HomeMy WebLinkAboutContract 1503 — ls °S
CITY OF CATHEDRAL CITY
PROFESSIONAL SERVICES AGREEMENT
FOR ADMINISTRATION OF FALSE ALARMS PROGRAM
THIS PROFESSIONAL SERVICES AGREEMENT (hereinafter "Agreement") is
made and entered into, to be effective the 1st day of January, 2012, by and between the
CITY OF CATHEDRAL CITY ("City") a'nd CITYSUPPORT, a limited liability company,
dba CathedralCityAlarm.org ("Consultant"). City and Consultant are sometimes
hereinafter individually referred to as "Party" and are hereinafter collectively referred to
as the "Parties".
RECITALS
A. City has determined that there is a need to retain professional assistance in
the administration of the City's false alarms programs, including the issuance and
updating of permits, maintenance of records related to false alarms, and the collection
of fees and fines as such fees and fines become due and payable to the City ("Project");
B. City desires to retain Consultant to provide such services; and
C. Consultant is qualified by virtue of experience, training, education, and
expertise to provide these services and has agreed to provide such professional
services as provided herein.
NOW, THEREFORE, in consideration of the promises and mutual benefits which
will result to the Parties in carrying out the terms of this Agreement, it is mutually agreed
as follows:
AGREEMENT
1. Scope of Work.
City agrees to retain Consultant, and Consultant agrees to perform the services
set forth in the SCOPE OF SERVICES described in Exhibit "A" ("Services"). Consultant
is authorized to act as an agent of the City in the administration of the City's False
Alarm program, generally described in Chapter 8.28 of the Cathedral City Municipal
Code. As a material inducement to the City entering into this Agreement, Consultant
represents and warrants that Consultant is a provider of first class work and
professional services and Consultant possesses ample experience performing the work
and services contemplated in this Agreement and, in light of such status and
experience, Consultant covenants that it shall follow the highest professional standards
in performing the work and services required under this Agreement. For purposes of this
Agreement, "highest professional standards" shall mean those standards of practice
recognized as high quality among well-qualified and experienced professionals
performing similar work under similar circumstances.
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2. Term.
Unless earlier terminated as provided elsewhere in this Agreement, this
Agreement shall commence upon the effective date of this Agreement and continue in
full force and effect for three (3) years from the date of this Agreement, unless
terminated earlier as provided in this Agreement. Notwithstanding any other provision
of this Agreement, City's obligation to make any payments for Services performed
beyond three (3) years from the effective date of this Agreement shall be contingent
upon the availability of funds affirmatively budgeted by the City Council of the City for
payment of the Services.
3. Compensation.
A. Maximum Contract Sum.
For the Services rendered pursuant to this Agreement, Consultant shall
only be compensated by City in accordance with the "Schedule of Compensation"
attached to this agreement as Exhibit "B" except as may be provided pursuant to
Section 6 herein. Compensation for necessary expenditures for reproduction costs,
telephone expenses, transportation expenses must be approved in advance by the
Contract Officer designated pursuant to Section 8.B, and will only be approved if such
expenses are also specified in the Schedule of Compensation. Consultant
acknowledges that it accepts the risk that the services identified in the Scope of
Services may be more costly or time-consuming than Consultant anticipates, that
Consultant shall not be entitled to additional compensation therefore, and the provisions
of Section 6 shall not be applicable to Services identified in the Scope of Services.
4. Retention of Funds.
City may deduct from any amount payable to Consultant (whether or not arising
out of this Agreement) (i) any amounts the payment of which may be in dispute
hereunder ("Dispute Retention") or (ii) any amounts which are necessary to compensate
City for any losses, costs, liabilities, or damages suffered by City ("City Loss
Retention"), and (iii) all amounts for which City may be liable to third parties, by reason
of Consultant's acts or omissions in performing or failing to perform Consultant's
obligations under this Agreement ("Third Party Claims Retention"). In the event that any
claim is made by a third party, the amount or validity of which is disputed by Consultant,
or any indebtedness shall exist which shall appear to be the basis for a claim of lien,
City may withhold from any payment due, without liability for interest because of such
withholding, an amount sufficient to cover such claim. The failure of City to exercise
such right to deduct or to withhold shall not, however, affect the obligations of the
Consultant to insure, indemnify, and protect City as elsewhere provided herein.
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5. Performance Schedule
A. Time of Essence.
Time is of the essence in the performance of this Agreement.
B. Schedule of Performance.
Consultant shall commence the Services pursuant to this Agreement upon
receipt of a written notice to proceed and shall perform all Services within the time
period(s) as the Contract Officer may reasonably require.
C. Force Majeure.
The time period(s) for performance of the Services rendered pursuant to
this Agreement shall be extended because of any delays due to unforeseeable causes
beyond the control and without the fault or negligence of the Consultant (financial
inability excepted), including, but not restricted to, acts of God or of the public enemy,
unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions,
riots, strikes, freight embargoes, wars, and/or acts of any governmental agency,
including the City, if Consultant, within ten (10) days of the commencement of such
delay, notifies the City Manager in writing of the causes of the delay. The City Manager
shall ascertain the facts and the extent of delay, and extend the time for performing the
Services for the period of the enforced delay when and if in the judgment of the City
Manager such delay is justified. The City Manager's determination shall be final and
conclusive upon the Parties to this Agreement. In no event shall Consultant be entitled
to recover damages against the City for any delay in the performance of this
Agreement, however caused, Consultant's sole remedy being extension of the
Agreement pursuant to this Section.
6. Additional Services.
City Manager shall have the right at any time during the performance of the
Services, without invalidating this Agreement, to order extra work beyond that specified
in the Scope of Services or make changes by altering, adding to or deducting from such
work. No such extra work may be undertaken unless a written order is first given by the
City to the Consultant, incorporating therein any adjustment in (i) the Maximum Contract
Sum, if any, and (ii) the time to perform this Agreement, if any, which adjustments are
subject to the written approval of the Consultant. Any increase in compensation of up to
twenty-five percent (25%) of the Maximum Contract Sum or $25,000, whichever is less,
or in the time to perform of up to thirty (30) days may be approved by the Contract
Officer designated pursuant to Section 8.B. as may be needed to perform any extra
work. Any greater increases, occurring either separately or cumulatively, must be
approved by the City Council. It is expressly understood by Consultant that the
provisions of this Section shall not apply to services specifically set forth in the Scope of
Services or reasonably contemplated therein, regardless of whether the time or
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materials required to complete any work or service identified in the Scope of Services
exceeds any time or material amounts or estimates provided therein.
