HomeMy WebLinkAbout24I075 - Snap-On Inc. DBA NexiqCONTRACT ABSTRACT
Contract/Amendment
Name of Contract:
Company Name:
Company Contact:
Email:
Summary of Services:
Contract Price:
Contract Term:
Public Integrity/ Business
Disclosure Forms:
Contract Administration
Lead Department:
Contract Administrator/ Ext:
Contract Approvals
Council/City Manager Approval Date:
Agreement Number:
Amendment Number:
Contract Compliance
Exhibits:
Insurance:
Routed By:
Bonds:
Business License:
Sole Source Co-Op
CoOp Agmt #: Sole Source
Documents: CoOp Name:
CoOp Pricing:
By: Submitted on:
Contract Abstract Form Rev 8.16.23
Authorized Signers:
Name, Email
(Corporations require 2 signatures)
DDC Software License Renewal
Snap-On Inc., dba Nexiq
Deborah Ford
Deborah.J.Ford@snapon.com
Detroit Diesel Diagnostic Link Software Renewal for Fleet Dept.
$2,062.50
1 year: 2/1/25 - 2/1/26
N/A
Rachel Suetterlin: Rachel.Suetterlin@snapon.com
Kurt Fulkerson: kurt.fulkerson@snapon.com
Information Technology
Larry Klingaman
N/A
24I075
N/A
Yes
N/A
N/A
Department
-
No
Cumulative Spend: $4,625.00
Business license waver in file
3/12/25 Rene Sanchez
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CONTRACT SERVICES AGREEMENT 24I075
DIESEL DIAGNOSTIC LINK SOFTWARE
This Contract Services Agreement (“Agreement”) is made and entered
into this 12th day of March, 2025, by and between the City of Palm Springs, a California charter
city and municipal corporation (“City”), and Snap-On Inc. dba Nexiq Technologies, a Wisonsin
Corporation, (“Contractor”). City and Contractor are individually referred to as “Party” and are
collectively referred to as the “Parties”.
RECITALS
A. City requires the services of a Diesel Diagnostic Link software provider, for
software license for City’s Fleet Department, (“Project”).
B. Contractor has submitted to City a proposal to provide Detroit Diesel Diagnostic
Link software, to City under the terms of this Agreement.
C. Contractor is qualified by virtue of its experience, training, education, reputation,
and expertise to provide these services and has agreed to provide such services as provided in
this Agreement.
D. City desires to retain Contractor to provide such contract services.
NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants,
and conditions contained herein, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. SERVICES OF CONTRACTOR
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, Contractor agrees to perform the contract services set forth in the Scope of Services
described in Exhibit “A” (the “Services” or “Work”), which is attached and incorporated herein by
this reference. As a material inducement to the City entering into this Agreement, Contractor
represents and warrants that Contractor is a provider of first class work and contract services and
that Contractor is experienced in performing the Work contemplated and, in light of such status
and experience, Contractor covenants that it shall perform the the Work in a competent,
professional, and satisfactory manner consistent with the level of care and skill ordinarily
exercised by high quality, experienced, and well qualified members of the profession currently
practicing under similar conditions. In the event of any inconsistency between the terms contained
in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in
this Agreement shall govern.
1.2 Contract Documents. The Agreement between the Parties shall consist of the
following: (1) this Agreement; (2) the Scope of Services; (3) the City’s Request for Proposals; and,
(4) the Contractor’s signed, original proposal submitted to the City (“Contractor’s Proposal”),
(collectively referred to as the “Contract Documents”). The City’s Request for Proposals and the
Contractor’s Schedule of Compensation, which is attached as Exhibits “B” is incorporated herein
by this reference and are made a part of this Agreement. The Scope of Services shall include
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the Contractor’s Proposal. All provisions of the Scope of Services, the City’s Request for
Proposals and the Contractor’s Proposal shall be binding on the Parties. Should any conflict or
inconsistency exist in the Contract Documents, the conflict or inconsistency shall be resolved
by applying the provisions in the highest priority document, which shall be determined in the
following order of priority: (1st) the provisions of the Scope of Services (Exhibit “A”); (2nd) the
provisions of the City’s Request for Proposal; (3rd) the terms of this Agreement; and, (4th) the
provisions of the Contractor’s Proposal.
1.3 Compliance with Law. Contractor warrants that all Services rendered shall be
performed in accordance with all applicable federal, state, and local laws, statutes, ordinances
lawful orders, rules, and regulations. Contractor shall be liable for all violations of such laws and
regulations in connection with the Services and this Agreement.
1.4 Licenses, Permits, Fees, and Assessments. Contractor represents and
warrants to City that it has obtained all licenses, permits, qualifications, and approvals of whatever
nature that are legally required to practice its profession and perform the Work and Services
required by this Agreement. Contractor represents and warrants to City that Contractor shall, at
its sole cost and expense, keep in effect at all times during the term of this Agreement, any license,
permit, qualification, or approval that is legally required for Contractor to perform the Work and
Services under this Agreement.
