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HomeMy WebLinkAbout2002-266 '. RESOLUTION NO. 2002-266 2 Resolution ofthe Mayor and Common Council of the City of San Bernardino Authorizing the Execution of Purchase Orders for the Purchase of Computer Equipment and its Companion 3 Maintenance Agreement and Authorizing the City Attorney to Execute Said Maintenance Agreement 4 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 6 OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The Purchasing Manager of the City of San Bernardino is hereby authorized 8 and directed to execute on behalf of the City Attorney's Office, City of San Bernardino, a Purchase 9 Order in the amount of $44,232.30 for the purchase of computer equipment from Imagine Systems, 10 Inc. as set forth in Quote No. 034, attached hereto as Exhibit "A", and a Purchase Order in an II amount not to exceed $15,000.00 for the Maintenance Agreement which the City Attorney is 12 authorized to execute as attached hereto as Exhibit "B". 13 /II 14 /II 15 1/1 16 1/1 17 /II 18 /II 19 /II 20 /II 21 /II 22 /II 23 III 24 III 25 /II 26 /II 27 /II 28 /II HTC/ed [computer. res] . . RESOLUTION NO. 2002-266 2 Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the Execution of Purchase Orders for the Purchase of Computer Equipment and its Companion 3 Maintenance Agreement and Authorizing the City Attorney to Execute Said Maintenance Agreement 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a joint regular meetin 7 thereof, held on the 5 th day of August ,2002, by the following vote, to wit 8 COUNCIL MEMBERS: 9 ESTRADA AYES NAYS ABSTAIN ABSENT x 10 LIEN X II MCGINNIS X 12 DERRY X 13 SUAREZ X 14 ANDERSON X 15 MCCAMMACK X 16 17 M~~ '-eITY CLERK 18 19 The foregoing Resolution is hereby approved this ,':(711 day of August ,2002. 20 21 22 23 Approved as to form and legal content: 24 JAMES F. PENMAN, 25 City Attorney 26 27 28 HTC/cd ]computcr.rcsl 2 @nagine Quote: 034 (2lld revised) Date: July 23, 2002 Imagine Systems, Inc. 330 North D Street Suite 125 San Bernardino, CA 92401 Tel: 909-889-5060 Fax: 909-889-4020 Client: City of San Bernardino Office of the City Attorney HARDWARE: DELL, Intel, P4, 1.7GHz, XP operating system, 512MB memory, 40GB storage 15" flat panel monitors, tower, NIC, expansion slots, keyboard, mouse, Floppy, CD, internal modem, sound & speakers, network card, 3 year warranty Qty: 12 same as above with 17" flat panel monitor, $1696 each $20,352.00 (17" flat panel monitor is $345.) Same PC as above (with 17" flat panels) plus CDRW Qty: 4 $1,760.00 each $ 7,040.00 Same PC with 17" flat panel and CDIRW,DVD Qty: 2 $1,863.00 each $ 3,726.00 Qty: 2 Notebook $ 5,199.98 Qty: I HP 4100N $ 1,599,00 Qty: 4 HP 1200 lasers $399.99 each $ 1,599.96 Qty: I HP 2230 inkjet $ 399.00 Qty: I 24 port 3COM switch $ 599.00 Qty: I HP Scanjet 5470cxi $ 299.00 EXHIBIT "A" SOFTWARE: Trend Microscan Virus slw, 25 user license, Qty: I Trend Microscan Virus slw, 25 user license $ 236.92 Subtotal: $41,050.86 Tax: $ 3,181.44 Total: $44,232.30 SERVICES: Time & Materials agreement in which Imagine would do all our installation of new equipment and software, may include a couple of cable pulls, labeling at each end of existing wiring, (there are about 20 stations), set up ofvims software such that updates occur daily and everyone is protected, moving data off old machines to new where necessary, set up of printersldrivers, set up of backup system and training user on backups of server, periodic system administration of the server, set up of appropriate security per user and at server, may be asked to interface with our ISP on our behalf, install of additional network switch, network security review and monitoring, and on-going troubleshooting and maintenance services of all technology in the department. Also, review server for most economical, but adequate external tape dlive unit, and appropriate amount of disc storage on the driver. Provide quotes, Imagine will provide complete installation services at the time of purchase, and the City Attorney's Office will be able to call throughout the fiscal year for any reason and get help by phone or in person, whichever the case calls for. The above pricing includes Y2 hour of installation time per new unit purchased. It does not include any time for data transfer, etc. All additional time needed pursuant to the purchase of new equipment will be subject to the rates set forth in the attached IT Maintenance Agreement. Hourly rate: See Attached IT Maintenance Agreement Said Quote shall be good for 60 days from the date set forth above. EXHIBIT "A" IT MAINT ANENCE AGREEMENT 1. Identification of the Parties: This Agreement is made between the San Bernardino City Attorney's Office (the "Customer") with a principal place of business at 300 North D Street, San Bernardino, CA 92418, and Imagine Systems, Inc. (the Provider) with a principal place of business at 330 North D Street, Suite 125, San Bernardino, CA 92401. 