7. Scope Changes.
In the event of a change in the scope of the project, as requested by City, the
Parties hereto shall execute an addendum to this Agreement, setting forth, with
particularity, all terms of the new Agreement, including but not limited to any additional
or reduced Consultant's fees.
8. Coordination of Work.
A. Representative of Consultant.
Eric Popp is hereby designated as being the principal and representative
of Consultant authorized to act in its behalf with respect to the work specified herein and
make all decisions in connection therewith.
It is expressly understood that the experience, knowledge, capability and
reputation of Eric Popp was a substantial inducement for City to enter into this
Agreement. Therefore, the Eric Popp shall be responsible during the term of this
Agreement for directing all activities of Consultant and devoting sufficient time to
personally supervise the Services hereunder. For purposes of this Agreement, Eric
Popp may not be replaced nor may his responsibilities be substantially reduced by
Consultant without the express written approval of City.
B. Contract Officer.
The Contract Officer shall be such person as may be designated by the
City Manager of City, and is subject to change by the City Manager. It shall be the
Consultant's responsibility to ensure that the Contract Officer is kept informed of the
progress of the performance of the Services and the Consultant shall refer any
decisions which must be made by City to the Contract Officer. Unless otherwise
specified herein, any approval of City required hereunder shall mean the approval of the
Contract Officer. The Contract Officer shall have authority to sign all documents on
behalf of the City required hereunder to carry out the terms of this Agreement.
9. Familiarity with Work.
By executing this Contract, Consultant warrants that Consultant (a) has
thoroughly investigated and considered the scope of services to be performed, (b) has
carefully considered how the services should be performed, and (c) fully understands
the facilities, difficulties•and restrictions attending performance of the Services under
this Agreement. If the Services involve work upon any site, Consultant warrants that
Consultant has or will investigate the site and is or will be fully acquainted with the
conditions there existing, prior to commencement of Services hereunder. Should the
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Consultant discover any latent or unknown conditions, which will materially affect the
performance of the Services hereunder, Consultant shall immediately inform the City of
such fact and shall not proceed except at Consultant's risk until written instructions are
received from the City.
10. Assignments and Subcontractin.q.
The experience, knowledge, capability, and reputation of Consultant, its
principals and employees were a substantial inducement for City to enter into this
Agreement. Consultant may not assign the performance of this Agreement, nor any
part thereof, nor any monies due hereunder, voluntarily or by operation of law, without
the prior written approval of City. Consultant shall not contract with any other entity to
perform the Services required without prior written approval of City. If Consultant is
permitted to subcontract any part of this Agreement by City, Consultant shall be
responsible to City for the acts and omissions of its subcontractor(s) in the same
manner as it is for persons directly employed. Nothing contained in this Agreement
shall create any contractual relationships between any subcontractor and City. All
persons engaged in the work will be considered employees of Consultant. City will deal
directly with and will make all payments to Consultant. In addition, neither this
Agreement nor any interest herein may be transferred, assigned, conveyed,
hypothecated or encumbered voluntarily or by operation of law, whether for the benefit
of creditors or otherwise, without the prior written approval of City. Transfers restricted
hereunder shall include the transfer to any person or group of persons acting in concert
of more than twenty five percent (25%) of the present ownership and/or control of
Consultant, taking all transfers into account on a cumulative basis. In the event of any
such unapproved transfer, including any bankruptcy proceeding, this Agreement shall
be void. No approved transfer shall release the Consultant or any surety of Consultant
from any liability hereunder without the express written consent of City.
11. Insurance and Security
A. Types of Insurance and Security. Consultant shall procure and
maintain, at its sole cost and expense, in a form and content satisfactory to City, the
insurance and security described herein for the duration of this Agreement, including
any extension thereof, or as otherwise specified herein, against claims which may arise
from or in connection with the performance of the work hereunder by Consultant, its
agents, representatives, or employees. Insurance and security required herein shall be
provided by a reputable insurance company or bonding company admitted to issue
insurance or bonds in the State of California and having a minimum A.M. Best's Guide
Rating of A-, Class VII or better, unless such requirements are waived in writing by the
City Manager or his/her designee due to unique circumstances. In the event the City
Manager determines that the work or services to be performed under this Agreement
creates an increased or decreased risk of loss to the City, the Consultant agrees that
the minimum limits of the insurance policies and the performance bond required by this
Section 11 may be changed accordingly upon receipt of written notice from the City
Manager or his/her designee; provided that the Consultant shall have the right to appeal
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a determination of increased coverage by the City Manager to the City Council of City
within ten (10) days of receipt of notice from the City Manager. Consultant shall
immediately substitute any insurer whose A.M. Best rating drops below the levels
specified herein.
All insurance provided pursuant to this Agreement shall be on an occurrence
basis.
1. Workers' Compensation Insurance. Consultant shall obtain
and maintain, in full force and effect throughout the term of this
Agreement, Workers' Compensation Insurance in at least the minimum
statutory amounts, and in compliance with all other statutory requirements,
as required by State of California law. Consultant agrees to waive and
obtain endorsements from its worker's compensation insurer waiving
subrogation rights under its worker's compensation insurance policy
against City and to require each of its subcontractors, if any, to do likewise
under their worker's compensation insurance policies.
2. Commercial General Liability Insurance. Consultant shall
obtain and maintain, in full force and effect throughout the term of this
Agreement, a policy of commercial general liability insurance written on a
per occurrence basis with a combined single limit of at least One Million
Dollars ($1,000,000.00) bodily injury and property damage including
coverages for contractual liability, personal injury, independent
contractors, broad form property damage, products and completed
operations. The commercial general liability policy shall name the City as
an additional insured in accordance with standard ISO additional insured
endorsement form CG2010(1185) or equivalent language.
