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HomeMy WebLinkAboutC38220 CA1 PlanetBids eProcurement SolutionsCONTRACT NO. C38221 STAFF REPORT CITY OF PALM DESERT PUBLIC WORKS DEPARTMENT MEETING DATE: April 25, 2019 PREPARED BY: Sonja De La Fuente, Management Specialist REQUEST: Approve Amendment No. 1 to Contract No. C38220, a Three -Year Professional Services Agreement with PlanetBids for eProcurement Solutions Recommendation By Minute Motion: Approve Amendment No. 1 (Contract No. C38221) to the Professional Services Agreement (Contract No. C38220) with PlanetBids for an additional total amount of $24,020.55 paid over three years, adding the Contract Management Module with up to five (5) user licenses and an additional Full User License to the Vendor Management and Bid Management with Advanced e-Bidding Module bringing the total user licenses for that module to three (3). 2. Authorize the City Manager or her designee to make any necessary budget adjustments, appropriations, and transfers; and 3. Authorize the City Manager to execute Amendment No. 1 and any future amendments to the three-year Professional Services Agreement. Funds are available in the Information Technology Software and Maintenance Account No. 110-4190-4336000. Strateqic Plan While this doesn't address a specific goal within the City's Strategic Plan, it provides for even more outstanding customer and vendor service. Background Analvsis On February 28, 2019, the City Council approved a three-year Professional Services Agreement with PlanetBids for Vendor and Bid Management with the Advanced eBidding and Insurance Certificate Management modules. Upon further evaluation and at the recommendation of the City's Finance Department, the City is seeking to further modernize and streamline the contract management procedures for all departments within the City. Currently all departments process and track all vendor contracts manually. April 25, 2019 - Staff Report Approve Contract No. C38221 - Amendment No. 1 to Contract No. C38220 with PlanetBids Page 2 of 2 The Contract Management module integrates seamlessly with the Vendor and Bid Management, and Insurance Tracking modules. This will greatly reduce staff time in all departments in dealing with the processing of contracts. Since the City has not set-up the system as of this date, the $1,000 set-up fee discount for the additional module will apply. Below is a breakdown of the additional costs over the three-year term of the contract. Year 1: $500 set-up fee + $5, 500 Contract Management Module + $2,000 Vendor and Bid Management with Advanced e-bidding Additional User License = $8,000.00. Year 2: $5,775 Contract Management Module + $2,060 Vendor and Bid Management with Advanced e-bidding Additional User License = $7,835.00. Year 3: $6,063.75 Contract Management Module + $2,121.80 + Vendor and Bid Management with Advanced e-bidding Additional User License = $8,185.55 THREE YEAR TOTAL: $24,020.55 The PlanetBids (PB) System meets the goals identified by the City through its suite of cloud -based interconnected procurement modules designed to handle the vendor and bid management process online. Each module interacts to create, manage, and track all bid, award, and post -award tasks through their system. Fiscal Analvsis There is no fiscal impact beyond the cost of the additional module and user license. LEGAL DEPT. REVIEW REVIEW Approved as to Form N/A Robert W. Tom Garcia, Hargreaves P.E. City Attorney Director of Public Works DEPT. REVIEW Director of Administrative Services FINANCIAL CITY REVIEW MANAGER jet Moore Lauri Aylai n Director of Finance City Manager VENDOR: PlanetBids 5850 Canoga Avenue, Suite 301 Woodland Hills, CA 91367 ATTACHMENTS: 1) Amendment No. 1 (Contract No. C38221) 2) Contract No. C38220 3) Revised Quote from PlanetBids CONTRACT NO. C38221 FIRST AMENDMENT TO CONTRACT NO. C38220 WHEREAS, the City of Palm Desert ("City") and PlanetBids ("Vendor"), entered into an agreement (Contract No.C38220), dated February 28, 2019, for eProcurement Solutions ("Agreement"). The parties wish to amend the Agreement effective July 1, 2019. NOW, THEREFORE, the parties agree as follows: A. The Amount of the contract will increase by the sum of Twenty -Four Thousand Twenty and 55/100 Dollars ($24,020.55) over three years, broken down as follows: Year 1: $500.00 set-up fee + $5,500.00 Contract Management Module + $2,000.00 Vendor and Bid Management with Advanced e-bidding Additional User License = $8,000.00. Year 2: $5,775.00 Contract Management Module + $2,060.00 Vendor and Bid Management with Advanced e-bidding Additional User License = $7,835.00. Year 3: $6,063.75 Contract Management Module + $2,121.80 + Vendor and Bid Management with Advanced e-bidding Additional User License = $8,185.55 B. All other terms and conditions of the Agreement shall remain unchanged, and shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the 25th day of April, 2019. CITY OF PALM DESERT A Municipal Corporation Lauri Aylaian, City Manager City of Palm Desert Attest: Rachelle D. Klassen, City Clerk CITY OF PALM DESERT, CALIFORNIA Approved as to Form: Robert W. Hargreaves, Esq. City Attorney PlanetBids Contractor Approved as to Content: Tom Garcia, P.E. Director of Public Works CONTRACT NO. C38221 CONTRACTOR NOTARY ACKNOWLEDGMENT A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) ) SS County of Riverside ) On , 20 , before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) I I T y Of P 0 1 M 73-5 I o FRED WARING DRIVE PALM DESERT, CALIFORNIA 92260-2578 TEL: 760 346—o6i i info@ cityofP2I mdesert. org March 5, 2019 Mr. Alan Zavian Chief Executive Officer PlanetBids 5850 Canoga Avenue, Suite 301 Woodland Hills, California 91367 Dear Mr. Zavian: Subject: Contract No. C38220 - eProcurement Solutions for eBiddinq At its regular meeting of February 28, 2019, the Palm Desert City Council, by Minute Motion, approved/authorized: 1) Professional Services Agreement with PlanetBids for a three (3)-year term in the amount of $57,586.21, with an option of two (2) additional one-year extensions; 2) City Manager to execute the Agreement and subsequent renewals. Enclosed are two original Agreements. Please sign where indicated, have notarized (California All -Purpose Acknowledgment), and return them to us at your earliest convenience. We will then forward to you a fully executed Agreement for your records. Additionally, we call your attention to the insurance requirements that were contained within the specification package for this project. We ask that all required information be returned with the signed Agreements, including the appropriate Certificate of Insurance and Additional Insured Endorsement, to expedite processing of the document and commencement of the project. If you have any questions or require additional information, please do not hesitate to contact us. Sincerely, RACHELLE D. KLASSEN, MMC CITY CLERK RDK:mm Enclosures (as noted) cc/enc:Tom Garcia, P. E., Director of Public Works Finance �, rmrto a rt<mu wv Contract No. C38220 CITY OF PALM DESERT PROFESSIONAL SERVICES AGREEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this 28"' day of February, 2019, by and between the City of Palm Desert, a municipal corporation organized under the laws of the State of California with its principal place of business at 73-510 Fred Waring Drive, Palm Desert, California 92260- 2578, County of Riverside, State of California ("City") and PlanetBids, with its principal place of business at 5850 Canoga Avenue, Suite 301, Woodland Hills, California 91367 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing professional eProcurement software services to public clients, is licensed in the State of California, and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such professional services for the eProcurement software project ("Project") as set forth in this Agreement. 3. TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scope of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional eProcurement software consulting services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. 3.1.2 Term. The term of this Agreement shall be from March 1, 2019 to February 28, 2022, unless earlier terminated as provided herein. The City shall have the unilateral option, at its sole discretion, to renew this Agreement automatically for no more than three additional one-year terms. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. (BB&K 2018) 72500.00001 \31605678.1 Rev 11-9-1 B 1 725(X).00001 \3183d566 I Contract No. C38220 3.2 Responsibilities of Consultant. 3.2.1 Independent Contractor; Control and Pavment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, nor any of its officials, officers, directors, employees or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3 Conformance to Applicable Reouirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Kev Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: Alan Zavian, Co -Founder. 3.2.5 Citv's Representative. The City hereby designates Tom Garcia, P.E., Director of Public Works, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute (BB&K 2018) 72500.00001 \31605678.1 Rev 11-9-18 -2- 72500(XXX)1\11844W I Contract No. C38220 all necessary documents which enlarge the Scope of Work or change the Consultant's total compensation subject to the provisions contained in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person other than the City Manager, City's Representative or his/her designee. 3.2.6 Consultant's Representative. Consultant hereby Alan Zavian, Co -Founder, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times. 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Consultant's failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub - consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Period of Performance. Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above ("Performance Time"). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits "A" or "B" attached hereto, or which may be separately agreed upon in writing by the City and Consultant ("Performance Milestones"). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Project Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage. 3.2.10 Laws and Regulations; Employee/Labor Certification. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules (BBBK 2018) 72500.00001 \31605678.1 Rev 11-9-18 3 72500 0(K)01 \118J-1566 1 Contract No. C38220 and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If Consultant performs any work knowing it to be contrary to such laws, rules and regulations, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees, agents, and volunteers free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.2.10.1 Emplovment Eliqibilitv: Consultant. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Consultant. Consultant also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Consultant shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Consultant shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Consultant's compliance with the requirements provided for in Section 3.2.10 or any of its sub -sections. 3.2.10.2 Emplovment Eliqibilitv; Subcontractors, Consultants. Sub - subcontractors and Subconsultants. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, consultants, sub -subcontractors and subconsultants performing any work relating to the Project or this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 3.2.10.1. 3.2.10.3 Emplovment Eliqibilitv: Failure to Comply. Each person executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer of Consultant, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, sub -subcontractors or subconsultants to meet any of the requirements provided for in Sections 3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Consultant under Section 3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements. (88&K 2018) 72500.00001\31605678.1 Rev 11.9-18 -4- 72500.00001\3I841566.I Contract No. C38220 3.2.10.4 Equal Opportunitv Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 3.2.10.5 Air Qualitv. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Although the SCAQMD and CARB limits and requirements are more broad, Consultant shall specifically be aware of their application to "portable equipment", which definition is considered by SCAQMD and CARB to include any item of equipment with a fuel - powered engine. Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARE, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its sub - consultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement. 3.2.10.6 Safety. Consultant shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions, where applicable, shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. 3.2.11 Insurance. 3.2.11.1 Minimum Requirements. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form that is satisfactory to City. A. General Liabilitv Insurance. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 .5- 72500.00(X)1 \318445W 1 Contract No. C38220 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO "insured contract" language will not be accepted. B. Automobile Liabilitv Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. The City's Risk Manger may modify this requirement if it is determined that Consultant will not be utilizing a vehicle in the performance of his/her duties under this agreement. C. Professional Liabilitv (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement. D. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City of Palm Desert, its officers, agents, employees and volunteers. E. Umbrella or Excess Liabilitv Insurance. Consultant may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Consultant shall obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer's liability. Such policy or policies shall include the following terms and conditions: (1) A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; (2) to reimbursement; (3) primary policies; and (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -6- 72500 00001\31844566 1 Pay on behalf of wording as opposed Concurrency of effective dates with Contract No. C38220 (4) Policies shall "follow form" to the underlying primary policies. (5) Insureds under primary policies shall also be insureds under the umbrella or excess policies. F. Cvber Liabilitv Insurance. shall procure and maintain Cyber Liability insurance with limits of $1,000,000 per occurrence/loss, which shall include the following coverage: (1) Liability arising from the theft, dissemination and/or use of confidential or personally identifiable information; including credit monitoring and regulatory fines arising from such theft, dissemination or use of the confidential information. (2) Network security liability arising from the unauthorized use of, access to, or tampering with computer systems. (3) Liability arising from the failure of technology products (software) required under the contract for Consultant to properly perform the services intended. (4) Electronic Media Liability arising from personal injury, plagiarism or misappropriation of ideas, domain name infringement or improper deep- linking or framing, and infringement or violation of intellectual property rights. (5) Liability arising from the failure to render professional services If coverage is maintained on a claims -made basis, Consultant shall maintain such coverage for an additional period of three (3) years following termination of the Contract. 3.2.11.2 Other Provisions or Requirements. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. Duration of Coveraqe. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his/her agents, representatives, employees or subconsultants. (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -7- 72500.00WIV11844566 1 Contract No. C38220 C. Primarv/Non-Contributinq. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect it as a named insured. D City's Rights of Enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications, or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant, or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement. E. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. F. Waiver of Subroqation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City of Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers, or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City of Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers, and shall require similar written express waivers and insurance clauses from each of its sub- contractors. G. Enforcement of Contract Provisions (non estoppel). Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. H. Requirements Not Limitinq. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. (BBBK 2018) 72500.00001 \31605678.1 Rev 11-9-1 B .8- 72500 00(H)1 \ 11841566 I Contract No. C38220 I. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. J. Additional Insured Status. General liability, automobile liability, and if applicable, pollution liability and cyber liability, policies shall provide or be endorsed to provide that the City of Palm Desert and its officers, officials, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement, under such policies. This provision shall also apply to any excess/umbrella liability policies. K. Prohibition of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. L. Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer's limits of liability. The policy(ies) shall not contain any cross - liability exclusions. M. Pass Through Clause. Consultant agrees to ensure that its sub -consultants, sub -contractors, and any other party involved with the project who is brought onto or involved in the project by Consultant, provide the same minimum insurance coverage and endorsements required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with consultants, sub -contractors, and others engaged in the project will be submitted to City for review. N. Citv's Right to Revise Specifications. The City or Risk Manager reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant's compensation. If the City reduces the insurance requirements, the change shall go into effect immediately and require no advanced written notice. O. Self -Insured Retentions. Any self -insured retentions must be declared to and approved by City. City reserves the right to require that self - insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by City. P. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. (BBBK 2018) 72500.00001\31605678.1 Rev 11-9-18 g_ 7 2500.00001 \31944566 1 Contract No. C38220 Q. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Services. 3.3 Fees and Payments. 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed Fifty -Seven Five Hundred Eighty -Six and 21/100 Dollars ($57,586.21) without written approval of the City Council or City Manager as applicable. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Pavment of Compensation. Consultant shall submit to City an annual invoice for the Services fee for the forthcoming year. The initial invoice shall be submitted upon the completion of set-up and will include set-up costs and the fee for the first year. Thereafter, invoices will be submitted and paid on March 1 st of each subsequent year during the Term of this Agreement. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from the City. 3.3.5 Rate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set forth in Exhibit "C" may be adjusted each year at the time of renewal as set forth in Exhibit "C." 3.4 Labor Code Requirements. 3.4.1 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 are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. It is the intent of the parties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code (BB8K 2018) 72500.00001\31605678.1 Rev 11-9-18 -10- 72500 0000101841560 1 Contract No. C38220 sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 3.4.2 Registration/DIR Compliance. If the Services are being performed on a public works project of over $25,000 when the project is for construction, alteration, demolition, installation, or repair work, or a public works project of over $15,000 when the project is for maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and 1771.1, the Consultant and all subconsultants must be registered with the Department of Industrial Relations ("DIRT). Consultant shall maintain registration for the duration of the project and require the same of any subconsultants. This project may also be subject to compliance monitoring and enforcement by the DIR. It shall be Consultant's sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR. Any stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant that affect Consultant's performance of services, including any delay, shall be Consultant's sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subconsultant. 