Loading...
HomeMy WebLinkAbout*AGMT - DataNET Solutions City of Seal Beach FILE REFERENCE FORM DATE: q-/2 -405- Initials: G� Full file — Created New Folder: Older file exists: Related topic: see below File contains records — NOT PUBLIC (Public Records Act) Other: Comments: C e, — ? ? u y / f/ L /1 »n?1 7 ',Nita_ 2 pi a wte awl �� hrvaV & tw, can Gb y', r,vbi litvf" u TeCtt4 ownDto —D`i— Ia AMENDED SOFTWARE MAINTENANCE AGREEMENT This AMENDED SOFTWARE MAINTENANCE AGREEMENT, ( "Amended Agreement ") initially executed on April 22, 2005, and thereafter amended on September 12, 2005, is between the City of Seal Beach, a Municipal Corporation, 211 8th Street, Seal Beach, CA 90740 ( "City "), and DataNET Solutions, Inc., a California Corporation, 4071 E. La Palma Avenue, Suite A, Anaheim, CA 92807 ( "Consultant "). RECITALS A. Consultant desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Amended Agreement. Consultant represents that it is experienced in providing professional services to public entities, and is familiar with the scope of work. B. The City desires to engage Consultant to render professional services. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, Consultant and the City agree, as follows: 1. Consultant's Services. a.o Software and Hardware. Consultant shall provide maintenance and support services as to the following Software and Hardware ( "Software "): i. LaserFische Software Assurance Plan (LSAP) Priority Support for Group Server (MSDE); ii. LaserFische Software Assurance Plan (LSAP) Priority Support for Full User City (Qty. 1); iii. LaserFische Software Assurance Plan (LSAP) Priority Support for Retrieval User (Qty. 2); iv. LaserFische Software Assurance Plan (LSAP) Priority Support for Snapshot (Qty. 1); v. LaserFische Software Assurance Plan (LSAP) Priority Support for MAPI E -Mail (Qty. 3); and vi. Priority Plus On -Site Support. 57296.0001.818393 page I of 10 b. Maintenance and Support Services. During the term of this Amended Agreement, Consultant shall provide the following maintenance and support services: i. Consultant shall promptly notify the City of any material defects, malfunctions, or errors in the Software or documentation of which it learns from any source; ii. Consultant shall correct material defects, malfunctions, and errors within a reasonable time and with reasonable effort; iii. Consultant shall provide the City with copies of the Software and documentation revised to reflect any and all updates and enhancements Consultant makes to the Software during the term of this Amended Agreement. Such enhancements shall include all modifications to the Software which increase the speed, efficiency or ease of operation of the Software or add capabilities to or otherwise improve the functions of the Software; iv. Consultant is not obligated by this Amended Agreement to correct errors caused by unauthorized modification made to the Software by the City, or to undertake updates made necessary by unauthorized modification of the Software by the City; v. Consultant shall provide Software and documentation for updates and enhancements to the City for installation on diskette, CD -ROM or DVD, for installation by the City. Consultant will install Software only if necessary and requested in writing by the City; vi. Consultant shall provide telephone support on a reasonable and necessary basis between the hours of 8:00 a.m. and 5:00 p.m. Pacific Time, Monday through Friday, excluding bank holidays, unless another form of support is agreed to in writing by the City; vii. Upon request of the City, Consultant shall provide on -site support within 24 hours or within a mutually agreed -upon time frame; and viii. Subject to the foregoing, Consultant shall respond to the City's requests and problems within a time frame that reasonably reflects the urgency of the resolution of the request. Consultant will use reasonable efforts to give the 87296.0001.818393 page 2 of 10 most appropriate advice, but the responsibility for acting on or implementing such advice shall remain with the City. c. Additional Services and Software. Consultant shall provide the additional services and software set forth in the Quote, dated 7/29/2005, attached hereto as Exhibit B and incorporated by this reference. 