2. Purpose of Agreement: Customer desires to retain Provider as an independent contractor to provide information technology ("IT") support for all of Customer's IT related equipment. Provider is ready, willing and able to provide the IT services needed by the Customer, and agrees to do so under the terms and conditions set forth in this Agreement. Accordingly, the parties agree as follows: 3. Service Fees: Routine Hardware Service (hourly rate): (Monday - Friday 9-6) Same Day Hardware Service (hourly rate): (Monday - Friday 9-6) Off-Hours Hardware Service (hourly rate): $40.00 $40.00 $54.00 Said rates referenced above do not include the price of parts and hardware that may be needed from time to time to effectuate needed repairs, upgrades, etc. All parts and hardware will be billed separately and costs will be determined based on the parts and hardware required to complete the job. Any software related service will be billed at regular hourly rates of$75.00 per hour. Software services shall include, installation of software, data-transfers, software configuration, etc. Cabling for CA T5 network cable services shall run $100 per line run. All purchases and requests for services outside the normal scope of this Agreement shall first be approved by an authorized representative of the City Attorney's Office. 4. Payment: Provider shall be compensated at the rates as set forth above. Payment will be made within thirty (30) days of Provider's submission of an invoice for work completed. 5. Payment of Provider's Costs: Customer shall reimburse Provider for all out-of-pocket expenses incurred by Provider in performing services under this Agreement. No expenses shall be incurred without Customer's prior approval. Such expenses include, but are not limited, to: EXHIBIT "B" . . (a) all long distance communications charges (b) travel expenses other than normal commuting, including airfares, rental vehicles, and highway mileage in company or personal vehicles at .25 cents per mile. 6. Late Fees: Late payments by Customer shall be subject to late penalty fees of 10% per annum from the due date until the amount is paid, unless an invoice includes disputed amounts, at which time extensions for payment may be granted until said dispute is resolved. 7. Materials Customer shall make available to Provider, at Customer's expense, the following materials: access as needed to all IT related equipment that may need service or upgrades; access to Customer's server so Provider may make recommendations related to upgrades and or replacement; and access to any service records related to previous service to IT equipment owned by Customer in order for Provider to make recommendations related to recurring service issues. These items will be provided to Provider as needed by Customer. 8. Changes in Project Scope: If at any time following acceptance of the terms of this Agreement by Customer, Customer should desire a change in Provider's performance under this Agreement, Customer shall submit to Provider a written proposal specifYing the desired changes. Provider will evaluate each such proposal at its standard rates and charges. Provider shall submit to Customer a written response to each such proposal within ten (10) working days following receipt thereof. Provider's written response shall include a statement of the availability of Provider's personnel and resources, as well as any impact the proposed changes will have on the contract price. delivery dates of warranty provisions of this Agreement. For purposes ofthis Agreement, each Modification Agreement duly authorized in writing by Customer and Provider shall be deemed incorporated into and made part of this Agreement. Each such Modification Agreement shall constitute a formal change to this Agreement adjusting fees and completion dates as finally agreed upon. 1/1/ 2 9. Delays: Provider shall use all reasonable efforts to deliver the services on schedule. Any delay or nonperformance of any provision of this Agreement caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, provided that the delayed party has taken reasonable measures to notifY the other of the delay. The delayed party's time for performance shall be deemed to be extended for a period equal to the duration of the conditions beyond its control. Conditions beyond a party's reasonable control include, but are not limited to, natural disasters, acts of government after the date of the Agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war and epidemics. Any delay caused by the failure of Customer to submit material, shall act as an extension or time in which Provider has to complete this Agreement. Said failure on the part of Customer shall also be deemed a condition beyond the control of Provider. 