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HomeMy WebLinkAboutAGMT - CALOPPS Employment Application Hosting CALOPPS External Website Development, Support, and Shared Hosting Services Agreement This Agreement is made and entered into as of the 27th day of May, 2015 by and between the City of Seal Beach, hereinafter referred to as "CLIENT", and the City of Foster City/Estero Municipal Improvement District, a Municipal Corporation, hereinafter referred to as "CITY/DISTRICT". CLIENT and CITY/DISTRICT shall be referred to hereinafter as the "PARTIES." RECITALS This Agreement is entered into with reference to the following facts and circumstances:. A. That CLIENT has the need to secure expert consulting services to provide CLIENT with a system of hosting an Internet employment website; and B. That CITY/DISTRICT is specially experienced and qualified to perform the specialized consulting services desired by the CLIENT and is willing to perform such services which shall be known as CalOpps; and C. That CLIENT has elected to engage the services of CITY/DISTRICT upon the terms and conditions as hereinafter set forth. AGREEMENT 1. Services. The services to be performed by CITY/DISTRICT under this Agreement shall include those services set forth in Appendix A, which is, by this reference, incorporated herein and made a part hereof as though it were fully set forth herein. Performance of the work specified in said Appendix A is hereby made an obligation of CITY/DISTRICT under this Agreement, subject to CLIENT's obligations set forth in Appendix A. Any changes to the Agreement shall be made only upon the mutual written agreement of the Parties. 2. Term; Termination. (a) The term of this Agreement shall commence upon the date hereinabove written and continue for a period of twelve (12) months. At the end of each twelve (12) month period, the Agreement shall automatically renew for an additional twelve (12) month period, provided neither party terminates the Agreement as specified herein. (b) Neither Party shall be authorized to terminate this Agreement within the first six (6) months after execution. Thereafter, either Party may terminate this Agreement without cause by giving written notice not less than thirty (30) days prior to the effective date of termination, which date shall be included in said notice. In the event of such termination, CLIENT shall compensate CITY/DISTRICT for MAC services, as defined below, rendered to the date of termination. If CLIENT terminates the Agreement, there shall be no refund of the yearly fee paid for'Network Administration. Nothing herein contained shall be deemed a limitation upon the right of either party to terminate this Agreement for cause, or otherwise to exercise such rights or pursue such remedies as may accrue hereunder. 3. Compensation; Expenses, Payment. CITY/DISTRICT shall provide CalOpps services to CLIENT pursuant to the following fee: A. CALOPPS Software System: Initial Participation Fee: Two Thousand Dollars ($2,000.00) participation fee in year one (1) of the Agreement payable to CITY/DISTRICT upon the execution of this Agreement. A $750.00 charge is due upon signing of the contract for system training. B. Annual Fee 1. One Thousand Five Hundred Dollars ($1,500.00) for System Administration Maintenance and Support, as defined in Appendix A,for each subsequent year of contract renewal. 2. In all subsequent years, provided CLIENT does not terminate the Agreement, the yearly System Administration, Maintenance and Support Fee may be adjusted based on increased costs as defined in Appendix A. C. Move/Add/Change ("MAC") Costs: For services authorized in writing by and provided to CLIENT in excess of the normal System Administration, Maintenance and Support covered by the annual fee, CLIENT shall pay in year one (1) of the Agreement an hourly rate calculated based on ("MAC rate") current positions salary with overhead rate. Overhead rate includes benefits percentage allocation of salary and a general admin overhead rate of 20%. D. In all subsequent years, the MAC rate shall be adjusted based on labor costs. E. The annual fee for System Administration, Maintenance and Support shall be due and payable on the anniversary date of this Agreement, provided CLIENT elects to renew. Payment for MAC shall be due thirty (30) days after billing for same. F. CLIENT shall promptly review invoicing and notify CITY/DISTRICT of any objection thereto in writing within thirty (30) business days of receipt of the invoice, and absent such objection, the invoice shall be deemed proper and acceptable, and shall be due thirty (30) days after billing. Absent such objection, unpaid fees shall bear interest from the date due at the maximum rate then allowable by law. 4. Records. CITY/DISTRICT shall keep and maintain accurate records of all time expended and costs and expenses incurred relating to services to be performed by CITY/DISTRICT hereunder. Said records shall be available to CLIENT for review and copying during regular business hours at CITY/DISTRICT's place of business or as otherwise agreed upon by the Parties. 5. Authorization. This Agreement becomes effective when endorsed by both Parties in the space provided below. 