2. Term. The Term of this Amended Agreement shall be from April 22, 2005 to and including September 12, 2006. Consultant hereby grants to the City an option to extend this Amended Agreement on the same terms and conditions set forth herein. The City may exercise this option by notifying Consultant in writing of the City's intention to renew the Amended Agreement at least 30 days prior to the expiration of the term. 3. Project Manager. Consultant's Project Manager for this Amended Agreement will be Shawn Kasner, who will have the overall responsibility and will supervise the services performed by Consultant. 4. Personnel. Consultant represents that it has, or will secure at its own expense, all personnel required to perform the services under this Amended Agreement. All of the services required under this Amended Agreement will be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. Consultant reserves the right to determine the assignment of its own employees to the performance of Consultant's services under this Amended Agreement, but the City reserves the right, for good cause, to require Consultant to exclude any employee from performing services on City premises. 5. Licenses. Consultant shall obtain all necessary licenses, permits and other approvals to perform the work specified in this Amended Agreement and shall pay all fees or taxes required for the issuance of the same. 6. Compensation. City shall pay the amount of $1,111.00 to Consultant for the services itemized in Section 1, subsections a and b of this Amended Agreement. City shall pay the amount of $37,808.97 to Consultant for the additional services and software itemized in Exhibit B, in accordance with the rates specified in Exhibit 13. 7. Confidentiality. Employees of Consultant in the course of their duties under this Amended Agreement may have access to financial, accounting, statistical, patron records, and other data maintained with the City's computer systems. Consultant covenants that all data, documents, discussions, or other information developed or received by Consultant or provided or exposed in the course of the performance of this Amended Agreement are confidential and shall not be disclosed by Consultant without written authorization by the City. All City data shall be returned to the City upon the termination of this Amended Agreement. Consultant's covenant under this section shall survive the termination of this Amended Agreement. S7296.0001.818393 page 3 of 10 • • 8. Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Amended Agreement. 9. Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Amended Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party actual attorney's fees and all other costs of such action. 10. Insurance. a. Consultant shall at all times during the term of this Amended Agreement carry, maintain, and keep in full force and effect, a policy or policies of comprehensive General liability insurance, with limits of one million ($1,000.000) dollars for each occurrence and in the aggregate, combined single limit, against any personal injury, death, loss or damage resulting from the wrongful or negligent acts or omissions of Consultant, its officers, employees, agents and independent contractors. If such insurance contains a general aggregate limit, such limit shall apply separately to this Amended Agreement. b. Consultant shall at all times during the Term of this Amended Agreement also carry, maintain, and keep in full force and effect a policy or policies of commercial automobile liability insurance with a combined single limit of one million ($1,000.000) dollars per occurrence which will cover the drivers and automobiles used to perform services pursuant to this Amended Agreement. Such insurance shall include coverage for owned, non - owned, and hired automobiles. c. Consultant agrees to maintain in full force and effect at all times during the performance of work under this Amended Agreement workers compensation insurance as required by law. d. The policy or policies required herein shall be issued by an insurer admitted in the State of California with a rating of at Least B +, VII in the latest edition of A.M. Best's insurance guide. e. Consultant agrees that if it does not keep the aforesaid insurance in full force and effect City may either immediately terminate this Amended Agreement for default by Consultant, or, if insurance is available at reasonable cost, City may take out the necessary insurance and pay, at Consultant expense, the premium thereon. f. Prior to commencement of work, and at all times during the term of this Amended Agreement, Consultant shall maintain on file with the City Clerk a certificate or certificates of insurance on the form set forth in Exhibit A, attached hereto and incorporated herein by this reference, showing that the aforesaid policies are in effect in the required amounts, the additional insureds are named therein, and the policies 57296.0001.818393 page 4 of 10 • cannot be canceled, reduced or otherwise modified except on thirty (30) days written notice by the insurance carrier to the City. g. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates shall also specifically state that the coverage contained in those policies affords insurance in compliance with the terms and conditions as set forth in this Amended Agreement. h. The general liability policy shall be endorsed to state that City, its officers, employees, agents and volunteers shall be covered as additional insureds with respect to the work or operations performed by or on behalf of Consultant, including materials, parts or equipment furnished in connection with such work. The automobile liability policy shall be endorsed to state that City, its officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any automobile owned, leased, hired or borrowed by Consultant or for which Consultant is responsible. i. The policies required under this Amended Agreement shall contain an endorsement providing that the policies cannot be canceled, or coverage reduced, except on 30 days prior written notice to the City. Consultant agrees that it will not cancel, reduce, or otherwise modify said insurance coverage. j. The insurance provided by Consultant shall be primary to any coverage available to City. The insurance policies required by this Amended Agreement shall include provisions for waiver of subrogation. k. Any deductibles or self - insured retentions shall be declared to and are subject to City's approval. At the option of City, either the insurer shall reduce or eliminate the deductibles or self - insured retentions as respects City, or Consultant shall procure a bond guaranteeing payment of losses and expenses. 1. Nothing contained herein shall be construed as limiting in any way Consultant obligations of indemnification under Section 11 or other extent to which Consultant may be held responsible for payment of damages to persons or property resulting from its operations, including operations and work performed or materials supplied by or on behalf of Consultant, any subcontractors or by anyone directly or indirectly employed by any of them. 11. Indemnification. Consultant shall indemnify City, its officers, employees, agents and volunteers against, and will hold each of them harmless from, any and all actions, claims, costs, causes of action, demands, damages, injuries, expenses, penalties, obligations or liabilities, in law or equity, to persons or property, including wrongful death, that may be asserted or claimed by any person, firm, entity, corporation, political subdivision or other organization arising out of or incident to any acts, errors or omissions of Consultant, its agents, employees, subcontractors, or invitees arising out of 57296.0001 818393 page 5 of 10 • • • Consultant's performance under this Amended Agreement. Consultant shall defend any action or actions filed in connection with any of said claims, damages, penalties, obligations or liabilities and will pay all costs and expenses, including attorneys fees and costs of litigation incurred in connection herewith. Consultant shall promptly pay and satisfy any judgment rendered against City, its officers, employees, agents, and volunteers for any such claims, damages, penalties, obligations or liabilities. In the event City, its officers, employees, agents, or volunteers are made a party to any action or proceeding filed or prosecuted against Consultant, its officers, employees, agents and assigns, for such damages or other claims arising out of or in connection with the acts of Consultant hereunder, Consultant shall pay City, its officers, employees, agents, and volunteers any and all costs and expenses incurred by them in such action or proceeding, including but not limited to, actual attorney's fees and costs of litigation. Consultant shall reimburse City and its officers, employees, agents and volunteers for any and all legal expenses and costs incurred by each of them in connection therewith in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by City, its officers, employees, agents and volunteers. Consultant's covenants under this Section shall survive the termination or expiration of this Amended Agreement. 