10. Limitation of Provider's Liability to Customer: (a) In no event shall Provider be liable to Customer for lost profits of Customer, or special or consequential damages, even if Provider has been advised of the possibility of such damages. (b) Provider's total liability under this Agreement for damages, costs and expenses, regardless of cause, shall not exceed the total amount of fees paid to Provider by Customer under this Agreement. (c) Provider shall not be liable for any claim or demand made against Customer by any third party except to the extent such claim or demand relates to copyright, trade secret or other proprietary rights. (d) Customer shall indemnifY Provider against all claims, liabilities and costs, including reasonable attorney fees, of defending any third party claim or suit arising out of the use of the services provided under this Agreement, other than for infringement of intellectual property rights. Provider shall promptly notifY Customer in writing of any third party claim or suit and Customer shall have the right to fully control the defense and any settlement of such claim or suit. II. Confidentiality: Customer acknowledges that the hardware and software owned by Customer is Customer's sole and exclusive property. Provider shall treat the information obtained while servicing said hardware on a confidential basis and shall not, at any time, disclose the information contained on said hardware 3 . . or supporting documentation to any other person, firm, organization or employee who does not need to obtain access thereto consistent with Customer's rights under this Agreement. Provider shall devote its reasonable best efforts to ensure that all persons afforded access to the Customer's hardware and supporting documentation protect Customer's information against unauthorized use, dissemination or disclosure. 12. Term of Agreement: This Agreement commences on the date it is executed and shall continue for one (I) year, or until earlier terminated by one party under the terms of this Agreement. Customer has the option of extending said Agreement for periods of one (I) year. Actual option year pricing shall be negotiated between the parties to this Agreement prior to exercising and given option year. Option years shall only become effective upon issuance by the Customer of a valid purchase order. 13. Termination of Agreement: Provider andlor Customer shall have the right to terminate this Agreement by written notice to the other party at any time provided said party provide 30 days written notice to the other party of said intent to terminate this Agreement. 14. Taxes: The charges included here do not include taxes. If Provider is required to pay any federal, state or local sales, use, property or value added taxes based on the services provided under this Agreement, the taxes shall be separately billed to Customer. Provider shall not pay any interest or penalties incurred due to late payment or nonpayment of such taxes by Customer. 15. Provider an Independent Contractor: Provider is an independent contractor, and neither Provider nor Provider's staff is, or shall be deemed, Customer's employees. In its capacity as an independent contractor, Provider agrees and represents, and Customer agrees, as follows: (a) Provider has the right to perform services for others during the term of this Agreement subject to noncompetition provisions set out in this Agreement, ifany. (b) Provider has the sole right to control and direct the means, manner and method by which the services required by this Agreement will be performed. 4 (c) Provider has the right to perform the services required by this Agreement at any place or location and at such times as Provider may determine. (d) Provider will furnish all equipment and materials used to provide the services required by this Agreement, except to the extent that Provider's work must be performed on or with Customer's computer or existing software. (e) The services required by this Agreement shall be performed by Provider, or Provider's staff, and Customer shall not be required to hire, supervise or pay any assistants to help Provider. (1) Provider is responsible for paying all ordinary and necessary expenses of its staff. (g) Neither Provider nor Provider's staff shall receive any training from Customer in the professional skills necessary to perform the services required by this Agreement. (h) Neither Provider nor Provider's staff shall be required to devote full-time to the performance of the services required by this Agreement. (i) Customer shall not provide insurance coverage of any kind for Provider or Provider's staff. Provider shall maintain the following types of insurance with limits as shown: a, Workers Compensation as required by the laws of the State of California, including Employment Liability with $250,000 limits covering all persons providing service on behalf of Provider and all risks to such persons under this Agreement. b. Comprehensive General and Automobile Liability Insurance coverage to include contractual coverage and automobile coverage for owned, hired and non-owned vehicles. The policy shall have at least a combined single limit of$I,OOO,OOO.OO for body and property damage. c. Provider shall furnish certificates of insurance and certified copies of all policies and endorsements to the Customer evidencing the insurance coverage above required prior to the commencement of performance of services hereunder, which certificate shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to the Customer, and shall maintain such insurance from the time Provider commences performance of service hereunder until the completion of such services. 