Kvolve, LLCRFP Response: Project
Management System
Project Management and
Construction Management Software
Proposal Issued: August 16, 2024 Issued By:
kvolve, Ilc
In Partnership with:
Kahua
Prepared For:
A�_;� r Ka u a TM
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Table of Contents
The outline of this document is as follows
1 Cover Letter 4
2
2 Firm's Background, Qualifications and Experience 6
3 References of California Government Agencies 11
4 Scope of Services 14
5 Complete Pricing List 28
6 List of Complementary Services 31
7 Setup and Training Options/Procedure 33
8 Integration Services / Options 40
9 Disclosures 42
10 Acknowledgement of Insurance Requirements 44
11 Non -Collusion Affidavit 46
12 Acknowledgement of Addenda 48
1 Cover Letter
Kvolve is here to help
you align your business
process to an
implementation. As a
Kahua partner, we are
responding to assist you
in getting the system
stood up. To save you
money, we are
responding as prime and
passing through the
software with our
contract.
As a women -owned
business, kvolve's
business is wholly
focused on
implementing capital
project and portfolio
solutions and supporting
services.
Kahua recently named on
Inc. 5000
1 Cover Letter
You are looking to modernize your current capital project through a
project management system. Until Kahua, technology data silos made
you choose between a quick standup and future scalability. Kahua is a
game -changer and a disruptor, one that has been proven with over 5,000
customers and 30,000 users.
Kahua is a platform -based construction project management system
that can scale to meet a wide range of needs and offers several key
advantages:
• Kahua Platform includes standard applications for project, cost, and
document management, as well as a full offering of add-on
applications to meet City of La Quinta's specific requirements
• Standardization of processes on various City of La Quinta projects
Enable more efficient communication between internal and external
project stakeholders
• Single source of truth for all documentation and communication
• Integrate financial data with your ERP
• Eliminate duplicate efforts caused by siloed data across your network
• Visibility across all projects in your portfolio
At a leadership level, Kahua provides many strategic advantages that
other point solutions lack:
• Industry Standard Practices: City of La Quinta can build portable
industry standard practices, reports, processes, documents, and
workflows to use on various types of projects
• Scalability: Kahua will conform to your business as best practices
change overtime
• Flexibility: Kahua comes with purpose-built solutions that can be
leveraged as is. We take it a step further and give you the ability to
conform Kahua to your best practices upon initial implementation or
in the future as we are not a static solution.
• Data Access: Kahua replicates your data to our Data Store for
reporting purposes. You are then able to connect the data to Power BI
for custom reporting.
Our goal in supporting any initiative: targeted and prioritized value.
We look forward to continuing this conversation.
Thank you,
Cari Stieglitz, President, kvolve
cari.stieglitz@kvolve.com
4
2 Firm's Background,
Qualifications and Experience
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2 Firm's Background, Qualifications and Experience
kvolve • • Services
Our ethos is what makes us different. We want to solve your problems and create a meaningful outcome
together. We have been successful honoring our clients and our employees as key participants in
managing an implementation -focused business. This also means you get to focus on how you do things
instead of teaching us about the industry. We can get there faster with you.
KAHUA DIFFERENTIATORS
To assist City of La Quinta in evaluating various vendors on an apples -to -apples basis, we have
included these key differentiators for Kahua. It will be valuable for City of La Quinta to ask all
vendors if they meet all of these requirements, as many of them have gaps that they will not typically
share during the RFP process and could cause change orders and significant increased license and
services costs in the future.
• Built for Owners/Public Agencies. Kahua is nota contractor tool but was designed from its
inception with Owners and government clients in mind.
• Value -driven Culture. Employees who are industry leaders and have worked with public
agencies for 30+ years. Diverse staff who love to work for Kahua and be part of our customers'
success and who are not just trying to sell software to meet large company quota.
• Built by the Vendor. Kahua's was not acquired by a larger company and pieced together with
other applications. Kahua built the entire platform and application with our own IP.
• All supporting modules included. No hidden fees or additional charges. API, DocuSign,
Archiving, SSO, Datastore, Reporting, unlimited storage are all included. Our quotes don't include
30+ line items.
• Built and Hosted in the US. Kahua technology is not managed or configured by offshore teams.
• Data Security. Kahua is SOC2 Type 2, FedRAMP and StateRAMP compliant.
• Configurable. City of La Quinta staff can make changes to the applications without involvement
from vendor or additional charges from their "support" teams. We will give you the keys to the car
and the engine!
• Standard out of the box. Document management and cost management applications,
workflows, and processes (vs. having to build from scratch).
• Multiple Configurations. City of La Quinta projects can have different configurations for different
departments in ONE environment. Does not require multiple implementations or additional
costs.
• Bring your own Device to access Kahua for mobile, tablet, PC devices. Kahua supports mobile
devices whether they are Android or iOS. When new applications are built, they can be made
available on mobile devices within minutes. Other vendors may only support iOS and not all
modules are mobile.
• Proven Integration and Open APIs. City of La Quinta requires Integration experience with
financial systems, ERP, GIS, P6, Power BI and more—not just adapters that allow you to launch
from the app.
2 Firm's Background, Qualifications and Experience
Kahua
Kahua — Longevity with a Customer Lens
Kahua was founded in 2009
by seven industry veterans
committed to improving
productivity in the
Construction industry for over
20 years. This team has over
100 years combined
experience in implementing
cloud -based construction
project management
solutions.
Kahua is a leading provider of
next -generation project
management and
collaboration solutions for
the real estate, design,
engineering and construction
industry. Delivered as a
secure, scalable Platform -as -
a -Service (PaaS), Kahua
enables users to easily share
common data, documents
and workflows across all
applications and projects,
and among all authorized
business partners.
Projects
Powered by
Kahua.
Kahua supports leading
mobile devices and tablets,
integrates with third party
applications including
Bluebeam, DocuSign and
numerous accounting
systems, and enables
customers and certified
development partners to
quickly modify existing
applications or build custom
applications that operate on
the Kahua Platform.
Kahua's offerings currently
include document, file, and
cost management, checklist,
design review, value
engineering, and over 50
other apps which can be
reviewed and licensed online
from Kahua's kStore.
7
kahua:
Highlights:
✓ 5500+ Customers
✓ 80k+ Projects
✓ $100B in Capital
Projects Managed
✓ 1000+ Apps
Developed
Kahua is a private C -
corporation
Address:
1000 Avalon Blvd.
Suite 600
Alpharetta, Georgia
30009
Kahua has more than 5,000 customers and 30,000 users ranging
from the largest global owners and general contractors to local
subcontractors, all of whom gain value from the Network and
The Platform where they own their own data and can collaborate
up and down the supply chain to deliver world class results.
8
2 Firm's Background, Qualifications and Experience
kvolve - Services
Our ethos is what makes us different. We want to solve your problems and create a meaningful
outcome together. We have been successful honoring our clients and our employees as key
participants in managing an implementation -focused business. This also means you get to focus on
how you do things instead of teaching us about the industry. We can get there faster with you.
THIS IS WHAT WE DO
Implementing portfolio and project management solutions such as the City's PMIS solution is what
we do. Our partnership with Kahua enables us to be successful by brokering your ultimate needs
with other industry complements without having conflicts of interest. We've chosen Kahua
because they are the best in the industry and support our "process first" approach to helping you
succeed.
WE CREATE TRANSPARENT DELIVERY
Part of our value and why we are successful is because we bring a disciplined methodology that is
consistently refined; streamlining and updating our methodology is part of our weekly internal
meetings, solely focused on making our delivery better.
Our approach is not a pure out-of-the-box approach because we recognize we are missing a
shared opportunity to look at long term use. However, we don't want to spend time where it isn't
needed. Our balance is to complete a Discover workshop with every client we have. This session is
based in Kaizen, a variant of Lean, and exposes not just requirements, but priorities, pain points
and project success criteria. We've whittled this down to the most value-added exercises that
extract the most important information.
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10 YEARS LEADERSHIP 60+ TOOLS AND 40+ YEARS COMBINED
TEAM WORKING TEMPLATES REFINED BY EXPERIENCE IN DIGITAL
TOGETHER LESSONS LEARNED TRANSFORMATION
COLLABORATION OVER DEMAND
We were formed on a strong belief that collaborating on a solution and co -creating are essential
to the long-term adoption by the client's organization. Because of this, you'll see our approach is
more collaborative than most; emphasizing participation and collaboration over a unilateral
demand. While we have done this over and over, we want to hear from you versus telling you how
you should work. We also bring our expertise and are not afraid to push back on requests that
may cause issues down the road. We like to thing this balance results in the optimal outcome for
you and the investment you are making.
2 Firm's Background, Qualifications and Experience
kvolve
kvolve — Connecting Process and Technology
kvolve was founded on the
belief that we could do better.
We don't only live it; we
package it into the way we
work with you and the tools
we bring to the table.
We've been in the facilities
and construction industry; in
the trailers and on the
jobsites. We've seen project
success and failure and our
mission was born on how we
could increase success
through a prescriptive
approach.
Unlike traditional consulting,
we feel our job is to
supplement your team in
new endeavors much like
training wheels — guiding,
supporting, and advising with
the full acknowledgement
transformation comes from
within your own organization.
We are aware of the transition
in the beginning and plan for
Fresh
Pressed
Process
it, engaging and educating
your people to continue the
work after we complete the
project.
We also want to challenge
ourselves by always bringing
back new value to you.
You get the value of tried and
tested methodology
supplemented by the
Toolshed; our own proprietary
collection of over 40
standardized tools and
templates we know
contribute to project success.
Whether we do the activities,
or you do, we can guarantee if
they are done, your project
will be successful.
Our methods include the
most effective components of
industry standards.
To help you, we:
✓ Leverage the best
people.
✓ Make the tool
work for you.
✓ Provide process
efficiency.
✓ Create a forward -
thinking team.
kvolve is a LLC formed in
Wyoming
Address:
1001 SW Disk Drive, Suite 250
Bend, OR 97702
Contact:
Cari Stieglitz
(206) 604-9916
Our partnership with you is key to the success of a business led
transformation. We bring the knowledge, expertise and tools to
supplement your own in-house subject matter experts. We learn
from each other, and we help your staff learn new skills that they
will bring to the continuous improvement efforts that this new
project will start.
We know you will be successful because we are here to
supplement your success. We promise that we will make a good
project great through:
• Our Way: The kvolve Method
• Approach: Methodology and the Toolshed
• People: One Team, One Purpose
9
3 References of California
Government Agencies
11
3 References
Similar Projects - Kahua
Please note: We are happy to provide a connection to references upon notification of shortlist out of
respect for our customers. Our recommended references are marked with an (*) as kvolve worked with
these clients.
Client Location
City of Inglewood, CA California
Transbay Joint Powers Authority* California
East Bay Municipal Utility District (EBMUD)* California
San Francisco Public Works* California
Santa Clara Unified School District California
San Juan Unified School District California
Sacramento International Airport California
City of Mesa, AZ* Arizona
City of Lubbock Texas
City of Joliet Illinois
United States General Services Administration (GSA) Nationwide
Lawrence Livermore National Laboratory California
Pepperdine University* California
Pennsylvania Turnpike Commission (PTC) Pennsylvania
Ministry of Transportation Ontario (MTO) Ontario
Infrastructure Ontario Ontario
NNSA Kansas City National Security Campus Missouri
Federal Bureau of Prisons District of Columbia
Federal Reserve Board of Governors District of Columbia
United States Department of State Overseas Building Operations (OBO) Virginia
Metropolitan Washington Airports Authority District of Columbia
Air Force Nuclear Weapons Center New Mexico
National Science Foundation Virginia
United States Department of the Air Force District of Columbia
United States Department of Veterans Affairs District of Columbia
State of Montana Montana
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3 References
Similar Projects - kvolve
At the end of the day, this is what we do and we think we do it better because of our
methodology, our people and our niche focus on building a reputation for helping clients
across people, process and technology. Our staff have worked on the following projects.
We don't recreate the wheel each project, we bring a tried and tested approach that is based in industry
standards like Kaizen, Lean, TQM, the Project Management Institute PMBOK and ISO 21500. Our staff have
worked with international clients and across industries. We help reduce the risk of failure because this is our
chosen profession, and we can't afford to risk our reputation.
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4 Scope of Services
Overview
Kahua provides project and construction management services using partners. kvolve
follows the principle that our success is built upon the success of our clients. kvolve would
like to take this opportunity to outline the Standard Implementation engagement and scope
of work for City of La Quinta.
For this response, we have included the following base modules. A full list can be found in the
scope log on following pages:
• Kahua Platform as a Service (PaaS)
• Standard Document Suite
• Cost Management Suite
• Sources of Funds
• MS Project Integration
Construction Management
Kahua provides full construction delivery, with the entire construction team logging into Kahua
for one source of the truth. Included is a mobile application that can be used in the field,
including offline support.
Project Management
From management to the project team, Kahua has business processes that enable project
information, status and reporting in one location.
Contract Management
Kahua's contract management processes can start in the field or office, including robust
potential change to contract change management without re -typing information.
Budget Tracking (Progress Payments, Different funding sources, Invoice tracking)
Kahua's Work Breakdown allows for standard or custom cost breakdown per project, bringing
all cost applications into one cost view that shows baseline, approved changes, pending
changes, actuals and variances.
Sources of Funds
We've included Sources of Funds which enhances the budget funding with the ability to assign
funding rules, track colors of money and group by fund types.
Scheduling (Critical Path Method, MS Project)
Kahua interfaces with MS Project so there is one view of project information. Once in Kahua, it
can be used for tracking and reporting. Kahua also offers a milestone application where the
City's high-level internal milestones can be tracked for lifecycle schedule management.
15
4 Scope of Services
Overview
Kahua provides project and construction management services using partners. Kahua
follows the principle that our success is built upon the success of our clients. Kahua would
like to take this opportunity to outline the Standard Implementation engagement and scope
of work for City of La Quinta.
Task Tracking
Most of Kahua's apps include workflow and associated task tracking that proactively notifies
and tracks ball in court for the entire projectteam.
Workflow
Workflow is inherent in Kahua and drives the project team forward in action. Flexible industry
standard workflow is built from years of experience and feedback from our clients.
Document Control (Keeping track of Submittals, RFI's, Reviews, Plans and Specs,
Correspondence, Inspection logs, Photos, Reports, Bid Documentation, Council Reports,
Contracts and Agreements, Utilities, Environmental, Invoices, Meetings, Change
Orders/Work Directives, Maintenance Files, Outreach - Notices, Exhibits)
Kahua has digital forms and workflows for many project and construction management
processes. Besides those included in the scope log, more are available using the Kahua
kStore.
Ability to have different file system templates
Kahua allows for different configurations and the ability to inherit or override global settings at
the program and project level (with the appropriate permissions). Work breakdown structure
folder structure can also be templatized.
Ability to export reporting in formats readable by Microsoft Excel, text files, csv, and/or
Portable Document Formats.
More information can be found on following pages. We've included the Kahua data store,
which allows for connection with external BI tools, like Power BI.
Integration with other software
Kahua is a modern platform with an open API. In addition to the data store, the APIs allow for
integration. We recommend a middleware for most integration strategies.
Train city staff on software
We've included three full days of end user training and two days of Admin training.
Software setup and customizations
We've included software setup using configuration of out of the box processes. At the end of
our implementation, the City will be able to start using the product fully.
16
4 Scope of Services
Technical Capabilities
We have provided initial response below and references in the attached Kahua ESA. We can
provide more detail after an NDA is signed by the City.
Is software desktop/local or cloud -based?
Kahua is platform as a service which can be accessed via a browser, a desktop client and a
mobile client (most applications).
How frequently is the software updated?
Kahua provides quarterly updates that include major system enhancements. A sandbox is
released to clients two weeks prior to release.
Describe the technology or system requirements including servers/memory/storage if
applicable.
We are proposing a cloud based solution. If users choose to download the desktop clients,
memory will be impacted. More information is available once under NDA.
If cloud-based/hosted, please list how many times over the past two years the system
was unavailable to clients. Describe the back-up system in place, including disaster
recovery or business continuity plans.
Kahua prescribes to industry standard hosting processes. More information can be provided
once under NDA. Realtime system uptime is available publicly via our support site.
Describe all security measures and disclose any hosting partners if applicable.
Detailed information can be provided with an NDA. Kahua has very robust security measures
as the first major PMIS to be FedRamp certified and StateRamp certification in many states,
including California.
Describe the historical data the software maintains.
Each application has an audit functionality which tracks changes to form and workflow data.
The administration functionality tracks login and usage information. You can optionally set up
the data store to your own data warehouse for time -based data capture.
Provide an estimated implementation timeline and describe how existing data will be
imported into the software.
We have proposed a 2.5 month implementation cycle using typical client availability. At the
end of this period, you will be completely ready to accept projects. Please see our response in
Setup and Training Options/Procedures section for a schedule. We can also share the full
schedule detail during shortlist.
What integrations are a part of the service, and which require additional fee?
The license feel allows access to our full list of APIs. Services may be required to help design
and implement integrations. Included integrations are Bluebeam and DocuSign.
List resources provided for customer service, technical support and training, including
business hours available and average response time for technology -related inquiries.
Kahua provides multiple support options. More detail is included in the attached ESA. Services
above and beyond the ESA can optionally be procured via Kahua or kvolve services.
17
4 Scope of Services
Kahlia - An Owner's gn(ution
Kahua as a best -in -class project lifecycle management solution. It's extremely dynamic and
can be used for fund tracking, capital planning, project delivery, cost control, and facilities
and real estate management. Kahua provides governance across all project phases, from
planning and building to operations and maintenance.
Built on a Strong Our solution's unique modern platform model
Foundation provides a strong foundation for business processes.
A Balanced and Your Capital Improvement Plan tracked back to grants
Optimized Capital and funding in the same location as where you execute
Portfolio projects.
Every Stage of the Robust processes and applications to support from
project Lifecycle planningto design to closeout.
Framework Drives Workflow drives the project behavior in managing the
Behavior project.
One Source of the Your entire project team sees the same data with
Truth transparency for you as the owner.
kahua means platform in Hawaiian. The Kahua logo, is representative of our*'^mm1inity.
At Kahua, we have built and are continuing to expand a community of likeminded industry
leaders. Kahua, our customers, and our partners make up our Community and together we
are working to reinvent the way companies collaborate to create higher performing teams that
deliver world class project results.
The Kahua Networ._ connects all project participants and enables collaboration and data
sharing across companies and projects. Collaboration has been identified as one of the
critical technologies to the transformation of the real estate and construction industry. In our
vision, Data, documents, and workflows are shared across companies and projects. The
integrated Kahua project management system is responsive to change to support the varied
needs of the entire network providing value to all players in the supply chain.
4 Scope of Services
PMIS Solution
Project & Construction
Management
Costs over time can be controlled
with the cashflow and milestones
dates within Kahua.
WORK BREAKDOWN
At the heart of the cost management capabilities
is the work breakdown. This sheet can act like
Excel to show the entire costs and forecasts for
the project. It can also automatically pull the most
current information from business processes e.g.
contract changes. This view enables an
understanding of costs for a project, work in
progress (pending timesheets), billed and
expenses to date.
FILE MANAGEMENT
Many of typical documents in project and
construction management have been digitalized
to a form and workflow in Kahua. For items that are
not applications, file manager allows for flexible
file management. It also supports controlled
folders for documents like designs, so there is
always one location for the current project design.
18
MILESTONES
The Kahua Milestones app facilitates effective
management and reporting of key project
milestones. It enables easy reporting, visualization,
analytics, and editing of these critical milestones.
Team members can start a new project with pre-
defined milestones by copying them from a project
template, ensuring that essential milestones are in
place from the outset.
Milestones can be linked to cost work breakdown
items in the cashflow module, allowing for
automatic updates as schedules and costs change.
This integration ensures that the cashflow reflects
the most up-to-date information.
The app also provides scheduled milestone
reporting, automatically notifying and reminding
teams of the project schedule status. Additional
notifications for milestones can be configured as
per project requirements.
