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HomeMy WebLinkAboutCIVICPLUS, LLC (2)INSURANCE NOT REQUIRED N-2023-305 WORK MAY PROCEED CITY CLERK DATE: NOY 17 ZOZ3r"d AGREEMENT WITH CIVICPLUS TO PROVIDE MUNICIPAL CODE REPUBLICATION SERVICES THIS AGREEMENT is made and entered into this 7th day of November 2023 by and between CivicPlus, LLC., a Kansas limited liability company ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of municipal code republication services. B. Consultant represents that it is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES a. Consultant, during the term of this Agreement, shall provide Santa Ana Municipal Code ("SAMC") republication and update services in both written and electronic versions as set forth in Exhibit A, attached hereto and incorporated by reference. b. Each document for processing should be its own individual file, named by its ordinance number. City should send in all documents to Consultant as MS WORD versions or a convertible PDF version. C. The Scope of Services to this Agreement does not include: (1) Additional copies, reprints, binders and tab orders; (2) Documents drafted in InDesign or that contain form -based code requirements, are subject to additional editorial fees; (3) Legal work, creation of fee schedules, gender neutral review/implementation, external linking; (4) Codifying a newly adopted term change legislation. This maybe subject to a one-time additional editorial fee. Material to be reviewed upon receipt; Page 1 of 8 (5) Online Code hosting and online features, this is listed separately. For services outside the Scope of Services to this Agreement, a per page rate of $23 will be applied. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services under this Agreement, the rates and charges identified in Exhibit A. The total sum to be expended under the term of this Agreement, including any extension periods, shall not exceed Fifty Thousand Dollars and Zero Cents ($50,000). This sum includes a five percent (5%) annual increase, which shall apply each anniversary of the commencement date, as defined in Section 3 of this Agreement. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. C. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals and Scope of Work, which may reasonably be expected by City. "INIEKWIT351 This Agreement shall commence on the date first written above and shall terminate on June 30, 2028, unless terminated earlier in accordance with Section 17, below. 4. PREVAILING WAGES Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the services being performed are part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and the total compensation is $1,000 or more, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and Page 2 of 8 regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 6. OWNERSHIP OF MATERIALS City shall own all right, title, and interest in and to the code created under this Agreement. City is responsible for providing all necessary and correct documentation, materials and communication in a timely manner in order to enable Consultant to perform the Services and acknowledges Consultant cannot begin performance of the Services until all necessary documentation, materials and communication is received. INSURANCE Due to the nature of the services provided, no insurance shall be required. 8. INDEMNIFICATION Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, Consultants, special counsel, and representatives from third party liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant or its subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any third party claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 9. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend, indemnify and hold harmless the City, its officers, agents, representatives, and employees against any and all third party liability, including costs, and attorney's fees, for infringement of any United States' letters patent, trademark, or copyright contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. Page 3 of 8 10. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 11. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 12. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 13. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714- 647-6956 Page 4 of 8 To Consultant: CiviePlus 302 S. 4th Street, Suite 500 Manhattan, KS 66502 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these timeframes, weekends, federal, state, County or City holidays shall be excluded. 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services that are the subject to this Agreement performed by City personnel or by other Consultants retained by City. Such consent shall not be unreasonably withheld. Notwithstanding the foregoing, Consultant may assign and transfer all of its rights under this Agreement by a sale of a majority of its assets or merger. 16. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. Page 5 of 8 17. TERMINATION This Agreement may be terminated by either Party upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case, such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 18. NON-DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 19. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 20. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 21. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and Page 6 of 8 attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. C. Consultant will not be liable for any act, omission of act, negligence or defect in the quality of service of any underlying carrier, licensor or other third -party service provider whose facilities or services are used in furnishing any portion of the Service received by the City d. Consultant will not be liable for any failure of performance that is caused by or the result of any act or omission by City or any entity employed/contracted on the City's behalf. During the term of this Agreement, City will be responsive and cooperative with Consultant to ensure the services are completed in a timely manner. e. Consultant shall, at all times, comply with the terms and conditions of its Privacy Policy (the "Privacy Policy" found at https://www.civicl2lus.com/nrivacy- olic '). Consultant will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of City data. Except (a) in order to provide the Services; (b) to prevent or address service or technical problems in connection with support matters; (c) as expressly permitted in writing by City; or (d) in compliance with our Privacy Policy, Consultant will not modify City data or disclose City data, unless specifically directed by City or compelled by law. Notwithstanding the foregoing, Consultant reserves the right to delete known malicious accounts without City authorization. f. Consultant's liability arising out of or related to this Agreement, or any associated SOW, will not exceed ten (10) times the annual amount to be paid by City in the year of such claim of liability. g. Consultant warrants that the Services will perform substantially in accordance with documentation and marketing proposals, and free of any material defect. Consultant warrants to the City that, upon notice given to Consultant of any defect in design or fault or improper workmanship, Consultant will remedy any such defect. Consultant makes no warranty regarding, and will have no responsibility for, any claim arising out of: (i) a modification of the Services made by anyone other than Consultant, even in a situation where Consultant approves of such modification in writing; or (ii) use of the Services in combination with a third party service, web hosting service, or server not authorized by Consultant. [signature page to follow] Page 7 of 8 N-2023-305 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: 4erk L I� 1 APPROVED AS TO FORM SONIA R. CARVALHO City Attorney By: randon Salvatierra Deputy City Attorney CITY OF SANTA ANA Steven A. Mendoza Acting City Manager CIVICPLUS Amy Vikander Senior Vice President of Customer Success Page 8 of 8 EXHIBIT A CP c[vicPlus 302 South 4th St. Suite 500 Manhattan, KS 66502 us Quote #: Date: Customer: Q-34800-1 1/4/2023 10:49 AM SANTA ANA, CALIFORNIA Product Name DESCRIPTION QTY TOTAL Municode Administrative Support Fee Municode Administrative Support Fee 1.00 USD 570.00 Custom OrdBank Subscription OrdBank Subscription 1.00 USD 561.46 Monthly Electronic Supplementation Online Supplementation will begin with the 1.00 USD 0.00 Service Included ordinances received on a monthly basis. Full -Service Supplementation Full -Service Supplementation Subscription 1.00 USD 7,497.97 Subscription Printed Copies and Freight Included — Printed Copies and Freight Included 1.00 USD 0.00 up to [#] copies Full -Service Supplementation Plus Full -Service Supplementation Plus 1.00 USD 0.00 Subscription Upgrade Subscription Semi -Annual Print Supplementation Print Supplementation will begin with the 1.00 USD 0.00 Service Included ordinances received from the municipality on a semi-annual basis. Annual Recurring Supplement Services - Initial Term I USD 9,362.10 This Statement of Work ("SOW") is between City of Santa Ana ("Customer") and CivicPlus, LLC ("CivicPlus"), the acquirer and sole owner of Municode, LLC f/k/a Municipal Code Corporation. V. PD 06.01.2015-0048