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HomeMy WebLinkAbout4.7 First Amendment to the Agreement with European Mobile WerksCELEBRATING STAFF REPORT CITY COUNCIL DUBLIN CALIFORNIA Agenda Item 4.7 DATE: September 6, 2022 TO: Honorable Mayor and City Councilmembers FROM: Linda Smith, City Manager SU B.ECT : First Amendment to the Agreement with European Mobile Werks Prepared by: Nate Schmidt, Captain Dublin Police Services EXECUTIVE SUMMARY: The City Council will consider approving an amendment to the agreement with European Mobile Werks to increase the not -to -exceed compensation amount. STAFF RECOMMENDATION: Adopt the Resolution Approving the First Amendment to the Contractor Services Agreement with European Mobile Werks for On -Call Maintenance and Repair Services. FINANCIAL IMPACT: The original agreement with European Mobile Werks was not to exceed $44,500. The amendment to the agreement adds $120,000 for a total not -to -exceed cost of $164,500. There is sufficient funding in the Police Services budget for the current year costs. Future costs will be included in the Fiscal Year 2023-24 budget proposal. DESCRIPTION: On September 1, 2021, the City of Dublin engaged European Mobile Werks in an agreement for on - call maintenance and repair services for emergency police vehicles that are not currently under factory warranty. European Mobile Werks responds to the Public Safety Complex to provide service to such vehicles, eliminating the time and cost of towing the vehicles to an alternative location. This is the sole vendor in the area to provide this mobile service. The current agreement with European Mobile Werks includes a not -to -exceed compensation of $44,500 and has an expiration date of June 30, 2024. However, because there is a limited supply of new police vehicles, many of Dublin Police Services' existing vehicles are now outside the factory warranty period; additionally, maintenance and repair costs have increased significantly. As a Page 1 of 2 84 result, Dublin Police Services has utilized the entire contract amount with two fiscal years remaining in the agreement term. The proposed amendment adds $120,000 to the agreement for a total not -to -exceed amount of $164,500. This proposed additional cost is based on estimated maintenance needs and historical data. There is sufficient funding in the Police Services budget for anticipated costs in the current year. The remainder of the contract will be included in next year's budget proposal. STRATEGIC PLAN INITIATIVE: None NOTICING REQUIREMENTS/PUBLIC OUTREACH: The City Council Agenda was posted. ATTACHMENTS: 1) Resolution Approving the First Amendment to the Contractor Services Agreement with European Mobile Werks for On -Call Maintenance and Repair Services 2) Exhibit A to the Resolution - First Amendment to the Contractor Services Agreement Between the City of Dublin and European Mobile Werks 3) Contractor Services Agreement Between the City of Dublin and European Mobile Werks Page 2 of 2 85 Attachment I RESOLUTION NO. XX — 22 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING THE FIRST AMENDMENT TO THE CONTRACTOR SERVICES AGREEMENT WITH EUROPEAN MOBILE WERKS FOR ON -CALL MAINTENANCE AND REPAIR SERVICES WHEREAS, the City of Dublin uses European Mobile Werks for on -call maintenance and repair services of Dublin Police vehicles; and WHEREAS, on September 1, 2021, the City of Dublin and European Mobile Werks entered into an agreement for on -call maintenance and repair to police vehicles with a not -to - exceed amount of $44,500; and WHEREAS, the current agreement with European Mobile Werks expires on June 30, 2024; and WHEREAS, due to an aging fleet of police vehicles outside the factory warranty, and increases in maintenance and repair costs, the current not -exceed amount of $44,500 was utilized in Fiscal Year 2021-22; and WHEREAS, the City and European Mobile Werks now wish to amend the agreement to increase the not -to -exceed amount by $120,000 for a total of $164,500 based on anticipated maintenance and historical data; and WHEREAS, there is sufficient funding in the Police Operating budget for this amendment in the current year, with the balance included in the Fiscal Year 2023-24 proposed budget. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the First Amendment to the Contractor Services Agreement with European Mobile Werks attached hereto as Exhibit A. BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to execute the amendment to the agreement with European Mobile Werks and make any necessary minor adjustments to carry out the intent of this Resolution. {Signatures on the following page} Reso. No. XX-22 Item X.X, Adopted XX/XX/2022 Page 1 of 2 86 PASSED, APPROVED AND ADOPTED this 6th day of September 2022, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk Reso. No. XX-22 Item X.X, Adopted XX/XX/2022 Page 2 of 2 87 DocuSign Envelope ID: A64F5B27-3932-4EC4-9C79-F16BA52D0C77 Attachment 2 Exhibit A to the Resolution FIRST AMENDMENT TO THE CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND EUROPEAN MOBILE WERKS FOR ON -CALL MAINTENANCE AND REPAIR SERVICES WHEREAS, on September 1, 2021, the City of Dublin (hereinafter referred to as "CITY") and European Mobile Werks (hereinafter referred to as "CONTRACTOR") entered into a Contractor Services Agreement for On -Call Maintenance and Repair Services for Emergency Police Vehicles (hereinafter referred to as the "AGREEMENT"); and