Loading...
CONTRACT 4282 Professional Services Agreement CLOSEDPROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF EL SEGUNDO AND IWATER, INC. THIS AGREEMENT, is entered into this 6th day of June, 2012, by and between CITY OF EL SEGUNDO, a municipal corporation ( "CITY ") and IWATER, INC., a California Corporation ( "CONSULTANT "). 1. CONSIDERATION. A. As partial consideration, CONSULTANT agrees to perform the scope of services attached as Exhibits "A" and "C" which are incorporated by reference ( "SERVICES "). The SERVICES include installing and maintaining software programs ( "SOFTWARE "). B. As additional consideration, CONSULTANT and CITY agree to abide by the terms and conditions contained in this Agreement; C, As additional consideration, CITY will pay CONSULTANT the compensation set forth in Exhibit C, which is incorporated by reference. D. CITY will not be liable for any costs or expenses exceeding the sum paid to CONSULTANT pursuant to Section 1(C) unless otherwise agreed to by the Parties and by written amendment to this Agreement. 2. TERM. The term of this Agreement will be for one (1) year. This Agreement will automatically renew, on an annual basis, on its anniversary date unless otherwise terminated. 3. WARRANTIES. CONSULTANT represents and warrants that: A. The SOFTWARE is the result of CONSULTANT's sole efforts unless otherwise stipulated as a collaboration; B. Except as otherwise disclosed in writing to CITY, the SOFTWARE is unique and original and does not infringe upon any copyright or patent; C. The SOFTWARE, or its duplicate, has not been accepted for sale elsewhere; and D. All SOFTWARE installed by CONSULTANT will be warranted to be free from defects in material and workmanship for a minimum period of one (1) year from the date CITY accepts the SOFTWARE. CONSULTANT warrants that the SOFTWARE will perform in accordance with and strictly comply with specifications, requirements, standards and representations set forth in this Agreement. Should the SOFTWARE not perform as required, CONSULTANT Page 1 of 8 will promptly correct any such deviations. The correction of any such deviation will be at no cost to the CITY and the work performed will be performed in a timely and professional manner by qualified personnel. 4. "SELF- HELP" AND "MALICIOUS" CODES PROHIBITED. A. CONSULTANT understands and agrees that CONSULTANT's use of any "self - help" or "malicious" codes, as defined by this Section, is prohibited and constitutes an "unfair business practice" as defined by California law. Notwithstanding any other provision of this Agreement that limits CONSULTANT's liability, CONSULTANT will be fully liable for all penalties and damages arising from use of a self -help or malicious code. B. "Self -help code" means any back -door, time -bomb, drop -dead, time -out, lock -up, slow -down, data freezing, logic bombs, or other software routine, code, devices, techniques intended to disable, slow, prevent operation of, or otherwise interfere with or change any operation of any computer system, software or other property automatically with the passage of time or under the prior instruction, triggering event or control of someone other than Client. C. "Malicious Code" means any virus, "spyware," "Trojan horse," "worm," "Easter egg," "cancelbot," "trapdoor," or other unapproved or malicious software routine, code, command, device, technique, or instruction or other contaminant intended to Permit unauthorized access to, detection of, modification of, or monitoring of any code, system, or data; ii. Alter, supplement, disable, erase, limit, threaten, infect, assault, vandalize, defraud, disrupt, damage, disable, shut down or delete, threaten, slow or otherwise inhibit the functioning of, or otherwise harm any of the code, documentation or data or any computer system, software or other property; iii. Render any data irretrievable, modified, or disrupted so as to be unreliable in any regard; iv. Perform any other unauthorized action, or prevent, limit, condition or inhibit performance of authorized actions or any function including, without limitation, to its security or end user data. 5. LAWS AND REGULATIONS. CONSULTANT will be responsible for complying with any and all applicable Federal, State, County, and Municipal laws and regulations and the conditions of any required licenses and permits before entering into this Agreement. Such compliance will be at CONSULTANT's sole cost and without any increase in price or time on Page 2 of 8 account of such compliance, regardless of whether compliance would require additional labor, equipment, and /or materials not expressly provided for in the Agreement or CONSULTANT's proposal. 6. INDEMNIFICATION. A. CONSULTANT agrees to the following: i. 