6. Reliance on Professional Skill of CITY/DISTRICT. CITY/DISTRICT represents that it has the necessary professional skills to perform the services required and the CLIENT shall rely on such skills of the CITY/DISTRICT to do and perform the work. In performing services hereunder CITY/DISTRICT shall adhere to the standards generally prevailing for the performance of expert consulting services similar to those to be performed by CITY/DISTRICT hereunder. 7. Relationship of Parties. It is understood that the relationship of CITY/DISTRICT to the CLIENT is that of an independent contractor and all persons working for or under the direction of CITY/DISTRICT are its agents or employees and not agents or employees of the CLIENT. 8. Defaults/Remedies. The occurrence of any one or more of the following events shall constitute a material default or breach of this Agreement by CLIENT: A. Failure by the CLIENT to make any payment of fees required under this Agreement where such failure shall continue for a period of fifteen(15) business days after written notice by CITY/DISTRICT. B. Violation of any of the terms of Content Agreements as listed in Appendix A to this Agreement. In the event of a material default or breach by CLIENT, the CITY/DISTRICT may, without limiting the CITY/DISTRICT's rights or remedies, terminate CLIENT access to CalOpps website and all other services provided herein. 9. Indemnity. CLIENT hereby agrees to defend, indemnify, and save harmless CITY/District, its Council, boards, commissions, officers, employees and agents, from and against any and all claims, suits, actions, liability, loss, damage, expense, cost (including, without limitation, costs and fees of litigation) of every nature, kind or description, which may be brought against, or suffered or sustained by, CITY/DISTRICT, its Council, boards, commissions, officers, employees or agents caused by, or alleged to have been caused by, negligence, intentional tortious act or omission, or willful misconduct of CLIENT, its officers, employees or agents in the performance of any services or work pursuant to this Agreement. CITY/DISTRICT hereby agrees to defend, indemnify, and save harmless CLIENT, its Council, boards, commissions, officers, employees and agents, from and against any and all claims, suits, actions, liability, loss, damage, expense, cost (including, without limitation, costs and fees of litigation) of every nature, kind or description, which may be brought against, or suffered or sustained by, CLIENT, its Council, boards, commissions, officers, employees or agents caused by, or alleged to have been caused by, negligence, intentional tortious act or omission, or willful misconduct of CITY/DISTRICT,its officers, employees or agents in the performance of any services or work pursuant to this Agreement. PATENT INFRINGEMENT CITY/DISTRICT shall indemnify and defend the CLIENT in any actions against the CLIENT to the extent that they are based on a claim of infringement for the use of CalOpps related to this Agreement, provided that CITY/DISTRICT is notified in writing of such claim. CITY/DISTRICT shall have the right to control the defense of all such claims, lawsuits and other proceedings. CLIENT shall use its best efforts to aid CITY/DISTRICT in conducting any such defense. In case of a judgment adverse to the CLIENT or CITY/DISTRICT, CITY/DISTRICT shall make reasonable efforts to purchase the right to continued use of any infringing software on the CLIENT's behalf, or to modify CalOpps to make it non-infringing. 10. Notice. All notices required by this Agreement shall be given to the CITY/DISTRICT and CLIENT in writing, by first class mail, postage prepaid, addressed as follows: CITY: City of Foster City 610 Foster City Boulevard Foster City, CA 94404-2299 Attention: HR Director CLIENT: City of Seal Beach 211 8th Street Seal Beach, CA 90740 Attn.: City Manager 11. Non-Assignment. This Agreement is not assignable either in whole or in part. 12. Amendments. This Agreement may be amended or modified only by written agreement signed by both Parties. 13. Valid i . 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. 14. Governing. This Agreement shall be governed by the laws of the State of California and any suit or action initiated by either party shall be brought in the County of San Mateo, California. In the event of litigation between the Parties hereto to enforce any provision of the Agreement, the unsuccessful party will pay the reasonable attorney's fees and expenses of litigation of the successful parry. 15. Mediation. Should any dispute arise out of this Agreement, the Parties shall first meet in mediation and attempt to reach a resolution with the assistance of a mutually acceptable mediator. Neither party shall be permitted to file legal action without first meeting at least once in mediation and making a good faith attempt to reach a mediated resolution. The costs of the mediator, if any, shall be paid equally by the Parties. If a mediated settlement is reached neither party shall be deemed the prevailing party for purposes of the settlement, and each party shall bear its own legal costs. 