CONTRACT 5857 Professional Services Agreement CLOSEDAgreement No. 5857
Agreement No. [City Clerk assigns]_
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
ADASTRAGOV, INC.
This AGREEMENT is made and entered into this 71" day of February , 2020, by
and between the CITY OF EL SEGUNDO, a municipal corporation and general law city
("CITY") and ADASTRAGOV INC., a Delaware corporation ("CONSULTANT"). The
parties agree as follows:
1. CONSIDERATION.
A. As partial consideration, CONSULTANT agrees to perform the work listed
in the SCOPE OF SERVICES, below;
B. As additional consideration, CONSULTANT and CITY agree to abide by the
terms and conditions contained in this Agreement;
C� As additional consideration, CITY agrees to pay CONSULTANT a sum not
to exceed Forty-seven Thousand dollars ($47,000.XX/000) for
CONSULTANT's services. CITY may modify this amount as set forth
below. Unless otherwise specified by written amendment to this
Agreement, CITY will pay this sum as specified in the attached Exhibit "A,"
which is incorporated by reference.
2. SCOPE OF SERVICES,
A. CONSULTANT will perform services listed in the attached Exhibit "A," which
is incorporated by reference.
B. CONSULTANT will, in a professional manner, furnish all of the labor,
technical, administrative, professional and other personnel, all supplies and
materials, equipment, printing, vehicles, transportation, office space and
facilities, and all tests, testing and analyses, calculation, and all other means
whatsoever, except as herein otherwise expressly specified to be furnished
by CITY, necessary or proper to perform and complete the work and provide
the professional services required of CONSULTANT by this Agreement.
3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT
will use the appropriate generally accepted professional standards of practice existing at
the time of performance utilized by persons engaged in providing similar services. CITY
will continuously monitor CONSULTANT's services. CITY will notify CONSULTANT of
any deficiencies and CONSULTANT will have fifteen (15) days after such notification to
cure any shortcomings to CITY's satisfaction. Costs associated with curing the
deficiencies will be borne by CONSULTANT.
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4. PAYMENTS. For CITY to pay CONSULTANT as specified by this Agreement,
CONSULTANT must submit a detailed invoice to CITY which lists the hours worked and
hourly rates for each personnel category and reimbursable costs (all as set forth in Exhibit
"A") the tasks performed, the percentage of the task completed during the billing period,
the cumulative percentage completed for each task, the total cost of that work during the
preceding billing month and a cumulative cash flow curve showing projected and actual
expenditures versus time to date.
5. 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 the CITY. In the event the CITY has not appropriated
sufficient funds for payment of CONSULTANT services beyond the current fiscal year,
this Agreement will cover only those costs incurred up to the conclusion of the current
fiscal year.
6. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONSULTANT agrees that it has:
Carefully investigated and considered the scope of services to be
performed;
Carefully considered how the services should be performed, and
iii. Understands the facilities, difficulties, and restrictions attending
performance of the services under this Agreement.
B. If services involve work upon any site, CONSULTANT agrees that
CONSULTANT has or will investigate the site and is or will be fully
acquainted with the conditions there existing, before commencing the
services hereunder. Should CONSULTANT discover any latent or unknown
conditions that may materially affect the performance of the services,
CONSULTANT will immediately inform CITY of such fact and will not
proceed except at CONSULTANT's own risk until written instructions are
received from CITY.
7. TERM. The term of this Agreement will be from February 7, 2020, to February 6,
2022. Unless otherwise determined by written amendment between the parties, this
Agreement will terminate in the following instances:
A. Completion of the work specified in Exhibit "A";
B. Termination as stated in Section 15.
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8. TIME FOR PERFORMANCE.
A. CONSULTANT will not perform any work under this Agreement until;
CONSULTANT furnishes proof of insurance as required under
Section 22 of this Agreement; and
CITY gives CONSULTANT a written notice to proceed.
B. Should CONSULTANT begin work on any phase in advance of receiving
written authorization to proceed, any such professional services are at
CONSULTANT's own risk.
9. TIME EXTENSIONS. Should CONSULTANT be delayed by causes beyond
CONSULTANT's control, CITY may grant a time extension for the completion of the
contracted services. If delay occurs, CONSULTANT must notify the Manager within forty-
eight (48) hours, in writing, of the cause and the extent of the delay and how such delay
interferes with the Agreement's schedule. The Manager will extend the completion time,
when appropriate, for the completion of the contracted services.
10. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the
main body of this Agreement takes precedence over the attached Exhibits, this
Agreement supersedes any conflicting provisions.
11. CHANGES. CITY may order changes in the services within the general scope of this
Agreement, consisting of additions, deletions, or other revisions, and the contract sum
and the contract time will be adjusted accordingly. All such changes must be authorized
in writing, executed by CONSULTANT and CITY, The cost or credit to CITY resulting
from changes in the services will be determined in accordance with written agreement
between the parties.
12. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a
Taxpayer Identification Number.
13. PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and
maintain during the term of this Agreement, all necessary permits, licenses, and
certificates that may be required in connection with the performance of services under
this Agreement.
14. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by
CONSULTANT under this Agreement will not be construed to operate as a waiver of any
rights CITY may have under this Agreement or of any cause of action arising from
CONSULTANT's performance. A waiver by CITY of any breach of any term, covenant,
or condition contained in this Agreement will not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant, or condition contained in
this Agreement, whether of the same or different character.
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15. TERMINATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any
time with or without cause.
B. CONSULTANT may terminate this Agreement at any time with CITY's
mutual consent. Notice will be in writing at least thirty (30) days before the
effective termination date.
C. Upon receiving a termination notice, CONSULTANT will immediately cease
performance under this Agreement unless otherwise provided in the
termination notice. Except as otherwise provided in the termination notice,
any additional work performed by CONSULTANT after receiving a
termination notice will be performed at CONSULTANT's own cost; CITY will
not be obligated to compensate CONSULTANT for such work.
D. Should termination occur, all finished or unfinished documents, data,
studies, surveys, drawings, maps, reports and other materials prepared by
CONSULTANT will, at CITY's option, become CITY's property, and
CONSULTANT will receive just and equitable compensation for any work
satisfactorily completed up to the effective date of notice of termination, not
to exceed the total costs under Section 1(C).
E. Should the Agreement be terminated pursuant to this Section, CITY may
procure on its own terms services similar to those terminated.
F, By executing this document, CONSULTANT waives any and all claims for
damages that might otherwise arise from CITY's termination under this
Section.
16.OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps,
models, photographs and reports prepared by CONSULTANT under this Agreement are
CITY's property. CONSULTANT may retain copies of said documents and materials as
desired but will deliver all original materials to CITY upon CITY's written notice. CITY
agrees that use of CONSULTANT's completed work product, for purposes other than
identified in this Agreement, or use of incomplete work product, is at CITY's own risk.
17. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service
under this Agreement, no copies, sketches, or graphs of materials, including graphic art
work, prepared pursuant to this Agreement, will be released by CONSULTANT to any
other person or public CITY without CITY's prior written approval. All press releases,
including graphic display information to be published in newspapers or magazines, will
be approved and distributed solely by CITY, unless otherwise provided by written
agreement between the parties.
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18. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
L Indemnification for Professional Services. CONSULTANT will
save harmless and indemnify and at CITY's request reimburse
defense costs for CITY and all its officers, volunteers,
employees and representatives from and against any and all
suits, actions, or claims, of any character whatever, brought for,
or on account of, any injuries or damages sustained by any
person or property resulting or arising from any negligent or
wrongful act, error or omission by CONSULTANT or any of
CONSULTANT's officers, agents, employees, or
representatives, in the performance of this Agreement, except
for such loss or damage arising from CITY's sole negligence or
willful misconduct.
ii. Indemnification for other Damages. CONSULTANT indemnifies
and holds CITY harmless from and against any claim, action,
damages, costs (including, without limitation, attorney's fees),
injuries, or liability, arising out of this Agreement, or its
performance, except for such loss or damage arising from
CITY's sole negligence or willful misconduct. Should CITY be
named in any suit, or should any claim be brought against it by
suit or otherwise, whether the same be groundless or not,
arising out of this Agreement, or its performance,
CONSULTANT will defend CITY (at CITY's request and with
counsel satisfactory to CITY) and will indemnify CITY for any
judgment rendered against it or any sums paid out in settlement
or otherwise.
B, For purposes of this section "CITY" includes CITY's officers, officials,
employees, agents, representatives, and certified volunteers.