3.4.3 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 3.5 Accounting Records. 3.5.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 3.6 General Provisions. 3.6.1 Termination of Aqreement. 3.6.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated for any extra effort required by City in connection with such termination, and City shall not be entitled to a refund for any fees paid prior to the effective date of termination. Consultant may not terminate this Agreement except for cause. (BB&K 2018) 72500 00001 \31605678.1 Rev 11-9-1 B -11- 72500 00001\31844566.1 Contract No. C38220 3.6.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be required to provide such document and other information within fifteen (15) days of the request. 3.6.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.6.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: PlanetBids 5850 Canoga Avenue, Suite 301 Woodland Hills, California 91367 ATTN: Alan Zavian, Chief Executive Officer City: City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 ATTN: Tom Garcia, Director of Public Works Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.6.3 Ownership of Materials and Confidentialitv. 3.6.3.1 Work Product. All original papers, maps, models, designs, studies, surveys, reports, data, notes, computer files, documents, drawings and other work product (collectively 'Work Product") produced by Consultant pursuant to this Agreement shall be deemed solely the property of the City. Consultant will take such steps as are necessary to perfect or protect the ownership interest of the City in such Work Product. Upon completion, expiration or termination of this Agreement, Consultant shall turn over to the City all such original Work Product in Consultant's possession or control. Notwithstanding the foregoing, all rights, title and interest in and to all the software (including any work product) provided by Consultant, documentation made available time to time, the Consultant's website (including the look and feel of the website), and the domain name (Planetbids.com) of the Consultant including, without limitation, all patents, copyrights and other intellectual property rights in any ideas, concepts, designs, inventions, and expressions embodied in such materials, will be at all times vested in and remain the property of Consultant, save and except for any of the City's materials to the extent such materials have been reproduced on the Consultant's website. No title or ownership rights whatsoever are transferred to the City in respect to the Consultant's software, documentation, website, or domain name, except the limited right to use the Consultant's software, documentation, website, or domain name as part of the Services. (BBBK 2018) 72500.00001\31605678.1 Rev 11-9-18 -12- 7250000 01A3I8-W506I Contract No. C38220 All information gained or Work Product produced by Consultant in the performance of this Agreement will be considered confidential, unless such information is in the public domain. Consultant shall not release or disclose any such information or Work Product to persons or entities other than the City without the prior written consent of the City, except as otherwise required by law. Consultant shall promptly notify the City should Consultant or its representatives be served summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions or other discovery request or court order from any third party regarding this Agreement and the Services performed under this Agreement. 3.6.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.6.5 Consultant's Support Services Agreement. All provisions of Consultant's "PB Systems Support Services Agreement" attached hereto as Exhibit "D" are incorporated herein by reference; provided that, in the event of a conflict between the provisions of this Agreement and the provisions of said services agreement, the provisions of this Agreement shall prevail. 3.6.6 Indemnification. 3.6.6.1 To the fullest extent permitted by law, Consultant shall defend (with counsel of City's choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subconsultants or agents in connection with the performance of the Consultant's Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney's fees and other related costs and expenses. Consultant's obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers. 3.6.6.2If Consultant's obligation to defend, indemnify, and/or hold harmless arises out of Consultant's performance as a "design professional" (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant's indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of competent jurisdiction, Consultant's liability for such claim, including the cost to defend, shall not exceed the Consultant's proportionate percentage of fault. 3.6.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties. 3.6.8 Governing Law; Government Code Claim Compliance. This Agreement (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -13- 72500.0000101844566 1 Contract No. C38220 shall be governed by the laws of the State of California. Venue shall be in Riverside County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Consultant must comply with the claim procedures set forth in Government Code sections 900 et seg. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or changed conditions have been followed by Consultant. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City. 3.6.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.6.10 Citv's Right to Emplov Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.6.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.6.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.6.13 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.6.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.6.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.6.16 No Third-Partv Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.6.17 Invaliditv; Severabilitv. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions (BB&K 2018) 72500.00001 \31605678.1 Rev 11-9-18 -14- 72500.00001\11844566 I Contract No. C38220 shall continue in full force and effect. 3.6.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, 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 a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.6.19 Authoritv to Enter Aareement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 3.6.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.7 Subcontracting. 3.7.1 Prior Approval Reauired. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. [SIGNATURES ON NEXT PAGE] (BBBK 2018) 72500.00001\31605678.1 Rev 11-9-18 -15- 72500 00001\31844566 1 Contract No. C38220 SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF PALM DESERT AND PLANET BIDS CITY OF PALM DESERT PLANET BIDS By: By: LAURI AYLAIAN City Manager Its: Printed Name: ATTEST: City Clerk By: Its: Printed Name: APPROVED AS TO FORM: Best Best & Krieger LLP City Attorney (BBBK 2018) 72500.00001\31605678.1 Rev 11-9-18 -16- 7 ? 