Furthermore, the app's commenting and
attachment capabilities, along with deep -link URLs,
enable seamless collaboration and information
sharing. Users can comment on milestones and
tasks, attach relevant files, and share hyperlinks,
streamlining communication and documentation
within the project team.
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4 Scope of Services
PMIS Solution
Cost
Management
Kahua provides solutions to
your requirements.
SOURCES OF FUNDS
Kahua's has an out-of-the-box Sources of Funds
application to track grant colors of money (funds),
appropriations, reserves for projects (earmarking
funds for projects), and releases to projects
enabling budget, commitment, and spend of the
fund source. This application can be used for the
City to track grants and later track the usage of
those grants along with other capital funding
sources. This application can be configured to allow
for all the City's required fields and the ability to add
additional fields in the future.
Kahua's fund source tool supports rules with fund
splitting applied to actual transactions (e.g. an
invoice line could be paid 30% from grants, 40%
from department, and 30% from donations). Kahua
has configurable rules to prevent over -budgeting,
committing, or spending fund sources. Additionally,
all apps store the full history of each record,
creating an easy to navigate audit trail. This includes
the history of editing, viewing, sharing, and sending
records.
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BUDGET/COMMITMENTS/ACTUALS
Kahua provides out-of-the-box budget, contract,
change, and invoice management capabilities.
These functions are connected to fund source
tracking to identify how grants or capital funds are
allocated and spent across projects.
Kahua's Work Breakdown app helps customers
establish a cost -code structure for managing
projects consistently across the portfolio. It
improves visibility into project budget and costs
with easy audit and reporting of budget,
commitments, changes, and actuals organized into
customizable columns. End-users can adjust and
customize their budget view by hiding columns they
don't want to see.
Kahua's funding and budget tools streamline the
budgeting process. Budgets can be imported from
various sources and serve as a baseline to view and
compare projected budget changes, cost changes,
and variances against the original budget. Budgets
can include contingencies, allowances, alternates,
and other items to track critical elements over the
project lifecycle.
With the budget established, Kahua enables
purchase order and contract generation, cost -
tracking, change order management, and pay
request processing. Kahua's commitment and
spend -tracking capabilities are collaborative,
enabling stakeholders to request pay requests,
digitally sign change orders, upload documentation,
and respond to quote requests.
Kahua's cost and document management features
are connected, allowing records to be elevated to
other records. For example, a field observation can
be processed into an RFI, then a potential change,
and finally a change order to signature, all within
Ka h ua.
19
Cost
4 Scope of Services
PMIS Solution
Metrics &
Visualization
Reporting is flexible.
Kahua also has robust
reporting options within.
GET THE INFORMATION YOU NEED
Easily view live dashboards and reports at any level
of your program hierarchy, utilizing automatic roll -
up functionality alongside drill -down management
capabilities, to maintain transparency and control
at the level of detail you need. The Kahua platform
includes standard reporting capabilities as part of
the Platform licenses.
The standard reporting options are:
• Out of the box reports — every Kahua application
has at least one standard report for users to
access
• Ad hoc reporting - ability to configure report by
end user for ad-hoc reporting requirements.
Click on print button to generate the log view or
list view, adjust columns, filter, sort and print
report
• Report wizard — simple to use, multi tab tool to
create user reports with ability to edit page
layout, columns, grouping, filtering, sorting,
views, saved and reused, shared with others or
private
• Report writer - includes a more advanced
integrated custom report writing tool that has
access to all system tables.
20
Including:
1. Real Time Reporting: All reports in Kahua reflect
the data in the system when the report is run.
2. Filtering: Reports created by users can be
filtered on any column added to the report.
3. Scheduled Reports: You can enable scheduled
reports through PowerBI (not included), so users
receive an automatic email delivered report.
4. Program/Project: Reports are available at all
levels of the program/project hierarchy, as
determined by the City. This can include a
subset of projects.
5. Permission Levels: The ability to create and
view reports are controlled by group
permissions.
6. User Dashboards: Users can modify the
dashboards to display desired data, presented in
real time.
7. Drill In: Kahua dashboards allow users to drill -
down to detailed data.
oamm
4.way Parallel PT
6
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7
3
1
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$4.6bn
$372.7M
$71.0M
$301.7M
$4.2bn
$4.5bn
Sample Kahua and Power BI Dashboards
21
4 Scope of Services
Scope Log
The scope log is provided as a snapshot in this proposal and can be provided as a source
file. This enables our team to determine which Kahua elements using the MoSCoW method.
Items denoted with "Must Have" and "Should Have" are assumed to be in scope and priced
with "Should Have" items requiring further discussion during kickoff and artifact review.
All "Effort Points" are assumed to be out of the box e.g. 1 or 2.
For items referenced as out of the box (Level 1 or 2 OOB), configuration changes include the
ability to:
• Set the App numbering system
• Turn fields on or off (i.e., "Hide fields")
• Relabel fields
• Modify dropdown list values
• Set default values for document creation
Kahua allows customer to further customize the application using kBuilder. Kvolve can also
provide these services once known. Customizations include:
• Adding new fields
• Creating workflows
• Altering out of the box workflows
• Integrating with other systems
Out of Scope or Optional Items
In the scope log, there are also items that are marked as out of scope or optional. Out of scope
items are not included and would incur additional fees to assess, configure and deploy.
Optional items are priced as an allowance that can be optioned in. The pricing assumes these
items are completed in concurrence with other project activities. If added in after go live,
additional project management hours and/or repeated go live activities may apply.
22
4 Scope of Services
Scope Log
In Scope Items
The scope log was created based on your requirements and our experience with the tools. The following
items are considered in scope for this phase of the project.
ID
Functional Sub -
Group
Component Name Priority
1 Implementation
2
3
4
5
6
7
8
Implementation
Implementation
Implementation
Implementation
Implementation
Implementation
Implementation
9 Implementation
28
29
30
32
33
35
Governance
Management
Governance
Management
Document
Management
Document
Management
Document
Management
Document
Management
Projects/ Portfolio
Manager
Description
Where users can (with appropriate permissions) create
new projects (also accessible from Project Finder) and
Must Have update existing projects. Also utilize the Manage tab to
dynamically access a variety of other features to help you
manage your project (budgets, meetings, etc.).
Groups Must Have
Company/Contacts Must Have
Domain Settings Must Have
Partition Hierarchy Must Have
CSI Should Have
Locations Should Have
Document Types Should Have
Properties
Milestones
rScheduling
File Manager
Snapshot
Data Store
DocuSign
Should Have
Must Have
Should Have
Must Have
Must Have
Must Have
Must Have
User permissions based on groups. Users are assigned to
groups.
Store Company and Contacts
Various system settings and authentication requirements
Programs, Sub Programs, Projects and Sub -Projects
Listing of CSI codes used - utilized in other apps
Listing of project areas - utilized in other apps
Listing of document types - utilized in other apps like
Design Review for routing.
Listing of leased/owned properties - utilized in project
metadata
Project Milestones allow for easy management of
activities and milestones on a project. The app tracks
estimated, revised and actual dates, notes and any
applicable attachments. The import feature allows you to
import your data from Excel.
RundingApp
Store project documentation.
Tool to extract and retain a backup of Kahua data
Collection of data on system activities for use in creating
custom reports with third -party reporting tool.
Kahua offering
Services are on separate line
eSignature
Workflow
Yes
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
Yes
N/A
N/A
N/A
Yes
4 Scope of Services
Scope Log
In Scope Items
The scope log was created based on your requirements and our experience with the tools. The following
items are considered in scope for this phase of the project.
ID
Functional Sub -
Group
Component Name Priority
Description
Workflow
Enables users to easily manage the availability and
36 Cost Management Sources of Funds Must Have assignment of funding sources and tie them to budgets,
commitments and invoices within programs and projects.
37 Cost Management
38 Cost Management
39 Cost Management
40 Cost Management
42 Cost Management
43 Cost Management
44 Cost Management
46 Cost Management
Work Breakdown
Budget
Budget Adjustments
Budget Changes
Expense Contracts
Schedule of Values
(SOV)
Issues
Expense Change
Orders
Must Have
Must Have
Must Have
Must Have
Must Have
Must Have
Must Have
Central interactive reporting ledger that provides real-time
visibility into the complete financial status of your
projects.
Enables users to create budgets
Create and manage financial adjustments to the budget.
Net Zero adjustments.
Create and manage formal changes to the budget.
Create and manage commitments with their downstream
Vendors and Contractors
Abilityto further break down contract line items
Issues are any potential events that can have a potential
financial or schedule impact on your project. Issues are
used as a precursor for any change requests and change
orders that might be issued.
Must Have Create and manage Change Orders with their downstream
Vendors and Contractors.
47 Cost Management Expense Pay Requests Must Have
48 Cost Management
49 Cost Management
51 Cost Management
Purchase Order Should Have
Purchase Order
Change Order
Invoices
Create and manage applications for payment from your
downstream Vendors and Contractors.
Create and manage Purchase Orders with their
downstream Vendors and Suppliers
Should Have Create and manage Change Orders with their downstream
Vendors and Suppliers
Should Have
Create and manage invoices on the project. These
invoices do not need to be tied to commitments in the
system but can be applied to existing Purchase Orders
in Kahua.
N/A
N/A
Yes
Yes
Yes
Yes
N/A
Yes
Yes
Yes
N/A
N/A
N/A
23
24
4 Scope of Services
Scope Log
In Scope Items
The scope log was created based on your requirements and our experience with the tools. The following
items are considered in scope for this phase of the project.
ID
Functional Sub -
Group
Component Name Priority
Description Workflow
Management of outbound project communication.
56 Delivery Communications Must Have Communications includes Letters, Memos, Transmittals Yes
and Fax templates.
57 Delivery
Meetings / Action
Items
Simplifies the process of setting up and executing your
Must Have meetings and helps deliver better outcomes by improving Yes
your abilityto track and manage meeting action items.
58 Delivery Design Review Must Have
59 Delivery
60 Delivery
Enables users to streamline and enhance the
management of all documents requiring review and
distribution, including drawings, models, specs, and
reports.
Requests for Must Have Submission and resolution of any questions relating to the
Information (RFI's) construction of the project.
Packages Submittals /
Submittal Items
Must Have
A way to manage the submittal review process which is
critical to ensuring that a project's deliverables conform to
the owner's expectations reflected in the design
specifications.
Yes
Yes
Yes
Vital documentation of the events taking place on the
project site including: the report date, shift, notes, the
61 Delivery Daily Reports Must Have companies, equipment, material received on the project, Yes
the day's weather, and any relevant attachments such as
photos in the media section.
62 Delivery Field Observations Must Have
Used to document defective work, lack of clean-up, lack of
manpower, etc. The process includes workflow so the
Responsible Party can reply, provide updates, and notify
you when they have fixed the issue.
Yes
After substantial completion of your project or at various
stages throughout the project, effective and efficient
63 Delivery Punch Lists Must Have creation and management of the punch list is critical to Yes
ensure that all project participants understand the details
of what is remaining.
fro
4 Scope of Services
Additional Options
A Balanced & Optimized
Capital Portfolio
In review of your scope, we've also
identified "Could Have" which are
enhanced options and/or built for
the public sector environment.
Some key items include:
CAPITAL PLANNING
We've included portfolio manager which allows for
portfolios, programs, sub -programs, projects and
sub -projects built into the hierarchy.
For enhanced CIP planning, the capital planning
module allows for creation and workflow of new
projects, including high level information, status
and cashflow.
CASHFLOW FORECASTING
Kahua's Cashflow Forecasting app allows for
users to easily create cashflow projections from
project's budget, commitment, or actual spends.
By creating the City's funding phases in the WBS
activity code structure, Kahua can easily break
down the cash flow for each funding phase. the
City can choose to group cashflow periods by
month, quarter, or year. Additionally, multiple
projects can be grouped into a single cashflow
forecast. Users can choose the dates for each line
to be projected across or funding phases can be
linked to activities in the Milestone App to
automatically update the forecast range by
updating project milestones.
a
PHASE GATES
For additional controls and checklists of what
needs to be completed in each phase, Kahua
offers multiple solutions.
OTHER OPTIONS
The following is a non -comprehensive list of other
applications available to add to the Kahua system:
• SSO Integration
• Asset Manager
• Work Order
• GIS Projects
• GIS Portfolio
• Capital Planning
• Intake
• Capital Planning Scenarios
• Portfolio Scoring
• Capital Improvement Program
• Capital Planning Dashboard
• Phase Gate
• Kahua Analytics
• Resource Management
• Timesheet
• Master Contracts
• Bid Management
• Cash Flow Forecasting
• Risk Register
• Lessons Learned
• Closeout Checklists
• Field Inspections
• Permit
• Materials Testing
• Deficiencies
• Environmental Planning
• WhatFix Content Creation and In -Software
Guidance
25
4 Scope of Services
Additional Options
kBuilder — Build your
Own Apps & Workflow
Kahua is both flexible out of the
box as well as having the addition
of kBuilder at no extra cost, just
training is needed to access it.
KAHUA IS FLEXIBLE
The Kahua Platform comes with a wide range of
industry -standard applications out of the box to
enable the City to get up and running quickly.
The Kahua Platform also offers many innovative
capabilities not offered by other project
management tools:
• Bring your Device to access Kahua for mobile,
tablet, PC devices
• Electronic Signatures with DocuSign
integrated with all applications and licensing
included
• Composite Documents to generate output
across multiple modules (for example merge
contract, change, risk, submittal, and
attachments) and generate a single
document for review
Partner Apps+
KBUILDER
The Kahua Platform comes with a wide range of
industry -standard applications out of the box to
enable the City to get up and running quickly.
The Kahua Platform also offers many innovative
capabilities not offered by other project
management tools:
• kBuilder to build your own applications on the
Kahua Platform
• Build applications and processes in Kahua
that can be copied across domains or
instance for other groups or programs to use
(portable applications)
Contract
= Legal
Change
Order
PaYAPP
Core Apps+
Builde
Creation
Approval Director
Approval End
Customer Apps+
•
Low-code/No-code Development Environment
Kahua Platform
26
5 Complete Pricing List
5 Complete Pricing List
Cost Summary
-w
Item Description QTY UOM
1 Kahua Annual Software Cost—Year 1 25 Users $54,750 $54,750
2 Kahua Annual Software Cost—Year 2 25 Users $54,750 $54,750
3 Kahua Annual Software Cost—Year 3 25 Users $54,750 $54,750
4 One Time Implementation Fees 1 Once $158,426 $158,426
Total Three Year Cost $322,767
28
Unit Cost Total
IMPLEMENTATION COSTS
Implementation costs are fixed price for the application and reports with assumptions listed in
scope. For integration and migration costs, details on how many objects, integration contents, etc
was not fully known and can be priced after scope definition. Enclosed is our best estimate based on
assumption made.
NAMED KAHUA PLATFORM APPLICATIONS
The license includes: Standard Platform, Sources of Funds, Cost Management Suite, Document
Management Suite, MS Project Interface
KAHUA TERMS & CONDITIONS
Licensing is subject to Kahua's Terms & Conditions. the City may elect to license Kahua's Software
Services utilizing the active GSA Schedule 70, which contains pre -negotiated T's and C's for the
City's leverage. Should the City elect to forego use of the GSA Schedule 70, Kahua can provide an
Enterprise Services Agreement (ESA) which will govern licensing between your organization and
Kahua directly.
USER PRICING
Pricing is based on 25 users. Fees are due at contract signing. Unlimited pricing can optionally be
provided on request of the City. Pricing would be based on annual construction volume.
MIRAI'S SERVICE LEVELAGREEMENT(SLA)
Licensing is subject to Mirai's service level agreement. Annual pricing includes support of configured
solution.
29
5 Complete Pricing List
Cost Summary
The following assumptions were made in this pricing proposal; not to exceed with monthly
progress invoicing.
1. Our team will match the City's work week for all meetings or collaborative activities;
assuming a 40 hour work week for the kvolve/Kahua team's normal week.
2. Deliverables, Configuration and Project Management activities done offsite are included as
billable time unless otherwise stated.
3. The City will provide appropriate resources to conduct customer responsibilities. Any
change in resources from the City team must be communicated and evaluated immediately.
4. Our resources will not be dedicated nor full time on the project
5. Application customization is not part of the Standard Implementation and will need to be
scoped separately if desired.
6. We will manage this engagement using our proven implementation methodology. Client -
directed changes to our methodology and project management protocols may result in
additional fees and project delays.
7. This SOW expires 90 days after the document date if not executed by both parties prior.
8. Hours are not included for any internal City processes e.g. onboarding or security
clearances
9. Hourly rates will escalate January 1 each year for any additional services beyond those
outlined in this SOW.
10. City of La Quinta is tax exempt and taxes are not included.
11. For each week the project extends due to City -caused delays e.g. missed approval or
schedule deadlines, the City will be charged an additional$2,262 in project management.
12. Expenses will be billed at cost in the period they are incurred. Receipts will be provided for
all expenses except Per Diem.
13. Any modification to this Statement of Work must be requested, reviewed, and agreed to by
both parties. Any Change Order will be created by Contractor and submitted for City review
and approval.
While on the project, the kvolve/Kahua team will be provided access to all appropriate systems
with the appropriate level of permissions or access to perform the work without an additional
resource being present or completing the task on their behalf.