1.5 Familiarity with Work. By executing this Agreement, Contractor warrants that
Contractor (a) has thoroughly investigated and considered the Scope of Services to be performed,
(b) has carefully considered how the Services should be performed, and (c) fully understands the
facilities, difficulties, and restrictions attending performance of the Services under this Agreement.
2. COMPENSATION
2.1 Maximum Contract Amount. For the Services rendered under this Agreement,
Contractor shall be compensated by City in accordance with the Schedule of Compensation,
which is attached as Exhibit “B” and incorporated in this Agreement by reference. Compensation
shall not exceed the maximum contract amount of $2,062.50 ("Maximum Contract Amount"),
except as may be provided under Section 2.3. The method of compensation shall be as set forth
in Exhibit “B.” The method of compensation shall be as set forth in Exhibit “B.” Compensation
for necessary expenditures must be approved in advance by the Contract Officer designated
under Section 4.2.
2.2. Method of Payment. Unless another method of payment is specified in the
Schedule of Compensation (Exhibit “B”), in any month in which Contractor wishes to receive
payment, Contractor shall submit to the City an invoice for services rendered prior to the date of
the invoice. The invoice shall be in a form approved by the City’s Finance Director and must be
submitted no later than the tenth (10) working day of such month. Such requests shall be based
upon the amount and value of the services performed by Contractor and accompanied by such
reporting data including an itemized breakdown of all costs incurred and tasks performed during
the period covered by the invoice, as may be required by the City. City shall use reasonable
efforts to make payments to Contractor within forty-five (45) days after receipt of the invoice or as
soon as is reasonably practical. There shall be a maximum of one payment per month.
2.3 Changes in Scope. In the event any change or changes in the Scope of Services
is requested by City, Parties shall execute a written amendment to this Agreement, specifying all
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proposed amendments, including, but not limited to, any additional fees. An amendment may be
entered into:
A. To provide for revisions or modifications to documents, work product, or
work, when required by the enactment or revision of any subsequent law; or
B. To provide for additional services not included in this Agreement or not
customarily furnished in accordance with generally accepted practice in Contractor’s profession.
2.4 Appropriations. This Agreement is subject to and contingent upon funds being
appropriated by the City Council for each fiscal year covered by the Agreement. If such
appropriations are not made, this Agreement shall automatically terminate without penalty to the
City.
3. SCHEDULE OF PERFORMANCE
3.1 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement,
this Agreement shall continue in full force and effect for a period of One year, commencing
February 01, 2025, and ending on January 31, 2026, unless extended by mutual written
agreement of the Parties.
3.2 Termination Prior to Expiration of Term. The City may terminate this
Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor.
Where termination is due to the fault of Contractor and constitutes an immediate danger to health,
safety, and general welfare, the period of notice shall be such shorter time as may be determined
by the City. Upon receipt of the notice of termination, Contractor shall immediately cease all
Services except such as may be specifically approved by the Contract Officer. Contractor shall
be entitled to compensation for all Services rendered prior to receipt of the notice of termination
and for any Services authorized by the Contract Officer after such notice. City shall not be liable
for any costs other than the charges or portions thereof which are specified herein. Contractor
shall not be entitled to payment for unperformed Services, and shall not be entitled to damages
or compensation for termination of Work. Contractor may not terminate this Agreement except for
cause, upon thirty (30) days written notice to City.
3.3 Schedule of Performance.
INTENTIONALLY OMMITTED
3.4 Force Majeure. The time for performance of Services to be rendered under this
Agreement may be extended because of any delays due to a Force Majeure Event, if Contractor
notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure
Event. A Force Majeure Event shall mean an event that materially affects the Contractor’s
performance and is one or more of the following: (1) Acts of God or other natural disasters
occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of
governmental authorities (including, without limitation, unreasonable and unforeseeable delay in
the issuance of permits or approvals by governmental authorities that are required for the Work);
and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of
governmental authorities,” includes ordinances, emergency proclamations and orders, rules to
protect the public health, welfare and safety, and other actions of the City in its capacity as a
municipal authority. After Contractor notification, the Contract Officer shall investigate the facts
and the extent of any necessary delay, and extend the time for performing the Services for the
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period of the enforced delay when and if, in the Contract Officer’s judgment, such delay is justified.
The Contract Officer’s determination shall be final and conclusive upon the Parties to this
Agreement. The Contractor will not receive an adjustment to the contract price or any other
compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in
accordance with the termination provisions of this Agreement.
4. COORDINATION OF WORK
4.1 Representative of Contractor. The following principal of Contractor is
designated as being the principal and representative of Contractor authorized to act in its behalf
and make all decisions with respect to the Services to be performed under this Agreement:
Raichel Suetterlin, Supervisor Accounting is expressly understood that the experience,
knowledge, education, capability, expertise, and reputation of the foregoing principal is a
substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal
shall be responsible during the term of this Agreement for directing all activities of Contractor and
devoting sufficient time to personally supervise the Services performed hereunder. The foregoing
principal may not be changed by Contractor without prior written approval of the Contract Officer.
