CONTRACT 4587 Professional Services AgreementAgreement No. 4587
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
ESI ACQUISITION
This AGREEMENT is entered into this 1sT day of November, 2013, by and between the
CITY OF EL SEGUNDO, a municipal corporation and general law city ( "CITY ") and ESI
ACQUISITION, Inc., a Delaware 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 Fourteen Thousand One Hundred Ninety Dollars ($14,190.00) 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,
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tests, testing and analyses, calculation, and alt 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.
Agreement No. 4587
4. PAYMENTS.
A. Software Maintenance and Support Plans. Payment for software maintenance and
support plans is payable in advance and payment shall be due on or before the commencement or
anniversary date of such plan.
B. General Professional Services. 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
Rinds 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. ADDITIONAL WORK,
A. CITY's city manager ( "Manager ") inay determine, at the Manager's sole
discretion, that CONSULTANT must perform additional work ( "Additional
Work") to complete the Scope of Work. If Additional Work is needed, the
Manager will give written authorization to CONSULTANT to perform such
Additional Work.
B. If CONSULTANT believes Additional Work is needed to complete the Scope of
Work, CONSULTANT will provide the Manager with written notification that
contains a specific description of the proposed Additional Work, reasons for such
Additional Work, and a detailed proposal regarding cost.
C. Payments over $14,190.00 for Additional Work must be approved by CITY's city
council. All Additional Work will be subject to all other terms and provisions of
this Agreement.
7. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONSULTANT agrees that it has:
Carefully investigated and considered the scope of services to be
performed;
ii. Carefully considered how the services should be performed; and
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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.
8. `PERM. 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.
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.
9. TIME FOR PERFORMANCE..
A. CONSULTANT will not perform any work under this Agreement until:
i. CONSULTANT furnishes proof of insurance as required under Section 23
of this Agreement, and
ii. 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.
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. Any inconsistency between the Exhibits will be resolved in the order
in which the Exhibits appear below:
A. Exhibit A: ESI Acquisition Quote;
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.
Agreement No. 4587
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, w -hether of the same or different
character.
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 upon thirty (30 days
written notice.
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
compensate CONSULTANT for such work.
D. Should termination occur, all finished or unfinished documents, data, studies,
dry cpport . ,,
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 terns 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
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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. Notwithstanding the foregoing,
nothing herein shall transfer any ownership rights to CITY to any of CONSULTANT'S
software, source or object code, maintenance releases, software updates, software
documentation, training materials, process guidelines or other data developed by
CONSULTANT at CONSULTANT'S expense and outside the scope of this Agreement
( "Consultant Property "), even if used or delivered to support the Work set forth in Exhibit "A ".
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 CIT-Y'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.
Nothing herein shall interfere with CONSULTANT's rights to copy or release Consultant
Property to other persons or the public.
18. 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,
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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
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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 thut if the use of
CONSULTANT's services or work product 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 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 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
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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 is it perfonned. 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
Agreement No. 4587
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.
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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
Business automobile liability
Workers compensation
Limits
$1,000,000
$1,000,000
$1,000,000
Statutory requirement
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"
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"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.
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
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this Agreement was in effect.
D, Automobile coverage will be written on ISO Business Auto Coverage Form CA
00 0106 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 "A:VII."
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 15.
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. With respect to general professional services only,
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:
If to CONSULTANT: If to CITY:
ESI Acquisition
823 Broad Street City of El Segundo
a a "Ann 350 Mai tr et
El Segundo, CA
Attention: Meredith Clark, Contracts Manager Attention: Manager, Information Systems
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.
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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 Agreetnent 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 Attachments, sets forth the entire
understanding of the parties. There are no other understandings, terms or other agreements
expressed or implied, oral or written. There is one (1) Attachment to this Agreement. This
Agreement will bind and inure to the benefit of the parties to this Agreement and any subsequent
successors and assigns.
32. 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.
33. SEYERABILITY. If any portion of this Agreement is declared by a court of competent
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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. 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 executive manager, or designee, may execute any such amendment on behalf of CITY.
35. 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 or by electronic mail. Such facsimile and electronic mail signatures will
be treated in all respects as having the same effect as an original signature.
Agreement No. 4587
36. CAPTIONS. The captions of the paragraphs of 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 MAIEURE. 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 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]
Agreement No. 4587
IN WITNESS WHEREOF the parties hereto have executed this contract the day and year
first hereinabove written.
APPROVED AS TO FORM:
D, SLEY, City Attorlic
Berger, Assistant City Attoi icy
By-
ESi ACQUIS1140N, INC.
Brad Williams, V I' &, CAO
"J'axpayer ID No ,58-2498832
Customer:
Address:
Title:
Contact:
Phone:
Reference:
Summary:
Date:
Quote Expires
Disclaimer:
EA, 61t A
�. ESI Acquisition, Inc
823 Broad Street
Augusta, GA 30901
El Segundo, City of (CA)
350 Main Street
El Segundo, CA 90245
David Gray
310- 524 -2232
Agreement No. 4587
Office
(706) 823 -0911
Toll Free
(800) 596 -0911
Fax
(706) 826 -9911
Website
www.esi9ll.com
Document Number: Q19623
WebEOC Software Support Renewal for period 11/01/13- 10/31/14
08/30/2013
10/31/2013
Quotes issued in US Dollars & Valid 60 days from Issuance unless otherwise indicated. Items not
manufactured by ESi are subject to change. Substitutes will be provided for customer consideration and approval.
Product ID Description QTY Price Extended Price
SS- CIMS7 -PRS WebEOC® Professional, v7 Software Support, Silver 1 9,900.00 9,900.00
11/01/13-10/31/14
SS- CIMS7- MPR -TXI WebEOC® Mapper Professional Software Support 1 4,290.00 4,290.00
11/01/13-10/31/14
Tax Not Included 14,190.00 0.00
Sum E' 14,190.00