This is including but not limited to the following examples;
• Kahua administrative permissions for configuration
• Passwords and access to development and production sites for kBuilderwork
• VPN or backend access for report development
• Permissions and access to current PMIS system for migration mapping and development
• Access to Wi-Fi or presentation tools while onsite
Kvolve 1 City of La Quinta
Task name Start date End date Duration Estimation
10/01/2024 01/06/2025 59d 690h 49m
1 O Milestones 10/01/2024 12/13/2024 49d 0
1.1 Contract Signed & NTP 10/01/2024 10/01/2024
1.2 Phase 1 Go Live 12/13/2024 12/13/2024
2 p Phase 1 10/01/2024 01/06/2025 59d 690649m
2.1 9 Plan & Analyze Stage 10/01/2024 10/22/2024 15d 126645m
2.1.1 O Project Management - Plan & Analyze 10/01/2024 10/22/2024 15d 24145m
2.1.1.1 Kickoff Stage 1 Han 10/01/2024 10/01/2024
2.1.1.2 Progress and Project Management 10/01/2024 1 10/22/2024 15d 15h
2.1.1.3 Conduct Weekly Core Team Meeting... 10/01/2024 10/22/2024 15/ 9h 45in
2.1.2 O Project Management Han( (PMP) 10/01/2024 10/04/2024 4d 16h
2.1.2.1 Finalize Draft PMP 10/01/2024 10/01/2024 1d 8h
2.1.2.2 Meet& Handover for Review 10/02/2024 10/02/2024 1d 4h
2.1.2.3 Provide Complete RASCI 10/03/2024 10/03/2024 1d 0
2.1.2.4 Finalize & Deliver Final PMP 10/03/2024 10/03/2024 1d 4h
2.1.2.5 Approve PMP 10/04/2024 10/04/2024 Sd 0
2.1.3 O Core Team Kickoff (Remote) 10/01/2024 10/04/2024 4d 62h
2.1.3.1 Schedule Review& Updates w/Client 10/01/2024 10/02/2024 2d 12h
2.1.3.2 Provide Kickoff "homework" to the C... 10/01/2024 10/01/2024 Id 2h
2.1.3.3 Core Team Kickoff and Review(6 hr) 10/02/2024 10/03/2024 2d 32h
2.1.3.4 Post core team updates and internal ... 10/04/2024 10/04/2024 1d 16h
2.1.4 El Analyze Processes 10/11/2024 10/17/2024 4d 24h
2.1.4.1 Send artifact 'hornewode to kvolve 10/11/2024 10/11/2024
2.1.4.2 Initial Artifact Review 10/11/2024 10/15/2024 2d 8h
2.1.4.3 Artifact Review with Client & Score... 10/16/2024 10/17/2024 2d 16h
2.2 9 Create Stage 10/07/2024 12/12/2024 45d 473h 27m
2.2.1 9 Project Management -Stage 3 11/06/2024 12/11/2024 23d 39h 57m
2.2.1.1 Kickoff Stage 3 Create 11/06/2024 11/06/2024
2.2.1.2 Progress and Project Management 11/06/2024 12/11/2024 23d 25h
2.2.1.3 Conduct Weekly Core Team Meeting... 11/06/2024 12/11/2024 23d 14h 57m
2.2.2 0 Kahua Project Training (Core Team Onb... 10/07/2024 11/26/2024 35d 311130m
2.2.2.1 Set Up Users/Permissions (Client En... 10/07/2024 10/07/2024 1d 4h
2.2.2.2 Initial Configuration & Training of Cli... 10/08/2024 10/11/2024 4d 20h
2.2.2.3 Adhoc Support(Implementation Pro... 10/15/2024 11/26/2024 30d 7h 30m
2.2.3 O Application Demonstration 10/10/2024 10/24/2024 104 96h
2.2.3.1 Walkthrough Prep 10/10/2024 10/11/2024 2d 16h
2.2.3.2 Walk Through of Kahua Apps &Pro... 10/18/2024 10/24/2024 5d 80h
2.2.4 O Pre -Configuration Training 10/15/2024 10/15/2024 Id 4h
2.2.4.1 Training on Configuration Design Do... 10/15/2024 10/15/2024 1d 4h
2.2.5 O Technical Design Document (TDD)- No... 10/21/2024 11/05/2024 123 32h
2.2.5.1 Initial Non Cost TDDS Generation 10/21/2024 10/21/2024 Id 16h
2.2.5.2 Handover Non Cost TDDS 10/22/2024 10/22/2024 Id 4h
2.2.5.3 Client Review & Update 10/23/2024 10/29/2024 5d 0
2.2.5.4 Review& Update Non Cost TDDS B... 10/30/2024 10/31/2024 2d 12h
2.2.5.5 Approve Non Cost TDDS 11/01/2024 11/05/2024 3d 0
2.2.6 9 Technical Design Document(TDD)-Cost 10/30/2024 11/15/2024 12d 32h
2.2.6.1 !nide! Cost TDDS Generation 10/30/2024 10/30/2024 1d 16h
2.2.6.2 Handover Cost TDDS 10/31/2024 10/31/2024 1d 4h
2.2.6.3 Client Review & Update 11/01/2024 11/07/2024 5d 0
2.2.6.4 Review& Update Cost TDDS Based ... 11/08/2024 11/12/2024 2d 12h
2.2.6.5 Approve Cost TDDS 11/13/2024 11/15/2024 3d 0
2.2.7 9 Configuration 11/06/2024 12/02/2024 16d 160h
2.2.7.1 Non Cost Configuration 11/06/2024 11/20/2024 10d 100h
2.2.7.2 Cost Configuration 11/20/2024 12/02/2024 7d 60h
2.2.8 O Onsite End to End Testing 12/03/2024 12/05/2024 3d 48h
2.2.8.1 End to End Testing& Correcting Fail... 12/03/2024 12/05/2024 3d 48h
2.2.9 9 Move to Production 12/06/2024 12/12/2024 5d 30h
2.2.9.1 Approved to Move to Production 12/06/2024 12/06/2024
2.2.9.2 Establish Production Apps 12/06/2024 12/12/2024 5d 30h
2.3 p Depby& Optimize Stage 12/06/2024 01/06/2025 153 90h 37m
2.3.1 9 Project Management - Deploy & Optimi... 12/12/2024 12/17/2024 4d 6h 37m
2.3.1.1 Kickoff Deploy & Optimize Stage 12/12/2024 12/12/2024
2.3.1.2 Progress and Project Management 12/12/2024 12/17/2024 4d 4h
2.3.1.3 Conduct Weekly Core Team Meeting... 12/12/2024 12/17/2024 4d 2h 37m
2.3.2 9 Adminisbator Training 12/06/2024 12/11/2024 4d 14h
2.3.2.1 Admin Training Prep 12/06/2024 12/06/2024 1d 8h
2.3.2.2 User& Group Admin Training 12/09/2024 12/11/2024 3d 6h
2.3.3 O Go -Live 12/13/2024 12/13/2024 0 0
2.3.3.1 Go -Live 12/13/2024 12/13/2024
2.3.4 9 Initial Training 12/11/2024 12/17/2024 5d 60h
2.3.4.1 Finalize Training Schedule /Particip... 12/13/2024 12/16/2024 2d 0
2.3.4.2 Onsite Training (20 PPI) 12/11/2024 12/17/2024 5d 60h
2.3.4.3 Start Rollout (Client) 12/17/2024 12/17/2024
2.3.5 O Hypercare 12/20/2024 01/06/2025 5d 10h
2.3.5.1 Post Go Live Support 12/20/2024 01/06/2025 5d 10h
Budget 29-5 (4000) 6-12 (41w) 13-19 (42w) 20-26 (43w) 27-2 (44w) 3-9 (45w) 10-16 (46w) 17-23 (47w) 24-30 (48w) 1-7 (49w) 8-14 (50w) 15-21(51w) 22-28 (5200) 29-4 (1w)
158,426.30
Sep October2024 November 2024 December2024 Januaf
0.00 Milestones 110/01/2024-12/132024
0.00
0.00
158,426.30 Phase 1 i 10/01/2024-01/06/2025
-•
28,692.50 =WI
5,692.50
0.00
3,450.00
2,242.50
3,220.00
1,840.00
460.00
0.00
920.00
0.00
14,260.00
2,760.00
460.00
7,360.00
3,680.00
5,520.00
0.00
1,840.00
3,680.00
108,893.50
9,188.50
0.00
5,750.00
3,438.50
7,245.00
920.00
4,600.00
1,725.00
22,080.00
3,680.00
18,400.00
920.00
920.00
7,360.00
3,680.00
920.00
0.00
2,760.00
0.00
7,360.00
3,680.00
920.00
0.00
2,760.00
0.00
36,800.00
23,000.00
13,800.00
11,040.00
11,040.00
6,900.00
0.00
6,900.00
20,840.30
1,520.30
0.00
920.00
600.30
3,220.00
1,840.00
1,380.00
0.00
0.00
13,800.00
0.00
13,800.00
0.00
2,300.00
2,300.00
& Analyze stage i 10/012024 -10/22/2024
Pro sot Management- Plan & Analyze 1 10/01/2024 - 10/22 /2 0 24
Pro
•
nagement Plan (PMP)1 10/01/2024 -10/04/2024
Cor Team Kickoff (Remote)1 10/012024 -10/042024
Analyze Processes 1 10/11/2024 -10/17/2024
l .
Cre`tage 110/072024-12/122024
Kah to Project Training (Core Team Onboard ing
1
Prof.t Management - Stage 3 i 11/06/2024-12/112024
110/07/2024-1126/2024
Applleatlon Demonstration 1 10/10/2024. 10242024
♦■
Pre-C6nflguratbn Training 110/15/2124-10/152024
Technical Design Document (TDD) - Non -Cost 1 10/21/2024 -11/05/2024
NE
Technical Design Document (TDD) - Cost 110/302024-11/15/2024
01
Configuration i 11/0ij/2024-12/02/2024
Onsite En d[w End Testing 112/032024 -12/05/2024
ove to Production 1 12/06/2024 -12/12/2024
by & Optimize Stage 1 12/06/2024 - 01/06/2025
Project Management - Deploy & Optima,
I Istrator Training 112/06/2024-12/112024
Go -Live 112/13/2024 -12/13/2024
al Training 1 12/11/2024 -12/17/2024
7 Hypereare 11220/2024 - C
6 List of Complementary Services
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32
6 List of Complementary Services
Kvolve is providing services for this implementation as a Kahua partner, supported by
Kahua. In addition to the Kahua solution -specific services, kvolve has worked across the
facility and capital lifecycles.
Kvolve works with other software solutions and provides full complementary lifecycle services,
including;
• Process Standards: Reviewing current business processes and comparing it to your
organizational goals.
• Implementation: Translating business process into digital process bringing over sixty
years' combined experience in this space.
• Data Movement: Deploying strategies like integration and migration to reduce data entry
error and increasing the end user's positive experience.
• Metrics & Visualization: Helping to determine key metrics and KPIs translated into
consumable executive dashboards.
• Training & Communications: Creating the most important side of a change, supporting
people in understanding and adoption.
In addition to implementation complementary services, we are also experienced in:
• PMO & Governance: Full governance definition, project management manual creation,
training and rollout.
• Asset Management: Experience linking asset management practices to capital planning
and handover. Kahua also offers an asset centric solution that enables this.
• Organization Change Management(OCM): When business transformation happens,
people are impacted, this goes beyond typical training efforts and expands to the "right
sized" approach for analysis, communication and support.
7 Setup and Training
Options/Procedure
7 Setup and Training Options/Procedure
Methodology
OUR METHODOLOGY
Our approach comes from years of implementing asset, capital and project management
information systems for owners on a global scale. We've taken our lessons learned and applied
them to a scalable approach and toolshed we can pull from depending on the problem we are
solving with you.
Kahua set up
for internal
project
Plan &
Analyze
Plan & Analyze Activities
Cycles for
creating the
solution.
--01111011111* /reate 70111111111111
Review
business
process
alignment
• Ongoing Project Management
• Project Schedule
• Project Scope Log
• Submittal Register
• Project Management Plan
(PMP)
• Kahua Project Setup & Training
• Kickoff
• Artifact Compilation & Review
•
design
develop •
•test
Create Activities
• Weekly Meetings
• Pre -Configuration Training
• Configuration Walk Through
• Technical Design Documents
(TDD)
• End to End Testing
• Go Live Readiness
Handover to
maintenance.
Deploy &
Optimize
Final
readiness,
go live and
support
Deploy & Optimize Activities
• Ongoing Project Management
• Movement to Production
• Training Documentation
• Onsite Training
• Remote Administrator
Training
• Go -Live
• Ad -Hoc Support (Optional,
not priced)
34
35
7 Setup and Training Options/Procedure
Clear and Transparent Delivery
Project Management Includes:
• Project Management Plan (PMP) We will provide our detailed project management plan to
you in the first week of the engagement. This details our processes in more detail as well as
working through some key decisions on your team's roles and responsibilities. We will do a
light version for the initial engagement and complete iterations as needed for future task
orders.
• Project Management System We are proposing to use Kahua as the project management
system for our engagement. Working in one system provides the ability to gain experience and
one source of project truth. We have included hours to set up and train you on all components
we will use. We will fully implement this usage after the initial engagement.
• Project Meetings We have planned weekly 30 -minute meetings to review the status reports.
City working teams will also report out at these meetings using the format: what we
accomplished, what we are working on, what we are stuck on.
• Status Reports Status is presented using Power BI with dashboards for overall status, RFIs,
Submittals, Schedule Lookahead and accomplishments.
• Cost Report Monthly, after the release of the invoice, a cost report will be generated. This
includes potential changes and their status.
• Project Schedule For all project activities, we will maintain a project schedule available as an
online snapshot using GanttPro. An updated schedule will be provided as part of weekly
status meetings. Note that Ad Hoc Support activities will be included separately as they are
more of a "draw down" activity.
• Scope Log The technical scope log contains all solution deliverables. Note, that for estimates
we have assumed all applications are out of the box.
Working teams will be formed for the following:
• Implementation: This team is a primary team that combines individual requirements into
the system requirements and configuration. Includes the design, develop and testing
activities.
• Process Solutions: This team consists of process team leads and covers standardization
of processes; especially those processes which get a lower score.
• Data Movement: This team covers data governance, data management, integrations and
migrations.
• Metrics & Visualization: This team covers how data will be measured and visualized
through reports and dashboards.
• Training & Communications: This team will focus on the "people" side of the project.
36
7 Setup and Training Options/Procedure
Your Role
The City will form an implementation working team. We also ask a primary point of contact
or "Project Manager" from the City who will serve as a primary method for collaborating
within their own team, scheduling meetings and tracking City actions and due dates.
Implementation Working Team
Implementation is the holistic governance and management of the project, managing
individual working teams. Project benefits, goals, risks and opportunities will be captured and
tracked by this team.
The implementation team will also represent the translation of the process into a final design
and configuration of the solution. This means determining how to apply the requirement to the
solution design during meetings. The standard items will be captured together in the
Configuration Workbook while more complex items will require a collaboration with the
Process Solutions team to capture requirements and process flow prior to determining the
final functional design approach.
Part of the responsibility of the implementation team will also be to determine the appropriate
workflow approach. Kahua has workflow capabilities pre -defined in applications aligned to
industry standard and with out of the box (OOB) definitions. The provided configuration
workbooks and the scope log denote options.
In general, there are three workflow types:
• Collaborative: Applications like submittals and RFIs can route to multiple users
simultaneously.
• Review: More formal review processes happen within a pre-set workflow.
• Approval: Where required, eSignatures can be achieved for formal approval.
The individuals in the implementation team serve also as the other working group leads.
When in -meeting decisions cannot be made, the escalation process documented in the
Project Management Plan (PMP) will be followed. The first step of escalation is to the
Implementation Working Team from the working group. Escalation could include but is not
limited to; the City meets with their own in-house SMEs prior to providing the decision,
sponsor(s) are asked, departments take on additional pre -work, etc. In these cases, the
working group lead will be responsible for driving the decisions forward.
Process Solutions Working Team
As part of moving processes into a new system, new opportunities exist to take advantage of
features and functionality. The workflow and forms will look and feel differently from systems
today. Process scoring will help all stakeholders understand the level of standardization. For
items not standardized (score 1 or 2), the City process teams will take the work offline until a
standard process "home page" is reached.
37
7 Setup and Training Options/Procedure
Schedule
Activities Breakdown
Kickoff & Analyze Stage
This stage focuses on setting up the project for success. The internal project will be set up in
City of La Quinta's Kahua domain using out of the box processes and a temporary project
hierarchy. This will be the location for collaboration. Kahua apps used include file manager,
communications, meetings, submittals, RFIs and WBS. We can also discuss using Kahua for
contract management.
Information gathered includes:
• City Stakeholders
• Kahua End Users
During these sessions kvolve consultants will discuss City of La Quinta's current business
processes, evaluate requirements, and demonstrate how the out of the box Kahua solution can
improve business operations. Information gathered will be used to configure the system. The
information gathered includes but is not limited to:
• Required permissions
• Required project hierarchy
• Required project templates
• File Folder structure
• Cost coding structure
• Cost approval workflows (if required)
The decisions made during the above meetings will drive the design of the configuration of the
production domain. The kvolve Team will document and present a final configuration workbook
for City of La Quinta approval. Any design requests discussed not in scope, will either be
included in a change order or tabled for post go -live review.
For items that have been identified for customization, more thorough functional design
documents will be created which outline the process solution (narrative, form, workflow).
38
7 Setup and Training Options/Procedure
Schedule
Stage 3 Create
The Create stage is the longest stage and includes development of business processes into
technical design, configuration and user testing. This is the longest stage with iterative review
and approval of the Technical Design Document(TDD). TDDs define the configured solution.
Testing will align back to the TDD for confirming approved design.
Stage 4 Deploy & Optimize
During the Deploy stage, kvolve will hold a Go/No-Go decision with the customer post training.
Following a "Go" decision, the kvolve consultant will assist the customer in crafting Go -Live end
user communications for all users impacted by the kvolve launch. Training will be onsite using
standard Kahua training materials. kvolve will schedule a handoff call with the Support team to
introduce the City of La Quinta to Kahua Support and educate them on how to interact with the
Support team moving forward.
Optional Support
Provided is an option for an annual support approaches. Hours will be pulled down with backup
reporting provided and will not expire. Additional hours can be purchased at change order rates
in increments of 20 hours after the initial contract and for the duration of the entire contract
term. These hours are used for evaluating Kahua releases, helping to connect customizations to
new functionality and ongoing design and configuration.
kvolve's Responsibilities
kvolve is responsible to provide the City with the following:
1. Professional and satisfactory completion of the stated work within the project time.
2. Timely and effective selection of an appropriately skilled consultant to meet the
requirements of the project.
3. Kahua will find suitable replacements for any of the technical personnel in cases of
prolonged illness or extenuating circumstances.
City Responsibilities
The City is responsible to provide Kahua with the following:
1. Provide Kahua with appropriate access to the software systems, facilities and personnel of
the organization.
2. Provide the appropriate evaluation criteria for the project.
3. Provide access to knowledgeable staff that may be required during the assessment phase of
the project.
4. Provide access to the appropriate decision-making authority during the process of
determining the appropriate evaluation criteria for the project.
5. For onsite meetings, provide a work area for Kahua professionals while on site, that includes
Internet connectivity, projector screen or area for projecting a presentation, projector (if
available), dry -erase board or flip charts for documentation and training facilities that meet
the minimum IT requirement for connectivity per Kahua IT standards.
Publish
•You approve
final test.
•We load into
Production
39
7 Setup and Training Options/Procedure
Migration
Since the city's data exists primarily within PDFs we are unable to price migration at this time
as we are assuming this will be a manual effort. We will create projects with primary
metadata as an import. Optionally, we can provide our hosting tool and coaching on how to
load in data. We will also migrate the project and metadata associated with the project. We
can optionally propose full data migration services after an assessment of data quality and
Extract, Transform, Load (ETL) requirements.
MIGRATION (OPTIONAL)
Migration is often avoided due to the extra work it creates. We are optionally proposing the Mirai
Conversation utility as part of our services. This utility was created by our data migration and
integration team that has been working with client data migrations since 2007. This is the same tool
we are proposing for the hosted integration, if optioned in. The information is mapped using the
utility with a standard XML/CSV interface between the two systems. Mirai includes pre -built
connectors. Error handling will be noted in the Mirai Utility with error notifications being via email.
For our services pricing, we have assumed that we will provide you with templates for import and we
will provide coaching hours within the proposed allowance. You will need to populate the templates
with your data with support of our coaching hours. We will load your data into the system and work
with you to resolve any data issues.
We work with Migration in a development environment before moving to production.
Analyze
•Together we
determine
Migration
Input Needs
•We generate
Template
y
Extract
•You load
Data into
Template
•We set Once
Data Load
Orders
y
Load &
Test
•We confirm
no Errors
•You
troubleshoot
data quality
HISTORICAL DATA (OPTIONAL)
Sometimes we can explore a different approach for historical data not needed in active reporting
that can potentially save time and cost. First, we can migrate information that needs to be
immediately accessed like projects that are currently in flight. Second, we can optionally extract
your data and place it in a data lake that would enable access for reporting and benchmarking. The
right approach can be explored further in the Plan & Analyze activities.
8 Integration Services / Options
Zi
41
8 Integration Services / Options
Mirai ICS
Our integration and migration team has been working on creating tools that reduce
repetitive efforts while increasing the value of time spent. We bring our own hosted
integration platform, Mirai ICS, that has pre -built connectors into Kahua and provides flat
file secure file transfer protocol (sFTP) interface support. Note: Kahua APIs are not
dependent on this approach and are included in pricing.
Solving Typical Integration Challenges (Optional)
• Development Effort— Some projects or consultants develop custom integration and migration
applications from scratch, so development/testing time and effort can vary greatly and be quite
substantial. Consistent processes and methodology around integration/migration have not
been implemented, which makes working on larger projects difficult with varying naming
conventions and configuration methods.
• Support and Maintenance - Resolving issues and making enhancements on custom code
tends to cause Support and Maintenance issues, since the resources who developed it may not
be readily available or performed sufficient knowledge transfer. Hosting location may not have
sufficient IT resources redundancy or backup processes in case of system failures.
• Cost - With custom code, development effort and time to complete can be a big risk to the
project and cause budget over -run. Support and Maintenance for custom code and having the
client host it can significantly impact costs.
Mirai ICS solves these common problems through:
Implementation Time
Since we have developed our
own middleware with highly
configurable building blocks
that specialize in Enterprise
systems, we can configure, test,
deploy integrations into
production with pre -built
connectors in about a week
and make minor logic changes
in hours.
Code Changes
Developers follow rapid, agile,
standardized development
methodology and can create
new connectors/incorporate
enhancements from start to
finish in terms of weeks, and
bug fixes can be done within
hours.
Support / Maintenance
Integrations are hosted in
Microsoft Azure with
development/production
environments with data
encryption, redundancy and
SLA. The product is fully
supported with phone/email.
