CONTRACT 3250 Professional Services AgreementAgreement No.
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
DATAPROSE, INC.
FOR
BUSINESS LICENSE RENEWAL NOTICE SERVICES
This AGREEMENT is entered into this I st day of October, 2003, by and between the
CITY OF EL SEGUNDO, a general law city and municipal corporation ( "CITY ") and
DataProse, Inc., a California Corporation ( "CONSULTANT ").
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 six thousand five hundred dollars ($6,500) 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 Exhibits "A" and
"B," which are 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.
4. PAYMENTS. For CITY to pay CONSULTANT as specified by this Agreement,
CONSULTANT must submit a detailed invoice to CITY after each production run consisting of
the fees and postage used. Invoices are due upon receipt and will be considered past due if not
paid within thirty (30) days. A monthly late charge will be assessed on statements not paid
within thirty (30) days. The late payment charge will be 1 -1/2% per month applied to the invoice
amount unpaid (30) thirty days after billing to CITY. The prices charged by CONSULTANT to
CITY for its services will not be increased for a period of 12 months from the Effective Date of
this Agreement ( "Pricing Period "). All prices may increase following this initial Pricing Period
or any subsequent Pricing Period, and upon written notice to CITY. The rate of any price
increase will not exceed 10% at the completion of any pricing period.
5. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONSULTANT agrees that CONSULTANT has
Carefully investigated and considered the scope of services to be
performed;
ii. 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.
6. TERM. The term of this Agreement will be one (1) year. The Agreement will automatically
be renewed on an annual basis unless cancelled at least thirty (30) days before the end of the
term.
7. TIME FOR PERFORMANCE. CONSULTANT will not perform any work under this
Agreement until:
A. CONSULTANT furnishes proof of insurance as required under Section 23 of this
Agreement; and
B. CITY gives CONSULTANT a written notice to proceed.
C. Should CONSULTANT begin work on any phase in advance of receiving written
authorization to proceed, any such professional services are at CONSULTANT's
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own risk.
8. 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. Any inconsistency between the Exhibits will be resolved in the order
in which the Exhibits appear below:
A. Exhibit A: Scope of Work;
B. Exhibit B: Proposal for Services.
9. 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.
10. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a
Taxpayer Identification Number.
11. 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.
12. 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.
13. 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" own cost; CITY will not be obligated to
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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.
14. NOTICE OF BREACH AND OPPORTUNITY TO CURE. Neither party will be deemed
to be in breach of this Agreement based on a breach that is capable of being cured until it has
received written notice of the breach from the other party. The party charged with breach will
have fifteen (15) days from the date of receiving such notice in which to cure the breach or
otherwise respond. If the circumstances leading to the charge that the Agreement was breached
have not been cured or explained to the satisfaction of the other party within fifteen (15) days
from the date on which the party received notice of breach, the non - breaching party may
terminate this Agreement.
15. 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.
16. 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
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.
17. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
. Indemnification for Professional Services. CONSULTANT will save
harmless and indemnify and at CITY's request defend CITY and all
its officers, volunteers, employees and representatives from and
against any and all suits, actions, or claims, of any character
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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.
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. 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 21, 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.
18. 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.
19. 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 is it 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.
20. 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
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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 four (4) years
after termination or final payment under this Agreement.
21. 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 Limits
Commercial general liability: $1,000,000
Professional Liability $1,000,000
Workers compensation $1,000,000
B. 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 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. 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 "A:VII."
D. 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 13.
22. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written
approval to use any consultants while performing any portion of this Agreement. Such approval
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must approve of the proposed consultant and the terms of compensation. The consultants listed
in Exhibit `B" are hereby approved.
23. 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:
If to CONSULTANT: If to CITY:
DataProse, Inc. City of El Segundo
1451 North Rice Avenue, Suite A 350 Main Street
Oxnard, CA 93030 El Segundo, CA 90245
Attention: Chief Executive Officer Attention: Mr. Steve Jones
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.