4.2 Contract Officer. The Contract Officer shall be the City Manager or his/her
designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer
fully informed of the progress of the performance of the Services. Contractor shall refer any
decisions that must be made by City to the Contract Officer. Unless otherwise specified, any
approval of City shall mean the approval of the Contract Officer.
4.3 Prohibition Against Subcontracting or Assignments. The experience,
knowledge, education, capability, and reputation of Contractor, its principals and employees, were
a substantial inducement for City to enter into this Agreement. Contractor shall not contract with
any other individual or entity to perform any Services required under this Agreement without the
City's express written approval. In addition, neither this Agreement nor any interest may be
assigned or transferred, voluntarily or by operation of law, without the prior written approval of
City. Subcontracts, if any, shall contain a provisions making them subject to all provisions
stipulated in this Agreement including without limitation the insurance and indemnification
requirements. If Contractor is permitted to subcontract any part of this Agreement by City,
Contractor shall be responsible to City for the acts and omissions of its subcontractor(s) in the
same manner as it is for persons directly employed. Nothing contained in this Agreement shall
create any contractual relationships between any subcontractor and City. All persons engaged
in the Work will be considered employees of Contractor. City will deal directly with and will make
all payments to Contractor. In addition, neither this Agreement nor any interest in this Agreement
may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by
operation of law, whether for the benefit of creditors or otherwise, without the prior written consent
of City. In the event of any such unapproved transfer, including any bankruptcy proceeding, this
Agreement shall be void. No approved transfer shall release Contractor or any surety of
Contractor from any liability under this Agreement without the express written consent of City.
4.4 Independent Contractor. The legal relationship between the Parties is that of an
independent contractor, and nothing shall be deemed to make Contractor a City employee.
A. During the performance of this Agreement, Contractor and its officers,
employees, and agents shall act in an independent capacity and shall not act or represent
themselves as City officers or employees. The personnel performing the Services under this
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Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and
control. Neither City nor any of its officers, employees, or agents shall have control over the
conduct of Contractor or any of its officers, employees, or agents, except as set forth in this
Agreement. Contractor, its officers, employees, or agents shall not maintain an office or any other
type of fixed business location at City’s offices. City shall have no voice in the selection,
discharge, supervision, or control of Contractor’s employees, servants, representatives, or
agents, or in fixing their number, compensation, or hours of service. Contractor shall pay all
wages, salaries, and other amounts due its employees in connection with this Agreement and
shall be responsible for all reports and obligations respecting them, including but not limited to
social security income tax withholding, unemployment compensation, workers’ compensation,
and other similar matters. City shall not in any way or for any purpose be deemed to be a partner
of Contractor in its business or otherwise a joint venturer or a member of any joint enterprise with
Contractor.
B. Contractor shall not have any authority to bind City in any manner. This
includes the power to incur any debt, obligation, or liability against City.
C. No City benefits shall be available to Contractor, its officers, employees, or
agents in connection with any performance under this Agreement. Except for contract fees paid
to Contractor as provided for in this Agreement, City shall not pay salaries, wages, or other
compensation to Contractor for the performance of Services under this Agreement. City shall not
be liable for compensation or indemnification to Contractor, its officers, employees, or agents, for
injury or sickness arising out of performing Services. If for any reason any court or governmental
agency determines that the City has financial obligations, other than under Section 2 and
Subsection 1.8 in this Agreement, of any nature relating to salary, taxes, or benefits of
Contractor’s officers, employees, servants, representatives, subcontractors, or agents, Contractor
shall indemnify City for all such financial obligations.
4.5 California Labor Code Requirements.
A. Contractor is aware of the requirements of California Labor Code Sections
1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the
performance of other requirements on certain “public works” and “maintenance” projects
(“Prevailing Wage Laws”). 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 the total
compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration,
demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage
Laws. Contractor shall defend, indemnify and hold the City, its officials, officers, employees and
agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any
failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon
the Contractor and all subcontractors to comply with all California Labor Code provisions, which
include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775),
employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code
Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment
of contractors and subcontractors (Labor Code Section 1777.1).
B. If the Services are being performed as part of an applicable “public works”
or “maintenance” project and if the total compensation is $15,000 or more for maintenance or
$25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to
Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such
Services must be registered with the Department of Industrial Relations. Contractor shall maintain
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registration for the duration of the Project and require the same of any subcontractors, as
applicable. This Agreement may also be subject to compliance monitoring and enforcement by
the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with
all applicable registration and labor compliance requirements.