C. It is expressly understood and agreed that the foregoing provisions will
survive termination of this Agreement.
D. The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT as required by Section 22, and any approval
of said insurance by CITY, are not intended to and will not in any manner
limit or qualify the liabilities and obligations otherwise assumed by
CONSULTANT pursuant to this Agreement, including, without limitation, to
the provisions concerning indemnification.
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19. ASSIGNABILITY. This Agreement is for CONSULTANT's professional services.
CONSULTANT's attempts to assign the benefits or burdens of this Agreement without
CITY's written approval are prohibited and will be null and void.
20. INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that
CONSULTANT will act as an independent contractor and will have control of all work and
the manner in which it is performed. CONSULTANT will be free to contract for similar
service to be performed for other employers while under contract with CITY.
CONSULTANT is not an agent or employee of CITY and is not entitled to participate in
any pension plan, insurance, bonus or similar benefits CITY provides for its employees.
Any provision in this Agreement that may appear to give CITY the right to direct
CONSULTANT as to the details of doing the work or to exercise a measure of control
over the work means that CONSULTANT will follow the direction of the CITY as to end
results of the work only.
21, AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records with
respect to all services and matters covered under this Agreement. CITY will have free
access at all reasonable times to such records, and the right to examine and audit the
same and to make transcript therefrom, and to inspect all program data, documents,
proceedings and activities. CONSULTANT will retain such financial and program service
records for at least three (3) years after termination or final payment under this
Agreement.
22, INSURANCE.
A. Before commencing performance under this Agreement, and at all other
times this Agreement is effective, CONSULTANT will procure and maintain
the following types of insurance with coverage limits complying, at a
minimum, with the limits set forth below:
Tvoe of Insurance
Commercial general liability
Professional Liability
Business automobile liability
Workers compensation
Limits
$2,000,000
$1,000,000
$1,000,000
Statutory requirement
& Commercial general liability insurance will meet or exceed the requirements
of the most recent ISO -CGL Form. The amount of insurance set forth above
will be a combined single limit per occurrence for bodily injury, personal
injury, and property damage for the policy coverage. Liability policies will
be endorsed to name CITY, its officials, and employees as "additional
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insureds" under said insurance coverage and to state that such insurance
will be deemed "primary" such that any other insurance that may be carried
by CITY will be excess thereto. Such endorsement must be reflected on
ISO Form No. CG 20 10 11 85 or 88, or equivalent. Such insurance will be
on an "occurrence," not a "claims made," basis and will not be cancelable
or subject to reduction except upon thirty (30) days prior written notice to
CITY.
C. Professional liability coverage will be on an "occurrence basis" if such
coverage is available, or on a "claims made" basis if not available. When
coverage is provided on a "claims made basis," CONSULTANT will continue
to renew the insurance for a period of three (3) years after this Agreement
expires or is terminated. Such insurance will have the same coverage and
limits as the policy that was in effect during the term of this Agreement and
will cover CONSULTANT for all claims made by CITY arising out of any
errors or omissions of CONSULTANT, or its officers, employees or agents
during the time this Agreement was in effect.
D. Automobile coverage will be written on ISO Business Auto Coverage Form
CA 00 01 06 92, including symbol I (Any Auto).
E. CONSULTANT will furnish to CITY duly authenticated Certificates of
Insurance evidencing maintenance of the insurance required under this
Agreement and such other evidence of insurance or copies of policies as
may be reasonably required by CITY from time to time. Insurance must be
placed with insurers with a current A.M. Best Company Rating equivalent
to at least a Rating of "AMI."
F. Should CONSULTANT, for any reason, fail to obtain and maintain the
insurance required by this Agreement, CITY may obtain such coverage at
CONSULTANT's expense and deduct the cost of such insurance from
payments due to CONSULTANT under this Agreement or terminate
pursuant to Section 155.
23. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written
approval to use any consultants while performing any portion of this Agreement. Such
approval must approve of the proposed consultant and the terms of compensation.
24. INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the
status on the project, which will include a schedule update and a short narrative
description of progress during the past month for each major task, a description of the
work remaining and a description of the work to be done before the next schedule update.
25. NOTICES. All communications to either party by the other party will be deemed made
when received by such party at its respective name and address as follows:
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If to CONSULTANT:
AdastraGov Inc.