5 00.00001 \ 318.14 5 66 1 Contract No. C38220 Notary Acknowledgment A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA COUNTY OF On , 20, before me, , Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED Individual DOCUMENT Corporate Officer Title(s) Title or Type of Document Partner(s) Limited General Number of Pages Attorney -In -Fact Trustee(s) Guardian/Conservator Other: Signer is representing: Name Of Person(s) Or Entity(ies) (BB&K 2018) 72500.00001\31605678.1 Rev 11-9-18 -17- 72500 0(X)0Ili 1841566 I Date of Document Signer(s) Other Than Named Above Contract No. C38220 EXHIBIT "A" SCOPE OF SERVICES Provide a hosted e-Procurement solution software system designed to automate one or more of the City's procurement solicitation, evaluation, contract compliance and/or contract management processes. At the direction of and in consultation with the City, Contractor shall configure, implement and provide the City with eProcurement solutions that will enable the City and City Procurement stakeholders to perform various functions related to the Procurement process. Services shall include, but are not limited to the following: 1) Use of the PlanetBids PB System Vendor Management and Bid Management modules for the purpose of vendor registration, posting and tracking Bid Requests and other information on Customer's website or private internet network, 2) Advanced eBidding add -on module, for three (3) full user licenses to access and use the PB SystemTm by the Public Works Department and one (1) limited user license to use by the City Clerk to post or release bid opening results to the public, 3) The Insurance Certificate Management with My Insurance modules for five (5) licensed user access to the use of the PB System by the Risk Management Department, 4) City has option, to process and distribute Bid Requests to additionally available PlanetBids suppliers within their selected categories at no additional cost. 2) Internet related equipment by its nature, is not fault tolerant, but PlanetBids (1) will use reasonable efforts to make the Services available 24 hours per day, 7 days per week, excluding downtime for scheduled and unscheduled maintenance, and (2) will promptly investigate any technical problems that Customer reports. PlanetBids cannot, however, guarantee continuous service, service at any particular time or the integrity of data transmitted via the Internet. Further, PlanetBids shall not be responsible for the inadvertent disclosure, corruption or erasure of data transmitted, received or sorted on the PB SystemT11Nevertheless, PlanetBids shall notify the Customer upon discovering incidents of such inadvertent disclosure, corruption or erasure. 3) PlanetBids may make improvements and/or amendments to the PB System at any time, and may provide other optional services, including enhanced versions of standard features or functions, for an additional fee as agreed in advance by the Customer. Any and all relevant portions of these terms and conditions will automatically apply to all improvements, amendments and/or optional services as they appear. (BB&K 2018) Exhibit W-18 72500.00001 \31605678.1 Rev 11-9-18 7 250&OW01 \ 11 R41566 I Contract No. C38220 EXHIBIT "B" SCHEDULE OF SERVICES Setup and training schedule to be coordinated as per the Planet Bids PB SystemTm Support Services Agreement. (BB&K 2018) Exhibit "B"-19 72500.00001\31605678.1 Rev 11-9-18 72500 0000I N3184i566 I EXHIBIT "C" COMPENSATION Compensation for Services: Contract No. C38220 PB System'" MODULES SETUP YEAR1 YEAR2 YEAR3 YEAR4 2022-2023 YEAR5 2023-2024 2019-2020 2020.2021 2021.2022 (Optional) (Optional) Vendor Management 8 Bid Management $ 3,500.00 $ 5,875.00 $ 6,051.25 $ 6.232.79 $ 6,419.77 $ 6,612.3E FWI User Licenses) Advanced eBidding add -on to Bid Management (2 User Licenses) $ 500. $ 4,500.00 $ 4,635.00 $ 4,774.05 $ 4.917.27 $ 5,064.79 Insurance CertHicate Management With My Insurance $ 500. $ 5,625.00 $ 5,793.75 $ 5,967.56 $ 6,146.59 $ 6 330.99 (5 User Licenses) Read -Only (1 User Licensel $ 0.010. $ 500.00 $ 515.00 $ 530.45 $ 546 36 $ 562.75 City Clerk (1 Limited User License) $ 0.0C $ 675.00 $ 695 25 $ 716 11 $ 737.59 $ 759.72 Sub -Total $ 4,500.0C $17.175.00 $17,690.25 $18,220.96 $18,767 5 $19.330.61 TOTAL $21,675.00 $17,690.25 $18,220.9F $18,767.51 $19,330.61 (BBBK 2018) Exhibit "B"-20 72500.00001\31605678.1 Rev11-9-18 72500 OW01 \31 W 566.1 Contract No. C38220 EXHIBIT "D" Planet Bids Support Services Agreement (BB&K 2018) Exhibit "8"-21 72500.00001\31605678.1 Rev11-9-18 7 2 500.0000101844566.1 8 6 • Leading ©-Procur©mcnt Solutions Connocting Buyers 8 Seippiiers EfliclernNyl 6880 Csnop s Avsnu• s Suits 301 s Woodland Hills s CA s 81 387 • $18-692.1771 PIB SystemT11 SUPPORT SERVICES AGREEMENT This SERVICE SUPPORT AGREEMENT, which describes the terms and conditions applicable to your use of the PlanetBids Online Support Services, is made and entered as of into the 81" day of February 2019, by and between PLANETBIDS, INC., a California corporation, ("PlanetBids") and the following customer ("Customer") for the period from 03-04-19 to 03-03-22: Customer Name: City of Palm Desert Street Address 73-510 Fred Waring Drive City, State ZIP Palm Desert, CA 92260 Department: Public Works Principal Contact: Sonja De La Fuente Title: Management Specialist Phone & Email: 760.346.0611 x448, sdelafuente@cityofpalmdesert.org Method of Payment: Net 30 days (from final execution date of Agreement) THEREFORE, PlanetBids and the Customer agree as follows: 1. PlanetBids Services. Upon acceptance of this Agreement, PlanetBids shall provide the following Support Services to Customer, subject to the terms and conditions of this Agreement. a) "Services" shall include the following: 1) use of the PlanetBids PB SystemTM Vendor Management and Bid Management modules for the purpose of vendor registration, posting and tracking Bid Requests and other information on Customer's website or private internet network, 2) Advanced eBidding add -on module, for three (3) full user licenses access to and use of the PB SystemTm by the Public Works Department and one (1) limited user license to and use by the City Clerk to post or release bid opening results to the public, 3) The Insurance Certificate Management with My Insurance modules for five (5) licensed user access to the use of the PB SystemTm by the Risk Management Department, 4) Customer has option, to processing and distributing Bid Requests to additionally available PlanetBids suppliers within their selected categories at no additional cost. b) PlanetBids shall have access and the right to market or otherwise promote its services to any vendor or supplier of Customer that