Consultant shall either: (a) certify in writing to the City that
Consultant is unaware of any liability claims made against Consultant, and
is unaware of any facts which may lead to such a claim against
Consultant; or (b) if Consultant does not provide the certification pursuant
to (a), Consultant shall procure from the commercial general liability
insurer an endorsement providing that the required limits of the policy shall
apply separately to occurrences during the rendition of services pursuant
to this Agreement.
B. Deductibles and Self-Insured Retentions. Any deductibles or self-
insured retentions must be declared to and approved by the City Manager.
Consultant guarantees payment of all deductibles and self-insured
retentions. City reserves the right to reject deductibles or self-insured
retentions in excess of $10,000, and the City Manager may require
evidence of pending claims and claims history as well as evidence of
Consultant's ability to pay claims for all deductible amounts and self-
insured retentions proposed in excess of$10,000.
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C. Other Insurance Provisions. The following provisions shall apply to
the insurance policies required of Consultant pursuant to this Agreement:
1. The commercial general, business automobile and employer
liability policies shall be endorsed to contain the following provisions: "City
and its officers, council members, officials, employees, agents and
volunteers, and any public agencies whose approval of the project is
required, are additional insureds with respect to: liability arising out of acts
or omissions of or on behalf of Consultant; products and completed
operations of Consultant; premises owned occupied or used by
Consultant; or automobiles owned, leased, hired, or borrowed by
Consultant." The coverage shall contain no special limitations on the
scope of protection afforded to additional insureds. Additional insured
endorsements are not required for the Professional Liability and Worker's
Compensation policies.
2. For any claims related to this Agreement, Consultant's
coverage shall be primary insurance as respects City and its officers,
council members, officials, employees, agents and volunteers. Any
insurance or self-insurance maintained by City and its officers, council
members, officials, employees, agents and volunteers shall be in excess
of Consultant's insurance and shall not contribute with it. The insurer shall
waive all rights of subrogation and contribution it may have against the
City, its officers, council members, officials, employees, agents and
volunteers, and their respective insurers.
3. Any failure to comply with reporting or other provisions of the
policies, including breaches of warranties shall not affect coverage
provided to City and its officers, council members, officials, employees,
agents and volunteers.
4. Each insurance policy required by this Section shall be
endorsed to state that coverage shall not be suspended, voided, cancelled
or modified by either party, or reduced in coverage or in limits, except after
thirty (30) days prior written notice by First Class U. S. Mail, postage
prepaid, has been provided to City. Notwithstanding the foregoing in this
Subsection D.4, if coverage is to be suspended, voided or cancelled
because of Consultant's failure to pay the insurance premium, the notice
provided to City shall be by ten (10) days prior written notice.
D. Verification of Coverage. Consultant shall furnish City certificates of
insurance and original endorsements, including additional insured endorsements, in a
form acceptable to the City, effecting all of the coverages required by this Agreement.
The endorsements are to be signed by a person authorized by that insurer to bind
coverage on its behalf. Consultant shall provide to City all certificates and
endorsements required by this Agreement before work commences.
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E. Fiduciary Bond. Concurrently with execution of this Agreement,
Consultant shall deliver to City a fiduciary bond in the amount of $100,000.00, in the
form acceptable to the City Manager, which secures and guarantees the hones
accounting of all public funds administered by Consultant and the faithful performance
of the Consultant under this Agreement. The bond shall contain the original notarized
signature of an authorized officer of the surety and affixed thereto shall be a certified
and current copy of his power of attorney. The bond shall be unconditional and remain
in force during the entire term of the Agreement and shall be null and void only if the
Consultant promptly and faithfully performs all terms and conditions of this Agreement
and City accepts such performance in writing.
12. Indemnification.
To the fullest extent permitted by law, Consultant shall indemnify, defend
(at Consultant's sole cost and expense), protect and hold harmless City and its officers,
council members, officials, employees, agents and volunteers and all other public
agencies whose approval of the project is required, (individually "Indemnified Party";
collectively "Indemnified Parties") against any and all liabilities, claims, judgments,
arbitration awards, settlements, costs, demands, orders and penalties (collectively
"Claims"), including but not limited to Claims arising from injuries or death of persons
(Consultant's employees included) and damage to property, which Claims arise out of,
pertain to, or are related to the negligence, recklessness or willful misconduct of
Consultant, its agents, employees, or subcontractors, or arise from Consultant's
negligent, reckless or willful performance of or failure to perform any term, provision,
covenant or condition of this Agreement ("Indemnified Claims"), except where such
Claims arise from the sole negligence, recklessness, or willful misconduct of the City, its
officers, council members, officials, employees, or agents.
Consultant shall reimburse the Indemnified Parties for any reasonable
expenditures, including reasonable attorneys' fees, expert fees, litigation costs and
expenses that each Indemnified Party may incur by reason of Indemnified Claims.
Upon request by an Indemnified Party, Consultant will defend with legal counsel
reasonably acceptable to the Indemnified Party all Claims against the Indemnified Party
that may arise out of, pertain to, or relate to Indemnified Claims, whether or not
Consultant is named as a party to the Claim proceeding. The determination whether a
Claim "may arise out of, pertain to, or relate to Indemnified Claims" shall be based on
the allegations made in the Claim and the facts known or subsequently discovered by
the parties. In the event a final judgment, arbitration award, order, settlement, or other
final resolution expressly determines that Claims did not arise out of, pertain to, nor
relate to the negligence, recklessness or willful misconduct of Consultant to any extent,
then City will reimburse Consultant for the reasonable costs of defending the
Indemnified Parties against such Claims, except City shall not reimburse Consultant for
attorneys' fees, expert fees, litigation costs and expenses as were incurred defending
Consultant or any parties other than Indemnified Parties against such Claims.