Since count of integrations, systems and what data needs to be integrated is not defined yet. We
have not included any integration services in our pricing.
9 Disclosures
43
9 Disclosures
mot Applicable
Kvolve does not have any alleged significant prior or ongoing agreement failure, any civil or
criminal litigation or investigation pending, which involved the proposer or in which the
proposer has been judged guilty or liable within the last five (5) years.
10 Acknowledgement of Insurance
Requirements
1
I
'�l l�f ► l l l f
QF"
- CALIFORNIA -
ATTACHMENT 2
INSURANCE REQUIREMENTS ACKNOWLEDGEMENT
Must be executed by proposer and submitted with the proposal
I, Cari Stieglitz "° =' 'ti (name) hereby acknowledge and
confirm that kvolve (name of
company) has reviewed
the City's indemnification and minimum insurance requirements as listed in Exhibits E and F of
the City's Agreement for Contract Services (Attachment 1); and declare that insurance certificates
and endorsements verifying compliance will be provided if an agreement is awarded.
I am President
(Title)
of
(Company)
kvolve
Page 9 of 13
Commercial General Liability (at least as broad as ISO CG 0001)
$1,000,000 (per occurrence); $2,000,000 (general aggregate)
Must include the following endorsements:
General Liability Additional Insured
General Liability Primary and Noncontributory
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Personal Auto Declaration Page if applicable
Errors and Omissions Liability $1,000,000 (per claim and aggregate)
Worker's Compensation (per statutory requirements)
Must include the following endorsements:
Worker's Compensation Waiver of Subrogation
Worker's Compensation Declaration of Sole Proprietor if applicable
Cyber Liability
$1,000,000 (per occurrence)
$2,000,000 (general aggregate)
Page 9 of 13
11 Non -Collusion Affidavit
tigrai
CA I} ORN1.1
ATTACHMENT 3
NON -COLLUSION AFFIDAVIT FORM
Must be executed by proposer and submitted with the proposal
Cari Stieglitz (name) hereby declare as follows:
I am President of kvolve
(Title) (Company)
the party making the foregoing proposal, that the proposal is not made in the interest of, or on behalf
of, any undisclosed person, partnership, company, association, organization, or corporation; that
the proposal is genuine and not collusive or sham; that the proposer has not directly or indirectly
induced or solicited any other proposer to put in a false or sham proposal, and has not directly or
indirectly colluded, conspired, connived, or agreed with any proposer or anyone else to put in a sham
proposal, or that anyone shall refrain from proposing; that the proposer has not in any manner,
directly or indirectly, sought by agreement, communication, or conference with anyone to fix the
proposal price of the proposer or any other proposer, or to fix any overhead, profit, or cost element of
the proposal price, or of that of any other proposer, or to secure any advantage against the public
body awarding the agreement of anyone interested in the proposed agreement; that all
statements contained in the proposal are true; and, further, that the proposer has not, directly or
indirectly, submitted his or her proposal price or any breakdown thereof, or the contents thereof, or
divulged information or data relative hereto, or paid, and will not pay, any fee to any corporation,
partnership, company, association, organization, proposal depository, or to any member or agent
thereof to effectuate a collusive or sham proposal.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct.
Proposer Signature:
Proposer Name:
Proposer Title:
Company Name:
Address:
Cari Stieglitz
President
kvolve
1001 SW Disk Drive, Ste 250 Bend, OR 97702
Page 10 of 13
12 Acknowledgement of Addenda
1/1/1
�1
1Lli/1 4./ 1
l
4 Ottlitra
CALIFORNIA -
ATTACHMENT 4
ACKNOWLEDGEMENT OF RECEIPT OF ADDENDA
Must be executed by proposer and submitted with the proposal;
If no addenda has been issued, mark "N/A" under Addendum No. indicating
Not Applicable and sign
ADDENDUM NO.
SIGNATURE INDICATING RECEIPT
1
2
&ot,A;r4-(26
Page 11 of 13
References: Kahua ESA and
Contract Comments
ENTERPRISE SERVICES AGREEMENT
SIGNATURE PAGE
This Enterprise Services Agreement ("Agreement"), effective as of the Effective Date set forth below, is entered into by and between
the entity identified as Customer below ("Customer") and Kahua, Inc., a Georgia corporation, with its principal place of business located
at 10000 Avalon Boulevard, Suite 600 Alpharetta, GA 30009 ("Kahua"). The parties acknowledge and agree that they have read and
understand the Terms and Conditions of this Agreement and, upon execution, are legally bound by it. This Agreement includes this
"Signature Page", the attached Terms and Conditions, all statements of work entered into in connection with this Agreement
("Statement(s) of Work" or "SOW"), and any schedules, exhibits, or other attachments incorporated herein.
CONTRACT DETAILS
Customer Legal Name
Type of Legal Entity
Notice Contact Information
Contact Name
Address
Phone Number
Effective Date
, 2023
Initial Term
Three (3) Year Term
Licensed Business
The following internal business operations of Customer: [INSERT]
Licensed Users
[INSERT NUMBER OF INITIAL LICENSED USERS]
Fees
See Billable Parameters in Schedule B.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives effective on
the Effective Date.
Kahua, Inc.
Name:
Title:
Date:
Customer
Name:
Title:
Date:
ENTERPRISE SERVICES AGREEMENT
TERMS AND CONDITIONS
1. GENERAL. The following terms and conditions ("Terms
and Conditions") provide for terms that are common to this
Agreement, including all Schedules. All Services will be provided
to Customer according to these Terms and Conditions, all
Statements of Work, and all schedules, exhibits, or other
attachments made a part of this Agreement. In the event of a
conflict between these Terms and Conditions and any Statement of
Work or Schedule, these Terms and Conditions will control, unless
expressly stated to the contrary in the SOW or Schedule.
Capitalized terms not otherwise defined herein shall have the
meaning set forth in Schedule A.
2. SOFTWARE SERVICES
2.1 License. During the Term and subject to the terms
of this Agreement, Kahua grants Customer a limited, non-
exclusive, non -transferable license for its Licensed Users to access
and use the Software Services for their intended purposes in
accordance with any applicable documentation. Customer and its
Licensed Users may access and use the Services in accordance with
the specifications set forth in the system documentation and subject
to the terms of this Agreement in connection with the Licensed
Business. Most Software Services are made available solely on a
hosted (i.e. SaaS) basis, provided that the Platform "Host" and
certain plug -ins may be provided as downloadable executable files
or in a similar manner Except as otherwise expressly provided
herein, Customer may not use the Services for the support of
operations of Customer that are different from the Licensed
Business. Kahua reserves the right to make changes and updates to
the functionality and/or documentation of the Software Services
from time to time.
2.2 Licensed Users. A Licensed User account may not
be shared or used by more than one individual person. Customer
may add, replace, or delete Licensed Users as often as they want
by inactivating the Licensed Users listed in the account manifest
provided in the Platform and reassigning to a new Licensed User,
up to the applicable maximum number of Licensed Users for which
Customer has paid and selected.
2.3 Support Services; Service Levels. Kahua will
provide support services to Customer as set forth in Schedule C,
and Kahua shall provide the Platform in accordance with the
service level terms set forth in Schedule C.
2.4 Applications. As part of the Software Services, Kahua
offers certain discrete functionality when used in conjunction with
the Platform ("Application(s)"). These Applications may be
proprietary work of Kahua ("Kahua Application(s)") or may be the
proprietary work of third parties ("TP Application(s)") who have
granted Kahua the right to sublicense the Applications solely for
use in conjunction with the Platform.
3. PROFESSIONAL SERVICES. Kahua and/or a Kahua
certified partner shall perform the professional services
("Professional Services") described in one or more SOWs agreed
upon by Kahua and Customer. If Customer requests additional
services, then Kahua will provide a proposed SOW for Customer's
consideration. The charges for Professional Services will be those
set forth in the SOW, and if no charges or rates are set forth in the
SOW, then the charges will be calculated at the then -current rates
of Kahua and subject to such deposit or advance payment as the
parties may agree. Maintenance and support of code or
functionality created by means of Professional Services will
likewise be on a SOW -basis unless otherwise agreed in writing.
Unless otherwise expressly set forth in a SOW, the deliverables
provided or created under this Section and all interests therein,
including inventions, patents, copyrights and all other intellectual
property rights, shall remain solely with Kahua.
4. RIGHTS RESERVED. Kahua and its suppliers retain all
rights in the Software Services and, except as otherwise expressly
set forth in an applicable SOW, materials, deliverables, products
and intellectual property arising from the Professional Services.
This Agreement and the SOWs grant no ownership rights to
Customer or any other party. No license is granted to Customer
except for use of the Services as expressly stated herein. The Kahua
name, the Kahua logo, and the product names associated with the
Services are trademarks of Kahua or third parties, and they may not
be used without Kahua's or such third party's prior written consent.
Subject to the confidentiality restrictions as described in Section 7,
Kahua shall be free to use its general knowledge, skills, and
experience, and any ideas, concepts, know-how and techniques
used in the course of providing the Services on other engagements.
5. FEES AND PAYMENT TERMS.
5.1 Fees. Customer shall pay all fees set forth in this
Agreement, including (a) the fees and charges for the Software
Services in accordance with the Billable Parameters and (b) the
Professional Service fees and charges set forth in any applicable
SOW or otherwise. Customer and its Licensed Users are
authorized to use the Software Services only to the extent
Customer has paid the applicable license fees and charges, which
must not exceed (i) the number of Licensed Users authorized with
respect to the Software Services, (ii) the other parameters set forth
in Schedule B of this Agreement ("Billable Parameters").
Customer shall pay the applicable fees and charges of Kahua at its
then -current rates for any usage of the Software Services that
exceeds the Billable Parameters.
5.2 Payment Terms. Kahua will invoice for Software
Services fees annually in advance and Professional Services as
described in the applicable SOW. All invoices for any fees or
charges that are not reasonably disputed by Customer are due and
payable within thirty (30) calendar days of invoice date. All
amounts are payable in United States dollars. If Customer in good
faith disputes any amounts set forth in a properly prepared invoice,
it shall so notify Kahua in writing prior to the invoice due date and
the parties agree to promptly work together in good faith to resolve
the dispute in a prompt and expeditious manner not exceeding
thirty (30) days from the date of notice of such dispute. Customer
shall pay interest of 1.5% per month on any sums not paid when
due under this Agreement, or the maximum permitted by law,
whichever is less, plus all expenses of collection, including
reasonable attorneys' fees and court costs.
5.3 Taxes. In addition to the fees payable hereunder,
Customer agrees that it will be responsible for any sales, use or
similar tax in connection with the provision of the Services. Kahua
shall use their best interpretation of the guidelines, statutes and/or
ENTERPRISE SERVICES AGREEMENT
TERMS AND CONDITIONS
laws of the relevant state or jurisdiction to determine the
applicability of sales, use or similar taxes to be invoiced. All such
taxes will be collected and remitted to the appropriate state or
jurisdiction by Kahua. Taxes shall not include any personal
property taxes on property Kahua owns or leases, any franchise and
privilege taxes on Kahua's business and/or taxes based on Kahua's
net income or gross receipts.
6. CUSTOMER OBLIGATIONS; RESRICTIONS.
6.1 Technical Requirements. Customer must have
required equipment, software, and Internet access to be able to use
the Services. Acquiring, installing, maintaining and operating
equipment and Internet access is solely Customer's responsibility.
6.2 Use of Services. Customer and its Licensed Users
shall use the Services solely as permitted or required by this
Agreement. Customer may not alter, resell or sublicense the
Services or provide the Services as a service bureau. Customer
agrees not to reverse engineer the Services or its software or other
technology. Customer will not use or access the Services to: (i)
build a competitive product or service, or (ii) make derivative
works based upon the Services. Customer will not "frame" or
"mirror" the Services. Customer acknowledges and agrees that any
reverse engineering of the Services or the software associated with
the Services will (i) void Kahua's indemnification obligations to
Customer and the warranties granted in this Agreement; and (ii)
automatically release Kahua from any obligation to provide
Support Services and permit Kahua to terminate this Agreement
and all SOWs and all use of the Services by Customer. Kahua is
entitled to suspend immediately without notice any Customer or
Licensed User account and access and use of the Services if
Customer or Licensed User engages in an activity that is causing
direct harm to Kahua's computers, systems or infrastructure or is
in violation of any applicable state or federal laws.
6.3 Objectionable Matter. Customer agrees not to, and
shall ensure its Licensed Users do not, submit any information or
material that is illegal, knowingly incorrect or misleading,
defamatory, indecent, obscene, threatening, infringing, or invasive
of personal privacy (collectively "Objectionable Matter"). Kahua
is entitled to investigate and audit Customer and the information
and material submitted by Customer to verify whether Customer
has submitted any Objectionable Matter. Kahua may remove any
Objectionable Matter, but Kahua is not obligated to do so.
Customer and Customer's Licensed Users shall comply with all
applicable laws regarding Customer Data and use of the Services.
6.4 User Accounts. Customer is responsible for all
activities that occur under Customer's Licensed User accounts.
Customer is responsible for maintaining the security and
confidentiality of all Licensed User usernames and passwords.
Customer agrees to notify Kahua promptly of any unauthorized use
of any username or password or account or any other known or
suspected breach of security. Each Licensed User will require a
unique username and password login credentials to access the
Software Services.
7. NON -DISCLOSURE AND CONFIDENTIALITY.
7.1 Disclosure. Each party may disclose to the other
party certain Confidential Information of such party or of such
party's associated companies, distributors, licensors, suppliers, or
customers. "Confidential Information" means any information that
is of value to its owner and that is either identified as confidential
or that a reasonable person would understand to be confidential,
including trade secrets, technology, information pertaining to
business operations and strategies, and information pertaining to
customers, pricing, and marketing; "Disclosing Party" refers to the
party disclosing Confidential Information hereunder, whether such
disclosure is directly from Disclosing Party or through Disclosing
Party's employees or agents; and "Receiving Party" refers to the
party receiving any Confidential Information hereunder, whether
such disclosure is received directly or through Receiving Party's
employees or agents.
7.2 Requirement of Confidentiality. The Receiving
Party agrees: (a) not to disclose or otherwise make available
Confidential Information of the Disclosing Party to any third party
without the prior written consent of the Disclosing Party, provided
that the Receiving Party may disclose the Confidential Information
of the Disclosing Party to its, and its affiliates', officers,
employees, consultants and legal advisors who have a "need to
know", who are themselves bound by nondisclosure obligations at
least as restrictive as those set forth in this Section 7; (b) to use the
Confidential Information of the Disclosing Party only for the
purposes of performing its obligations or as otherwise authorized
under the Agreement; and (c) to promptly notify the Disclosing
Party in the event it becomes aware of any loss or disclosure of any
of the Confidential Information of Disclosing Party. Customer
acknowledges that the Services and related documentation are the
Confidential Information of Kahua. The obligations in this Section
7 shall survive termination and continue for so long as the
applicable information constitutes Confidential Information.
Confidential Information shall not include information that: (a) is
already known to the Receiving Party without restriction on use or
disclosure prior to receipt of such information from the Disclosing
Party; (b) is or becomes generally known by the public other than
by breach of this Agreement by, or other wrongful act of, the
Receiving Party; (c) is developed by the Receiving Party
independently of, and without reference to, any Confidential
Information of the Disclosing Party; or (d) is received by the
Receiving Party from a third party who is not under any obligation
to the Disclosing Party to maintain the confidentiality of such
information.
7.3 Compelled Disclosure. If the Receiving Party
becomes legally compelled to disclose any Confidential
Information, the Receiving Party shall provide: (a) prompt written
notice of such requirement so that the Disclosing Party may seek,
at its sole cost and expense, a protective order or other remedy; and
(b) reasonable assistance, at the Disclosing Party's sole cost and
expense, in opposing such disclosure or seeking a protective order
or other limitations on disclosure. If, after providing such notice
and assistance as required herein, the Receiving Party remains
required by Law to disclose any Confidential Information, the
Receiving Party shall disclose no more than that portion of the
ENTERPRISE SERVICES AGREEMENT
TERMS AND CONDITIONS
Confidential Information which, on the advice of the Receiving
Party's legal counsel, the Receiving Party is legally required to
disclose and, upon the Disclosing Party's request, shall use
commercially reasonable efforts to obtain assurances from the
applicable court or agency that such Confidential Information will
be afforded confidential treatment.
7.4 Data Use. Kahua shall have the right to use,
analyze and process anonymized, aggregated data resulting from
Customer's use of the Services provided under this Agreement
("Anonymized Data"), so long as such Anonymized Data does not
directly or indirectly identify Customer or its customers. Kahua
may use Anonymized Data for any lawful purpose, including but
not limited to developing and enhancing its products and services,
conducting research and development, generating industry
insights.
8. CUSTOMER DATA. All Customer Data submitted by
Customer to Kahua or to the Services, whether submitted by
Customer or by its Licensed Users, will remain the sole property
of Customer. Customer will have sole responsibility for the
accuracy, quality, integrity, legality, reliability and appropriateness
of, and copyright permissions for, all Customer Data. Kahua may
use the Customer Data to provide the Services to Customer. Kahua
will make daily differential backups and weekly full backups of
Customer Data. Such backups will be stored at a location selected
at Kahua's sole discretion. The maximum disk storage space
provided to Customer under this Agreement is limited to one (1)
terabyte. If the amount of disk storage for Customer's use exceeds
this permitted usage then Customer will be required to upgrade to
higher storage capacity at the applicable rates. Customer grants to
Kahua a non-exclusive license to use, copy, store, transmit and
display Customer Data to the extent reasonably necessary to
provide and maintain the Services, including publication of contact
information to enable collaboration between customers of the
Services.
9. LIMITED WARRANTY; DISCLAIMER.
9.1 Limited Warranty. Kahua warrants that the
Professional Services shall be performed in a professional and
workmanlike manner and that Kahua and Kahua's personnel have
the required skills and experience to perform the Professional
Services. Kahua warrants that the deliverables provided by Kahua
pursuant to a SOW will perform in all material respects with the
specifications described in the applicable SOW. Kahua will use
commercially reasonable efforts to repair or provide a workaround
that is materially consistent with the functionality as described in
the applicable SOW for any Professional Services or SOW
deliverable failing to meet the foregoing remedy for which it
receives written notice from Customer within thirty (30) calendar
days after performance describing such failure, which shall be
Customer's exclusive remedy and Kahua's sole and complete
obligation with respect thereto.
9.2 Disclaimer. OTHER THAN AS EXPRESSLY
SET FORTH IN SECTION 9.1, EACH PARTY DISCLAIMS
ALL WARRANTIES, CONDITIONS, AND
REPRESENTATIONS TO THE OTHER PARTY REGARDING
THIS AGREEMENT, WHETHER ORAL OR WRITTEN,
EXPRESS, IMPLIED, OR STATUTORY. WITHOUT
LIMITING THE FOREGOING, ANY IMPLIED WARRANTY
OR CONDITION OF MERCHANTABILITY, THE IMPLIED
WARRANTY AGAINST INFRINGEMENT, THE IMPLIED
WARRANTY OR CONDITION OF FITNESS FOR A
PARTICULAR PURPOSE, AND THOSE ARISING FROM A
COURSE OF DEALING OR USAGE OF TRADE ARE
EXPRESSLY EXCLUDED AND DISCLAIMED BY
PROVIDER. NO WARRANTY IS MADE THAT USE OF THE
SERVICES WILL BE ERROR FREE OR UNINTERRUPTED,
THAT ANY ERRORS OR DEFECTS IN THE SERVICES WILL
BE CORRECTED, OR THAT THE SERVICES
FUNCTIONALITY WILL MEET CUSTOMER'S
REQUIREMENTS.
9.3 TP Applications. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT,
KAHUA DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES, OR ASSUME ANY LIABILITIES UNDER
THIS AGREEMENT, WITH REGARD TO ANY TP
APPLICATIONS, WHICH CUSTOMER ACKNOWLEDGES
AND AGREES ARE BEING ACCESSED AND USED AT
CUSTOMER'S OWN RISK.
