HomeMy WebLinkAboutContracts & Agreements_47-2016 AGREEMENT TO PERFORM NON-PROFESSIONAL, SERVICES
This agreement for software and hosting services ("Agreement") is made and entered into
this 29th day of February, 2016 ("Effective Date"), by and between the City of Redlands, a
municipal corporation ("City)" and LoadSpring Solutions, Inc. ("Consultant"). City and
Consultant are sometimes individually referred to herein as a "Party" and, together, as the
"Parties." In consideration of the mutual promises contained herein, City and Consultant agree as
follows:
ARTICLE 1 —ENGAGEMENT OF CONSULTANT
1.1 City hereby engages Contractor to provide consulting, software, and hosting services for
City(the "Services").
1.2 The Services shall be performed by Consultant in a professional manner, and Consultant
represents that it has the skill and the professional expertise necessary to provide the
Services to City at a level of competency presently maintained by other practicing
professional consultants in the industry providing like and similar types of Services.
ARTICLE 2—SERVICES OF CONSULTANT
2.1 The Services that Consultant shall perform are more particularly described in Exhibit
"A," entitled "Scope of Services," which is attached hereto and incorporated herein by
reference.
2.2 Consultant shall comply with applicable federal, state and local laws and regulations in
the performance of this Agreement including, but not limited to State prevailing wage
laws.
ARTICLE 3 —RESPONSIBILITIES OF CITY
3.1 City shall make available to Consultant information in its possession that may assist
Consultant in performing the Services.
3.2 City designates Chris Diggs, Municipal Utilities and Engineering Director, as City's
representative with respect to performance of the Services, and such person shall have the
authority to transmit instructions, receive information, interpret and define City's policies
and decisions with respect to performance of the Services.
ARTICLE 4—PERFORMANCE OF SERVICES
4.1 Contractor shall perform and complete the Services in a prompt and diligent manner.
Contractor shall supply hosting services for a term of twenty four (24) months from and
after the Effective Date of this Agreement.
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ARTICLE 5 —PAYMENTS TO CONSULTANT
5.1 The total compensation for Consultant's performance of the Services shall not exceed
Twenty Four Thousand Three Hundred Fifty Five Dollars and Five Cents ($24,355.05).
Consultant shall invoice City and City shall pay Twelve Thousand Seven Hundred
Seventy Eight Dollars and Nine Cents ($12,768.09) at the beginning on year one and
Eleven Thousand Five Hundred Eighty Six Dollars and Ninety Six Cents ($11,586.96) at
the beginning of year two.
5.2 Consultant shall submit its invoices to City describing the Services performed
during the preceding term. Consultant's invoices shall include a brief description of the
Services performed, the dates the Services were performed, the number of hours spent and
By whom, and a description of reimbursable expenses, if any. City shall pay
Consultant no later than thirty (30) days after receipt and approval by City of
Consultant's invoice.
5.3 Any notice or other communication required, or which may be given, pursuant to this
Agreement, shall be in writing. Any such notice shall be deemed delivered (i) on the date
of delivery in person; (ii) five (5) days after deposit in first class registered mail, with
return receipt requested; (iii) on the actual delivery date if deposited with an overnight
courier; or (iv) on the date sent by facsimile, if confirmed with a copy sent
contemporaneously by first class, certified, registered or express mail; in each case
properly posted and fully prepaid to the appropriate address set forth below, or such other
address as a Party may provide notice in accordance with this section:
Ci1y Consultant
Chris Diggs Jim Smith
MUED Director Executive Vice President
City of Redlands LoadSpring Solutions Inc.
35 Cajon Street, Suite 15A 187 Ballardvale Street, B-210
Redlands, CA 92373 Wilmington, MA 01887
ARTICLE 6—INSURANCE AND INDEMNIFICATION
6.1 Insurance required by this Agreement shall be maintained by Consultant for the duration
of its performance of the Services. Consultant shall not perform any Services unless and
until the required insurance listed below is obtained by Consultant. Consultant shall
provide City with certificates of insurance and endorsements evidencing such insurance
prior to commencement of the Services. Insurance policies shall include a provision
prohibiting cancellation or modification of the policy except upon thirty (30) days prior
written notice to City.
