public Works Director

APPROVED AS TO FORM
Tracy Friedl, Assistant City Attorney
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EXHIBIT A

SCOPE OF WORK
Supplier shall deliver the following chemical to Hill Canyon Treatment Plant (HCTP) as follows:

FERRIC CHLORIDE
Solution shall be:
• Approximately 38 to 46% by weight suitable for water treatment • Hydrochloric Acid (HCI) content of less than 0.5%
• Heavy metals not to exceed the following limits: Antimony 10 mg/kg; Arsenic 10 mg/kg; Barium 100 mg/kg; Chromium (VI) 36 mg/kg; Cobalt 60 mg/kg; Copper 110 mg/kg; Lead 25 mg/kg; Mercury 1 mg/kg; Molybdenum 250 mg/kg; Nickel 110 mg/kg; Selenium 4 mg/kg; Silver 36 mg/kg; Thallium 3 mg/kg; Vanadium 171 mg/kg; Zinc 60 mg/kg; and Ferrous Chloride 0.5 mg/kg. Total Organic Carbon <40 ppm.
• Specific gravity of 1.423 at 20°F; 1.501 at 4°C (40 to 46% weight)

GENERAL REQUIREMENTS
A. Delivery: Delivery of chemicals will be consistent with these specifications and all State, Federal, and Occupational Safety and Health Act (OSHA) safety regulations.

1. Timing: Product will be delivered within 48-hours upon City’s notification to FOB Destination Prepaid. Deliveries will be made up to seven (7) days per week between 7:00 a.m. to 7:00 p.m. City will endeavor to provide Supplier with as much advanced notice as possible for scheduled deliveries.

2. Delivery Vehicle: Vehicle shall be in good condition and operated by Supplier. Truck tractors and tank trailers shall be pneumatic-tired; conform to all applicable State and Federal regulations; and be fully equipped and maintained to safely transport and deliver specified chemical product. Tank trailers shall be specially designed to prevent leakage and resist rupture in the event of a collision and carry all equipment necessary to respond to an accidental chemical release.

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provide City with evidence of such training and experience within 24- hours upon request. Drivers of all deliveries shall be thoroughly trained and familiar with the related hazards, safety measures, and spill cleanup procedures required for the type of chemical being delivered. Spills and/or leaks at time of delivery, regardless of size, shall be properly and immediately cleaned up by the driver or other personnel of the supplier in accordance with State, Federal, and OSHA regulations. Driver will be responsible for providing equipment to chock tires while unloading product.

4. Posted Speed Limits: Driver shall observe all posted speed limit signs while driving on City property including, but not limited to, the access road leading into the treatment plant. Supplier shall be completely liable for any damage to property of personnel as a result of driver's negligence.

5. Delivery Equipment: Equipment shall include an appropriate compression unit and piping to permit safe transfer of the specified chemical product to stationary bulk containers. Hose(s), fittings, and appurtenant equipment shall be provided by Supplier and be free of leaks.

6. Unloading: Shall be done in a safe manner by Supplier in the presence of a Plant Operator. Appropriate protective clothing shall be worn, and industry safety practices and procedures shall be followed explicitly.

7. Pay Quantity of Delivered Product: Chemicals are purchased by the gallon and delivered to the treatment plant in bulk. Exact quantities may vary from the estimates provided and may be increased or decreased to meet the City's requirements. No minimum is guaranteed.

8. Delivery Weight/Volume: Bulk deliveries shall be determined by weighing the tank trailer before and after filling at Supplier's plant on a certified truck scale. Copies of weighmaster's certificates shall be provided with delivery. Each invoice shall include a reference number for each bulk delivery with that delivery's gallons.

9. Other: City may require Supplier to furnish an affidavit stating product complies fully to Bid Specification 2022/2023-21, a certified analysis of the product delivered, and/or the preventative maintenance schedule of delivery truck's unloading compressor.

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B. Quantity: Exact quantity of bulk deliveries may vary from the estimates given and may be increased or decreased to meet the City's requirements. No minimum is guaranteed, and no price adjustments will be allowed because of a change in the quantity purchased.

Estimated annual consumption is:
90,000-Gallons bulk Ferric Chloride 41% solution.

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C. Receipt/Invoice: Supplier shall provide at the time of delivery, a dated receipt, signed by the driver, identifying product and quantity. Delivery (shipping) tickets must be signed by on-site City personnel at the time of delivery and a copy of the delivery ticket presented to him/her/them. Supplier shall provide a separate invoice for each delivery during the contract term.

D. Quality Assurance: Supplier shall bring apparent errors or omissions to City's attention. If it is demonstrated during the contract term that the product does not meet required specifications, or if foreign bodies are found to be present in the product at time of delivery, the product shall be removed from City premises at Supplier's expense and the contract may be terminated upon written notification from City to Supplier. A quality assurance analysis may be conducted by City, without prior notice, to verify the quality of the product for any given delivery. Any product not meeting State, Federal, and/or AWWA standards, or the specifications outlined in this bid/contract, will be removed from City premises by Supplier at no cost to City. A certificate of analysis shall be provided for each load of product delivered. Any deliveries not meeting chemical quality, regulatory, safety or delivery requirements, will be returned to Supplier at no cost to City and must be re-delivered by Supplier within 48- hours of the unaccepted delivery.

E. Price Guarantee: If, during the contract term, Supplier’s contract with any political subdivision within the County of Ventura delivery area is found to provide firm/fixed prices lower than those provided herein, such lower prices are to be extended to City. Price shall remain firm and fixed for the duration of the contract term. Price shall include transfer and delivery of product to City’s premises. Any costs invoices that were not part of the Bid Schedule are the responsibility of Supplier and will not be paid for by City.

F. Safety and Training: Supplier shall conform to the rules and regulations pertaining to safety established by the California Division of Industrial Safety.

Furnished equipment, materials, and services shall comply with all OSHA standards and regulations, and all applicable governmental laws and orders.

Supplier shall provide proof of compliance, if requested by City. Within 10- working days upon written Notice to Proceed, Supplier shall provide safety training to City personnel to include proper personal protective equipment, explanation of dangers of product, including other related safety precautions.

Supplier shall provide City with current Safety Data Sheets (SDS) for all product delivered.

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CITY FACILITY INFORMATION.

Delivery Location:

Hill Canyon Treatment Plant, 9600 Santa Rosa Road, Camarillo, CA 93012 Facility is located approximately 2-miles south of Santa Rosa Road at Hill Canyon Road intersection.

Tank Capacity:

Ferric Chloride - Total Capacity is 5,000-Gallons and Maximum Delivery is 4,000- Gallons.

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EXHIBIT B

SCHEDULE OF FEES
Ferric Chloride Quantity UOM Unit Cost Total
1 st Year Firm Pricing
(July 1, 2023 – June 30, 2024) 90,000 Gallons $2.72/Gallon $244,800.00 2 nd Year Firm Pricing
(July 1, 2024 – June 30, 2025) 90,000 Gallons $2.74/Gallon $246,600.00 Tax $ 35,626.50
Total Not to Exceed $527,100.00
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ATTACHMENT #3
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Project Name: Supply and Delivery of Glycerin

AGREEMENT FOR GENERAL SERVICES

BETWEEN THE CITY OF THOUSAND OAKS
AND
MOMAR, INC.

THIS AGREEMENT, made and entered into this 1st day of July 2023, by and between the CITY OF THOUSAND OAKS, a municipal corporation (hereinafter referred to as "City"), and MOMAR, INC., (hereinafter referred to as "Supplier"). City and Supplier agree as follows:

1. RETENTION OF SUPPLIER
City hereby retains Supplier, and Supplier hereby accepts such engagement, to perform the services described in Section 2. Supplier warrants it has the qualifications, experience, and facilities to properly and timely perform said services.

2. DESCRIPTION OF SERVICES
The general services to be performed by Supplier are as follows, and are more particularly described in the Scope of Work, attached as Exhibit “A” and incorporated herein: supply and delivery of Glycerin to the Hill Canyon Treatment Plant (HCTP).

3. COMPENSATION AND PAYMENT
(a) Maximum. The total compensation earned by or payable to Supplier, by City, for any and all services under this Agreement shall not exceed $325,611 (herein "not to exceed amount”).
(b) Rate. Supplier shall be paid on a per-order-bases, and with reimbursement for expenses, at the rates set forth in Supplier’s Schedule of Fees, attached as Exhibit “B”. Prices are guaranteed maximum rate until June 30, 2025. (c) Payment. All payments shall be made within 30 days after receipt of written verification from Supplier of the actual compensation earned, in a form satisfactory to City's Project Manager.

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(d) Extra Services. Additional work not reasonably encompassed by the Scope of Services described in Section 2 may be agreed upon only by execution of a written Amendment to this Agreement. No liability or right to compensation for extra services shall exist without such Amendment. Unless otherwise stated in the Amendment, applicable rates for extra services shall be at the rates set forth in Exhibit “B”.

4. CITY PROJECT MANAGER AND SERVICES BY CITY
The services to be performed by Supplier shall be accomplished under the general direction of, and in coordination with, City's "Project Manager", as that staff person is designated by City from time to time, and who presently is, Tim Mooney, Operations Supervisor.

5. TERMS OF PERFORMANCE
Non-Exclusivity. This Agreement is non-exclusive. City reserves the rights to retain, employ, or contract with other qualified services providers during the term of this Agreement on such occasions and in such circumstances as City shall determine are appropriate.

Ability to Perform. Supplier warrants that it possesses, or has arranged through subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out and complete the work hereunder in compliance with any and all federal, state, county, city, and special district laws, ordinances, and regulations.

Laws to be Observed. Supplier shall keep itself fully informed of and shall observe and comply with all applicable state and federal laws as well as with Ventura County and City of Thousand Oaks ordinances, regulations and adopted codes during its performance of the work.

Payment of Taxes. The contract prices shall include provision for all taxes that Supplier is required to pay. Supplier is responsible for all taxes required to be paid under this Agreement.

Permits and Licenses. Supplier shall procure all permits and licenses, pay all charges and fees, and give all necessary or legally required notices.

Prevailing Wage. Supplier is obligated to pay prevailing wages under the California Labor Code. Supplier agrees to indemnify, defend and hold City harmless from any claim that prevailing wages should have been paid, and shall be liable for the payment of the same and any penalties thereon. It is the responsibility of Supplier to be familiar with the California Labor Code, and failure or neglect of Supplier to understand the California Labor Code shall in no way relieve Supplier from any obligations.

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Department of Industrial Relations Requirements. The Work is subject to the payment of not less than prevailing wages under California Labor Code Section 1770 et seq. The work is subject to compliance monitoring and enforcement by the Department of Industrial Relations. No contractor or subcontractor may be awarded a contract for public work on a public works project unless currently registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5.

Safety Provisions. Supplier shall conform to the rules and regulations pertaining to safety established by Occupational Safety & Health Administration (OSHA) and the California Division of Industrial Safety.

Preservation of City Property. Supplier shall provide and install suitable safeguards, approved by City, to protect City property from injury or damage. If City property is injured or damaged as a result of Supplier's operations, it shall be replaced or restored within a reasonable time at Supplier's expense. The facilities shall be replaced or restored to a condition as good as when Supplier began work.

Subcontractors. Supplier shall be solely responsible for ensuring that any subcontractors used in completing tasks under the Agreement comply with all pertinent laws and regulations as well as the relevant terms of this Agreement. City shall have no obligation to monitor or oversee subcontractors.

Immigration Act of 1986. Supplier warrants on behalf of itself and all subcontractors engaged for the performance of this work that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder.

Supplier Non-Discrimination. In the performance of this work, Supplier agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of age, race, color, sex, national origin or ancestry, sexual orientation, or religion of such persons.

Work Delays. Should Supplier be obstructed or delayed in the work required to be done hereunder by changes in the work or by any default, act, or omission of City, or by strikes, fire, earthquake, or any other Act of God, or by the inability to obtain materials, equipment, or labor due to federal government restrictions arising out of defense or war programs, then the time of completion may, at City's sole option, be extended for such periods as may be agreed upon by City and Supplier.

Inspection. Supplier shall furnish City with every reasonable opportunity for City to ascertain that the services of Supplier are being performed in accordance with the requirements and intentions of this Agreement. All work done and all Item No.7J
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materials furnished, if any, shall be subject to City's inspection and approval. The inspection of such work shall not relieve Supplier of any of its obligations to fulfill its contract requirements.

7. NO ASSIGNMENT
This Agreement is not assignable by Supplier without City's prior consent in writing.

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expense during the term of this Agreement, and any extension thereof, policies of insurance of the type and amounts described below in a form that is satisfactory to City.

Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:

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elected officials, officers, agents, employees or volunteers shall be excess of Supplier's insurance and shall not contribute with it and be at least as broad as CG 20 01 04 13.

Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to City.

Claims Made Policies
If any of the required policies provided coverage on a claims-made basis:
(a) The Retroactive Date must be shown and must be before the date of the Agreement or the beginning of contract work.
(b) Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the work required under this Agreement.
(c) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Agreement Item No.7J
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effective date, Supplier must purchase “extended reporting” coverage for a minimum of five (5) years after completion of Agreement work.

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17. GOVERNING LAW; CAPTIONS; ENTIRE AGREEMENT BETWEEN

PARTIES
This Agreement, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California.

18. MITIGATION OF DAMAGES
In all situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.

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23. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:

TO CITY: Kim Sherman, Sr. Purchasing Specialist
Hill Canyon Treatment Plant
City of Thousand Oaks
9600 Santa Rosa Road
Camarillo, CA 93012
(805) 491-8116 | [email protected]
TO SUPPLIER: Robert Beck
Momar, Inc.
1830 Ellsworth Industrial Drive
Atlanta, GA 30318
(203) 725-8082 | [email protected]
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In concurrence and witness whereof, this Agreement has been executed by the parties effective on the date and year first written above.

MOMAR, INC.

Julian Mohr Jr.

Chief Executive Officer
Mike Beard
Chief Financial Officer

CITY OF THOUSAND OAKS
Kevin McNamee, Mayor
ATTEST:

Laura B. Maguire, City Clerk
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APPROVED AS TO ADMINISTRATION
Andrew P. Powers, City Manager

APPROVED BY DEPARTMENT HEAD
Clifford G. Finley, Public Works Director

APPROVED AS TO FORM
Tracy Friedl, Assistant City Attorney
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EXHIBIT A

SCOPE OF WORK
Supplier shall deliver the following chemical to Hill Canyon Treatment Plant (HCTP) as follows:

GLYCERIN
Solution shall be:
• 70.0 to 74.0 percent Glycerin
• Less than 1 mg/L (ppm) of the following: Nitrogen (in the form of ammonia, nitrate, or nitrite), Phosphorous, Aluminum and Zinc
• Less than 10 µg/L (ppb) of the following: Arsenic, Beryllium, Cadmium, Chromium, Copper, Lead, Mercury, Molybdenum, Nickel, Selenium and Silver

GENERAL REQUIREMENTS
A. Delivery: Delivery of chemicals will be consistent with these specifications and all State, Federal, and Occupational Safety and Health Act (OSHA) safety regulations.

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up procedures required for the type of chemical being delivered. Spills and/or leaks at time of delivery, regardless of size, shall be properly and immediately cleaned up by the driver or other personnel of the supplier in accordance with State, Federal, and OSHA regulations. Driver will be responsible for providing equipment to chock tires while unloading product.

Estimated annual consumption is:
90,000-Gallons bulk Glycerin 70-74% solution
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F. Safety and Training: Supplier shall conform to the rules and regulations pertaining to safety established by the California Division of Industrial Safety.

Furnished equipment, materials, and services shall comply with all OSHA standards and regulations, and all applicable governmental laws and orders.

Supplier shall provide City with current Safety Data Sheets (SDS) for all product delivered.

CITY FACILITY INFORMATION
Delivery Location:

Hill Canyon Treatment Plant, 9600 Santa Rosa Road, Camarillo, CA 93012 Item No.7J
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Facility is located approximately 2-miles south of Santa Rosa Road at Hill Canyon Road intersection.

Tank Capacity:

Glycerin - Total Capacity is 5,000-Gallons and Maximum Delivery is 4,000-Gallons.

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EXHIBIT B

SCHEDULE OF FEES
Glycerin Quantity UOM Unit Cost Total
1 st Year Firm Pricing
(July 1, 2023 – June 30, 2024) 60,000 Gallons $2.46/Gallon $147,600.00 2 nd Year Firm Pricing
(July 1, 2024 – June 30, 2025) 60,000 Gallons $2.60/Gallon $156,000.00 Tax $ 22,011.00
Total Not to Exceed $325,611.00
Item No.7J
ATTACHMENT #4
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Project Name: Supply and Delivery of
Sodium Bisulfite and Sodium Hypochlorite

AGREEMENT FOR GENERAL SERVICES

BETWEEN THE CITY OF THOUSAND OAKS
AND
JCI JONES CHEMICALS, INC.

THIS AGREEMENT, made and entered into this 1st day of July 2023, by and between the CITY OF THOUSAND OAKS, a municipal corporation (hereinafter referred to as "City"), and JCI JONES CHEMICALS, INC., (hereinafter referred to as "Supplier"). City and Supplier agree as follows:

2. DESCRIPTION OF SERVICES
The general services to be performed by Supplier are as follows, and are more particularly described in the Scope of Work, attached as Exhibit “A” and incorporated herein: supply and delivery of Sodium Bisulfite and Sodium Hypochlorite to the Hill Canyon Treatment Plant (HCTP).

3. COMPENSATION AND PAYMENT
(a) Maximum. The total compensation earned by or payable to Supplier, by City, for any and all services under this Agreement shall not exceed $2,565,420 (herein "not to exceed amount”).
(b) Rate. Supplier shall be paid on a per-order-bases, and with reimbursement for expenses, at the rates set forth in Supplier’s Schedule of Fees, attached as Exhibit “B”. Prices are guaranteed maximum rate until June 30, 2025. (c) Payment. All payments shall be made within 30 days after receipt of written verification from Supplier of the actual compensation earned, in a form satisfactory to City's Project Manager.

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Payment of Taxes. The contract prices shall include provision for all taxes that Supplier is required to pay. Supplier is responsible for all taxes required to be paid under this Agreement.

Permits and Licenses. Supplier shall procure all permits and licenses, pay all charges and fees, and give all necessary or legally required notices.

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materials furnished, if any, shall be subject to City's inspection and approval. The inspection of such work shall not relieve Supplier of any of its obligations to fulfill its contract requirements.

7. NO ASSIGNMENT
This Agreement is not assignable by Supplier without City's prior consent in writing.

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expense during the term of this Agreement, and any extension thereof, policies of insurance of the type and amounts described below in a form that is satisfactory to City.

Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:

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parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to Supplier’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 10 01 and CG 20 37 10 01 if a later edition is used). The provision shall also apply to any excess liability policies. In addition, Supplier shall ensure that the automobile liability policy contains a provision covering City as an additional insured, and shall obtain an endorsement to that effect if it does not.

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elected officials, officers, agents, employees or volunteers shall be excess of Supplier's insurance and shall not contribute with it and be at least as broad as CG 20 01 04 13.

Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to City.

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effective date, Supplier must purchase “extended reporting” coverage for a minimum of five (5) years after completion of Agreement work.

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17. GOVERNING LAW; CAPTIONS; ENTIRE AGREEMENT BETWEEN

PARTIES
This Agreement, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California.

18. MITIGATION OF DAMAGES
In all situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.

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23. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:

TO CITY: Kim Sherman, Sr. Purchasing Specialist
Hill Canyon Treatment Plant
City of Thousand Oaks
9600 Santa Rosa Road
Camarillo, CA 93012
(805) 491-8116 | [email protected]
TO SUPPLIER: Cris Blomgren
JCI Jones Chemicals, Inc.
1401 Del Amo Boulevard
Torrance, CA 90501
(310) 523-1629 | [email protected]
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In concurrence and witness whereof, this Agreement has been executed by the parties effective on the date and year first written above.

JCI JONES CHEMICALS, INC.