12. Right to License: No Infringement. Consultant represents that it has secured all necessary licenses, consents or approvals to use the components of the Software and to sell the Software under its name. Consultant covenants to defend, indemnify and hold the City harmless of any Toss, claim or liability in any way related to a claim that the City is violating federal, state or local laws, or any contractual provisions, relating to trade names, licenses, franchises, patents or other means of protecting interests in products or inventions. Consultant shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked materials, equipment, devices or processes used on or incorporated in the Software. In case such materials, equipment, devices or processes are held to constitute an infringement and their use is enjoined, Consultant, at its expense shall: (a) secure for the City the right to continue using the Software by suspension of any injunction or by procuring a license or licenses for City; or (b) modify the Software so that it becomes non - infringing; or (c) remove the Software and refund all sums paid therefore without prejudice to any other rights of the City. These covenants shall survive the termination of this Amended Agreement and are not subject to the limitations of Section 13 below. 13. Warranty Disclaimers. Except as otherwise provided in Sections 1, 11, and 12 above, Consultant makes no representation or warranties regarding the services to be provided hereunder, including but not limited to representations or warranties of merchantability or fitness for a particular purpose. 14. Entire Agreement. This Amended Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Amended Agreement may only be modified by a writing signed by both parties. 57296.0001.818393 page 6 of 10 • • 15. Governing Law. The laws of the State of California shall govern this Amended Agreement. 16. Time of Essence. Time is of the essence for each and every provision of this Amended Agreement. 17. Successors and Assigns. This Amended Agreement shall be binding on the successors and assigns of the parties, and shall not be assigned by Consultant without the prior written consent of the City. 18. Amendment; Modification. No supplement, modification, or amendment of this Amended Agreement shall be binding unless executed in writing and signed by both Parties. 19. Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 20. Independent Contractor. Consultant is an independent contractor and shall have no power to incur any debt, obligation or liability on behalf of the City. Consultant shall not, at any time or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City. 21. No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 22. Invalidity; Severability. If any portion of this Amended Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 23. Captions. Section headings used in this Amended Agreement are for convenience of reference only and shall not affect the construction of any provisions of this Amended Agreement. 24. Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Amended Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Amended Agreement. For breach or violation of this warranty, the City shall have the right to rescind this Amended Agreement without liability. For the term of this Amended Agreement, no member, officer or employee of the City, during the term of his or her service with the City, shall have any direct interest in this Amended Agreement, or obtain any present or anticipated material benefit arising therefrom. 57296.0001.818393 page 7 of 10 • • • 25. Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Amended Agreement. Each party warrants that the individuals who have signed this Amended Agreement have the legal power, right, and authority to make this Amended Agreement and bind each respective party. IN WITNESS WHEREOF, the parties hereto have caused this Amended Agreement to be executed and attested by their proper officers thereunto: CITY OF S A EAC DATANET SOLUTIONS INC. By: i By: l CrYn ` Title: Lac ril �/���;a�O.l Title: D2ES AP 3 -09 Date: 9- ro a OOS ' By: Ul S 0100 Title: t/ / ` / (Mei ! 'J/O") Date: %' 6 I- 2c r (Two signatures required for corporations — California Corporations Code Section 313) Approved Attest: OrAl r.,,. 