32007 Sea Ridge Circle
Rancho Palo Verdes, CA 90275
Attention: Christian Dickson
Phone: (213) 537-8995
Email: christian@adastragov.com
Agreement No. 5857
Agreement No. [City Clerk assigns]_
If to CITY:
City of EI Segundo
350 Main Street
EI Segundo, CA
Attention: David Serrano
Phone: (310) 524-2384
Email: dserrano@elsegundo.org
Any such written communications by mail will be conclusively deemed to have been
received by the addressee upon deposit thereof in the United States Mail, postage
prepaid and properly addressed as noted above. In all other instances, notices will be
deemed given at the time of actual delivery. Changes may be made in the names or
addresses of persons to whom notices are to be given by giving notice in the manner
prescribed in this paragraph.
26. CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest
laws and regulations including, without limitation, CITY's conflict of interest regulations.
27. SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor
retained any company or person, other than CONSULTANT's bona fide employee, to
solicit or secure this Agreement. Further, CONSULTANT warrants that it has not paid
nor has it agreed to pay any company or person, other than CONSULTANT's bona fide
employee, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. Should
CONSULTANT breach or violate this warranty, CITY may rescind this Agreement without
liability.
28. THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is
generally for the exclusive benefit of CONSULTANT and CITY and not for the benefit of
any other party. There will be no incidental or other beneficiaries of any of
CONSULTANT's or CITY's obligations under this Agreement.
29. INTERPRETATION. This Agreement was drafted in and will be construed in
accordance with the laws of the State of California, and exclusive venue for any action
involving this agreement will be in Los Angeles County.
30. COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state,
and local laws applicable to this Agreement.
31. ENTIRE AGREEMENT. This Agreement, and its Exhibit(s), sets forth the entire
understanding of the parties. There are no other understandings, terms or other
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agreements expressed or implied, oral or written, This Agreement will bind and inure to
the benefit of the parties to this Agreement and any subsequent successors and assigns.
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for or against either Party.
33. SEVERABILITY. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to
the extent necessary in the opinion of the court to render such portion enforceable and,
as so modified, such portion and the balance of this Agreement will continue in full force
and effect.
34.AUTHORITYIMODIFICATION. The Parties represent and warrant that all necessary
action has been taken by the Parties to authorize the undersigned to execute this
Agreement and to engage in the actions described herein, This Agreement may be
modified by written amendment.
35. ACCEPTANCE OF ELECTRONIC SIGNATURES. The Parties agree that this
Agreement, agreements ancillary to this Agreement, and related documents to be entered
into in connection with this Agreement will be considered signed when the signature of a
party is delivered by electronic (.pdf) or facsimile transmission, Such electronic or
facsimile signature will be treated in all respects as having the same effect as an original
signature.
36. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience
of reference only and will not affect the interpretation of this Agreement.
37. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement,
38. FORCE MAJEURE, Should performance of this Agreement be prevented due to fire,
flood, explosion, acts of terrorism, war, embargo, government action, civil or military
authority, the natural elements, or other similar causes beyond the Parties' reasonable
control, then the Agreement will immediately terminate without obligation of either party
to the other.
39. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT
represents that it has demonstrated trustworthiness and possesses the quality, fitness
and capacity to perform the Agreement in a manner satisfactory to CITY, CONSULTANT
represents that its financial resources, surety and insurance experience, service
experience, completion ability, personnel, current workload, experience in dealing with,
private consultants, and experience in dealing with public agencies all suggest that
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CONSULTANT is capable of performing the proposed contract and has a demonstrated
capacity to deal fairly and effectively with and to satisfy a public CITY.
[Signatures on next page]
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IN WITNESS WHEREOF the parties hereto have executed this Agreement the day
and year first hereinabove written.
CIIT?YF EL SEG
0
, �;��
City Manager
ATT T�
Trac W e Vve ver,,
City Clerk
APPROVED AS TO FORM:
for
Mark D. Hensley6
City Attorney
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ADASTRAGOV INC
Y7
Jasmine Nachtigall-Fournier,
President
Agreement No. 5857
Agreement No. [City Clerk assigns]_
Exhibit A
SaaS Licensing Agreement
Attention: City of El Segundo, CA
Prepared by: Christian Dickson, Vice President
December 20, 2019
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From: AdastraGov Inc.