6.2 Workers' Compensation and Employer's Liability insurance in the amount that meets
statutory requirements with an insurance carrier acceptable to City, or certification to
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City that Consultant is self-insured or exempt from the workers' compensation laws of
the State of California. Consultant shall provide City with Exhibit "B," entitled
"Workers' Compensation .Insurance Certification," which is attached hereto and
incorporated herein by this reference prior to commencement of the Services.
6.3 Consultant shall secure and maintain comprehensive general liability insurance with
carriers acceptable to City. Minimum coverage of One Million Dollars ($1,000,000) per
occurrence and Two Million Dollars ($2,000,000) aggregate for public liability, property
damage and personal injury is required. City shall be named as an additional insured and
such insurance shall be primary and non-contributing to any insurance or self-insurance
maintained by City.
6.4 Consultant shall secure and maintain professional liability insurance throughout the term
of this Agreement in the amount of One Million Dollars ($1,000,000) per claim made.
6.5 Consultant shall secure and maintain business auto liability coverage, with minimum
limits of One Million Dollars ($1,000,000) per occurrence, combined single limit bodily
injury liability and property damage liability. This coverage shall include all Consultant
owned vehicles used in connection with Consultant's provision of the Services, hired and
non-owned vehicles, and employee non-ownership vehicles. City shall be named as an
additional insured and such insurance shall be primary and non-contributing to any
insurance or self insurance maintained by City.
6.6 Consultant shall defend, indemnify and hold harmless City and its elected officials,
employees and agents from and against any and all claims, losses or liability, including
attorneys' fees, arising from injury or death to persons or damage to property occasioned
by any negligent act or omission by, or the willful misconduct of, Consultant, or its
officers, employees and agents in performing the Services.
ARTICLE 7—CONFLICTS OF INTEREST
7.1 Consultant covenants and represents that it does not have any investment or interest in
any real property that may be the subject of this Agreement or any other source of
income, interest in real property or investment that would be affected in any manner or
degree by the performance of Consultant's Services. Consultant further covenants and
represents that in the performance of its duties hereunder, no person having any such
interest shall perform any Services under this Agreement.
-7.2 Consultant agrees it is not a designated employee within the meaning of the Political
Reform Act because Consultant:
A. Does not make a governmental decision whether to:
(i) approve a rate, rule or regulation, or adopt or enforce a City law;
(ii) issue, deny, suspend or revoke any City permit, license, application,
certification, approval, order or similar authorization or entitlement;
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(iii) authorize the City to enter into, modify or renew a contract;
(iv) grant City approval to a contract that requires City approval and to which
City is a party, or to the specifications for such a contract;
(v) grant City approval to a plan, design, report, study or similar item;
(vi) adopt or grant City approval of, policies, standards or guidelines for City
or for any subdivision thereof.
B. Does not serve in a staff capacity with City and in that capacity, participate in
making a governmental decision or otherwise perform the same or substantially
the same duties for City that would otherwise be performed by an individual
holding a position specified in City's Conflict of Interest Code under Government
Code section 87302.
7.3 In the event City officially determines that Consultant must disclose its financial
interests, Consultant shall complete and file a Fair Political Practices Commission Form
700, Statement of Economic Interests, with the City Clerk's office pursuant to the written
instructions provided by the City Clerk.
ARTICLE 8 —GENERAL CONSIDERATIONS
8.1 In the event any action is commenced to enforce or interpret any of the terms or
conditions of this Agreement the prevailing Party shall, in addition to any costs and other
relief, be entitled to the recovery of its reasonable attorneys' fees, including fees for the
use of in-house counsel by a Parry.
8.2 Consultant shall not assign any of the Services, except with the prior written approval of
City and in strict compliance with the terms and conditions of this Agreement.
8.3 Records, drawings, designs, cost estimates, electronic data files, databases and any other
documents developed by Consultant in connection with its performance of the Services,
and any copyright interest in such documents, shall become the property of City and shall
be delivered to City upon completion of the Services, or upon the request of City. Any
reuse of such documents, and any use of incomplete documents, shall be at City's sole
risk.