5 All policies, with respect to the insurance coverage above required, except for the Workers Compensation insurance coverage and professional liability coverage, if applicable, shall obtain additional endorsements naming the City of San Bernardino and all parties represented under this Agreement, their employees, agents, volunteers and officers as additional named insured with respect to liabilities arising out of the performance of services hereunder. All policies required above are to be primary and non-contributing with any insurance or self-insurance programs carried or administered by the City of San Bernardino or other parties represented under this Agreement. (j) Customer shall not withhold from Provider's compensation any amount that would normally be withheld from the employee's pay. (k) Provider shall provide qualified staff to perform the services required under this Agreement. If Provider's staff is unable to complete required service as needed, Provider shall attempt to the best of their ability to provide staffing sufficient to provide the services required. However, Provider shall not be required to hire additional staff, or utilize outsourced services in the completion of this Agreement. 16. Non-Solicitation of Employees: Both parties to this Agreement agree not to knowingly hire or solicit either party's employees during performance of this Agreement and for a period of six (6) months after termination of this Agreement without the other parties written consent. 17. Mediation: If a dispute arises under this Agreement, the parries agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator in the following location: San Bernardino County, California. Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties. 18. Attorney Fees: If any legal action is necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses. IIII 6 I1II II1I I1I1 19. General Provisions: (a) Complete Agreement: This Agreement together with all exhibits, appendices or other attachments, which are incorporated herein by reference, is the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter. In the event of a conflict between the provisions of the main body of the Agreement and any attached exhibits, appendices or other materials, the Agreement shall take precedence. (b) Modifications to Agreement: Modifications and amendments to this Agreement, including any exhibit or appendix hereto, shall be enforceable only if they are in writing and are signed by authorized representatives of both parties. (c) Applicable law: This Agreement will be governed by the laws of the State of California. (d) Notices: All notices and other communications given in connection with this Agreement shall be in writing and shall be deemed given as follows: . When delivered personally to the recipient's address as appearing in the introductory paragraph to this Agreement; . Three days after being deposited in the United States mails, postage prepaid to the recipient's address as appearing in the introductory paragraph to this Agreement, or . When sent by fax to telex to the last fax or telex number of the recipient known to the party giving notice. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first- class or certified mail, or the recipient delivers a written confirmation of receipt. Any party may change its address appearing in the introductory paragraph to this Agreement by giving notice of the change in accordance with this paragraph. (e) No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties. 7 20. Signatures: Each party represents and warrants that on this date they are duly authorized to bind their respective principals by their signatures below. Customer: OFFICE OF THE CITY ATTORNEY, CITY OF SAN BERNARDINO By: (signature) (typed or printed name) Title: Date: Developer; IMAGINE SYSTEMS, INC. By: (signature) J. Pat Ferraris, J.D. Title: Business Development Manager Date: August, 2002 8 2002-266 IT MAINTANENCE AGREEMENT I. Identification of the Parties: This Agreement is made between the San Bernardino City Attorney's Office (the "Customer") with a principal place of business at 300 North D Street, San Bernardino, CA 92418, and Imagine Systems, Inc. (the Provider) with a principal place of business at 330 North D Street, Suite 125, San Bernardino, CA 92401. 2. Purpose of Agreement: Customer desires to retain Provider as an independent contractor to provide information technology ("IT") support for all of Customer's IT related equipment. Provider is ready, willing and able to provide the IT services needed by the Customer, and agrees to do so unde.r the terms and conditions set forth in this Agreement. Accordingly, the parties agree as follows: 3. Service Fees: Routine Hardware Service (hourly rate): (Monday - Friday 9-6) Same Day Hardware Service (hourly rate): (Monday - Friday 9-6) Off-Hours Hardware Service (hourly rate): $40,00 $40.00 $54.00 Said rates referenced above do not include the price of parts and hardware that may be needed from time to time to effectuate needed repairs, upgrades, etc. All parts and hardware will be billed separately and costs will be determined based on the parts and hardware required to complete the job. Any software related service will be billed at regular hourly rates of $75.00 per hour. Software services shall include, installation of software, data-transfers, software configuration, etc. Cabling for CA T5 network cable services shall run $100 per line run. All purchases and requests for services outside the normal scope of this Agreement shall first be approved by an authorized representative ofthe City Attorney's Office. 