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. iii. Intellectual Property Infringement. Notwithstanding any provision to the contrary, CONSULTANT will, at its own expense, indemnify and defend CITY against any claim that CONSULTANT's services or work product furnished under this Agreement infringes a patent or copyright in the United States or Puerto Rico. In such event, CONSULTANT will pay all costs damages and attorney's fees that a court finally awards as a result of such claim. To qualify for such defense and payment, CITY must (a) give CONSULTANT prompt written notice of any such claim; and (b) allow CONSULTANT to control, and fully cooperate with CONSULTANT in the defense and all related settlement negotiations. CITY agrees that if the use of CONSULTANT's services or work product becomes, or Page 3 of 8 7. CONSULTANT believes is likely to become, the subject of such an intellectual property claim, CITY will permit CONSULTANT, at its option and expense, either to secure the right for CITY to continue using CONSULTANT's services and work product or to replace it with comparable services and work product. B. For purposes of this section "CITY" includes CITY's elected and appointed officials, officers, employees, and 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 6, 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. 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: Type of Insurance Commercial general liability: Professional Liability Workers compensation Limits combined single) $1,000,000 $1,000,000 Statutory requirement. B. Commercial general liability insurance will meet or exceed the requirements of the most current 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 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. G 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 Page 4 of 8 4282 . provided on a "claims made basis," Consultant will continue to maintain the insurance in effect for a period of three (3) years after this Agreement expires or is terminated ( "extended insurance "). Such extended 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, Consultant will furnish to City duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement, endorsements as required herein, 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." E. 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. TERMINATION OF AGREEMENT A. During the term of this Agreement, CITY may, in its sole discretion, terminate this Agreement with or without cause by giving written notice to CONSULTANT. Termination will become effective immediately upon the giving of notice as provided in this section of the Agreement. The City Manager may exercise such right of termination on behalf of CITY. B. Except as otherwise provided, upon termination of this Agreement, CITY will be liable to CONSULTANT only for all work done by CONSULTANT up to and including the date of termination of this Agreement unless the termination is for cause, in which event CONSULTANT need be compensated only to the extent required by law. C. Should it become impossible for CONSULTANT to complete the SOFTWARE because of illness, death, or injury, this Agreement may be terminated at CITY's sole discretion and, in such event, all completed work, materials, and supplies related to the SOFTWARE will be delivered to CITY and become CITY's property. In the event of such termination, CITY may take such action as may appear to be appropriate in the circumstances then prevailing, including, without limitation, commissioning another contractor to complete the SOFTWARE. CITY will pay CONSULTANT for work completed up to and including the termination date. 9. NOTICES Page 5 of 8 4 . %, a m r � A. CONSULTANT will notify CITY of changes in address. All notices given or required to be given pursuant to this Agreement will be in writing and may be given by personal delivery or by mail. Notice sent by mail will be addressed as set forth in the Exhibits to this Agreement. When addressed in accordance with this paragraph, such notice will be deemed given upon deposit in the United States mail, postage prepaid. 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. 10. AUDIT AND ACCESS TO RECORDS. CONSULTANT, including CONSULTANT's subcontractors, will maintain records and other evidence of all expenses incurred in the performance of this Agreement for a period of three (3) years after completion. CITY or any of its duly authorized representatives will, for the purpose of audit and examination, have access to and be permitted to inspect such records and other evidence of expenses and costs charged to CITY and /or incurred for work related to SERVICES. For purposes of audit, the date of completion of the Agreement will be the date of CITY'S payment for CONSULTANT's final billing (so noted on invoice) under this Agreement. 11. 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. 12. INDEPENDENT CONTRACTOR. CONSULTANT, CONSULTANT's subconsultants, employees, agents, and representatives, will act as independent contractors while performing the SERVICES and will have control of CONSULTANT's work and the manner in which it is performed, except as is otherwise provided herein. CONSULTANT will be free to contract for other services performed during the term of this Agreement. 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. 13. ASSIGNMENT. An essential element of this Agreement is the skill and creativity of CONSULTANT. CONSULTANT may not, therefore, assign the creative portions of the work to a third party for the production of the work without CITY's prior written consent. Failure to conform to this provision may result in termination of the Agreement. 