10. LIMITATION OF LIABILITY.
10.1 Exclusion of Damages. EXCEPT WITH
REGARD TO CUSTOMER'S BREACH OF SECTION 6.3 OR
EITHER PARTY'S BREACH OF SECTION 7, IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO
ANY THIRD PARTY FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR
PUNITIVE DAMAGES, INCLUDING LOSS OF USE,
REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT
OF BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, REGARDLESS OF
WHETHER SUCH DAMAGE WAS FORESEEABLE AND
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
10.2 Liability Cap. EXCEPT WITH REGARD TO
CUSTOMER'S PAYMENT OBLIGATIONS OR BREACH OF
SECTION 6.3, EITHER PARTY'S BREACH OF SECTION 7,
OR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS,
IN NO EVENT WILL EITHER PARTY'S AGGREGATE
LIABILITY EXCEED SOFTWARE SERVICES FEES PAID OR
PAYABLE FOR THE CORRESPONDING SERVICES BY
CUSTOMER DURING THE TWELVE (12) MONTHS
PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3 Exceptions. The foregoing limitations shall not
apply to if, and only to the extent that, such limitations are
prohibited by applicable law.
11. INDEMNIFICATION.
11.1 Kahua Indemnification. Kahua shall defend
Customer and its officers, directors, employees, agents, successors
and permitted assigns against any third -party claim, suit, action or
proceeding (each, an "Action") based on a claim that Customer's
receipt or use of the Platform or Kahua Applications in accordance
ENTERPRISE SERVICES AGREEMENT
TERMS AND CONDITIONS
with this Agreement infringes any intellectual property right or
misappropriates any trade secret of a third party, and shall pay all
settlements entered into and damages awarded against Customer to
the extent based on such an Action; provided, however, that Kahua
shall have no obligations under this Section 11.1 with respect to
claims to the extent arising out of: (a) any instruction, information,
designs, specifications or other materials provided by Customer to
Kahua; (b) use of the Services in combination with any materials,
software, or equipment not supplied to Customer or specified by
Kahua in writing; or (c) any modifications or changes made to the
Services by or on behalf of any person or entity other than Kahua.
If the Platform or Kahua Applications, or any part thereof, become,
or in the opinion of Kahua may become, the subject of a claim of
infringement or misappropriation, Kahua may, at its option: (i)
procure for Customer the right to use such Platform or Kahua
Applications free of any liability; (ii) replace or modify the
Platform or Kahua Applications to make them non -infringing; or
(iii) terminate this Agreement and refund to Customer any portion
of the fees prepaid by Customer for the infringing Platform or
Kahua Applications. THIS SECTION STATES KAHUA'S SOLE
OBLIGATION AND LIABILITY, AND CUSTOMER'S SOLE
AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT OR
CLAIMS ALLEGING INFRINGEMENT.
11.2 Customer Indemnification. Customer shall defend
Kahua and its officers, directors, employees, agents, affiliates,
successors and permitted assigns against all Actions based on a
claim that any information or materials provided by Customer, or
Kahua' receipt or use thereof, infringes any intellectual property
right or misappropriates any trade secret of a third party, and shall
pay all settlements entered into and damages awarded against
Kahua to the extent based on such an Action.
11.3 Indemnification Procedures. The indemnifying
party shall solely control the defense and settlement of the
applicable Action. The party seeking indemnification hereunder
shall promptly notify the indemnifying party in writing of any
Action and cooperate with the indemnifying party at the
indemnifying party's sole cost and expense. The indemnifying
party shall immediately take control of the defense and
investigation of such Action and shall employ counsel of its choice
to handle and defend the same, at the indemnifying party's sole
cost and expense. The indemnifying party shall not settle any
Action in a manner that requires the indemnified party to pay
monies or admit liability without the indemnified party's prior
written consent, which shall not be unreasonably withheld or
delayed. The indemnified party's failure to perform any obligations
under this Section 11.3 shall not relieve the indemnifying party of
its obligations under this Section 11 except to the extent that the
indemnifying party can demonstrate that it has been materially
prejudiced as a result of such failure. The indemnified party may
participate in and observe the proceedings at its own cost and
expense.
12. TERM AND TERMINATION.
12.1 Term. The Term of this Agreement will begin on
the Effective Date and will end at the end of the Initial Term set
forth on the Signature Page, counted from the Effective Date
("Initial Term"). This Agreement will automatically renew for
successive renewal terms of one (1) year (each a "Renewal Term")
beginning at the end of the Initial Term, unless Customer or Kahua
provides notice of termination not less than 90 days before the end
of the Initial Term or current Renewal Term, as applicable.
12.2 Termination; Suspension. Without prejudice to
any other remedies and in addition to any other termination rights
herein, the parties shall have the right to terminate this Agreement
as provided below:
a. By either party if the other party commits a material
breach of this Agreement and such breach remains uncured 30 days
after written notice of such breach is delivered to such other party
including the failure to pay any fees due to Kahua; or
b. By either party if the other party makes an assignment
for the benefit of creditors, or commences or has commenced
against it any proceeding in bankruptcy, insolvency, or
reorganization pursuant to bankruptcy laws, laws of debtor's
moratorium or similar laws.
12.3 Effect. Upon termination or expiration of this
Agreement or any Statement of Work for any reason, all rights,
licenses, and access to the Services granted by Kahua to Customer
under this Agreement or SOW, as applicable, will immediately
cease. The termination or expiration of an SOW shall have no
impact on the continuing validity and effect of any other SOWs
that may have been entered into between the parties prior to such
expiration or termination, unless and to the extent such other SOWs
are also terminated. Within 30 days after termination or expiration
of this Agreement, each party shall return or destroy the
Confidential Information of the other party then in its possession.
12.4 Survival. Any right or obligation of the parties in
this Agreement which, by its nature, should survive termination or
expiration of this Agreement, will survive any such termination or
expiration of this Agreement.
13. DISPUTE RESOLUTION. The parties agree that, except as
otherwise provided below, they shall first attempt to resolve any
dispute, claim or controversy relating in any way to this Agreement
(a "Dispute") between an officer of each party who has authority
to resolve the Dispute. If any Dispute cannot be settled in this
manner within sixty (60) calendar days of written notice being
served by a party on the other party, the parties agree that the
Dispute may be settled by a court of competent jurisdiction.
Notwithstanding the foregoing, either party may apply to any court
of competent jurisdiction for a temporary restraining order,
preliminary injunction, or other interim, conservatory or equitable
relief, as necessary.
14. GENERAL.
14.1 Insurance. During the term of this Agreement,
Kahua shall maintain the insurance outlined in Schedule D.
14.2 Disaster Recovery. During the Term, Kahua shall
maintain and comply with its disaster recovery and business
continuity plan (the "Business Continuity Plan"), which shall
include processes and procedures designed to restore the Software
Services in the event of an outage.
ENTERPRISE SERVICES AGREEMENT
TERMS AND CONDITIONS
14.3 Export. Customer will ensure the Services or
associated software are not exported or re-exported (whether by
access of the Services or associated software or otherwise) without
Kahua's prior written consent or in violation of applicable law.
14.4 Governing Law. This Agreement shall be governed
by and construed in accordance with the internal Laws of the State
of Georgia without giving effect to any choice or conflict of law
provision or rule. The United Nations Convention on Contracts for
the International Sale of Goods shall not apply in any respect to
this Agreement or the parties.
14.5 Conflicting Terms. Notwithstanding the content of
any Customer purchase order or any other document or record,
whether in writing or electronic, relating to the subject matter of
this Agreement, the terms of this Agreement shall govern and any
conflicting, inconsistent, or additional terms contained in such
documents shall be null and void.
14.6 Notice. Customer shall provide Kahua in writing
with accurate billing and contact information as Kahua may
reasonably require. Customer agrees to accurately update this
information promptly by means of e-mail to sales@kahua.com, and
in any case within thirty (30) calendar days, if there is any change.
Either party may give notice by means of electronic mail to the
other party's e-mail address on record or by written communication
sent by first class mail or by courier service to the other party's
address on record. Such notice will be deemed to have been given
upon the expiration of 36 hours after mailing (if sent by first class
mail) or sending by courier or 12 hours after sending (if sent by e-
mail), or, if earlier, when received. A party may, by giving notice,
change its applicable address, e-mail, or other contact information.
14.7 Assignment. Neither party may assign, transfer or
delegate any or all of its rights or obligations under this Agreement,
without the prior written consent of the other party, which consent
shall not be unreasonably withheld or delayed; provided that upon
prior written notice to the other party, either party may assign the
Agreement to a successor of all or substantially all of the assets of
such party through merger, reorganization, consolidation or
acquisition. No assignment shall relieve the assigning party of any
of its obligations hereunder. Any attempted assignment, transfer or
other conveyance in violation of the foregoing shall be null and
void. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
permitted assigns.
14.8 Interpretation. For purposes of this Agreement, (a)
the words "include," "includes" and "including" shall be deemed
to be followed by the words "without limitation"; (b) the word "or"
is not exclusive; and (c) the words "herein," "hereof," "hereby,"
"hereto" and "hereunder" refer to this Agreement as a whole.
Should any provision of this Agreement require judicial
interpretation, the parties agree that the court interpreting or
construing the same shall not apply a presumption that the terms of
this Agreement shall be more strictly construed against one party
than against another.
14.9 Severability. In case any one or more of the
provisions of this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
14.10 Attorneys' Fees. In the event that any action, suit,
or other legal or administrative proceeding is instituted or
commenced by either party hereto against the other party arising
out of or related to this Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees and court costs
from the non -prevailing party.
14.11 Entire Agreement. This Agreement constitutes the
entire agreement between the parties concerning the subject matter
hereof and supersedes all written or oral prior agreements or
understandings with respect thereto.
14.12 Amendment; Waiver. This Agreement may only be
amended, modified or supplemented by an agreement in writing
signed by each party hereto. No waiver by any party of any of the
provisions hereof shall be effective unless explicitly set forth in
writing and signed by the party so waiving. Except as otherwise set
forth in this Agreement, no failure to exercise, or delay in
exercising, any rights, remedy, power or privilege arising from this
Agreement shall operate or be construed as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege.
14.13 Force Majeure. Neither party shall be liable for
delay or failure in performing any of its obligations hereunder due
to causes beyond its reasonable control, including an act of nature,
war, natural disaster, governmental regulations, terrorism,
communication or utility failures or casualties or the failures or acts
of third parties.
14.14 No Third -Party Beneficiaries. This Agreement is
for the sole benefit of the parties hereto and their respective
successors and permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other person or
entity any legal or equitable right, benefit or remedy of any nature
whatsoever, under or by reason of this Agreement.
14.15 Relationship of Parties. Nothing in this Agreement
shall constitute or be deemed to constitute a partnership between
the parties hereto or constitute or be deemed to constitute one party
as agent of the other, for any purpose whatsoever, and neither party
shall have the authority or power to bind the other, or to contract in
the name of or create a liability against the other, in any way or for
any purpose.
14.16 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of
which together shall be deemed to be one and the same agreement.
A signed copy of this Agreement delivered by means of electronic
transmission shall be deemed to have the same legal effect as
delivery of an original signed copy of this Agreement.
14.17 Data Security, Backup and Disaster Recovery.
Kahua is certified and maintains compliance with the AICPA
Report on Controls at a Service Organization relevant to Security,
Availability, Processing Integrity, and Confidentiality. At least
ENTERPRISE SERVICES AGREEMENT
TERMS AND CONDITIONS
once annually and at no expense to the Customer, Kahua will
conduct a SOC 2 Type 2 audit of controls relating to the Software
Service, which audit will be performed by an independent certified
audit firm. Upon Customer request, Kahua will provide Customer
with copies of documentation relevant to such SOC 2 audit to the
extent permitted by law and subject to applicable regulatory
restrictions and confidentiality obligations.
14.18 Any state or local public agency in the United
States, current or future, shall be allowed to purchase new Software
Services during the life of the contract, even if it is not listed
amongst the solicitation participants. While this clause in no way
commits a state or local government agency to purchase from this
Agreement, nor does it guarantee any additional orders will result,
it does allow state or local government agencies, at their discretion,
to make use of Customer's competitive process (provided said
process satisfies their own procurement guidelines) and purchase
directly from the awarded contractor. All purchases made by other
state or local government agencies shall be understood to be
transactions between that government agency and Kahua;
Customer shall not be responsible for any such purchases or
obligations.
ENTERPRISE SERVICES AGREEMENT
SCHEDULES
SCHEDULE A
DEFINITIONS
1. "Customer Data" means data, information or material that is, in the course of utilizing the Software Services, either: (i) provided or
submitted by Customer or any Licensed User through the Services or otherwise to Kahua; or (ii) automatically generated by the Software
Services.
2. "Initial Term" has the meaning set forth on the Signature Page.
3. "Licensed Business" has the meaning set forth on the Signature Page.
4. "Licensed Users" means the Users paid for by Customer for use of the Software Services (including those initially set forth on the
Signature Page) and the number of Users paid for by Customer for each Application set forth on Schedule B or the applicable
documentation for such Software Services or any relevant Application order, as well as such additional Users paid for subsequently and
set forth on the applicable documentation for ordering such additional Users. "User" means (i) any employee of Customer or Customer's
customers using the Software Services in connection with a Customer project, or (ii) independent contractor (e.g. 1099 contractor, but
not entity -level subcontractors) of Customer or Customer's clients using the Software Services in connection with a Customer project.
5. "Platform" means the Kahua platform made available as part of the Software Services that can be utilized to support developing
and operating Applications including but not limited to the following functionality: Search, Workflow, Data, and Authentication.
6. "Services" means the Software Services and Professional Services.
7. "Software Services" the Platform, Applications and Support Services made available to Customer.
8. "Term" means the Initial Term and applicable Renewal Terms.
ENTERPRISE SERVICES AGREEMENT
SCHEDULES
SCHEDULE B
BILLABLE PARAMETERS
Customer is purchasing (an unlimited user license or X number of users) of the following applications:
Kahua Standard License
• Calendar
• Contact Management
• Dashboard
• Design Review
• Document Management Suite, includes the following:
o Communications
o Daily Reports
o Field Observations
o Meetings
o Punch Lists
o RFIs
o Submittals
• File Manager
• Locations
• Media Manager
• Messages
• Milestones
• Projects/ Portfolio Management
• Project Directory
• Report Manager
• Tasks
• Work Packages
Cost Management Suite
• Budgets
• Budget Adjustments
• Budget Changes
• Contracts
• Change Requests
• Change Orders
• Issues
• Pay Requests
• Purchase Orders
• Purchase Order Change Orders
• Invoices
• Work Breakdown Structure
Other Applications (include only the Apps below that the client is licensing)
• Action Items
• Asset Centric
• Capital Planning
• Cashflow Forecasting
• Data Store
• Kahua Analytics
• Program Summary
ENTERPRISE SERVICES AGREEMENT
SCHEDULES
• Single Sign On
• Snapshot
Third -Party Applications (include only the Apps below that the client is licensing)
• Bid Management
• Closeout
• Healthcare Risk Management Suite
• Kahua for P3
• Phase Gates
• Risk Management Suite
• rSchedule
• Sources of Funds
• Transportation Suite
• xBE Minority Participation Tracking
Payment
Amount
Due Date
Year 1 Annual Software Services Fee
Due upon Execution; This payment is due upon
execution of the Agreement.
Years 2-5 Annual Software Services Fee
Due Annually on the Effective Date
Professional Services
Due upon Execution
Annual Construction Volume Pricing. Customer is granted unlimited users for up to $$$ Annual Construction Volume. Kahua
shall have the right to verify Customer's Construction Volume (as specified on Schedule B) to ensure compliance with agreed upon
terms and pricing. Kahua will give Customer at least ten (10) days advance notice of any such verification process and will conduct
the same during normal business hours in a manner that does not unreasonably interfere with Customer's normal operations. Such
verification shall be at Kahua's expense, provided however that if any such audit should disclose any underpayment by Customer,
Customer shall immediately pay Kahua such underpaid amount.
Marketing Credit
In consideration for the discounts provided, within forty-five (45) days from the Effective Date, Customer agrees to work with Kahua
to issue a press release announcing the relationship that is mutually agreeable to both parties. In addition, after Customer goes live on
Kahua, both parties agree to develop a case study describing the achieved benefits as mutually agreed upon. Kahua will be
responsible for drafting the case study and will seek Customer's input and approval.
ENTERPRISE SERVICES AGREEMENT
SCHEDULES
SCHEDULE C
SUPPORT AND SERVICE LEVELS
1. Scope of Agreement. During the Term of the Agreement to which this Schedule is attached and so long as Customer is not in
breach of any obligations, Kahua agrees to provide the support services set forth below.
2. Response Time by Priority. Upon receipt from Customer of a report of an Error affecting Customer's use of the Software Services,
Kahua shall take reasonable measures to remedy the reported Error. Kahua may request certain information (data, screen shots, etc.) to
properly validate and reproduce the Error. All resolution times will begin after Kahua validates and reproduces the Error. Kahua will
provide response and resolution for reported Errors per the table below:
Priority
Description
Response
Time
Resolution Time
Priority 1
Production system is completely
unavailable or is inoperable or is
affected such that critical business
processes are completely unavailable or
inoperable.
Within 1
hour
Kahua will use reasonable efforts to provide a fix, or
acceptable work around, and work continuously to resolve
following receipt of notification and validation of Priority
1 issue.
Priority 2
Production system is available, but non-
critical business processes and multiple
users are substantially impacted or are
affected such that critical business
processes are unavailable or inoperable.
Less than
4 hours
Kahua will make reasonable efforts to provide a fix or
acceptable workaround within five (5) business days from
the time Kahua is able to replicate the Error
Priority 3
Production system is available, but a
single user or non-critical business
processes are adversely impacted, or the
test or development systems functions,
but multiple users are impacted.
2 business
days
Kahua will make reasonable efforts to provide a fix or
acceptable workaround within ten (10) business days or
provide in a scheduled service or maintenance release.
For purposes of this Schedule, "Business Hours" means 5:00 am — 10:00 pm (Eastern Time), Monday — Friday excluding holidays. All
categories above specifically apply only to those issues that are within the control of Kahua.
3. Support Services. Subject to the terms and conditions of this Agreement, including payment of the fees to Kahua, Kahua shall
provide the following support services ("Support Services") during the Term from Kahua's facilities:
a. Telephone Assistance. Kahua shall provide telephone assistance on an on-call basis during Business Hours. Kahua shall
provide such telephone assistance (i) for consultation in the use, operation and maintenance of the Software Services as Kahua considers
in its sole discretion reasonable to aid Customer in the use of the Software Services; and (ii) for the correction of Errors discovered by
Customer. "Error" means a material failure of the Software Services to substantially perform the functions described in the
corresponding documentation. Kahua will use reasonable efforts to return Customer's calls to Kahua's designated Support Services
telephone number during the hours described above within two (2) business hours of such call. Customer shall only permit authorized
Customer personnel to call Kahua for Support Services. Customer agrees that the placing of a service call by its personnel authorizes
Kahua to undertake corrective action as determined by Kahua, and Customer will be responsible for any fees or expenses that result
from such actions in accordance with this Agreement. The preferred method to communicate an issue to Kahua Technical Support is
through e-mail at support@kahua.com. Alternatively, Customer may call Technical Support directly at 470-524-8250. Customer may
also use either method to submit comments, questions and suggestions regarding the Software Services. Kahua may, but will not be
obligated to, develop or implement any changes based on submitted comments or suggestions, which will be solely owned by Kahua.
b. Software Services Updates. Kahua shall supply Customer with Software Services updates including improvements,
enhancements, or modifications to the Software Services that Kahua generally makes available to its other Customers and for which
Kahua does not charge separately. The Software Services updates shall be treated as part of the Software Services for purposes of this
Agreement. Kahua Minimum System Requirements accessed can be at: Support Kahua System Requirements
c. Limitations & Exclusions. Kahua has the right to discontinue provision of Support Services in the event of: (i) Errors
that arise out of improper handling or use of the Services by Customer, its employees, or agents, including use inconsistent with the
documentation and this Agreement; (ii) Errors that arise out of changes, alterations, or revisions made by or on behalf of Customer; (iii)
ENTERPRISE SERVICES AGREEMENT
SCHEDULES
Errors that arises out of Customer's use of Services or equipment that does not meet the Kahua Minimum System requirements or are
not expressly approved by Kahua in writing; (iv) problems arising out of Customer data, network, database, hardware, or operational
or environmental factors not within the direct control of Kahua; (v) failure by Customer to install mandatory Software Services updates
provided to Customer by Kahua from time to time (Kahua only agrees to provide Support Services for the most current version of the
Software Services or on versions developed, configured, customized and maintained by Kahua for Customer, or as designated by Kahua
and the version of the Software Services resulting from execution of the immediately preceding Software Services update as provided
by Kahua); (vi) Errors arising out of Applications or other third party software or hardware; or (vii) Errors that are not reproducible by
Kahua. If Kahua elects to provide Support Services for any of the preceding events, then Customer shall reimburse Kahua for all time
spent by Kahua at Kahua's then -prevailing time and materials rates and for Kahua's reasonable expenses incurred in responding to
correcting Errors arising from subsections (i) through (vi) above and any other false maintenance or support claims, or repairing any
Customer alterations or revisions to the Services.