4. Payment: Provider shall be compensated at the rates as set forth above. Payment will be made within thirty (30) days of Provider's submission ofan invoice for work completed. 5. Pay~ent of Provider's Costs: Customer shall reimburse Provider for all out-of-pocket expenses incurred by Provider in performing services under this Agreement. No expenses shall be incurred without Customer's prior approval. Such expenses include, but are not lirnited, to: 2002-266 (a) all long distance communications charges (b) travel expenses other than normal commuting, including airfares, rental vehicles, and highway mileage in company or personal vehicles at .25 cents per mile. 6. Late Fees: Late payments by Customer shall be subject to late penalty fees of 10% per annum from the due date until the amount is paid, unless an invoice includes disputed amounts, at which time extensions for payment may be granted until said dispute is resolved. 7. Materials Customer shall make available to Provider, at Customer's expense, the following materials: access as needed to all IT related equipment that may need service or upgrades; access to Customer's server so Provider may make recommendations related to upgrades and or replacement; and access to any service records related to previous service to IT equipment owned by Customer in order for Provider to make recommendations related to recurring service issues. These items will be provided to Provider as needed by Customer. 8. Changes in Project Scope: Ifat any time following acceptance of the terms of this Agreement by Customer, Customer should desire a change in Provider's performance under this Agreement, Customer shall submit to Provider a written proposal specitying the desired changes. Provider will evaluate each such proposal at its standard rates and charges. Provider shall submit to Customer a written response to each such proposal within ten (10) working days following receipt thereof. Provider's written response shall include a statement of the availability of Provider's personnel and resources, as well as any impact the proposed changes will have on the contract price, delivery dates ofWaiTanty provisions of this Agreement. For purposes of this Agreement, each Modification Agreement duly authorized in writing by Customer and Provider shall be deemed incorporated into .and made part of this Agreement. Each such Modification Agreement ~hall constitute a formal change to this Agreement adjusting fees and completion dates as finally agreed upon. IIII 2 2002-266 9. Delays: Provider shall use all reasonable efforts to deliver the services on schedule. Any delay or nonperformance of any provision of this Agreement caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, provided that the delayed party has taken reasonable measures to notify the other of the delay. The delayed party's time for performance shall be deemed to be extended for a period equal to the duration of the conditions beyond its control. Conditions beyond a party's reasonable control include, but are not limited to, natural disasters, acts of government after the date of the Agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war and epidemics. Any delay caused by the failure of Customer to submit material, shall act as an extension or time in which Provider has to complete this Agreement. Said failure on the part of Customer shall also be deemed a condition beyond the control of Provider. 10. Limitation of Provider's Liability to Customer: (a) In no event shall Provider be liable to Customer for lost profits of Customer, or special or consequential damages, even if Provider has been advised of the possibility of such damages. (b) Provider's total liability under this Agreement for damages, costs and expenses, regardless of cause, shall not exceed the total amount of fees paid to Provider by Customer under this Agreement. (c) Provider shall not be liable for any claim or demand made against Customer by any third party except to the extent such claim or demand relates to copyright, trade secret or other proprietary rights. (d) Customer shall indemnify Provider against all claims, liabilities and costs, including reasonable attorney fees, of defending any third party claim or suit arising out of the use of the services provided under this Agreement, other than for infringement of intellectual property rights. Provider shall promptly notify Customer in writing of any third party claim or suit and Customer shall have the right to fully control the defense and any settlement of such clairn or suit. (e) Provider agrees to protect and indemnify, and save the Customer, its agents, officials, employees, or any