32007 Sea Ridge Circle
Rancho Palos Verdes, CA 90275
Agreement No. 5857
Agreement No. [City Clerk assigns]_
Summary of Services and Implementation
nain
David Serrano, Human Resources Director
350 Main St.
El Segundo, CA 90245
Services:
Service Capacity: Use of the Labor Costing Module (the "Service(s)").
Service Fees: $10,000 per year, increasing by the greater of the US CPI or 3% each consecutive
year, and payable in advance subject to the terms of Section 4 herein. Fee invoiced at execution
of contract.
Initial Software Access Term: Two years from the Effective Date.
Implementation Services:
Company will use commercially reasonable efforts to provide Customer the services described in
accordance with the terms herein, and Customer shall pay Company the Implementation Fee in
accordance with the terms herein.
Implementation Fee (One -Time): $9,000 invoiced at execution of contract.
1 �
Service Fees: $18,000 invoiced at execution of contract.
City to receive 90 hours of expert support in modeling MOUS at $200 per hour, not to exceed
$18,000. Hourly credits are available until completely exhausted and not subject to the term
limits of the software access.
ContractTotal : $47,000 invoiced c of contract.
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I. SAAS SERVICES AND SUPPORT
11 Subject to the terms of this Agreement, Company will use commercially reasonable
efforts to provide Customer the Services in accordance with the Service Level Terms
attached hereto as Exhibit A. As part of the registration process, Customer will identify
an administrative user name and password for Customer's account. Company reserves the
right to refuse registration or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical
support services in accordance with the terms set forth in Exhibit B.
2. RP",STRK"I°IONS ANC) RI.:,SP( :)NSIBlI.. T1lw
2.1 Customer will not, directly or indirectly; reverse engineer, decompile, disassemble or
otherwise attempt to discover the source code, object code or underlying structure, ideas,
know-how or algorithms relevant to the Services or any software, documentation or data
related to or used to provide the Services ("Software"); modify, translate, or create
derivative works based on the Services or any Software (except to the extent expressly
permitted in writing by Company or authorized within the Services); use the Services or
any Software for timesharing or service bureau purposes or otherwise for the benefit of a
third party; or remove any proprietary notices or labels.
2.2 Further, Customer shall not export or re-export, either directly or indirectly, the Software
or any copies thereof in such manner as to violate the export laws and regulations of the
United States or any other applicable jurisdiction in effect from time to time (including,
without limitation, when such export or re-export requires an export license or other
governmental approval without first obtaining such license or approval). Without limiting
the foregoing, Customer shall not permit any third parties to access or use the Services in
violation of any United States export embargo, prohibition, or restriction.
2.3 Customer hereby agrees to indemnify and hold harmless Company against any damages,
losses, liabilities, settlements and expenses (including without limitation costs and
attorney's fees) in connection with any claim or action that arises from Customer's
failure to comply with the terms of this Agreement or otherwise from Customer's use of
Services. Although Company has no obligation to monitor Customer's use of the
Services, Company may do so. Company reserves the right, in its sole discretion, to
prohibit or suspend Customer's use of the Services at any time Company believes such
use to be in violation of this Agreement or otherwise harmful to the Service.
2A Customer shall be responsible for obtaining and maintaining any equipment and ancillary
services needed to connect to, access or otherwise use the Services, including, without
limitation, modems, hardware, servers, software, operating systems, networking, web
servers and the like (collectively, "Equipment"), Customer shall also be responsible for
maintaining the security of the Equipment, Customer account, passwords (including but
not limited to administrative and user passwords) and files, and for all uses of Customer
account or the Equipment with or without Customer's knowledge or consent.