registers with PB System'" via Customer's website. PlanetBids will not sell any Customer data to any third parties without a written consent from Customer. ©2000-2019 PlanetBids, Inc. (818) 992-1771 R 16918-02 c) Internet related equipment by its nature, is not fault tolerant, but PlanetBids (1) will use reasonable efforts to make the Services available 24 hours per day, 7 days per week, excluding downtime for scheduled and unscheduled maintenance, and (2) will promptly investigate any technical problems that Customer reports. PlanetBids cannot, however, guarantee continuous service, service at any particular time or the Integrity of data transmitted via the Internet. Further, PlanetBids shall not be responsible for the inadvertent disclosure, corruption or erasure of data transmitted, received or sorted on the PB SystemT". Nevertheless, PlanetBids shall notify the Customer upon discovering Incidents of such inadvertent disclosure, corruption or erasure. d) PlanetBids may make improvements and/or amendments to the PB System"I at any time, and may provide other optional services, including enhanced versions of standard features or functions, for an additional fee as agreed in advance by the Customer. Any and all relevant portions of these terms and conditions will automatically apply to all improvements, amendments and/or optional services as they appear. PlanetBids does not guarantee that use of the Services will produce any quotes, business opportunities or other Information helpful to the business of Customer, nor does it guarantee that any contact provided will be adequate or best suited for any transaction. - ------ - ------ - - 2. Fees and Payments. a) Support Fees. Customer agrees to pay PlanetBids a total of $21,675.00 for Year 1. The fees for Year 2, Year 3, optional Year 4 and optional Year 5 are as outlined in Table (A) below: 1) Set -Up Fee. Customer shall pay a onetime set-up fee of $4,500 for the PB SystemTm modules outlined in Table (A). Set-up applies to the PB SystemT'" Vendor and Bid management for the installation, customization and testing of the PB SystemTM portal link to Customer's website, plus administrator set-up and one-time online user training for up to the number of user licenses and additional modules as outlined in this Agreement and Exhibit "A". 2) Service Fee Payment. Customer agrees to pay for the use of the PB SystemTM modules; a service fee of $17,175.00 for Year 1 of this Agreement, and for each Year 2 and Year 3 as outlined in Table (A). A fee increase of three (3) percent applies upon renewal each year, for Year 2, Year 3, optional Year 4 and optional Year 5 as outlined in Table (A). 2 @2000-2019 PlanetBids, Inc. (818) 992-1771 R16918-02 PS 8ystJemyv MODULES Vendor Management S Bid Management �j R/ IAK Lioerwsl �Wver►oed eB(dding (azUw dd onto 6+l MM�anagement Insura m •Certificate Management with My hw"nce i5 UNr bcft s) Rea&y 1 User tbwlsel City C!wk (1 LkvAW User License) Sub-Tatal TOTAL Table (A) SETUP YEAR 1 YEAR 2 YEAR 3 YEAR 4 2022-2 YEAR 5 20 4 2019.2020 2020-2021 2021-2022 (Optional) ) (Optlonaq (Optional) $ 3.500.00 $ 5,875.00 $ 6,051.25 $ 6,232.79 $ 6,419.77 $ 6,612.36 $ 500.00 $ 4.500.00 $ 4.635.00 $ 4,774.05 $ 4.917.27 $ 5,064.79 $ 500.00 $ 5,625.00 $ 5,793.75 $ 5,967.56 $ 6,146.59 $ 6.330.99 $ 0.00 $ 500.00 $ 515.00 $ 530.45 $ 546.36 $ 562.75 $ 0.00 $ 675.00 $ 695.25 $ 716.11 $ 737.59 $ 759.72 $ 4.500.00 $17.175.00 $17,690.25 $18,220.96 $18,767.58 $19,330.61 $ 21,675.00 $17,690.25 $18,220.96 $18,767.58 $19,330.61 b) Additional Services; Fees. If requested by Customer, PlanetBids will provide any or all of the following additional services: 1) Special customization work -up shall be provided at PlanetBids' current standard rates pursuant to an estimate provided by PlanetBids. 2) Training to Customer's designated users, in addition to that provided pursuant to Section 2(a)(1), is available as of today at $500.00. 3) For its own internal retrieval and restoration purposes, PlanetBids will record and maintain for a limited time a back-up copy, of all data appearing on Customer's website daily. The duration of such data retained will be for a minimum of 7 years and determined by PlanetBids in its sole discretion thereafter. However, Customer may, during the term of this Agreement, access and retrieve data in text delimited Microsoft Excel format and documents, at no cost. Additional Services related to the retrieval or restoration of any of Customer's data from such back-up files are available if necessary at PlanetBids current standard rates, which will vary depending on the level of services required, but not less than $125.00 per hour. c) Purchase Orders/Billing. Purchase orders, billing or any related matters must be emailed to alane.olanetbids.com or mailed to the following address; PlanetBids, Inc. 5850 Canoga Avenue, Suite 301 Woodland Hills, CA 91367 Attn: Alan Zavian 3. Use of Services. a) PlanetBids is not responsible for the content and/or transactions on Customer's website. Notwithstanding the foregoing, PlanetBids reserves the right to monitor content that 3 02000-2019 PlanetBids, Inc. (818) 992-1771 R 16918-02 uses the Services and to remove content which PlanetBids determines to be illegal, offensive, harmful or otherwise in violation of its operating policies and terminate this Agreement. 1) PlanetBids shall have the right to impose from time to time reasonable rules and regulations regarding the use of the Services. Customer agrees to comply with all such rules and regulations and with applicable laws, ordinances and regulations related to the use of Services; and not make any unauthorized commercial use of the Services or of the PlanetBids name, marks or logos. Further, Customer agrees to not use the PlanetBids websites to (i) post information anonymously or under a false name; (ii) post any unlawful, threatening, abusive, harassing, libelous, defamatory, obscene, pornographic, profane or otherwise objectionable information of any kind, such as inducements to conduct that would constitute a criminal offense or give rise to civil or other liability, (iii) post the name of or otherwise identify or reference any service or entity that provides a service competitive to the Services. 2) If Customer uses standard identification codes, PlanetBids shall have the right to request for inspection an original copy of such codes and any necessary authorizations for use. If such identification codes are proprietary codes of third parties, such as NIGP, SIC or CSI, it shall be the responsibility of Customer to obtain the necessary licenses and Customer indemnifies and holds harmless PlanetBids from the unauthorized use or publication of any such identification codes with respect to the Services. 