24. INTELLECTUAL PROPERTY WARRANTY. CONSULTANT represents and warrants
that any software developed in accordance with this Agreement is the result of
CONSULTANT's sole efforts unless otherwise stated in this Agreement. Except as otherwise
disclosed in this Agreement, the software is unique and original and does not infringe upon any
copyright or patent. With regard to bundled software, CONSULTANT represents that it has
verified that the software is unique and original and to the best of CONSULTANT's belief does
not infringe upon any copyright or patent.
25. PROTECTION AGAINST INFRINGEMENT; INDEMNIFICATION FOR
INTELLECTUAL PROPERTY WARRANTIES. CONSULTANT will, at its own expense,
defend CITY against any claim that the software 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 (i) give CONSULTANT prompt written
notice of any such claim; and (ii) allow CONSULTANT to control, and fully cooperate with
CONSULTANT in the defense and all related settlement negotiations. CITY agrees that if the
use of the software becomes, or 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 the software or to replace it with
comparable software, with a pro rata refund of the money paid by CITY for the then current term
of the Agreement. This Section states CONSULTANT's entire obligation to CITY regarding
infringement or the like.
26. PUBLIC RECORDS ACT. The Parties to this Agreement understand and agree that the
software and other data affected by this Agreement are subject to the requirements, exceptions
and exemptions set forth in the California Public Records Act.
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27. 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.
28. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets for the entire
understanding of the parties. There are no other understandings, terms or other agreements
expressed or implied, oral or written. There are two (2) Attachments to this Agreement. This
Agreement will bind and inure to the benefit of the parties to this Agreement and any subsequent
successors and assigns. .
29. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review this
Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a whole,
and in accordance with its fair meaning; it will not be interpreted strictly for or against either Party.
30. 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.
31. AUTHORITY/MODIFICATION. 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.
CITY's city manager, or designee, may execute any such amendment on behalf of CITY.
32. ACCEPTANCE OF FACSIMILE 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
facsimile transmission. Such facsimile signature will be treated in all respects as having the
same effect as an original signature.
33. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
34. 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 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.
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IN WITNESS WHEREOF the parties hereto have executed this contract the day and year
first hereinabove written.
CITY OF EL SEGUNDO,
a manic. pal corpoi,ation.
Mary'Stre0j
City Manager
ol..
r-
ATTEST-
-
69& %
Cindy Mirtesen,
City Clerk
DATAPROSE, INC.
a Cal dorA4 Corvoriv
rk�,(V,Y�j Carter
Pr Ident
Taxpayer ID No.
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77-0247518
"4
Exhibit A
Scope of Work
1. SCOPE OF PRODUCTION. CONSULTANT agrees to provide to CITY services
defined in Schedule 1.0, and CITY agrees that CONSULTANT will be its exclusive provider of
these goods and /or services during the term of this Agreement. During the term of this
Agreement, CITY agrees to produce a minimum yearly quantity of 6,000 invoices ( "Minimum
Commitment ") for a period of 12 months, based upon the rates and terms provided herein. In the
event that the CITY does not fulfill the Minimum Commitment during any given year, or for the
required period, then CITY will pay CONSULTANT a Minimum Processing Fee in an amount
that be calculated based upon the Minimum Commitment and the rates and terms provided
herein.
2. POSTAGE. CONSULTANT requires that CITY maintain a permanent postage deposit
in connection with this agreement. CITY will deposit in advance with CONSULTANT the
initial sum specified on Schedule 2.0 as the permanent postage deposit. The amount required to
be deposited with CONSULTANT may be changed by CONSULTANT on a periodic basis
based upon changes in CITY's volume, postage usage, or payment history. CITY will be
notified in writing and in advance if the deposit is changed. Upon termination of this Agreement,
CONSULTANT will return the deposit amount to CITY after payment for all Services and
postage has been paid by the CITY. If this Agreement is terminated due to default of CITY,
CONSULTANT may apply any of CITY's funds it holds against any sum owed by CITY to
CONSULTANT upon termination of this Agreement. IF CITY FAILS TO MAINTAIN THE
DEPOSIT AT THE ADJUSTED LEVELS, OR IF CITY FAILS TO MAINTAIN CURRENT
STATUS OF ALL INVOICES, CONSULTANT MAY IMMEDIATELY SUSPEND ITS
PERFORMANCE UNDER THIS AGREEMENT AND WILL HOLD CUSTOMER'S MAIL
UNTIL THE DEPOSIT IS RECEIVED.