WHEREAS, the existing AGREEMENT expires on June 30, 2024; and WHEREAS, due to an aging fleet of police vehicles outside the factory warranty, maintenance and repair costs have increased significantly; and WHEREAS, the current not -to -exceed amount of $44,500 was utilized for vehicle maintenance and repair in Fiscal Year 2021-22 with two Fiscal Years remaining in the agreement; and WHEREAS, THE CITY and CONTRACTOR now wish to amend the AGREEMENT to increase the not -to -exceed amount by $120,000 for a total of $164,500 based on anticipated maintenance and historical data. NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the AGREEMENT is amended as follows: 1) Section 2 - shall be rescinded and replaced with the following: owing: COMPENSATION. City hereby agrees to pay CONTRACTOR a sum not to exceed $164,500, notwithstanding any contrary indications that may be contained in CONTRACTOR's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and CONTRACTOR's proposal, attached as Exhibit B, regarding the amount of compensation, the Agreement shall prevail. City shall pay CONTRACTOR for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to CONTRACTOR for services rendered pursuant to this Agreement. CONTRACTOR shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City in writing, CONTRACTOR shall not bill City for duplicate services performed by more than one person. CONTRACTOR and City acknowledge and agree that compensation paid by City to CONTRACTOR under this Agreement is based upon CONTRACTOR's actual costs of providing the services required hereunder, including salaries and benefits of Page 1 of 3 88 DocuSign Envelope ID: A64F5B27-3932-4EC4-9C79-F16BA52D0C77 Attachment 2 Exhibit A to the Resolution employees and subcontractors of CONTRACTOR. Consequently, the Parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which CONTRACTOR and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 2) Except to the extent inconsistent with this First Amendment, the Parties ratify and confirm all of the terms and conditions of the AGREEMENT. 3) All requisite insurance policies to be maintained by the CONTRACTOR pursuant to the Agreement, as may have been amended from time to time, shall include coverage for the amended term, as described above. 4) The individuals executing this Amendment and the instruments referenced in it on behalf of CONTRACTOR each represent and warrant that they have the legal power, right and actual authority to bind CONTRACTOR to the terms and conditions of this Amendment. SIGNATURES ON THE FOLLOWING PAGE Page 2 of 3 89 DocuSign Envelope ID: A64F5B27-3932-4EC4-9C79-F16BA52D0C77 Attachment 2 Exhibit A to the Resolution IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed as of the date of the City Manager's signature below. CITY OF DUBLIN By: Linda Smith, City Manager Dated: ATTEST: By: Marsha Moore, City Clerk APPROVED AS TO FORM: By: City Attorney EUROPEAN MOBILE WERKS - DocuSigned by: rok i,yuv? By: • 6BA4C3653E424C2... Milton Rodriguez, Owner Page 3 of 3 90 C) Attachment 3. Contract Services Agreement CONTRACTOR SERVICES AGREEMENT BETWEEN THE CITY OF DUBLIN AND EUROPEAN MOBILE WERKS FOR ON -CALL VEHICLE MAINTENANCE AND REPAIR SERVICES THIS AGREEMENT for vehicle maintenance and repair services is made by and between the City of Dublin ("City.") and European Mobile Werks ("Contractor") (together sometimes referred to as the "Parties") as of September 1, 2021 (the "Effective Date"). Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to City the services described in the Scope of Work attached as Exhibit A at the time and place and in the manner specified therein, In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, the Agreement shall prevail. 1.1 Term of Services. The term of this Agreement shall begin on the Effective Date and shall end on June 30, 2024, the date of completion specified in Exhibit A, and Contractor shall complete the work described in Exhibit A on or before that date, unless the term of the Agreement is otherwise terminated or extended, as provided for in Section 8. The time provided to Contractor to complete the services required by this Agreement shall not affect the City's right to terminate the Agreement, as referenced in Section 8. Notwithstanding the foregoing this Agreement may be extended on a month to month basis for up to 6 months upon the written consent of the Contractor and the City Manager, provided that: a) sufficient funds have been appropriated for such purchase, b) the price charged by the Contractor for the provision of the serves described in Exhibit A does not increase. None of the foregoing shall affect the City's right to terminate the Agreement as provided for in Section 8, 1.2 Standard of Performance. Contractor shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Contractor is engaged. 1.3 Assignment of Personnel. Contractor shall assign only competent personnel to perform services pursuant to this Agreement. In the event that City, in its sole discretion, at any time during,the term of this Agreement, desires the reassignment of any such persons, Contractor shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons, 1.4 Time. Contractor shall devote such time to the performance of services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Subsection 1.2 above and to satisfy Contractor's obligations hereunder. 1.5 [Intentionally deletedl. 