firm, company, organization, or individual to whom the Customer may be contracted harmless from and against any and all claims, demands, actions, and causes of action (the "Indemnified Matters"), which may arise on account of illness, disease, loss of property, services, wages, death or personal injuries resulting from 3 2002-266 Provider's l)egIigence or willful misconduct in the performance of the services hereunder; provided, however, that IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY LOSS OR DAMAGES RESULTING FROM THE OPERATION, DELAY OR F AlLURE OF SOFTWARE OR EQUIPMENT PROVIDED BY PROVIDER OR FOR THE ACCURACY OR COMPLETENESS OF DATA, AND UNDER NO CIRCUMSTANCES SHALL PROVIDER BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. Provider agrees to further indemnify the Customer for all reasonable expenses and attorney's fees incurred by Customer in connection with the Indemnified Matters. 11. Confidentiality: Provider acknowledges that the hardware and software owned by Customer is Customer's sole and exclusive property. Provider shall treat the information obtained while servicing said hardware ona confidential basis and shall not, at any time, disclose the information contained on said hardware or supporting documentation to any other person, firm, organization or employee who does not need to obtain access thereto consistent with Customer's rights under this Agreement. Provider shall devote its reasonable best efforts to ensure that all persons afforded access to the Customer's hardware and supporting documentation protect Customer's information against unauthorized use, dissemination or disclosure. 12. Term of Agreement: This Agreement commences on the date it is executed and shall continue for one (1) year, or until earlier terminated by one party under the terms of this Agreement. Customer has the option of extending said Agreement for periods of one (1) year. Actual option year pricing shall be negotiated between the parties to this Agreement prior to exercising any given option year. Option years shall only become effective upon issuance by the Customer of a valid purchase order. 13. Termination of Agreement: Provider andlor Customer shall have the right to terminate this Agreement by written notice to the other party at any time provided said party provides 30 days written notice to the other party of said intent to terminate this Agreement. 14. Taxes: p The charges included here do not include taxes. If Provider is required to pay any federal, state or local sales, use, property or value added taxes based on the services provided under this Agreement, the taxes shall be separately billed to Customer. Provider shall not pay any interest or penalties incurred due to late payment or nonpayment of such taxes by Customer. 4 2002-266 15. Provider an Independent Contractor: Provider is an independent contractor, and neither Provider nor Provider's staff is, or shall be deemed, Customer's employees. In its capacity as an independent contractor, Provider agrees and represents, and Customer agrees, as follows: (a) Provider has the right to perform services for others during the term of this Agreement subject to noncompetition provisions set out in this Agreement, if any. (b) Provider has the sole right to control and direct the means, manner and method by which the services required by this Agreement will be performed. (c) Provider has the right to perform the services required by this Agreement at any place or location and at such times as Provider may determine. However, Provider shall provide service whenever possible during normal business hours, Standard response times will depend on the nature of the service related problem, and usual response times range from within four (4) hours, to same day, or next business day, from the time a service call is requested, Some service requests may also be handled immediately via telephone support. Telephone support services are billed at standard billable rates set forth above. (d) Provider will furnish all equipment and materials used to provide the services required by this Agreement, except to the extent that Provider's work must be performed on or with Customer's computer or existing software. (e) The services required by this Agreement shall be performed by Provider, or Provider's staff, and Customer shall not be required to hire, supervise or pay any assistants to help Provider. (f) Provider is responsible for paying all ordinary and necessary expenses of its staff. (g) Neither Provider nor Provider's staff shall receive any training from l:;ustomer in the professional skills necessary to perform the services " 'required by this Agreement. (h) Neither Provider nor Provider's staff shall be required to devote full-time to the performance of the services required by this Agreement. 