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Consultant's indemnification obligation hereunder shall survive the
expiration or earlier termination of this Agreement until all actions against the
Indemnified Parties for such matters indemnified hereunder are fully and finally barred
by the applicable statute of limitations or, if an action is timely filed, until such action is
final. This provision is intended for the benefit of third party Indemnified Parties not
otherwise a party to this Agreement.
13. Licenses, Permits, Qualifications, and Approvals.
Consultant represents and warrants to City that it has obtained all
licenses, permits, qualifications, and approvals of whatever nature that are legally
required to practice its profession and perform the Services required by this Agreement.
Consultant represents and warrants to City that Consultant shall, at its sole cost and
expense, keep in effect at all times during the term of this Agreement, any license,
permit, qualification or approval, which is legally required for Consultant to perform
Services under this Agreement. Consultant shall have the sole obligation to pay for any
fees, assessments and taxes, plus applicable penalties and interest, which may be
imposed by law and arise from or are necessary for the Consultant's performance of the
Services required by this Agreement, and shall indemnify, defend and hold harmless
City against any such fees, assessments, taxes penalties or interest levied, assessed or
imposed against City hereunder.
14. Reports and Records.
A. Accounting Records.
Consultant shall keep complete, accurate, and detailed accounts of all
time, costs, expenses, and expenditures pertaining in any way to this Agreement.
B. Reports.
Consultant shall periodically prepare and submit to the Contract Officer
such reports concerning the performance of the services, including the receipt of any
fees, assessments, charges, fines, or funds of any kind, required by this Agreement or
as the Contract Officer shall require.
C. Ownership of Documents.
All drawings, specifications, reports, records, documents, memoranda,
correspondence, computations and other materials prepared by Consultant, its
employees, subcontractors and agents in the performance of this Agreement shall be
the property of City and shall be delivered to City upon request of the Contract Officer or
upon the termination of this Agreement, and Consultant shall have no claim for further
employment or additional compensation as a result of the exercise by City of its full
rights of ownership of the documents and materials hereunder. Any use of such
completed documents for other projects and/or use of incomplete documents without
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specific written authorization by the Consultant will be at the City's sole risk and without
liability to Consultant, and the City shall indemnify the Consultant for all damages
resulting therefrom. Consultant may retain copies of such documents for its own use.
Consultant shall have an unrestricted right to use the concepts embodied therein.
Consultant shall ensure that all its subcontractors shall provide for assignment to City of
any documents or materials prepared by them, and in the event Consultant fails to
secure such assignment, Consultant shall indemnify City for all damages resulting
therefrom. The programming code used to operate the website and manage City's
alarm program is proprietary and sole property of Consultant.
D. Release of Documents.
All information gained by Consultant in the performance of this Agreement
shall be considered confidential and shall not be released by Consultant without City's
prior written authorization. Consultant, its officers, employees, agents or subcontractors
shall not without written authorization from the City Manager or unless requested by the
City Attorney, voluntarily provide declarations, letters of support, testimony at
depositions, response to interrogatories, or other information concerning the Services
performed under this Agreement or relating to the Project. Response to a subpoena or
court order shall not be considered "voluntary" for the purposes of this Section, provided
Consultant gives City timely notice, in advance, of the response to such subpoena or
court order. Consultant shall notify City of any summons, complaints, subpoenas,
notice of deposition, request for documents, interrogatories, requests for admissions or
other discovery requests received by Consultant, its officers, employees, agents or
subcontractors, related to Services performed pursuant to this Agreement. City retains
the right, but has no obligation, to represent Consultant and/or be present at any
deposition, hearing, or similar proceeding, the cost of which shall be borne by
Consultant. Consultant agrees to cooperate fully with City and to provide City with an
opportunity, in advance, to review and respond to discovery requests provided by
Consultant, arising out of Services performed pursuant to this Agreement. However,
City's right to review any such request or response does not imply or mean City has the
right to control, direct, write or rewrite such response.
E. Audit and Inspection of Records.
After receipt of reasonable notice and during the regular business hours of
City, Consultant shall provide City, or other agents of City, such access to Consultant's
books, records, payroll documents and facilities as City deems necessary to examine,
copy, audit and inspect all accounting books, records, work data, documents and
activities directly related hereto. Consultant shall maintain such books, records, data
and documents in accordance with generally accepted accounting principles and shall
clearly identify and make such items readily accessible to such parties during
Consultant's performance hereunder and for a period of three (3) years from the date of
final payment by City hereunder.
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15. Federal, State and Local Laws.
Consultant warrants that in the performance of this Agreement, it shall
comply with all applicable federal, State and local laws, statutes and ordinances and all
lawful orders, rules and regulations promulgated thereunder.
16. Nondiscrimination.
A. Consultant shall comply with the City's employment related
nondiscrimination policies as set forth in the Cathedral City Municipal Code, as it may
be amended from time to time.
B. Consultant acknowledges that the City's employment related
nondiscrimination policies prohibit discrimination on the basis of an individual's sex,
marital status, race, color, religion, ancestry, national origin, physical handicap, sexual
orientation, and domestic partner status.
17. Prohibited Interests.
Consultant covenants that, for the term of this Agreement, no Council
Member, member, officer, or employee of City during his/her tenure in
office/employment, or for one (1) year thereafter, shall have any interest, direct or
indirect, in this Agreement or the proceeds thereof or in Consultant. Consultant
warrants that it has not given or paid and will not give or pay any third party money or
other consideration for obtaining this Agreement.
18. Patent and Copyright Infringement.
A. To the fullest extent permissible under law, and in lieu of any other
warranty by City or Consultant against patent or copyright infringement, statutory or
otherwise, it is agreed that Consultant shall defend at its expense any claim or suit
against City on account of any allegation that any item furnished under this Agreement,
or the normal use or sale thereof arising out of the performance of this Agreement,
infringes upon any presently existing U.S. letters patent or copyright and Consultant
shall pay all costs and damages finally awarded in any such suit or claim, provided that
Consultant is promptly notified in writing of the suit or claim and given authority,
information and assistance at Consultant's expense for the defense of same, and
provided such suit or claim arises out of, pertains to, or is related to the negligence,
recklessness or willfull misconduct of Consultant. However, Consultant will not
indemnify City if the suit or claim results from: (1) City's alteration of a deliverable, such
that City's alteration of such deliverable created the infringement upon any presently
existing U.S. letters patent or copyright; or (2) the use of a deliverable in combination
with other material not provided by Consultant when it is such use in combination which
infringes upon an existing U.S. letters patent or copyright.