14. 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. 15. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the Parties' entire understanding. There are no other understandings, terms or other agreements expressed or Page 6 of 8 "21, i3 2 implied, oral or written. There are three (3) exhibits to this Agreement. Except as otherwise provided, this Agreement will bind and inure to the benefit of the Parties to this Agreement and any subsequent successors and assigns. 16. MODIFICATION. No alteration, change or modification of the terms of the Agreement will be valid unless made in writing and signed by both Parties hereto and approved by appropriate action of CITY. The city manager may exercise this authority on behalf of CITY. 17. FACSIMILE SIGNATURES FOR SUBSEQUENT AGREEMENTS. The Parties agree that 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 facsimile transmission. Such facsimile signature will be treated in all respects as having the same effect as an original signature. 18. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with CONSULTANT's Taxpayer Identification Number. 19. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT represents that CONSULTANT has demonstrated trustworthiness and possesses the quality, fitness, and capacity to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that CONSULTANT's financial resources, surety and insurance experience, service experience, completion ability, personnel, current workload, experience in dealing with private parties, and experience in dealing with public agencies all suggest that CONSULTANT is capable of performing the proposed contract and has a demonstrated capacity to deal fairly and effectively with and to satisfy a public agency. 20. WAIVER. 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. The payment or acceptance of fees for any period after a default will not be deemed a waiver of any right or acceptance of defective performance. 21. 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 Agreement will continue in full force and effect. 22. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this Agreement. 23. 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. Page 7 of 8 4M 82 24. INTERPRETATION; VE'NUE. This Agreement and its performance will be governed, interpreted, construed and regulated by the laws of the State of Califiornia. FAclusive venue for any action involving this Agreement will be in Los Angeles County, IN WITNESS WHEREOF tile pat-ties hereto have executed this contract the day and year ,First herein above written. ATFESJ�� T :he y"+' ver, City Clerk 1-1. Berger, Assist4nt City A IWATER, INC, Taxpayer ID No. Page 8 of 8 1E. H. WAC H S' Water MlIty Products N a Division of %irilry 455 Comanche Circle I Harvard, Illinois 60033 T: +1.815.943.4785 I T: +1.815.943.5098 S„ iljeriuirEnluuipuinleuu9.Cai rµuNate llpHuMarL Rharads.cairn TO: Gil Busick Date: 6/4/2012 City of El Segundo Quotation Number: KR51932 Public Works payment Terms: Net 30 Days 400 Lomita Street Shipping Terms: FOB Harvard El Segundo, CA 90245 Valid Through: 8/3/2012 E.H. Wachs is pleased to offer the following quotation. Item Number Description Qty U/M Unit Price Line Total 1 79- 430 -00 infraMAP Enterprise: Software system for editing and updating 7 EA $5,499.00 $38,493.00 infastructure data (this version would be used in conjunction with the valve turner). 2 CTC 101 Field training - 3 day program. Covered is field operation of the infraMAP 1 EA $3,995.00 $3,995.00 software with VITALS and integration with the tablet PC and Valve Exerciser. In detail the trainer will cover field mapping and valve location, operation and collection of data. Field crews will be shown how to make updates to the data and other program features that are used in a valve and asset management program. This three day training will also cover any operational issues in data transfer and office operation and the use of report features. 3 79- 430 -10 Installation of infraMAP Software. Includes formatting and configuration 2 EA $3,500.00 $7,000.00 of customer's existing data; integration and setup of infraMAP into customer's GIS systems. Note: (1) Installation for Distribution and (1) Installation for Collections Et (1) Installation for Streets at no charge. Quote Total $49,488.00 We will prepay and add shipping charges to your order, or we can ship collect via your choice of carrier service. If you have any questions please feel free to call Rory Parks at 909 - 380 -4816 or call me at 815 - 943 -4785 x2773. Thanks. (SALES TAMM) We collect sales tax in all but the following states: AK, DE, MT, OR and NH. If you are tax exempt please supply your identification number and certificate with your order. If your exempt number is not on file, tax will be added to your order. Please reference this quote number when placing your order. Thank You. Ken Redding Technical Sales Representative 815 - 943 -4785 x2773 kredding@ehwachs.com Please refer to our website for terms and conditions.