1.6 [Intentionally deletedl. Contractor Services Agreement between City of Dublin and 09/1/2021 European Mobile Werks for On -call Vehicle Maintenance and Repair Services Page 1 of 14 Section 2. COMPENSATION. City hereby agrees to pay Contractor a sum not to exceed $44,500, notwithstanding any contrary indications that may be contained in Contractor's proposal, for services to be performed and reimbursable costs incurred under this Agreement. In the event of a conflict between this Agreement and Contractor's proposal, attached as Exhibit A, regarding the amount of compensation, the Agreement shall prevail. City shall pay Contractor for services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified below shall be the only payments from City to Contractor for services rendered pursuant to this Agreement. Contractor shall submit all invoices to City in the manner specified herein. Except as specifically authorized by City in writing, Contractor shall not bill City for duplicate services performed by more than one person. Contractor and City acknowledge and agree that compensation paid by City to Contractor under this Agreement is based upon Contractor's estimated costs of providing the services required hereunder, including salaries and benefits of employees and subcontractors of Contractor. Consequently, the Parties further agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which Contractor and its employees, agents, and subcontractors may be eligible. City therefore has no responsibility for such contributions beyond compensation required under this Agreement. 2.1 Invoices. Contractor shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. No individual performing work under this Agreement shall bill more than 2,000 hours in a fiscal year unless approved, in writing, by the City Manager or his/her designee. Invoices shall contain the following information: • The beginning and ending dates of the billing period; ▪ The total number of hours of work performed under the Agreement by Contractor and each employee, agent, and subcontractor of Contractor performing services hereunder; ■ The Contractor's signature; • Contractor shall give separate notice to the City when the total number of hours worked by Contractor and any individual employee, agent, or subcontractor of Contractor reaches or exceeds 800 hours within a 12-month period under this Agreement and any other agreement between Contractor and City. Such notice shall include an estimate of the time necessary to complete work described in Exhibit A and the estimate of time necessary to complete work under any other agreement between Contractor and City, if applicable. 2.2 Monthly Payment. City shall make monthly payments, based on invoices received, for services satisfactorily performed, and for authorized reimbursable costs incurred. City shall have 30 days from the receipt of an invoice that complies with all of the requirements above to pay Contractor. Contractor Services Agreement between City of Dublin and European Mobile Werks for On -call Vehicle Maintenance and Repair Services 09/1 /2021 Page 2 of 14 2.3 Final Payment. City shall pay the last 10% of the total sum due pursuant to this Agreement within 60 days after completion of the services and submittal to City of a final invoice, if all services required have been satisfactorily performed. 2.4 Total Payment. City shall pay for the services to be rendered by Contractor pursuant to this Agreement. City shall not pay any additional sum for any expense or cost whatsoever incurred by Contractor in rendering services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Contractor submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entire Agreement, unless the Agreement is modified prior to the submission of such an invoice by a properly executed change order or amendment. 2.5 Hourly Fees. Fees for work performed by Contractor on an hourly basis shall not exceed the amounts shown on the compensation schedule attached hereto as Exhibit B. 2.6 Jlntentionally Deleted]. 2.7 Payment of Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes, 2.8 Payment upon Termination. In the event that the City or Contractor terminates this Agreement pursuant to Section 8, the City shall compensate the Contractor for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of written notice of termination. Contractor shall maintain adequate logs and timesheets to verify costs incurred to that date. 2.9 Authorization to Perform Services. The Contractor is not authorized to perform any services or incur any costs whatsoever under the terms of this Agreement until receipt of authorization from the Contract Administrator, Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Contractor shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. City shall make available to Contractor only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein. City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for Contractor's use while consulting with City employees and reviewing records and the information in possession of the City. The location, quantity, and time of furnishing those facilities shall be in the sole discretion of City. In no event shall City be obligated to furnish any facility that may involve incurring any direct expense, including but not limited to computer, long-distance telephone or other communication charges, vehicles, and reproduction facilities. Section 4. INSURANCE REQUIREMENTS. Before fully executing this Agreement, Contractor, at