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3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3,1 One parry (the "Receiving Party") understands that the other party (the "Disclosing
Party") has disclosed or may disclose business, technical or financial information relating
to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of
the Disclosing Party). Proprietary Information of Company includes non-public
information regarding features, functionality and performance of the Service. Proprietary
Information of Customer includes non-public data ("Customer Data') provided by
Customer to Company to enable the provision of the Services. The Receiving Party
agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii)
not to use (except in performance of the Services or as otherwise permitted herein) or
divulge to any third parry any such Proprietary Information. The Disclosing Parry agrees
that the foregoing shall not apply with respect to any information after five (5) years
following the disclosure thereof or any information that the Receiving Party can
document (a) is or becomes generally available to the public, without any action by, or
involvement of, the Receiving Party or (b) was in its possession or known by it prior to
receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction
by a third party, or (d) was independently developed without use of any Proprietary
Information of the Disclosing Party or (e) is required to be disclosed by law. The
Receiving Party acknowledges that in the event of a breach of Section 3,1 by the
Receiving Party, substantial injury could result to the Disclosing Party and money
damages will not be a sufficient remedy for such breach. Therefore, in the event that the
Receiving Party engages in, or threatens to engage in, any act which violates Section 3. 1,
the Disclosing Party will be entitled, in addition to all other remedies which may be
available to it under law, to seek injunctive relief (including, without limitation,
temporary restraining orders, or preliminary or permanent injunctions) and specific
enforcement of the terms of Section 3.1. The Disclosing Party will not be required to post
a bond or other security in connection with the granting of any such relief.
3.2 Company shall own and retain all rights, title and interest in and to: (i) the Services and
Software, together with all improvements, enhancements, modifications, changes,
translations, compilation, and derivative works thereto, (ii) any software, applications,
inventions or other technology developed in connection with Implementation Services or
support, (iii) any analytics generated through Customer's use of the Services, including
but not limited to, any data, materials, information, and reports ("Analytics") and (iv) all
intellectual property rights related to any of the foregoing. Company hereby grants
Customer a non-exclusive, non -transferable and non-sublicensable license to access and
use the Analytics.
3,3 Notwithstanding anything to the contrary, Company shall have the right to collect and
analyze data and other information relating to the provision, use and performance of
various aspects of the Services and related systems and technologies (including, without
limitation, information concerning Customer Data and data derived therefrom), and
Company will be free (during and after the term hereof) to: (i) use such information and
data to improve and enhance the Services and for other development, diagnostic and
corrective purposes in connection with the Services and other Company offerings, (ii)
disclose such data solely in aggregate or other de -identified form in connection with its
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business, and (iii) disclose, share, license, or resell Analytics to third parties for
consideration. No rights or licenses are granted except as expressly set forth herein,
4, PA`lll NT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Summary of
Services and Implementation in accordance with the terms therein (the "Fees"). If
Customer's use of the Services exceeds the Service Capacity set forth in the Summary of
Services and Implementation or otherwise requires the payment of additional fees (per
the terms of this Agreement), Customer shall be billed for such usage and Customer
agrees to pay the additional fees in the manner provided herein. Company reserves the
right to change the Fees or applicable charges and to institute new charges and Fees at the
end of the Initial Term or then current Renewal Term, upon thirty (30) days prior notice
to Customer (which may be sent by email). If Customer believes that Company has billed
Customer incorrectly, Customer must contact Company no later than 60 days after the
closing date on the first billing statement in which the error or problem appeared, in order
to receive an adjustment or credit. Inquiries should be directed to Company's customer
support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices
issued in any given month must be received by Company thirty (30) days after the
mailing date of the invoice. Unpaid amounts are subject to a finance charge of 5% per
month on any outstanding balance, or the maximum permitted by law, whichever is
lower, plus all expenses of collection and may result in immediate termination of Service.
Customer shall be responsible for all taxes associated with Services other than U.S. taxes
based on Company's net income.
5, TERM ANDTERMINATION
5.1 Subject to earlier termination as provided below, the Initial Tenn of this Agreement shall
be for a period specified in the Summary of Services and Implementation (the "Initial
Term"). Upon the expiration of the Initial Term, this agreement shall automatically renew
for additional periods of the same duration as the Initial Term (each a "Renewal Term").
The Initial Term and the Renewal Term are collectively referred to herein as the "Term."
5.2 In addition to any other remedies it may have, either party may terminate this Agreement
upon thirty (30) days written notice (or without notice in the case of nonpayment), if the
other party materially breaches any of the terms or conditions of this Agreement.