8.4 Consultant is for all purposes under this Agreement an independent contractor and shall
perform the Services as an independent contractor. Neither City nor its agents shall have
control over the conduct of Consultant or Consultant's employees, except as herein set
forth. Consultant shall supply all necessary tools and instrumentalities required to
perform the Services. Assigned personnel employed by Consultant are for its account
only, and in no event shall Consultant or personnel retained by it be deemed to have been
employed by City or engaged by City for the account of, or on behalf of City. Consultant
shall have no authority, express or implied, to act on behalf of City in any capacity
whatsoever as an agent, nor shall Consultant have any authority, express or implied, to
bind City to any obligation.
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8.5 Unless earlier terminated as provided for below, this Agreement shall terminate upon
completion and acceptance of the Services by City. This Agreement may be terminated
by City, in its sole discretion, by providing not less than five (5) days prior written notice
to Consultant of City's intent to terminate. If this Agreement is terminated by City, an
adjustment to Consultant's compensation shall be made, but (1) no amount shall be
allowed for anticipated profit or unperformed Services, and (2) any payment due
Consultant at the time of termination may be adjusted to the extent of any additional costs
to City occasioned by any default by Consultant. Upon receipt of a termination notice,
Consultant shall immediately discontinue its provision of the Services and, within five (5)
days of the date of the termination notice, deliver or otherwise make available to City,
copies (in both hard copy and electronic form, where applicable) of project related data,
design calculations, drawings, specifications, reports, estimates, summaries and such
other information and materials as may have been accumulated by Consultant in
performing the Services. Consultant shall be compensated on a pro-rata basis for Services
completed up to the date of termination.
8.6 Consultant shall maintain books, ledgers, invoices, accounts and other records and
documents evidencing costs and expenses related to the Services for a period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant pursuant to this Agreement. Such books shall be available at reasonable times
for examination by City at the office of Consultant.
8.7 This Agreement, including the Exhibits incorporated herein by reference, represents the
entire agreement and understanding between the Parties as to the matters contained
herein, and any prior negotiations, written proposals or verbal agreements relating to such
matters are superseded by this Agreement. Except as otherwise provided for herein, any
amendment to this Agreement shall be in writing, approved by City and signed by City
and Consultant.
8.8 This Agreement shall be governed by and construed in accordance with the laws of the
State of California.
8.9 If one or more of the sentences, clauses, paragraphs or sections contained in this
Agreement is declared invalid, void or unenforceable by a court of competent
jurisdiction, the same sball be deemed severable from the remainder of this Agreement
and shall not affect, impair or invalidate the remaining sentences, clauses, paragraphs or
sections contained herein, unless to do so would deprive a Party of a material benefit of
its bargain under this Agreement.
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IN WI' NESS WHEREOF, duly authorized representatives of City and Consultant have signed
in confirmation of this Agreement.
CITY OF REDLANDS LOADSP .II'd G SOLUTIONS, INC..
T y:
Itm with, Executive
B
TinaT. Fundi ,, Finance _" ., � ,I ..�..
By:
� Director -.. '`� � Vice President
Attest: .w f
Sam Irwin;Cit Clerk
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EXHIBIT "A"
SCOPE OF SERVICE
A. HOSTED SERVICE
Contractor is to offer a premier hosting service for all the needs for the City as it relates
to its Oracle Contract Management CM software, for up to 11 users. Contractor hosting is
a unique service that leverages a highly secure, virtualized computing environment. The
cloud environment allows City to use the very best computing power in the industry, on-
demand, with a scalability.
The Cloud solution rests on a foundation of an industry leading managed service platform
which resides in data centers. The data centers are Class-A data center facilities. Each
data center has a multi-tiered, High Availability (HA), enterprise-class firewall
infrastructure, with enterprise-level switching, load balancing, providing hundreds of
thousands of concurrent session capabilities with the ability to shift loads between
physically separated cloud infrastructures.