its own cost and expense, unless otherwise specified below, shall procure the types and amounts of insurance Contractor Services Agreement between City of Dublin and European Mobile Werks for On -call Vehicle Maintenance and Repair Services 09/1 /2021 Page 3 of 14 listed below against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Contractor and its agents, representatives, employees, and subcontractors. Consistent with the following provisions, Contractor shall provide proof satisfactory to City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects, and that such insurance is in effect prior to beginning work. Contractor shall maintain the insurance policies required by this section throughout the term of this Agreement. The cost of such insurance shall be included in the Contractor's bid or proposal. Contractor shall not allow any subcontractor to commence work on any subcontract until Contractor has obtained all insurance required herein for the subcontractor(s) and provided evidence to City that such insurance is in effect. VERIFICATION OF THE REQUIRED INSURANCE SHALL BE SUBMITTED AND MADE PART OF THIS AGREEMENT PRIOR TO EXECUTION. Contractor shall maintain all required insurance listed herein for the duration of this Agreement. 4.1 Workers' Compensation. 4.1.1 General Requirements. Contractor shall, at its sole cost and expense, maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Contractor. The Statutory Workers' Compensation Insurance and Employer's Liability Insurance shall be provided with limits of not less than $1,000,000 per accident. In the alternative, Contractor may rely on a self-insurance program to meet these requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator. The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the entity for all work performed by the Contractor, its employees, agents, and subcontractors. 4.1.2 Submittal Requirements. To comply with Subsection 4.1, Contractor shall submit the following: a. Certificate of Liability Insurance in the amounts specified in the section; and b. Waiver of Subrogation Endorsement as required by the section. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 General Requirements. Contractor, at its own cost and expense, shall maintain commercial general liability insurance for the term of this Agreement in an amount not less than $1,000,000 and automobile liability insurance for the term of this Agreement in an amount not less than $1,000,000 per occurrence, combined single limit coverage for risks associated with the work contemplated by this Agreement. If a Commercial General Liability Insurance or an Automobile Liability Contractor Services Agreement between City of Dublin and European Mobile Werks for On -call Vehicle Maintenance and Repair Services 09/1 /2021 Page 4 of 14 form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from activities contemplated under this Agreement, including the use of owned and non -owned automobiles. 4.2.2 Minimum Scope of Coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent edition) covering comprehensive General Liability on an "occurrence" basis. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001, Code 1 (any auto). No endorsement shall be attached limiting the coverage. 4.2.3 Additional Requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy: a. The Insurance shall cover on an occurrence or an accident basis, and not on a claims -made basis. b. City, its officers, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of work or operations performed by or on behalf of the Contractor; or automobiles owned, leased, hired, or borrowed by the Contractor. c. Contractor hereby agrees to waive subrogation which any insurer or contractor may require from vendor by virtue of the payment of any loss. Contractor agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation. d. For any claims related to this Agreement or the work hereunder, the Contractor's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 4.2.4 Submittal Requirements. To comply with Subsection 4.2, Contractor shall submit the following: a. Certificate of Liability Insurance in the amounts specified in the section; b. Additional Insured Endorsement as required by the section; c. Waiver of Subrogation Endorsement as required by the section; and Contractor Services Agreement between City of Dublin and European Mobile Werks for On -call Vehicle Maintenance and Repair Services 09/1 /2021 Page 5of14 d. Primary Insurance Endorsement as required by the section. 4.3 All Policies Requirements. 4.3.1 Acceptability of Insurers. All insurance required by this section is to be placed with insurers with a Bests' rating of no less than A:VII. 4.3.2 Verification of Coverage. Prior to beginning any work under this Agreement, Contractor shall furnish City with complete copies of all Certificates of Liability Insurance delivered to Contractor by the insurer, including complete copies of all endorsements attached to the policies. All copies of Certificates of Liability Insurance and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. If the City does not receive the required insurance documents prior to the Contractor beginning work, it shall not waive the Contractor's obligation to provide them. The City reserves the right to require complete copies of all required insurance policies at any time. 4.3.3 Deductibles and Self -Insured Retentions. Contractor shall disclose to and obtain the written approval of City for the self -insured retentions and deductibles before beginning any of the services or work called for by any term of this Agreement. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects the City, its officers, employees, and volunteers; or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses. 4.3.4 Wasting Policies. No policy required by this Section 4 shall include a "wasting" policy limit (i.e. limit that is eroded by the cost of defense). 4.3.5 Endorsement Requirements. Each insurance policy required by Section 4 shall be endorsed to state that coverage shall not be canceled by either party, except after 30 days' prior written notice has been provided to the City. 4.3.6 Subcontractors. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. 4.4 Remedies. In addition to any other remedies City may have if Contractor 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 exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Contractor's breach: Contractor Services Agreement between City of Dublin and European Mobile Werks for On -call Vehicle Maintenance and Repair Services 09/1 /2021 Page 6 of 14 ▪ Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under the Agreement; Order Contractor to stop work under this Agreement or withhold any payment that becomes due to Contractor hereunder, or both stop work and withhold any payment, until Contractor demonstrates compliance with the requirements hereof; and/or • Terminate this Agreement. Section 5. INDEMNIFICATION AND CONTRACTOR'S RESPONSIBILITIES. Contractor shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including without limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature arising out of or in connection with Contractor's performance of the Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City. The Contractor's obligation to defend and indemnify shall not be excused because of the Contractor's inability to evaluate Liability or because the Contractor evaluates Liability and determines that the Contractor is not liable to the claimant. The Contractor must respond within 30 days, to the tender of any claim for defense and indemnity by the City, unless this time has been extended by the City. If the Contractor fails to accept or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law, so much of the money due the Contractor under and by virtue of this Agreement as shall reasonably be considered necessary by the City, may be retained by the City until disposition has been made of the claim or suit for damages, or until the Contractor accepts or rejects the tender of defense, whichever occurs first. Notwithstanding the forgoing, to the extent this Agreement is a "construction contract" as defined by California Civil Code Section 2782, as may be amended from time to time, such duties of Contractor to indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782. In the event that Contractor or any employee, agent, or subcontractor of Contractor providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Contractor shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Section 6. STATUS OF CONTRACTOR. 6.1 Independent Contractor. At all times during the term of this Agreement, Contractor shall be an independent contractor and shall not be an employee of City. This Agreement shall not be construed as an agreement for employment. City shall have the right to control Contractor only insofar as the results of Contractor's services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.3; however, otherwise Contractor Services Agreement between City of Dublin and European Mobile Werks for On -call Vehicle Maintenance and Repair Services 09/1/2021 Page7of 14 City shall not have the right to control the means by which Contractor accomplishes services rendered pursuant to this Agreement. Contractor further acknowledges that Contractor performs Services outside the usual course of the City's business; and is customarily engaged in an independently established trade, occupation, or business of the same nature as the Contractor performs for the City and has the option to perform such work for other entities. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims 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. 6.2 Contractor Not an Agent. Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Contractor and any subcontractors shall comply with all laws and regulations applicable to the performance of the work hereunder, including but not limited to, the California Building Code, the Americans with Disabilities Act, and any copyright, patent or trademark law. Contractor's failure to comply with any law(s) or regulation(s) applicable to the performance of the work hereunder shall constitute a breach of contract. 7.