Cris Blomgren
Office Manager / Sales Coordinator
Tim Ross
VP West Coast, Branch Manager

CITY OF THOUSAND OAKS
Kevin McNamee, Mayor
ATTEST:

Laura B. Maguire, City Clerk
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APPROVED AS TO ADMINISTRATION
Andrew P. Powers, City Manager

APPROVED BY DEPARTMENT HEAD
Clifford G. Finley, Public Works Director

APPROVED AS TO FORM
Tracy Friedl, Assistant City Attorney
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EXHIBIT A

SCOPE OF WORK
Supplier shall deliver the following chemicals to Hill Canyon Treatment Plant (HCTP) as follows:

SODIUM BISULFITE
Solution shall be:
• Modular weight of 104.06
• Density, g/ml (60°F) of 1.17 to 1.20
• pH of 4.2 to 5.5
• Technical grade of 25% solution suitable for water treatment

SODIUM HYPOCHLORITE
Solution shall be approximately 12.5 percent available NaOCI, suitable for water treatment:
• NaOCI 12.5 – 13.0 wt%
• Available CI2 11.9 – 12.4 wt%
• Excess NaOH 0.1 – 1.2 wt%
• Specific Gravity 1.15 – 1.25 @ 68F/
• Clarity No Visible Suspended Solids

GENERAL REQUIREMENTS
A. Delivery: Delivery of chemicals will be consistent with these specifications and all State, Federal, and Occupational Safety and Health Act (OSHA) safety regulations.

2. Delivery Vehicle: Vehicle shall be in good condition and operated by Supplier. Truck tractors and tank trailers shall be pneumatic-tired; Item No.7J
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conform to all applicable State and Federal regulations; and be fully equipped and maintained to safely transport and deliver specified chemical product. Tank trailers shall be specially designed to prevent leakage and resist rupture in the event of a collision and carry all equipment necessary to respond to an accidental chemical release.

3. Delivery Driver: Driver shall be licensed with applicable endorsement(s) issued by the Department of Motor Vehicles and be trained and experienced in handling specified chemical product and be specifically trained to stop chemical flow in the event of an emergency. Supplier shall provide City with evidence of such training and experience within 24- hours upon request. Drivers of all deliveries shall be thoroughly trained and familiar with the related hazards, safety measures, and spill cleanup procedures required for the type of chemical being delivered. Spills and/or leaks at time of delivery, regardless of size, shall be properly and immediately cleaned up by the driver or other personnel of the supplier in accordance with State, Federal, and OSHA regulations. Driver will be responsible for providing equipment to chock tires while unloading product.

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B. Quantity: Exact quantity of bulk deliveries may vary from the estimates given and may be increased or decreased to meet the City's requirements.

No minimum is guaranteed, and no price adjustments will be allowed because of a change in the quantity purchased.

Estimated annual consumption is:
250,000-Gallons bulk Sodium Bisulfite 25% solution
350,000-Gallons bulk Sodium Hypochlorite 12.5% solution C. Receipt/Invoice: Supplier shall provide at the time of delivery, a dated receipt, signed by the driver, identifying product and quantity. Delivery (shipping) tickets must be signed by on-site City personnel at the time of delivery and a copy of the delivery ticket presented to him/her/them. Supplier shall provide a separate invoice for each delivery during the contract term.

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F. Safety and Training: Supplier shall conform to the rules and regulations pertaining to safety established by the California Division of Industrial Safety.

Furnished equipment, materials, and services shall comply with all OSHA standards and regulations, and all applicable governmental laws and orders.

Supplier shall provide City with current Safety Data Sheets (SDS) for all product delivered.

CITY FACILITY INFORMATION
Delivery Location:

Hill Canyon Treatment Plant, 9600 Santa Rosa Road, Camarillo, CA 93012 Facility is located approximately 2-miles south of Santa Rosa Road at Hill Canyon Road intersection.

Tank Capacity:

Sodium Bisulfite - Total Capacity is 5,000-Gallons and Maximum Delivery is 4,000- Gallons.

Sodium Hypochlorite – Total Capacity is 24,000-Gallons and Maximum Delivery is 5,000-Gallons
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EXHIBIT B

SCHEDULE OF FEES
Sodium Bisulfite Quantity UOM Unit Cost Total
1 st Year Firm Pricing
(July 1, 2023 – June 30, 2024) 250,000 Gallons $1.66/Gallon $415,000.00 2 nd Year Firm Pricing
(July 1, 2024 – June 30, 2025) 250,000 Gallons $1.86/Gallon $465,000.00 Tax $ 63,800.00
Total $943,800.00
Sodium Hypochlorite Quantity UOM Unit Cost Total
1 st Year Firm Pricing
(July 1, 2023 – June 30, 2024) 350,000 Gallons $2.06/Gallon $ 721,000.00 2 nd Year Firm Pricing
(July 1, 2024 – June 30, 2025) 350,000 Gallons $2.26/Gallon $ 791,000.00 Tax $ 109,619.99
Total $1,621,620.00
Total Not to Exceed $2,565,420.00
Item No.7J
TO: Andrew P. Powers, City Manager
FROM: Tracy M. Noonan, City Attorney
DATE: June 20, 2023
SUBJECT: E-Discovery Software Contract
RECOMMENDATION:

1. Waive formal Request for Proposal (RFP) process and approve contract with Logikcull for the period of July 1, 2023 through June 30, 2026, for subscription services to the Logikcull E-Discovery Software for City Attorney’s Office with a notto-exceed amount of $36,000 per year and a total not-to-exceed amount of $108,000 over the lifetime of the contract.

2. Authorize expenditure in the amount of $36,000 for FY 2023-24 and $36,000 for FY 2024-25 from General Fund A/C # 001-1610-611-4300 (Software Maintenance).

3.Find that this action is not a project as defined under the California Environmental Quality Act (CEQA).

FINANCIAL IMPACT:

No Additional Funding Requested. Staff time to prepare the contract and $36,000 annual contract costs are included in the Adopted FY 2023-24 and FY 2024-25 General Fund Budget. Budget for the third and final contract year will be requested during the biennial budget process.

BACKGROUND:

The City Attorney’s Office has five attorneys and two support staff and provides full legal services to all City departments, including civil litigation and code enforcement. Document review is a common job function of the attorneys handling litigation and public records requests.

Item No.7K
E-Discovery Software Contract
June 20, 2023

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The number of California Public Records Act (PRA) requests and litigation matters has increased dramatically in recent years. In addition, the scope of public records requests has expanded, exponentially increasing the number of records that require review. The time spent reviewing public records requests and documents to produce in litigation has become onerous. The current software to review and produce responsive documents is slow and requires duplicate documents to be reviewed multiple times. It also has limited search and culling capabilities, which reduces its efficiency.

Logikcull would allow for the attorneys to review documents in a cloud-based setting and not through the Virtual Private Network (VPN) which limits the size and function of our current reviewing process. Logikcull is a robust product that allows for sorting and culling out unresponsive documents in batches and redacting in batches that would allow the reviewing of documents for litigation and public records to be done in a more efficient and timely manner.

DISCUSSION/ANALYSIS:

Logikcull is designed specifically for large-scale document review common in public records requests and other discovery reviews. The system is designed to easily remove duplicate and non-responsive documents through sorting features which can readily identify those documents and quickly cull them out of a production. Logikcull also allows for bulk tagging and redacting to alleviate the need to repeatedly review each document. The advanced functionality and simple upload and production features of Logikcull will increase review efficiency and reduce both attorney and support staff time allocated to document review.

As the pool of options for e-discovery software is very small and software products are better evaluated through hands-on demonstrations rather than written proposals, IT staff did its own research of the available products, then made an informal RFP requesting demonstrations and pricing from the vendors that offered the required functionality. Staff from both the City Attorney’s Office and IT reviewed these software options and Logikcull was determined the best suited to the City’s needs. Its features are easy to use and will create a considerable time savings for the City Attorney’s Office, allowing a faster turnaround for PRA requests and other discovery responses.

Thousand Oaks Municipal Code Section 3-10.501 gives City Council the discretion to waive or alter purchasing procedures to fit a specific purchase. Staff followed the informal RFP procedures when seeking pricing and software demonstrations, and the majority of the software products which were reviewed would have been within the threshold for such a process. A three-year contract with the preferred product, however, exceeds the threshold and would have required a formal process. Given that staff did reach out to all known vendors and reviewed all of the Item No.7K
E-Discovery Software Contract
June 20, 2023

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products, and that a formal process would have elicited proposals from the same vendors, staff is requesting that the requirement to follow the formal RFP process be waived in this instance.

Based on the above reasons, City Attorney’s Office recommends City Council approve the contract with Logikcull for the City Attorney’s E-Discovery Software for three years at $36,000 per year and a not-to-exceed amount of $108,000 attached hereto as Attachment #1.

COUNCIL GOAL COMPLIANCE:

Meets the following City Council goal:

B. Provide municipal government leadership which is open and responsive to residents, and is characterized by ethical behavior, stability, promoting public trust, transparency, confidence in the future, and cooperative interaction among civic leaders, residents, business representatives, and staff, while recognizing and respecting legitimate differences of opinion on critical issues facing the City.

PREPARED BY: Melissa Popham, Legal Office Assistant
Attachments:

Attachment #1 – Logikcull Master Services Agreement
CAO:650-10\mlp\Legal Files\Administration\StaffReport\Logikcull Agreement Item No.7K
Logikcull Subscription Order
Customer: City of Thousand Oaks
Address: 2100 Thousand Oaks Blvd., Thousand Oaks, CA 91362 Primary
Account Holder
Name: Colleen Hernandez
Phone: 805-449-2243
Email: [email protected]
Service Terms ● Logikcull Discovery Solution: drag & drop collection & ingestion, automated processing, ECA & review platform, search capability, unlimited productions & exports
○ Unlimited Users
○ Unlimited Matters
○ 120 GB of re-usable Active Storage data
○ 50 GB of re-usable Archived Storage data
● Premium in-app support with 24/7 coverage
● Enterprise Service Package conditionally waived with execution by no later than June 21, 2023.

Monthly: $3,000
Contract Terms ● Contract Term: 07/01/2023 - 06/30/2026 ● Renewal Date: 07/01/2026
● This agreement will renew by mutual written agreement. ● Payment Terms: Annual. Net 30
● Payment Method: Wire, ACH, or Check
● Data (GB) size is based on the post-processed, post de-duplicated high watermark data size. ● Flex Usage for Active Storage over 120 GB will be invoiced at $40 per GB per month, or Customer can elect to increase capacity in discounted bulk data packages. ● Flex Usage for Archive Storage over 50 GB will be invoiced at $20 per GB per month, or Customer can elect to increase capacity in discounted bulk data packages. ● Governed by Master Service Agreement attached hereto
ATTACHMENT #1 Item No.7K
Master Subscription Agreement
Customer Full Legal Name: City of Thousand Oaks
Customer Address: 2100 Thousand Oaks Blvd. Thousand
Oaks, CA 91362
This Master Subscription Agreement is between Logik Systems, Inc. a Delaware corporation (“Logikcull”) and the Customer named above. This Agreement is effective as of the last date beneath the parties’ signatures below (“Effective Date”). Logikcull and Customer will each be referred to individually as a “Party” and together as the “Parties”.

The Parties agree as follows:

1. DEFINITIONS
Capitalized terms not otherwise defined in this Agreement shall have the following meaning:
a. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. b. “Agreement” means this Master Subscription Agreement and any exhibits, Order Form(s), schedules, and addenda hereto.
c. “Customer” means the customer named above together with its Affiliates (for so long as they remain Affiliates) which have signed Order Forms.
d. “Documentation” means Logikcull’s standard information related to the use of the Service, found at https://support.logikcull.com/, and incorporated into this Agreement. e. “Hosted Data” means all information, documents, images, files or materials uploaded, created, modified, or stored in the Service by Customer or Customer’s Users. f. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. g. “Order Form” means an ordering document or online order specifying the services to be provided hereunder that is entered into between Logikcull and Customer or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. h. “Privacy Policy” means Logikcull’s Privacy Policy, found at https://www.logikcull.com/privacy-policy, and incorporated into this Agreement. i. “Service” means the hosted eDiscovery, legal hold, and document management solution for online storage, sharing and processing of files, documents, materials, images, videos, or other content, including all updates, modifications, and enhancements thereto, as made generally available by Logikcull to its customers.
2 Item No.7K
j. “Site” means Logikcull’s website located at https://app.logikcull.com. k. “User” means any individual who uses the Service on Customer’s behalf or through Customer’s accounts or passwords.

2. ACCESS AND USE OF THE SERVICE
a. Provision of Services. Logikcull hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12.h.), right to access and use the Service during the Term, solely for use by Users pursuant to this Agreement and the Documentation. In addition, Logikcull will (a) provide applicable support for the Service as described in Exhibit A attached to this Agreement, (b) use commercially reasonable efforts to make the online Service available in accordance with the service level addendum set forth in Exhibit B attached to this Agreement, and (c) subject to Customer’s use of the Service in accordance with this Agreement, the Documentation, and Privacy Policy, provide the Service in accordance with U.S. laws applicable to Logikcull’s provision of its services to its customers generally (without regard for Customer’s particular use of the Service).
b. Customization. Customer may request features or functionality not already offered through the Service. If Logikcull determines that such requests are feasible, Logikcull may choose to provide those features or functionalities to Customer for an additional fee pursuant to a separate written statement of work to be executed by the Parties.
c. Suspension of Service. Without limiting Logikcull’s termination rights herein, Logikcull reserves the right, at any time, in Logikcull’s sole and absolute discretion, to temporarily suspend or otherwise deny access to or use of the Service, without incurring obligation or liability, for: (a) emergency maintenance; (b) maintaining the security or integrity of Logikcull’s network, hardware, or associated systems or those of Logikcull’s third-party providers; (c) unusual spikes in activity or usage of the Service; (d) unplanned technical problems or outages; or (e) judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Logikcull to do so. Logikcull will use reasonable efforts to notify Customer prior to such suspension where feasible.

3. CUSTOMER RESPONSIBILITIES & RESTRICTIONS
a. Customer Responsibilities. Customer will be responsible and liable for (i) Users’ compliance and noncompliance with this Agreement, Documentation, and applicable laws and government regulations, (ii) all information, instructions and materials provided by Customer or any User in connection with the Service; (iii) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services; (iv) the security and use of Customer’s and its Users’ account access credentials, provided, however, this shall not relive Logikcull of its security obligations under this Agreement; and (v) except to extent caused by Logikcull negligence or willful misconduct, all access to and use of the Service directly or indirectly by or through the Customer’s systems or Customer’s and Users’ account access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

Any use of the Service that in Logikcull’s reasonable judgment threatens the security, integrity or availability of Logikcull’s Services, may result in Logikcull’s immediate suspension of the Service.

Customer shall use reasonable efforts to make all Users aware of this Agreement’s provisions as 3 Item No.7K
applicable to such User’s use of the Service, and shall cause Users to comply with such provisions.
b. Customer Security; Unauthorized Use. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to securely administer the distribution and use of all account access credentials and protect against any unauthorized access to or use of the Service. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and terminate or mitigate the effects of such unauthorized usage. Customer will notify Logikcull immediately of any actual or threatened unauthorized access or use at [email protected]. Additionally, Customer will provide Logikcull with such cooperation and assistance related to any such unauthorized use as Logikcull may reasonably request.
c. Hosted Data. Customer shall control the content and use of Hosted Data, including the uploading or other provision of Hosted Data for processing by the Service and the deletion of the Hosted Data from the Services. Customer shall retain sole responsibility for all Hosted Data, including its content, use and legality, and the means by which Customer acquired the Hosted Data. Logikcull will have no responsibility or liability for the accuracy of data uploaded to the Service by Customer, including without limitation Hosted Data. LOGIKCULL SHALL BEAR NO

LIABILITY WITH RESPECT TO HOSTED DATA THAT IS LOST OR DAMAGED AS A RESULT OF

THE ACTIONS OF CUSTOMER OR THE ACTIONS OF ANY INDIVIDUAL WHO USES THE SERVICE ON CUSTOMER’S BEHALF OR THROUGH CUSTOMER’S ACCOUNT OR

PASSWORDS, WHETHER AUTHORIZED OR NOT, EXCEPT TO THE EXTENT CAUSED BY LOGIKCULL’S ACTS OR OMISSIONS IN VIOLATION OF THIS AGREEMENT. d. Restrictions. Customer shall not use the Service for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Users to: (i) copy, modify, or create derivative works of the Service or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Service, in whole or in part; (iv) remove any proprietary notices from the Service or Documentation; (v) use the Service in a manner that comprises the integrity of Service or the confidentiality of other users of the Service; (vi) input, upload, transmit, or otherwise provide to or through the Service or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Malicious Code; or (vii) use the Service or Documentation 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.

4. PRIVACY, PROCESSING, AND SECURITY
a. Privacy Policy. This Agreement and use of the Service and Site are subject to the Privacy Policy.

The Privacy Policy applies only to the Service and Site, and does not apply to any third-party website or service linked to the Service. Except otherwise set forth in this Agreement, Logikcull shall not disclose Hosted Data to any third party for any purpose other than to provide the Service, support, or related services to Customer.
b. Protection of Hosted Data. Logikcull will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Hosted Data, in 4 Item No.7K
accordance with the terms of the security addendum attached as Exhibit C to this Agreement.

Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Hosted Data (other than by Customer or Users), such as encryption of Hosted Data at rest and in internet transmission (using TLS or similar technologies). Customer acknowledges and agrees that (a) Customer has reviewed Logikcull’s administrative, physical, and technical safeguards and other security practices; (b) Logikcull’s security practices are in accordance with industry-best practices, the terms of this Agreement and any other written agreement between the Parties, and all applicable law; and (c) Logikcull’s security practices are sufficient for Customer’s purposes and shall not cause Customer to breach any agreement to which Customer is a party or violate any applicable law.

Notwithstanding the terms set forth herein, Customer acknowledges that, regardless of the technical and administrative safeguards Logikcull has implemented, the Services and use of internet-based systems cannot be guaranteed to be 100% secure or error-free. c. Data Processing Addendum. To the extent applicable, the Parties agree to comply with the additional terms and conditions set forth in the data processing addendum found at https://www.logikcull.com/policies/data-processing-addendum and incorporated into this Agreement.
d. Export and Destruction of Hosted Data. During the Term or a trial period, Customer will have the ability to export or retrieve Hosted Data from the Service at any time. Within thirty (30) days after the effective date of termination or expiration of this Agreement, Logikcull will make Hosted Data available to Customer for export or download. After such 30-day period, Logikcull will have no obligation to maintain or provide any Hosted Data, and will thereafter delete or destroy all copies of Hosted Data in its systems or otherwise in its possession or control, unless legally prohibited. Customer acknowledges that the Service is not intended to be utilized as a document or file storage system for record retention purposes, and it is the Customer’s sole responsibility to ensure it maintains a separate system to retain the Hosted Data as required under its own internal record retention policies or as required under applicable law relating to record retention.
e. Processing of Hosted Data. Customer understands and acknowledges that it may submit, upload, or process though the Service a variety of different data types, and any such data may have existing encryption, or automatic image conversion issues. As a result of these potential pre-existing issues, there may be times when: (i) Hosted Data cannot be extracted and processed; (ii) a certain amount of Hosted Data may not be suitable or available for extraction from text, metadata or other information; or (iii) file images may not correctly format when image files are created from native documents for purposes of review or production (collectively, “Exceptions”). Such Exceptions may limit the function of any searching, filtering or other analysis of the Hosted Data within the Service.

5. FEES AND PAYMENT
a. Fees. Customer agrees to pay all fees as specified in an Order Form (“Fee”). Upon the expiration of the initial term set forth in each applicable Order Form, Logikcull may increase the Fees by up to 5% for each renewal period referenced in the Order Form, by providing written notice to Customer at least 30 days prior to the commencement of each such renewal term. Fees will be invoiced on an annual basis, unless otherwise indicated on the Order Form. Customer may upgrade its subscription to the Service, if such upgrades are available, at any time to accommodate additional requirements. If the Parties agree to an upgrade, Customer’s existing 5 Item No.7K
Fee arrangement will be terminated and replaced by a new prorated Fee arrangement reflecting the upgrades. Customer is responsible for providing complete and accurate billing and contact information to Logikcull and notifying Logikcull of any changes to such information. b. Payment Terms. Customer will have the option of paying by credit card, electronic debit, or being invoiced. All payments are due within seven (7) days of the billing date. If payment is not received in thirty (30) days of the billing date Logikcull reserves the right to suspend the Service until Logikcull receives and processes all payments. If payment is not received at the end of sixty (60) days from the billing date, Logikcull reserves the right to terminate this Agreement and delete all Hosted Data (subject to Section 4(d)). Alternatively, at Logikcull’s sole discretion, in the event that payment is late, Logikcull reserves the right to charge interest at the rate of twelve percent (12%) per annum or the highest legal rate, whichever is lower, calculated from the payment due date until the date that full payment is received. c. No Refunds. Except as detailed in Section 11.c., all Fees associated with the Service are non-refundable.
d. Payment Disputes. Logikcull will not exercise its rights to suspend or terminate the Service pursuant to Section 5.c. if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. e. Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchase of the Service. If Logikcull has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Logikcull will invoice Customer and Customer will pay that amount unless Customer provides Logikcull with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Logikcull is solely responsible for taxes assessable against it based on its income, property and employees.