5 2002-266 (i) Customer shall not provide insurance coverage of any kind for Provider or Provider's staff. Provider shall maintain the following types of insurance with limits as sho'WTI: a. Workers Compensation as required by the laws of the State of California, including Employment Liability with $250,000 limits covering all persons providing service on behalf of Provider and all risks to such persons under this Agreement. b. Comprehensive General and Automobile Liability Insurance coverage to include contractual coverage and automobile coverage for owned, hired and non-owned vehicles. The policy shall have at least a combined single limit of$I,OOO,OOO.OO for body and property damage. c. Provider shall furnish certificates of insurance and certified copies of all policies and endorsements to the Customer evidencing the insurance coverage above required prior to the commencement of performance of services hereunder, which certificate shall provide that such insurance shall not be terminated or expire without thirty (30) days written notice to the Customer, and shall maintain such insurance from the time Provider commences performance of service hereunder until the completion of such services. All policies, with respect to the insurance coverage above required, except for the Workers Compensation insurance coverage and professional liability coverage, if applicable, shall obtain additional endorsements naming the City of San Bernardino and all parties represented under this Agreement, their employees, agents, volunteers and officers as additional named insured with respect to liabilities arising out of the performance of services hereunder. All policies required above are to be primary and non-contributing with any insurance or self-insurance programs carried or administered by the City of San Bernardino or other parties represented under this Agreement. (j) Customer shall not withhold from Provider's compensation any amount that would normally be withheld from the employee's pay. 0- (k)'Provider shall provide qualified staff to perform the services required under this Agreement. If Provider's staff is unable to complete required service as needed, Provider shall attempt to the best of their ability to provide staffing sufficient to provide the services required. However, Provider shall not be required to hire additional staff, or utilize outsourced services in the completion of this Agreement. 6 2002-266 16. Non-Solicitation of Employees: Both parties to this Agreement agree not to knowingly hire or solicit either party's employees during performance of this Agreement and for a period of six (6) months after termination of this Agreement without the other parties written consent. 17, Mediation: If a dispute arises under this Agreement, the parties agree to first try to resolve the dispute with the help of a mutually agreed-upon mediator in the following location: San Bernardino County, California, Any costs and fees other than attorney fees associated with the mediation shall be shared equally by the parties. 18. Attorney Fees: If any legal action is necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs and expenses. The costs, salary and expenses of the City Attorney, and members of his office in enforcing this contract on behalf of the City shall be considered as "attorney's fees" for the purposes of this contract. 19. General Provisions: (a) Complete Agreement: This Agreement together with all exhibits, appendices or other attachments, which are incorporated herein by reference, is the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter. In the event of a conflict between the provisions of the main body of the Agreement and any attached exhibits, appendices or other materials, the Agreement shall take precedence. (b) Modifications to Agreement: Modifications and amendments to this Agreement, including any exhibit or appendix hereto, shall be enforceable only ifthey are in writing and are signed by authorized representatives of both parties. (c) Applicable law: This Agreement will be governed by the laws of the State of California. (d) Notices: All notices and other communications given in connection with this Agreement shall be in writing and shall be deemed given as follows: 7 2002-266 · When delivered personally to the recipient's address as appearing in the introdoctory paragraph to this Agreement; . Three days after being deposited in the United States mails, postage prepaid to the recipient's address as appearing in the introductory paragraph to this Agreement, or · When sent by fax to telex to the last fax or telex number of the recipient known to the party giving notice. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first- class or certified mail, or the recipient delivers a written confirmation of receipt. Any party may change its address appearing in the introductory paragraph to this Agreement by giving notice of the change in accordance with this paragraph. (e) No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties. 20. Signatures: Each party represents and warrants that on this date they are duly authorized to bind their respective principals by their signatures below. Customer: OFFICE OF THE CITY ATTORNEY, CITY OF SAj'J \ BERNARDINO By: . ,yt'Y>^i<CJ J. f'e~ U,. (signature) ( . JAMES F. PENMAN (typed or printed name) Title: CITY ATTORNEY Date: Augus 29,2002 Develop By: J. Pat Ferraris J.D. Title: Business Development Manager Date: August 29.2002 8