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HomeMy WebLinkAboutCLOUDBURST MOBILE, INC.-2010NSURANCE NOT ON FILE A-2008-075-40 1 PROCEED WORK MAY N4I CLERK OF COUNCIL naTE: JUL 3 0 ZOfO?/ CONSULTANT AGREEMENT ?• THIS AGREEMENT, made and entered into this _ day of71Nl 2010, by and between C1oudBurst Mobile, Inc., a Washington corporation (hereinafter "Consu t' ), and the City of V 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. City, acting through the Santa Ana Police Department in its capacity as a Core City for the Anaheim / Santa Ana Urban Area under the FY08 Urban Areas Security Initiative ("UASI") funding program, has applied for, received and accepted a grant from the United States Department of Homeland Security, and has entered into an agreement with the City of Anaheim as the lead agency regarding the purchase of equipment under said grant (Santa Ana Contract No. A-2009-021), which provides funds to local emergency first responders to enhance security and preparedness to prevent, respond to, and recover from acts of terrorism by providing funding for equipment, planning, training, exercises and technical assistance, hereinafter referred to as "the Grant". B. The City desires to contract with an expert in the field of software system packages, including software and web server access licenses, for asset management, in compliance with UASI audit requirements. C. Consultant represents that they have the necessary hardware, skills and experience to provide the requisite asset management software system. D. Consultant has submitted a Proposal which identifies the scope, software, hardware, and cost estimate for providing the asset management software system. E. 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. The parties also confirm that Consultant is entering into a separate agreement with the City of Anaheim under the same UASI grant program for additional materials that will be complimentary to the materials being provided as part of the instant agreement and will all be part of the contemplated asset management software system. In fact, the maintenance provided for in the City of Anaheim's proposal will cover all of the materials purchased by both the City of Anaheim and the City of Santa Ana since both cities will be sharing one system. In addition, the City of Anaheim will be providing the necessary barcode labels and training for both cities. 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: Pagel of 8 1. SCOPE OF SERVICES Consultant shall provide the asset management software system in accordance with Consultant's Proposal, attached hereto as Exhibit A, and incorporated by reference. All services and equipment required hereunder shall conform in all respects to standards for such services and equipment issued by the U.S. Department of Homeland Security. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed $20,123.10 during the term of this Agreement. b. Payment by City shall be made within thirty (30) days following the execution of this agreement and the receipt of proper invoice evidencing the completion of milestones as set forth in Exhibit A, subject to City accounting procedures. Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals that may reasonably be expected by City. 3. USE AND OWNERSHIP OF DOCUMENTS It is understood by and agreed to between the parties that all documents, outlines, materials distributed during any classes, and any other written papers or materials prepared for any presentations hereunder, paid for with Grant funds, or composed utilizing information provided by Santa Ana, shall be the property of Santa Ana and shall be delivered to Santa Ana upon completion of the services hereunder. Santa Ana shall grant Consultant a license to utilize such property for its own business purposes so long as such use is not contrary to the interests of Santa Ana. 4. TERM This Agreement shall commence on the date first written above and terminate upon satisfactory delivery of all hardware and completion of all installation and configuration of the asset management software system for the City. 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. Page 2 of 8 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: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting there from and damage to property, resulting from any covered act or occurrence arising out of Consultant's operations in the performance of this Agreement. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting there from, and property damage, in the total amount of $1,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement to be approved in form by the City Attorney. b. 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. c. Professional Liability Insurance. Consultant shall provide professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim and not less than $2,000,000 annual aggregate. d. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled without thirty (30) days prior written notice to the City. Ten (10) days notice if cancellation is due to non-payment of premium. e. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Page 3 of 8 7. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, and special counsel from liability for personal injury, or just compensation, arising out of claims for personal injury, including health, and claims for property damage, to the extent they arise from the negligent or willful misconduct in the performance of operations or errors or omissions of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section I of this Agreement. Inasmuch as measures to prevent or mitigate the effect of any act or terrorism are unique to the act, and the actions that may be taken in controlling, preventing or suppressing acts of terrorism are unique to the act, Consultant is not responsible to City for designing or advising on or otherwise taking measures to prevent or mitigate the effect of any act of terrorism or any action which may be taken in controlling, preventing, suppressing or in any way relating to an act of terrorism. 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. 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: Page 4 of 8 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 Telefacsimile (714) 647-6956 With courtesy copies to Santa Ana Police Department UASI / Homeland Security Division 60 Civic Center Plaza P.O. Box 1981 (M-97) Santa Ana, California 92702 Telefacsimile (714) 245-8745 Attn: Enrique Esparza and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Telefacsimile (714) 647-6515 To Consultant: CloudBurst Mobile, Inc. 6909 Weedin Place, NE Unit: B404 Seattle, WA 98115 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, that terms and conditions hereof, shall not bind or obligate Consultant nor Page 5 of 8 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 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, 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 of termination, subject to the following conditions: a. As a conditi on of such payment, the Executive Director may require Consultant to deliver to the City all work product 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 that 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 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, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services Page 6 of 8 hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ma 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. CONSULTANT CERTIFICATIONS a. Audit Records - With respect to all matters covered by this agreement all records shall be made available for audit and inspection by the City, the grant agency and/or their duly authorized representatives for a period of three (3) years from the termination of this Agreement. For a period of three years after final delivery hereunder or until all claims related to this Agreement are finally settled, whichever is later, Consultant shall preserve and maintain all documents, papers and records relevant to the services provided in accordance with this Agreement, including the Attachments hereto. For the same time period, Consultant shall make said documents, papers and records available to City and the agency from which City received grant funds or their duly authorized representative(s), for examination, copying, or mechanical reproduction on or off the premises of Consultant, upon request during usual working hours. b. Consultant shall provide to City all records and information requested by City for inclusion in quarterly reports and such other reports or records as City may be required to provide to the agency from which City received grant funds or other persons or agencies. C. Section 504 of the Rehabilitation Act of 1973 (Handicapped) - All recipients of federal funds must comply with Section 504 of the Rehabilitation Act of 1973 (The Act). Therefore, the federal funds recipient pursuant to the requirements of The Act hereby gives assurance that no otherwise qualified handicapped person shall, solely by reason of handicap be excluded from the participation in, be denied the benefits of or be subject to discrimination, including discrimination in employment, in any program or activity that receives or benefits from federal financial assistance. The Consultant agrees it will ensure that requirements of The Act shall be included in the agreements with and be binding on all of its contractors, subcontractors, assignees or successors. d. Americans with Disabilities Act of 1990 - (ADA) Consultant must comply with all requirements of the Americans with Disabilities Act of 1990 (ADA), as applicable. e. Political Activity - None of the funds, materials, property, or services provided directly or indirectly under this agreement shall be used for any partisan political activity, or to further the election or defeat of any candidate for public office, or otherwise in violation of the provisions of the "Hatch Act". f.. Civil Rights Compliance and Notification of Findings - Consultant will comply, and all its contractors (or subrecipients) will comply, with the nondiscrimination requirements of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 