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HomeMy WebLinkAboutSTELARUM STUDIOS, INC. - 2016IgURA CE WON ALE N-2416-099 ,C RK MAYUIPME c) CLERK QF CGUGDU' G1 04', DATE. r a 2016 0",'^ � y, (o) CONSULTANT AGREEMENT z "0 6t1 THIS AGREEMENT is made and entered into this 1st day of July, 2016, by and between Stelaturn Studios, Inc. ("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 ("City„) RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of Infor Lawson Software systems installation, configuration, upgrades, and support to assist the City in upgrading and configuring its Lawson system. 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, 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 those services described in the Statement of Work appearing as Exhibit A to this Agreement. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, an hourly rate of $150, The total sum to be expended under this Agreement, shall not exceed $25,000. b. Payment by City shall be made within thirty (30) 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. 3, TERM This Agreement shall commence on July 1, 2016 and terminate on June 30, 2017, unless terminated earlier pursuant to Section 15, below. Page 1 of 9 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire terra 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 its employees and shall be responsible for all applicable withholding taxes. 5. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City. City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 6. INSURANCE Throughout the term of this Agreement, Consultant, at its sole expense, shall carry and maintain cyber liability insurance with limits of not less than $1,000,000 for each occurrence and an annual aggregate of $2,000,000, covering claims involving privacy violations, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information, alteration of electronic information, extortion and network security, 7. 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 death, and claims for property damage, which may arise from the negligent 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. Page 2 of 9 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 terns 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 Consultant'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 Consultant. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend and 'indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. 9. 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, doctunents, 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. 10. CONFIDENTIALITY If Consultant received from the City inforniation 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, bort 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 Page 3 of 8 Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant and disclosed 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. 11. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 12. 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 facsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City, Cleric of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Facsimile (714) 647-6956 Copies to: Information Technology Department City Attorney's Office City of Santa Ana City of Santa Ana 20 Civic Center Plaza, (M-42) 20 Civic Center Plaza (M-29) P.O. Box 1988 P.O. Box 1988 Santa Ana, CA 92702-1988 Santa Ana, CA 92702-1988 Facsimile (714) 647-5486 Facsimile (714) 647-6515 To Consultant: Stelarum Studios, Inc. 9017 NW 18"' Place Gainesville, FL 32606 A party may change its address by giving notice in writing to the other party. Thereafter, any commrmication 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 facsimile, 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. Page 4 of 8 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant regarding the subject matter herein, 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 and will serve to fully supersede existing Agreement. 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 or 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. 14. 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, 15. TERMINATION This Agreement may be terminated by the City with thirty (30) days written notice of termination to the Consultant. a. As a condition of such payment, the City may require Consultant to deliver to the City all the 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. 16. NON DISCRIMINATION Consultant shall not discriminate because of race, color, creed, relation, 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 or any activities 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. Page 5 of 8 17. JURISDICITON - 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. 18. 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 Sates, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 19. 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 filly, 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: CITY OF SA ANA �[IV <71 y MARIA D. IZIZ.AR .�R �— David Ca azos Clerk of the Council City Manager APPROVED AS TO FORM: Sonia R. Carvalho CONSULTANT City Attorney r John Curtis ]OLIN Crt(d J n M. Funk, Assistant City Attorney Name/Title: Page 6 of 8 RECOMMENDED FOR APPROVAL: 1Ja 1 Ciulia C of Technology Innovations Officer Page 7 of 8 EXHIBIT A STATEMENT OF WORK 1. Introduction The City of Santa Ana ("City") operates and maintains the hifor Lawson Financial System to record, process, manage, maintain, and report on its business and financial data, This includes the hifor Lawson S3 Financial and Procurement product suite, Lawson Process Flow, Lawson Business Intelligence (LBS), and various Infor and third -party software components ("Lawson System"). The City's production Lawson System is currently on version 9.01 except for LBI, which is on version 10. The City plans to upgrade its production system to version 10 in 2016, It is currently testing version 10 in a test environment. Although LBI is already on version 10, it is running on a Windows Server 2008 operating system and needs to be migrated to a newer platform for future support, The purpose of this Statement of Work ("SOW") is to define the services to be provided by Consultant to assist the City in the upgrade of the production Lawson System, migration of LBI to a newer platform, and other Lawson System related technical services. 2. Approach The City is self -managing the Lawson System upgrade and LBI migration project. The City will engage Consultant on a Time and Materials (T&M) basis for specific technical tasks as needed to assist in completing the goals of the project. The City may also engage Consultant for Lawson System -related technical support as needed. 3. City Responsibilities The City will be responsible for the following. a. Assign a Project Manager that will be responsible to plan, schedule, and coordinate project tasks. b. The City Project Manager will communicate written requests to Consultant to provide services. c. Provide Consultant with remote access to the City's network for access to the Lawson System. d. Provide access to Infor Support Site for access to software downloads and support. 4. Consultant Services and Responsibilities Consultant will be responsible for the following a. Provide installation, configuration, and / or upgrading of Lawson System software and related components in the Production and Test environments. b. Provide technical support for Lawson System. c. Provide system training for Lawson System. d. Track and provide periodic status of service hours consumed and billing costs to date to City Project Manager, so as to plan remaining work and not exceed the maximum compensation of this agreement. S. Timeframe City Project Manager and Consultant shall schedule requested service at a time that is mutually agreeable to both parties. Page 8 of 8