B. MIGRATION OF ENVIRONMENT
With the Contractor's managed service platform offering, City maintains ownership of
Oracle Primavera Contract Management licenses. City maintains the right to bring back
in house at any time. Any data migration that occurs in the future shall be planned and
managed with City personnel with Consultant assistance, as needed.
C. DEPLOYMENT
I. HOSTING ENVIRONMENT
The hosting environment Contractor is providing use of 4 data centers. The data
centers are located in Boston, MA; San Diego, CA; Toronto, Canada and London,
England. ScaleMatrix in San Diego will be the City's primary data center, and
Sungard in Boston, will be the Disaster Recovery (DR) data center.
II. CERTIFICATION
ScaleMatrix and SunGard certify annually. ScaleMatrix is SSAE16/ISAE SOC 1
Type 2 certified as well as SSAE16/ISAE SOC 2 Type 2 certified. ScaleMatrix is
also SAS 70 certified.
III. UPTIME PERCENTAGE
Contractor guarantees a 99.9% uptime.
D. TERMS AND CONDITIONS
I. DEFINITIONS
i. "Program Set" means a combination of software, hosting services and/or
consulting services with associated monetary costs for each item.
ii. "Measurable Downtime" means the period during which City cannot
access software or hosting services defined in the appropriate Program
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Set. This time is the earlier of either the time that the City notifies
LoadSpring, or monitoring utilities notify LoadSpring administrators and
ending at the time that LoadSpring confirms the City's accessibility via
telephone, electronic mail, or other means.
NOTE: The first 3 0 days of the contract is exempt from measurable
downtime.
iii. "Service Days" means the identification of the days of the week for which
the Program Sets will be guaranteed available to the City.
iv. "Business Hours"means the identification of the business hours each day
during the Service Days for which the Program Sets will be guaranteed
available to the City.
v. "SLA Guarantee" means Service Level Guarantee and is the amount of
time that all Program Set items are guaranteed to be available as a
percentage of the total time, in business hours, of availability in one year
based upon the number of Service Days per week and the number of
Service Hours identified as Service Time.
vi. "Micro Disaster"means any hardware component failure that occurs from
the point of network control (data center routers)to end network systems
and servers including operating system data and software.
vii. "Macro Disaster"means any complete system failure including complete
routers, switches, servers,NAS Storage devices or SAN Storage devices
including operating system data and software.
viii. "Mega Disaster"means a complete failure of the majority of the data
center facility in which the City's services are primarily being provided
from. A Mega Disaster classification will mean that basic service delivery
at even minimal levels is disrupted for more than 6 hours and in order to
restore full service would require relocation of service access to a backup
data center facility.
ix. "Recovery Time Objective" (RTO) means the measure of time (in hours
or days)to restore complete program set access in the event of a system or
component failure.
x. "Recovery Point Objective" (RPO) means the maximum allowable time
(in hours or days) of data loss prior to a system or component failure.
xi. "SLA Incident" One or more events that cause a disruption of service,
either access, performance, data loss or security, or which, if not causing a
service disruption nevertheless require further monitoring and/or repair,
which were caused by LoadSpring's action, mis-action, infrastructure or
misconfiguration. These events have actual or potential impact on the SLG
provided by LSPR in this Agreement.
xii. "Install/Move/Add/Change (IMAC)" A service modification(s) and/or
requests not identified in commercial agreement or required by third party
software vendor to improve application stability or performance by
adjusting settings, installing/upgrading versions, configuring additional
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environments. Also includes performance issues, error resolution or
configuration changes requested to any hosted Application, or underlying
infrastructure application, such as database, that are not a direct result of
actions or mis-actions by LSPR.
