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HomeMy WebLinkAboutAgr 2015-03-02 (City of Foster City / Estero Municipal Improvement District)CALOPPS Services Agreement DUPLICATE c i! A. Failure by the CLIENT to make any payment of fees required under this Agreement where such failure shall continue for a period of fifteen (15) business days after written notice by CITY/DISTRICT. In the event of a material default or breach by CLIENT, the CITY/DISTRICT may, without limiting the CITY/DISTRICT's rights or remedies, terminate CLIENT access to CalOpps website and all other services provided herein. 8. Indemnity. CLIENT hereby agrees to defend, indemnify, and save harmless CITY/District, its Council, boards, commissions, officers, employees and agents, from and against any and all claims, suits, actions, liability, loss, damage, expense, cost (including, without limitation, costs and fees of litigation) of every nature, kind or description, which may be brought against, or suffered or sustained by, CITY/DISTRICT, its Council, boards, commissions, officers, employees or agents caused by, or alleged to have been caused by, the negligence, intentional tortuous act or omission, or willful misconduct of CLIENT, its officers, employees or agents in the performance of any services or work pursuant to this Agreement. CITY/DISTRICT hereby agrees to defend, indemnify, and save harmless CLIENT, its Council, boards, commissions, officers, employees and agents, from and against any and all claims, suits, actions, Liability, loss, damage, expense, cost (including, without limitation, costs and fees of litigation) of every nature, kind or description, which may be brought against, or suffered or sustained by, CLIENT, its Council, boards, commissions, officers, employees or agents caused by, or alleged to have been caused by, the negligence, intentional tortuous act or omission, or willful misconduct of CITY/DISTRICT, its officers, employees or agents in the performance of any services or work pursuant to this Agreement. PATENT INFRINGEMENT CITY/DISTRICT shall indemnify and defend the CLIENT in any actions against the CLIENT to the extent that they are based on a claim of infringement for the use of CalOpps related to this Agreement, provided that CITY/DISTRICT is notified in writing of such claim. CITY/DISTRICT shall have the right to control the defense of all such claims, lawsuits and other proceedings. CLIENT shall use its best efforts to aid CITY/DISTRICT in conducting any such defense. In case of a judgment adverse to the CLIENT or CITY/DISTRICT, CITY/DISTRICT shall make reasonable efforts to purchase the right to continued use of any infringing software on the CLIENT's behalf, or to modify CalOpps to make it non -infringing. 9. Notice. All notices required by this Agreement shall be given to the CITY/DISTRICT and CLIENT in writing, by first class mail, postage prepaid, addressed as follows: CITY: City of Foster City 610 Foster City Boulevard Foster City, CA 94404 Attention: HR Director CLIENT: Town of Tiburon 1505 Tiburon Blvd. Tiburon, CA 94920 Attn: Heidi Bigall Director of Administrative Services 10. Non-Assinment. This Agreement is not assignable either in whole or in part. 11. Amendments. This Agreement may be amended or modified only by written agreement signed by both Parties. 12. Validity. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 13. Governing Law. This Agreement shall be governed by the laws of the State of California and any suit or action initiated by either party shall be brought in the County of San Mateo, California. In the event of litigation between the Parties hereto to enforce any provision of the Agreement, the unsuccessful party will pay the reasonable attorney's fees and expenses of litigation of the successful party. 14. Mediation. Should any dispute arise out of this Agreement, the Parties shall first meet in mediation and attempt to reach a resolution with the assistance of a mutually acceptable mediator. Neither party shall be permitted to file legal action without first meeting at least once in mediation and making a good faith attempt to reach a mediated resolution. The costs of the mediator, if any, shall be paid equally by the Parties. If a mediated settlement is reached neither party shall be deemed the prevailing party for purposes of the settlement, and each party shall bear its own legal costs. IN WITNESS WHEREOF, the PARTIES hereto have caused this Agreement to be executed on the date first above written by their respective officers duly authorized in that behalf. Dated: 47' 3 - 15 - Dated: 6 . • L5 Agency: Town of Tiburon Dated: - 0, I. 1 6 