5. INSURANCE
5.1 Types of Insurance. Contractor shall procure and maintain, at its sole cost and
expense, the insurance described herein. The insurance shall be for the duration of this
Agreement and includes any extensions, unless otherwise specified in this Agreement. The
insurance shall be procured in a form and content satisfactory to City. The insurance shall apply
against claims which may arise from the Contractor's performance of Work under this Agreement,
including Contractor's agents, representatives, or employees. In the event the City Manager
determines that the Work or Services to be performed under this Agreement creates an increased
or decreased risk of loss to the City, the Contractor agrees that the minimum limits of the
insurance policies may be changed accordingly upon receipt of written notice from the City
Manager or his designee. Contractor shall immediately substitute any insurer whose A.M. Best
rating drops below the levels specified in this Agreement. Except as otherwise authorized below
for contract liability (errors and omissions) insurance, all insurance provided under this Agreement
shall be on an occurrence basis. The minimum amount of insurance required shall be as follows:
A. Errors and Omissions Insurance. Contractor shall obtain and maintain in
full force and effect throughout the term of this Agreement, standard industry form contract liability
(errors and omissions) insurance coverage in an amount of not less than one million dollars
($1,000,000.00) per occurrence and two-million dollars ($2,000,000.00) annual aggregate, in
accordance with the provisions of this section.
(1) Contractor shall either: (a) certify in writing to the City that Contractor
is unaware of any contract liability claims made against Contractor and is unaware of any facts
which may lead to such a claim against Contractor; or (b) if Contractor does not provide the
certification under (a), Contractor shall procure from the contract liability insurer an endorsement
providing that the required limits of the policy shall apply separately to claims arising from errors
and omissions in the rendition of services under this Agreement.
(2) If the policy of insurance is written on a “claims made” basis, the policy
shall be continued in full force and effect at all times during the term of this Agreement, and for a
period of three (3) years from the date of the completion of the Services provided hereunder. In
the event of termination of the policy during this period, Contractor shall obtain continuing
insurance coverage for the prior acts or omissions of Contractor during the course of performing
Services under the terms of this Agreement. The coverage shall be evidenced by either a new
policy evidencing no gap in coverage, or by obtaining separate extended “tail” coverage with the
present or new carrier or other insurance arrangements providing for complete coverage, either
of which shall be subject to the written approval by the City Manager.
(3) In the event the policy of insurance is written on an “occurrence” basis,
the policy shall be continued in full force and effect during the term of this Agreement, or until
completion of the Services provided for in this Agreement, whichever is later. In the event of
termination of the policy during this period, new coverage shall immediately be obtained to ensure
coverage during the entire course of performing the Services under the terms of this Agreement.
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B. Workers’ Compensation Insurance. Contractor shall obtain and maintain,
in full force and effect throughout the term of this Agreement, workers’ compensation insurance
in at least the minimum statutory amounts, and in compliance with all other statutory
requirements, as required by the State of California. Contractor agrees to waive and obtain
endorsements from its workers’ compensation insurer waiving subrogation rights under its
workers’ compensation insurance policy against the City and to require each of its subcontractors,
if any, to do likewise under their workers’ compensation insurance policies. If Contractor has no
employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation
Insurance Requirement form.
C. Commercial General Liability Insurance. Contractor shall obtain and
maintain, in full force and effect throughout the term of this Agreement, a policy of commercial
general liability insurance written on a per occurrence basis with a combined single limit of at least
one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for
bodily injury and property damage including coverages for contractual liability, personal injury,
independent contractors, broad form property damage, products and completed operations.
D. Business Automobile Insurance. Contractor shall obtain and maintain, in
full force and effect throughout the term of this Agreement, a policy of business automobile liability
insurance written on a per occurrence basis with a single limit liability in the amount of one million
dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for
owned, non-owned, leased, and hired cars.
E. Employer Liability Insurance. Contractor shall obtain and maintain, in full
force and effect throughout the term of this Agreement, a policy of employer liability insurance
written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00)
for bodily injury or disease.
5.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured
retentions must be declared to and approved by the City Manager or his/her designee prior to
commencing any work or services under this Agreement. Contractor guarantees payment of all
deductibles and self-insured retentions. City reserves the right to reject deductibles or self-
insured retentions in excess of $10,000, and the City Manager or his/her designee may require
evidence of pending claims and claims history as well as evidence of Contractor’s ability to pay
claims for all deductible amounts and self-insured retentions proposed in excess of $10,000.
5.3 Other Insurance Requirements. The following provisions shall apply to the
insurance policies required of Contractor under this Agreement:
A. For any claims related to this Agreement, Contractor’s coverage shall be
primary insurance with respect to the City and its officers, council members, officials, employees,
agents, and volunteers. Any insurance or self-insurance maintained by the City and its officers,
council members, officials, employees, agents, and volunteers shall be in excess of Contractor’s
insurance and shall not contribute with it.
B. Any failure to comply with reporting or other provisions of the policies,
including breaches of warranties, shall not affect coverage provided to City and its officers, council
members, officials, employees, agents, and volunteers.