6. PROPRIETARY RIGHTS AND LICENSES
a. Reservation of Rights. Subject to the limited rights expressly granted under this Agreement, Logikcull, its Affiliates, and its licensors reserve all their right, title and interest in and to the Service, including all of their related intellectual property rights. Logikcull reserves the right, in its sole discretion, to update, modify, or remove the features, functionality, or other aspects of the Service at any time. No rights are granted to Customer under this Agreement other than as expressly set forth in this Agreement.
b. Ownership of Hosted Data. Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Hosted Data. Customer grants Logikcull a non-exclusive, royalty-free, worldwide license to perform all acts with respect to the Hosted Data as may be necessary for Logikcull, Logikcull’s personnel, and Logikcull’s authorized third parties to provide the Service, including, but not limited to, maintenance of the Services and Customer’s account, improving search, sorting, and tagging functions, discovery processing efficiency activities, and supporting the integrity of the Service and data processing systems. Subject to the limited licenses granted in this Agreement, Logikcull acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Hosted Data. Customer consents to Logikcull’s use of Customer’s name and logos in marketing materials, including on the Site, and for other legitimate business purposes.
6 Item No.7K
c. Feedback. Customer grants to Logikcull and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users (collectively, “Feedback”).
d. Aggregated Statistics. In the course of providing the Services, Logikcull may monitor Customer’s use of the Service and collect and compile statistical data and performance information, analytics, meta-data, or similar information, generated through instrumentation and logging systems, regarding the operation of the Service, including Customer’s use of the Service (“Aggregated Statistics”). All right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Logikcull. Aggregated Statistics will not include any Hosted Data. Nothing in this Agreement shall restrict Logikcull’s right to collect Aggregated Statistic or to use it for any internal business purpose, or in the manner permitted under applicable U.S. law; provided that such Aggregated Statistics do not identify Customer, Users, or Customer’s Confidential Information.
e. Intellectual Property. Logikcull owns all right, title, and interest in and to the Service and the Site (including without limitation all software used to provide the Service and all graphics, user interfaces, logos, and trademarks reproduced through the Service), Logikcull’s Confidential Information (defined below), and the Feedback including all intellectual property rights contained therein. The Service and Site may contain references to other entities’ trademarks and service marks, but such references are for identification purposes only and are used with permission of their respective owners. Logikcull does not claim ownership in, or any affiliation with, any third-party trademarks or service marks appearing in the Service or Site. Customer will not use or display Logikcull’s trademarks without Logikcull’s prior written consent.

7. CONFIDENTIALITY
a. Definition of Confidential Information. “Confidential Information” means, except as otherwise limited under applicable laws, 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. Confidential Information of Customer includes Hosted Data; Confidential Information of Logikcull includes the Service; and Confidential Information of each Party includes the terms and conditions of this Agreement (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 (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without breach of this Agreement. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the Parties in connection with the evaluation of additional Logikcull services. b. Protection of Confidential Information. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the 7 Item No.7K
Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are bound by confidentiality obligations to the Receiving Party containing protections not materially less protective of the Confidential Information than those in this Agreement. Except where required under applicable laws, neither Party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other Party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Logikcull may disclose the terms of this Agreement to a subcontractor to the extent necessary to perform its obligations under this Agreement, under terms of confidentiality materially as protective as set forth in this Agreement. c. Compelled Disclosure. 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. If the Disclosing Party waives compliance or, if after providing notice and assistance, the Receiving Party remains required by law to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of legal counsel, the Receiving Party is legally required to disclose.

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS a. Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so. Customer represents and warrants that: Customer is and shall at all times remain in compliance with all rules, regulations, and all other applicable law administered by the U.S. Treasury Office of Foreign Assets Control (“OFAC”) and any other governmental entity imposing economic sanctions and trade embargoes (“Sanctions Laws”) against designated countries, entities and persons (“Sanctioned Targets”). Customer represents and warrants that it is not a Sanctioned Target or subject to any Sanctions Law, and Customer shall not facilitate any transaction in relation to this Agreement which would cause a violation of any Sanctions Law.
b. Logikcull Warranties. Logikcull warrants that during Term (a) Logikcull will not materially decrease the overall security of the Service, and (b) the Service will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE AND SITE ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS.
c. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY

WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND

EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY

IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

LOGIKCULL DOES NOT WARRANT THAT THE SERVICE AND SITE WILL OPERATE WITHOUT 8 Item No.7K

INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY

SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE, OR THAT DEFECTS CAN BE CORRECTED.

LOGIKCULL MAKES NO REPRESENTATION OR WARRANTY REGARDING THE ACCURACY,

COMPLETENESS, OR USEFULNESS OF ANY INFORMATION OBTAINED THROUGH THE

SERVICE AND DISCLAIMS ANY LIABILITY FOR ANY RELIANCE PLACED ON SUCH INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE SERVICE UTILIZES ADVANCED

TECHNOLOGIES, WHICH MAY PRODUCE RESULTS THAT ARE NOT ALWAYS ACCURATE OR

COMPLETE, AND CUSTOMER WHOLLY AND EXCLUSIVELY ACCEPTS ALL RISKS,

RESPONSIBILITIES, AND LIABILITIES ASSOCIATED WITH THE USE OF THE SERVICE, ITS FEATURES, AND ANY RESULTS PRODUCED BY THE SERVICE OR ITS FEATURES.

LOGIKCULL IS NOT A LAW FIRM OR AN ATTORNEY, AND NEITHER LOGIKCULL NOR THE SERVICE IS A SUBSTITUTE FOR THE ADVICE OR SERVICES OF AN ATTORNEY. ANY

INFORMATION CONTAINED ON THE SERVICE IS NOT LEGAL ADVICE AND MAY NOT BE

CORRECT, COMPLETE, OR UP-TO-DATE, AND CUSTOMER ASSUMES SOLE RESPONSIBILITY

FOR ENSURING ACCURACY, COMPLETENESS AND CORRECTNESS OF SUCH INFORMATION. NO ATTORNEY-CLIENT RELATIONSHIP OR PRIVILEGE EXISTS OR WILL EXIST BETWEEN LOGIKCULL AND CUSTOMER. ADDITIONALLY, ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND LOGIKCULL EXPRESSLY DISCLAIMS ALL WARRANTIES RELATED TO

THE THIRD-PARTY SOFTWARE, MATERIALS OR WEB BROWSERS THAT CUSTOMER MAY NEED TO USE IN CONJUNCTION WITH THE SERVICE OR SITE.

9. MUTUAL INDEMNIFICATION
a. Indemnification by Logikcull. Logikcull will indemnify, defend, and hold harmless Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Logikcull in writing of, a Claim Against Customer, provided Customer (i) promptly gives Logikcull written notice of the Claim Against Customer, (ii) gives Logikcull sole control of the defense and settlement of the Claim Against Customer, and (iii) gives Logikcull all reasonable assistance, at Logikcull’s expense. If Logikcull receives information about an infringement or misappropriation claim related to the Service, Logikcull may in its discretion and at no cost to Customer (A) modify the Service so that they are no longer claimed to infringe or misappropriate, without breaching Logikcull’s warranties under “Logikcull Warranties” above, (B) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (C) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the Term. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Service is the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Service or any part thereof with software, hardware, data, or processes not provided by Logikcull, if the Service or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Service under an Order Form for which there is no charge; (4) if the alleged infringement arises from third-party materials or data; (5) if the alleged infringement arises from a modification of the materials other than by or on behalf of Logikcull; (6) if the alleged infringement arises from a failure to timely implement modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Logikcull; or (7) a Claim Against Customer arises from a Customer’s breach of this Agreement or the Documentation. 9 Item No.7K
b. Indemnification by Customer. Customer will indemnify, defend, and hold harmless Logikcull, its subcontractors, and Affiliates against any claim, demand, suit or proceeding made or brought against Logikcull by a third party (i) alleging that any Hosted Data or Customer’s use of Hosted Data with the Service infringes or misappropriates such third party’s intellectual property rights or privacy rights, or (ii) arising out of, related to or in connection with Customer’s use of the Service in an unlawful manner or in violation of the Agreement and the Documentation (each a “Claim Against Logikcull”), and will indemnify Logikcull from any damages, attorney fees and costs finally awarded against Logikcull as a result of, or for any amounts paid by Logikcull under a settlement approved by Customer in writing of, a Claim Against Logikcull, provided Logikcull (A) promptly gives Customer notice of the Claim Against Logikcull, (B) gives Customer sole control of the defense and settlement of the Claim Against Logikcull (except that Customer may not settle any Claim Against Logikcull unless it unconditionally releases Logikcull of all liability), and (C) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Logikcull arises from Logikcull’s breach of this Agreement or the Documentation.
c. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.

10. LIMITATION OF LIABILITY
a. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY

TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS

AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES

UNDER THIS AGREEMENT FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.

THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT

AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
b. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR

ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT

FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL,

CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER

AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY,

EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

11. TERM AND TERMINATION
a. Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms entered into pursuant hereto have expired or been terminated (“Term”). b. Termination. A Party may terminate this Agreement (including each Order Form) for cause (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a 10 Item No.7K
petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
c. Refund or Payment Upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, Logikcull will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination.

If this Agreement is terminated by Logikcull in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Logikcull for the period prior to the effective date of termination. d. Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Privacy Policy,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement and the section titled “Protection of Hosted Data” will survive any termination or expiration of this Agreement for so long as Logikcull retains possession of Hosted Data.

12. GENERAL PROVISIONS
a. Export Compliance. The Service, other Logikcull technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Logikcull and Customer each represents that it is not named on any U.S. government denied-party list.

Customer will not permit any User to access or use the Service in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
b. Anti-Corruption. Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. c. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Logikcull and Customer regarding Customer’s use of the Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The Parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be:
(1) the applicable Order Form, (2) any exhibit, schedule or addendum to this Agreement, (3) the body of this Agreement, and (4) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
d. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes. e. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement. 11 Item No.7K
f. Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
g. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
h. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Order Forms), without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
i. Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (i) personal delivery, (ii) the second business day after mailing, or (iii) except for notices of termination or an indemnifiable claim (“Legal Notices”), the day of sending by email. Notices to Logikcull will be addressed to the attention of [email protected]; or as updated by Logikcull via written notice to Customer. Billing related notices to Customer will be addressed to the relevant billing contact designated by Customer, and Legal Notices to Customer will be addressed to Customer and be clearly identifiable as Legal Notices. All other notices to Customer will be addressed to the relevant Service system administrator designated by Customer.
j. Governing Law. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules.
k. Dispute Resolution. If a dispute arises out of or relates to this Agreement, or the breach thereof, and if said dispute cannot be settled through negotiation, Customer and Logikcull agree first to try in good faith to settle the dispute by mediation to be held in the city and county of San Francisco and administered by the American Arbitration Association under its Commercial Mediation Rules, before resorting to arbitration, litigation, or some other dispute resolution procedure. The foregoing process shall not apply to Logikcull’s collection of unpaid amounts or to any action by Customer or Logikcull to seek injunctive or other equitable relief. l. Venue. In the event that a dispute cannot be remedied through negotiation, mediation, or other dispute resolution methods, the state and federal courts located in Ventura County, California will have exclusive jurisdiction over any dispute relating to this Agreement, and each Party consents to the exclusive jurisdiction of those courts.
m. Counterparts. This Agreement may be executed electronically and in counterparts. n. Insurance. Logikcull will maintain the following minimum insurance levels during the Term of this Agreement and any renewal Term:
12 Item No.7K
i. Commercial General Liability coverage in the amount of $1,000,000.00 per occurrence and $2,000,000.00 in aggregate.
ii. Worker’s Compensation Insurance with at least the minimum coverage amounts required by law.
iii. Errors & Omissions Insurance in the amount of $1,000,000 per occurrence and $2,000,000 in aggregate for an extended reporting period of three (3) years. iv. Cyberliability Insurance in the amount of $2,000,000 per occurrence and $4,000,000 in aggregate.

This Agreement may be executed through the use of digital or electronic signatures provided they meet the requirements of the Electronic Signatures in Global and National Commerce (ESIGN) Act and the California Uniform Electronic Transactions Act (UETA) and are produced using a City-approved method.

The presence of an electronic signature on this document shall be construed as the parties’ consent to do business electronically.

Agreement is entered into by and between:

Logik Systems, Inc.:
________________________________
Andrew Wilson, Chief Executive Officer
Client:

CITY OF THOUSAND OAKS
____________________________________
Kevin McNamee, Mayor
13 ATTEST:
___________________________________
Laura B. Maguire, City Clerk
Item No.7K
APPROVED AS TO ADMINISTRATION:
____________________________________
Andrew P. Powers, City Manager
APPROVED AS TO DEPARTMENT HEAD:
____________________________________
Tracy M. Noonan, City Attorney
APPROVED AS TO FORM:

Office of the City Attorney
____________________________________
Tracy Friedl, Assistant City Attorney
Exhibit List:

Exhibit A – Support Guide
Exhibit B – Service Level Agreement
Exhibit C – Security Guide
14 Item No.7K
Exhibit A – Support Guide
This Support Guide (“Guide”) is subject to, incorporated in, and being entered into pursuant to the Master Subscription Agreement (“Master Agreement”) between Logikcull and Customer. Any capitalized terms used but not defined in this Guide shall have their meanings set out in the Master Agreement.

1. DEFINITIONS
a. “Business Hours” means 5:00 am to 5:00 pm PST, Monday to Friday for Customers in the United States. “Business hours” means 7:00 am to 10 pm BST, Monday to Friday for Customers in the United Kingdom.
b. “Customer Support Engineer” means a Logikcull employee or contractor who troubleshoots technical problems encountered by Customer via phone, email, and chat, and provides technical troubleshooting support, and other customer support requests. c. “Error” means a reproducible failure of the Service to perform in substantial conformity with the specifications set forth in the Documentation, whose origin can be isolated to a single cause. d. “High Severity” means an Error that has a material to critical business impact on a production system, resulting in Customer’s production system being either down, or functioning at a materially reduced capacity or with materially reduced functionality. e. “Incident” means a support request that begins when Customer contacts Logikcull to report one specific Error and ends when Logikcull either: (a) Resolves the Error; or (b) determines in its reasonable discretion that the Error cannot be Resolved. f. “Low Severity” means an Error that does not rise to the level of Medium Severity or High Severity, questions including general usage questions, issues related to a non-production environment, or feature requests. There is no impact on the quality, performance or functionality on Customer’s production system.
g. “Medium Severity” means an Error that has some business impact on a production system, resulting in some non-material functionality or loss on Customer’s production system. The Services are usable, but do not provide a non-material function in the most convenient or expeditious manner.
h. “Resolution Targets” means Logikcull’s internal goals for Resolving Errors, based on the Severity Level of the Incident.
i. “Resolve” means the provision of: (a) Services that, in Logikcull's reasonable discretion, correct the Error; (b) information to Customer that corrects the Error; (c) information to Customer on how to obtain a software solution that corrects the Error; (d) notice to Customer that the Error is caused by a known, unresolved issue or an incompatibility issue with the Service; or (e) notice to Customer that the Error has been identified as arising out of or resulting from a Service Exception.
j. “Premier Subscriber” means a Customer who has purchased a Premier Support plan, as identified on the applicable Order Form.
15 Item No.7K
k. “Severity Levels” means High Severity, Medium Severity, and Low Severity. l. “Standard Subscriber” means a Customer who has purchased a Standard Support plan, as identified on the applicable Order Form.
m. “Target Response Time” means Logikcull’s internal goals for responding to Incidents, based on the Severity Level of the Incident and Customer’s support plan.

2. SCOPE
a. Scope of Services. Logikcull offers two customer support plans: Standard Support and Premier Support. During the Term, Logikcull will use commercially reasonable efforts to Resolve any Incidents reported by Customer as follows:
i. Logikcull will provide Standard Phone Support, Standard Online Support, Access to Knowledge Base, and an Online Video Onboarding Session (“Standard Support”) to Standard Subscribers.
ii. Logikcull will provide Premier Phone Support, Premier Online Support, Access to Knowledge Base, a Named Customer Success Manager (“Named CSM”), and a Personal Success Kickoff Session (“Premier Support”) to Premier Subscribers.

3. STANDARD SUPPORT
a. Standard Phone Support. Standard Subscribers will be granted access to the support line (844.363.3347) with call routing to a Customer Support Engineer, exclusively during Business Hours and excluding company holidays.
b. Standard Online Support. Standard Subscribers will be granted the ability to report Incidents through Logikcull’s online web form (located at https://support.logikcull.com/) or email ([email protected]). The table below constitutes Logikcull’s Target Response Times for Incidents of different severity levels for Standard Subscribers:

Severity Level First Response Subsequent Updates
High 4 Business Hours 4 Business Hours
Medium 1 Business Day (9 Business Hours) 1 Business Day (9 Business Hours) Low 1 Business Day (9 Business Hours) 2 Business Days (18 Business Hours) c. Access to Knowledge Base. Standard Subscribers will be granted access to online articles for best practices and known issues with the Service.
d. Online Video Onboarding Session. Standard Subscribers will be granted access to a pre-recorded online video session that serves as an introduction to the Service.

4. PREMIER SUPPORT
a. Premier Phone Support. Premier Subscribers will be granted access to the support line (844.363.3347) with priority call routing to a Customer Support Engineer, 24 hours a day, 7 days 16 Item No.7K
a week. Premier Subscribers will be granted Premier Phone Support at unlimited customer locations.
b. Premier Online Support. Premier Subscribers will be granted the ability to report Incidents through our online web form (located at https://support.logikcull.com/) or email ([email protected]). The table below constitutes Logikcull’s Target Response Times for Incidents of different severity levels for Premier Subscribers:

Severity Level First Response Subsequent Updates
High 1 Hour 2 Hours
Medium 4 Hours 12 Hours
Low 8 Hours 24 Hours
c. Access to Knowledge Base. Premier Subscribers will be granted access to online articles for best practices and known issues with the Service.
d. Named Customer Success Manager. Premier Subscribers will be assigned a Named CSM.

Premier Subscribers may engage the Named CSM via email or phone as needed for questions, information requests, support case escalation, or other assistance. The Named CSM will conduct a quarterly business review, which may include sharing product roadmap information, discussing how to apply Logikcull product capabilities to Customer’s initiatives, a health check of Customer’s usage of Logikcull, and brokering strategic planning discussions between Customer executives and a Logikcull executive sponsor. The Named CSM will act as a liaison across Logikcull to address any business or technical hurdles, coordinate meetings with Logikcull product management or engineering to conduct technical deep-dives or discuss planned product features, and act as Customer’s advocate within Logikcull. e. Personal Success Kickoff Session. Premier Subscribers will be granted access to a live, personalized, in-depth, one-hour session with a Customer Support Engineer to tour the relevant Service.

5. RESOLUTION TARGETS
a. Logikcull’s Resolution Targets, regardless of the Customer’s status as a Premier Subscriber or Standard Subscriber, shall be as follows:

Severity Level Resolution Targets
High Logikcull will use commercially reasonable efforts to resolve High Severity Error as soon as possible with a target resolution of up to one (1) business day. The resolution will be delivered to Customer as a work- around or as an emergency software fix.

Medium Logikcull will use commercially reasonable efforts to resolve Medium Severity Error within fifteen (15) business days.