4. System Availability. Kahua will have at least 99.7% uptime during which the Platform will be available for Customer's use under
the Agreement, as measured yearly, excluding scheduled downtime (as described below).
a. Unscheduled Downtime. Kahua will notify Customer within one hour of any known and verified unscheduled
downtime of the Platform and update the status to Customer hourly until the Platform is back up. Kahua will immediately notify
Customer when the Platform is restored.
b. Scheduled Downtime. Scheduled downtime may include scheduled maintenance, upgrades of hardware or Services,
or upgrades to increase storage capacity. Scheduled maintenance, while being conducted, may degrade the quality of the Software
Services provided which may include an outage of the Software Services; provided, however, that an outage related to scheduled
maintenance shall not be deemed to be non -Availability. Normal windows for scheduled maintenance are between Saturdays at 10:00
PM to Sunday's at 2:00 AM, Local Time. Local Time shall refer to Eastern Standard Time or Eastern Daylight Time, whichever is in
effect at the time. The Customer will be notified of scheduled downtimes that are expected to exceed one hour at least twenty-four (24)
hours before downtime occurs.
5. Reporting Provided. Kahua will provide the following:
a. Service availability: Customer can access the current Kahua Platform uptime at https://status.kahua.com.
b. Support ticket data: Customer can access and export the data for their reported Support issues from the Kahua
Support site at https://support.kahua.com.
6. Customer's General Responsibilities.
a. Reporting Errors promptly and accurately.
b. Designating two members of Customer's technical staff who shall be Customer's representatives for contact with Kahua
regarding Support Services.
c. Providing sufficient information for Kahua to duplicate the Error, as described in the documentation, so Kahua can
duplicate the Error, assess the situation, and/or undertake any needed or appropriate corrective action hereunder.
d. Afford Kahua reasonable access to and use of the Software Services, and, if necessary, Customer's systems as may be
necessary to diagnose and repair any Errors.
e. Comply with the documentation and any operator or trouble shooting procedures for the Services provided by Kahua.
f Otherwise following instructions or suggestions from Kahua regarding use, maintenance, upgrades, repairs, workarounds,
or other related matters. This includes upgrading to new versions of any software provided to Customer.
ENTERPRISE SERVICES AGREEMENT
SCHEDULES
SCHEDULE D
INSURANCE
1. Commercial General Liability Insurance. Commercial General Liability insurance coverage, including contractual liability,
with minimum limits of Two Million Dollars ($2,000,000) on a per occurrence basis, with an aggregate Four Million Dollar ($4,000,000)
limit.
Commercial General Liability Umbrella. Commercial General Liability Umbrella insurance coverage with limits of Eight Million
Dollars ($8,000,000)
2. Worker's Compensation Insurance. Worker's Compensation Insurance in statutory amounts, or equivalent if not required
by the state where services are performed, and Employer's Liability coverage with limits of liability of not less than $1,000,000 covering
all employees of Kahua employed in, on or about Customer's property.
3. Errors and Omissions Insurance with Technology Services Coverage. Errors and Omissions insurance, with minimum
limits of Five Million Dollars ($5,000,000) on a per occurrence basis, with an aggregate Five Million Dollar ($5,000,000) limit.
4. Crime Insurance or Fidelity Bond. If applicable, Crime Insurance or Fidelity Bond with a minimum amount of $1,000,000
and having a third -party endorsement covering Kahua and all of Kahua's employees who have access to or are responsible for handling
Customer's funds or account information.
5. Employment Practices Liability Insurance. When work is performed on Customer's premises, Employment Practices
Liability Insurance with a minimum limit of $2,000,000 and having a third party endorsement.
6. Cyber Liability Insurance. Cyber Liability Insurance, when work performed requires or allows Kahua to be connected to
Customer's networks or Customers Data is stored on Kahua's networks. A minimum limit of $5,000,000 shall be provided. The
insurance shall include coverage for loss, disclosure and theft of data.
ENTERPRISE SERVICES AGREEMENT
SCHEDULES
SCHEDULE E
PROFESSIONAL SERVICES
See Professional Services Statement of Work attached and made part of this Agreement
AGREEMENT FOR CONTRACT SERVICES
THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and
entered into by and between the CITY OF LA QUINTA, ("City"), a California municipal
corporation, and [insert type of business entity, e.g. sole proprietorship,
California Limited Liability Corporation, etc], with a place of business at
("Contracting Party"). The parties hereto
agree as follows:
1. SERVICES OF CONTRACTING PARTY.
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, Contracting Party shall provide those services related to
as specified in the "Scope of Services" attached hereto as
"Exhibit A" and incorporated herein by this reference (the "Services"). Contracting Party
represents and warrants that Contracting Party is a provider of first-class work and/or
services and Contracting Party is experienced in performing the Services contemplated
herein and, in light of such status and experience, Contracting Party covenants that it
shall follow industry standards in performing the Services required hereunder, and that
all materials, if any, will be of good quality, fit for the purpose intended. For purposes of
this Agreement, the phrase "industry standards" shall mean those standards of practice
recognized by one or more first-class firms performing similar services under similar
circumstances.
1.2 Compliance with Law. All Services rendered hereunder shall be provided
in accordance with all ordinances, resolutions, statutes, rules, regulations, and laws of
the City and any Federal, State, or local governmental agency of competent jurisdiction.
1.3 Wage and Hour Compliance, Contracting Party shall comply with applicable
Federal, State, and local wage and hour laws.
1.4 Licenses, Permits, Fees and Assessments. Except as otherwise specified
herein, Contracting Party shall obtain at its sole cost and expense such licenses, permits,
and approvals as may be required by law for the performance of the Services required by
this Agreement, including a City of La Quinta business license. Contracting Party and its
employees, agents, and subcontractors shall, at their sole cost and expense, keep in
effect at all times during the term of this Agreement any licenses, permits, and approvals
that are legally required for the performance of the Services required by this Agreement.
Contracting Party shall have the sole obligation to pay for any fees, assessments, and
taxes, plus applicable penalties and interest, which may be imposed by law and arise
from or are necessary for the performance of the Services required by this Agreement,
and shall indemnify, defend (with counsel selected by City), and hold City, its elected
officials, officers, employees, and agents, free and harmless against any such fees,
assessments, taxes, penalties, or interest levied, assessed, or imposed against City
hereunder. Contracting Party shall be responsible for all subcontractors' compliance with
this Section.
1.5 Familiarity with Work. By executing this Agreement, Contracting Party
warrants that (a) it has thoroughly investigated and considered the Services to be
performed, (b) it has investigated the site where the Services are to be performed, if any,
and fully acquainted itself with the conditions there existing, (c) it has carefully considered
how the Services should be performed, and (d) it fully understands the facilities,
difficulties, and restrictions attending performance of the Services under this Agreement.
Should Contracting Party discover any latent or unknown conditions materially differing
from those inherent in the Services or as represented by City, Contracting Party shall
immediately inform City of such fact and shall not proceed except at Contracting Party's
risk until written instructions are received from the Contract Officer, or assigned
designee (as defined in Section 4.2 hereof).
1.6 Standard of Care. Contracting Party acknowledges and understands that
the Services contracted for under this Agreement require specialized skills and abilities
and that, consistent with this understanding, Contracting Party's work will be held to an
industry standard of quality and workmanship. Consistent with Section 1.5 hereinabove,
Contracting Party represents to City that it holds the necessary skills and abilities to satisfy
the industry standard of quality as set forth in this Agreement. Contracting Party shall
adopt reasonable methods during the life of this Agreement to furnish continuous
protection to the Services performed by Contracting Party, and the equipment, materials,
papers, and other components thereof to prevent losses or damages, and shall be
responsible for all such damages, to persons or property, until acceptance of the Services
by City, except such losses or damages as may be caused by City's own negligence.
The performance of Services by Contracting Party shall not relieve Contracting Party from
any obligation to correct any incomplete, inaccurate, or defective work at no further cost
to City, when such inaccuracies are due to the negligence of Contracting Party.
1.7 Additional Services. In accordance with the terms and conditions of this
Agreement, Contracting Party shall perform services in addition to those specified in the
Scope of Services ("Additional Services") only when directed to do so by the Contract
Officer, or assigned designee, provided that Contracting Party shall not be required to
perform any Additional Services without compensation. Contracting Party shall not
perform any Additional Services until receiving prior written authorization (in the form of
a written change order if Contracting Party is a contractor performing the Services) from
the Contract Officer, or assigned designee, incorporating therein any adjustment in
(i) the Contract Sum, and/or (ii) the time to perform this Agreement, which said
adjustments are subject to the written approval of Contracting Party. It is expressly
understood by Contracting Party that the provisions of this Section shall not apply to the
Services specifically set forth in the Scope of Services or reasonably contemplated
therein. It is specifically understood and agreed that oral requests and/or approvals of
Additional Services shall be barred and are unenforceable. Failure of Contracting Party
to secure the Contract Officer's, or assigned designee's written authorization for
Additional Services shall constitute a waiver of any and all right to adjustment of the
Contract Sum or time to perform this Agreement, whether by way of compensation,
restitution, quantum meruit, or the like, for Additional Services provided without the
appropriate authorization from the Contract Officer, or assigned designee.
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Compensation for properly authorized Additional Services shall be made in accordance
with Section 2.3 of this Agreement.
1.8 Special Requirements. Additional terms and conditions of this Agreement,
if any, which are made a part hereof are set forth in "Exhibit D" (the "Special
Requirements"), which is incorporated herein by this reference and expressly made a part
hereof. In the event of a conflict between the provisions of the Special Requirements and
any other provisions of this Agreement, the provisions of the Special Requirements shall
govern.
2. COMPENSATION.
2.1 Contract Sum. For the Services rendered pursuant to this Agreement,
Contracting Party shall be compensated in accordance with "Exhibit B" (the "Schedule of
Compensation") in a total amount not to exceed
Dollars ($ ), for the life of the Agreement, encompassing the Initial and
any Extended Terms (the "Contract Sum"), except as provided in Section 1.7. The
method of compensation set forth in the Schedule of Compensation may include a lump
sum payment upon completion, payment in accordance with the percentage of completion
of the Services, payment for time and materials based upon Contracting Party's rate
schedule, but not exceeding the Contract Sum, or such other reasonable methods as may
be specified in the Schedule of Compensation. The Contract Sum shall include the
attendance of Contracting Party at all project meetings reasonably deemed necessary by
City; Contracting Party shall not be entitled to any additional compensation for attending
said meetings. Compensation may include reimbursement for actual and necessary
expenditures for reproduction costs, transportation expense, telephone expense, and
similar costs and expenses when and if specified in the Schedule of Compensation.
Regardless of the method of compensation set forth in the Schedule of Compensation,
Contracting Party's overall compensation shall not exceed the Contract Sum, except as
provided in Section 1.7 of this Agreement.
2.2 Method of Billing & Payment. Any month in which Contracting Party wishes
to receive payment, Contracting Party shall submit to City no later than the tenth
(10th) working day of such month, in the form approved by City's Finance Director, an
invoice for Services rendered prior to the date of the invoice. Such invoice shall
(1) describe in detail the Services provided, including time and materials, and (2) specify
each staff member who has provided Services and the number of hours assigned to each
such staff member. Such invoice shall contain a certification by a principal member of
Contracting Party specifying that the payment requested is for Services performed in
accordance with the terms of this Agreement. Upon approval in writing by the Contract
Officer, or assigned designee, and subject to retention pursuant to Section 8.3, City will
pay Contracting Party for all items stated thereon which are approved by City pursuant to
this Agreement no later than thirty (30) days after invoices are received by the City's
Finance Department.
2.3 Compensation for Additional Services. Additional Services approved in
advance by the Contract Officer, or assigned designee, pursuant to Section 1.7 of this
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Agreement shall be paid for in an amount agreed to in writing by both City and Contracting
Party in advance of the Additional Services being rendered by Contracting Party. Any
compensation for Additional Services amounting to five percent (5%) or less of the
Contract Sum may be approved by the Contract Officer, or assigned designee. Any
greater amount of compensation for Additional Services must be approved by the La
Quinta City Council, the City Manager, or Department Director, depending upon City laws,
regulations, rules and procedures concerning public contracting. Under no circumstances
shall Contracting Party receive compensation for any Additional Services unless prior
written approval for the Additional Services is obtained from the Contract Officer, or
assigned designee, pursuant to Section 1.7 of this Agreement.
3. PERFORMANCE SCHEDULE.
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement. If the Services not completed in accordance with the Schedule of
Performance, as set forth in Section 3.2 and "Exhibit C", it is understood that the City will
suffer damage.
3.2 Schedule of Performance. All Services rendered pursuant to this
Agreement shall be performed diligently and within the time period established in "Exhibit
C" (the "Schedule of Performance"). Extensions to the time period specified in the
Schedule of Performance may be approved in writing by the Contract Officer, or
assigned designee.
3.3 Force Majeure. The time period specified in the Schedule of Performance
for performance of the Services rendered pursuant to this Agreement shall be extended
because of any delays due to unforeseeable causes beyond the control and without the
fault or negligence of Contracting Party, including, but not restricted to, acts of God or of
the public enemy, fires, earthquakes, floods, epidemic, quarantine restrictions, riots,
strikes, freight embargoes, acts of any governmental agency other than City, and
unusually severe weather, if Contracting Party shall within ten (10) days of the
commencement of such delay notify the Contract Officer, or assigned designee, in
writing of the causes of the delay. The Contract Officer, or assigned designee, shall
ascertain the facts and the extent of delay, and extend the time for performing the
Services for the period of the forced delay when and if in the Contract Officer's judgment
such delay is justified, and the Contract Officer's determination, or assigned designee,
shall be final and conclusive upon the parties to this Agreement. Extensions to time
period in the Schedule of Performance which are determined by the Contract Officer, or
assigned designee, to be justified pursuant to this Section shall not entitle the
Contracting Party to additional compensation in excess of the Contract Sum.
3.4 Term. Unless earlier terminated in accordance with the provisions in
Article 8.0 of this Agreement, the term of this agreement shall commence on
, 2024, and terminate on , 20 ("Initial Term"). This
Agreement may be extended for additional year(s) upon mutual agreement
by both parties ("Extended Term"), and executed in writing.
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4. COORDINATION OF WORK.
4.1 Representative of Contracting Party. The following principals of Contracting
Party ("Principals") are hereby designated as being the principals and representatives of
Contracting Party authorized to act in its behalf with respect to the Services specified
herein and make all decisions in connection therewith:
(a) Name
Telephone No.:
Email:
(b) Name
Telephone No.:
Email:
It is expressly understood that the experience, knowledge, capability, and
reputation of the foregoing Principals were a substantial inducement for City to enter into
this Agreement. Therefore, the foregoing Principals shall be responsible during the term
of this Agreement for directing all activities of Contracting Party and devoting sufficient
time to personally supervise the Services hereunder. For purposes of this Agreement,
the foregoing Principals may not be changed by Contracting Party and no other personnel
may be assigned to perform the Services required hereunder without the express written
approval of City.
4.2 Contract Officer. The "Contract Officer", otherwise known as [ENTER
NAME OF DEPARTMENT MANAGER OR DIRECTOR] or assigned designee
may be designated in writing by the City Manager of the City. It shall be Contracting
Party's responsibility to assure that the Contract Officer, or assigned designee, is kept
informed of the progress of the performance of the Services, and Contracting Party shall
refer any decisions, that must be made by City to the Contract Officer, or assigned
designee. Unless otherwise specified herein, any approval of City required hereunder
shall mean the approval of the Contract Officer, or assigned designee. The Contract
Officer, or assigned designee, shall have authority to sign all documents on behalf of
City required hereunder to carry out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience,
knowledge, capability, and reputation of Contracting Party, its principals, and its
employees were a substantial inducement for City to enter into this Agreement. Except
as set forth in this Agreement, Contracting Party shall not contract or subcontract with
any other entity to perform in whole or in part the Services required hereunder without the
express written approval of City. In addition, neither this Agreement nor any interest
herein may be transferred, assigned, conveyed, hypothecated, or encumbered,
voluntarily or by operation of law, without the prior written approval of City. Transfers
restricted hereunder shall include the transfer to any person or group of persons acting in
concert of more than twenty five percent (25%) of the present ownership and/or control
of Contracting Party, taking all transfers into account on a cumulative basis. Any
attempted or purported assignment or contracting or subcontracting by Contracting Party
without City's express written approval shall be null, void, and of no effect. No approved
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transfer shall release Contracting Party of any liability hereunder without the express
consent of City.
4.4 Independent Contractor. Neither City nor any of its employees shall have
any control over the manner, mode, or means by which Contracting Party, its agents, or
its employees, perform the Services required herein, except as otherwise set forth herein.
City shall have no voice in the selection, discharge, supervision, or control of Contracting
Party's employees, servants, representatives, or agents, or in fixing their number or hours
of service. Contracting Party shall perform all Services required herein as an independent
contractor of City and shall remain at all times as to City a wholly independent contractor
with only such obligations as are consistent with that role. Contracting Party shall not at
any time or in any manner represent that it or any of its agents or employees are agents
or employees of City. City shall not in any way or for any purpose become or be deemed
to be a partner of Contracting Party in its business or otherwise or a joint venture or a
member of any joint enterprise with Contracting Party. Contracting Party shall have no
power to incur any debt, obligation, or liability on behalf of City. Contracting Party shall
not at any time or in any manner represent that it or any of its agents or employees are
agents or employees of City. Except for the Contract Sum paid to Contracting Party as
provided in this Agreement, City shall not pay salaries, wages, or other compensation to
Contracting Party for performing the Services hereunder for City. City shall not be liable
for compensation or indemnification to Contracting Party for injury or sickness arising out
of performing the Services hereunder. Notwithstanding any other City, state, or federal
policy, rule, regulation, law, or ordinance to the contrary, Contracting Party and any of its
employees, agents, and subcontractors providing services under this Agreement shall not
qualify for or become entitled to any compensation, benefit, or any incident of employment
by City, including but not limited to eligibility to enroll in the California Public Employees
Retirement System ("PERS") as an employee of City and entitlement to any contribution
to be paid by City for employer contributions and/or employee contributions for PERS
benefits. Contracting Party agrees to pay all required taxes on amounts paid to
Contracting Party 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. Contracting Party
shall fully comply with the workers' compensation laws regarding Contracting Party and
Contracting Party's employees. Contracting Party further agrees to indemnify and hold
City harmless from any failure of Contracting Party to comply with applicable workers'
compensation laws. City shall have the right to offset against the amount of any payment
due to Contracting Party under this Agreement any amount due to City from Contracting
Party as a result of Contracting Party's failure to promptly pay to City any reimbursement
or indemnification arising under this Section.