Dated: CITY OF FOSTER CITY A Municipal Corporation C Jarpf s C. Hardy, City Manager Doris L. Palmer, City Clerk M Cir cLr�,L Pi . C C.4 -.r, -Q PRINT Tp we + 1,-4 al-% C►/ (SIGN ) URE TITLE) PRINT NAME (SIGNATURE & TITLE) CLIENT's Obligation CLIENT shall provide to the CITY/DISTRICT a designated contact Administrator "the CLIENT Administrator". All communications from the CITY/DISTRICT to CLIENT will be through the CLIENT'S Administrator, or, in his/her absence, a designated alternate. The CLIENT'S Administrator will be responsible for minor maintenance work, including but not limited to, setting up and maintaining CLIENT's agency profile interface. The CLIENT'S Administrator shall disseminate all communication from the CITY/DISTRICT to the CLIENT as necessary. CLIENT shall meet all deadlines for review of date timelines and database information. CLIENT shall not hold the CITY/DISTRICT liable for any database records deleted from system due to missed deadlines for review and download of database records. Ownership of Hardware / Non CITY/DISTRICT Licensed Software Hardware and software to support the CalOpps website is owned by the CITY/DISTRICT. CITY/DISTRICT shall obtain sufficient licenses for all software in use by all participating public agencies (CLIENTs) and public visitors using the CalOpps site. CLIENT's initial costs will allow the CITY/DISTRICT to invest in the technology under this Agreement. CITY/DISTRICT shall obtain and use an annual maintenance contract to fund maintenance and replacement costs for the hardware and software. Ownership of CITY/DISTRICT Developed Software All Cold Fusion code and database structure developed, as part of this Agreement is the property of the CITY/DISTRICT and shall be retained by CITY/DISTRICT if this Agreement is terminated. CLIENT is not permitted to use the ideas and code developed by CITY/DISTRICT for its own use. All data entered into the database is the property of the CLIENT. CITY/DISTRICT shall have no right to use data stored and/or maintained in the CLIENT's database for any purpose other than testing as part of the development or maintenance of the web site as provided by this Agreement. Domain Name The CITY/DISTRICT owns and must maintain registration of the domain name CalOpps.org at all times. The CITY/DISTRICT shall be listed as the `technical contact' for said domain name. The IP address assigned to CLIENT domain shall be owned by the CITY/DISTRICT and may be changed at anytime at the CITY/DISTRICT's discretion. CITY/DISTRICT shall maintain the domain registration and IP address at no additional cost to CLIENT. Security Agreements An administrator password will be provided to the Administrator. In addition, CLIENT shall be assigned passwords to update and access the site. It is the responsibility of the CLIENT to keep this information confidential. If any damage is done to the website via an assigned account, it is the responsibility of the CLIENT. CITY/DISTRICT shall abide by the data privacy policy as established on the CalOpps website CITY/DISTRICT shall use commercially reasonable best efforts to ensure the security and integrity of CLIENT's data, and shall use its best efforts to notify CLIENT of any known or suspected security breach within four business hours of occurrence of such breach. Content Agreements CLIENT shall be responsible for all content posted to the website by its authorized users. CLIENT agrees to use its best efforts to ensure its content posted on the CalOpps site will not violate any intellectual property rights, resell the services set forth in this Agreement, or engage in any illegal or fraudulent activities. CLIENT shall not post any content that is (covered above) obscene, defamatory, harassing, abusive or threatening. CLIENT shall not be deemed to have violated this provision if CLIENT determined in good faith, after consulting legal counsel, that such content was not obscene, defamatory, harassing, abusive or threatening. CITY/DISTRICT will cooperate fully with any law enforcement agency in connection with any and all illegal activities occurring on or through this service. INSURANCE (a) WORKERS' COMPENSATION. During the term of this Agreement, CITY/DISTRICT shall fully comply with the terms of the law of California concerning workers' compensation, (b) GENERAL LIABILITY INSURANCE. CITY/DISTRICT shall obtain at its sole cost and keep in full force and effect during the term of this agreement commercial general Iiability insurance in the amount of $1,000,000 per occurrence for bodily injury, personal injury, and property damage. Said insurance shall operate as primary insurance. Except as