Low Logikcull will use commercially reasonable efforts to resolve a Low Severity Error within the next round of standard updates to the Services. 17 Item No.7K

6. GENERAL TERMS.
a. Reproducing Errors. Logikcull must be able to reproduce Errors in order to Resolve them.

Customer agrees to cooperate and work in good faith with Logikcull to reproduce errors, including conducting diagnostic or troubleshooting activities as reasonably requested and appropriate. Customer agrees that Customer’s Users may be asked to provide remote access to their Logikcull application and/or desktop system for troubleshooting purposes. Reproducible errors that cannot be promptly resolved will be escalated to higher support tiers for further investigation.
b. Access to Customer Data. If required to address Customer’s Error, Logikcull may access Hosted Data for the exclusive purpose of addressing Customer’s Error. Such access will be made in accordance with Logikcull’s security, privacy, and confidentiality policies and procedures as outlined in the Master Agreement and Privacy Policy. In addition, Customer will, upon request, send Logikcull screenshots or share screens with Logikcull via a videoconference or remote session.
c. Effect of Customer Failure or Delay. Logikcull is not responsible or liable for any delay or failure of performance caused in whole or in part by any delay or failure to perform by Customer of any of Customer's obligations under the Master Agreement or this Guide. d. Time Commitment. Logikcull, in its reasonable discretion, will determine the amount of time it will need to spend to attempt to Resolve any specific Incident. e. Changes to Customer Support Plans. Logikcull, in its sole discretion, may change any aspect of its Customer Support plans at any time. In the case that a change results in a material reduction or material adverse effect on the support to be rendered to Customer, such material reduction or effect will not take place during the Customer’s paid subscription Term. f. Exclusions. The following services fall outside the scope of this Guide, and Logikcull shall not be compelled to provide such services:
i. Assistance in developing customizations;
ii. Assistance with any non-Logikcull products, services, or technologies; iii. Assistance with installation, maintenance, or configuration or hardware, including, but not limited to, computers, hard drives, networks, and printers; iv. Assistance with Customer-developed software, applications, and code; v. Assistance with any software, applications, or code that is developed outside of or in addition not the core Logikcull products;
vi. Except as otherwise provided in this Guide, training on the product, setup of the product, configuration of the Service, or answering business process questions. 18 Item No.7K
Exhibit B – Service Level Agreement
This Service Level Addendum (“SLA”) is subject to, incorporated in, and being entered into pursuant to the Master Subscription Agreement (“Master Agreement”) between Logikcull and Customer. Any capitalized terms used but not defined in this SLA shall have their meanings set out in the Master Agreement.

1. DEFINITIONS
a. “Customer Cause” means any of the following causes of an Service Level Failure: (a) any negligent or improper use, misapplication, misuse, or abuse of, or damage to, the Service by Customer; (b) any maintenance, update, improvement, or other modification to or alteration of the Service by Customer; (c) any use of the Service in a manner inconsistent with the then-current Documentation; (d) any use by Customer of any third-party products that Logikcull has not provided or caused to be provided to Customer; (e) any use by Customer of a non-current version or release of the Services; or (f) the Customer Systems. b. “Customer Systems” means Customer's information technology infrastructure, including Customer's computers, software, databases, electronic systems (including database management systems), and networks.
c. “Earn Back” means, following a claimed Service Level Failure, Logikcull revokes or reduces the Service Credits granted to Customer.
d. “Service Credits” means an option, granted to Customer, to extend Customer’s subscription for the Service at no additional charge for the specified time period. e. “Service Level Failure” means a violation of the Uptime Guarantee that results in the issuance of a Service Credit by Logikcull to Customer.

2. CUSTOMER RESPONSIBILITIES
a. In order to qualify for a Service Credit pursuant to this SLA, Customer shall:
i. Provide information, support, cooperation and any necessary authorizations as required by Logikcull for performing the Services and complying with this SLA. Any information, support, cooperation or authorizations provided by Customer to Logikcull as required to provide the Services and comply with this SLA shall be accurate and timely. ii. Comply with all terms of the Master Agreement, including adhering to policies and processes established by Logikcull for reporting Service Level Failures and incidents and prioritizing service requests.
iii. Pay all Fees and other costs and expenses as required pursuant to the Master Agreement.

3. UPTIME GUARANTEE AND SERVICE CREDITS
a. The Services will be available at least 99% of the time, as measured on a per-minute basis every month, subject to the exclusions set forth below (“Uptime Guarantee”). 19 Item No.7K
b. Logikcull will make commercially reasonable efforts to promptly notify Customers that register at this site https://app.logikcull.com of any known period of unavailability and a further notice when the Service disruption has ended.
c. Logikcull reserves the right, at any time, in Logikcull’s sole and absolute discretion, to temporarily suspend or otherwise deny access to or use of the Service, without incurring obligation or liability under this SLA or the Master Agreement, for: (a) emergency maintenance; (b) maintaining the security or integrity of Logikcull’s network, hardware, or associated systems or those of Logikcull’s third party; (c) unusual spikes in activity or usage of the Service; (d) unplanned technical problems or outages; or (e) judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Logikcull to do so. Any such interruption shall not be considered in determining whether the Uptime Guarantee has been met.
d. Logikcull's procedures, delivery of Services, and ability to comply with this SLA may be affected by Customer Causes or changes in applicable laws or regulations. In such cases, Logikcull shall bear no responsibility for any directly resulting harm incurred by Customer, and any such harm shall not be considered in determining whether the Uptime Guarantee has been met. e. Maintenance shall include, but is not limited to, one quarterly (forty-eight hour) planned maintenance window if needed, brief planned maintenance windows (scheduled in advance, as needed), and emergency maintenance windows (critical, unforeseen maintenance needed for the security or performance of the platform). Any such interruption shall not be considered in determining whether the Uptime Guarantee has been met. The timeframes outlined below constitute the quarterly planned maintenance windows:

Dates: The second weekend in February, May, August, and November Start time: Saturday 12:00 AM EST
Stop time: Monday 12:00 AM EST
Logikcull will make commercially reasonable efforts to provide notice of scheduled maintenance that may materially affect the access and use of the Service at least twenty-four (24) hours in advance.
f. If Logikcull fails to meet the Uptime Guarantee in any calendar month, provided such error did not result from a Customer Cause, Customer will be eligible to receive a Service Credit as specified below, which will be the sole and exclusive remedy for any failure by Logikcull to meet its commitments under this SLA. Customer shall not be entitled to any other rights or remedies set forth in the Master Subscription Agreement or elsewhere for a Service Level Failure.

Monthly uptime
percentage
Unpermitted Downtime Subscription Extension
≥ 98% < 99% uptime >7 hrs 5 days
≥ 96% < 98% uptime >14 hrs 15 days
< 96% uptime >24 hrs 30 days

4. NOTIFICATION PROCESS
20 Item No.7K
a. Customer must notify Logikcull at [email protected] within 30 days after the end of the month in which Logikcull allegedly violated the Uptime Guarantee (“Violation Notification”) in order to receive a Service Credit.
b. For any partial calendar month during which Customer subscribes to the Service, availability and compliance with the Uptime Guarantee will be calculated based on the entire calendar month, not just the portion for which Customer subscribed.

5. EARN BACK PROCESS
a. Logikcull may Earn Back some or all Service Credits granted to Customer for a violation of the Uptime Guarantee as follows:
i. Within 30 days following Logikcull’s receipt of a Violation Notification, Logikcull shall submit to Customer a report including:

1. Statistics showing Logikcull's performance of the applicable Service for the month in which a Service Level Failure is alleged to have occurred

2. The type of Service Credits imposed for such Service Level Failures. b. If Logikcull's average performance during the relevant month equals or exceeds the Uptime Guarantee, then Logikcull shall be relieved from paying any Service Credits assessed during the relevant month.
21 Item No.7K
Exhibit C – Security Guide
As part of Logikcull’s commitment to the protection of Hosted Data, Logikcull maintains information security standards relating to the provision of the Service for its customers, as outlined in this Security Guide (“Security Guide”). This Security Guide is subject to, incorporated in, and being entered into pursuant to the Master Subscription Agreement (“Master Agreement”) between Logikcull and Customer. Any capitalized terms used but not defined in this Security Guide shall have their meanings set out in the Master Agreement. In the event of conflict between this Security Guide and the Master Agreement, this Security Guide shall control.

1. SECURITY POLICIES. Logikcull will maintain at a minimum, industry standard security policies designed to apply industry- standard security controls and address applicable risk in order to protect the integrity of the Service and Hosted Data. Such security policies will be communicated and made available to all Logikcull personnel. Logikcull will endeavor to review all security policies no less than annually to ensure currency with changes to the risk environment.

2. LOGIKCULL PERSONNEL. Logikcull will conduct appropriate background checks, including criminal background checks, for all personnel prior to granting access to Hosted Data. Logikcull personnel will be required to sign confidentiality agreements prior to being granted access to Hosted Data. Logikcull personnel who have a need to access Hosted Data in order for Logikcull to provide the Services to Customer, or as otherwise permitted under the Master Agreement, will complete security and privacy awareness training on an annual basis. Logikcull will maintain procedures for monitoring personnel compliance with Logikcull’s policies, including procedures for corrective and disciplinary actions, as necessary and appropriate.

3. ACCESS CONTROL. Customer is responsible for managing access to its Service account, including granting and removing access and configuring permissions. Customer is responsible for monitoring access and permissions for its Users, including timely access revocation for identified high risk personnel or terminated personnel. Logikcull will operate access controls to restrict access to Hosted Data to its internal authorized personnel who have a need to access Hosted Data in order for Logikcull to provide the Services to Customer, or as otherwise permitted under the Master Agreement. Logikcull will monitor its personnel’s access and permissions to ensure currency and access control procedures.

4. PASSWORD SECURITY. Logikcull will maintain policies designed to ensure password security, including but not limited to maintaining minimum password complexity requirements, password age restrictions and the enforcement of multi-factor authentication.

5. USER IDENTIFICATION, AUTHORIZATION, AND TRACKING. Users’ identifiers will be unique.

Logikcull will use industry standard secure mechanisms for verifying identity and authorization access to Hosted Data. Access logs will be retained in accordance with Logikcull’s retention policy, or as otherwise required by applicable law.

6. SESSION CONTROL. Logikcull will implement session control standards to reduce the risk of compromised user sessions.

7. DATA PROCEDURES. Data will be classified and identified by data class. Hosted Data will be retained only as necessary to provide the Services pursuant to the Master Agreement and not more than 60 days post account termination. Hosted Data will be retained in system backups until such 22 Item No.7K
Hosted Data is deleted in the ordinary course; provided not all Hosted Data in such system backups may be recoverable. Logikcull will maintain controls to help to ensure the integrity of the Hosted Data. Data will be encrypted at rest and in transit using industry standard encryption protocols (using AES-256 bit-encryption at rest and TLS 1.2 in transit or stronger). Subject in all respects to the terms of the Master Agreement and Customer’s control over deletion of Hosted Data, Logikcull will use secure data deletion mechanisms to help ensure that data is securely deleted and non-recoverable post-deletion action.

8. RISK MANAGEMENT. Logikcull will conduct risk assessments no less than annually to identify risk to the security and integrity of the Hosted Data. Risk ratings will be applied based on the potential impact and likelihood of occurrence. Risk will be tracked and remediated in accordance with the applicable criticality and prioritization.

9. PHYSICAL SECURITY. The Service is a cloud-hosted service that relies on its cloud providers for providing appropriate physical security measures. Logikcull will require its hosting providers to comply with ISO 27001, HIPAA, and SOC. Logikcull will annually reassess its hosting providers' continued compliance with these obligations. Logikcull will maintain policies and procedures for the hardening, distribution, inventory tracking, monitoring, reuse and destruction of media and devices.

10. CHANGE MANAGEMENT. Logikcull maintains a change management policy that is reviewed at least annually and approved by management designed to ensure that all changes comply with Logikcull’s security policies, service integrity is sustained and risks are properly managed.

11. BUSINESS CONTINUITY AND SERVICE RESILIENCY. Logikcull will maintain business continuity and disaster recovery plans that are tested no less than annually and updated in accordance with test findings and applicable changes to the risk environment.

12. VULNERABILITY AND THREAT MANAGEMENT. Logikcull will maintain processes and procedures for identification and mitigation of vulnerabilities and threats to the Hosted Data. a. Vulnerability Scanning- Logikcull will run monthly vulnerability scans of its production environment. Critical findings will be prioritized and all other findings will be monitored for remediation through standard patch cycles.
b. Penetration Testing- Penetration testing will be executed at least annually. A summary report of the test results will be made available to Customer upon request. c. Patch Management- Logikcull will maintain a patch management program. High risk systems will be patched on a monthly basis. Quarterly patching procedures will be applied for non-internet facing system components where rapid patching may present operational risk.

13. SECURITY INCIDENT AND BREACH RESPONSE. Logikcull will maintain incident and breach response protocols. Responsible parties will be identified, and responsibilities properly communicated. In the event of a data breach of the Services, Logikcull will communicate breaches to Customer (if impacted) in a timely manner in accordance with Logikcull’s applicable policies, industry standard and regulatory requirements.

14. AUDIT REPORTS. Upon Customer’s request, and subject to the confidentiality restrictions set forth in the Master Agreement, Logikcull will provide executive summaries of its annual SOC 2 audit reports and annual penetration test result.
23 CAO:650-10\mlp\Legal Files\Administration\StaffReport\Logikcull Agreement Item No.7K
TO: Andrew P. Powers, City Manager
FROM: Clifford G. Finley, Public Works Director
DATE: June 20, 2023
SUBJECT: Rancho Conejo Biotech Area Sidewalk Project (CI 5664) RECOMMENDATION:

1. Approve Second Amendment to Professional Services Agreement No. 13114- 2022 with MNS Engineers, Inc., Thousand Oaks, CA, in the amount of $8,830 for a revised not-to-exceed amount of $355,941 for additional design services for the Rancho Conejo Biotech Area Sidewalk Project (CI 5664), plus an additional $30,000 for extra services.

2. Authorize expenditure in the amount of $38,830 ($8,830 Second Amendment, plus extra services of $30,000) from A/C #001-5310-631-8300 (CI 5664, Rancho Conejo Biotech Area Sidewalk Project).

3. Find that this action is not a project as defined under the California Environmental Quality Act.

FINANCIAL IMPACT:

No Additional Funding Requested. $38,830 is included in FY 2022-23 Adopted General Fund Budget for the Rancho Conejo Biotech Area Sidewalk Project (CI 5664). $3,192,969 is included in the Adopted FY 2022-23 General Fund and Grant Fund Budget (includes $1,592,969 in Federal Highway Administration COVID Relief and Recovery Supplemental Appropriation Act (CRRSA) Grant Fund). Total project cost is estimated at $3,206,410. Additional appropriation will be requested at the time of construction contract award depending on the actual bids received.

BACKGROUND:

The Rancho Conejo Biotech Area Sidewalk Project is in Newbury Park, north of Hillcrest Drive and along Rancho Conejo Boulevard and Lawrence Drive (Attachment #1). The project area has incomplete sidewalk segments and is without certain pedestrian amenities at key locations.

Item No.7L
Rancho Conejo Biotech Area Sidewalk Project (CI 5664)
June 20, 2023

Page 2 ends

The project includes construction of new sidewalk segments on:
• The north side of Hillcrest Drive from Mitchell Road to approximately 1,000 feet west of Lawrence Drive;
• The north side of Teller Road from Lawrence Drive to Marion Street; • The west side of Lawrence Drive from Hillcrest Drive for approximately 700 feet; and
• Both sides of the Corporate Center Drive from Rancho Conejo Boulevard for approximately 450 feet to complete the missing sidewalk segments.

The project also includes installation of a new enhanced pedestrian crosswalk on Rancho Conejo Boulevard at Corporate Center Drive (north leg of intersection), featuring crosswalk markings and an electronic Rectangular Rapid Flashing Beacon (RRFB) warning system to alert approaching traffic on Rancho Conejo Boulevard of pedestrian activity.

On September 27, 2022, City Council approved a Professional Services Agreement with MNS Engineers, Inc. (MNS) in the amount of $315,866 for the design and engineering of the project and $31,634 was approved for extra services. On March 28, 2023, the First Amendment in the amount of $31,245 was executed, increasing the contract to a revised not-to-exceed amount of $347,111. The First Amendment provided for the following additional services:
• Supplemental field survey, mapping and right of way retracement in support of the added midblock and intersection pedestrian crossings; • Performing 14 utility potholing; and
• Design and preparation of contract documents in connection with new curb ramps, signing, and striping for a new midblock crossing on Lawrence Drive (across from Skyworks), and pedestrian crossing at Marion Street/Teller Road intersection.

DISCUSSION/ANALYSIS:

Additional professional engineering services by MNS are required for design and preparation of the contract documents for the following improvements:
• Additional curb ramp at the southwest corner of Hillcrest Drive/Lawrence Drive intersection and signing and striping for pedestrian crossing on Hillcrest Drive;
• Four streetlights at the following locations: at Lawrence Drive mid-block crosswalk (across from Skyworks), at northwest and northeast corners of Hillcrest Drive/Lawrence Drive Intersection, and at northwest corner of Hillcrest Drive/Mitchell Road intersection (the streetlights will be provided, owned, and operated by Southern California Edison).

Item No.7L
Rancho Conejo Biotech Area Sidewalk Project (CI 5664)
June 20, 2023

Page 3 ends

These additions were not part of the original contract and were deemed necessary during the preliminary design review process to expand pedestrians’ path of travel in the area through safe street crossings. The Second Amendment to MNS agreement (Attachment #2) will provide for these required additional engineering services. Staff recommends approval of the Second Amendment to the agreement for $8,832, and a revised not-to-exceed amount of $355,941.

The originally approved extra services budget of $31,634 provided for the costs associated with the First Amendment in the amount of $31,245. Therefore, staff is requesting an additional $30,000 in extra services to provide for future additional design services that may become necessary during the final design and bid phase of the project. The signal pole standard foundation at the intersection of Rancho Conejo Boulevard and Corporate Center Drive may require redesign due to potential utility conflicts discovered during utility potholing.

PROJECT ESTIMATED COST AND FUNDING SUMMARY
Fund 001 Fund 183 Total
Design (Previously approved) $ 347,111 $0 $ 347,111
Second Amendment (This Action) $ 8,830 $0 $ 8,830
Extra Services (This Action) $ 30,000 $0 $ 30,000
City Furnished (Previously approved) $ 5,000 $0 $ 5,000 Right-of-Way Acquisition (Future) $ 25,000 $0 $ 25,000
Construction (Future) $1,197,500 $1,592,969 $2,790,469
Total Cost $1,613,441 $1,592,969 $3,206,410
The total estimated project cost including design and construction phases is $3,206,410, which consists of $1,592,969 in federal funding from the CRRSA for the construction phase, with the balance funded by the City’s General Fund for both design and construction phases.

The preliminary project schedule is as follows:

PROJECT PRELIMINARY SCHEDULE
Design Fall 2023
Caltrans Approval
Federal Funds Authorization
Bid & Award Process
Winter 2024
Spring 2024
Summer 2024
Construction Fall 2024 to Summer 2025
This action is not a project as defined under the California Environmental Quality Act because this action will not result in a direct or foreseeable indirect physical change in the environment [14 CCR 15060(c)].

Item No.7L
Rancho Conejo Biotech Area Sidewalk Project (CI 5664)
June 20, 2023

Page 4 ends

Community Outreach:

The Rancho Conejo Biotech Area Sidewalk Project was presented to the Traffic and Transportation Advisory Commission on April 26, 2023, and received positive feedback. Staff will develop and implement an additional public outreach plan that will focus on adjacent businesses as well as the public. Various communications tools and strategies, including community meetings (if needed), press releases, website updates, and social media posts will be utilized to inform the public and receive feedback. A dedicated project website has been created, www.toaks.co/biotechsidewalks, where updated project information will continue to be provided throughout the design and construction phases of the project.

This project meets City Council’s Top Ten Priorities #9, “Public Works Infrastructure Investments”.

COUNCIL GOAL COMPLIANCE:

Meets the following City Council goals:

C. Operate City government in a fiscally and managerially responsible and prudent manner to ensure that the City of Thousand Oaks remains one of California's most desirable places to live, work, visit, recreate, and raise a family.

F. Provide and enhance essential infrastructure to ensure that the goals and policies of the Thousand Oaks General Plan are carried out and the City retains its role and reputation as a leader in protecting the environment and preserving limited natural resources.