II. SERVICE ACCESS AND REMEDY
i. It is the responsibility of LoadSpring Solutions (LSPR)to ensure City
access to all SpringBoardTM modules, software applications and services
identified by the Program Sets for any Service Orders, current with this
contract and future with amendments to this contract, within the SLA
Guarantee identified on the corresponding Service Order. In the event that
the SLA Guarantee identified on the first SO and/or Contract for Hosting
Services differ, the SLA Guarantee identified on the SO will prevail. In
the event that the City, or any user authorized by the City cannot access
the identified services, they are instructed to contact LoadSpring Solutions
immediately.
ii. It will be the responsibility of the City to ensure their users are (a)
Authorized and appropriately trained in the use of the SpringBoardTM, (b)
Meet the requirements as listed in the Springboard Users Guide
appropriate for your version that is downloadable from the main page of
the SpringBoard for all users. (c) Any user who satisfies items a and b
above, but still cannot connect to LSPR's SpringBoardTM must notify
LSPR immediately.
iii. In the event of an SLA Incident during identified business hours for a
Measurable Downtime exceeding that allowed by the SLA Guarantee, due
to a Micro Disaster or Macro Disaster, as identified above, LSPR will
credit the City an amount equal to 1/2 the monthly recurring fee associated
with the Program Set(s) which experienced Measurable Downtime in
excess of that.
NOTE: The Standard RPO of 24 hours will apply for City data
components in the event that the Micro/Macro disaster causes data loss
unless a shortened RPO is defined in the Service Order. (For Mega
Disaster, see next section titled "Disaster Recovery")
III. INFRASTRUCTURE SECURITY, MANAGEMENT AND MONITORING
i. LoadSpring will be responsible for providing the following infrastructure
components:
1. Managed Firewall protection of all data center servers accessed
and shared by City.
2. Managed Antivirus protection of all data center servers accessed
and shared by City.
3. Advanced NON-Optional Security implementations including
managed server and application patching/updates and
infrastructure setups and procedures utilizing international
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standards and best practices for Information Security Management
identified by the NSA, ISO and other organizations.
4. Network connectivity from server equipment of a measurable
bandwidth equaling or exceeding requirements of City to the
public Internet.
5. Secure network traffic encryption from City users system to LSPR
data center servers using a combination of Secure Sockets Layer
(SSL) and/or SecurelCA encryption software.
6. 24 x 7 x 365 Process monitoring of all active production servers
and networking equipment, including functional checks of web
sites, applications and SpringBoardTm modules.
7. Advanced backup and offsite replication procedures with the
following schedule: Daily Differential backups, Weekly Full
backups. This will be replicated nightly to a backup datacenter and
retained with the following schedule:
a. Daily differential backups are retained for 7 days
b. Weekly full backups are retained for 4 weeks
c. Monthly full backups are retained for 12 months
8. As part of this contract, LSPR is responsible for ensuring all
infrastructure and software components are repaired or replaced
such that the amount of Measurable downtime does not exceed that
allowed by the SLA Guarantee identified on the appropriate SO in
the event of a Micro or Macro Disaster. The standard RPO for
these types of events will be 24 hours maxim-am unless RPO
maximums are defined on the Service Order.
9. In the event of a Mega Disaster, the standard RTO will be a
maximum of 5 days and the standard RPO will not exceed 48
Hours unless RTO and RPO is defined more specifically on the
SO. Service charges to apply for more advanced RTO and RPO
requirements depending upon their duration. In the event of a
Mega Disaster and LSPR's failure to meet either the Standard
RTO/RPO times (or Advanced if defined on the Service Order)
LSPR will credit the City an amount equal to 1/2 the monthly
recurring fee associated with the Program Set(s) which
experienced measurable downtime in excess of either the RTO or
RPO.
10. LoadSpring will take the following restoration actions:
a. Data restores required due to LoadSpring created events
will be restored within the SLA Guarantee time to the last
recovery point available
b. Data restores required due to City created events will be
restored to the nearest recovery point and will incur the
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number of IMAC hours that are used to complete the
restore per incident.
c. Data will only be restore up to the timeframe specified in
the RPO settings stated in your agreement.