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B. Consultant shall have sole control of the defense of any such claim
or suit and all negotiations for settlement thereof, Consultant shall not be obligated to
indemnify City under any settlement made without Consultant's consent or in the event
City fails to cooperate in the defense of any suit or claim, provided, however, that such
defense shall be at Consultant's expense. If the use or sale of such item is enjoined as
a result of the suit or claim, Consultant, at no expense to City, shall obtain for City the
right to use and sell the item, or shall substitute an equivalent item acceptable to City
and extend this patent and copyright indemnity thereto.
19. Care of Work.
The Consultant shall adopt reasonable methods during the life of the
Agreement to furnish continuous protection to the work, and the equipment, materials,
papers, documents, plans, studies and/or other components thereof to prevent losses or
damages, and shall be responsible for all such damages, to persons or property, until
acceptance of the work by City, except such losses or damages as may be caused by
City's own negligence.
20. Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their
respective obligations under this Agreement. Both parties agree to act in good faith to
execute all instruments, prepare all documents and take all actions as may be
reasonably necessary to carry out the purposes of this Agreement.
21. Termination.
A. City may terminate this Agreement for its convenience at any time,
without cause, in whole or in part, upon giving Consultant thirty (30) days written notice.
Upon such notice, City shall pay Consultant for Services performed through the date of
termination including any amounts retained pursuant to Section 4 that the City
determines are no longer required for purposes of Dispute Retention, City Loss
Retention, or Third Party Claims Retention. Upon receipt of such notice, Consultant
shall immediately cease all work under this Agreement, unless the notice provides
otherwise. Thereafter, Consultant shall have no further claims against City under this
Agreement. Upon termination of the Agreement pursuant to this Section, Consultant
shall submit to City an invoice for work performed prior to the date of termination. In
addition, the Consultant reserves the right to terminate this Agreement at any time, with
or without cause, upon sixty (60) days written notice to City, except that where
termination is due to of the material default by the City, the period of notice may be such
shorter time as Consultant may determine.
22. Default of Consultant.
A. Consultant's failure to comply with any provision of this Agreement
shall constitute a default.
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B. If the City Manager, or his/her designee, determines that
Consultant is in default in the performance of any of the terms or conditions of this
Agreement, he/she shall notify Consultant in writing of such default. Consultant shall
have ten (10) days, or such longer period as City may designate, to cure the default by
rendering satisfactory performance. In the event Consultant fails to cure its default
within such period of time, City shall have the right, notwithstanding any other provision
of this Agreement, to terminate this Agreement without further notice and without
prejudice of any remedy to which City may be entitled at law, in equity or under this
Agreement. Consultant shall be liable for any and all reasonable costs incurred by City
as a result of such default. Compliance with the provisions of this Section shall not
constitute a waiver of any City right to take legal action in the event that the dispute is
not cured, provided that nothing herein shall limit City's right to terminate this
Agreement without cause pursuant to Section 21.
C. If termination is due to the failure of the Consultant to fulfill its
obligations under this Agreement, City may, after compliance with the provisions of
Section 22.B, take over the work and prosecute the same to completion by contract or
otherwise, and the Consultant shall be liable to the extent that the total cost for
completion of the Services required hereunder exceeds the Maximum Contract Sum
herein stipulated (provided that the City shall use reasonable efforts to mitigate such
damages), and City may withhold any payments to the Consultant for the purpose of
set-off or partial payment of the amounts owed the City as previously stated. The
withholding or failure to withhold payments to Consultant shall not limit Consultant's
liability for completion of the Services as provided herein.
23. Attorney Fees.
In the event any dispute between the Parties with respect to this Agreement
results in litigation or any non judicial proceeding, the prevailing Party shall be entitled,
in addition to such other relief as may be granted, to recover from the non-prevailing
Party all reasonable costs and expenses, including but not limited to reasonable
attorney fees, expert consultant fees, court costs and all fees, costs and expenses
incurred in any appeal or in collection of any judgment entered in such proceeding. The
amount of such fees, costs and expenses may be determined in such proceeding or in a
separate action brought for that purpose. To the extent authorized by law, in the event
of a dismissal by the plaintiff or petitioner of the litigation or non judicial proceeding
within thirty (30) days of the date set for trial or hearing, the other Party shall be deemed
to be the prevailing Party in such litigation or proceeding. The reasonable attorney fees
shall be calculated by multiplying the number of hours actually and reasonably incurred
by the attorney(s) representing the prevailing Party after initiation of the dispute by the
reasonable hourly rate of said attorney(s), however such hourly rate shall not exceed
$200 per hour. No "lodestar multiplier" shall be applied in determining the reasonable
attorney fees under this Agreement.
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24. Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in
this Agreement, the rights and remedies of the Parties are cumulative and the exercise
by either Party of one or more of such rights or remedies shall not preclude the exercise
by it, at the same or different times, of any other rights or remedies for the same default
or any other default by the other Party.
25. Legal Action.
In addition to any other rights or remedies, either Party may take legal action, in
law or in equity, to cure, correct or remedy any default, to recover damages for any
default, to compel specific performance of this Agreement, to obtain declaratory or
injunctive relief, or to obtain any other remedy consistent with the purposes of this
Agreement.
26. Interpretation; Venue.
This Agreement and any dispute arising hereunder shall be governed and
interpreted in accordance with the laws of the State of California. This Agreement shall
be construed as a whole according to its fair language and common meaning to achieve
the objectives and purposes of the Parties hereto. The terms of this Agreement are
contractual and the result of negotiation between the parties hereto. Accordingly, any
rule of construction of contracts (including, without limitation, California Civil Code
Section 1654) that ambiguities are to be construed against the drafting party, shall not
be employed in the interpretation of this Agreement.Venue for any litigation concerning
this Agreement shall be in the Superior Court for the County of Riverside, California.
