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HomeMy WebLinkAboutCI TECHNOLOGIESINSURANCE NOT ON FILE WORK MAY NOT PROCEED CLERK OF COUNCIL DATE: N-2022-367 SOFTWARE MAINTENANCE AND SUPPORT AGREEMENT WITH CI TECHNOLOGIES THIS AGREEMENT is made and entered into on this 1st day of December, 2022 by and between Cl N600'V• / A';�echnologies, Inc., a Florida corporation, ("Consultant' or "CIT"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of w California ("City"). N O N ® RECITALS 6" A. The City desires to retain a Consultant having special skill and knowledge in the field of LU software maintenance and support for the IA Pro and Blue Team administrative investigation Ca software programs. B. Consultant represents that it is able and willing to provide such services to the City. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform software maintenance and support services as needed by the City of the IA Pro and Blue Team software programs purchased by the City. The scope of the maintenance and support services is outlined and set forth in Exhibit A, attached hereto and incorporated by reference. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services for City, the rates and charges identified in Exhibit B. The total amount to be expended during the term of this Agreement shall not exceed $13,839.31. The base amount for this compensation includes maintenance fees in the amount of $9,839.31 and a contingency amount of $4,000 for any additional work approved at the sole discretion of the City. Maintenance fees may be raised by no more than 2% as provided in Exhibit B. b. City shall compensate Consultant for services rendered since September 1, 2022. c. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. Page 1 of 9 #245794vl UINNIVINIX5I This Agreement shall commence the date first written above and continue until August 31, 2024, unless terminated earlier in accordance with Section 13, below. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent Consultant and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE CIT shall procure and maintain for the duration of the contract insurance against claims for security breaches, system failures, injuries to persons, damages to software, or damages to property (including computer equipment) which may arise from or in connection with the performance of the work hereunder by CIT, its agents, representatives, or employees. CIT shall procure and maintain for the duration of the contract insurance claims arising out of their services and including, but not limited to loss, damage, theft or other misuse of data, infringement of intellectual property, invasion of privacy and breach of data. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Workers' Compensation insurance as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by CIT in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses. Page 2 of 9 #245794vl ➢ Technology Professional Liability Errors & Omissions Technology Professional Liability Errors and Omissions Insurance appropriate to the Consultant's profession and work hereunder, with limits not less than $2,000,000 per occurrence. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by CIT in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses. a. The Policy shall include, or be endorsed to include, property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information "property" of Customer in the care, custody, or control of CIT. If not covered under CIT's liability policy, such "property" coverage of Customer may be endorsed onto CIT's Cyber Liability Policy as covered property as follows: 1. Cyber Liability coverage in an amount sufficient to cover the full replacement value of damage to, alteration of, loss of, or destruction of electronic data and/or information "property" of Customer that will be in the care, custody, or control of CIT. 2. The Insurance obligations under this agreement shall be the greater of I —all the Insurance coverage and limits carried by or available to CIT; or 2—the minimum Insurance requirements shown in this agreement. Any insurance proceeds in excess of the specified limits and coverage required, which are applicable to a given loss, shall be available to Customer. No representation is made that the minimum Insurance requirements of this agreement are sufficient to cover the indemnity or other obligations of CIT under this agreement. If CIT maintains broader coverage and/or higher limits than the minimums shown above, Customer requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to Customer. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status Customer, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of CIT including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant's insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used). Primary Coverage For any claims related to this contract, CIT's insurance coverage shall be primary. Coverage for #245794vl Page 3 of 9 commercial liability shall be at least as broad as ISO CG 20 01 04 13 as respects Customer, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by Customer, its officers, officials, employees, or volunteers shall be excess of CIT's insurance and shall not contribute with it. Notice of Cancellation Each insurance policy required above shall state that coverage shall not be canceled, except with notice to Customer. Waiver of Subrogation CIT hereby grants to Customer a waiver of any right to subrogation which any insurer of said CIT may acquire against Customer by virtue of the payment of any loss under such insurance. CIT agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not Customer has received a waiver of subrogation endorsement from the insurer. Self -Insured Retentions Self -insured retentions must be declared to and approved by Customer. Customer may require CIT to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or Customer. Acceptability of Insurers Insurance is to be placed with insurers authorized to conductbusiness in the state with a current A.M. Best's rating of no less than A-:VII, unless otherwise acceptable to Customer. Claims Made Policies If any of the required policies provide coverage on a claims -made basis: 1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. 2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the contract effective date, CIT must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. Verification of Coverage CIT shall furnish Customer with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to Customer before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive CIT's obligation to provide them. Customer reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. The Certificate Holder on the Certificates of Insurance shall be listed as: City Of Santa Ana Risk Management Division #245794v1 Page 4 of 9 20 Civic Center Plaza Santa Ana CA 92702 USA Subcontractors CIT shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and CIT shall ensure that Customer is an additional insured on insurance required from subcontractors. Special Risks or Circumstances Customer reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. 6. INDEMNIFICATION Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Contractor, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Contractor's services are subject to Civil Code Section 2782, 8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor. 7. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. #245794v1 Page 5 of 9 8. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. NON-DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Contractor, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terns of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Contractor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. - 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Contractor, Page 6 of 9 #245794vl Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Contractors retained by City. 13. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 14. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 15. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, mainta p. all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall Page 7 of 9 #245794vi be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax: 714- 647-6956 With courtesy copies to: Chief of Police City of Santa Ana 20 Civic Center Plaza (M-95) P.O. Box 1988 Santa Ana, California 92702 Fax:714-245-8094 To Contractor: Cl Technologies, Inc. Attn: Suzi Hargadon 119 N. Commercial St., #270 Bellingham, WA 98225 shargadon@ci-technologies.com A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 18. MISCELLANEOUS PROVISIONS a a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. The Agreement is the final and complete agreement and any prior or contemporaneous agreements for similar services between the parties is superseded by this Agreement. This shall not apply where the Parties are currently engaged Page 8 of 9 #245794vl N-2022-367 and Consultant is providing services not contemplated by this Agreement All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: yr Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: I&&==== - Tamara Bogosian Senior Assistant City Attorney R0xKfLk1kyj191►107a07 Chief an CITY OF SANTA ANA Kristine Ridge City Manager CONSULTANT: Timothy Cor&er Managing Director Type text here Page 9 of 9 #245794vl Exhibit A- Provision of Technical Support Services While the annual maintenance agreement is in -effect, CI Technologies will provide technical support to Customer as follows: Availability: Via our 1-800 number and personal cell phones during normal working hours. Also, e-mail for lower priority issues. We typically make ourselves available after working hours if a high priority problem is pending. Two hours is our typical response time to medium and high priority calls. We typically respond to call or e-mails related to training or usage issues within 24 hours. The following escalation procedures will be employed to insure an appropriate response to any interruption of service in order to minimize downtime. Problems are addressed quickly during the hours of 8:OOam and 6:OOpm EST Monday through Friday excluding Holidays and weekends. General problem reporting and resolution procedures When a problem is encountered during regular business hours, the following steps will be preformed: Customer users will ideally first contact the IAPro designated coordinator of Customer. This will probably be a person in either the IA or IT areas who is most familiar with IAPro. (Please note: Users are