C. All insurance coverage and limits provided by Contractor and available or
applicable to this Agreement are intended to apply to each insured, including additional insureds,
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against whom a claim is made or suit is brought to the full extent of the policies. Nothing contained
in this Agreement or any other agreement relating to the City or its operations shall limit the
application of such insurance coverage.
D. No required insurance coverages may include any limiting endorsement
which substantially impairs the coverages set forth in this Agreement (e.g., elimination of
contractual liability or reduction of discovery period), unless the endorsement has first been
submitted to the City Manager and approved in writing.
E. Contractor agrees to require its insurer to modify insurance endorsements
to delete any exculpatory wording stating that failure of the insurer to mail written notice of
cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being
required) to comply with the requirements of the endorsements. Certificates of insurance will not
be accepted in lieu of required endorsements, and submittal of certificates without required
endorsements may delay commencement of the Project. It is Contractor’s obligation to ensure
timely compliance with all insurance submittal requirements as provided in this Agreement.
F. Contractor agrees to ensure that subcontractors, and any other parties
involved with the Project who are brought onto or involved in the Project by Contractor, provide
the same minimum insurance coverage required of Contractor. Contractor 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. Contractor agrees that upon request,
all agreements with subcontractors and others engaged in the Project will be submitted to the City
for review.
G. Contractor acknowledges and agrees that any actual or alleged failure on
the part of the City to inform Contractor of non-compliance with any insurance requirement in no
way imposes any additional obligations on the City nor does it waive any rights in this or any other
regard.
H. Contractor shall provide proof that policies of insurance required in this
Agreement, 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. Endorsements as required in this Agreement applicable to the
renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration
of the lapsing coverage.
I. Requirements of specific insurance coverage features or limits contained
in this section are not intended as limitations on coverage, limits, or other requirements, or as a
waiver of any coverage normally provided by any given policy. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a given issue, and is not
intended by any party or insured to be limiting or all-inclusive.
J. The requirements in this section supersede all other sections and
provisions of this Agreement to the extent that any other section or provision conflicts with or
impair the provisions of this section.
K. Contractor agrees to provide immediate notice to City of any claim or loss
against Contractor arising out of the Work performed under this Agreement and for any other
claim or loss which may reduce the insurance available to pay claims arising out of this
Agreement. City assumes no obligation or liability by such notice, but has the right (but not the
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duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to
reduce or dilute insurance available for payment of potential claims.
L. Contractor agrees that the provisions of this section shall not be construed
as limiting in any way the extent to which the Contractor may be held responsible for the payment
of damages resulting from the Contractor’s activities or the activities of any person or person for
which the Contractor is otherwise responsible.
5.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided
by authorized insurers in good standing with the State of California. Coverage shall be provided
by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII,
or better, unless such requirements are waived in writing by the City Manager or his designee
due to unique circumstances.
5.5 Verification of Coverage. Contractor shall furnish City with both certificates of
insurance and endorsements, including additional insured endorsements, affecting all of the
coverages required by this Agreement. The certificates and endorsements are to be signed by a
person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be
received and approved by the City before work commences. City reserves the right to require
Contractor’s insurers to provide complete, certified copies of all required insurance policies at any
time. Additional insured endorsements are not required for Errors and Omissions and Workers’
Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or
Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of
Liability Insurance Coverage with an approved Additional Insured Endorsement with the following
endorsements stated on the certificate:
A. "The City of Palm Springs, its officials, employees, and agents are named as an
additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work
performed with the City" may be included in this statement).
B. "This insurance is primary and non-contributory over any insurance or self-
insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any
and all work performed with the City" may be included in this statement).
C. "Should any of the above described policies be canceled before the expiration date
thereof, the issuing company will mail 30 days written notice to the Certificate Holder named."
Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no
obligation or liability of any kind upon the company, its agents or representative" is not acceptable
and must be crossed out.
D. Both the Workers’ Compensation and Employers' Liability policies shall contain the
insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents,
and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the
certificate holder on the policies. All certificates of insurance and endorsements are to be received
and approved by the City before work commences. All certificates of insurance must be
authorized by a person with authority to bind coverage, whether that is the authorized
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agent/broker or insurance underwriter. Failure to obtain the required documents prior to the
commencement of work shall not waive the Contractor’s obligation to provide them.
6. INDEMNIFICATION
6.1 Indemnification and Reimbursement. To the fullest extent permitted by law,
Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold
harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the
“Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands,
losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties,
and expenses including legal costs and attorney fees (collectively “Claims”), including but not
limited to Claims arising from injuries to or death of persons (Contractor’s employees included),
for damage to property, including property owned by City, for any violation of any federal, state,
or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts,
errors or omissions, or willful misconduct committed by Contractor, its officers, employees,
representatives, and agents, that arise out of or relate to Contractor’s performance of Services or
this Agreement. This indemnification clause excludes Claims arising from the sole negligence or
willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance
requirements and limits set forth in this Agreement be construed to limit Contractor’s
indemnification obligation or other liability under this Agreement. Contractor’s indemnification
obligation shall survive the expiration or earlier termination of this Agreement until all actions
against the Indemnified Parties for such matters indemnified are fully and finally barred by the
applicable statute of limitations or, if an action is timely filed, until such action is final.
