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HomeMy WebLinkAboutReso - CC - 034-2012RESOLUTION NO. 34-2012 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH CAINE COMPUTER CONSULTING, LLC TO PROVIDE INFORMATION TECHNOLOGY SERVICES TO THE CITY'S POLICE DEPARTMENT WHEREAS, in May of 2008, the City Council approved an agreement with Caine Computer Consulting, LLC to provide information technology management services to the City's Police Department and in June of 2011, the City Council approved a renewal of said agreement; and WHEREAS, the City's Police Department, having benefited greatly from the services provided by Caine Computer Consulting, desires to extend the agreement with Caine Computer Consulting for the provision of information technology management services; and WHEREAS, Caine Computer Consulting is willing and able to continue to provide such information technology management services; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME RESOLVES AND ORDERS AS FOLLOWS: The City Council approves and authorizes the Mayor to execute a renewed agreement with Caine Computer Consulting, LLC in the form attached hereto as Exhibit "A" which is incorporated herein by this reference. Jerry I, Mary Ellen Kearney, City Clerk of the City of Burlingame, do hereby certify that the foregoing Resolution was introduced at a regular meeting of the City Council held on the 7t° day of May, 2012, and was adopted thereafter by the following vote: AYES: Councihnembers: BAYLOCK, BROWNRIGG, DEAL, KEIGHRAN, NAGEL NOES: Councilmembers: NONE ABSENT: Councilmembers: NONE Mar Ellen K amey, Ci Clerk AGREEMENT FOR PROFESSIONAL SERVICES This Agreement for Professional Services (the "Agreement"), effective July 1, 2012, is by and between The City of Burlingame, with its principal office in Burlingame, California (hereinafter "Client"), and Caine Computer Consulting, LLC, a California corporation, with its principal office in Redwood City, California, (hereinafter the "Company"). WHEREAS, Client finds that the Company is willing to perform certain work hereinafter described in accordance with the provisions of this Agreement; and WHEREAS, the Company represents that it is qualified to perform the work and that such performance will be in furtherance of Client's business. WHEREAS, Company will provide services both onsite and remotely at Company's place of business as the need arises. NOW, THEREFORE, in consideration of the mutual covenants set forth herein and intending to be legally bound, the parties hereto agree as follows: 1. SERVICES. 1.1 Effective Date. This Agreement is effective as of July 1, 2012. 1.2 Services to Client. The Company shall provide the following ("Services") to the Police Department of the Client as requested by the Client: a) Network/ Computer System Administration b) Website Administration c) Project Management d) Computer Software Management, including but not limited to, the Hitech Systems software e) Email System Management D Telephone System Management g) Communications Dispatching h) Communications Supervision as necessary i) Training and Computer Education to employees j) Other Client Projects as needed 1.1.1 New Projects and responsibilities can be added to the above list if mutually agreed upon by the parties. 1.1.2 Company agrees to provide consulting services, such as discussing available options, troubleshooting, recommending solutions and working with employees and equipment vendors as needed. 1.1.3 Client will be responsible for all hardware components. If hardware repair and support is needed, Client agrees to pay for contractor parts and services that Client has approved in writing before the parts or services have been provided. 1.1.4 Cabling will be performed by cabling contractors approved jointly by Client and Company and paid for by Client. 1.1.5 Company will work with Client's equipment vendors to troubleshoot issues and replace components under warranty. 1.1.6 Any purchases made will conform to Client's purchasing policies and procedures. 1.1.7 Company will provide support for workstation software, including the initial installation, re -installation, software upgrades/patches and configuration changes requested by Client. Company support for service software includes the initial installation, re -installation, software upgrades/patches and on-going monitoring of system processes, which include daily backup, logs, alarms and alerts. Software loaded on servers and workstations must be reviewed by Company for comments before purchase and installation. 1.1.8 Client will pay for any technical support contracts for third -party software. 1.1.9 Company employee(s) will report directly to the Administrative Commander, a Police Department employee of Client, or his/her designee. Company agrees to keep the Administrative Commander or his/her designee informed of work performed, and upon request, will provide an accounting of work done on projects. 1.1.10 Client will be responsible for purchasing and upgrading software licenses. 1.1.11 Company will provide services both on site and remotely in order to maintain the integrity of the Client's computer systems. If a significant amount of work is required to be done after normal business hours (0800- 1700) due to an emergency or other after- hours need, that work may be invoiced in addition to the contract amount, at a rate of $59.70 per hour or another amount which has been mutually agreed upon by both parties. If both parties agree, normal business hours can be adjusted to meet the needs of both parties. 1.1.12 Company agrees to be available 24 hours a day, 7 days a week by providing home telephone, business telephone and cellular telephone numbers unless notice has been given otherwise to Client. If Company will not be available, Company will provide a list of alternative support options for Client to call in the event of 2 emergency. 1.1.13 . Compliance with Laws. The Company shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Company represents and warrants to Client that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Company to practice its profession. Company represents and warrants to Client that Company shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Company to practice its profession. Company shall maintain a City of Burlingame business license. 1.1.14 Company shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement. 