also welcome to call CI Technologies directly, but including the IAPro designated coordinator in problem resolution is desired.) If the problem seems to require assistance from CI Technologies, they will be contacted at this point. Otherwise, the Customer IAPro designated coordinator will attempt to correct the problems. The IAPro designated coordinator will verify network connects, resolve printer problems and any desktop issues associated with using IAPro. If internal City resources are unable to determine the cause of the failure, the IAPro designated coordinator will contact CI Technologies. CI technologies will be notified through E-Mail and via phone. CI Technologies resources will work with the Customer to diagnose the problem. After investigating the issue, CI Technologies and the Customer will jointly categorize the problem into: Type of Problem ,':: Ownersh1 Server Hardware Problem IT Desktop Hardware Problem IT Network Communication IT Isolated Workstation Issue IT Database Performance/storage CI Technologies Application or software related CI Technologies 10 Santa Ana Police Department Problem Definition and Priority: The following table provides a list of the types of problems that can be experienced. CI Technologies is responsible for (but not limited to): Showstopper High All services unavailable: (City Wide) The system is unavailable. Cases cannot be rocessed. Efficiency/Performance/Throughput: System is Showstopper High functional but does not match the performance criteria. System not performing as specified: Showstopper High Functions are not executing correctly and are stopping cases from being processed. No workaround available. User Error: Training Issue/Questions Low Problem reported by user that was a result of user error or misunderstanding. Isolated workstation failure. Enhancement: Enhancement Low System does not perform the required - These will be added to the functionality. Functionality was not within enhancement list and addressed requirements. with CI Technologies as needed. System not performing as specified (workaround Workaround Available Medium available). An error is experienced but the Complex workaround problem can be worked around, Decrease system's efficiency/performance/ throughput Decreases user/department's efficiency in completing tasks Workaround available Low Easy to implement workaround. No impact on system performance No Impact on user/department's efficient Support Restore Requirements The following table provides a guideline for restoration times in case of a problem: High I Response within 2 hours of contact. Resolution within 6 hours from time of notifying the vendor contact(s) through voice mail (first level support contact) and e-mail. If feasible, CI Technologies will provide after hours support into the evening or during early morning hours. Med Resolution within 2 business days from time of notifying the vendor contact(s) through voice mail (first level support contact) and e-mail to the entire list. 11 Santa Ana Police Department =i?r7&ltyRestoFe=Time . Low No resolution time designated.. Added to enhancement list or addressed through updates to user documentation. Future releases are supported in the above manner as long as the annual maintenance agreement is in - effect. We provide a 24 hour toll free product support line with either a person or voice mail answering. From 8:30 AM — 5:30 PM EST a person is most likely to answer. old releases are supported up to 2 years after release of succeeding versions. Please note that customers with a current annual maintenance agreement are provided the latest version of the software to include all customizations 12 Santa Ana Police Department EXHIBIT B To Software Maintenance Agreement FEE SCHEDULE (1) Maintenance Fee: The Maintenance Fee for the Initial Term shall be the following amount of money: $3,247.30 for IAPro (September 2022 —August 2023) $1,623.65 for BlueTeam (September 2022 — August 2023) Total for September 2022 -August 2023 = $4,870.95 $3,312.24 for IAPro (September 2023 — August 2024) $1,656.12 for BlueTeam (September 2023 — August 2024) Total for September 2023 — August 2024 = $4,968.36 Will be billed annually. CI Technologies may raise annual maintenance by 2% every other year. NOTICE OF COMPLIANCE CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL Contractor CI Technologies, Inc. Name: Project TBD (018) Number: Project Software Maintenance And Support Agreement With CI Name: Technologies The Certificate of Insurance (COI) submitted indicates that the coverages are in compliance with the insurance requirements. No further action is required at this time. The compliant coverage(s) are: POLICY EXPIRATION TYPE OF INSURANCE COI DATE FILE NAME NUMBER DATE City of Santa Ana, WOS, CYBER & PROFESSIONAL ZPL13T1073222I5 10/01/2023 12/12/2022 Risk Management Division, LIABILITY Santa Ana, CA, 92701.pdf City of Santa Ana, WOS, GENERAL LIABILITY ZLP51M4233522I5 10/01/2023 12/12/2022 Risk Management Division, Santa Ana, CA, 92701.pdf City of Santa Ana, WOS, WORKERS COMPENSATION AND UB5J31679622I5G 10/01/2023 12/12/2022 Risk Management Division, EMPLOYERS' LIABILITY Santa Ana, CA, 92701.pdf Thank you, City of Santa Ana Risk Management Division in partnership with CTrax Plus Services Team 12/21/2022 12:46 PM