6.2 Design Contract Services Indemnification and Reimbursement.
If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of
Contractor’s performance as a “design professional” (as that term is defined under Civil Code
section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully
incorporated herein, Contractor’s indemnification obligation shall be limited to the extent which
the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct
of the Contractor in the performance of the Services or this Agreement, and, upon Contractor
obtaining a final adjudication by a court of competent jurisdiction, Contractor’s liability for such
claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of
fault.
7. REPORTS AND RECORDS
7.1 Accounting Records. Contractor shall keep complete, accurate, and detailed
accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement.
Contractor shall keep such books and records as shall be necessary to properly perform the
Services required by this Agreement and to enable the Contract Officer to evaluate the
performance of such Services. The Contract Officer shall have full and free access to such books
and records at all reasonable times, including the right to inspect, copy, audit, and make records
and transcripts from such records.
7.2 Reports. Contractor shall periodically prepare and submit to the Contract Officer
such reports concerning the performance of the Services required by this Agreement, or as the
Contract Officer shall require. Contractor acknowledges that the City is greatly concerned about
the cost of the Work to be performed under this Agreement. For this reason, Contractor agrees
that Contractor shall promptly notify the Contract Officer the estimated increased or decreased
cost if Contractor becomes aware of any facts, circumstances, techniques, or events that may or
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will materially increase or decrease the cost of the Services. If Contractor is providing design
services, Contractor shall promptly notify the Contract Officer the estimated increased or
decreased cost for the project being designed if Contractor becomes aware of any facts,
circumstances, techniques, or events that may or will materially increase or decrease the cost of
the design services.
7.3 Ownership of Documents. All drawings, specifications, reports, records,
documents, memoranda, correspondence, computations, and other materials prepared by
Contractor, its employees, subcontractors, and agents in the performance of this Agreement shall
be the property of City and shall be promptly delivered to City upon request of the Contract Officer
or upon the termination of this Agreement. Contractor shall have no claim for further employment
or additional compensation as a result of the exercise by City of its full rights of ownership of the
documents and materials. Any use of such completed documents for other projects and/or use
of incomplete documents without specific written authorization by the Contractor will be at the
City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for
all resulting damages. Contractor may retain copies of such documents for their own use.
Contractor shall have an unrestricted right to use the concepts embodied tin this Agreement.
Contractor shall ensure that all its subcontractors shall provide for assignment to City of any
documents or materials prepared by them. In the event Contractor fails to secure such
assignment, Contractor shall indemnify City for all resulting damages.
7.4 Release of Documents. All drawings, specifications, reports, records,
documents, and other materials prepared by Contractor in the performance of Services under this
Agreement shall not be released publicly without the prior written approval of the Contract Officer.
All information gained by Contractor in the performance of this Agreement shall be considered
confidential and shall not be released by Contractor without City’s prior written authorization.
7.5 Audit and Inspection of Records. After receipt of reasonable notice and during
the regular business hours of City, Contractor shall provide City, or other agents of City, such
access to Contractor’s books, records, payroll documents, and facilities as City deems necessary
to examine, copy, audit, and inspect all accounting books, records, work data, documents, and
activities directly related to Contractor’s performance under this Agreement. Contractor shall
maintain such books, records, data, and documents in accordance with generally accepted
accounting principles and shall clearly identify and make such items readily accessible to such
parties during the term of this Agreement and for a period of three (3) years from the date of final
payment by City hereunder.
8. ENFORCEMENT OF AGREEMENT
8.1 California Law and Venue. This Agreement shall be construed and interpreted
both as to validity and as 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 Contractor covenants and agrees
to submit to the personal jurisdiction of such court in the event of such action.
8.2 Interpretation. This Agreement shall be construed as a whole according to its fair
language and common meaning to achieve the objectives and purposes of the Parties. The terms
of this Agreement are contractual and the result of negotiation between the Parties. Accordingly,
any rule of construction of contracts (including, without limitation, California Civil Code Section
1654) that ambiguities are to be construed against the drafting party, shall not be employed in the
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interpretation of this Agreement. The caption headings of the various sections and paragraphs
of this Agreement are for convenience and identification purposes only and shall not be deemed
to limit, expand, or define the contents of the respective sections or paragraphs.
8.3 Default of Contractor. Contractor’s failure to comply with any provision of this
Agreement shall constitute a default.