Customer will pay in full for the Services up to and including the last day on which the
Services are provided. All sections of this Agreement which by their nature should
survive termination will survive termination, including, without limitation, accrued rights
to payment, confidentiality obligations, warranty disclaimers, and limitations of liability,
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to
maintain the Services in a manner which minimizes errors and interruptions in the
Services and shall perform the Implementation Services in a professional and
workmanlike manner. Services may be temporarily unavailable for scheduled
maintenance or for unscheduled emergency maintenance, either by Company or by third -
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party providers, or because of other causes beyond Company's reasonable control, but
Company shall use reasonable efforts to provide advance notice in writing or by e-mail of
any scheduled service disruption. However, Company does not warrant that the Services
will be uninterrupted or error free; nor does it make any warranty as to the results that
may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN
THIS SECTION, THE SERVICES, THE ANALYTICS, AND IMPLEMENTATION
SERVICES ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AND NON -INFRINGEMENT.
INDEMNITY
Company shall hold Customer harmless from liability to third parties resulting from
infringement by the Service of any United States patent or any copyright or
misappropriation of any trade secret, provided Company is promptly notified of any and
all threats, claims and proceedings related thereto and given reasonable assistance and the
opportunity to assume sole control over defense and settlement; Company will not be
responsible for any settlement it does not approve in writing. The foregoing obligations
do not apply with respect to portions or components of the Service (i) not supplied by
Company, (ii) made in whole or in part in accordance with Customer specifications, (iii)
that are modified after delivery by Company, (iv) combined with other products,
processes or materials where the alleged infringement relates to such combination, (v)
where Customer continues allegedly infringing activity after being notified thereof or
after being informed of modifications that would have avoided the alleged infringement,
or (vi) where Customer's use of the Service is not strictly in accordance with this
Agreement. If, due to a claim of infringement, the Services are held by a court of
competent jurisdiction to be or are believed by Company to be infringing, Company may,
at its option and expense (a) replace or modify the Service to be non -infringing provided
that such modification or replacement contains substantially similar features and
functionality, (b) obtain for Customer a license to continue using the Service, or (c) if
neither of the foregoing is commercially practicable, terminate this Agreement and
Customer's rights hereunder and provide Customer a refund of any prepaid, unused fees
for the Service.
8, LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY
INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT
LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS,
AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL
NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED
THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS
OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT
OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF
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BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY'S
REASONABLE CONTROL, OR (D) FOR ANY AMOUNTS THAT, TOGETHER
WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE
FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS
AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO
THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. INSURANCE
Customer ADDITIONAL TERMS FOR ADAsTRAGOV AGREEMENT
Before commencing performance under this Agreement, and at all other times this
Agreement is effective, AdastraGov will procure and maintain the following types of
insurance with coverage limits complying, at a minimum, with the limits set forth below:
]:yl)e of InRlra=
Limits
Commercial general liability:
$2,000,000
Professional Liability
$1,000,000
Technology Errors
$1,000,000
and Omissions Liability
Cyber Liability
$1,000,000
Privacy Liability
$1,000,000
Workers compensation
Statutory requirement
A. Commercial general liability insurance will meet or exceed the requirements of
ISO -CGL Form No. CG 00 01 1185 or 88. The amount of insurance set forth
above will be a combined single limit per occurrence for bodily injury, personal
injury, and property damage for the policy coverage. Liability policies will be
endorsed to name City, its officials, and employees as "additional insureds" under
said insurance coverage and to state that such insurance will be deemed "primary"
such that any other insurance that may be carried by City will be excess thereto.
Such insurance will be on an "occurrence," not a "claims made," basis and will
not be cancelable or subject to reduction except upon thirty (30) days prior written
notice to City.
B. Professional liability coverage will be on an "occurrence basis" if such coverage
is available, or on a "claims made" basis if not available. When coverage is
provided on a "claims made basis," AdastraGov will continue to renew the
insurance for a period of three (3) years after this Agreement expires or is
terminated. Such insurance will have the same coverage and limits as the policy
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Agreement No. 5857
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that was in effect during the term of this Agreement and will cover AdastraGov
for all claims made by City arising out of any errors or omissions of AdastraGov,
or its officers, employees or agents during the time this Agreement was in effect.
C, Technology Errors and Omissions Liability Insurance will cover all third party
claims arising out of any act, error, omission or breach of contract provision of
AdastraGov's technology services, including loss arising from destruction of data,
in the amount set forth above per occurrence.
D. Cyber Liability Insurance to cover all third party loss from hacking attack or virus
emanating from or passed through AdastraGov's computer system or a cloud
provider's system into City's systems in the amount set forth above per
occurrence.