2. PAYMENT AND INVOICING TERMS. 2.1 Payment for Services. The Company will be paid as follows: $116,910.60 annually to be paid monthly at the rate of $9,742.55 per month Billing shall be accompanied by a detailed explanation of the work performed by whom, at what rate, and on what date. The submittal shall include the following: A. A narrative progress report of specific accomplishments during the billing period, problems encountered or anticipated, plans for resolving problems, accomplishments scheduled during the next billing period, and results of any significant activities. B. A cost report for each task showing: current period and tasks accomplished; 2. 1.1 Additional payment for specific projects may be negotiated separately and payment may be by hour or by project as mutually agreed upon. 2.1.2 All documents furnished to Company by the Client and all reports and supportive data prepared by the Company under this Agreement are the Client's property and shall be delivered to the Client upon the completion of Company's services or at the Client's written request. All reports, information, data, and exhibits prepared or assembled by Company in connection with the performance of its services pursuant to this Agreement are confidential until released by the Client to the public, and the Company shall not make any of the these documents or information available to any individual or organization not employed by the Company or the Client without the written consent of the Client before such release. The Client acknowledges that the reports to be prepared by the Company pursuant to this Agreement are for the purpose of evaluating defined projects, and Client's use of the information contained in the reports prepared by the Company in connection with other projects shall be solely at Client's risk, unless Company expressly consents to such use in writing. Client further agrees that it will not appropriate any methodology or technique of Company which is and has been confirmed in writing by Company to be a trade secret of Company. 3 2.3 Reimbursable Costs. Client shall reimburse the Company for the following costs incurred in connection with the Services rendered: travel costs, materials costs, copies, and delivery, that are attributable to a project or Service (the "Reimbursable Costs"). Travel costs are defined as air travel, lodging, meals and incidentals, ground transportation, tools, and all costs associated with travel. All travel expenses must receive Client's prior written approval. The Company shall provide to Client written substantiation of Reimbursable Costs incurred. 2.3.1 Client will provide all software and equipment that its employees are to use in providing Client's services. Company will be responsible to provide its own equipment and software for use at its place of business and for any diagnostic or communication purposes. 2.4 Invoicing. (a) Invoices will submitted monthly by the Company for payment by Client. Payment is due upon receipt and is past due thirty (30) days from receipt of invoice. If Client has any valid reason for disputing any portion of an invoice, Client will so notify the Company within fourteen (14) calendar days of receipt of invoice by Client, and if no such notification is given, the invoice will be deemed valid. The portion of the Company's invoice that is not in dispute shall be paid in accordance with the procedures set forth herein. If payment of invoices is not current, the Company may suspend performing further work. 2.5 Company shall maintain the records supporting this billing for not less than three (3) years following completion of the work under this Agreement. Company shall make these records available to authorized personnel of the Client at the Company's offices during business hours upon written request of the Client. 3. CHANGES. Client may, with the approval of the Company, issue written directions within the general scope of any Services to be ordered. Such changes (the "Change Order") may be for additional work or the Company may be directed to change the direction of the work covered by the Task Order, but no change will be allowed unless agreed to by the Company in writing. 4. STANDARD OF CARE. 4.1 The Company warrants that its services shall be performed by personnel possessing competency consistent with applicable industry standards. No other representation, express or implied, and no warranty or guarantee are included or intended in this Agreement, or in any report, opinion, deliverable, work product, document or otherwise. Furthermore, no guarantee is made as to the efficacy or value of any services performed or software developed. This Section sets forth the only warranties provided by the Company concerning the services and related work product. This warranty is made expressly in lieu of all other warranties, express or implied, including without limitation any implied warranties of fitness for a particular purpose, merchantability, non -infringement, title or otherwise. 4.2 Company understands that its professional responsibilities are solely to the Client. The Company has and shall not obtain any holding or interest within the City of Burlingame. Company has no business holdings or agreements with any individual member of the Staff or management of the Client or its representatives nor shall it enter into any such holdings or agreements. In addition, Company warrants that it does not 4 presently and shall not acquire any direct or indirect interest adverse to those of the Client in the subject of this Agreement, and it shall immediately disassociate itself from such an interest should it discover it has done so and shall, at the Client's sole discretion, divest itself of such interest. Company shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Company discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Company shall promptly notify Client of this employment relationship, and shall, at the Client's sole discretion, sever any such employment relationship. 4.3 Company warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Company nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. In performing services under this Agreement, Company shall not discriminate nor allow any discrimination against any person seeking these services on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or medical disability, national origin, religion, or medical condition unless based upon a bona -fide safety limitation. 