A. If the City Manager, or his designee, determines that Contractor is in default
in the performance of any of the terms or conditions of this Agreement, he/she shall notify
Contractor in writing of such default. Contractor shall have ten (10) days, or such longer period
as City may designate, to cure the default by rendering satisfactory performance. In the event
Contractor fails to cure its default within such period of time, City shall have the right,
notwithstanding any other provision of this Agreement, to terminate this Agreement without further
notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under
this Agreement. Contractor shall be liable for all reasonable costs incurred by City as a result of
such default. Compliance with the provisions of this section shall not constitute a waiver of any
City right to take legal action in the event that the dispute is not cured, provided that nothing shall
limit City’s right to terminate this Agreement without cause under Section 3.2.
B. If termination is due to the failure of the Contractor to fulfill its obligations
under this Agreement, City may, after compliance with the provisions of Section 8.3(A), take over
the work and prosecute the same to completion by contract or otherwise. The Contractor shall
be liable to the extent that the total cost for completion of the Services required hereunder exceeds
the Maximum Contract Amount (provided that the City shall use reasonable efforts to mitigate
such damages). The City may withhold any payments to the Contractor for the purpose of set-off
or partial payment of the amounts owed the City as previously stated. The withholding or failure
to withhold payments to Contractor shall not limit Contractor’s liability for completion of the
Services as provided in this Agreement.
8.4 Waiver. No waiver of any provision of this Agreement shall be effective unless in
writing and signed by a duly authorized representative of the Party against whom enforcement of
a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition,
or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or
other default or breach, nor shall failure by the Parties to require exact, full, and complete
compliance with any of the covenants, conditions, or terms contained in this Agreement be
construed as changing the terms of this Agreement in any manner or preventing the Parties from
enforcing the full provisions.
8.5 Rights and Remedies 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, in law or in equity, to cure, correct, remedy or 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 Attorney Fees. In the event any dispute between the Parties with respect to this
Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be entitled,
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in addition to such other relief as may be granted, to recover from the non-prevailing Party all
reasonable costs and expenses. These include but are not limited to reasonable attorney fees,
expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in
collection of any judgment entered in such proceeding.
9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
9.1 Non-liability of City Officers and Employees. No officer or employee of the City
shall be personally liable to the Contractor, or any successor-in-interest, in the event of any default
or breach by the City or for any amount which may become due to the Contractor or to its
successor, or for breach of any obligation of the terms of this Agreement.
9.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the
City has or shall have any direct or indirect financial interest in this Agreement nor shall Contractor
enter into any agreement of any kind with any such officer or employee during the term of this
Agreement and for one (1) year thereafter. Contractor warrants that Contractor has not paid or
given, and will not pay or give, any third party any money or other consideration in exchange for
obtaining this Agreement.
9.3 Covenant Against Discrimination. In connection with its performance under this
Agreement, Contractor shall not discriminate against any employee or applicant for employment
because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national
origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity),
sexual orientation, gender identity, gender expression, physical or mental disability, or medical
condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and
that employees are treated during their employment, without regard to any prohibited basis. As a
condition precedent to City’s lawful capacity to enter this Agreement, and in executing this
Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any
discrimination arising from or related to any prohibited basis in any Contractor activity, including
but not limited to the following: employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship; and further, that Contractor is in full compliance
with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation
the provision of benefits, relating to non-discrimination in city contracting.
10. MISCELLANEOUS PROVISIONS
INTENTIONALLY OMMITTED
10.1 Patent and Copyright Infringement. To the fullest extent permissible under law,
and in lieu of any other warranty by City or Contractor against patent or copyright infringement,
statutory or otherwise:
A. It is agreed that Contractor shall defend at its expense any claim or suit
against City on account of any allegation that any item furnished under this Agreement, or the
normal use or sale arising out of the performance of this Agreement, infringes upon any presently
existing U.S. letters patent or copyright and Contractor shall pay all costs and damages finally
awarded in any such suit or claim, provided that Contractor is promptly notified in writing of the
suit or claim and given authority, information and assistance at Contractor’s expense for the
defense of same, and provided such suit or claim arises out of, pertains to, or is related to the
negligence, recklessness or willful misconduct of Contractor. However, Contractor will not
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indemnify City if the suit or claim results from: (1) City's alteration of a deliverable, such that City’s
alteration of such deliverable created the infringement upon any presently existing U.S. letters
patent or copyright; or (2) the use of a deliverable in combination with other material not provided
by Contractor when it is such use in combination which infringes upon an existing U.S. letters
patent or copyright.
B. Contractor shall have sole control of the defense of any such claim or suit
and all negotiations for settlement in the event City fails to cooperate in the defense of any suit or
claim, provided, however, that such defense shall be at Contractor’s expense. Contractor shall
not be obligated to indemnify City under any settlement that is made without Contractor’s consent,
which shall not be unreasonably withheld. If the use or sale of such item is enjoined as a result
of the suit or claim, Contractor, at no expense to City, shall obtain for City the right to use and sell
the item, or shall substitute an equivalent item acceptable to City and extend this patent and
copyright indemnity thereto.