PREPARED BY: Masoud Razavi, Engineering Associate
Attachments:

Attachment #1 – Vicinity and Location Maps
Attachment #2 – Second Amendment to MNS Agreement No. 13114-2022 DPW:850-20\ev\H:\Council\2023\062023\CI 5664 Rancho Conejo Biotech Area Sidewalk Project.docx Item No.7L
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PROJECT

LOCATION
!( THOUSAND OAKS BLVD
0 0.5 12
Miles m
LEGEND
Sidewalk Locations - 6' wide
LEGEND
Sidewalk Locations - 6' wide
Pedestrian Crosswalk
Lawrence Dr.

Lawrence Dr.

Teller Rd.

Corporate Center Dr.

ATTACHMENT #1 DPW:850-20\ev\H:\Council\2023\062023\CI 5664\Rancho Conejo Biotech Area Sidewalk Project.docx Item No.7L
ATTACHMENT #2
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Project Name: Rancho Conejo Biotech Area
Sidewalk (CI 5664)

SECOND AMENDMENT TO

AGREEMENT FOR PROFESSIONAL SERVICES

BETWEEN THE CITY OF THOUSAND OAKS
AND
MNS ENGINEERS, INC.

Contract No. 13114-2022
THIS SECOND AMENDMENT to the Agreement for Professional Services entered into between the CITY OF THOUSAND OAKS, a municipal corporation, (hereafter “City”) and MNS ENGINEERS, INC. (“Consultant”), entitled Rancho Conejo Biotech Area Sidewalk (CI 5664) and dated September 27, 2022, and amended on March 28, 2023 (herein “Contract”) is made this 20th day of June, 2023.

RECITALS
A. Section 3 of Contract, currently, and as may have been previously amended, provides for a “not-to-exceed” total payment as consideration to Consultant of $347,111 for services generally and briefly described as Professional Design Services for the Rancho Conejo Biotech Area Sidewalk Project.

B. City needs to expand the Scope of Work to be performed under the present Contract, and Consultant is desirous of performing such and receiving additional compensation for said extra services. Additional compensation is withing previously approved budget amount.

AGREEMENT TO AMEND
NOW, THEREFORE, the undersigned parties to Contract agree to amend Contract as described below:

Part 1. The following services to be performed by Consultant are added to the Scope of Services listed in Section 2 of Contract and such section is hereby amended to add and also include the following services, and Exhibit A-2 is hereby added to Contract:

Additional curb ramp, crosswalk striping, and street lighting design services, as more fully described in Exhibit A-2, attached hereto and incorporated herein.

Item No.7L
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Part 2. The sum of $8,830, is added as compensation to Consultant under the present Contract for the above-described additional services, and Subsection 3 (a) of Contract is hereby amended as follows.
(a) Maximum and Rate. The total compensation payable to Consultant by City for the services under this Agreement SHALL NOT EXCEED the sum of $355,941 (herein “not to exceed amount”).

Part 3. All terms used in Parts 1 and 2 above shall have the meanings ascribed thereto in Contract. Except as amended in Parts 1 and 2 above, all other sections, terms, obligations, duties, clauses, and provisions of Contract shall remain the same.

IN WITNESS WHEREOF, the parties execute this Second Amendment to Contract as of the date set forth above.

MNS ENGINEERS, INC.
____________________________
Darren Riegler, President
__________________________
Shawn Kowalewski
Senior Vice President

CITY OF THOUSAND OAKS

___________________________
Kevin McNamee, Mayor
ATTEST:
________________________________
Laura B. Maguire, City Clerk
APPROVED AS TO ADMINISTRATION:
________________________________
Andrew P. Powers, City Manager
Item No.7L
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APPROVED BY DEPARTMENT HEAD:
________________________________
Clifford G. Finley, Public Works Director
APPROVED AS TO FORM:

Office of the City Attorney
________________________________
Tracy Friedl, Assistant City Attorney
Item No.7L
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EXHIBIT A-2

SCOPE OF WORK
Consultant shall provide the following additional services:

Task 9: Additional Curb Ramp and Intersection Crosswalk Striping Consultant shall perform supplemental curb ramp design at the southwest corner of Hillcrest Drive/Lawrence Drive intersection, plus signing and striping for crossing Hillcrest Drive. These improvements shall be quantified and incorporated into contract documents and the project construction cost estimate.

Deliverables
• Curb ramp design
• Updated cost estimate
Task 10: Street Lighting Design
In compliance with the City standards, Consultant shall prepare Street Light Plans at 1” = 10’ scale for the Lawrence Drive mid-block crosswalk, northwest and northeast corners of Hillcrest Drive/Lawrence Drive Intersection, and northwest corner of Hillcrest Drive/Mitchell Road intersection. The plans shall include the streetlight, points of connection, conduit and pull box locations.

Consultant shall prepare plans and technical specifications and construction cost estimate for the streetlight improvements not handled by Southern California Edison (SCE).

The streetlights will be owned and maintained by SCE and will design the electrical system for these lights.

Deliverables
• Street light Improvement Plans, Specifications
• Construction Cost Estimate
Consultant shall perform the services described herein within the proposed final design schedule.

Item No.7L
TO: Andrew P. Powers, City Manager
FROM: Clifford G. Finley, Public Works Director
DATE: June 20, 2023
SUBJECT: Site Improvements at Reservoirs and Pump Stations (CI 5520) RECOMMENDATION:

1. Award Professional Services Agreement with AECOM Technical Services, Inc. (Westlake Village, CA) in an amount not to exceed $399,055 for engineering and design of Site Improvements at Reservoirs and Pump Stations (CI 5520), plus extra services of $40,000, with a term ending December 31, 2024.

2. Authorize expense in the amount of $444,055 ($399,055 agreement, plus $40,000 extra services, and $5,000 for City furnished materials and supplies), $399,055 from A/C #612-8040-682-8300, and $45,000 from A/C #613-8040-682- 8300 (CI 5520, Site Improvements at Reservoirs and Pump Stations).

3. Find that this action is not a project as defined under the California Environmental Quality Act.

FINANCIAL IMPACT:

No Additional Funding Requested. $2,000,000 is included in the Adopted FY 2022-23 Water Capital Fund Budget. Additionally, $950,000 is included in the Adopted FY 2023-24 Water Capital Fund Budget. Total project cost is estimated at $2,894,000.

BACKGROUND:

The City’s Public Works Department manages the City’s water storage and distribution facilities consisting of 11 Calleguas turnouts, four hydropneumatic pump stations, 16 pump stations, 16 reservoirs, and two booster stations. Many of these sites need certain improvements to address wildfire resiliency, site drainage, accidental tank overflow containment, pump, and electrical equipment enclosures, fencing, and the addition of emergency generators. These improvements are necessary to maintain these crucial infrastructure components and ensure proper protection of neighboring slopes from erosion and damage.

Item No.7M
Site Improvements at Reservoirs and Pump Stations (CI 5520) June 20, 2023

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The proposed improvements will address the following scope of work at a total of 10 reservoir and 12 pump station facilities:

• Existing temporary canopies and tarps providing protection from exposure to elements are currently deteriorated, resulting in changes to the operating temperature of the electric motors at the pump stations, decreasing the life of the motor, and requiring frequent repair and maintenance. Replacement of canopies and tarps with a more permanent solution is required. • Routine maintenance and waterproofing to existing pump station roofs have been performed over the last several years, however, major storm events continue to cause water intrusion and damage. Complete tear-off and rebuild of the deteriorating roofing structures are required. • The roof hatches to access the electric motors and pumps for maintenance and repair are not large enough to fit the equipment through them.

Modification to the roof hatches is required.
• Installation of emergency generators at the Lone Oak and Erbes pump stations is required to maintain operation during power outages. The emergency generator at Lone Oak needs to be enclosed to suppress noise affecting neighboring houses.
• Onsite and offsite improvements are necessary to correct drainage deficiencies and proper containment and discharge of flow at each site in the event of accidental tank overflow.
• Fire hardening improvements are required to protect the equipment during wildfires and reduce the risk of damage to this critical infrastructure.

DISCUSSION/ANALYSIS:

The City requires services from a professional engineering firm to complete the design, surveying, and engineering for the project, and prepare the construction contract documents. In accordance with Government Code section 4526 and Thousand Oaks Municipal Code section 3-10.401, staff solicited a Request for Proposals/Qualifications (RFP/Q) for the project. Unlike the low bid requirements of the Public Contract Code, contracts for professional services should only be awarded to firms or persons who have demonstrated an adequate level of experience, competence, training, credentials, resources, staffing, and other professional qualifications necessary for more than a satisfactory performance of the services solicited. The award of a professional services agreement is based upon a variety of factors that demonstrate best value to the agency for the solicited scope of service. The cost of the service may be considered as one of those factors; however, the lowest cost is not the sole factor in deciding who will be awarded the contract.

Item No.7M
Site Improvements at Reservoirs and Pump Stations (CI 5520) June 20, 2023

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On March 17, 2023, the City publicly advertised a formal RFP/Q for engineering consulting firms in the Thousand Oaks Acorn newspaper and on the City’s eprocurement website to provide the required professional services for the following phases of the project: Phase I – Engineering Design, preparation of the contract documents, and engineering support services during the bid process; and Phase II – Engineering Support Services during construction. The RFP/Q was sent out to over 1,800 vendors, and a total of 46 vendors downloaded the RFP/Q document.

On April 21, 2023, the City received three proposals from the following engineering firms:

1. AECOM Technical Services – Westlake Village, CA

2. Lee & Ro, Inc. – City of Industry, CA

3. Wood Rodgers, Inc. – Sacramento, CA
A team of Public Works staff evaluated the proposals based on the following qualification criteria:
• Project understanding and approach;
• Relevant experience (projects of similar size and scope); • Quality, clarity, responsiveness and conformance with terms of the RFP/Q; • Qualifications and availability of key persons working on the project; • Team members’ (subconsultants) qualifications; and
• Reasonableness of completion schedule and estimated level of effort dedicated to completing each task.

After careful review and consideration of the above criteria, the proposal from AECOM Technical Services, Inc. (AECOM) was determined to provide the most value in meeting the City’s needs for this project. The scope of work and consulting fees have been negotiated and finalized with AECOM. Staff recommends City Council approve the Professional Services Agreement with AECOM in the amount of $399,055 (Attachment #1), for design, preparation of Contract Documents, and Bidding Services (Phase I). Upon successful completion of Phase I work by the Consultant, staff will seek City Council’s authorization to amend AECOM’s contract to provide engineering support services during construction (Phase II).

ESTIMATED PROJECT COST SUMMARY
Engineering Design (this action) $ 399,055
Engineering Extra Services (this action) $ 40,000
City Furnished Material / Supplies (this action) $ 5,000 Engineering Construction Support (future) $ 250,000
Construction Contract (Future) $2,200,000
Total $2,894,055

Item No.7M
Site Improvements at Reservoirs and Pump Stations (CI 5520) June 20, 2023

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PROJECT TIMELINE
Begin Design Summer 2023
Complete Design
Bid & Award Process
Spring 2024
Summer 2024
Begin Construction Fall 2024
Project Completion Fall 2025
Community Outreach: The design phase of this project is not expected to adversely impact any neighboring residences. Public Outreach will be performed during subsequent phases of the project, before and during construction activities.

This action is not a project as defined under the California Environmental Quality Act because this action will not result in a direct or foreseeable indirect physical change in the environment [14 CCR 15060(c)].

This project meets City Council’s Top Ten Priorities #9, “Public Works Infrastructure Investments”.

CIP PROJECT PRIORITY (as outlined in FY 2021-23 CIP Program Budget) Priority Two – Necessary, but not essential, and there could be consequences if deferred.

COUNCIL GOAL COMPLIANCE:

Meets the following City Council goals:

PREPARED BY: Roner DelCastillo, Associate Engineer
Attachments:

Attachment #1 – Professional Services Agreement with AECOM DPW: 850-20\ev\Council\2023\062023\CI 5520\Site Improvements at Reservoirs and Pump Stations Item No.7M
ATTACHMENT #1
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Project Name: CI 5520 Site Improvements at
Reservoirs and Pump Stations

AGREEMENT FOR PROFESSIONAL SERVICES

BETWEEN THE CITY OF THOUSAND OAKS
AND
AECOM TECHNICAL SERVICES, INC.

THIS AGREEMENT is made and entered into this 20th day of June 2023, by and between CITY OF THOUSAND OAKS, a municipal corporation ("City"), and AECOM TECHNICAL SERVICES, INC. ("Consultant").

City and Consultant agree as follows:

1. RETENTION OF CONSULTANT
City hereby retains Consultant, and Consultant hereby accepts such engagement, to perform the services described in Section 2. Consultant warrants it has the qualifications, experience, and facilities to properly and timely perform said services.

2. DESCRIPTION OF SERVICES
The services to be performed by Consultant are as follows:

Professional services in conjunction with Site Improvements at Reservoirs and Pump Stations. Services and deliverables shall generally include design and preparation of Contract Documents and Bidding support, as more particularly set forth in the Scope of Work, attached as Exhibit “A,” which is incorporated herein by reference.

3. COMPENSATION AND PAYMENT
(a) Maximum and Rate. The total compensation payable to Consultant by City for the services under this Agreement SHALL NOT EXCEED the sum of $399,055 (herein "not to exceed amount"), and shall be earned as the work progresses on the following basis:

Hourly, at the hourly rates and with reimbursement to Consultant for those expenses set forth in Consultant's Schedule of Fees, attached as Exhibit "B" and incorporated herein. The rates and expenses set forth in that exhibit shall be binding upon Consultant until December 31, 2024, after which any change in the rates and expenses must be approved in writing by City's Project Manager (City is to be given 60 days’ notice of any rate increase request), provided the not to exceed amount is the total compensation due Consultant for all work described under this Agreement.

Item No.7M
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(b) Payment. Consultant shall provide City with written verification of the actual compensation earned, in a form satisfactory to City's Project Manager.

Invoices shall be made no more frequently than on a monthly basis, and describe the work performed (including, if applicable, a list of hours worked by personnel classification). All payments shall be made within 30 days after City’s approval of the invoice.
(c) Extra Services. Additional work not reasonably encompassed by the Scope of Services described in Section 2 may be agreed upon only by execution of a written Amendment to this Agreement. No liability or right to compensation for extra services shall exist without such Amendment. Unless otherwise stated in the Amendment, applicable rates for extra services shall be at the rates set forth in Exhibit “B.”

4. CITY PROJECT MANAGER
The services to be performed by Consultant shall be accomplished under the general direction of, and coordinate with, City's "Project Manager", as that staff person is designated by City from time to time, and who presently is Roner V. del Castillo, PE.

5. TERM, PROGRESS AND COMPLETION
The term of this Agreement is from the date first written above to December 31, 2024, unless term of this Agreement is extended, or the Agreement is terminated as provided for herein.

City Manager or his or her designee shall have the authority to extend the term of this Agreement in writing no more than 3 separate times, for a period of 1 year each Extensions of time shall be memorialized by execution of a written amendment.

Consultant shall not commence work on the services to be performed under the Agreement until (i) Consultant furnishes proof of insurance as required by paragraph 9 below, and (ii) City’s Project Manager gives written authorization to proceed with the work. All services shall be completed within the term of this Agreement.

6. OWNERSHIP OF DOCUMENTS
All drawings, designs, data, photographs, reports and other documentation (other than Consultant's drafts, notes and internal memorandum), including duplication of same prepared by Consultant in the performance of these services, are the property of City. City shall be entitled to immediate possession of the same upon completion of the work under this Agreement, or at any earlier or later time when requested by City. City agrees to hold Consultant harmless from all Item No.7M
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damages, claims, expenses, and losses arising out of any reuse of the plans, specifications, graphics, brochures, reports, and other documentation for purposes other than those described in this Agreement, unless written authorization of Consultant is first obtained.

7. PERSONAL SERVICES/NO ASSIGNMENT/SUBCONTRACTS
This Agreement is for professional services, which are personal to City.

Rosaida Harris is deemed to be especially experienced and is a key member of Consultant's firm, and shall be directly involved in performing, supervising or assisting in the performance of this work. This key person shall communicate with, and periodically report to, City on the progress of the work. Should said individual be removed from assisting in this contracted work for any reason, City may terminate this Agreement.

This Agreement is not assignable by Consultant without City's prior written consent.

No part of the work described in this Agreement may be subcontracted out to other parties.

8. HOLD HARMLESS AND INDEMNITY
(a) Hold Harmless for Consultant's Damages. Consultant holds City, its elected officials, officers, agents, employees and volunteers, harmless from all of Consultant's claims, demands, lawsuits, judgments, damages, losses, injuries or liability to Consultant, to Consultant's employees, to Consultant’s contractors or subcontractors, or to the owners of Consultant's firm, which damages, losses, injuries or liability occur during the work or services required under this Agreement, or performance of any activity or work required under this Agreement. (b) Defense and Indemnity of Third-Party Claims/Liability.

Consultant shall, to the maximum extent allowed by law, indemnify, defend with legal counsel approved by City, and hold harmless City, its officers, officials, agents, employees and volunteers from and against all liability including, but not limited to, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with Consultant’s negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in the Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of City.

Should conflict of interest principles preclude a single legal counsel from representing both City and Consultant, or should City otherwise find Consultant’s legal counsel unacceptable, then Consultant shall reimburse City its costs of defense, including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation. The Consultant shall promptly pay City any Item No.7M
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final judgment rendered against City (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of Consultant’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.

Consultant’s obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of City under any provision of this Agreement, Consultant shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City’s active negligence accounts for only a percentage of the liability involved, the obligation of the Consultant will be for that entire portion or percentage of liability not attributable to the active negligence of City.
(c) Nonwaiver. City does not waive, nor shall be deemed to have waived, any indemnity, defense or hold harmless rights under this section because of the acceptance by City, or the deposit with City, of any insurance certificates or policies described in Section 9.

9. MINIMUM SCOPE AND LIMIT OF INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide, and maintain at its own expense during the term of this Agreement, and any extension thereof, policies of insurance of the type and amounts described below and in a form that is satisfactory to City.

Coverage shall be at least as broad as:
(a). Commercial General Liability (CGL): Consultant shall, at Consultant's sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry General Liability insurance coverage at least as broad as Insurance Services form CG 00 01 in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate for bodily injury, personal and advertising injury and property damage, including without limitation, blanket contractual liability.
(b). Automobile Liability: Consultant shall, at Consultant's sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry Automobile Liability insurance coverage at least as broad as Item No.7M
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Insurance Services form CA 00 01 or the exact equivalent covering bodily injury and property damage for all activities of Consultant arising out of or in connection with the work to be performed under this Agreement, including coverage of any owned, hired, non-owned, or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(c). Worker’s Compensation: Consultant shall, at Consultant's sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry workers’ compensation statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident for bodily injury or disease. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its elected officials, officers, agents, employees and volunteers for all work performed by Consultant, its employees, agents and subcontractors.
(d). Professional Errors and Omissions Insurance: Consultant shall, at Consultant’s sole cost and expense throughout the term of this Agreement, and any extensions thereof, carry professional errors and omissions coverage of no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate, with tail coverage for an extended reporting period of three (3) years.

If Consultant maintains higher limits than the minimum shown above, City requires and shall be entitled to coverage for the higher limits maintained by Consultant.

Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.

Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:

Additional Insured Status
City, its elected officials, officers, agents, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Consultant including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 10 01 and CG 20 37 10 01 if a later edition is used). The provision shall also apply to any excess liability policies. In addition, Consultant shall ensure that the automobile liability policy contains a provision covering City as an additional insured, and shall obtain an endorsement to that effect if it does not.

Item No.7M
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Excess Insurance
The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. Umbrella or excess policies shall provide coverage at least as broad as specified for underlying coverages and covering those insured in the underlying policies. Coverage shall be “pay on behalf” with defense costs payable in addition to policy limits. There shall be no cross-liability exclusion of claims or suits by one insured against the other. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and no-contributory basis for the benefit of City as required in written contract or agreement before City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

City’s Rights of Enforcement
In the event any policy of insurance required under this Agreement does not comply with these specifications or is cancelled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant, or City will withhold amounts sufficient to pay premium from Consultant’s payments. In the alternative, City may cancel this Agreement.

City’s Right to Revise Specifications
City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation.

Primary and Non-Contributory Coverage
For any claims related to this Agreement, Consultant's insurance coverage shall be primary insurance as respects City, its elected officials, officers, agents, employees and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, employees or volunteers shall be excess of Consultant's insurance and shall not contribute with it and shall be at least as broad as CG 20 01 04 13.

Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to City.

Item No.7M
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Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by City. City may require Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

Waiver of Subrogation
All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected officials, officers, agents, employees or volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications - to waive their right of recovery prior to a loss. Consultant hereby waives his own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. Copies of these waivers shall be submitted to City prior to commencement of work.

Claims Made Policies
If any of the required policies provided coverage on a claims-made basis:
(a). The Retroactive Date must be shown and must be before the date of the Agreement or the beginning of contract work.
(b). Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the work required under this Agreement.
(c). If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Agreement effective date, Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of Agreement work.

Verification of Coverage
Consultant shall provide City with copies of certificates (on City certificate form or an Accord form as modified per City direction) for all policies, with the appropriate Item No.7M
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named additional insured coverage and an endorsement that they are not subject to cancellation without 30 days prior written notice to City. All certificates and endorsements are to be received and approved by City before work commences.

However, failure to obtain the required documents prior to the work beginning shall not waive Consultant's obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.

10. RELATION OF THE PARTIES
(a). Consultant is and shall at all times remain as to the City a wholly independent contractor. The personnel performing the services under this Agreement on behalf of Contractor shall at all times be under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, agents, or volunteers shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of the City. Consultant shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner. (b). No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder.

11. CORRECTIONS
In addition to the above indemnification obligations, Consultant shall correct, at its expense, all errors in the work that may be disclosed during City's review of Consultant's report or plans. Should Consultant fail to make such correction in a reasonably timely manner, such correction shall be made by City, and the cost thereof shall be charged to Consultant or withheld from any funds due to Consultant hereunder.

Item No.7M
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12. TERMINATION BY CITY
City may terminate without cause any or all of the services agreed to be performed under this Agreement upon 30 calendar days’ written notice. If termination is for cause, no advance notice need be given. In the event of termination, Consultant shall have the right and obligation to immediately assemble work in progress for the purpose of closing out the job. All compensation for actual work performed and charges outstanding at the time of termination shall be payable by City to Consultant within 30 days following submission of a final statement by Consultant unless termination is for cause. In such event, Consultant shall be compensated only to the extent required by law.

13. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE
The acceptance by Consultant of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for anything done, furnished, or relating to Consultant's work or services. Acceptance of payment shall be any negotiation of City's check or the failure to make a written extra compensation claim within 10 calendar days of the receipt of that check. However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, subcontractors, agents and consultants for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Consultant, its employees, subcontractors, agents and consultants.

14. AUDIT OF RECORDS
Consultant shall maintain, in accordance with generally accepted accounting principles, complete and accurate records of all activities and operations relating to this Agreement. Records, including but not limited to, timecards, employment records, work progress reports, reimbursements, invoices, project records, proprietary data and information, as well as licensed software and any electronic records shall be kept for a period of four years beyond the termination of this Agreement. Consultant agrees that City, or its authorized representative, shall have the right to examine, audit, excerpt, copy or transcribe any of the records pertaining to this Agreement at any time during normal business hours. Consultant shall reimburse City for all reasonable costs of the audit, including travel time and auditor costs, should such audit reveal an overcharge of five (5) percent or more. Any overcharge will be considered a breach of this Agreement and could be cause for termination. The obligations of this section shall be explicitly included in any subcontracts or other agreements entered into by Consultant with respect to this Agreement.

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15. WAIVER; REMEDIES CUMULATIVE
Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to a party under this Agreement, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.

16. CONFLICT OF INTEREST
Consultant is unaware of any City employee or official that has a financial interest in Consultant's business. During the term of this Agreement and/or as a result of being awarded this Agreement, Consultant shall not offer, encourage or accept any financial interest in Consultant's business by any City employee or official.

17. CONSTRUCTION OF LANGUAGE OF AGREEMENT
The provisions of this Agreement shall be construed as a whole according to its common meaning of purpose of providing a public benefit and not strictly for or against any party. It shall be construed consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa.

18. MITIGATION OF DAMAGES
In all situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.

19. GOVERNING LAW
This Agreement, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California.

Should litigation occur, venue shall be in Superior Court of Ventura County.

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20. TAXPAYER IDENTIFICATION NUMBER
Consultant shall provide City with a complete Request for Taxpayer Identification Number and Certification, Form W-9, as most recently issued by the Internal Revenue Service.

21. NON-APPROPRIATION OF FUNDS
Payments due and payable to Consultant for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of City funds. In the event City has not appropriated sufficient funds for payment of Consultant’s services beyond the current fiscal year, this Agreement shall cover only those costs incurred up to the conclusion of the current fiscal year.

22. MODIFICATION/AMENDMENT OF AGREEMENT
Any amendment, modification, or variation of the terms or tasks of this Agreement shall be in writing and shall be effective only upon the mutual written approval of the City and Consultant.

23. USE OF THE TERM “CITY”
Reference to “City” in this Agreement includes the City Manager or any authorized representative acting on behalf of City.

24. PERMITS AND LICENSES
Consultant, at its sole expense, shall obtain and maintain during the term of this Agreement all appropriate permits, licenses, and certificates that may be required in connection with the performance of services under this Agreement.

25. CAPTIONS
The captions or headings in this Agreement are for convenience only and in no other way define, limit or describe the scope or intent of any provision or section of the Agreement.

26. AUTHORIZATION
Each party has expressly authorized the execution of this Agreement on its behalf and binds said party and its respective administrators, officers, directors, shareholders, divisions, subsidiaries, agents, employees, successors, assigns, principals, partners, joint venturers, insurance carriers and any others who may claim through it to this Agreement.

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27. ENTIRE AGREEMENT BETWEEN PARTIES
Except for Consultant's proposals and submitted representations for obtaining this Agreement, this Agreement supersedes any other agreements, either oral or in writing, between the parties hereto with respect to the rendering of services and contains all of the covenants and agreements between the parties with respect to said services.

28. PARTIAL INVALIDITY
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

29. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:

TO CITY: Roner V. del Castillo, PE
Public Works Department
City of Thousand Oaks
2100 Thousand Oaks Boulevard
Thousand Oaks, CA 91362
TO CONSULTANT: Ben P. Horn, PE
Principal/Managing Engineer
AECOM Technical Services, Inc.
3027 Townsgate Rd. Suite 140
Westlake Village, CA 91361

30. SIGNATURES
(a) Counterparts. This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument.
(b) Scanned Signatures. In the event that any signature is delivered by facsimile transmission or submitted electronically as a scanned image (i.e., files with .pdf, .tiff or .jpeg extensions), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or scanned signature page were an original thereof.

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(c) Digital/Electronic Signatures. This Agreement may be executed using digital or electronic signatures provided they meet the requirements of the Electronic Signatures in Global and National Commerce (ESIGN) Act and the California Uniform Electronic Transactions Act (UETA) and are produced using a city-approved method. The presence of an electronic signature on this document shall be construed as the parties’ consent to do business electronically.

In concurrence and witness whereof, this Agreement has been executed by the parties effective on the date and year first above written.

AECOM TECHNICAL SERVICES, INC.

Ben P. Horn, PE
Principal/Managing Engineer
Armand Tatevossian
Secretary

CITY OF THOUSAND OAKS
Kevin McNamee, Mayor
ATTEST:

Laura B. Maguire, City Clerk
APPROVED AS TO ADMINISTRATION:

Andrew P. Powers, City Manager
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APPROVED BY DEPARTMENT HEAD:

Clifford G. Finley, Public Works Director
APPROVED AS TO FORM:

Office of the City Attorney
Tracy Friedl, Assistant City Attorney
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EXHIBIT A
Scope of Work
The scope of engineering services defined herein, shall apply to the improvements at Reservoir and Pump Station sites to address site fencing; reservoir overflow pipe capacity review for containment of tank overflow, and onsite and off-site drainage improvements, for containment and proper discharge of flows; new pump canopies; door replacements; roof upgrades/replacement; LED lighting; vault cover; addition of emergency generators; electrical improvements; and surge tanks operational Improvements.

Consultant shall perform the following tasks:

Task I: Project Management and Meetings
Consultant shall arrange and conduct all meetings and workshops, prepare a meeting agenda two days in advance for City Project Manager’s review/comments, prepare the meeting summary of discussions/decisions, and email a copy to all attendees for review and concurrence. The meeting summary shall include action items by City and/or Consultant.

Consultant’s project management shall include but not be limited to the management of all subconsultant team members, coordination with the City Project Manager, and submission of project invoices in a format acceptable to the City.

Task 1.1 Kickoff Meeting (allow 3 hours - ZOOM) – To include as a minimum: the project team introduction, formalizing methods of communication, Consultant presenting project approach and receiving feedback from City staff, discussing project schedule and milestones, providing a list of requested project information and documents, etc.

Task 1.2 Progress Meetings (estimate 5 meetings at 2 hours each - ZOOM) - To discuss progress of the work, project challenges, schedule updates, proposed recommendations, etc.

Task 1.3 Miscellaneous:
a) Reproductions (to be charged at direct cost + 5%)
b) Shipping (to be charged at direct cost + 5%)
c) Travel Time (Consultant shall estimate the budget for travel time based on the number of meetings,
workshops, and site visits reflected in the scope of work.

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The budget for this task shall not be exceeded, unless
the number of meetings or site visits change with prior approval by the City).

Task 1.4 On-Site Progress Meeting: (allow 40 hours) To discuss progress of the work, project challenges, schedule updates, and to have site visit to get better resolution of the project issues.

Task 2: Site Visit and Review of Documents
Task 2.1 Develop a comprehensive list of information needed from the City, and research and review the City provided record
drawings and other pertinent documents for all project sites.

Task 2.2 Conduct visits at each site listed below (allow three full days), to assess the overall extent of the improvements and meet with water operations staff to obtain information on issues or concerns at each site that would include but is not limited to what is listed for each site under Task 4:

Task 2.3 Additional Site Visit (with previous approval by the City) Task 3: Design Concept/Approach Workshop
Workshop #1 (allow for one 8-hr in person) – subsequent to completion of Task 2, Consultant shall develop the project design concept and approach detailing the proposed scope of improvements at each site, and arrange and conduct an in-person workshop outlining the proposed improvements (incorporate exhibits, renderings, photos, etc.) and preliminary cost estimate at each site, anticipated concerns and challenges, present and discuss potential operations impacts during construction activities. and allow for open discussion and questions on the design concept. Based on the outcome of this workshop, Consultant shall submit the workshop minutes outlining the final itemized list of improvements at each site for the City’s concurrence.

Task 4: 50% Design Plans, Specifications, and Cost Estimate (PS&E) In conjunction with results obtained from completion of Task 3, Consultant shall perform the followings tasks, design improvement, and prepare and submit (PDF for City review) the contract documents (PS&E) at 50% completion stage:

A) Kelley Reservoir & Pump Station
a. Installation of canopy for the generator, hydro tank, and pumps
b. Improvements to address onsite/offsite drainage
deficiencies.

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c. Capacity review of tank overflow system and site drainage discharge facilities for improvements to accommodate
overflow due to SCADA failure to stop pumping.
d. Driveway improvements from Whitegate Drive to tank pad. e. Pump Station fire hardening Improvements to protect the facilities in case of wildfires.
f. Topographic/utility base maps*
B) Freeway Reservoir
a. Design improvements to existing drainage facilities and tank overflow piping
b. Design to contain overflow onsite
c. Replacement of a section of the perimeter fence
d. Topographic/utility base maps*
C) Lone Oak Pump Station
a. Design to replace existing roof with bigger maintenance access
b. Installation of LED lighting and new Double Door
c. Design of new emergency generator and required
improvements for its complete installation, enclosure,
connection, SCADA integration, and operation.
d. Pump Station fire hardening Improvements to protect the facilities in case of wildfires.
e. Topographic/utility base maps*
D) Erbes Pump Station
a. Installation of canopy for the surge tank and pumps
b. Roof replacement
c. Protection of Pump Station from Oak Tree falling
d. Design of new emergency generator and required
improvements for its complete installation, connection, SCADA integration, and operation.
e. Pump Station fire hardening Improvements to protect the facilities in case of wildfires.
f. Topographic/utility base maps*
E) Meadows Reservoir
a. Install canopy for Chlorine Analyzer
b. Installation of vault safety railing
c. Installation of a new vault access gate preferably sliding gate F) Wilder Reservoir & Pump Station
a. Installation of a vault cover
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b. Pump Station fire hardening Improvements to protect the facilities in case of wildfires.

G) Lang Ranch Reservoir & Pump Station
a. Installation of canopy for the surge tank and pumps
b. Design drainage improvements to prevent flow getting under the tank, expose tank pad weep holes and new drainage
c. Installation of retaining wall
d. Replacement of a section of the perimeter fence
e. Upgrade entry gate
f. Expansion to the existing Pump Station to house water quality boosting sked.
g. Pump Station fire hardening Improvements to protect the facilities in case of wildfires.
h. Topographic/utility base maps*
H) Sunset #3 Reservoir & Hydro Pump Station
a. Installation of canopy for hydro tank and generator
b. Pump Station roof improvements
c. V-ditch drainage repair (behind Sunset #3)
d. Topographic/utility base maps*
I) Sunset #2 Reservoir & Pump Station
a. Installation of canopy for pumps
b. Pump pad extension
c. Pump Station fire hardening Improvements to protect the facilities in case of wildfires.

J) Sunset #1 Pump Station
a. Improvements for proper and full operation of the existing surge tank.
b. Pump Station fire hardening Improvements to protect the facilities in case of wildfires.

K) Oakbrook Reservoir
a. Canopy for Chlorine Analyzer PLC.
b. Replacement of a section of the perimeter fence.

L) Arboles Pump Station
a. Roof Improvements
b. Improvements for proper and full operation of the existing surge tank.
c. Drainage improvements
d. Pump Station fire hardening Improvements to protect the facilities in case of wildfires.

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e. Topographic/utility base maps*
M) Ventu Park Pump Station
a. Replacement of a section of the perimeter fence
b. Improvements to the existing gate
c. Pump Station fire hardening Improvements to protect the facilities in case of wildfires.

N) Pederson Reservoir & Pump Station
a. Gate and Driveway Improvements (wider)
b. Pump Station fire hardening Improvements to protect the facilities in case of wildfires.

O) Willow Reservoir & Pump Station
a. Roof Improvements
b. Pump Station fire hardening Improvements to protect the facilities in case of wildfires.
* Consultant shall prepare topographic/utility base maps using aerial photos (GIS) and acquired field data and measurements at a scale of 1"=20' to be used as applicable for design and construction plans. Property boundaries shall be retraced along the proposed improvements and shown on the maps based upon field located monuments field measurements, and record information. The Scope of this Sub-Task varies for each site depending on applicable improvements.

Task 5: City Review Comments (50% PS&E) Workshop
Workshop #2 (allow for 4-hr workshop) - Consultant shall arrange and conduct an in-person workshop with City staff to discuss review comments on 50% PS&E.

Task 6: 90% Design Plans, Specifications, and Cost Estimate (PS&E) Consultant shall incorporate the outcome of Workshop #2 and City review comments into project contract documents and prepare and submit the 90% PS&E for City review (PDF). Consultant shall be responsible for preparing the technical section, bid schedule, and measurement and payment section of the project specifications. The specifications shall be in the City approved format (City will provide samples).

Task 7: Final Draft PS&E)
Incorporate all comments from Task 6 and prepare and submit final draft (100%) for one final check by City staff.

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Task 8: Final PS&E
Incorporate comments from Task 7 and prepare and submit the final PS&E ready to be advertised for bids (one signed and stamped full size set on bond paper for City’s signature + PDF).

Task 8.1 Group improvements into four separate sets of Construction plans (as directed by the City).

Task 8.2 Group improvements into four separate sets of Final Specifications ad Cost Estimates ( as directed by the City).

Tasks 81. and 8.2 shall provide for bidding the project for four separate construction contracts.

Task 9: Optional/Additional Scope
Task 9.1 Additional SCADA Integration at site (TBD by the City).

Task 9.2 Permitting (as required and directed by the City).

Task 9.3 Additional Design for added Misc. improvements at City’s Request.

Task 10: Services During Bid Process
Consultant shall provide engineering support services during the bid phase for 4 projects:

Task 10.1 Attend Pre-Bid Meeting
Consultant shall attend and conduct a mandatory pre-bid meeting (allow 4 hours – in person) prior to the bid opening. Consultant shall present an overview of the project to get the bidders familiar with the project scope and requirements, and to answer any questions they may have. Visiting the sites that Consultant may believe would have an impact on the bids, shall be included and scheduled as part of the pre-bid meeting. Consultant shall prepare meeting notes and log questions from bidders and prepare an addendum for City signature to incorporate all responses to perspective bidders.

Task 10.2 Respond to Requests for Information (RFI’s)
Consultant shall prepare response to up to ten (10) official Request for Information / Clarifications (RFI/RFC) submitted by the bidding contractors to interpret and clarify bidding documents and provide understanding of the project scope. Response to all RFI’s shall be by issuing addenda (see Task 9.3)
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Task 10.3 Provide Addenda as necessary (up to 4)
Consultant shall make corrections, clarifications, modifications, and additions to the construction contract documents (after advertised for bids), address the pre-bid meeting questions, and respond to RFI/RFCs through issuance of up to four Addenda.

Task 10.4 Bids Review & Analysis
Review lowest bid received for accuracy, bidder’s qualifications, and responsiveness, and call bidders’ references for their experience.
• Meeting Agendas (Electronic MS Word and PDF)
• Meeting Notes (Electronic MS Word and PDF)

STANDARDS OF WORK
Standards of work include, but are not limited to, the following:

1. All analyses and recommendations shall be based on the latest applicable codes and engineering calculations to properly size the required systems for the facilities involved.

2. All drawings shall be delivered in AutoCAD dwg format with a layering standard capable of being translated to the City’s CAD and drafting standards using AutoCAD’s CAD standards translator. Specifications shall be provided in Microsoft Word.doc document format for inclusion with the City’s documents, without the need for document format changes.

3. All dimensions shall be in English Units.

PROJECT SCHEDULE
Consultant shall prepare and update a project schedule with tasks and milestones represented in Microsoft Project or Excel. Consultant shall break down the schedule by logical tasks consistent with the scope of work and with enough detail to track project progress. Both a baseline schedule and tracking updates are required. The schedule must reflect realistic estimates of review periods by the City staff for tasks, such as reports, plans, and coordination.

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ADMINISTRATION
Consultant shall submit a consolidated monthly invoice in a format acceptable to the City and broken down in a manner consistent with the Work Plan (see below). Consultant shall include with the monthly invoice a progress report that reflects the work completed within the invoice period.

1. Consultant shall provide the City with copies of written correspondence between Consultant and third parties pertaining specifically to the Project.

2. Consultant shall maintain the project files in accordance with the Work Plan.

3. Consultant shall prepare supporting documents as required.

FORMAL SUBMISSION
Contract documents furnished under this Scope of Work shall be of a quality acceptable to the City. Deliverables must: be of neat appearance, organized and technically and grammatically correct, reflect the incorporation of the City, and other agency review comments, and be checked to meet all of the contract requirements. Final documents shall be submitted to the City in electronic files, upon completion or as otherwise directed by the City.

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EXHIBIT B
AECOM

FEE SCHEDULE FOR PROFESSIONAL SERVICES
Effective January 1, 2023
Engineers, Planners, Architects, Scientists:

Technician $ 92.00 per hour
Engineer l/Specialist l $ 105.00 per hour
Engineer II/Specialist ll $ 137.00 per hour
Engineer lll/Specialist lll $ 161.00 per hour
Engineer IV $ 180.00 per hour
Engineer V $ 205.00 per hour
Engineer VI $ 245.00 per hour
Engineer VII $ 267.00 per hour
Engineer VIII $ 289.00 per hour
Project Manager I $ 207.00 per hour
Project Manager II $ 210.00 per hour
Project Manager III $ 261.00 per hour
Project Manager IV $ 290.00 per hour
Principal $ 298.00 per hour
Construction Administration Personnel:

Resident Project Representative $ 149.00 per hour
Senior 1 Resident Project Representative $ 162.00 per hour Senior 2 Resident Engineer $ 180.00 per hour
Resident Engineer $ 211.00 per hour
Construction Services Manager $ 278.00 per hour
Technical Support Staff:

Clerical/General Office $ 92.00 per hour
Administrative Specialist $ 110.00 per hour
Drafter/CADD Technician $ 93.00 per hour
Assistant CADD Operator $ 115.00 per hour
Designer/CADD Operator $ 130.00 per hour
Senior Designer/Design CADD Operator $ 154.00 per hour
Design/CADD Supervisor $ 170.00 per hour
Direct Project Expenses
Other Reproduction (8 1/2 x11 / 11x17 Color) $1.15 / 1.50 per page Plan Sheet Printing - In House Bond/Vellum/Mylar $3.00/4.00/7.00 per sheet Subcontracted Services/Reproduction Cost + 15%
Subcontracted or Subconsultant Services Cost + 15%
Auto Mileage for Construction Phase Services IRS rate per mile Travel & Subsistence (other than mileage) Cost
Miscellaneous Materials Cost + 15%
Fee schedule is subject to change annually.