3) Customer represents and warrants (a) the Customer information provided is current, complete and accurate, (b) that the person signing this Agreement is authorized to bind Customer, (c) Customer will update the information (including credit card information, if applicable) as required to keep such information current, complete and accurate. PlanetBids may, in its sole discretion, cancel or terminate this Agreement if Customer has willfully violated its obligations hereunder. 4) In addition, Customer agrees to use information obtained through the Services only as necessary to the transaction of Customer and shall not use the Services for the benefit of any third party. 5) It shall be the responsibility of Customer to collect and pay any taxes, duties, imposts or tariffs that are applicable to sales via the Services. c) THE SERVICES ARE PROVIDED "AS IS." PLANETBIDS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS, EVEN IF PLANETBIDS HAS BEEN MADE AWARE IN ADVANCE OF SUCH POTENTIAL RISK. FURTHER, PLANETBIDS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE ACCURACY, LIKELY RESULTS, OR RELIABILITY OF THE USE OF THE SERVICES OR SITES LINKED THERETO. d) PlanetBids does not at any time come into possession of the products or services acquired through the Services and is not aware of the specific use to which those items will be put. In using the Services, Customer hereby releases, indemnifies, and holds harmless PlanetBids and its agents, employees, and affiliates harmless from all claims, demands, costs and damages (actual and consequential) of every kind and nature arising out of, or in any way ©2000-2019 PlanetBids, Inc. (818) 992-1771 R 16918-02 connected with, Bid Requests and uncompleted or completed transactions related to the Services. 4. Termination. a) Termination for Cause. This Agreement may be terminated by either party by providing the non -terminating party with no less than forty-five (45) business days written notice (and reasonable opportunity to cure) upon the occurrence of any breach of any material term or condition of this Agreement or any representation or warranty herein. b) Termination Other Than for Cause. Customer may terminate this Agreement without cause by giving PlanetBids no less than sixty (60) days written notice before the effective date of such termination. In such case, the effective date of termination shall be the anniversary of the date for Year 1, Year 2, Year 3, optional Year 4 and optional Year 5 of this Agreement that first occurs following the end of the foregoing notice period each consecutive year. PlanetBids shall have no obligation to refund or prorate any fees or charges paid by Customer. 5- Confidentiality. PlanetBids will take reasonable measures not to disclose website - - communications or information about its Customers, except to the extent that PlanetBids believes in good -faith that such action is within the scope of the Services or reasonably necessary to (a) comply with the law or the directives of courts or governmental agencies; (b) enforce this Agreement; (c) respond to claims of any third party; or (d) protect the legitimate interests of PlanetBids or its customers. Notwithstanding the foregoing, all communications directed to PlanetBids via the website such as questions, comments, inquiries, shall be deemed to be not confidential, unless specifically agreed otherwise in advance by PlanetBids. Further, PlanetBids will have the right to use any Customer's name in connection with the advertising or promotion of the Services. 6. Copyright Protection. The PB System7v and all materials appearing on the PlanetBids website are protected by worldwide copyright laws and related international treaties. None of the materials may be copied, reproduced, modified, published, uploaded, posted, transmitted, or distributed in any form or by any means other than as described herein. All rights not expressly granted herein are reserved. Any unauthorized use of the materials appearing on PlanetBids website may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties. a) Customer shall not reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose the Services, website content, the PB System'"' or any other PlanetBids tools. Customer shall not reverse engineer, decompile, or otherwise attempt to derive source code from any software or tools accessible or available through the Services. b) Special use requests should be sent to customerservice(a-)PlanetBids.com. Permission to use shall be granted in the sole discretion of PlanetBids. 7. Security. (a) The PlanetBids ordering and posting processes are protected by the Secure Sockets Layer (SSL) protocol, which encrypts your information and confirms the identity of the PlanetBids server before allowing a transaction to be completed. Firefox 4.5+ (or better) and Internet Explorer 11.0+ (or better) support to the SSL protocol are acceptable, but we recommend that you use the latest browsers to ensure that you are protected by advances in 02000-2019 PlanetBids, Inc. (M) 992-1771 R16918-02 security technology. For more detailed information, please refer to the PlanetBids Privacy Policy. (b) Password -protection techniques will be provided to restrict access under Customer's account to authorized individuals. REGISTRANT ACKNOWLEDGES, HOWEVER, THAT ACCESS RESTRICTIONS, BY THEIR NATURE, ARE CAPABLE OF BYPASS AND PLANETBIDS DOES NOT GUARANTEE THAT THE SERVICES CANNOT BE ACCESSED BY UNAUTHORIZED PERSONS. Customer shall at all times maintain as confidential its user names and passwords. If Customer is a corporation or other business entity, then it may allow employees to use its user name and password, but the Customer shall be responsible for all activity and charges incurred by such employees. Permitting third parties to use the Services is prohibited and a violation of this Agreement. (c) If a security breach occurs with respect to any account, the Customer must immediately change its password and notify PlanetBids at customerservice(&PlanetBids.com. Customer shall be liable for any unauthorized use of the Services until PlanetBids is notified of the security breach. _ 8— _ Other Provisions a) Notices. PlanetBids shall provide notice to Customer via email, or (at its discretion) via certified U.S. Mail, to the address provided on the membership registration or such other address provided by Customer to PlanetBids. Customer shall provide notice to PlanetBids via email to customerservice(aDPlanetBids.com, with a copy sent via certified U.S. Mail to the address on the membership registration. Notices will be effective 6 hours after sending if sent via email (unless the sender receives a response indicating that the message was undelivered) or 3 business days after the mailing date, whether or not received. b) Assignment. Customer shall not assign this Agreement or any of its rights or obligations without the prior written consent of PlanetBids, and any such attempted assignment will be void. Subject to the above, this Agreement will be binding upon the parties' respective