5. LIABILITY. 5.1 Limitation. Company will provide Public Liability insurance in the amount of $1,000,000 and Errors & Omissions insurance policy in the amount of $500,000. The Company's liability, including but not limited to Client's claims of contributions and indemnification related to third party claims arising out of services rendered by the Company, and for any losses, injury or damages to persons or properties or work performed arising out of or in connection with this Agreement and for any other claim, shall be limited to the amount of the policy. Notwithstanding anything to the contrary in this Agreement, the Company shall not be liable for any lost profits or punitive damages. Client agrees to limit the Company's liability to Client for any damage on account of any error, omission or negligence to a sum not to exceed the amount of the insurance policy. The limitation of liability set forth herein is for any and all matters for which the Company may otherwise have liability arising out of or in connection with this Agreement, whether the claim arises in contract, tort, statute, or otherwise. 5.1.1 Any deductibles or self-insured retentions must be declared to and approved by the Client. At the option of the Client, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the Client, its officers, officials, employees and volunteers; or the Company shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. 5.1.2 With regard to the public liability policy, the Client, its officers, officials, employees and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Company; products and completed operations of Company, premises owned or used by the Company. The endorsement providing this additional insured coverage shall be equal to or broader than ISO Form CG 20 10 11 85 and must cover joint negligence, completed operations, and the acts of subcontractors. This requirement does not apply to the 5 professional liability insurance required for professional errors and omissions. 5.1.3 With regard to the public liability policy, the Company's insurance coverage shall be endorsed to be primary insurance as respects the Client, its officers, officials, employees and volunteers. Any insurance or self -insurances maintained by the Client, its officers, officials, employees or volunteers shall be excess of the Company's insurance and shall not contribute with it. 5.1.4 Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Client, its officers, officials, employees or volunteers. 5.1.5 The Company's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. 5.1.6 In addition to these policies, Company shall have and maintain Workers' Compensation insurance as required by California law. Further, Company shall ensure that all subcontractors employed by Company provide the required Workers' Compensation insurance for their respective employees. 5.1.7 All Coverages: Each insurance policy required in this Agreement shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Client. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Client Clerk. 5.1.8 Acceptability of Insurers. Insurance is to be placed with insurers with a Best's rating of no less than A -:VII and authorized to do business in the State of California. 5.1.9 Verification of Coverage. Upon execution of this Agreement, Company shall furnish the Client with certificates of insurance and with original endorsements effecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be on forms approved by the Client. All certificates and endorsements are to be received and approved by the Client before any work commences. The Client reserves the right to require complete, certified copies of all required insurance policies, at any time. 5.1.10 Indemnification. To the fullest extent permitted by law but as limited by this Section, the Company shall save, keep and hold harmless indemnify and defend the Client, its officers, agent, employees and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity, including but not limited to attorneys' fees, that may at any time arise, result from, relate to, or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Company, or any of the Company's officers, employees, or agents or any subconsultant. This provision shall not apply if the damage or injury is caused by the sole negligence or willful misconduct of the Client, its officers, agents, employees, or volunteers. 5.2 Remedy. Client's exclusive remedy for any claim arising out of or relating to a breach of this Agreement will be for the Company, upon receipt of written notice, to use commercially reasonable efforts to cure, at its expense, the matter that gave rise to the claim for which the Company is at fault, 5.3 Survival. Articles 2, 4, 5, and 6 survive the expiration or termination of this Agreement for any reason. C 6. MISCELLANEOUS. Company may consult with other vendors as needed, and when authorized in advance in writing by Client, Client agrees to pay the costs thereof. All expenditures will be agreed upon before such consultation is sought. 6.1 Severability. Should any part of this Agreement for any reason be declared invalid, such decision shall not affect the validity of any remaining provisions, which remaining provisions shall remain in full force and effect as if this Agreement had been executed with the invalid portion thereof eliminated, and it is hereby declared the intention of the parties that they would have executed the remaining portion of this Agreement without including any such part, parts, or portions which may, for any reason, be hereafter declared invalid. Any provision shall nevertheless remain in full force and effect in all other circumstances. 6.2 Modification and Waiver. Waiver of breach of this Agreement by either part shall not be considered a waiver of any other subsequent breach. 6.3 Independent Contractor.. It is understood that the Company, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Client. As an independent contractor, neither the Company nor any of its officers or employees shall obtain any rights to retirement benefits or other benefits which accrue to Client employee(s). With prior written consent, the Company may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. 