16. Entire Agreement. This Agreement, including its Appendix A and Appendix B, comprises the entire Agreement between the PARTIES. IN WITNESS WHEREOF, the PARTIES hereto have caused this Agreement to be executed on the date first above written by their respective officers duly authorized in that behalf. CITY OF FOSTER CITY A Municipal Corporation Dated: 6 `�' L� J C. Hardy, City Manager ATTEST: Dated: t")V- &�� Doris P- City Clerk CITY OF SEAL BEACH A Municipal Corporation Dated: V/ 1 J 11 Ingram, City Mana r ATTEST: Dated: �' 4 l 15 Tina Knapp, Acting City Clerk Appendix A Maintain and Host www.CalOpps.org also known as"CalOpps" Definitions: `Annual Administration,.Maintenance and Software Support Fee' shall mean all work performed on CalOpps as established in Section 2, Annual Maintenance by CITY/DISTRICT on behalf of CalOpps. `CITY/DISTRICT' shall mean the City of Foster City/Estero Municipal Improvement District. `CLIENT' shall mean Participating Public Agency in CalOpps. `City Developer' shall mean any custom development work performed by `CITY/DISTRICT' staff using ColdFusion and other utility software to develop the CalOpps Website. `3r Party Developer' shall mean any developer contracted by CITY/DISTR.ICT to perform maintenance or custom development work on behalf of the CITY/DISTRICT to support/maintain the CalOpps application. `Move/Add/Change/Costs ("MAC")' shall mean any CLIENT requests not covered in the annual CalOpps services fees and defined in Section 1, Scope of Services. `Project Manager' shall mean the CITY/DISTRICT's Information Technology Manager or any other CITY/DISTRICT staff member so designated by the CITY/DISTRICT'S Assistant City Manager to define any project scope, project management, coordinate and manage `CITY/DISTRICT' staff, and purchase necessary hardware or software. `Software Support' shall mean the CITY/DISTR.ICT's Human Resources Department staff or any other CITY/DISTR.ICT staff so designated by the CITY/DISTRICT's Human Resources Director to provide day to day support to CLIENT agencies during Normal Working Hours. `System Administrator' shall mean the CITY/DISTRICT's Human Resources Director or any other CITY/DISTRICT staff so designated by the CITY/DISTRICT's Human Resources Director to provide administrative oversight of the CalOpps website including marketing strategies,participant contracts, and CLIENT communication. `Normal Working Hours' shall mean Monday through Friday, 7:00 a.m. to 6:00 p.m. PST or PDT (depending on the time of year),excluding Holidays observed by CITY/DISTRICT. Section 1: Scope of Services The CITY/DISTRICT will maintain a website such that each CLIENT is capable of performing the following at CalOpps.org: System Capabilities Interacting with an Agency Profile Interface Posting agency jobs Performing application Review and Rating Scheduling Interviews and Tests Entering Applicant Scores Creating and Tracking Notices to Applicants, including E-mail correspondence Enabling a dedicated Applicant Tracking System Searching Interest Card database Storing and maintaining recruitment data in accordance with, the CLIENT-specified retention policy Section 2: Website Hosting/Support CITUDISTRICT's Obligation CITY/DISTRICT will manage the hosting, maintenance and support of the Calopps Application and website. Support requests shall be provided during Normal Working Hours of CITY/DISTRICT Staff. CITY/DISTRICT will, subject to the limitations enumerated below, maintain 24x7 up time for the website,but critical hours of operation will be 'Normal Working Hours'. CITY/DISTRICT shall provide CLIENT with a point of contact and contact procedures for emergency service requests, including call escalation procedures. CITY/DISTRICT shall respond to inquiries submitted to the website administrator within four(4)hours of receipt, during normal business hours. CITY/DISTRICT shall complete maintenance procedures outside of Normal Working Hours to minimize downtime. When planned maintenance is scheduled, CITY/DISTRICT staff will give CLIENT's contact person,via e-mail,48 hours notice. Emergency or immediate maintenance may require the CalOpps server to be down during Normal Working Hours. The CITY/DISTRICT will attempt to minimize any disruptions in service to CLIENT website. CITY/DISTRICT will not be responsible for loss of business to the CLIENT site due to circumstances outside of the CITY/DISTRICT's direct control. Examples of such circumstances include, but are not limited to, Internet outages, unavailability of the server to users caused by the CITY/DISTRICT's Internet Service Provider, damage to telecommunications infrastructure not caused by the CITY/DISTRICT, or major hardware failure of CalOpps servers. Annual System Administration,Maintenance and Support Includes: • Services to allow CalOpps availability via the Internet. Hardware Support Costs • Software Assurance for non-FC software • 25 hours per quarter of MAC, Report requests from City Developer * 120 hours per quarter of Support Services from Software Support and System Administrator • Normal Operating Expenses (i.e.; copy, marketing/trade shows, consultant fees as needed) CLIENT's Obligation CLIENT shall provide to the CITY/DISTRICT a designated contact Administrator "the CLIENT Administrator". All communications from the CITY/DISTRICT to CLIENT will be through the CLIENT'S Administrator, or, in his/her absence, a designated alternate. The CLIENT'S Administrator will be responsible for minor maintenance work, including but not limited to, setting up and maintaining CLIENT's agency profile interface. The CLIENT'S Administrator shall disseminate all communication from the CITY/DISTRICT to the CLIENT as necessary. CLIENT shall meet all deadlines for review of date timelines and database information-. CLIENT shall not hold the CITY/DISTRICT liable