27. Waiver.
No waiver of any provision of this Agreement shall be effective unless in writing
and signed by a duly authorized representative of the Party against whom enforcement
of a waiver is sought. Any waiver by the Parties of any default or breach of any
covenant, condition, or term contained in this Agreement, shall not be construed to be a
waiver of any subsequent or other default or breach, nor shall failure by the Parties to
require exact, full, and complete compliance with any of the covenants, conditions, or
terms contained in this Agreement be construed as changing the terms of this
Agreement in any manner or preventing the Parties from enforcing the full provisions
hereof.
28. Notices.
All notices or other communications required or permitted hereunder shall be in
writing, and shall be personally delivered, sent by registered or certified mail, postage
prepaid, return receipt requested, or delivered or sent by facsimile with attached
evidence of completed transmission, and shall be deemed received upon the earlier of
(i) the date of delivery to the address of the person to receive such notice if delivered
14
personally or by messenger or overnight courier; (ii) five (5) business days after the date
of posting by the United States Post Office if by mail; or (iii) when sent if given by
facsimile. Any notice, request, demand, direction, or other communication sent by
facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered.
Other forms of electronic transmission such as e-mails, text messages, instant
messages are not acceptable manners of notice required hereunder. Notices or other
communications shall be addressed as follows:
To City: City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
Attention: City Clerk
To Consultant: CitySupport, LLC
224 E FM 1417
Sherman, Texas 75090
Attention: Eric Popp
Either Party may, by written notice to the other, designate a different address or contact
person, which shall be substituted for that specified above.
29. Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior negotiations, arrangements, agreements, representations, and
understandings, if any, made by or among the Parties with respect to the subject matter
hereof. No amendments or other modifications of this Agreement shall be binding
unless executed in writing by both Parties hereto, or their respective successors,
assigns, or grantees.
30. Severability.
Whenever possible, each provision of this Agreement shall be interpreted in such
a manner as to be effective and valid under applicable law, but if any provision of this
Agreement shall be determined to be invalid by a final judgment or decree of a court of
competent jurisdiction, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the reminder of that provision, or the
remaining provisions of this Agreement unless the invalid provision is so material that its
invalidity deprives either Party of the basic benefit of their bargain or renders this
Agreement meaningless.
31. Legal Relationship between the Parties.
A. The legal relationship between the Parties hereto is that of an •
independent contractor, and nothing herein shall be deemed to make Consultant a City
employee. During the performance of this Agreement, Consultant and its officers,
15
employees, and agents shall act in an independent capacity and shall not act as City
officers or employees. The personnel performing the Services under this Agreement on
behalf of Consultant shall at all times be under Consultant's exclusive direction and
control. Neither City nor any of its officers, employees, or agents shall have control over
the conduct of Consultant or any of its officers, employees, or agents, except as set
forth in this Agreement. Consultant, its officers, employees, or agents shall not maintain
an office or any other type of fixed business location at City's offices. City shall have no
voice in the selection, discharge, supervision or control of Consultant's employees,
servants, representatives or agents, or in fixing their number, compensation or hours of
service. Consultant shall pay all wages, salaries and other amounts due its employees
in connection with this Agreement and shall be responsible for all reports and
obligations respecting them, including but not limited to social security income tax
withholding, unemployment compensation, workers compensation and other similar
matters. City shall not in any way or for any purpose be deemed to be a partner of
Consultant in its business or otherwise or a joint venturer or a member of any joint
enterprise with Consultant.
B. Consultant shall not incur or have the power to incur any debt,
obligation, or liability against City, or bind City in any manner.
C. No City benefits shall be available to Consultant, its officers,
employees, or agents in connection with any performance under this Agreement.
Except for fees paid to Consultant as provided for in this Agreement, City shall not pay
salaries, wages, or other compensation to Consultant for the performance of Services
under this Agreement. City shall not be liable for compensation or indemnification to
Consultant, its officers, employees, or agents for injury or sickness arising out of
performing Services hereunder. If for any reason, any court or governmental agency
determines that City has financial obligations, other than pursuant to Section 3 and 6
herein, of any nature relating to salary, taxes, or benefits of Consultant's officers,
employees, servants, representatives, subcontractors or agents, Consultant shall
indemnify City for all such financial obligations.
32. Successors in Interest.
This Agreement shall be binding upon and inure to the benefit of the Parties'
successors and assignees.
33. Third Party Beneficiary.
Except as may be expressly provided for herein, nothing contained in this
Agreement is intended to confer, nor shall this Agreement be construed as conferring,
any rights, including, without limitation, any rights as a third-party beneficiary or
otherwise, upon any entity or person not a party hereto.
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34. Recitals.
The Recitals above are hereby incorporated into this Section as though fully set
forth herein and each Party acknowledges and agrees that such Party is bound, for
purposes of this Agreement, by the same.
35. Non-Liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Consultant, or
any successor in interest, in the event of any default or breach by the City or for any
amount which may become due to the Consultant or its successor, or for breach of any
obligation of the terms of this Agreement.
36. Corporate Authority.
Each of the undersigned represents and warrants that (i) the Party for which he
or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly
authorized to execute and deliver this Agreement on behalf of the Party for which he or
she is signing, (iii) by so executing this Agreement, the Party for which he or she is
signing is formally bound to the provisions of this Agreement, and (iv) the entering into
this Agreement does not violate any provision of any other Agreement to which the
Party for which he or she is signing is bound.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
17
IN WITNESS WHEREOF, the Parties have executed and entered into this
Agreement as of the date first written above.
CitySupport, LLC CITY OF CATHEDRAL CITY
By: By:
President Kathleen J. D./Rosa, Mayor
By: ATTEST'
Secretary
,� By.
Pat Hammers, City Clerk
APPROVED AS TO FORM:
By:
Charles R. Green, City Attorney
P:\APPS\WPDATA\CATH\0001\2781 -CitySupport Service Contract(12.12.11).doc
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18
IN WITNESS WHEREOF, the Parties have executed and entered into this •
Agreement as of the date first written above.