provided in Section 9 (Indemnity) of this agreement, no other insurance affected by the CLIENT or other named insureds will be called upon to cover a loss covered thereunder. (c) AUTOMOBILE LIABILITY INSURANCE. CITY/DISTRICT shall obtain at its sole cost and keep in full force and effect during the tenn of this agreement automobile liability insurance in the amount of $1,000,000 per occurrence covering bodily injury and property damage per occurence. Said insurance shall operate as primary insurance for City/District employees. No other insurance effected by the CLIENT or other named insureds will be called upon to cover a loss covered thereunder. (d) CERTIFICATES OF INSURANCE. CITY/DISTRICT shall provide that no cancellation, expiration, or nonrenewal will be made during the tern of this agreement, without thirty (30) calendar days advance written notice to the Director of Human Resources. (e) SELF-INSURANCE CERTIFICATION. It is understood that CITY/DISTRICT may be insured for one or more of the above insurance coverages by a self-insured program, and that evidence of coverage from such program, in lieu of commercial insurance, shall be satisfactory, provided all other conditions of coverage are satisfied. CALOPPS Services Agreement This Agreement is made and entered into as of the 2nd of March, 2015 by and between Town of Tiburon, hereinafter referred to as "CLIENT" and the City of Foster City/Estero Municipal Improvement District, a Municipal Corporation, hereinafter referred to as "CITY/DISTRICT". CLIENT and CITY/DISTRICT shall be refened to hereinafter as the "PARTIES." RECITALS This Agreement is entered into with reference to the following facts and circumstances: A. That CLIENT has the need to secure expert consulting services to provide CLIENT with a system of posting a job announcement on an Internet employment website; and B. That CITY/DISTRICT is specially experienced and qualified to perform the specialized consulting services desired by the CLIENT and is willing to perform such services which shall be known as CalOpps; and C. That CLIENT has elected to engage the services of CITY/DISTRICT upon the terms and conditions as hereinafter set forth. AGREEMENT 1. Services. The services to be performed by CITY/DISTRICT under this Agreement shall include those services listed above. 2. Term: Termination. (a) The term of this Agreement shall continence upon the date hereinabove written. 3. Compensation: Expenses: Payment. CITY/DISTRICT shall provide CalOpps services to CLIENT annually pursuant to the following fee: A. Per posting fee of two hundred and fifty ($250.00) for one job announcement B. Payment shall be due thirty (30) days after billing for same. 4. Authorization. This Agreement becomes effective when endorsed by both Parties in the space provided below. 5. Reliance on Professional Skill of CITY/DISTRICT. CITY/DISTRICT represents that it has the necessary professional skills to perform the services required and the CLIENT shall rely on such skills of the CITY/DISTRICT to do and perform the work. In performing services hereunder CITY/DISTRICT shall adhere to the standards generally prevailing for the performance of expert consulting services similar to those to be performed by CITY/DISTRICT hereunder. 6. Relationship of Parties. It is understood that the relationship of CITY/DISTRICT to the CLIENT is that of an independent contractor and all persons working for or under the direction of CITY/DISTRICT are its agents or employees and not agents or employees of the CLIENT. 7. Defaults/Remedies. The occurrence of any one or more of the following events shall constitute a material default or breach of this Agreement by CLIENT: A. Failure by the CLIENT to make any payment of fees required under this Agreement where such failure shall continue for a period of fifteen (15) business days after written notice by CITY/DISTRICT. In the event of a material default or breach by CLIENT, the CITY/DISTRICT may, without limiting the CITY/DISTRICT's rights or remedies, terminate CLIENT access to CalOpps website and all other services provided herein. 