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THIS AGREEMENT (the "Agreement") is made as of July 1, 2018 by and between the
City of Diamond Bar, a municipal corporation ("City") and AmeriComp Group imaging, LLC., a
California limited liability company ("Contractor").
1. Contractor's Services.
Subject to the terms and conditions set forth in this Agreement Contractor shall provide
to the reasonable satisfaction of the City the services set forth in the attached Exhibit "A"
which is incorporated herein by this reference. As a material inducement to the City to enter
into this Agreement, Contractor represents and warrants that it has thoroughly investigated the
work and fully understands the difficulties and restrictions in performing the work. Contractor
represents that it is fully qualified to perform such consulting services by virtue of its
experience and the training, education and expertise of its principals and employees.
Kenneth Desforges, Director of Information Systems (herein referred to as the "City's
Project Manager"), shall be the person to whom the Contractor will report for the performance
of services hereunder. It is understood that Contractor shall coordinate its services hereunder
with the City's Project Manager to the extent required by the City's Project manager, and that
all performances required hereunder by Contractor shall be performed to the satisfaction of the
City's Project Manager and the City Manager
2. Term of Agreement. This Agreement shall take effect July 1, 2018, and shall
continue until dune 30, 2023 unless earlier terminated pursuant to the provisions herein. This
Agreement may be extended as provided herein.
3. Compensation, City agrees to compensate Contractor for each service which
Contractor performs to the satisfaction of City in compliance with the scope of services set
forth in Exhibit "A". Payment will be made only after submission of proper invoices in the form
specified by City. Total payment to Contractor pursuant to this Agreement shall not exceed
One Hundred and Fifty Thousand Dollars ($150,000) without the prior written consent of the
City. The above not to exceed amount shall include all costs, including, but not limited to, all
clerical, administrative, overhead, telephone, travel and all related expenses. (Arty differences
between the Proposal — Exhibit A and this Maintenance Service Agreement, shall be governed
by this document and shall supersede vendors' proposed terms.)
A. As scheduled services are completed, Contractor shall submit to City an invoice
for the services completed, authorized expenses and authorized extra work actually performed
or incurred.
S. All such invoices shall state the basis for the amount invoiced, including services
completed, the number of hours spent and any extra work performed.
C. City will pay Contractor the amount invoiced the City will pay Contractor
the amount properly invoiced within 35 days of receipt. (Any differences between the Proposal
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-- Exhibit A and this Maintenance Service Agreement, shall be governed by this document and
shall supersede vendors' proposed terms.)
D. Payment shall constitute payment in full for all services, authorized costs and
authorized extra work covered by that invoice.
6. Change Carders. No payment for extra services caused by a change in the
scope or complexity of work, or for any other reason, shall be made unless and until such extra
services and a price therefore have been previously authorized in writing and approved by the
City Manager or his designee as an amendment to this Agreement. The amendment shall set
forth the changes of work, extension of time, if any, and adjustment of the fee to be paid by
City to Contractor.
6. Priority of Documents. In the event of any inconsistency between the
provisions of this Agreement and any attached exhibits, the provisions of this Agreement shall
control.
7. Status as Independent Contractor.
A. Contractor is, and shall at all times remain as to City, a wholly
independent contractor. Contractor shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent, except as specifically
provided herein. Neither City nor any of its agents shall have control over the conduct of
Contractor or any of Contractor's employees, except as set forth in this Agreement. Contractor
shall not, at any time, or in any manner, represent that it or any of its agents or employees are
in any manner employees of City.
B. Contractor agrees to pay all required taxes on amounts paid to Contractor
under this Agreement, and to indemnify and hold City harmless from any and all taxes,
assessments, penalties, and interest asserted against City by reason of the independent
contractor relationship created by this Agreement. In the event that City is audited by any
Federal or State agency regarding the independent contractor status of Contractor and the
audit in any way fails to sustain the validity of a wholly independent contractor relationship
between City and Contractor; then Contractor agrees to reimburse City for all costs, including
accounting and attorney's fees, arising out of such audit and any appeals relating thereto.