CitySupport, LLC CITY OF CATHEDRAL CITY
By: _ .. ' ��� By:
Preside _ Kathleen J. DeRosa, Mayor
By: ATTEST:
Sec et
By:
Pat Hammers, City Clerk
APPROVED AS TO FORM:
By:
Charles R. Green, City Attorney
P:APPS\WPDATA\CATH\0001\2781 -CitySupport Service Contract(12.12.11).doc
•
18
EXHIBIT "A"
SCOPE OF SERVICES
1. Consultant shall administer the City of Cathedral City false alarm program, the general
provisions of which are provided in Cathedral City Municipal Code Chapter 5.02, including
without limitation the issuance and maintenance of alarm permits, the collection of alarm permit
fees, the logging, recordation, and tracking of false alarms in a manner that can be conveniently
accessed and used for provision of police services and financial management, the collection of
false alarm response fees, and the timely payment of all fees to the City. Consultant's services
shall include without limitation the following specific responsibilities:
(a) Consultant shall develop, maintain, modify, manage, and operate a website or websites
as reasonably necessary to provide the services required under this Agreement.
(b) Consultant shall Host the website(s) on its servers.
(c) Consultant shall provide a secure website for permit holders to renew alarm permits,
make payment toward false alarm fines, and enroll in the online false alarm diversion program.
(d) Consultant shall manage in a secure and confidential manner all permit holder data.
(e) Consultant shall provide technical and customer support to permit holders via telephone
or email during City business hours or such other hours as the Contract Officer may require.
(f) Consultant shall provide permit holders with a secure website for the processing of
online credit card and check payment transactions.
(g) Consultant shall securely accept and facilitate the processing of credit card and check
payments for alarm permits and false alarm bills.
(h) Consultant shall reconcile payments made to or on behalf of all alarm permit accounts.
(I) Consultant shall receive and manage daily electronic data transmittal from the City's
Police Department CAD system.
(j) Consultant shall maintain all records of all false alarm permit accounts to include, but not
limited to, all data supplied by the City's Police Department through the City's Police
Department CAD system.
(k) Consultant shall mail payment to the City by the 5th day of each month for the funds
collected the previous month for alarm permits, false alarms, and the false alarm diversion
program.
(I) Consultant shall mail city permit renewal notices to each permit holder annually.
(m) Consultant shall generate appropriate system data and mail false alarm bills to permit
holders.
(n) Consultant shall make available to the City various reports through the Consultant's
secure website(s) as the Contract Officer deems necessary or appropriate.
(o) Consultant shall integrate data from the false alarm diversion program with the permit
holder's account.
(p) Consultant shall electronically, or by other means approved by the Contract Officer,
transfer payment delinquency notices to the City.
(q) Consultant shall provide City personnel, as designated by the Contract Officer, access
through its secure website to modify permit holder accounts as needed.
(r) Consultant shall operate its systems prudently to ensure the security, safety, and
confidentiality of all user transactions.
(s) Consultant shall cross-reference hard copy data with electronic data to ensure records
are complete, accurate, and up-to-date.
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2. The following protocols and administrative practices shall be implemented:
(a) Risk management plan
All user information is stored within a secure SQL server environment, which resides within a
secure hosting data center. The dedicated web server, used to serve the web application, is
behind a Cisco Pix firewall, which prevents hackers from compromising the web server. The
only access to the web server is through HTTP and FTP protocols, which are used to view web
pages and upload/download files. Windows 2008 is the platform used for the web and SQL
servers. Strict Windows and SQL security measures are in place to prevent unauthorized
persons from accessing the web server directory structure or any SQL data. A hacker would
have to bypass the firewall, compromise Windows security and compromise SQL security to
access any sensitive user data. Periodic security audits are performed on the server to ensure
that the latest security patches are installed, that all users have appropriate permissions, and to
identify any attempted attacks on the system. Additionally, there are many security measures
taken into account within the application that prevent users from accessing any unauthorized
data and to ensure the integrity of the data that is stored.
The servers used to host the website will provide at least 99.99% up-time, therefore minimizing
inaccessibility to students and users. The website shall be maintained on a continuous, seven
days a week and twenty-four hours per day, basis thereby providing permit holders the ability to
pay their fines or fees at any hour of any day. Both telephone, email and live online chat support
will be available to the City and alarm holders during City business hours. A multi-line state-of-
the-art PBX system shall be installed to allow Consultant to handle multiple calls at once.
(b) User authentication and authorization procedures and technologies
Consultant shall employ several layers of authentication and authorization security to ensure
that no unauthorized access is gained to any portion of the system. The system resides on two
dedicated Windows servers in a secure data center. External access to the server, including
access via FTP (File Transfer Protocol), Terminal Services (Remote Desktop) and SQL client
tools (Query Analyzer, Enterprise Manager) is restricted to one static IP address. This IP
address is the address of the our company technical team's office. The technical team members
are the only authorized individuals who can access the dedicated server directly. By restricting
access to one IP address, no individual or computer can connect from an external source to
either of our servers. Such practice will prevent anyone from altering or accessing any files
residing on the server. Once a technical team member connects to the server from the
dedicated IP address, standard Windows securities apply. All Windows passwords used on the
server are extremely strong in nature and are sent over the network encrypted to prevent a
password compromise. Periodic reviews of the Windows security and IIS logs are performed to
check for any suspicious activity. Due to the strong nature of our authentication and
authorization, not a single system compromise has been experienced since we began using
these techniques.
(c) Access control procedures and technologies
Consultant's administrative tools shall be web based and can only be accessed by the staff
securely from both the central office and from remote locations if needed. Access to the
administrative tools is limited to certain static IP addresses. The authorized IP addresses are
those of the home office, as well as the remote locations. If any person tries to access these
administrative tools from an unauthorized IP address, their IP address is logged and the user is
notified that their IP address has been logged. This IP address log is frequently reviewed for
suspicious activity. If any suspicious IP address has been found attempting to access the
administrative tools on more than one occasion, the suspect IP address is blocked permanently
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from accessing the server. Once the staff members have accessed the administrative tools from
their authorized IP address, they must then login using a password to access the tool set. We
implement role based security for the staff members, allowing each staff member to view only
those features that their role permits. All passwords are sent securely to the web server using
SSL technology. Physical access to the server is controlled by and limited to the technical
team.