E. Privacy Liability Insurance to cover all security breach and notification cost
resulting in actual or suspected loss of personal information or any other records
considered confidential for the City's data located on service providers servers or
on a cloud computing provider's system in the amount set forth above per
occurrence.
F. Each such liability policy shall name the City of El Segundo as an Additional
Insured for such liability of the City, and each such first -party shall name the City
as a Loss Payee. AdastraGov will furnish to City duly authenticated Certificates
of Insurance evidencing maintenance of the insurance required under this
Agreement and such other evidence of insurance or copies of policies as may be
reasonably required by City from time to time. Insurance must be placed with
insurers with a current A.M. Best Company Rating equivalent to at least a Rating
of "A: VII."
G. Should AdastraGov, for any reason, fail to obtain and maintain the insurance
required by this Agreement, City may obtain such coverage at AdastraGov's
expense and deduct the cost of such insurance from payments due to AdastraGov
under this Agreement or terminate.
10. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision
will be limited or eliminated to the minimum extent necessary so that this Agreement will
otherwise remain in full force and effect and enforceable. This Agreement is not
assignable, transferable or sublicensable by Customer except with Company's prior
written consent. Company may not transfer or assign any of its rights and obligations
under this Agreement without Customer's prior written consent. This Agreement is the
complete and exclusive statement of the mutual understanding of the parties and
supersedes and cancels all previous written and oral agreements, communications and
other understandings relating to the subject matter of this Agreement, and all waivers and
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Agreement No. 5857
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modifications in this Agreement must be in a writing signed by both parties, except as
otherwise provided herein. No agency, partnership, joint venture, or employment is
created as a result of this Agreement and Customer does not have any authority of any
kind to bind Company in any respect whatsoever. In any action or proceeding to enforce
rights under this Agreement, the prevailing party will be entitled to recover costs and
attorneys' fees. All notices under this Agreement will be in writing and will be deemed to
have been duly given when received, if personally delivered; when receipt is
electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if
sent for next day delivery by recognized overnight delivery service; and upon receipt, if
sent by certified or registered mail, return receipt requested. This Agreement shall be
governed by the laws of the State of California without regard to its conflict of laws
provisions, The parties shall work together in good faith to issue at least one mutually
agreed upon press release within 90 days of the Effective Date, and Customer otherwise
agrees to reasonably cooperate with Company to serve as a reference account upon
request,
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EXHIBIT A
S"A"-LP
"Ilpy-fp-s
The Services shall be available 99% of the time, measured monthly, excluding holidays and
weekends and scheduled inaintertance. If Custonier requests maintenance during these hours, any
uptime or downtitne calculation will exclude periods affected by SLOI maintenance. Furtber, any
downtinie resulting from outages of third party connections or utilities or other reasons beyond
Company's control will also be excluded from any such calculation. Customer's sole and
exclusive remedy, and Company's entire liability, in connection with Service availability sliall be
that for each period of downtime lasting longer than 12 hours, Company will credit Clustolner 1%
of Service Fees for each period of 30 or more consecutive minutes of downtime; provided that no
more than one such credit will accrue per day. Downtime shall begin to accrue as soon as
Customer (with notice to Company) recognizes that downtime is taking place, and C011tinUeS
until the availability of the Services is restored. In order to receive downtime credit, Customer
111ust notify Company in Writing within 12 hOU['S from the brie of downtime, and failure to
provide such notice will forfeit the right to receive downtime credit, SUCK credits may, not be
redeemed For cash and shall not be cumulative beyond a total of credits for one (1) week of
Service Fees in any one (1) calendar month in any event, Cornpany will only apply a credit, to the
month in which the incident occurred. Company's blocking of data CO111111L111iCatiOF1S or other
Service in accordance with its policies shall not be deemed to be a failure of Company to provide
adequate service levels under this Agreement.
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EXHIBIT B
Stoppart Terms
Company will provide Teclinical Support to Customer via both telephone and electronic mail on
weekdays during the hours of 9.00 a.m. tlirougli 5M p.m. Pacific Standard Time, with the
exclusion of Federal Holidays ("SUpport Hours"'),,
Customer may initiate a help desk ticket during Support Hours by calling (650) 269-63333 or any
time by emailing support@adastragov.com.
Company will use commercially reasonable efforts to respond to all help desk tickets within one
(1) business day.
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