11. Backup and Recovery (Required due to LSPR Actions/Mis-actions
or Disaster) All systems and data will be backed up with offsite
media storage procedures with the following schedule: Standard
backup procedures include daily incremental backups and weekly
full backups of the City's entire system. Each week, the full tapes
are removed from the City's primary data center facility and stored
offsite in a LoadSpring controlled fireproof safe. Additional Data
Replications, with either Advanced RTO/RPO and/or Private
Cloud options identified in the SO, is run to a separate in-facility
SAN location throughout the day with replication to the Secondary
(or second Primary) facility that is consistent with the RTO/RPO
requirements, for offsite disaster recovery. All data is then backed
up to tape every 30 days and removed from the data center facility,
stored in LoadSpring controlled fireproof safes and retained for 12
months. On a rotating basis, the 2nd month of weekly fall's will be
retained. Restorations will be completed: (a) Required due to
LSPR controlled actions/mis-actions, within business hours time.
12. Data Recovery (Required due to City Actions/Mis-actions)
Required due to City actions/mis-actions, such as deleting a
project, within an appropriate time determined by size of file and
time action/mis-action occurred during the previous 30 days. In
this regard data recovery consumes the amount of IMAC hours that
are used to complete the restore per incident. If the City exceeds
the allowance of IMACs, a LoadSpring sales representative will
contact the City directly to communicate the additional hours that
were required. For data restorations older than 30 days, only data
captured by the first full backup of that month will be restored.
13. SpringBoardTM enforced procedural access includes: Complex
passwords (8 characters, one uppercase, one symbol, 5x password
history, 60 day password change), SSL access to portal workspace,
advanced User Administration for designated company managers.
ii. City will be responsible for providing the following:
1. Identify a minimum of one (1) City administrator responsible for
adding, deleting and modifying usernames and passwords for
authorized users.
2. Any/all software application licenses and media not specifically
provisioned by LSPR and identified in the SO. Furthermore,this
information must be delivered to LSPR a minimum of 7 days prior
to expected activation of any/all Program Sets.
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IV. TECHNICAL SUPPORT
i. 1. Business Hour Support: LSPR technical support personnel will be
available via telephone at 978- 685-9715 during the business hours of 8:00
AM and 6:00 PM EST or the advanced Service hours defined in the SO
for response to technical issues related to SpringBoardTM
functionality/access, hosted applications at a systems level, and/or
printing/external device access. If users cannot contact LSPR Support via
telephone, they are encouraged to use the online support database tool
which will directly open and time-stamp their case. Response to these
requests will be based upon priority and time of submission. Users will
also submit support requests via email at support@loadspring.com for
issues not requiring immediate response.
ii. After Business Hours Support: If there is a critical emergency(Severity 1),
any authorized user should contact their administrator who will have a
notification method to contact emergency LSPR personnel 24 x 7 x 365.
Users will also access FAQ's and log a support issue directly through the
SpringBoardTM by selecting the Support link.
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EXHIBIT "B"
WORKERS' COMPENSATION INSURANCE CERTIFICATION
For Software and Hosting Services
Every employer, except the State, shall secure the payment of compensation in one or more of
the following ways:
(a) By being insured against liability to pay compensation by one or more insurers
duly authorized to write compensation insurance in this State.
(b) By securing from the Director of Industrial Relations, a certificate of consent to
self-insure, either as an individual employer, or as one employer in a group of
employers, which may be given upon furnishing proof satisfactory to the Director
of Industrial Relations of ability to self-insure and to pay any compensation that
may become due to his or her employees.
CHECK ONE
I ani aware of the provisions of Section 3700 of the Labor Code which requires every
employer to be insured against liability for Workers' Compensation or to undertake self-
insurance in accordance with the provisions of that Code, and I will comply with such provisions
before commencing the performance of the work and activities required or permitted under this
Agreement. (Labor Code §186 1).
I affirm that at all times, in performing the work and activities required or permitted under
this Agreement, I shall not employ any person in any manner such that I become subject to the
workers' compensation laws of California. However, at any time, it' I employ any person such
that I become subject to the workers' compensation laws of California, immediately I shall
provide the City with a certificate of consent to self-insure, or a certification of workers'
compensation insurance.
I certify under penalty of perjury under the laws of the State of California that the information
and representations made in this certificate are true and correct.
LoadSpring Solutio, s Inc. Date:
<7...............................
By: r F
Jith"iSmith Executive Vice President
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