USC 3789 (d), or Victims of Crime Act (as appropriate); Title VI of the Civil Rights At of 1964, as amended; Section 504 of the Rehabilitation Act of 1964, as amended; Subtitle A, Title II of the Americans with Disabilities Act (ADA) (1990); Title IX of the Education Amendments of 1972; the Age Page 7 of 8 Discrimination Act of 1975; Department of Justice Non-Discrimination Regulations, 28 CFR Part 42, Subparts C, D, E, and G; and Department of Justice regulations on disability discrimination, 28 CFR Part 35 and 39. In the event a Federal or State court, Federal or State administrative agency, or the Consultant makes a finding of discrimination after a due process hearing on the grounds of race, color, religion, national origin, sex, or disability against a recipient of funds, the Consultant will forward a copy of the findings to the City which will, in turn, submit the findings to the Office of Civil Rights, Office of Justice Programs, U.S. Department of Justice. 18. 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 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. 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: Maria D. Huizar Clerk of the Council CITY OF SANTA ANA, a municipal Corporation of the State of California /[.12, DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH W.FLETCHER City AttopVy By: Rya Dep CLOUDBURST MOBILE, INC. Ative Officer TaxID# a'? - 13?lo?los Page 8 of 8 200461 cloudburst mobile inc Certificate of Insurance (page 1 of 1) 07/09/2010 02:41:18 PM ''?i°''°' CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) .- ' 7/9/20, 0 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT T NAME: echlnsurance 1301 Central Expy South Suite 115 PHONE -7020 A/C No Ext : (800) 668 i (A//c, No): (972) 390-8484 . , Allen, TX 75013 _ E-MAIL ADDRESS: PRODUCER - CUSTOMER ID M INSURER(S) AFFORDING COVERAGE NAIC # INSURED INSURERA: The Hartford 30104 cloudburst mobile inc 420 10th Ave West INSURER B Kirkland, WA 98033 INSURER C : INSURER D : INSURER E : O? INSURER F : COVERAGES CERTIFICATE NUMBER: RFVI.RInN NI IMRFR: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION 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. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL SUER , POLICY NUMBER POLICY EFF MM/DD/YYYY ! POLICY EXP MM/DD/YYYY LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 ? COMMERCIAL GENERAL LIABILITY DAMA E RENTED 1,000,000 PREMISES Ea occurrence $ CLAIMS-MADE 'i ? OCCUR MED EXP (Any one person) $ 10,000 A 463BMZG7259 7/9/2010 7/9/2011 PERSONAL & ADV INJURY $ 1,000,000 GENERAL AGGREGATE ! $ 2,000,000 i GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS -COMP/OP AGG $ 2,000,000 ? POLICY 1 PRO- LOC $ AUT OMOBILE LIABILITY COMBINED SINGLE LIMIT ANY AUTO j (Ea accident) $ ALL OWNE O BODILY INJURY (Per person) I $ D AUT S SCHEDUL BODILY INJURY (Per accident) $ ED AUTOS ST FORM PROPERTY DAMAGE HIRED AUTOS (Per accident) $ NON-OWNED AUTOS n $ UMBRELLA LIAB OCCUR Depu Cit A ttorney EACH OCCUR E " EXCESS LIAB CLAIMS-MADE y AGGREGATE „ DEDUCTIBLE RETENTION $ ? WORKERS COMPENSATION WC STAT ' -"';;? •,? : OTH-' AND EMPLOYERS' LIABILITY . ER 'V TORY LIM1111 Y / N ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? ? N / A E.L. EACH ACC $ (Mandatory in NH) E.L. DISEASE - ~ j OYE If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - =LIMIT A Professional Liability (Errors and Ommissions) TBA 84 CRL 1793 7/9/2010 7/9/2011 Occurrence / Aggreg ,000,000 / $1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, ff more space is required) CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2009/09) ©1988-2009 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Verify Workers' Comp Premium Status - Employer Liability Certificate Washington State Department of Labor and Industries 7", AUG 18 AN $- 29 CITY 1: A14A CLEF '. UIdCIL https://fortress.wa.gov/lni/crpsi/Acct1doPrint.a?px?AccountId=l 98469... Employer Liability Certificate a,')-00f -0757--?10 Department of Labor and Industries Employer Liability Certificate Date: 08/11/2010 U1314: 602 972-080 Legal Business Name: CLOUDBURST MOBILE INC Account #: 198,469-00 'Doing Business As' Name: CLOUDBURST MOBILE Estimated Workers Reported: N/A (See Description Below) Workers' Comp Premium Status: Recently opened account, no premiums are due or owed at this time. Licensed Contractor? No Account Representative: T1 / COLLIN KENNEDY (360)902-4787 - Email: KEND235@lni.wa.gov What does "Estimated Workers Reported" mean? Estimated workers reported represents the number of full time position requiring at least 480 hours of work per calendar quarter. A single 480 hour position may be filled by one person, or several part time workers. AS TO FOR .\ l -8171 Hodge ty Attorney Industrial Insurance Information Employers report and pay premiums each quarter based on hours of employee work already performed, and are liable for premiums found later to be due. Industrial insurance accounts have no policy periods, cancellation dates, limitations of coverage or waiver of subrogation (See RCW 51.12.050 and 51.16.190). 1 of 1 8/11/2010 1:10 PM