10.2 Notice. Any notice, demand, request, consent, approval, or communication that
either party desires, or is required to give to the other party or any other person shall be in writing.
All notices shall be personally delivered, sent by pre-paid First Class U.S. Mail, registered or
certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with
attached evidence of completed transmission. All notices shall be deemed received upon the
earlier of (i) the date of delivery to the address of the person to receive such notice if delivered
personally or by messenger or overnight courier; (ii) five (5) business days after the date of posting
by the United States Post Office if by mail; or (iii) when sent if given by facsimile. Any notice,
request, demand, direction, or other communication sent by facsimile must be confirmed within
forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such
as e-mails, text messages, and instant messages are not acceptable manners of notice required
hereunder. Notices or other communications shall be addressed as follows:
To City: City of Palm Springs
Attention: City Manager & City Clerk
3200 E. Tahquitz Canyon Way
Palm springs, California 92262
Telephone: (760) 323-8204
Facsimile: (760) 323-8332
To Contractor: Snap-On Incorporated / Nexiq
Attn: Rachel Sutterlin
2950 Waterview Drive
Rochester Hills, MI 48309
10.3 Integrated Agreement. This Agreement constitutes the entire understanding
between the Parties and supersedes and cancels all prior negotiations, arrangements,
agreements, representations, and understandings, if any, made by or among the Parties with
respect to the subject matter in this Agreement.
10.4 Amendment. No amendments or other modifications of this Agreement shall be
binding unless through written agreement signed by all Parties.
10.5 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law. If any provision of
this Agreement shall be determined to be invalid by a final judgment or decree of a court of
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competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the reminder of that provision, or the remaining provisions of this
Agreement 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.
10.5 Successors in Interest. This Agreement shall be binding upon and inure to the
benefit of the Parties’ successors and assignees.
10.6 Third Party Beneficiary. Except as may be expressly provided for in this
Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement
be construed as conferring, any rights, including, without limitation, any rights as a third-party
beneficiary or otherwise, upon any entity or person not a party to this Agreement.
10.7 Recitals. The above-referenced Recitals are hereby incorporated into the
Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees
that such Party is bound, for purposes of this Agreement, by the same.
10.8. Corporate Authority. Each of the undersigned represents and warrants that (i)
the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he
or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which
he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing
is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement
does not violate any provision of any other Agreement to which the Party for which he or she is
signing is bound.
10.9 Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original.
10.10 Compliance with Economic Sanctions in Response to Russia's Actions in
Ukraine. When funding for the services is provided, in whole or in part, by an agency controlled
of the State of California, Consultant shall fully and adequately comply with California Executive
Order N-6-22 (“Russian Sanctions Program”). As part of this compliance process, Consultant
shall also certify compliance with the Russian Sanctions Program by completing the form located
in Exhibit “C” (Russian Sanctions Certification), attached hereto and incorporated herein by
reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions
Program and certify compliance pursuant to this Section.
[SIGNATURES ON NEXT PAGE]
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SIGNATURE PAGE TO CONTRACT SERVICES AGREEMENT BY AND BETWEEN THE CITY
OF PALM SPRINGS AND SNAP-ON INC. DBA NEXIQ TECHNOLOGIES
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated
below.
CONTRACTOR:
By: ____________________________ By: ________________________________
Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No.
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________
City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $150,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
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EXHIBIT “A”
SCOPE OF SERVICES
Contractor will provide Detroit Diesel DiagnosticLink License per proposal attached
under Exhibit B for the term 2/01/25 – 2/01/26 (one year).
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EXHIBIT “B”
SCHEDULE OF COMPENSATION
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EXHIBIT “C”
EXECUTIVE ORDER N-6-22 CERTIFICATION
Executive Order N-6-22 issued by Governor Gavin Newsom on March 4, 2022, directs all
agencies and departments that are subject to the Governor’s authority to (a) terminate any
contracts with any individuals or entities that are determined to be a target of economic sanctions
against Russia and Russian entities and individuals; and (b) refrain from entering into any new
contracts with such individuals or entities while the aforementioned sanctions are in effect.
Executive Order N-6-22 also requires that any contractor that: (1) currently has a contract with
the City of Palm Springs funded through grant funds provided by the State of California; and/or
(2) submits a bid or proposal or otherwise proposes to or enter into or renew a contract with the
City of Palm Springs with State of California grant funds, certify that the person is not the target
of any economic sanctions against Russia and Russian entities and individuals.
The contractor hereby certifies, SUBJECT TO PENALTY FOR PERJURY, that a) the contractor
is not a target of any economic sanctions against Russian and Russian entities and individuals
as discussed in Executive Order N-6-22 and b) the person signing below is duly authorized to
legally bind the Contractor. This certification is made under the laws of the State of California.
Signature:
Printed Name:
Title:
Firm Name:
Date:
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Rachel Suetterlin
Accounting Manager
Snap-on Incorporated dba Snap-on Business Solutions