for any database records deleted from system due to missed deadlines for review and download of database records. Ownership of Hardware/Non CITY/DISTRICT Licensed Software CITY/DISTRICT shall be responsible for providing/procuring the necessary infrastructure to support the CalOpps Application and website, including but not limited to hosting the website on City-owned assets or under a Managed Services Agreement with a P party provider chosen at the CITY/DISTRICT's sole discretion). CITY/DISTRICT shall obtain sufficient licenses for all software in use by all participating public agencies {CLIENTS) and public visitors using the CalOpps site. CLIENT's initial costs will allow the CITY/DISTRICT to invest in the technology and/or provide sufficient capacity to host CLIENT's data under the Managed Services Agreement under this Agreement. CITY/DISTRICT shall obtain and use an annual maintenance contract to fund maintenance and replacement costs for the hardware and software. Ownership of CITY/DISTRICT Developed Software All Cold Fusion code and database structure developed, as part of this Agreement is the property of the CITY/DISTRICT and shall be retained by CITY/DISTRICT if this Agreement is terminated. CLIENT is not permitted to use the ideas and code developed by CITY/DISTRICT for its own use. All data entered into the database is the property of the CLIENT. CITY/DISTRICT shall have no right to use data stored and/or maintained in the CLIENT's database for any purpose other than testing as part of the development or maintenance of the web site as provided by this Agreement. Domain Name The CITY/DISTRICT owns and must maintain registration of the domain name CalOpps.org at all times. The CITY/DISTRICT shall be listed as the 'technical contact' for said domain name. The IP address assigned to CLIENT domain shall be owned by the CITY/DISTRICT and may be changed at anytime at the CITY/DISTRICT's discretion. CITY/DISTRICT shall maintain the domain registration and IP address at no additional cost to CLIENT. Security Agreements An administrator password will be provided to the Administrator. In addition, CLIENT shall be assigned passwords to update and access the site. It is the responsibility of the CLIENT to keep this information confidential. If any damage is done to the website via an assigned account, it is the responsibility of the CLIENT. CITY/DISTRICT shall abide by the data privacy policy as established on the CalOpps website CITY/DISTRICT shall use commercially reasonable best efforts to ensure the security and integrity of CLIENT's data, and shall use its best efforts to notify CLIENT of any known or suspected security breach within four business hours of occurrence of such breach. Content Agreements CLIENT shall be responsible for all content posted to the website by its authorized users. CLIENT shall use the website only for the stated purposes in Section I of Appendix A. CLIENT agrees to use its best efforts to ensure its content posted on the CalOpps site will not violate any intellectual property rights, will not resell the services set forth in this Agreement, or will not engage in any illegal or fraudulent activities. CLIENT shall not post any content that is (covered above) obscene, defamatory, harassing, abusive or threatening. CLIENT shall not be deemed to have violated this provision if CLIENT determined in good faith, after consulting legal counsel, that such content was not obscene, defamatory,harassing, abusive or threatening. CITY/DISTRICT will cooperate fully with any law enforcement agency in connection with any and all illegal activities occurring on or through this service. Appendix B INSURANCE (a) WORKERS' COMPFNSATION. During the term of this Agreement, CITY/DISTRICT shall fully comply with the terms of the law of California concerning workers' compensation, (b) GENERAL LIABILITY INSURANCE. CITY/DISTRICT shall obtain at its sole cost and keep in full force and effect during the term of this agreement commercial general liability insurance in the amount of$1,000,000 per occurrence for bodily injury, personal injury, and property damage. Said insurance shall operate as primary insurance. Except as provided in Section 9 (Indemnity) of this agreement, no other insurance affected by the CLIENT or other named insureds will be called upon to cover a loss covered thereunder. (c) AUTOMOBILE LIABILITY INSURANCE. CITY/DISTRICT shall obtain at its sole cost and keep in fall force and effect during the term of this agreement automobile liability insurance in the amount of$1,000,000 per occurrence covering bodily injury and property damage per occurence. Said insurance shall operate as primary insurance for Cit3i istrict employees. No other insurance effected by the CLIENT or other named insureds will be called upon to cover a loss covered thereunder. (d) CERTIFICATES OF INSURANCE. CITY/DISTRICT shall provide that no cancellation, expiration, or nonrenewal will be made during the term of this agreement, without thirty (30) calendar days advance written notice to the Director of Human Resources. (e) SELF-INSURANCE CERTIFICATION. It is understood that CITY/DISTRICT may be insured for one or more of the above insurance coverages by a self-insured program, and that evidence of coverage from such program, in lieu of commercial insurance, shall be satisfactory,provided all other conditions of coverage are satisfied.