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HomeMy WebLinkAboutBRILLIANT BLUE, LLC-2008N-2008-064 Q: io1;c~(:~~ C3ob Brake-"`-Eel~l CONSULTANT AGREEMENT THIS AGREEMENT, made and entered into this -~=-- day of ~, 2008 by and between Brilliant Blue, LLC, a California Limited Liability Company (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of custom application development, to develop aweb-based roll-call application. B. Consultant represents that Consultant 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, inconsideration 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 develop aweb-based roll-call application, as set forth in Exhibit A to this Agreement. 2. WARRANTIES -OWNERSHIP -WORK FOR HIRE Consultant warrants and represents that it has the absolute right to enter into and perform this agreement and will perform its obligations hereunder in accordance with standards and practices prevailing in the industry. Consultant's contribution to the Project, including works to be produced by Consultant hereunder, will not infringe or misappropriate the proprietary or personal rights of any third person or party. 3. COMPENSATION A. City agrees to pay, and Consultant agrees to accept as total payment for its services, based on the milestones set forth in Exhibit A. The total sum to be expended under this Agreement shall not exceed $25,000.00 during the term of this Agreement. B. Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed and milestones delivered during the preceding month, subject to City accounting procedures. Payment need not be made far work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. 4. TERM This Agreement shall commence on the date first written above and terminate on City's acceptance of the fully functioning application. 5. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor 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. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: Worker s Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self- insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, 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 health, and claims for property damage, which may arise from the director indirect operations of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their 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. 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 ofthe Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation oflaw; 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. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall 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 telefacsimile 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 telefacsimile (714) 647-6956 With Courtesy Copies to: City of Santa Ana Police Department Technology & Support 60 Civic Center Plaza (M-97) 3 Santa Ana, California 92702 telefacsimile (714) 245-8098. and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (71 4) 647-6515 To Consultant: Brilliant Blue, LLC 15635 Alton Pkwy, Suite 450 Irvine, CA 92618 telefacsimile (949) 450-1472 Attn: Peter Ashworth 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 telefacsimile, 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. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, 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 terms 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 Consultant. 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 nor 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 are not embodied herein. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, 4 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 consultants 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 oftermination, subject to the following conditions: A. As a condition of such payment, the Chief of Police may require Consultant to deliver to the City a copy of all work product completed as of such date, and Consultant consents to the City's use thereoffor 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. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion. termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 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 ofthis 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, maintain 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 5 be cause for termination of this Agreement. 17. MISCELLANEOUS PROVISIONS 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 shaH indemnify City fuHy, 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. All Exhibits referenced herein and attached hereto shaH be incorporated as if fuHy set forth in the body ofthis Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ~-- ( .- - -~ I PATRICIAE.HEAi -{ Clerk of the Council CITY OF SANTA ANA ?~~~ City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney ./ By: !\{ Laura: Sheedy Assistant City Attorney PA M. WALTERS Chief of Police TaxlD# 2.0 -D07 2-,+95" 6 EXHIBIT A SCOPE OF SERVICES Consultant shall provide Application Consulting, including initial framework support services and integration of web-based services, necessary to develop a web-based roll call information system more particularly described in Consultant's Proposal dated April 29, 2008. The total cost of Phase I services shall not exceed $24,986 which shall be paid at the milestones, and on the percentages listed herein: Stage 1 ($6,246.50) Determination of architecture and creative user interfaces 25% Stage 2 ($6,246.50) Beta Test Ready Code Framework for Proof of Concept 25% Stage 3 ($6,246.50) Incorporate "CNN Style" Roll Call Application into framework 25% CAD Database interface Process Choreographer Mapping coordinates and overlay for portlet Interface for inputting stolen vehicle information Interface for Most Wanted screen Stage 4 ($6,246.50) Test system - interfaces - ability to call information De-bugging complete, City accepts Framework 25% 7 ACORD,. CERTIFICATE OF LIABILITY INSURANCE INSURED Fire -me Co -- I I l l -I PAYCHEX AGENCY INC 210705 P: () - F: ()- 308 FARMINGTON AVE FARMINGTON CT 06032 N-;;1ODIS-O&<t JDZ DATE UOBB' 08-14-2008 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY ANO CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOES NOT AMEND, EXTEND OR : ALTER THE COVERAGE AFFORDED BY THE POLlC~BELOW, PRODUCER _L ~RERA:Hartford INSURERS: INSURERS AFFORDING COVERAGE IBRILLIANT BLUE LLC 15635 ALTON PKWY, STE 450 jIRVINE CA 32618 COVERAGES I THE"POLlCIES DFINSUAANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING I ANY REQUIREMENT, TERM OR CGNOmON OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. Iff: ' TYPE OF INSURANCE POLICY NUMBER ':Pif.n:IfIfi};~~~ I INSURE~_~; f JNSl!~~R 0; , JNSURERE; PERSONAL & ADV INJURY i $ r GENERAL AGGREGATE ' $ _~I'lODUCT~_: COMP/OP AG~ i $ I ~~MBINEDSING~LIMIT lEa accident) -- --- BODILY INJURY SCHEDULED AUTOS I (Pet person) HIRED AUTOS BODILY JNJURY $ I b NON OWNED AUTOS 1 (P" "d',"" : 1- ~A~E lIABIlIT-;-J ------L- -t- ~~::~::~~A:A::CIDENT : I~E::~~:'::YI ,I I ... . .... I :::::;~::RENc:A :~~ I : ,I j-: OCCUR I~ CLAIMS MAD~E I AGGREG~~E - i: DEDUCTIBLE + " IRETENT~ON -. -~. ~~~TH" -i I WORJ(ERSCOMPENSAnDNAND . ~ITSI-.J ER .. ~ A EMPLOYERS' liABILITY .. 76 WEG NU0419 102/14/08 02/14/09 ELEACHACCIDENT ,1,000,000_ - I E.L. DISEASE- EAEMPLOYEE' $1,000, 000 _ I 1.- 1- I -I. "~""eo,,""~ ".000.0<>0: 1 OESJRU'TION OF OPERA T>ONMOCA T>ONSlVEHlLSIEXC'US>ONS AODED BY ENDeRSEMENTIS"C'A' PROVISIONS 1_. ~ GENERAL LIABILITY ~MMERCIAL GENERAL LIABILITY I R~ CLAIMS MADE 0 OCCUR I GEN'L..AGGRE~ATE L.'.MIT APPLIES p. ER; I Pf,?L1CY I I j~8T I I ~Ql: AUTOMOBJJ.E LIABILITY POLICYEX~.N DA TE MM D/YY , EACH OCCURRENCE LIMITS -----l I' FIRE DAMAGE .(Any one fire) i $ , --------------; MED EXP(Any one person) -~ --, ANY AUTO I " ALL OWNED AUTOS 1 I Those usual to the Insured's Operations. Re: Software Development I.. ---I" ., (EFiTIFICATE HOLDE~ . ADDlT>oNALlNSURED,INSURERLHTER.. CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE-i-?El EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MArL 30 DAYS WRITTEN NOTICE (10 DAYS FOR NON-PAYMENT) TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO , OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR ' REPRESENTATIVES. Isanta Ana Police Department 60 CIVIC CENTER PLZ / I'SANTAANA,CA,92701 .' " . F oY<T'-' 2;;;:" ACORD 25 S 17/97) - , /' " , ~~ . ACORO CORPORATION 1988