C, Contractor shall fully comply with Workers` Compensation laws regarding
Contractor and Contractor's employees. Contractor further agrees to indemnify and hold City
harmless from any failure of Contractor to comply with applicable Worker's Compensation
laws.
D. Contractor shall, at Contractor's sole cost and expense fully secure and
comply with all federal, state and local governmental permit or licensing requirements,
including but not limited to the City of Diamond Bar, South Coast Air Quality Management
District, and California Air Resources Board.
E. In addition to any other remedies it may have, City shall have the right to
offset against the amount of any fees due to Contractor under this Agreement any amount due
to City from Contractor as a result of Contractor's failure to promptly pay to City any
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reimbursement or indemnification required by this Agreement or for any amount or penalty
levied against the City for Contractor's failure to comply with this Section.
8. Standard of Performance. Contractor shall perform all work at the standard of
care and skill ordinarily exercised by members of the profession under similar conditions and
represents that it and any subcontractors it may engage, possess any and all licenses which
are required to perform the work contemplated by this Agreement and shall maintain all
appropriate licenses during the performance of the work.
9. Indemnification.
Contractor shall indemnify, defend with counsel approved by City, and hold harmless
City, its officers, officials, employees and volunteers ("Indemnitees") from and against all
liability, loss, damage, expense, cost (including without limitation reasonable attorneys' fees,
expert fees and all other costs and fees of litigation) of every nature arising out of or in
connection with:
(1) Any and all claims under Worker's Compensation acts and other employee benefit
acts with respect to Contractor's employees or Contractor's contractor's employees arising out
of Contractor's work under this Agreement; and
(2) Any and all claims arising out of Contractor's performance of work hereunder or its
failure to comply with any of its obligations contained in this Agreement, regardless of City's
passive negligence, but excepting such loss or damage which is caused by the sole active
negligence or willful misconduct of the City. Should City in its sole discretion find Contractor's
legal counsel unacceptable, then Contractor shall reimburse the City its costs of defense,
including without limitation reasonable attorneys' fees, expert fees and all other costs and fees
of litigation. The Contractor shall promptly pay any final judgment rendered against the
Indemnitees. It is expressly understood and agreed that the foregoing provisions are intended
to be as broad and inclusive as is permitted by the law of the State of California and will
survive termination of this Agreement. Except for the Indemnitees, this Agreement shall not be
construed to extend to any third party indemnification rights of any kind.
% Insurance.
A. Contractor shall at all times during the term of this Agreement carry, maintain,
and keep in full force and effect, with an insurance company authorized to do business in the
State of California and approved by the City the following insurance:
(1) a policy or policies of broad form comprehensive general liability insurance
written on an occurrence basis with minimum limits of $1,000,000.00 combined single limit
coverage against any injury, death, loss or damage as a result of wrongful or negligent acts by
Contractor, its officers, employees, agents, and independent contractors in performance of
services under this Agreement;
(2) property damage insurance with a minimum limit of $500,000.00 per
occurrence;
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(3) automotive liability insurance written on an occurrence basis covering all
owned, non -owned and hired automobiles, with minimum combined single limits coverage of
$1,000,000.00; and
(4) Worker's Compensation insurance when required by law, with a minimum
limit of $500,000.00 or the amount required by law, whichever is greater.
B. The City, its officers, employees, agents, and volunteers shall be named as
additional insureds on the policies as to comprehensive general liability, property damage, and
automotive liability. The policies as to comprehensive general liability, property damage, and
automobile liability shall provide that they are primary, and that any insurance maintained by
the City shall be excess insurance only.
C. All insurance policies shall provide that the insurance coverage shall not be non -
renewed, canceled, reduced, or otherwise modified (except through the addition of additional
insureds to the policy) by the insurance carrier without the insurance carrier giving City at least
ten (10) day's prior written notice thereof. Contractor agrees that it will not cancel, reduce or
otherwise modify the insurance coverage and in the event of any of the same by the insurer to
immediately notify the City.