8. Indemnity. CLIENT hereby agrees to defend, indemnify, and save harmless CITY/District, its Council, boards, commissions, officers, employees and agents, from and against any and all claims, suits, actions, liability, loss, damage, expense, cost (including, without limitation, costs and fees of litigation) of every nature, kind or description, which may be brought against, or suffered or sustained by, CITY/DISTRICT, its Council, boards, commissions, officers, employees or agents caused by, or alleged to have been caused by, the negligence, intentional tortuous act or omission, or willful misconduct of CLIENT, its officers, employees or agents in the performance of any services or work pursuant to this Agreement. CITY/DISTRICT hereby agrees to defend, indemnify, and save harmless CLIENT, its Council, boards, commissions, officers, employees and agents, from and against any and all claims, suits, actions, liability, loss, damage, expense, cost (including, without limitation, costs and fees of litigation) of every nature, kind or description, which may be brought against, or suffered or sustained by, CLIENT, its Council, boards, commissions, officers, employees or agents caused by, or alleged to have been caused by, the negligence, intentional tortuous act or omission, or willful misconduct of CITY/DISTRICT, its officers, employees or agents in the performance of any services or work pursuant to this Agreement. PATENT INFRINGEMENT CITY/DISTRICT shall indemnify and defend the CLIENT in any actions against the CLIENT to the extent that they are based on a claim of infringement for the use of CalOpps related to this Agreement, provided that CITY/DISTRICT is notified in writing of such claim. CITY/DISTRICT shall have the right to control the defense of all such claims, lawsuits and other proceedings. CLIENT shall use its best efforts to aid CITY/DISTRICT in conducting any such defense. In case of a judgment adverse to the CLIENT or CITY/DISTRICT, CITY/DISTRICT shall make reasonable efforts to purchase the right to continued use of any infringing software on the CLIENT's behalf, or to modify CalOpps to make it non -infringing. 9. Notice. All notices required by this Agreement shall be given to the CITY/DISTRICT and CLIENT in writing, by first class mail, postage prepaid, addressed as follows: CITY: City of Foster City CLIENT: Town of Tiburon 610 Foster City Boulevard 1505 Tiburon Blvd. Foster City, CA 94404 Tiburon, CA 94920 Attention: HR Director Attn: Heidi Bigall Director of Administrative Services 10. Non-Assimment. This Agreement is not assignable either in whole or in part. 11. Amendments. This Agreement may be amended or modified only by written agreement signed by both Parties. 12. Validity. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 13. Govemine Law. This Agreement shall be governed by the laws of the State of California and any suit or action initiated by either party shall be brought in the County of San Mateo, California. In the event of litigation between the Parties hereto to enforce any provision of the Agreement, the unsuccessful party will pay the reasonable attorney's fees and expenses of litigation of the successful party. 14. Mediation. Should any dispute arise out of this Agreement, the Parties shall first meet in mediation and attempt to reach a resolution with the assistance of a mutually acceptable mediator. Neither party shall be permitted to file legal action without first meeting at least once in mediation and making a good faith attempt to reach a mediated resolution. The costs of the mediator, if any, shall be paid equally by the Parties. if a mediated settlement is reached neither party shall be deemed the prevailing party for purposes of the settlement, and each party shall bear its own legal costs. IN WITNESS WHEREOF, the PAR!IbS hereto have caused this Agreement to be executed on the date first above written by their respective officers duly authorized in that behalf. CITY OF FOSTER CITY A Municipal Corporation Dated: James C. Hardy, City Manager Dated: Agency: Town of Tiburon Dated: — a 1.1 6 Dated: ATTEST: Doris L. Palmer, City Clerk N1 ari m-1- A PRINT Dvurt 1-4a n PRINT NAME (SIGNATURE & TITLE) CLIENT's Obligation CLIENT shall provide to the CITY/DISTRICT a designated contact Administrator "the CLIENT Administrator". All communications from the CITY/DISTRICT to CLIENT will be through the CLIENT'S Administrator, or, in his/her absence, a designated alternate. The CLIENT'S Administrator will be responsible for minor maintenance work, including but not limited to, setting up and maintaining CLIENT's agency profile interface. The CLIENT'S Administrator shall disseminate all communication from the CITY/DISTRICT to the CLIENT as necessary. CLIENT shall meet all deadlines for review of date timelines and database information. CLIENT shall not hold the CITY/DISTRICT liable for any database records deleted from system due to missed deadlines for review and download of database records. Ownership of Hardware / Non CITY/DISTRICT Licensed Software Hardware and software to support the CalOpps website is owned by the CITY/DISTRICT. CITY/DISTRICT shall obtain sufficient licenses for all software