Fee Schedule is subject to change annually, upon mutual agreement. Rates for additional classifications not identified above will be submitted to the client for approval prior to work on task order.

If authorized by the Client, an overtime premium multiplier of 1.5 may be applied to the billing rate of hourly personnel who work overtime to meet a deadline which cannot be met during normal business hours.

Item No.7M
TO: Andrew P. Powers, City Manager
FROM: Clifford G. Finley, Public Works Director
DATE: June 20, 2023
SUBJECT: Purchase of Stump Grinder and Utility Trucks
RECOMMENDATION:

1. Approve “piggyback” purchase of one SC552 Vermeer Stump Grinder from RDO Equipment Company (Oxnard, CA) through Sourcewell Contract #031721-VRM for replacement of asset #5630-247 for a total cost of $81,989.20.

2. Approve “piggyback” purchase of three International Trucks from Gibbs International Truck Centers (Oxnard, CA) through Sourcewell Contract #060920- NVS for replacement of assets #5630-216, #5630-224 and #5640-149 for a total cost of $410,475.45.

3. Authorize expenditure in the amount of $492,464.65 in FY 2022-23 from the following General Fund accounts: $372,476.79 from A/C #001-5630-632-8400 (Landscape Maintenance Equipment Over $5,000) and $119,987.86 from A/C #001-5640-631-8400 (Fleet Service Equipment Over $5,000).

4. Find that this action is not a project as defined under the California Environmental Quality Act.

FINANCIAL IMPACT:

No Additional Funding Requested. The total of this purchase in the amount of $492,464.65 is included in the Adopted FY 2022-23 General Fund Budget. This purchase will be partially offset by $220,683 in fixed asset replacement funds.

BACKGROUND:

The City’s Municipal Service Center (MSC) provides regular maintenance and repairs to the City’s infrastructure and requires certain essential equipment to conduct these services. Utility trucks are used to transport tools necessary for various types of operations and repairs, including routine or emergency maintenance of water or wastewater lines, streets, sidewalks, and City-maintained landscape. Additionally, the Landscape Division relies on stump grinders that play Item No.7N
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a crucial role in preventing continued growth of infrastructure damaging roots and avoiding underground safety hazards during tree removal processes.

As part of the replacement evaluation process, staff examines vehicles and equipment of this type after 10 years of service, considering hours or miles of use, mechanical condition, continued safe operation, functionality requirements and adherence to California off-road diesel emission standards set by the California Air Resources Board (CARB). The CARB Regulation pertaining to most diesel-fueled buses and trucks that weigh over 14,000 pounds states that engines manufactured in 2009 or earlier must be replaced or repowered to remain in compliance and avoid DMV registration denial.

Staff recommends replacing the assets as listed below due to factors such as age, usage duration, mileage, and compliance to CARB regulations. As these assets play a crucial role in the operations of the Public Works Department Landscape and Fleet Divisions, it is necessary to replace them.

Department/
Division Asset Year Existing Make/Model
Current
Hours/Miles
Replacement
Make/Model
Public Works/
Landscape 5630-247 2003 Vermeer SC652Stump Grinder 1,529 hours Vermeer SC552
Public Works/
Landscape 5630-216 2001
International
4700
Utility Truck
72,813 miles International
MV607
Public Works/
Landscape 5630-224 2003 Ford F650Utility Truck
108,617
miles
International
MV607
Public Works/
Fleet 5640-149 2008 Ford F250 Utility Truck 52,665 miles InternationalCV515 DISCUSSION/ANALYSIS:

Pursuant to Thousand Oaks Municipal Code (TOMC) Section 3-10.203(b), the City may “piggyback” onto, or join an existing written purchase contract obtained through a competitive bidding process prepared and awarded by another local, state, or federal government agency. The City partners with Sourcewell, which provides public sector procurement services nationwide and streamlines the required purchasing process to assist local government agencies to obtain compliant competitive bids on supplies and materials. All cooperative purchasing contracts from Sourcewell were competitively solicited and publicly awarded by a government entity acting as the lead agency. Piggybacking on a larger contract generally affords better pricing based on their aggregate purchasing volume.

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Stump Grinder Purchase
On January 27, 2021, Sourcewell published a Request for Proposals for Tree Maintenance Equipment, Attachments, and Accessories. On May 11, 2021, Sourcewell awarded the contract to Vermeer Manufacturing Company dba Vermeer Corporation (Pella, IA) for a contract term of four years, ending on May 7, 2025 (Attachment #1). Vermeer Pacific dba RDO Equipment Company is the local authorized distributer for Vermeer Corporation. Under the Sourcewell contract, the City will purchase one (1) Vermeer stump grinder in the amount of $81,989.20, receiving a discount of $9,487.74 from the published list price (Attachment #2).

Utility Truck Purchases
On April 16, 2020, Sourcewell published a Request for Proposals (RFP) for Class 4-8 Chassis with Related Equipment, Accessories, and Services. On August 5, 2020, Sourcewell awarded the contract to Navistar, Inc. dba International Truck (Lisle, IL) for a contract term of four years, ending on August 1, 2024 (Attachment #3). Gibbs International is a local authorized distributer for International Truck.

Under the Sourcewell contract, the City will purchase three (3) International Utility Trucks in the amount of $410,475.45, receiving a combined discount of $142,494.03 from the published list prices (Attachments #4-6), referenced in detail below.

Replacement Truck Purchase Price Discount
International MV607
Landscape Utility Dump Truck $ 139,337.00 $ 48,551.68
International MV607
Utility Chipper Box Truck $ 151,150.59 $ 52,376.93
International CV515
Utility Fleet Service Truck $ 119,987.86 $ 41,565.42
Total $ 410,475.45 $ 142,494.03
The replacement International utility trucks and Vermeer stump grinder will be purchased as Original Equipment Manufacturer (OEM) renewable diesel, an alternative fuel, maintaining the City’s vehicle fleet at 68 percent alternatively fueled and will be compliant with CARB Tier 4 Regulations.

Summary
To ensure efficient service to residents and safeguarding of public infrastructure, it is imperative that the City's vehicles and equipment are well-maintained and environmentally compliant. In line with this objective, staff recommends the purchase of three International utility trucks and a Vermeer stump grinder to Item No.7N
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replace the current outmoded assets.

The existing three utility trucks and stump grinder will be listed for sale on the public auction website in accordance with the City’s Purchasing Manual, Chapter 8, Surplus Property, Section 1: “Any and all equipment purchased with public funds shall be accounted for and disposed of in the most profitable way for the government entity”.

COUNCIL GOAL COMPLIANCE:

Meets the following City Council goals:

PREPARED BY: Donald Covarrubias, Fleet Services Supervisor Attachments:

Attachment #1 – Sourcewell Contract #031721-VRM
Attachment #2 – RDO Equipment Company Quote
Attachment #3 – Sourcewell Contract #060920-NVS
Attachment #4 – Gibbs International Truck Centers Quote #1 Attachment #5 – Gibbs International Truck Centers Quote #2 Attachment #6 – Gibbs International Truck Centers Quote #3 DPW: 241-20\cp\ev\H:\Council\2023\062023\Purchase one Stump Grinder and three Utility Trucks staff report.docx Item No.7N
031721-VRM
1 Solicitation Number: RFP #031721

CONTRACT
This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 (Sourcewell) and Vermeer Manufacturing Company dba Vermeer Corporation, 1210 Vermeer Road East, Pella, IA 50219 (Vendor).

Sourcewell is a State of Minnesota local government agency and service cooperative created under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that offers cooperative procurement solutions to government entities. Participation is open to federal, state/province, and municipal governmental entities, higher education, K-12 education, nonprofit, tribal government, and other public entities located in the United States and Canada.

Sourcewell issued a public solicitation for Tree Maintenance Equipment, Attachments, and Accessories from which Vendor was awarded a contract.

Vendor desires to contract with Sourcewell to provide equipment, products, or services to Sourcewell and the entities that access Sourcewell’s cooperative purchasing contracts (Participating Entities).

1. TERM OF CONTRACT
A. EFFECTIVE DATE. This Contract is effective upon the date of the final signature below.

B. EXPIRATION DATE AND EXTENSION. This Contract expires May 7, 2025, unless it is cancelled sooner pursuant to Article 22. This Contract may be extended up to one additional one-year period upon request of Sourcewell and with written agreement by Vendor.

C. SURVIVAL OF TERMS. Articles 11 through 14 survive the expiration or cancellation of this Contract.

2. EQUIPMENT, PRODUCTS, OR SERVICES
A. EQUIPMENT, PRODUCTS, OR SERVICES. Vendor will provide the Equipment, Products, or Services as stated in its Proposal submitted under the Solicitation Number listed above.

Vendor’s Equipment, Products, or Services Proposal (Proposal) is attached and incorporated into this Contract.

ATTACHMENT #1
Rev. 10/2020
DPW: 241-20\cp\ev\H:\Council\2023\062023\ Fleet and Landscape Purchase Att

1.pdf
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All Equipment and Products provided under this Contract must be new/current model. Vendor may offer close-out or refurbished Equipment or Products if they are clearly indicated in Vendor’s product and pricing list. Unless agreed to by the Participating Entities in advance, Equipment or Products must be delivered as operational to the Participating Entity’s site.

This Contract offers an indefinite quantity of sales, and while substantial volume is anticipated, sales and sales volume are not guaranteed.

B. WARRANTY. Vendor warrants that all Equipment, Products, and Services furnished are free from liens and encumbrances, and are free from defects in design, materials, and workmanship.

In addition, Vendor warrants the Equipment, Products, and Services are suitable for and will perform in accordance with the ordinary use for which they are intended. Vendor’s dealers and distributors must agree to assist the Participating Entity in reaching a resolution in any dispute over warranty terms with the manufacturer. Any manufacturer’s warranty that is effective past the expiration of the Vendor’s warranty will be passed on to the Participating Entity.

C. DEALERS, DISTRIBUTORS, AND/OR RESELLERS. Upon Contract execution, Vendor will make available to Sourcewell a means to validate or authenticate Vendor’s authorized dealers, distributors, and/or resellers relative to the Equipment, Products, and Services related to this Contract. This list may be updated from time-to-time and is incorporated into this Contract by reference. It is the Vendor’s responsibility to ensure Sourcewell receives the most current version of this list.

3. PRICING
All Equipment, Products, or Services under this Contract will be priced as stated in Vendor’s Proposal.

When providing pricing quotes to Participating Entities, all pricing quoted must reflect a Participating Entity’s total cost of acquisition. This means that the quoted cost is for delivered Equipment, Products, and Services that are operational for their intended purpose, and includes all costs to the Participating Entity’s requested delivery location.

Regardless of the payment method chosen by the Participating Entity, the total cost associated with any purchase option of the Equipment, Products, or Services must always be disclosed in the pricing quote to the applicable Participating Entity at the time of purchase.

A. SHIPPING AND SHIPPING COSTS. All delivered Equipment and Products must be properly packaged. Damaged Equipment and Products may be rejected. If the damage is not readily apparent at the time of delivery, Vendor must permit the Equipment and Products to be returned within a reasonable time at no cost to Sourcewell or its Participating Entities.

Participating Entities reserve the right to inspect the Equipment and Products at a reasonable

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time after delivery where circumstances or conditions prevent effective inspection of the Equipment and Products at the time of delivery.

Vendor must arrange for and pay for the return shipment on Equipment and Products that arrive in a defective or inoperable condition.

Sourcewell may declare the Vendor in breach of this Contract if the Vendor intentionally delivers substandard or inferior Equipment or Products. In the event of the delivery of nonconforming Equipment and Products, the Participating Entity will notify the Vendor as soon as possible and the Vendor will replace nonconforming Equipment and Products with conforming Equipment and Products that are acceptable to the Participating Entity.

B. SALES TAX. Each Participating Entity is responsible for supplying the Vendor with valid taxexemption certification(s). When ordering, a Participating Entity must indicate if it is a taxexempt entity.

C. HOT LIST PRICING. At any time during this Contract, Vendor may offer a specific selection of Equipment, Products, or Services at discounts greater than those listed in the Contract.

When Vendor determines it will offer Hot List Pricing, it must be submitted electronically to Sourcewell in a line-item format. Equipment, Products, or Services may be added or removed from the Hot List at any time through a Sourcewell Price and Product Change Form as defined in Article 4 below.

Hot List program and pricing may also be used to discount and liquidate close-out and discontinued Equipment and Products as long as those close-out and discontinued items are clearly identified as such. Current ordering process and administrative fees apply. Hot List Pricing must be published and made available to all Participating Entities.

4. PRODUCT AND PRICING CHANGE REQUESTS
Vendor may request Equipment, Product, or Service changes, additions, or deletions at any time. All requests must be made in writing by submitting a signed Sourcewell Price and Product Change Request Form to the assigned Sourcewell Contract Administrator. This form is available from the assigned Sourcewell Contract Administrator. At a minimum, the request must:
x Identify the applicable Sourcewell contract number;
x Clearly specify the requested change;
x Provide sufficient detail to justify the requested change; x Individually list all Equipment, Products, or Services affected by the requested change, along with the requested change (e.g., addition, deletion, price change); and x Include a complete restatement of pricing documentation in Microsoft Excel with the effective date of the modified pricing, or product addition or deletion. The new pricing

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restatement must include all Equipment, Products, and Services offered, even for those items where pricing remains unchanged.

A fully executed Sourcewell Price and Product Request Form will become an amendment to this Contract and be incorporated by reference.

5. PARTICIPATION, CONTRACT ACCESS, AND PARTICIPATING ENTITY REQUIREMENTS

A. PARTICIPATION. Sourcewell’s cooperative contracts are available and open to public and nonprofit entities across the United States and Canada; such as federal, state/province, municipal, K-12 and higher education, tribal government, and other public entities.

The benefits of this Contract should be available to all Participating Entities that can legally access the Equipment, Products, or Services under this Contract. A Participating Entity’s authority to access this Contract is determined through its cooperative purchasing, interlocal, or joint powers laws. Any entity accessing benefits of this Contract will be considered a Service Member of Sourcewell during such time of access. Vendor understands that a Participating Entity’s use of this Contract is at the Participating Entity’s sole convenience and Participating Entities reserve the right to obtain like Equipment, Products, or Services from any other source.

Vendor is responsible for familiarizing its sales and service forces with Sourcewell contract use eligibility requirements and documentation and will encourage potential participating entities to join Sourcewell. Sourcewell reserves the right to add and remove Participating Entities to its roster during the term of this Contract.

B. PUBLIC FACILITIES. Vendor’s employees may be required to perform work at governmentowned facilities, including schools. Vendor’s employees and agents must conduct themselves in a professional manner while on the premises, and in accordance with Participating Entity policies and procedures, and all applicable laws.

6. PARTICIPATING ENTITY USE AND PURCHASING
A. ORDERS AND PAYMENT. To access the contracted Equipment, Products, or Services under this Contract, a Participating Entity must clearly indicate to Vendor that it intends to access this Contract; however, order flow and procedure will be developed jointly between Sourcewell and Vendor. Typically, a Participating Entity will issue an order directly to Vendor. If a Participating Entity issues a purchase order, it may use its own forms, but the purchase order should clearly note the applicable Sourcewell contract number. All Participating Entity orders under this Contract must be issued prior to expiration of this Contract; however, Vendor performance, Participating Entity payment, and any applicable warranty periods or other Vendor or Participating Entity obligations may extend beyond the term of this Contract.

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Vendor’s acceptable forms of payment are included in Attachment A. Participating Entities will be solely responsible for payment and Sourcewell will have no liability for any unpaid invoice of any Participating Entity.

B. ADDITIONAL TERMS AND CONDITIONS/PARTICIPATING ADDENDUM. Additional terms and conditions to a purchase order, or other required transaction documentation, may be negotiated between a Participating Entity and Vendor, such as job or industry-specific requirements, legal requirements (e.g., affirmative action or immigration status requirements), or specific local policy requirements. Some Participating Entitles may require the use of a Participating Addendum; the terms of which will be worked out directly between the Participating Entity and the Vendor. Any negotiated additional terms and conditions must never be less favorable to the Participating Entity than what is contained in this Contract.

C. SPECIALIZED SERVICE REQUIREMENTS. In the event that the Participating Entity requires service or specialized performance requirements (such as e-commerce specifications, specialized delivery requirements, or other specifications and requirements) not addressed in this Contract, the Participating Entity and the Vendor may enter into a separate, standalone agreement, apart from this Contract. Sourcewell, including its agents and employees, will not be made a party to a claim for breach of such agreement.

D. TERMINATION OF ORDERS. Participating Entities may terminate an order, in whole or in part, immediately upon notice to Vendor in the event of any of the following events:

1. The Participating Entity fails to receive funding or appropriation from its governing body at levels sufficient to pay for the goods to be purchased;

2. Federal, state, or provincial laws or regulations prohibit the purchase or change the Participating Entity’s requirements; or

3. Vendor commits any material breach of this Contract or the additional terms agreed to between the Vendor and a Participating Entity.

E. GOVERNING LAW AND VENUE. The governing law and venue for any action related to a Participating Entity’s order will be determined by the Participating Entity making the purchase.

7. CUSTOMER SERVICE
A. PRIMARY ACCOUNT REPRESENTATIVE. Vendor will assign an Account Representative to Sourcewell for this Contract and must provide prompt notice to Sourcewell if that person is changed. The Account Representative will be responsible for:

x Maintenance and management of this Contract;
x Timely response to all Sourcewell and Participating Entity inquiries; and x Business reviews to Sourcewell and Participating Entities, if applicable.

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B. BUSINESS REVIEWS. Vendor must perform a minimum of one business review with Sourcewell per contract year. The business review will cover sales to Participating Entities, pricing and contract terms, administrative fees, supply issues, customer issues, and any other necessary information.

8. REPORT ON CONTRACT SALES ACTIVITY AND ADMINISTRATIVE FEE PAYMENT A. CONTRACT SALES ACTIVITY REPORT. Each calendar quarter, Vendor must provide a contract sales activity report (Report) to the Sourcewell Contract Administrator assigned to this Contract. A Report must be provided regardless of the number or amount of sales during that quarter (i.e., if there are no sales, Vendor must submit a report indicating no sales were made).

The Report must contain the following fields:
x Customer Name (e.g., City of Staples Highway Department); x Customer Physical Street Address;
x Customer City;
x Customer State/Province;
x Customer Zip Code;
x Customer Contact Name;
x Customer Contact Email Address;
x Customer Contact Telephone Number;
x Sourcewell Assigned Entity/Participating Entity Number; x Item Purchased Description;
x Item Purchased Price;
x Sourcewell Administrative Fee Applied; and
x Date Purchase was invoiced/sale was recognized as revenue by Vendor.

B. ADMINISTRATIVE FEE. In consideration for the support and services provided by Sourcewell, the Vendor will pay an administrative fee to Sourcewell on all Equipment, Products, and Services provided to Participating Entities. The Administrative Fee must be included in, and not added to, the pricing. Vendor may not charge Participating Entities more than the contracted price to offset the Administrative Fee.

The Vendor will submit payment to Sourcewell for 0.75% multiplied by the total sales of all Equipment, Products, and Services purchased by Participating Entities under this Contract during each calendar quarter. Payments should note the Vendor’s name and Sourcewellassigned contract number in the memo; and must be mailed to the address above “Attn:

Accounts Receivable” or remitted electronically to Sourcewell’s banking institution per Sourcewell’s Finance department instructions. Payments must be received no later than 45 calendar days after the end of each calendar quarter.

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Vendor agrees to cooperate with Sourcewell in auditing transactions under this Contract to ensure that the administrative fee is paid on all items purchased under this Contract.