D. All policies of insurance shall cover the obligations of Contractor pursuant to the
terms of this Agreement and shall be issued by an insurance company which is authorized to
do business in the State of California or which is approved in writing by the City; and shall be
placed have a current A.M. Best's rating of no less than A-, Vll.
E. Contractor shall submit to City (1) insurance certificates indicating compliance
with the minimum insurance requirements above, and (2) insurance policy endorsements or a
copy of the insurance policy evidencing the additional insured requirements in this Agreement,
in a form acceptable to the City.
F. Self -insured RetentionlDeductibles. All policies required by this Agreement shall
allow City, as additional insured, to satisfy the self -insured retention ("SIR") and/or deductible
of the policy in lieu of the Contractor (as the named insured) should Contractor fail to pay the
SIR or deductible requirements. The amount of the SIR or deductible shall be subject to the
approval of the City. Contractor understands and agrees that satisfaction of this requirement is
an express condition precedent to the effectiveness of this Agreement. Failure by Contractor
as primary insured to pay its SIR or deductible constitutes a material breach of this Agreement.
Should City pay the SIR or deductible on Contractor's due to such failure in order to secure
defense and indemnification as an additional insured under the policy, City may include such
amounts as damages in any action against Contractor for breach of this Agreement in addition
to any other damages incurred by City due to the breach.
C. Subrogation. With respect to any Workers' Compensation Insurance or
Employer's Liability Insurance, the insurer shall waive all rights of subrogation and contribution
it may have against the Indemnitees.
H. Failure to Maintain Insurance. If Contractor fails to keep the insurance required
under this Agreement in full force and effect, City may take out the necessary insurance and
any premiums paid, plus 10% administrative overhead, shall be paid by Contractor, which
amounts may be deducted from any payments due Contractor.
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1. Contractor shall include all subcontractors, if any, as insureds under its policies
or shall furnish separate certificates and endorsements for each subcontractor to the City for
review and approval. All insurance for subcontractors shall be subject to all of the
requirements stated herein.
11. Confidentiality. Contractor in the course of its duties may have access to
confidential data of City, private individuals, or employees of the City. Contractor covenants
that all data, documents, discussion, or other information developed or received by Contractor
or provided for performance of this Agreement are deemed confidential and shall not be
disclosed by Contractor without written authorization by City. City shall grant such
authorization if disclosure is required by law. All City data shall be returned to City upon the
termination of this Agreement. Contractor's covenant under this section shall survive the
termination of this Agreement. Notwithstanding the foregoing, to the extent Contractor
prepares reports of a proprietary nature specifically for and in connection with certain projects,
the City shall not, except with Contractor's prior written consent, use the same for other
unrelated projects.
12. Maintenance and Inspection of Records, In accordance with generally
accepted accounting principles, Contractor and its subcontractors shall maintain reasonably
full and complete books, documents, papers, accounting records, and other information
(collectively, the "records") pertaining to the costs of and completion of services performed
under this Agreement. The City and any of their authorized representatives shall have access
to and the right to audit and reproduce any of Contractor's records regarding the services
provided under this Agreement. Contractor shall maintain all such records for a period of at
least three (3) years after termination or completion of this Agreement. Contractor agrees to
make available all such records for inspection or audit at its offices during normal business
hours and upon three (3) days' notice from the City, and copies thereof shall be furnished if
requested.
13. Conflict of Interest.
A. Contractor covenants that it presently has no interest and shall not acquire
any interest, direct or indirect, which may be affected by the services to be performed by
Contractor under this Agreement, or which would conflict in any manner with the performance
of its services hereunder. Contractor further covenants that, in performance of this Agreement,
no person having any such interest shall be employed by it. Furthermore, Contractor shall
avoid the appearance of having any interest which would conflict in any manner with the
performance of its services pursuant to this Agreement.
B. Contractor covenants not to give or receive any compensation, monetary
or otherwise, to or from the ultimate vendor(s) of hardware or software to City as a result of the
performance of this Agreement. Contractor's covenant under this section shall survive the
termination of this Agreement.