in use by all participating public agencies (CLIENTs) and public visitors using the CalOpps site. CLIENT's initial costs will allow the CITY/DISTRICT to invest in the technology under this Agreement. CITY/DISTRICT shall obtain and use an annual maintenance contract to fund maintenance and replacement costs for the hardware and software. Ownership of CITY/DISTRICT Developed Software All Cold Fusion code and database structure developed, as part of this Agreement is the property of the CITY/DISTRICT and shall be retained by CITY/DISTRICT if this Agreement is terminated. CLIENT is not permitted to use the ideas and code developed by CITY/DISTRICT for its own use. All data entered into the database is the property of the CLIENT. CITY/DISTRICT shall have no right to use data stored and/or maintained in the CLIENT's database for any purpose other than testing as part of the development or maintenance of the web site as provided by this Agreement. Domain Name The CITY/DISTRICT owns and must maintain registration of the domain name CalOpps.org at all times. The CITY/DISTRICT shall be listed as the `technical contact' for said domain name. The IP address assigned to CLIENT domain shall be owned by the CITY/DISTRICT and may be changed at • anytime at the CITYIDISTRICT's discretion. CITY/DISTRICT shall maintain the domain registration and IP address at no additional cost to CLIENT. Security Agreements An administrator password will be provided to the Administrator. In addition, CLIENT shall be assigned passwords to update and access the site. It is the responsibility of the CLIENT to keep this information confidential. If any damage is done to the website via an assigned account, it is the responsibility of the CLIENT. CITY/DISTRICT shall abide by the data privacy policy as established on the CalOpps website CITY/DISTRICT shall use commercially reasonable best efforts to ensure the security and integrity of CLIENT's data, and shall use its best efforts to notify CLIENT of any known or suspected security breach within four business hours of occurrence of such breach. Content Agreements CLIENT shall be responsible for all content posted to the website by its authorized users. CLIENT agrees to use its best efforts to ensure its content posted on the CalOpps site will not violate any intellectual property rights, resell the services set forth in this Agreement, or engage in any illegal or fraudulent activities. CLIENT shall not post any content that is (covered above) obscene, defamatory, harassing, abusive or threatening. CLIENT shall not be deemed to have violated this provision if CLIENT determined in good faith, after consulting legal counsel, that such content was not obscene, defamatory, harassing, abusive or threatening. CITY/DISTRICT will cooperate fully with any law enforcement agency in connection with any and all illegal activities occurring on or through this service. INSURANCE (a) WORKERS' COMPENSATION. During the term of this Agreement, CITY/DISTRICT shall fully comply with the terms of the law of California concerning workers' compensation, (b) GENERAL LIABILITY INSURANCE. CITY/DISTRICT shall obtain at its sole cost and keep in full force and effect during the term of this agreement commercial general liability insurance in the amount of $1,000,000 per occurrence for bodily injury, personal injury, and property damage. Said insurance shall operate as primary insurance. Except as provided in Section 9 (Indemnity) of this agreement, no other insurance affected by the CLIENT or other named insureds will be called upon to cover a loss covered thereunder. (c) AUTOMOBILE LIABILITY INSURANCE. CITY/DISTRICT shall obtain at its sole cost and keep in full force and effect during the term of this agreement automobile liability insurance in the amount of $1,000,000 per occurrence covering bodily injury and property damage per occurence. Said insurance shall operate as primary insurance for City/District employees. No other insurance effected by the CLIENT or other named insureds will be called upon to cover a loss covered thereunder. (d) CER1'll•ICATES OF INSURANCE. CITY/DISTRICT shall provide that no cancellation, expiration, or nonrenewal will be made during the term of this agreement, without thirty (30) calendar days advance written notice to the Director of Human Resources. (e) SELF-INSURANCE CERTIFICATION. It is understood that CITY/DISTRICT may be insured for one or more ofthe above insurance coverages by a self-insured program, and that evidence of coverage from such program, in lieu of commercial insurance, shall be satisfactory, provided all other conditions of coverage are satisfied.