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, Contractor and any subcontractors shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.4 Licenses and Permits. Contractor represents and warrants to City that Contractor and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions. Contractor represents and warrants to City that Contractor and its employees, agents, any 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 to practice their respective professions. In addition to the foregoing, Contractor and any subcontractors shall obtain and maintain during the term of this Agreement valid Business Licenses from City. Contractor Services Agreement between City of Dublin and European Mobile Works for On -call Vehicle Maintenance and Repair Services 09/1/2021 Page 8of14 7.5 Nondiscrimination and Equal Opportunity. Contractor shall not discriminate, on the basis of a person's race, sex, gender, religion (including religious dress and grooming practices), national origin, ancestry, physical or mental disability, medical condition (including cancer and genetic characteristics), marital status, age, sexual orientation, color, creed, pregnancy, genetic information, gender identity or expression, political affiliation or belief, military/veteran status, or any other classification protected by applicable local, state, or federal laws (each a "Protected Characteristic"), against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by Contractor under this Agreement. Contractor shall include the provisions of this Subsection in any subcontract approved by the Contract Administrator or this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. City may cancel this Agreement at any time and without cause upon written notification to Contractor. Contractor may cancel this Agreement upon 30 days' written notice to City and shall include in such notice the reasons for cancellation. In the event of termination, Contractor shall be entitled to compensation for services performed to the effective date of termination; City, however, may condition payment of such compensation upon Contractor delivering to City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to Contractor or prepared by or for Contractor or the City in connection with this Agreement. 8.2 Extension. City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Subsection 1.1. Any such extension shall require a written amendment to this Agreement, as provided for herein. Contractor understands and agrees that, if City grants such an extension, City shall have no obligation to provide Contractor with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Contractor for any otherwise reimbursable expenses incurred during the extension period. 8.3 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties. 8.4 Assignment and Subcontracting. City and Contractor recognize and agree that this Agreement contemplates personal performance by Contractor and is based upon a determination of Contractor's unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Contractor. Contractor may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Contractor shall not subcontract any portion of the Contractor Services Agreement between City of Dublin and European Mobile Werks for On -call Vehicle Maintenance and Repair Services 09/1/2021 Page 9 of 14 performance contemplated and provided for herein, other than to the subcontractors noted in the proposal, without prior written approval of the Contract Administrator, 8.5 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Contractor shall survive the termination of this Agreement. 8.6 Options upon Breach by Contractor. If Contractor materially breaches any of the terms of this Agreement, City's remedies shall include, but are not limited to, the following: 8.6.1 Immediately terminate the Agreement; 8.6.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Contractor pursuant to this Agreement; 8.6.3 Retain a different Contractor to complete the work described in Exhibit A not finished by Contractor; or 8.6.4 Charge Contractor the difference between the cost to complete the work described in Exhibit A that is unfinished at the time of breach and the amount that City would have paid Contractor pursuant to Section 2 if Contractor had completed the work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Contractor's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Contractor prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. Contractor hereby agrees to deliver those documents to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use. City and Contractor agree that, until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both Parties, 9.2 Contractor's Books and Records. Contractor shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of 3 years, or for any longer period required by law, from the date of final payment to the Contractor to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that Subsection 9.2 of this Agreement requires Contractor to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of Contractor Services Agreement between City of Dublin and European Mobile Werks for On -call Vehicle Maintenance and Repair Services 09/1 /2021 Page 10 of 14 the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds $10,000.00, the 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 the City, for a period of 3 years after final payment under the Agreement. Section 10. MISCELLANEOUS PROVISIONS. 10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 10.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Alameda or in the United States District Court for the Northern District of California. 10.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 10.