14. Termination. The City may terminate this Agreement with or without cause
upon thirty (30) days' written notice to Contractor. The effective date of termination shall be
upon the date specified in the notice of termination, or, in the event no date is specified, upon
the thirtieth (30th) day following delivery of the notice. In the event of such termination, City
agrees to pay Contractor for services satisfactorily rendered prior to the effective date of
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termination. Immediately upon receiving written notice of termination, Contractor shall
discontinue performing services, unless the notice provides otherwise, except those services
reasonably necessary to effectuate the termination. The City shall be not liable for any claim
of lost profits.
15. Personnel. Contractor represents that it has, or will secure at its own expense,
all personnel required to perform the services under this Agreement, All of the services
required under this Agreement will be performed by Contractor or under it .supervision, and all
personnel engaged in the work shall be qualified to perform such services. Contractor
reserves the right to determine the assignment of its own employees to the performance of
Contractor's services under this Agreement, but City reserves the right, for good cause, to
require Contractor to exclude any employee from performing services on City's premises.
17. Prevailing Wage. Notice is hereby given that in accordance with the provisions
of California Labor Code, Division 2, Part 7, Chapter 1, Articles 1 and 2, the Contractor is
required to pay not less than the general prevailing rate of per diem wages for work of a similar
character in the locality in which the public works is performed, and not less than the general
prevailing rate of per diem wages for holiday and overtime work. In that regard, the Director of
the Department of Industrial Relations of the State of California is required to and has
determined such general prevailing rates of per diem wages. Copies of such prevailing rates
of per diem wages are on file in the Office of the City Clerk of the City of Diamond Bar, 21825
Copley Drive, Diamond Bar, California, and are available to any interested party on request.
City also shall cause a copy of such determinations to be posted at the job site,
The Contractor shall forfeit, as penalty to City, not more than twenty-five dollars
($25.00) for each laborer, workman or mechanic employed for each calendar day or portion
thereof, if such laborer, workman or mechanic is paid less than the general prevailing rate of
wages hereinbefore stipulated for any work done under this Agreement, by him or by any
subcontractor under him.
The CONTRACTOR and any of its subcontractors must be registered with the
Department of Industrial Relations pursuant to Labor Code section 1725.5, which precludes
the award of a contract for a public work on any public works project awarded after April 1,
2015. This Agreement is subject to compliance monitoring and enforcement by the
Department of Industrial Relations.
18. Non -Discrimination and Equal Employment Opportunity.
A. Contractor shall not discriminate as to race, color, creed, religion, sex,
marital status, national origin, ancestry, age, physical or mental handicap, medical condition, or
sexual orientation, in the performance of its services and duties pursuant to this Agreement,
and will comply with all rules and regulations of City relating thereto. Such nondiscrimination
shall include but not be limited to the following: employment, upgrading, demotion, transfers,
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship.
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B. Contractor will, in all solicitations or advertisements for employees placed
by or on behalf of Contractor state either that it is an equal opportunity employer or that all
qualified applicants will receive consideration for employment without regard to race, color,
creed, religion, sex, marital status, national origin, ancestry, age, physical or mental handicap,
medical condition, or sexual orientation.
C. Contractor will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts for
standard commercial supplies or raw materials.
19. Time Is of the Essence. Time is of the essence in this Agreement. Contractor
shall do all things necessary and incidental to the prosecution of Contractor's work.
20 Delays and Extensions of Time. Contractor's sole remedy for delays outside
its control shall be an extension of time. No matter what the cause of the delay, Contractor
must document any delay and request an extension of time in writing at the time of the delay to
the satisfaction of City. Any extensions granted shall be limited to the length of the delay
outside Contractor's control. If Contractor believes that delays caused by the City will cause it
to incur additional costs, it must specify, in writing, why the delay has caused additional costs
to be incurred and the exact amount of such cost within 10 days of the time the delay occurs.