successors and permitted assigns. c) No Waiver. The failure of PlanetBids to exercise or enforce any right or provision under this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the terms and conditions shall remain in full force and effect. d) Governing Law. The interpretation and enforcement of this Agreement shall be governed by laws of the United States of America and the State of California, excluding its choice of law rules and subject to the exclusive jurisdiction of the court located in Los Angeles County, California. e) Force Majeure. PlanetBids will not be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by Internet outages or delays, unauthorized access (hacking), earthquakes, communications outages, fire, flood, war, an act of God, or the occurrence of any other unforeseen contingency beyond the reasonable control of PlanetBids. ©2000-2019 PlanetBids, Inc. (818) 992-1771 R16918-02 - Signature Page on Next Page - - Signature Page - AGREED effective as of the date first written above. PLANETBIDS, INC. City of Palm Desert By: By: Alan Zavian, Chief Executive Officer Lauri Aylaian, City Manager (Date) (Date) 02000-2019 PlanetBids, Inc. (818) 992-1771 R16918-02 EXHIBIT "A" STATEMENT OF WORK FOR SETUP, IMPLEMENTATION AND TRAINING I. PB SystemTm Access Services: PlanetBids rate for maintaining the PB SystemTm Vendor Management and Bid Management modules is based upon an unlimited number of monthly transactions (Bids) and up to two (2) full user licenses. PB SystemTm Access Services include the following: • System Administration - PlanetBids will be responsible for system and data back-ups, disaster recovery, system reliability, availability, privacy, and security • HosbrKjAnfrastructure =-PJanetBids will be responsible for hosting-PB Systems- --- maintaining the network, hardware and software infrastructure • Customer Service -"Level 2" customer service Is available from 8:00 a.m. to 5:00 p.m. PST, Monday through Friday (see Help Desk definition below) • Account Management - PlanetBids will provide a dedicated Account Manager for post - sales support, PB SystemTm questions. 2. PB SystemTm Set-up, Implementation and Training: • PlanetBids will initially load up to two (2) full licensed user for Customer for the Vendor Management, Bid Management and Advanced eBidding • PlanetBids will initially load up to five (5) licensed users for Customer for the Insurance Certificate Management with My Insurance • PlanetBids will initially load up to one (1) licensed user for Customer for the Read -Only • PlanetBids will initially load up to one (1) limited licensed user for Customer City Clerk • PlanetBids will provide a 2-hours training online for PB SystemTM Vendor Management and Bid Management modules • PlanetBids will provide a 1-hour training online for PB SystemTm Insurance Certificate Management PB SystemTm set-up, implementation and training consists of the following: A. Initial aroaram definition The PlanetBids implementation manager will work with one (1) designated Customer project manager to develop a roadmap for system implementation. The implementation manager will define and present a project management schedule to the Customer project manager. Customer will be required to submit information according with the project management schedule. Upon completion and review of the PB SystemTM by Customer, online training will be scheduled and performed. B. item implementation and administration PlanetBids will enter and configure Customer requirements into PB System"M for up to two (2) full licensed user access for Customer. 8 02000-2019 PlanetBids, Inc. (818) 992-1771 R16918-02 The following implementation services will be provided: a. Link from and to Customer's procurement web page. b. Online customized vendor registration form and ability to have vendors maintain their profiles. c. Complete management tools access to all users (i.e. buyers, project managers...). d. Customer specific database. e. Complete bid management from bid submission to awarding. f. Electronic bidding - Vendors submit bid quotes/responses online; Buyers analyze bid responses and award. g. Daily backups. h. PB SystemTM users and vendor support for the duration of the contract. 3. Professional Services PlanetBids will provide consulting services for custom reports or PB SystemTm customizations, specific to Customer, not covered by this Statement of Work at an additional charge. Additional consulting services requested in writing by Customer will be billed at a rate of $125/hour, billed in-1-hour increments -No -work will beginon professional serv""efore a mutuallyagreed- upon statement of work is completed. All on -site travel expenses will be passed -through to Customer. No travel will be expensed without the prior approval of Customer's management. 4. Help Desk The PlanetBids Help Desk is available for "Level 2" support (as defined below) via our telephone number (818) 992-1771, from 8:OOam to 5:OOpm PST, Monday through Friday. Email Support, support@PlanetBids.com as well as on-line help services are also available. Customer will be responsible for all "Level 1" support: • A level 1 support representative will attempt to answer most or all questions, including help to vendors with simple problems (edit profile, etc.) or general "how-to" questions (search functionality, bidding, etc.). More complex, technical questions should be directed to a PlanetBids level 2 support representative. A PlanetBids representative will be responsible for "Level 2" support: • A Level 2 support is more technical in nature. Level 2 questions may, for example, deal with Customer users (i.e. PB SystemTM administrative users including buyers, project administrators, etc.) or with password issues requiring special assistance, or with possible product bugs or failures. In this case, some research and investigation may be required. 5. User License(s) Management It is the responsibility of Customer to always maintain user names and passwords when any licensed user is replaced by a new user or leaves a department at the agency. 9 02000-2019 PlanetBids, Inc. (818) 992-1771 R16918-02 � �— / / / / / k / } a E a E $ 2 � a 2 E e 0 0 0 \ 0 C m 0/$ , % , % , % , - = - � 4-1e E m C CU aj � 3= e � o ) L ) o ) / ) -- E # § 0// 2 2 2 q t $// \ 7/ 7 7 # f w# Lr�# w a m c 2R / e ete � meme e / C 0/ / � r �$�/ � / cO % / t « 0 \ t u u 2 / LA CL _ a \ - / \ / \ \ a m 12 o t % m�Ln Ln � . 2 $ k a k a 4' u £ s 3 A§ �& 4 4^ 2 \ u . e \ a a k A w / m m m m 2 §& 2 2 2 2 2 m k u CL) & § '� � $ 2 / w E � o 0 E ' t to / C 2 ) E E 2 § m w E 0. u / — ° & / w k� 72 U/ E E a) 7 cn 2 * 2 � u_ E ° o \ 7 * a / %'7 g 2 r4 2 E m ] e \ / V m u I 2 / u 7 E' (as = k & 2\ a c m E \ \ / c c U@ a_c o t @ 2 f k% m m / f{ u m I E a° m( . k / \ U u f / m { \ / §� 0 ° o @ m m@ G = M LAmt M f° E'- c >\ l 2 LA w > a\/\ u F >, 3! 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