4.5 Identity of Persons Performing Work. Contracting Party represents that it
employs or will employ at its own expense all personnel required for the satisfactory
performance of any and all of the Services set forth herein. Contracting Party represents
that the Services required herein will be performed by Contracting Party or under its direct
supervision, and that all personnel engaged in such work shall be fully qualified and shall
be authorized and permitted under applicable State and local law to perform such tasks
and services.
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4.6 City Cooperation. City shall provide Contracting Party with any plans,
publications, reports, statistics, records, or other data or information pertinent to the
Services to be performed hereunder which are reasonably available to Contracting Party
only from or through action by City.
5. INSURANCE.
5.1 Insurance. Prior to the beginning of any Services under this Agreement and
throughout the duration of the term of this Agreement, Contracting Party shall procure
and maintain, at its sole cost and expense, and submit concurrently with its execution of
this Agreement, policies of insurance as set forth in "Exhibit E" (the "Insurance
Requirements") which is incorporated herein by this reference and expressly made a part
hereof.
5.2 Proof of Insurance. Contracting Party shall provide Certificate of Insurance
to Agency along with all required endorsements. Certificate of Insurance and
endorsements must be approved by Agency's Risk Manager prior to commencement of
performance.
6. INDEMNIFICATION.
6.1 Indemnification. To the fullest extent permitted by law, Contracting Party
shall indemnify, protect, defend (with counsel selected by City), and hold harmless City
and any and all of its officers, employees, agents, and volunteers as set forth in "Exhibit
F" ("Indemnification") which is incorporated herein by this reference and expressly made
a part hereof.
7. RECORDS AND REPORTS.
7.1 Reports. Contracting Party shall periodically prepare and submit to the
Contract Officer, or assigned designee, such reports concerning Contracting Party's
performance of the Services required by this Agreement as the Contract Officer, or
assigned designee, shall require. Contracting Party hereby acknowledges that City is
greatly concerned about the cost of the Services to be performed pursuant to this
Agreement. For this reason, Contracting Party agrees that if Contracting Party becomes
aware of any facts, circumstances, techniques, or events that may or will materially
increase or decrease the cost of the Services contemplated herein or, if Contracting Party
is providing design services, the cost of the project being designed, Contracting Party
shall promptly notify the Contract Officer, or assigned designee, of said fact,
circumstance, technique, or event and the estimated increased or decreased cost related
thereto and, if Contracting Party is providing design services, the estimated increased or
decreased cost estimate for the project being designed.
7.2 Records. Contracting Party shall keep, and require any subcontractors to
keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports
(including but not limited to payroll reports), studies, or other documents relating to the
disbursements charged to City and the Services performed hereunder (the "Books and
Records"), as shall be necessary to perform the Services required by this Agreement and
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enable the Contract Officer, or assigned designee, to evaluate the performance of such
Services. Any and all such Books and Records shall be maintained in accordance with
generally accepted accounting principles and shall be complete and detailed. The
Contract Officer, or assigned designee, shall have full and free access to such Books
and Records at all times during normal business hours of City, including the right to
inspect, copy, audit, and make records and transcripts from such Books and Records.
Such Books and Records shall be maintained for a period of three (3) years following
completion of the Services hereunder, and City shall have access to such Books and
Records in the event any audit is required. In the event of dissolution of Contracting
Party's business, custody of the Books and Records may be given to City, and access
shall be provided by Contracting Party's successor in interest. Under California
Government Code Section 8546.7, if the amount of public funds expended under this
Agreement exceeds Ten Thousand Dollars ($10,000.00), this Agreement shall be subject
to the examination and audit of the State Auditor, at the request of City or as part of any
audit of City, for a period of three (3) years after final payment under this Agreement.
7.3 Ownership of Documents. All drawings, specifications, maps, designs,
photographs, studies, surveys, data, notes, computer files, reports, records, documents,
and other materials plans, drawings, estimates, test data, survey results, models,
renderings, and other documents or works of authorship fixed in any tangible medium of
expression, including but not limited to, physical drawings, digital renderings, or data
stored digitally, magnetically, or in any other medium prepared or caused to be prepared
by Contracting Party, its employees, subcontractors, and agents in the performance of
this Agreement (the "Documents and Materials") shall be the property of City and shall be
delivered to City upon request of the Contract Officer, or assigned designee, or upon
the expiration or termination of this Agreement, and Contracting Party shall have no claim
for further employment or additional compensation as a result of the exercise by City of
its full rights of ownership use, reuse, or assignment of the Documents and Materials
hereunder. Any use, reuse or assignment of such completed Documents and Materials
for other projects and/or use of uncompleted documents without specific written
authorization by Contracting Party will be at City's sole risk and without liability to
Contracting Party, and Contracting Party's guarantee and warranties shall not extend to
such use, revise, or assignment. Contracting Party may retain copies of such Documents
and Materials for its own use. Contracting Party shall have an unrestricted right to use
the concepts embodied therein. All subcontractors shall provide for assignment to City
of any Documents and Materials prepared by them, and in the event Contracting Party
fails to secure such assignment, Contracting Party shall indemnify City for all damages
resulting therefrom.
7.4 In the event City or any person, firm, or corporation authorized by City
reuses said Documents and Materials without written verification or adaptation by
Contracting Party for the specific purpose intended and causes to be made or makes any
changes or alterations in said Documents and Materials, City hereby releases,
discharges, and exonerates Contracting Party from liability resulting from said change.
The provisions of this clause shall survive the termination or expiration of this Agreement
and shall thereafter remain in full force and effect.
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7.5 Licensing of Intellectual Property. This Agreement creates a non-exclusive
and perpetual license for City to copy, use, modify, reuse, or sublicense any and all
copyrights, designs, rights of reproduction, and other intellectual property embodied in
the Documents and Materials. Contracting Party shall require all subcontractors, if any,
to agree in writing that City is granted a non-exclusive and perpetual license for the
Documents and Materials the subcontractor prepares under this Agreement. Contracting
Party represents and warrants that Contracting Party has the legal right to license any
and all of the Documents and Materials. Contracting Party makes no such representation
and warranty in regard to the Documents and Materials which were prepared by design
professionals other than Contracting Party or provided to Contracting Party by City. City
shall not be limited in any way in its use of the Documents and Materials at any time,
provided that any such use not within the purposes intended by this Agreement shall be
at City's sole risk.
7.6 Release of Documents. The Documents and Materials shall not be
released publicly without the prior written approval of the Contract Officer, or assigned
designee, or as required by law. Contracting Party shall not disclose to any other entity
or person any information regarding the activities of City, except as required by law or as
authorized by City.
7.7 Confidential or Personal Identifying Information. Contracting Party
covenants that all City data, data lists, trade secrets, documents with personal identifying
information, documents that are not public records, draft documents, discussion notes, or
other information, if any, developed or received by Contracting Party or provided for
performance of this Agreement are deemed confidential and shall not be disclosed by
Contracting Party to any person or entity without prior written authorization by City or
unless required by law. City shall grant authorization for disclosure if required by any
lawful administrative or legal proceeding, court order, or similar directive with the force of
law. All City data, data lists, trade secrets, documents with personal identifying
information, documents that are not public records, draft documents, discussions, or other
information shall be returned to City upon the termination or expiration of this Agreement.
Contracting Party's covenant under this section shall survive the termination or expiration
of this Agreement.
8. ENFORCEMENT OF AGREEMENT.
8.1 California Law. This Agreement shall be interpreted, construed, and
governed both as to validity and to performance of the parties in accordance with the laws
of the State of California. Legal actions concerning any dispute, claim, or matter arising
out of or in relation to this Agreement shall be instituted in the Superior Court of the County
of Riverside, State of California, or any other appropriate court in such county, and
Contracting Party covenants and agrees to submit to the personal jurisdiction of such
court in the event of such action.
8.2 Disputes. In the event of any dispute arising under this Agreement, the
injured party shall notify the injuring party in writing of its contentions by submitting a claim
therefore. The injured party shall continue performing its obligations hereunder so long
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as the injuring party commences to cure such default within ten (10) days of service of
such notice and completes the cure of such default within forty-five (45) days after service
of the notice, or such longer period as may be permitted by the Contract Officer, or
assigned designee; provided that if the default is an immediate danger to the health,
safety, or general welfare, City may take such immediate action as City deems warranted.
Compliance with the provisions of this Section shall be a condition precedent to
termination of this Agreement for cause and to any legal action, and such compliance
shall not be a waiver of any party's right to take legal action in the event that the dispute
is not cured, provided that nothing herein shall limit City's right to terminate this
Agreement without cause pursuant to this Article 8.0. During the period of time that
Contracting Party is in default, City shall hold all invoices and shall, when the default is
cured, proceed with payment on the invoices. In the alternative, City may, in its sole
discretion, elect to pay some or all of the outstanding invoices during any period of default.
8.3 Retention of Funds. City may withhold from any monies payable to
Contracting Party sufficient funds to compensate City for any losses, costs, liabilities, or
damages it reasonably believes were suffered by City due to the default of Contracting
Party in the performance of the Services required by this Agreement.
8.4 Waiver. No delay or omission in the exercise of any right or remedy of a
non -defaulting party on any default shall impair such right or remedy or be construed as
a waiver. City's consent or approval of any act by Contracting Party requiring City's
consent or approval shall not be deemed to waive or render unnecessary City's consent
to or approval of any subsequent act of Contracting Party. Any waiver by either party of
any default must be in writing and shall not be a waiver of any other default concerning
the same or any other provision of this Agreement.
8.5 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and remedies
of the parties are cumulative and the exercise by either party of one or more of such rights
or remedies shall not preclude the exercise by it, at the same or different times, of any
other rights or remedies for the same default or any other default by the other party.
8.6 Legal Action. In addition to any other rights or remedies, either party may
take legal action, at law or at equity, to cure, correct, or remedy any default, to recover
damages for any default, to compel specific performance of this Agreement, to obtain
declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes
of this Agreement.
8.7 Termination Prior To Expiration of Term. This Section shall govern any
termination of this Agreement, except as specifically provided in the following Section for
termination for cause. City reserves the right to terminate this Agreement at any time,
with or without cause, upon thirty (30) days' written notice to Contracting Party. Upon
receipt of any notice of termination, Contracting Party shall immediately cease all
Services hereunder except such as may be specifically approved by the Contract Officer,
or assigned designee. Contracting Party shall be entitled to compensation for all
Services rendered prior to receipt of the notice of termination and for any Services
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authorized by the Contract Officer, or assigned designee, thereafter in accordance with
the Schedule of Compensation or such as may be approved by the Contract Officer, or
assigned designee, except amounts held as a retention pursuant to this Agreement.
8.8 Termination for Default of Contracting Party. If termination is due to the
failure of Contracting Party to fulfill its obligations under this Agreement, Contracting Party
shall vacate any City -owned property which Contracting Party is permitted to occupy
hereunder and City may, after compliance with the provisions of Section 8.2, take over
the Services and prosecute the same to completion by contract or otherwise, and
Contracting Party shall be liable to the extent that the total cost for completion of the
Services required hereunder exceeds the compensation herein stipulated (provided that
City shall use reasonable efforts to mitigate such damages), and City may withhold any
payments to Contracting Party for the purpose of setoff or partial payment of the amounts
owed City.
8.9 Attorneys' Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this
Agreement, the prevailing party in such action or proceeding, in addition to any other relief
which may be granted, whether legal or equitable, shall be entitled to reasonable
attorneys' fees; provided, however, that the attorneys' fees awarded pursuant to this
Section shall not exceed the hourly rate paid by City for legal services multiplied by the
reasonable number of hours spent by the prevailing party in the conduct of the litigation.
Attorneys' fees shall include attorneys' fees on any appeal, and in addition a party entitled
to attorneys' fees shall be entitled to all other reasonable costs for investigating such
action, taking depositions and discovery, and all other necessary costs the court allows
which are incurred in such litigation. All such fees shall be deemed to have accrued on
commencement of such action and shall be enforceable whether or not such action is
prosecuted to judgment. The court may set such fees in the same action or in a separate
action brought for that purpose.
9. CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
9.1 Non -liability of City Officers and Employees. No officer, official, employee,
agent, representative, or volunteer of City shall be personally liable to Contracting Party,
or any successor in interest, in the event or any default or breach by City or for any amount
which may become due to Contracting Party or to its successor, or for breach of any
obligation of the terms of this Agreement.
9.2 Conflict of Interest. Contracting Party covenants that neither it, nor any
officer or principal of it, has or shall acquire any interest, directly or indirectly, which would
conflict in any manner with the interests of City or which would in any way hinder
Contracting Party's performance of the Services under this Agreement. Contracting Party
further covenants that in the performance of this Agreement, no person having any such
interest shall be employed by it as an officer, employee, agent, or subcontractor without
the express written consent of the Contract Officer, or assigned designee. Contracting
Party agrees to at all times avoid conflicts of interest or the appearance of any conflicts
of interest with the interests of City in the performance of this Agreement.
-11-
No officer or employee of City shall have any financial interest, direct or
indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to this Agreement which effects his financial interest or the financial
interest of any corporation, partnership or association in which he is, directly or indirectly,
interested, in violation of any State statute or regulation. Contracting Party warrants that
it has not paid or given and will not pay or give any third party any money or other
consideration for obtaining this Agreement.
9.3 Covenant against Discrimination. Contracting Party covenants that, by and
for itself, its heirs, executors, assigns, and all persons claiming under or through them,
that there shall be no discrimination against or segregation of, any person or group of
persons on account of any impermissible classification including, but not limited to, race,
color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry in
the performance of this Agreement. Contracting Party shall take affirmative action to
ensure that applicants are employed and that employees are treated during employment
without regard to their race, color, creed, religion, sex, marital status, sexual orientation,
national origin, or ancestry.
10. MISCELLANEOUS PROVISIONS.
10.1 Notice. Any notice, demand, request, consent, approval, or communication
either party desires or is required to give the other party or any other person shall be in
writing and either served personally or sent by prepaid, first-class mail to the address set
forth below. Either party may change its address by notifying the other party of the change
of address in writing. Notice shall be deemed communicated forty-eight (48) hours from
the time of mailing if mailed as provided in this Section.
To City: To Contracting Party:
CITY OF LA QUINTA
Attention:
78495 Calle Tampico
La Quinta, California 92253
10.2 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of this Agreement or any other rule of
construction which might otherwise apply.
10.3 Section Headings and Subheadings. The section headings and
subheadings contained in this Agreement are included for convenience only and shall not
limit or otherwise affect the terms of this Agreement.
10.4 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, and such counterparts shall constitute one and
the same instrument.
-12-
10.5 Integrated Agreement. This Agreement including the exhibits hereto is the
entire, complete, and exclusive expression of the understanding of the parties. It is
understood that there are no oral agreements between the parties hereto affecting this
Agreement and this Agreement supersedes and cancels any and all previous
negotiations, arrangements, agreements, and understandings, if any, between the
parties, and none shall be used to interpret this Agreement.
10.6 Amendment. No amendment to or modification of this Agreement shall be
valid unless made in writing and approved by Contracting Party and by the City Council
of City. The parties agree that this requirement for written modifications cannot be waived
and that any attempted waiver shall be void.
10.7 Severability. In the event that any one or more of the articles, phrases,
sentences, clauses, paragraphs, or sections contained in this Agreement shall be
declared invalid or unenforceable, such invalidity or unenforceability shall not affect any
of the remaining articles, phrases, sentences, clauses, paragraphs, or sections of this
Agreement which are hereby declared as severable and shall be interpreted to carry out
the intent of the parties hereunder unless the invalid provision is so material that its
invalidity deprives either party of the basic benefit of their bargain or renders this
Agreement meaningless.
10.8 Unfair Business Practices Claims. In entering into this Agreement,
Contracting Party offers and agrees to assign to City all rights, title, and interest in and to
all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or
under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of
Division 7 of the Business and Professions Code), arising from purchases of goods,
services, or materials related to this Agreement. This assignment shall be made and
become effective at the time City renders final payment to Contracting Party without
further acknowledgment of the parties.
10.9 No Third -Party Beneficiaries. With the exception of the specific provisions
set forth in this Agreement, there are no intended third -party beneficiaries under this
Agreement and no such other third parties shall have any rights or obligations hereunder.
10.10 Authority. The persons executing this Agreement on behalf of each of the
parties hereto represent and warrant that (i) such party is duly organized and existing,
(ii) they are duly authorized to execute and deliver this Agreement on behalf of said party,
(iii) by so executing this Agreement, such party is formally bound to the provisions of this
Agreement, and (iv) that entering into this Agreement does not violate any provision of
any other Agreement to which said party is bound. This Agreement shall be binding upon
the heirs, executors, administrators, successors, and assigns of the parties.
[SIGNATURES ON FOLLOWING PAGE]
-13-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
stated below.
CITY OF LA QUINTA, CONTRACTING PARTY:
a California Municipal Corporation
JON McMILLEN, City Manager
City of La Quinta, California
Dated:
By:
Name:
Title:
ATTEST: By:
Name:
Title:
MONIKA RADEVA, City Clerk
City of La Quinta, California
APPROVED AS TO FORM:
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
-14-
Exhibit A
Scope of Services
1 Services to be Provided:
[TO BE PROVIDED BY STAFF (include location of work)]
2. Performance Standards:
OR
[TO BE PROVIDED BY STAFF]
[See Attached]
Exhibit A
Page 1 of 4
Last revised summer 2017
ADDENDUM TO AGREEMENT
Re: Scope of Services
If the Scope of Services include construction, alteration, demolition, installation,
repair, or maintenance affecting real property or structures or improvements of any kind
appurtenant to real property, the following apply:
1. Prevailing Wage Compliance. If Contracting Party is a contractor
performing public works and maintenance projects, as described in this Section 1.3,
Contracting Party shall comply with applicable Federal, State, and local laws. Contracting
Party is aware of the requirements of California Labor Code Sections 1720, et seq., and
1770, et seq., as well as California Code of Regulations, Title 8, Sections 16000, et seq.,
(collectively, the "Prevailing Wage Laws"), and La Quinta Municipal Code
Section 3.12.040, 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, and if construction work over twenty-
five thousand dollars ($25,000.00) and/or alterations, demolition, repair or maintenance
work over fifteen thousand dollars ($15,000.00) is entered into or extended on or after
January 1, 2015 by this Agreement, Contracting Party agrees to fully comply with such
Prevailing Wage Laws including, but not limited to, requirements related to the
maintenance of payroll records and the employment of apprentices. Pursuant to
California Labor Code Section 1725.5, no contractor or subcontractor may be awarded a
contract for public work on a "Public works" project unless registered with the California
Department of Industrial Relations ("DIR") at the time the contract is awarded. If the
Services are being performed as part of an applicable "Public works" or "Maintenance"
project, as defined by the Prevailing Wage Laws, this project is subject to compliance
monitoring and enforcement by the DIR. Contracting Party will maintain and will require
all subcontractors to maintain valid and current DIR Public Works contractor registration
during the term of this Agreement. Contracting Party shall notify City in writing
immediately, and in no case more than twenty-four (24) hours, after receiving any
information that Contracting Party's or any of its subcontractor's DIR registration status
has been suspended, revoked, expired, or otherwise changed. It is understood that it is
the responsibility of Contracting Party to determine the correct salary scale. Contracting
Party 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 Contracting Party's principal place of
business and at the project site, if any. The statutory penalties for failure to pay prevailing
wage or to comply with State wage and hour laws will be enforced. Contracting Party
must forfeit to City TWENTY-FIVE DOLLARS ($25.00) per day for each worker who
works in excess of the minimum working hours when Contracting Party does not pay
overtime. In accordance with the provisions of Labor Code Sections 1810 et seq., eight
(8) hours is the legal working day. Contracting Party also shall comply with State law
requirements to maintain payroll records and shall provide for certified records and
inspection of records as required by California Labor Code Section 1770 et seq., including
Section 1776. In addition to the other indemnities provided under this Agreement,
Contracting Party shall defend (with counsel selected by City), indemnify, and hold City,
Exhibit A
Page 2 of 4
its elected officials, officers, employees, and agents free and harmless from any claim or
liability arising out of any failure or alleged failure to comply with the Prevailing Wage
Laws. It is agreed by the parties that, in connection with performance of the Services,
including, without limitation, any and all "Public works" (as defined by the Prevailing Wage
Laws), Contracting Party shall bear all risks of payment or non-payment of prevailing
wages under California law and/or the implementation of Labor Code Section 1781, as
the same may be amended from time to time, and/or any other similar law. Contracting
Party acknowledges and agrees that it shall be independently responsible for reviewing
the applicable laws and regulations and effectuating compliance with such laws.