6.4 Notices. Client shall give the Company written notice within one hundred eighty (180) days of obtaining knowledge of the occurrence of any claim or cause of action which Client believes that it has, or may seek to assert or allege, against the Company, whether such claim is based in law or equity, arising under or related to this Agreement or to the transactions contemplated hereby, or any act or omission to act by the Company with respect hereto. If Client fails to give such notice to the Company with regard to any such claim or cause of action and shall not have brought legal action for such claim or cause of action within said time period, Client shall be deemed to have waived, and shall be forever barred from bringing or asserting such claim or cause of action in any suit, action or proceeding in any court or before any governmental agency or authority or any arbitrator. All notices or other communications hereunder shall be in writing and shall be deemed given when delivered to the address specified below or such other address as may be specified in a written notice in accordance with this Section: To Company: To Client: Chief of Police Burlingame Police Department 1111 Trousdale Drive Burlingame, CA 94010 Any party may, by notice given in accordance with this Section to the other parties, designate another address or person or entity for receipt of notices hereunder. 6.5 Assignment. The Agreement is not assignable or transferable by Client. This Agreement is not assignable or transferable by the Company without the written consent of Client, and the services to be provided hereunder are personal to the Company and 7 Client may withhold consent to assignment or transfer without any cause whatsoever. 6.6 Dispute . The Company and Client recognize that disputes arising under this Agreement are best resolved at the working level by the parties directly involved. Both parties are encouraged to be imaginative in designing mechanism and procedures to resolve disputes at this level. Such efforts shall include the referral of any remaining issues in dispute to higher authority within each participating party's organization for resolution. Failing resolution of conflicts at the organizational level, the Company and Client agree that any remaining conflicts arising out of or relating to this Contract shall be submitted to nonbinding mediation unless the Company and Client mutually agree otherwise. If the dispute is not resolved through non-binding mediation, then the parties may take other appropriate action subject to the other terms of this Agreement. 6.7 Section Headings. Title and headings of sections of this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement. 6.8 Representations: Counterparts. Each person executing this Agreement on behalf of a party hereto represents and warrants that such person is duly and validly authorized to do so on behalf of such party, with full right and authority to execute this Agreement and to bind such party with respect to all of its obligations hereunder. This Agreement may be executed (by original or telecopied signature) in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument. 6.9 Residuals. Nothing in this Agreement or elsewhere will prohibit or limit the Company's ownership and use of ideas, concepts, know-how, methods, models, data, techniques, skill knowledge and experience that were used, developed or gained in connection with this Agreement. The Company and Client shall each have the right to use all data collected or generated under this Agreement. 6.10 Cooperation. Client will cooperate with the Company in taking actions and executing documents, as appropriate, to achieve the objectives of this Agreement. Client agrees that the Company's performance is dependent on Client's timely and effective cooperation with the Company. Accordingly, Client acknowledges that any delay by Client may result in the Company being released from an obligation or scheduled deadline or in Client having to pay extra fees for the Company's agreement to meet a specific obligation or deadline despite the delay. 6.11 Governing Law and Construction. This Agreement will be governed by and construed in accordance with the laws of California, without regard to the principles of conflicts of law. The language of this Agreement shall be deemed to be the result of negotiation among the parties and their respective counsel and shall not be construed strictly for or against any party. 6.13 Termination of Contract. This contract may be terminated upon written notice delivered by either Client or Company not less than Ninety (90) days prior to the termination date. 6.15 Entire Agreement; Survival. This Agreement, including any Exhibits, states the entire Agreement between the parties and supersedes all previous contracts, proposals, oral or written, and all other communications between the parties respecting the subject matter hereof, and supersedes any and all prior understandings, representations, warranties, agreements or contracts (whether oral or written) between Client and the Company respecting the subject matter hereof. This Agreement may only be 8 amended by an agreement in writing executed by the parties hereto. This agreement will remain in force for one year from the date of signing and can be renewed under mutual agreement of both parties. 6.12 Force Maieure. The Company shall not be responsible for delays or failures (including any delay by the Company to make progress in the prosecution of any Services) if such delay arises out of causes beyond its control. Such causes may include, but are not restricted to, acts of God or of the public enemy, fires, floods, epidemics, riots, quarantine restrictions, strikes, freight embargoes, earthquakes, electrical outages, computer or communications failures, and severe weather, and acts or omissions of subcontractors or third parties. 6.13 Use By Third Parties. Work performed by the Company pursuant to this Agreement is only for the purpose intended and may be misleading if used in another context. Client agrees not to use any documents produced under this Agreement for anything other than the intended purpose without the Company's written permission. This Agreement shall, therefore, not create any rights or benefits to parties other than to Client and the Company. IN WTINESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. Date: CITY OF BURLINGAME CAINE COMPUTER CONSULTING, LLC Lux Title: Approved as to form: City Attorney