'i „ as to Form: Ci y Clerk City Attorney 57296.0001.818393 page 8 of 10 Certificate ID: 73049. AC CERTIFICATE OF LIABILITY INSURANCE -- °"a9iz�D/T ") PRODUCER, _.f . . ' r THIS CERTIFICATE IS ISSUED, AS A MATTER OE INFORMATION InsuranceNOOdle, Inc. ONLY AND CONFERS NO RIGHTS UPON THE - CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 233 South Wacker Drive Suite 1850 33cSou, IL ce05 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED INSURER A: Hartford Casualty Insurance Comps 29424 DataNet Solutions, Inc. INSURERS: 4071 E. La Palma # A INSURER C: Anaheim, CA 92807 INSURER D: I INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR'AOD'U POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION I LIMITS LTR INSRD TYPE OF INSURANCE DATE IMM /DD/YYI DATE IMM/DOIYYI GENERAL LIABILITY 83SHAPN4359 09/18/2009 09/18/2010 EACH OCCURRENCE g 1,000,000 A 1 COMMERCIAL GENERAL LIABILITY PRE SES(Ea occurence) $ 300,000 CLAIMS MADE ✓ OCCUR MEDEXP(Any one person) $ 10,000 _ _ PERSONAL BADV INJURY ' I s 1,000,000 ' - GENERAL AGGREGATE $ 2,000,000 , , � GEN'L AGGREGATE LIMIT APPLIES PER: _ PRODUCTS - COMP /OPAGG , $ 2,000,000 r POLICY n 7, • I LOC . . . ... .... . .. _ ... AUTOMOBILE LIABILITY • 83SBAPN4359 09/18/2009 09/18/2010 COMBINED SINGLE LIMIT ANY AUTO - (Ea accident) $ 1,000,000 - ALL OWNED AUTOS BODILY INJURY $ A SCHEDULED AUTOS (Per person) HIRED AUTOS BODILY INJURY ✓ NON -OWNED AUTOS (Per accident) $ PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY: AGG I $ b 83SH ESSIUMBRELLALIABILITY APN4359 09/18/2009 09/18/2010 EACH OCCURRENCE $ 1,000,000 OCCUR CLAIMS MADE AGGREGATE $ 1,000,000 A J _ DEDUCTIBLE $ I/ RETENTION $ 10, 000 S 1 WORKERS COMPENSATION AND WCSTATU- I OTH- TO$YLIMITS FR EMPLOYERS' LIABILITY E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT 5 OTHER DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS The City of Seal Beach is named Additional Insured as their interest may appear as respects operations of the Named Insured with respect for general liability. General Liability coverage provided is Primary over any other insurance maintained by the Additional Insured. Waiver of Subrogation on behalf of the Additional Insured is applicable under the General Liaiblity policy. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION City of Seal Beach DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN 211 8th St NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL Seal Beach, CA 90740 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHOSE{TAT ACORD 25 (2001 /08) RR / / JJ © ACORD CORPORATION 1988 0 • ACORD ADDITIONAL INTEREST DATE (MMIDDIYYYI) 09/21/09 AGENCY ( PHONE Eat). 1- 888-466-8868 APPLICANT (First Named Insured) P Est): 714 - 993 -4260 FAX 312- 372 -0044 (NC, No): DataNet Solutions, Inc. InsuranceNoodle, Inc. 4071 E. La Palma • 233 South Wacker Drive Suite 1850 # A Chicago, IL 60606 Anaheim, CA 92807 EFFECTIVE DATE EXPIRATION DATE COIPLAN CODE: SUB CODE: AGENCY CUSTOMER ID POLICY NUMBER: ACCOUNT NUMBER: INTEREST RANK: NAME AND ADDRESS REFERENCE #: 1 CERTIFICATE REQUIRED INTEREST IN ITEM NUMBER El ADDITIONAL INSURED City of Seal Beach LOCATION: 1 BUILDING: ■ LOSS PAYEE 211 8th St VEHICLE: BOAT: ■ MORTGAGEE Seal Beach, CA 90740 SCHEDULED ITEM NUMBER: LIENHOLDER OTHER EMPLOYEE AS LESSOR ITEM DESCRIPTION: Cli INTEREST RANK: NAME AND ADDRESS I REFERENCE #: 1 I CERTIFICATE REQUIRED INTEREST IN ITEM NUMBER ■ ADDITIONAL INSURED LOCATION: BUILDING: ■ LOSS PAYEE , ' VEHICLE: - BOAT: ■ MORTGAGEE - SCHEDULED ITEM NUMBER: LIENHOLDER OTHER. - EMPLOYEE AS LESSOR ITEM DESCRIPTION: INTEREST I RANK: NAME AND ADDRESS REFERENCE #: CERTIFICATE REQUIRED INTEREST IN ITEM NUMBER ■ ADDITIONAL INSURED LOCATION: BUILDING: ■ LOSS PAYEE VEHICLE: BOAT: . MORTGAGEE SCHEDULED ITEM NUMBER: LIENHOLDER OTHER EMPLOYEE AS LESSOR ITEM DESCRIPTION: INTEREST RANK: NAME AND ADDRESS REFERENCE #: CERTIFICATE REQUIRED INTEREST IN ITEM NUMBER ■ ADDITIONAL INSURED LOCATION: BUILDING: ■ LOSS PAYEE VEHICLE: BOAT: MORTGAGEE SCHEDULED ITEM NUMBER: LIENHOLDER OTHER EMPLOYEE AS LESSOR ITEM DESCRIPTION: INTEREST RANK: NAME AND ADDRESS REFERENCE #: 1 CERTIFICATE REQUIRED INTEREST IN ITEM NUMBER ■ ADDITIONAL INSURED LOCATION: 1 BUILDING: ■ L055 PAYEE VEHICLE: BOAT: ■ MORTGAGEE SCHEDULED ITEM NUMBER: LIENHOLDER OTHER EMPLOYEE AS LESSOR ITEM DESCRIPTION: INTEREST RANK: NAME AND ADDRESS REFERENCE #: J CERTIFICATE REQUIRED INTEREST IN ITEM NUMBER ■ ADDITIONAL INSURED LOCATION: BUILDING: ■ LOSS PAYEE VEHICLE: . BOAT: ■ MORTGAGEE 1 SCHEDULED ITEM NUMBER: LIENHOLDER • OTHER EMPLOYEE AS LESSOR ITEM DESCRIPTION: . INTEREST I RANK: 1 NAME AND ADDRESS REFERENCE #: 1 1 CERTIFICATE REQUIRED INTEREST IN REM NUMBER ■ ADDITIONAL INSURED LOCATION: BUILDING: ■ LOSS PAYEE VEHICLE: BOAT: ■ MORTGAGEE SCHEDULED ITEM NUMBER: _ LIENHOLDER OTHER EMPLOYEE AS LESSOR ITEM DESCRIPTION: ACORD 45 (2003/04) ID ACORD CORPORATION 1993