No additional costs can be paid that exceed the not to exceed amount absent a written
amendment to this Agreement. In no event shall the Contractor be entitled to any claim for lost
profits due to any delay, whether caused by the City or due to some other cause.
21. Assignment. Contractor shall not assign or transfer any interest in this
Agreement nor the performance of any of Contractor's obligations hereunder, without the prior
written consent of City, and any attempt by Contractor to so assign this Agreement or any
rights, duties, or obligations arising hereunder shall be void and of no effect.
22. Compliance with Laws. Contractor shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
23. Non -Waiver of Terms, Rights and Remedies. Waiver by either party of any
one or more of the conditions of performance under this Agreement shall not be a waiver of
any other condition of performance under this Agreement. In no event shall the making by City
of any payment to Contractor constitute or be construed as a waiver by City of any breach of
covenant, or any default which may then exist on the part of Contractor, and the making of any
such payment by City shall in no way impair or prejudice any right or remedy available to City
with regard to such breach or default.
24. Aettorney's Fees. In the event that either party to this Agreement shalt
commence any legal or equitable action or proceeding to enforce or interpret the provisions of
this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its
costs of suit, including reasonable attorney's fees and costs, including costs of expert
witnesses and Contractors.
25. Mediation. Any dispute or controversy arising under this Agreement, or in
connection with any of the terms and conditions hereof, which cannot be resolved by the
parties, may be referred by the parties hereto for mediation. A third party, neutral mediation
service shall be selected, as agreed upon by the parties and the costs and expenses thereof
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shall be borne equally by the parties hereto. The parties agree to utilize their good faith efforts
to resolve any such dispute or controversy so submitted to mediation. It is specifically
understood and agreed by the parties hereto that mutual good faith efforts to resolve the same
any dispute or controversy as provided herein, shall be a condition precedent to the institution
of any action or proceeding, whether at law or in equity with respect to any such dispute or
controversy.
26. Notices. Any notices, bills, invoices, or reports required by this Agreement shall
be deemed received on (a) the day of delivery if delivered by hand during regular business
hours or by facsimile before or during regular business hours, or (b) on the third business day
following deposit in the United States mail, postage prepaid, to the addresses heretofore set
forth in the Agreement, or to such other addresses as the parties may, from time to time,
designate in writing pursuant to the provisions of this section.
"CONTRACTOR"
AmeriComp Group Imaging, LLC.
8780 19th Street #383
Alta Loma CA 91701
Attn.: K le W. Jewell
Phone: 909-481-1073
E-Mail: kyle.jewell@americompgroup.com
"CITY"
City of Diamond Bar
21810 Copley Drive
Diamond Bar, CA 91765-4178
Attn.: City Clerk
Phone: 909-839-7080
E-mail: CityClerk@DiamondBarCA.gov
27. Governing Law. This Agreement shall be interpreted, construed and enforced
in accordance with the laws of the State of California.
28. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be the original, and all of which together shall constitute one
and the same instrument.
29. Entire Agreement. This Agreement, and any other documents incorporated
herein by reference, represent the entire and integrated agreement between Contractor and
City. This Agreement supersedes all prior oral or written negotiations, representations or
agreements. This Agreement may not be amended, nor any provision or breach hereof
waived, except in a writing signed by the parties which expressly refers to this Agreement.
Amendments on behalf of the City will only be valid if signed by a person duly authorized to do
so under the City's Purchasing Ordinance.
IN WITNESS of this Agreement, the parties have executed this Agreement as of
the date first written above.
"Contractor"
AmeriComp Group Imaging, LLC.
11ce, WOVAN I IRS
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lFcityll
CITY OF DIAMOND BAR
Bv
Ruth M. Low, Mayor
952079A
By,
Printed Name:
Title:
NEI
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ATTEST:
City Clerk
State of California "'CONTRACTOR'S" License No. . [if applicable]
CONTRACTOR'S Business Phone M A - IM - 0?
Emergency Phone - 3 q__ fSi�
at which CONTRACTOR can be reached at any time.
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