3. CITY'S DEFAULT. In addition to other remedies provided by this Agreement and
pursuant to law, CONSULTANT may withhold production and mailing of any further
production cycles until CITY's account is brought current.
4. CONFIDENTIALITY. CONSULTANT agrees that any and all data, reports and
documentation supplied by CITY or its affiliates or third parties on CITY's behalf, which are
confidential and which are clearly designated as confidential, are, subject only to the disclosure
required for the performance of CONSULTANT's obligations hereunder, held in strict
confidence and may not be disclosed or otherwise disseminated by CONSULTANT without the
consent of CITY.
5. PERFORMANCE GUARANTEE. CONSULTANT will deliver CITY's business license
notices within an average of one (1) Business Day after the applicable Determination Date (as
Defined herein). Such average time period will be determined by measuring the number of
elapsed Business Days between each respective determination date and the date which a majority
amount of the CITY's business license notices were mailed for consecutive four (4) month
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period. The "Determination Date" is the date which data is received — either via electronic
transmission (FTP or modem) or hard copy media (tape or disk) if prior to 10:00 AM, local time.
If data is received after 10:00 AM, local time, or not on the date of the agreed upon production
schedule, the Determination Date is the Business Day immediately following the date data is
received.
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Schedule 1.0 — Fees for Goods & Services
Paper Notice (Includes: data processing Duplex, 2 -color laser imaging,
8.5x11 white paper with blue shading for the Is` notice, with green
shading for reminder notice and red shading for delinquent and final
notice, #10 double window envelope, #9 single window reply envelope,
folding, inserting, presorting and delivery to USPS)
Note: Minimum per cycle processing/production fee of $75.00 or $0.155
per license, whichever is greater.
Same service as above without the return #9 envelope
$0.155
$0.140
Postage — Unlike some other services, DataProse does the presorting of
your mail in -house and never sends it out to a third party for presorting $0.278 -
or bar coding. DataProse controls your job from start to finish. $0.301
Additional impressions (2"a, 3ra,4th page) $0.05
�. Additional ..i..n.....s. ert s (.s.0 plhed/w folded $0.01 5
—
Conditional logic or special programming $125
Introduction "Your New Notice" insert $0.10
Search & view notice $0.015
Fastforward
One time set -u charge (desip & roprammin 4 forms)
Schedule 2.0 — Permanent Postage De osit
Approximate
Volume of
Business
Licenses-
Dec =5,200
Jan =1,500
Feb =1,300
March =300
Cycles -1 /mo.
Per Notice
Per Notice
First -class
postage (less
than one
ounce)
Per
impression
Per notice
Per hour
Per insert
Per record
Per reported
$0.50 change
$350
Postage Deposit (Based on estimated volume) $2,500
Schedule 4.0 — Glossary of Terms
(see
approximate
volume
above)
Impression I Laser Imaging of one side of one piece of paper. Each physical piece of
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............. ......... .... ........_..... ......
paper can contain two (2) impressions
USPS
United States Postal Service
Laser Imaging
The process where the application of dry toner (ink) is electro statically
applied and bonded to a piece of paper.
Simplex
Laser Imaging of one (1) side of a piece of paper only,
Duplex
Laser Imaging of both (2) sides of a piece of paper. All statements processed
as duplex will be charged for duplex imaging whether or not there is
information on the back page.
OE
Outer Envelope — This envelope is used as the carrier mechanism for all
information contained in a package to be mailed.
RE
Reply Envelope — This envelope is usually utilized by a customer to return
information/payment requested by on organization.
Presorting
The act of organizing mail according to the rules and regulations defined by
the USPS in order to achieve lower postage rates and increase deliverability
of mail.
Business Day
Any day in which the USPS as well as the U.S. Federal Reserve are open for
business.
U.S. federal holiday
All Holidays as defined by the U.S. Federal Reserve.
24x7
24 hours a day, 7 days a week.
Additional Inserts
Any,iWin requested to be placed into the mail container above and beyond
(a) the bill' and (b), the RE.
Container
One complete piece of mail packaged into one OE.
Notice
Data and other information pertaining to one (1) business license account
number.
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