In the event the Vendor is delinquent in any undisputed administrative fees, Sourcewell reserves the right to cancel this Contract and reject any proposal submitted by the Vendor in any subsequent solicitation. In the event this Contract is cancelled by either party prior to the Contract’s expiration date, the administrative fee payment will be due no more than 30 days from the cancellation date.

9. AUTHORIZED REPRESENTATIVE
Sourcewell's Authorized Representative is its Chief Procurement Officer.

Vendor’s Authorized Representative is the person named in the Vendor’s Proposal. If Vendor’s Authorized Representative changes at any time during this Contract, Vendor must promptly notify Sourcewell in writing.

10. AUDIT, ASSIGNMENT, AMENDMENTS, WAIVER, AND CONTRACT COMPLETE A. AUDIT. Pursuant to Minnesota Statutes Section 16C.05, subdivision 5, the books, records, documents, and accounting procedures and practices relevant this Agreement are subject to examination by Sourcewell or the Minnesota State Auditor for a minimum of six years from the end of this Contract. This clause extends to Participating Entities as it relates to business conducted by that Participating Entity under this Contract.

B. ASSIGNMENT. Neither the Vendor nor Sourcewell may assign or transfer any rights or obligations under this Contract without the prior consent of the parties and a fully executed assignment agreement. Such consent will not be unreasonably withheld.

C. AMENDMENTS. Any amendment to this Contract must be in writing and will not be effective until it has been fully executed by the parties.

D. WAIVER. If either party fails to enforce any provision of this Contract, that failure does not waive the provision or the right to enforce it.

E. CONTRACT COMPLETE. This Contract contains all negotiations and agreements between Sourcewell and Vendor. No other understanding regarding this Contract, whether written or oral, may be used to bind either party. For any conflict between the attached Proposal and the terms set out in Articles 1-22, the terms of Articles 1-22 will govern.

F. RELATIONSHIP OF THE PARTIES. The relationship of the parties is one of independent contractors, each free to exercise judgment and discretion with regard to the conduct of their

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respective businesses. This Contract does not create a partnership, joint venture, or any other relationship such as master-servant, or principal-agent.

11. LIABILITY

Vendor must indemnify, save, and hold Sourcewell and its Participating Entities, including their agents and employees, harmless from any claims or causes of action, including attorneys’ fees, arising out of the performance of this Contract by the Vendor or its agents or employees; this indemnification includes injury or death to person(s) or property alleged to have been caused by some defect in the Equipment, Products, or Services under this Contract to the extent the Equipment, Product, or Service has been used according to its specifications.

12. GOVERNMENT DATA PRACTICES
Vendor and Sourcewell must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data provided by or provided to Sourcewell under this Contract and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by the Vendor under this Contract.

If the Vendor receives a request to release the data referred to in this article, the Vendor must immediately notify Sourcewell and Sourcewell will assist with how the Vendor should respond to the request.

13. INTELLECTUAL PROPERTY, PUBLICITY, MARKETING, AND ENDORSEMENT A. INTELLECTUAL PROPERTY

1. Grant of License. During the term of this Contract:
a. Sourcewell grants to Vendor a royalty-free, worldwide, non-exclusive right and license to use theTrademark(s) provided to Vendor by Sourcewell in advertising and promotional materials for the purpose of marketing Sourcewell’s relationship with Vendor.
b. Vendor grants to Sourcewell a royalty-free, worldwide, non-exclusive right and license to use Vendor’s Trademarks in advertising and promotional materials for the purpose of marketing Vendor’s relationship with Sourcewell.

2. Limited Right of Sublicense. The right and license granted herein includes a limited right of each party to grant sublicenses to its and their respective distributors, marketing representatives, and agents (collectively “Permitted Sublicensees”) in advertising and promotional materials for the purpose of marketing the Parties’ relationship to Participating Entities. Any sublicense granted will be subject to the terms and conditions of this Article.

Each party will be responsible for any breach of this Article by any of their respective sublicensees.

3. Use; Quality Control.

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a. Sourcewell must not alter Vendor’s Trademarks from the form provided by Vendor and must comply with Vendor’s removal requests as to specific uses of its trademarks or logos.
b. Vendor must not alter Sourcewell’s Trademarks from the form provided by Sourcewell and must comply with Sourcewell’s removal requests as to specific uses of its trademarks or logos.
c. Each party agrees to use, and to cause its Permitted Sublicensees to use, the other party’s Trademarks only in good faith and in a dignified manner consistent with such party’s use of the Trademarks. Upon written notice to the breaching party, the breaching party has 30 days of the date of the written notice to cure the breach or the license will be terminated.

4. As applicable, Vendor agrees to indemnify and hold harmless Sourcewell and its Participating Entities against any and all suits, claims, judgments, and costs instituted or recovered against Sourcewell or Participating Entities by any person on account of the use of any Equipment or Products by Sourcewell or its Participating Entities supplied by Vendor in violation of applicable patent or copyright laws.

5. Termination. Upon the termination of this Contract for any reason, each party, including Permitted Sublicensees, will have 30 days to remove all Trademarks from signage, websites, and the like bearing the other party’s name or logo (excepting Sourcewell’s pre-printed catalog of vendors which may be used until the next printing). Vendor must return all marketing and promotional materials, including signage, provided by Sourcewell, or dispose of it according to Sourcewell’s written directions.

B. PUBLICITY. Any publicity regarding the subject matter of this Contract must not be released without prior written approval from the Authorized Representatives. Publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Vendor individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Contract.

C. MARKETING. Any direct advertising, marketing, or offers with Participating Entities must be approved by Sourcewell. Materials should be sent to the Sourcewell Contract Administrator assigned to this Contract.

D. ENDORSEMENT. The Vendor must not claim that Sourcewell endorses its Equipment, Products, or Services.

14. GOVERNING LAW, JURISDICTION, AND VENUE
Minnesota law governs this Contract. Venue for all legal proceedings out of this Contract, or its breach, must be in the appropriate state court in Todd County or federal court in Fergus Falls, Minnesota.

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15. FORCE MAJEURE
Neither party to this Contract will be held responsible for delay or default caused by acts of God or other conditions that are beyond that party’s reasonable control. A party defaulting under this provision must provide the other party prompt written notice of the default.

16. SEVERABILITY
If any provision of this Contract is found to be illegal, unenforceable, or void then both Sourcewell and Vendor will be relieved of all obligations arising under such provisions. If the remainder of this Contract is capable of performance, it will not be affected by such declaration or finding and must be fully performed.

17. PERFORMANCE, DEFAULT, AND REMEDIES
A. PERFORMANCE. During the term of this Contract, the parties will monitor performance and address unresolved contract issues as follows:

1. Notification. The parties must promptly notify each other of any known dispute and work in good faith to resolve such dispute within a reasonable period of time. If necessary, Sourcewell and the Vendor will jointly develop a short briefing document that describes the issue(s), relevant impact, and positions of both parties.

2. Escalation. If parties are unable to resolve the issue in a timely manner, as specified above, either Sourcewell or Vendor may escalate the resolution of the issue to a higher level of management. The Vendor will have 30 calendar days to cure an outstanding issue.

3. Performance while Dispute is Pending. Notwithstanding the existence of a dispute, the Vendor must continue without delay to carry out all of its responsibilities under the Contract that are not affected by the dispute. If the Vendor fails to continue without delay to perform its responsibilities under the Contract, in the accomplishment of all undisputed work, any additional costs incurred by Sourcewell and/or its Participating Entities as a result of such failure to proceed will be borne by the Vendor.

B. DEFAULT AND REMEDIES. Either of the following constitutes cause to declare this Contract, or any Participating Entity order under this Contract, in default:

1. Nonperformance of contractual requirements, or

2. A material breach of any term or condition of this Contract.

Written notice of default and a reasonable opportunity to cure must be issued by the party claiming default. Time allowed for cure will not diminish or eliminate any liability for liquidated or other damages. If the default remains after the opportunity for cure, the non-defaulting party may:

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x Exercise any remedy provided by law or equity, or
x Terminate the Contract or any portion thereof, including any orders issued against the Contract.

18. INSURANCE

A. REQUIREMENTS. At its own expense, Vendor must maintain insurance policy(ies) in effect at all times during the performance of this Contract with insurance company(ies) licensed or authorized to do business in the State of Minnesota having an “AM BEST” rating of A- or better, with coverage and limits of insurance not less than the following:

1. Workers’ Compensation and Employer’s Liability.

Workers’ Compensation: As required by any applicable law or regulation.

Employer's Liability Insurance: must be provided in amounts not less than listed below:

Minimum limits:
$500,000 each accident for bodily injury by accident
$500,000 policy limit for bodily injury by disease
$500,000 each employee for bodily injury by disease

2. Commercial General Liability Insurance. Vendor will maintain insurance covering its operations, with coverage on an occurrence basis, and must be subject to terms no less broad than the Insurance Services Office (“ISO”) Commercial General Liability Form CG0001 (2001 or newer edition), or equivalent. At a minimum, coverage must include liability arising from premises, operations, bodily injury and property damage, independent contractors, products-completed operations including construction defect, contractual liability, blanket contractual liability, and personal injury and advertising injury. All required limits, terms and conditions of coverage must be maintained during the term of this Contract.

Minimum Limits:
$1,000,000 each occurrence Bodily Injury and Property Damage $1,000,000 Personal and Advertising Injury
$2,000,000 aggregate for Products-Completed operations
$2,000,000 general aggregate

3. Commercial Automobile Liability Insurance. During the term of this Contract, Vendor will maintain insurance covering all owned, hired, and non-owned automobiles in limits of liability not less than indicated below. The coverage must be subject to terms no less broad than ISO Business Auto Coverage Form CA 0001 (2010 edition or newer), or equivalent.

Minimum Limits:
$1,000,000 each accident, combined single limit

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4. Umbrella Insurance. During the term of this Contract, Vendor will maintain umbrella coverage over Workers’ Compensation, Commercial General Liability, and Commercial Automobile.

Minimum Limits:
$2,000,000

5. Network Security and Privacy Liability Insurance. During the term of this Contract, Vendor will maintain coverage for network security and privacy liability. The coverage may be endorsed on another form of liability coverage or written on a standalone policy. The insurance must cover claims which may arise from failure of Vendor’s security resulting in, but not limited to, computer attacks, unauthorized access, disclosure of not public data – including but not limited to, confidential or private information, transmission of a computer virus, or denial of service.

Minimum limits:
$2,000,000 per occurrence
$2,000,000 annual aggregate
Failure of Vendor to maintain the required insurance will constitute a material breach entitling Sourcewell to immediately terminate this Contract for default.

B. CERTIFICATES OF INSURANCE. Prior to commencing under this Contract, Vendor must furnish to Sourcewell a certificate of insurance, as evidence of the insurance required under this Contract. Prior to expiration of the policy(ies), renewal certificates must be mailed to Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 or sent to the Sourcewell Contract Administrator assigned to this Contract. The certificates must be signed by a person authorized by the insurer(s) to bind coverage on their behalf.

Failure to request certificates of insurance by Sourcewell, or failure of Vendor to provide certificates of insurance, in no way limits or relieves Vendor of its duties and responsibilities in this Contract.

C. ADDITIONAL INSURED ENDORSEMENT AND PRIMARY AND NON-CONTRIBUTORY INSURANCE CLAUSE. Vendor agrees to list Sourcewell and its Participating Entities, including their officers, agents, and employees, as an additional insured under the Vendor’s commercial general liability insurance policy with respect to liability arising out of activities, “operations,” or “work” performed by or on behalf of Vendor, and products and completed operations of Vendor. The policy provision(s) or endorsement(s) must further provide that coverage is primary and not excess over or contributory with any other valid, applicable, and collectible insurance or self-insurance in force for the additional insureds.

D. WAIVER OF SUBROGATION. Vendor waives and must require (by endorsement or otherwise) all its insurers to waive subrogation rights against Sourcewell and other additional insureds for losses paid under the insurance policies required by this Contract or other

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insurance applicable to the Vendor or its subcontractors. The waiver must apply to all deductibles and/or self-insured retentions applicable to the required or any other insurance maintained by the Vendor or its subcontractors. Where permitted by law, Vendor must require similar written express waivers of subrogation and insurance clauses from each of its subcontractors.

E. UMBRELLA/EXCESS LIABILITY/SELF-INSURED RETENTION. The limits required by this Contract can be met by either providing a primary policy or in combination with umbrella/excess liability policy(ies), or self-insured retention.

19. COMPLIANCE
A. LAWS AND REGULATIONS. All Equipment, Products, or Services provided under this Contract must comply fully with applicable federal laws and regulations, and with the laws in the states and provinces in which the Equipment, Products, or Services are sold.

B. LICENSES. Vendor must maintain a valid and current status on all required federal, state/provincial, and local licenses, bonds, and permits required for the operation of the business that the Vendor conducts with Sourcewell and Participating Entities.

20. BANKRUPTCY, DEBARMENT, OR SUSPENSION CERTIFICATION
Vendor certifies and warrants that it is not in bankruptcy or that it has previously disclosed in writing certain information to Sourcewell related to bankruptcy actions. If at any time during this Contract Vendor declares bankruptcy, Vendor must immediately notify Sourcewell in writing.

Vendor certifies and warrants that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs operated by the State of Minnesota; the United States federal government or the Canadian government, as applicable; or any Participating Entity. Vendor certifies and warrants that neither it nor its principals have been convicted of a criminal offense related to the subject matter of this Contract. Vendor further warrants that it will provide immediate written notice to Sourcewell if this certification changes at any time.

21. PROVISIONS FOR NON-UNITED STATES FEDERAL ENTITY PROCUREMENTS UNDER

UNITED STATES FEDERAL AWARDS OR OTHER AWARDS
Participating Entities that use United States federal grant or FEMA funds to purchase goods or services from this Contract may be subject to additional requirements including the procurement standards of the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 C.F.R. § 200. Participating Entities may also require additional requirements based on specific funding specifications. Within this Article, all

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references to “federal” should be interpreted to mean the United States federal government.

The following list only applies when a Participating Entity accesses Vendor’s Equipment, Products, or Services with United States federal funds.

A. EQUAL EMPLOYMENT OPPORTUNITY. Except as otherwise provided under 41 C.F.R. § 60, all contracts that meet the definition of “federally assisted construction contract” in 41 C.F.R. § 60-

1.3 must include the equal opportunity clause provided under 41 C.F.R. §60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. §, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 C.F.R. § 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The equal opportunity clause is incorporated herein by reference.

B. DAVIS-BACON ACT, AS AMENDED (40 U.S.C. § 3141-3148). When required by federal program legislation, all prime construction contracts in excess of $2,000 awarded by nonfederal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. § 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 C.F.R. § 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-federal entity must report all suspected or reported violations to the federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations (29 C.F.R. § 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-federal entity must report all suspected or reported violations to the federal awarding agency. Vendor must be in compliance with all applicable Davis-Bacon Act provisions.

C. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (40 U.S.C. § 3701-3708). Where applicable, all contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. § 5).

Under 40 U.S.C. § 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of

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not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. This provision is hereby incorporated by reference into this Contract. Vendor certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Vendor must comply with applicable requirements as referenced above.

D. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT. If the federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 C.F.R. § 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. Vendor certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Vendor must comply with applicable requirements as referenced above.

E. CLEAN AIR ACT (42 U.S.C. § 7401-7671Q.) AND THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. § 1251-1387). Contracts and subgrants of amounts in excess of $150,000 require the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. § 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. § 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). Vendor certifies that during the term of this Contract will comply with applicable requirements as referenced above.

F. DEBARMENT AND SUSPENSION (EXECUTIVE ORDERS 12549 AND 12689). A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 C.F.R. §180 that implement Executive Orders 12549 (3 C.F.R. § 1986 Comp., p. 189) and 12689 (3 C.F.R. § 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. Vendor certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency.

G. BYRD ANTI-LOBBYING AMENDMENT, AS AMENDED (31 U.S.C. § 1352). Vendors must file any required certifications. Vendors must not have used federal appropriated funds to pay any

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person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Vendors must disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the non-federal award. Vendors must file all certifications and disclosures required by, and otherwise comply with, the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352).

H. RECORD RETENTION REQUIREMENTS. To the extent applicable, Vendor must comply with the record retention requirements detailed in 2 C.F.R. § 200.333. The Vendor further certifies that it will retain all records as required by 2 C.F.R. § 200.333 for a period of 3 years after grantees or subgrantees submit final expenditure reports or quarterly or annual financial reports, as applicable, and all other pending matters are closed.

I. ENERGY POLICY AND CONSERVATION ACT COMPLIANCE. To the extent applicable, Vendor must comply with the mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.

J. BUY AMERICAN PROVISIONS COMPLIANCE. To the extent applicable, Vendor must comply with all applicable provisions of the Buy American Act. Purchases made in accordance with the Buy American Act must follow the applicable procurement rules calling for free and open competition.

K. ACCESS TO RECORDS (2 C.F.R. § 200.336). Vendor agrees that duly authorized representatives of a federal agency must have access to any books, documents, papers and records of Vendor that are directly pertinent to Vendor’s discharge of its obligations under this Contract for the purpose of making audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to Vendor’s personnel for the purpose of interview and discussion relating to such documents.

L. PROCUREMENT OF RECOVERED MATERIALS (2 C.F.R. § 200.322). A non-federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. § 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

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22. CANCELLATION
Sourcewell or Vendor may cancel this Contract at any time, with or without cause, upon 60 days’ written notice to the other party. However, Sourcewell may cancel this Contract immediately upon discovery of a material defect in any certification made in Vendor’s Proposal.

Cancellation of this Contract does not relieve either party of financial, product, or service obligations incurred or accrued prior to cancellation.

Sourcewell Vermeer Manufacturing Company dba
Vermeer Corporation
By: __________________________ By: __________________________ Jeremy Schwartz Chad Tousey
Title: Chief Procurement Officer Title: Corporate Accounts Manager Date: ________________________ Date: ________________________ Approved:

By: __________________________
Chad Coauette
Title: Executive Director/CEO
Date: ________________________

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Bid Number: RFP 031721 Vendor Name: Vermeer Corporation

DPW: 241-20\cp\J:\Council Items\062023 Fleet and Landscape Purchase\Attachment 1 Item No.7N
Retail Purchase Order
RDO Equipment Co.
701 N. Rice Ave
OXNARD CA, 93030
Phone: (805) 366-0070 - Fax: (520) 573-1295
Bill To:

CITY OF THOUSAND OAKS
1993 RANCHO CONEJO BLVD
THOUSAND OAKS, CA, 913201425

VENTURA ()
(805) 449-2499
Ship To:

CITY OF THOUSAND OAKS
1993 RANCHO CONEJO BLVD
THOUSAND OAKS, CA, 913201425
(805) 449-2499
Purchase Order Date:

Purchase Order #:

Purchaser Account #:

Customer Purchaser Type:

Customer Market Use:

Location of First Working Use:

Dealer Account Number:

Account Manager:

Phone:

Fax:

Email:
5/10/2023
1658665
2499024
THOUSAND OAKS, CA, 913201425
65210
Justin T Pratt
[email protected]
Comments
SOURCEWELL CONTRACT #031721-VRM
Equipment Information
Quantity Serial Number
Stock Number
Hours
(approx.)
Status / Year / Make / Model
Additional Items
Cash Price
1 WG133268/578608
X283317
0 New 2023 VERMEER SC552 $83,080.00
SC5521NRC ~SC552 NON RADIO REMOTE CONTROL OPTION
SC552054 KOHLER KDI1903TCR 56HP/42KW T4F/STG IV ENGINE
SC552041 SC552 VERMEER CUTTING SYSTEM (VCS)
SC552003 SC552 BASE MACHINE
Customer Discount Sourcewell Discount ($9,487.74)
Other Freight & Prep $3,061.50
Item Subtotal: $76,653.76
Equipment Subtotal: $76,653.76
Purchase Order Totals
Balance: $76,653.76
Total Taxable Amount: $73,592.26
CA STATE TAX: $4,415.54
CA COUNTY TAX: $183.98
CA SPECIAL TAX: $735.92
Sales Tax Total: $5,335.44
Sub Total: $81,989.20
Cash with Order: $0.00
Balance Due: $81,989.20

Page 1 ends

Thousand Oaks City CouncilJune 20, 2023

Thousand Oaks City Council
June 20, 2023