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties. 10.6 Conflict of Interest. Contractor may serve other clients, but none whose activities within the corporate limits of City or whose business, regardless of location, would place Contractor in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. Contractor shall not employ any City official in the work performed pursuant to this Agreement. No officer or employee of City shall have any financial interest in this Agreement that would violate California Government Code Section 1090 et seq. Contractor hereby warrants that it is not now, nor has it been in the previous 12 months, an employee, agent, appointee, or official of the City. If Contractor was an employee, agent, appointee, or official of the City in the previous 12 months, Contractor warrants that it did not participate in any manner in the forming of this Agreement. Contractor understands that, if this Agreement is made in violation of California Government Code Section 1090 et seq., the entire Agreement is void and Contractor will not be entitled to any compensation Contractor Services Agreement between City of Dublin and European Mobile Werks for On -call Vehicle Maintenance and Repair Services 09/1/2021 Page 11 of 14 for services performed pursuant to this Agreement, including reimbursement of expenses, and Contractor will be required to reimburse the City for any sums paid to the Contractor. Contractor understands that, in addition to the foregoing, it may be subject to criminal prosecution for a violation of California Government Code Section 1090 et seq., and, if applicable, will be disqualified from holding public office in the State of California. At City's sole discretion, Contractor may be required to file with the City a Form 700 to identify and document Contractor's economic interests, as defined and regulated by the California Fair Political Practices Commission. If Contractor is required to file a Form 700, Contractor is hereby advised to contact the Dublin City Clerk for the Form 700 and directions on how to prepare it. 10.7 Solicitation. Contractor agrees not to solicit business at any meeting, focus group, or interview related to this Agreement, either orally or through any written materials, 10.8 Contract Administration. This Agreement shall be administered by the City Manager ("Contract Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or her designee. 10.9 Notices. Any written notice to Contractor shall be sent to: European Mobile Werks Attn: Milton Rodriguez 331 N Sierra Madre St Tracy, CA 95391 Any written notice to City shall be sent to: City of Dublin Attn: Police Services 100 Civic Plaza Dublin, CA 94568 10.10 Integration. This Agreement, including the scope of work attached hereto and incorporated herein as Exhibits A and B represents the entire and integrated agreement between City and Contractor and supersedes all prior negotiations, representations, or agreements, either written or oral. Exhibit A Scope of Services Exhibit B Compensation Schedule & Reimbursable Expenses 10.11 Counterparts and Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. Counterparts delivered and/or signatures executed by City -approved electronic or digital means shall have the same force and effect as the use of a manual signature. Both Parties desire this Agreement to be electronically signed in accordance Contractor Services Agreement between City of Dublin and European Mobile Werks for On -call Vehicle Maintenance and Repair Services 09/1/2021 Page 12 of 14 with applicable federal and California law. Either Party may revoke its agreement to use electronic signatures at any time by giving notice to the other Party. 10.12 Certification per Iran Contracting Act of 2010. In the event that this contract is for one million dollars ($1,000,000.00) or more, by Contractor's signature below Contractor certifies that Contractor, and any parent entities, subsidiaries, successors or subunits of Contractor are not identified on a list created pursuant to subdivision (b) of Section 2203 of the California Public Contract Code as a person engaging in investment activities in Iran as described in subdivision (a) of Section 2202.5, or as a person described in subdivision (b) of Section 2202.5 of the California Public Contract Code, as applicable. SIGNATURES ON FOLLOWING PAGE Contractor Services Agreement between City of Dublin and European Mobile Werks for On -call Vehicle Maintenance and Repair Services 09/1/2021 Page 13 of 14 The Parties have executed this Agreement as of the Effective Date. The persons whose signatures appear below certify that they are authorized to sign on behalf of the respective Party. CITY OF DUBLIN EUROPEAN MOBILE WERKS DocuSi -DocuSigned by: pc o4 ku—et3A4e9e53[424C2... Linda gmitlh, Mity Manager Milton Rodriguez, Owner Attest: DocuSlgned by: 601441/4ek- w( � Marsha ser (uaiMoozrf4reun., .. City Clerk Approved as to Form: �DocuSIgned by: ,arlw �isL p f r [D7i" 8973BC404... City Attorney 3070368.1 Contractor Services Agreement between City of Dublin and European Mobile Werks for On -call Vehicle Maintenance and Repair Services 09/1 /2021 Page 14 of 14 EXHIBIT A SCOPE OF SERVICES Provide repair, maintenance and equipment installation services for emergency police vehicles. Contractor Services Agreement between City of Dublin and Last revised 09/1/2021 European Mobile Werks for On -call Vehicle Maintenance and Repair Services Exhibit A — Page 1 of 1 EXHIBIT B COMPENSATION SCHEDULE & REIMBURSABLE EXPENSES European Mobile Werks will be charging labor at $100,00 per hour during normal business hours and $135.00 per hour after hours and on weekends and holidays, Parts markup will be 33% of cost, Contractor Services Agreement between City of Dublin and Last revised 09/1/2021 European Mobile Werks for On -call Vehicle Maintenance and Repair Services Exhibit B — Page 1 of 1