(d) Auditing capability
Consultant will perform periodic audits to review system security, server performance and
course integrity. Windows security auditing is enabled for the dedicated servers. The security
and IIS logs are reviewed weekly to detect any suspicious activity. Internal security logs are also
reviewed on a weekly basis to detect any unauthorized IP address access attempts. If for any
reason suspicious activity is detected, proper security actions are taken to address the issue.
This involves working with network, security and server personnel to determine the best course
of action to take and implementing any and all necessary security changes. Server performance
is audited on a monthly basis. This involves initializing and running Counter and Trace windows
logs. Once an adequate performance sample has been obtained, the logs are analyzed to
review system performance. Should the performance be less than desirable, appropriate
hardware/software adjustments are made. The SQL database also goes through a specific
performance review. SQL server profiler traces are run and index analysis is performed to
ensure that the database is running at the optimal service level. Any database adjustments are
made as necessary to ensure peak performance. This typically includes tuning indexes and
optimizing queries.
(e) Systems availability
Consultant will implement procedures and practices to ensure 99.999% uptime of the system
and service and to ensure reliability and availability. The dedicated servers reside in a secure
location that provides a redundant network to ensure network reliability, UPS battery backup
and a diesel generator to ensure power reliability, and fire suppression, smoke detection, and
climate control units to ensure stable environmental conditions. The dedicated servers utilize a
RAID 1 hard drive configuration to ensure system redundancy in the event a disk failure. The
source code, server system state, log files and all databases are backed up nightly to a NAS
(network attached storage) server. The dedicated server and network are actively monitored to
ensure network reliability and system up time. There is a network intrusion detection system in
place to detect and deter malicious network activity.
(f) Course and systems integrity
Consultant utilizes an extensive set of securities to ensure that unauthorized access to any of
the data or intellectual property cannot occur. The servers and administrative tools are secured
using IP address limitations and role based security models which were described in sections A
& B. Special code is in place to prevent URL tampering which could result in a data compromise
if not taken into account. All user information is stored securely within the dedicated server
database. All information sent by the permit holder is sent using secure SSL technology.
Additionally, all data viewed and modified by our company personnel is transmitted using SSL
technology. Permit holder data is not shared or transferred to anyone for any reason, with the
exception of the City of Cathedral City or its collection personnel. Any data transmitted to these
institutions during an audit is sent over secure channels. Periodic monitoring of the access
attempts is performed to ensure the integrity of the system security.
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(g) Confidentiality and privacy
All user data is securely stored within the dedicated server database. This information includes
permit holder names, permit numbers, addresses, phone number and credit card/bank
information. Consultant's privacy policy is as follows: The user information obtained by the
Consultant is for the governmental purposes of the City of Cathedral City consistent with the
provisions of Chapter 8.28 of the Cathedral City Municipal Code. This information will not be
sold or transferred, in any way, to any other parties. All necessary precautions have been taken
to ensure unauthorized access is prohibited.
(h) Business continuity and disaster recovery
Company shall ensure business continuity and implement effective measures for disaster
recovery. This includes network, power, and hardware redundancy. All data, security settings,
system state information, source code, and log files are backed up nightly to a NAS (network
attached storage) server. Consultant shall utilize a RAID 1 hard drive configuration to mitigate
•
the risk of hardware failure. In event of a natural disaster or an unrecoverable hardware failure,
Consultant shall have all data and settings restored and the new server configured and
functioning within four hours. This would restore all database data, system state information,
security settings, log files, and application source code for the server. Consultant shall have the
ability to relocate the server as needed in the event of a severe natural disaster.
(i) Systems monitoring and incident response
Consultant servers are actively monitored to ensure system up-time and site availability. If a
server is unexpectedly taken offline, the Consultant shall immediately work to bring the server
back online. If the system is unavailable or is not performing at an optimal level, system
services, processes, memory usage, and network activity are immediately analyzed by the
Consultant to determine the cause of the problem. If a problem is detected, all necessary steps
are taken to mitigate the problem. This could include restarting services or restarting the server.
If the problem still persists, further action is taken which includes a more in-depth analysis of
application behavior and database performance. Once the root of the problem is identified, the
Consultant will resolve the issue as quickly as possible. This could include code "hot fixes",
database adjustments or hardware changes. There is also a network intrusion detection system
in place to detect suspicious network activity and to deter malicious network activity from
occurring.
(j) Change control
Consultant is responsible for identifying, testing, and implementing any new technologies that
will increase the overall system integrity. This includes 3rd party software and hardware, as well
as upgrades to the existing system source code, which was developed in-house. The technical
team is also responsible for all source code development and maintenance. Once the new
technologies have been developed or acquired, the technical team must document the
implementation steps, develop a test plan and perform the necessary testing of the new system
in the staging environment. The staging environment is an identical configuration to that of the
live environment, with the exception of the new technology being implemented. Once the
complete system has been tested and validated against the test case, the technical team begins
to facilitate the live system migration. Once the migration date and time have arrived, the
system is shut down, and the technical team performs the necessary upgrades and migration.
Testing of the new live environment release ensues using the test cases developed prior. Once
all test cases have been validated, the system is turned back on and service is restored. In the
event of a server migration, all data is backed up and all user access rights are documented
from the soon to be decommissioned server. Once the new server is available, all data is
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restored from the back ups, all users are manually recreated and all necessary security rights
are applied.
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EXHIBIT "B"
SCHEDULE OF COMPENSATION
(a) Consultant will retain $11.00 for each alarm permit;
(b) Consultant will retain $15.00 for each alarm bill;
(c) Consultant will retain 10% of false alarm fees received;
(d) Consultant will provide the City with 45% gross revenue of the false alarm
diversion program. Based on the current cost of the course ($25.00), the
City will receive $11.00 for each completed Cathedral City alarm diversion
program.
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