Contracting Party shall require the same of all subcontractors.
2. Retention. Payments shall be made in accordance with the provisions of
Article 2.0 of the Agreement. In accordance with said Sections, City shall pay Contracting
Party a sum based upon ninety-five percent (95%) of the Contract Sum apportionment of
the labor and materials incorporated into the Services under this Agreement during the
month covered by said invoice. The remaining five percent (5%) thereof shall be retained
as performance security to be paid to Contracting Party within sixty (60) days after final
acceptance of the Services by the City Council of City, after Contracting Party has
furnished City with a full release of all undisputed payments under this Agreement, if
required by City. In the event there are any claims specifically excluded by Contracting
Party from the operation of the release, City may retain proceeds (per Public Contract
Code § 7107) of up to one hundred fifty percent (150%) of the amount in dispute. City's
failure to deduct or withhold shall not affect Contracting Party's obligations under the
Agreement.
3. Utility Relocation. City is responsible for removal, relocation, or protection
of existing main or trunk -line utilities to the extent such utilities were not identified in the
invitation for bids or specifications. City shall reimburse Contracting Party for any costs
incurred in locating, repairing damage not caused by Contracting Party, and removing or
relocating such unidentified utility facilities. Contracting Party shall not be assessed
liquidated damages for delay arising from the removal or relocation of such unidentified
utility facilities.
4. Trenches or Excavations. Pursuant to California Public Contract Code
Section 7104, in the event the work included in this Agreement requires excavations more
than four (4) feet in depth, the following shall apply:
(a) Contracting Party shall promptly, and before the following conditions
are disturbed, notify City, in writing, of any: (1) material that Contracting Party believes
may be material that is hazardous waste, as defined in Section 25117 of the Health and
Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site
in accordance with provisions of existing law; (2) subsurface or latent physical conditions
at the site different from those indicated by information about the site made available to
bidders prior to the deadline for submitting bids; or (3) unknown physical conditions at the
site of any unusual nature, different materially from those ordinarily encountered and
generally recognized as inherent in work of the character provided for in the Agreement.
Exhibit A
Page 3 of 4
(b) City shall promptly investigate the conditions, and if it finds that the
conditions do materially so differ, or do involve hazardous waste, and cause a decrease
or increase in Contracting Party's cost of, or the time required for, performance of any
part of the work shall issue a change order per Section 1.8 of the Agreement.
(c) in the event that a dispute arises between City and Contracting Party
whether the conditions materially differ, or involve hazardous waste, or cause a decrease
or increase in Contracting Party's cost of, or time required for, performance of any part of
the work, Contracting Party shall not be excused from any scheduled completion date
provided for by this Agreement, but shall proceed with all work to be performed under this
Agreement. Contracting Party shall retain any and all rights provided either by contract
or by law which pertain to the resolution of disputes and protests between the contracting
Parties.
5. Safety. Contracting Party shall execute and maintain its work so as to avoid
injury or damage to any person or property. In carrying out the Services, Contracting
Party 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 as 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 subcontractors, 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.
6. Liquidated Damages. Since the determination of actual damages for any
delay in performance of the Agreement would be extremely difficult or impractical to
determine in the event of a breach of this Agreement, Contracting Party shall be liable for
and shall pay to City the sum of One Thousand dollars ($1,000.00) as liquidated damages
for each working day of delay in the performance of any of the Services required
hereunder, as specified in the Schedule of Performance. In addition, liquidated damages
may be assessed for failure to comply with the emergency call out requirements, if any,
described in the Scope of Services. City may withhold from any moneys payable on
account of the Services performed by Contracting Party any accrued liquidated damages.
Exhibit A
Page 4 of 4
Exhibit B
Schedule of Compensation
With the exception of compensation for Additional Services, provided for in
Section 2.3 of this Agreement, the maximum total compensation to be paid to Contracting
Party under this Agreement is not to exceed ($ )
("Contract Sum"). The Contract Sum shall be paid to Contracting Party in installment
payments made on a monthly basis and in an amount identified in Contracting Party's
schedule of compensation attached hereto for the work tasks performed and properly
invoiced by Contracting Party in conformance with Section 2.2 of this Agreement.
Exhibit B
Page 1 of 1
Exhibit C
Schedule of Performance
Contracting Party shall complete all services identified in the Scope of Services,
Exhibit A of this Agreement, in accordance with the Project Schedule, attached hereto
and incorporated herein by this reference.
Exhibit C
Page 1 of 1
Exhibit D
Special Requirements
[insert Special Requirements or indicate "None" if there are none]
Exhibit D
Page 1 of 1
Exhibit E
Insurance Requirements
E.1 Insurance. Prior to the beginning of and throughout the duration of this
Agreement, the following policies shall be maintained and kept in full force and effect
providing insurance with minimum limits as indicated below and issued by insurers with
A.M. Best ratings of no less than A -VI:
Commercial General Liability (at least as broad as ISO CG 0001)
$1,000,000 (per occurrence)
$2,000,000 (general aggregate)
Must include the following endorsements:
General Liability Additional Insured
General Liability Primary and Non-contributory
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Auto Liability Additional Insured
Personal Auto Declaration Page if applicable
Errors and Omissions Liability
$1,000,000 (per claim and aggregate)
Workers' Compensation
(per statutory requirements)
Must include the following endorsements:
Workers Compensation with Waiver of Subrogation
Workers Compensation Declaration of Sole Proprietor if applicable
Cyber Liability
$1,000,000 (per occurrence)
$2,000,000 (general aggregate)
Contracting Party shall procure and maintain, at its cost, and submit concurrently
with its execution of this Agreement, Commercial General Liability insurance against all
claims for injuries against persons or damages to property resulting from Contracting
Party's acts or omissions rising out of or related to Contracting Party's performance under
this Agreement. The insurance policy shall contain a severability of interest clause
providing that the coverage shall be primary for losses arising out of Contracting Party's
performance hereunder and neither City nor its insurers shall be required to contribute to
any such loss. An endorsement evidencing the foregoing and naming the City and its
officers and employees as additional insured (on the Commercial General Liability policy
only) must be submitted concurrently with the execution of this Agreement and approved
by City prior to commencement of the services hereunder.
Exhibit E
Page 1 of 6
Contracting Party shall carry automobile liability insurance of $1,000,000 per
accident against all claims for injuries against persons or damages to property arising out
of the use of any automobile by Contracting Party, its officers, any person directly or
indirectly employed by Contracting Party, any subcontractor or agent, or anyone for
whose acts any of them may be liable, arising directly or indirectly out of or related to
Contracting Party's performance under this Agreement. If Contracting Party or
Contracting Party's employees will use personal autos in any way on this project,
Contracting Party shall provide evidence of personal auto liability coverage for each such
person. The term "automobile" includes, but is not limited to, a land motor vehicle, trailer
or semi -trailer designed for travel on public roads. The automobile insurance policy shall
contain a severability of interest clause providing that coverage shall be primary for losses
arising out of Contracting Party's performance hereunder and neither City nor its insurers
shall be required to contribute to such loss.
Professional Liability or Errors and Omissions Insurance as appropriate shall
be written on a policy form coverage specifically designed to protect against acts, errors
or omissions of the Contracting Party and "Covered Professional Services" as designated
in the policy must specifically include work performed under this agreement. The policy
limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must
"pay on behalf of" the insured and must include a provision establishing the insurer's duty
to defend. The policy retroactive date shall be on or before the effective date of this
agreement.
Contracting Party shall carry Workers' Compensation Insurance in
accordance with State Worker's Compensation laws with employer's liability limits no less
than $1,000,000 per accident or disease.
Contracting Party shall procure and maintain Cyber Liability insurance with
limits of $1,000,000 per occurrence/loss which shall include the following coverage:
a. 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.
b. Network security liability arising from the unauthorized use of, access to,
or tampering with computer systems.
c. Liability arising from the failure of technology products (software) required
under the contract for Consultant to properly perform the services
intended.
d. 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.
Exhibit E
Page 2 of 6
e. Liability arising from the failure to render professional services.
If coverage is maintained on a claims -made basis, Contracting Party shall maintain such
coverage for an additional period of three (3) years following termination of the contract.
Contracting Party shall provide written notice to City within ten (10) working
days if: (1) any of the required insurance policies is terminated; (2) the limits of any of the
required polices are reduced; or (3) the deductible or self-insured retention is increased.
In the event any of said policies of insurance are cancelled, Contracting Party shall, prior
to the cancellation date, submit new evidence of insurance in conformance with this
Exhibit to the Contract Officer. The procuring of such insurance or the delivery of policies
or certificates evidencing the same shall not be construed as a limitation of Contracting
Party's obligation to indemnify City, its officers, employees, contractors, subcontractors,
or agents.
E.2 Remedies. In addition to any other remedies City may have if Contracting
Party fails to provide or maintain any insurance policies or policy endorsements to the
extent and within the time herein required, City may, at its sole option:
a. Obtain such insurance and deduct and retain the amount of the
premiums for such insurance from any sums due under this Agreement.
b. Order Contracting Party to stop work under this Agreement and/or
withhold any payment(s) which become due to Contracting Party hereunder until
Contracting Party demonstrates compliance with the requirements hereof.
c. Terminate this Agreement.
Exercise any of the above remedies, however, is an alternative to any other
remedies City may have. The above remedies are not the exclusive remedies for
Contracting Party's failure to maintain or secure appropriate policies or endorsements.
Nothing herein contained shall be construed as limiting in any way the extent to which
Contracting Party may be held responsible for payments of damages to persons or
property resulting from Contracting Party's or its subcontractors' performance of work
under this Agreement.
E.3 General Conditions Pertaining to Provisions of Insurance Coverage by
Contracting Party. Contracting Party and City agree to the following with respect to
insurance provided by Contracting Party:
1. Contracting Party agrees to have its insurer endorse the third party general
liability coverage required herein to include as additional insureds City, its officials,
employees, and agents, using standard ISO endorsement No. CG 2010 with an edition
prior to 1992. Contracting Party also agrees to require all contractors, and subcontractors
to do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Contracting Party, or Contracting Party's employees, or agents, from waiving the
Exhibit E
Page 3of6
right of subrogation prior to a loss. Contracting Party agrees to waive subrogation rights
against City regardless of the applicability of any insurance proceeds, and to require all
contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contracting Party and
available or applicable to this Agreement are intended to apply to the full extent of the
policies. Nothing contained in this Agreement or any other agreement relating to City or
its operations limits the application of such insurance coverage.
4. 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.
5. No liability policy shall contain any provision or definition that would serve
to eliminate so-called "third party action over" claims, including any exclusion for bodily
injury to an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification
and additional requirements by the City, as the need arises. Contracting Party shall not
make any reductions in scope of coverage (e.g. elimination of contractual liability or
reduction of discovery period) that may affect City's protection without City's prior written
consent.
7. Proof of compliance with these insurance requirements, consisting of
certificates of insurance evidencing all the coverages required and an additional insured
endorsement to Contracting Party's general liability policy, shall be delivered to City at or
prior to the execution of this Agreement. In the event such proof of any insurance is not
delivered as required, or in the event such insurance is canceled at any time and no
replacement coverage is provided, City has the right, but not the duty, to obtain any
insurance it deems necessary to protect its interests under this or any other agreement
and to pay the premium. Any premium so paid by City shall be charged to and promptly
paid by Contracting Party or deducted from sums due Contracting Party, at City option.
8. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Contracting Party or any subcontractor, is intended
to apply first and on a primary, non-contributing basis in relation to any other insurance
or self-insurance available to City.
9. Contracting Party agrees to ensure that subcontractors, and any other party
involved with the project that is brought onto or involved in the project by Contracting
Party, provide the same minimum insurance coverage required of Contracting Party.
Contracting Party 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. Contracting Party agrees that upon request, all agreements
with subcontractors and others engaged in the project will be submitted to City for review.
10. Contracting Party agrees not to self -insure or to use any self-insured
retentions or deductibles on any portion of the insurance required herein (with the
Exhibit E
Page 4of6
exception of professional liability coverage, if required) and further agrees that it will not
allow any contractor, subcontractor, Architect, Engineer or other entity or person in any
way involved in the performance of work on the project contemplated by this agreement
to self -insure its obligations to City. If Contracting Party's existing coverage includes a
deductible or self-insured retention, the deductible or self-insured retention must be
declared to the City. At that time the City shall review options with the Contracting Party,
which may include reduction or elimination of the deductible or self-insured retention,
substitution of other coverage, or other solutions.
11. The City reserves the right at any time during the term of this Agreement to
change the amounts and types of insurance required by giving the Contracting Party
ninety (90) days advance written notice of such change. If such change results in
substantial additional cost to the Contracting Party, the City will negotiate additional
compensation proportional to the increased benefit to City.
12. For purposes of applying insurance coverage only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any steps that
can be deemed to be in furtherance of or towards performance of this Agreement.
13. Contracting Party acknowledges and agrees that any actual or alleged
failure on the part of City to inform Contracting Party of non-compliance with any
insurance requirement in no way imposes any additional obligations on City nor does it
waive any rights hereunder in this or any other regard.
14. Contracting Party will renew the required coverage annually as long as City,
or its employees or agents face an exposure from operations of any type pursuant to this
agreement. This obligation applies whether the agreement is canceled or terminated for
any reason. Termination of this obligation is not effective until City executes a written
statement to that effect.
15. Contracting Party shall provide proof that policies of insurance required
herein expiring during the term of this Agreement have been renewed or replaced with
other policies providing at least the same coverage. Proof that such coverage has been
ordered shall be submitted prior to expiration. A coverage binder or letter from
Contracting Party's insurance agent to this effect is acceptable. A certificate of insurance
and an additional insured endorsement is required in these specifications applicable to
the renewing or new coverage must be provided to City within five (5) days of the
expiration of coverages.
16. The provisions of any workers' compensation or similar act will not limit the
obligations of Contracting Party under this agreement. Contracting Party expressly
agrees not to use any statutory immunity defenses under such laws with respect to City,
its employees, officials, and agents.
17. Requirements of specific coverage features, or limits contained in this
section are not intended as limitations on coverage, limits or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference to a
Exhibit E
Page 5of6
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 limiting or all-inclusive.
18. These insurance requirements are intended to be separate and distinct from
any other provision in this Agreement and are intended by the parties here to be
interpreted as such.
19. The requirements in this Exhibit supersede all other sections and provisions
of this Agreement to the extent that any other section or provision conflicts with or impairs
the provisions of this Exhibit.
20. Contracting Party agrees to be responsible for ensuring that no contract
used by any party involved in any way with the project reserves the right to charge City
or Contracting Party for the cost of additional insurance coverage required by this
agreement. Any such provisions are to be deleted with reference to City. It is not the
intent of City to reimburse any third party for the cost of complying with these
requirements. There shall be no recourse against City for payment of premiums or other
amounts with respect thereto.
21. Contracting Party agrees to provide immediate notice to City of any claim
or loss against Contracting Party arising out of the work performed under this agreement.
City assumes no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to involve City.
Exhibit E
Page 6of6
Exhibit F
Indemnification
F.1 Indemnity for the Benefit of City.
a. Indemnification for Professional Liability. When the law establishes a
professional standard of care for Contracting Party's Services, to the fullest extent
permitted by law, Contracting Party shall indemnify, protect, defend (with counsel
selected by City), and hold harmless City and any and all of its officials, employees, and
agents ("Indemnified Parties") from and against any and all claims, losses, liabilities of
every kind, nature, and description, damages, injury (including, without limitation, injury
to or death of an employee of Contracting Party or of any subcontractor), costs and
expenses of any kind, whether actual, alleged or threatened, including, without limitation,
incidental and consequential damages, court costs, attorneys' fees, litigation expenses,
and fees of expert consultants or expert witnesses incurred in connection therewith and
costs of investigation, to the extent same are caused in whole or in part by any negligent
or wrongful act, error or omission of Contracting Party, its officers, agents, employees or
subcontractors (or any entity or individual that Contracting Party shall bear the legal
liability thereof) in the performance of professional services under this agreement. With
respect to the design of public improvements, the Contracting Party shall not be liable for
any injuries or property damage resulting from the reuse of the design at a location other
than that specified in Exhibit A without the written consent of the Contracting Party.
b. Indemnification for Other Than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Contracting
Party shall indemnify, defend (with counsel selected by City), and hold harmless the
Indemnified Parties from and against any liability (including liability for claims, suits,
actions, arbitration proceedings, administrative proceedings, regulatory proceedings,
losses, expenses or costs of any kind, whether actual, alleged or threatened, including,
without limitation, incidental and consequential damages, court costs, attorneys' fees,
litigation expenses, and fees of expert consultants or expert witnesses) incurred in
connection therewith and costs of investigation, where the same arise out of, are a
consequence of, or are in any way attributable to, in whole or in part, the performance of
this Agreement by Contracting Party or by any individual or entity for which Contracting
Party is legally liable, including but not limited to officers, agents, employees, or
subcontractors of Contracting Party.
c. Indemnity Provisions for Contracts Related to Construction (Limitation on
Indemnity). Without affecting the rights of City under any provision of this agreement,
Contracting Party shall not be required to indemnify and hold harmless City for liability
attributable to the active negligence of City, provided such active negligence is
determined by agreement between the parties or by the findings of a court of competent
jurisdiction. In instances where City is shown to have been actively negligent and where
City's active negligence accounts for only a percentage of the liability involved, the
obligation of Contracting Party will be for that entire portion or percentage of liability not
attributable to the active negligence of City.
Exhibit F
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d. Indemnification Provision for Design Professionals.
1. Applicability of this Section F.1(d). Notwithstanding Section F.1(a)
hereinabove, the following indemnification provision shall apply to a Contracting Party
who constitutes a "design professional" as the term is defined in paragraph 3 below.
2. Scope of Indemnification. When the law establishes a professional
standard of care for Contracting Party's Services, to the fullest extent permitted by law,
Contracting Party shall indemnify and hold harmless City and any and all of its officials,
employees, and agents ("Indemnified Parties") from and against any and all losses,
liabilities of every kind, nature, and description, damages, injury (including, without
limitation, injury to or death of an employee of Contracting Party or of any subcontractor),
costs and expenses, including, without limitation, incidental and consequential damages,
court costs, reimbursement of attorneys' fees, litigation expenses, and fees of expert
consultants or expert witnesses incurred in connection therewith and costs of
investigation, to the extent same are caused by any negligent or wrongful act, error or
omission of Contracting Party, its officers, agents, employees or subcontractors (or any
entity or individual that Contracting Party shall bear the legal liability thereof) in the
performance of professional services under this agreement. With respect to the design
of public improvements, the Contracting Party shall not be liable for any injuries or
property damage resulting from the reuse of the design at a location other than that
specified in Exhibit A without the written consent of the Contracting Party.
3. Design Professional Defined. As used in this Section F.1(d), the
term "design professional" shall be limited to licensed architects, registered professional
engineers, licensed professional land surveyors and landscape architects, all as defined
under current law, and as may be amended from time to time by Civil Code § 2782.8.
F.2 Obligation to Secure Indemnification Provisions. Contracting Party agrees
to obtain executed indemnity agreements with provisions identical to those set forth
herein this Exhibit F, as applicable to the Contracting Party, from each and every
subcontractor or any other person or entity involved by, for, with or on behalf of
Contracting Party in the performance of this Agreement. In the event Contracting Party
fails to obtain such indemnity obligations from others as required herein, Contracting
Party agrees to be fully responsible according to the terms of this Exhibit. Failure of City
to monitor compliance with these requirements imposes no additional obligations on City
and will in no way act as a waiver of any rights hereunder. This obligation to indemnify
and defend City as set forth in this Agreement are binding on the successors, assigns or
heirs of Contracting Party and shall survive the termination of this Agreement.
Exhibit F
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