Information Technology
100 Gregory Lane, Pleasant Hill, CA 94523-3323 – (925) 671-5270 www.pleasanthillca.org
AGREEMENT FOR COMPUTER SOFTWARE, EQUIPMENT AND SERVICES This Agreement is made and entered into as of the 4th day of November, 2024, by and between the City of Pleasant Hill ("City") and Sable Computer, Inc. (DBA: KIS) (“Supplier”).
RECITALS
A. The City desires the Supplier, a reseller of the DarkTrace managed detection and response cybersecurity solution, to procure the solution for the City and have DarkTrace Holdings Limited perform the installation.
B. KIS using the services of DarkTrace, is specially trained, experienced and competent to perform the unique services that this Agreement will require; and C. KIS using the services of DarkTrace, possesses the skill, experience, ability, background, certification, and knowledge to provide services described in this Agreement under the terms and conditions described herein.
AGREEMENT
The Recitals listed above are hereby incorporated into and shall constitute a part of this Agreement.
1. Scope of Agreement. The Supplier shall supply the equipment and perform the services described in Exhibit A attached hereto and incorporated herein by reference (“Project”).
Supplier shall provide said equipment and services at the time, place, and in the manner specified in Exhibit A, subject to the direction of the City through its staff that it may provide from time to time.
2. Responsibilities of City. The Chief Technology Officer, or her/his assignee (“City Representative”) shall represent the City in all matters pertaining to the services rendered pursuant to this Agreement and shall administer said Agreement on behalf of the City. This person shall hereinafter be referred to as the "City Representative". The City shall provide suitable hardware and an operating system that meets or exceeds the recommended guidelines for this installation.
3. Time of Performance. The services of Supplier are to commence upon execution of this Agreement and shall continue until all authorized work is approved by the City. All such work shall be completed no later than two months after signing the contract.
4. Compensation. In no event shall Supplier's compensation exceed $55,681.40 per year for a three-year term total of $167,044.20 without additional authorization from the City. Payment by City under this Agreement shall not be deemed a waiver of defects, even if such defects were known to the City at the time of payment.
5. Method of Payment. Supplier shall submit an invoice to the City describing the work performed. Supplier's bills shall include a brief description of the services performed, the date the services were performed, and an itemized listing of the equipment delivered.
City shall pay Supplier no later than 30 days after approval of the monthly invoice by City staff.
When payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until the final work under this Agreement has been accepted by City.
6. Ownership of Documents. All plans, studies, documents and other writings delivered to the City by Supplier in the course of implementing this Agreement, except working notes and internal documents, shall become the property of the City upon payment to Supplier for such work, and the City shall have the sole right to use such materials in its discretion without further compensation to Supplier or to any other party. Documentation will be provided by the Supplier to the City in Microsoft Word format both electronically and hard copy. Diagrams will be provided by Supplier to the City in Visio Format both electronically and hard copy. Supplier shall, at Supplier's expense, provide such reports, plans, studies, documents and other writings to City upon written request.
7. Operational Performance Testing. Operational performance testing is defined as 30 consecutive days of “non-fatal” application failures from when training is completed and the City starts using the software in a production environment.
Final Acceptance. Final Acceptance of installation shall be upon the occurrence of all the following:
1. Delivery to the City of all software and services required to meet the City’s implementation requirements described in Exhibit A.
2. Delivery to the City of written software manuals described in Exhibit A.
3. Configuration and installation of the current version of the Project software as described in Exhibit A.
4. The City’s determination that the software performs in the same manner and with the same functions as the software previously demonstrated. The software should generate a sampling of standard reports.
5. Demonstration of successful operation of the Project.
6. Issuance of a Certificate of Compliance for all installed items by supplier.
7. A final testing of the system including a functional test demonstrating that each and every part of the system functions as specified.
8. When the tasks outlined in Exhibit A are complete and signed off by both parties, the City Representative shall visually verify that Supplier completed all work in an acceptable manner. The City Representative shall prepare a “punch list” listing any items that need to be completed, corrected, or redone for the Project to pass inspection. When notified by Supplier that all punch list items have been completed, the City Representative can schedule the final inspection. At the final inspection, the City Representative shall visually verify that Supplier has acceptably completed all required work.
9. Upon acceptance of the Project completion by the City Representative, a written notification of final acceptance shall be sent to Supplier, relieving Supplier from further work under this Agreement.
8. Independent Contractor. It is understood that Supplier, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the City. Supplier shall obtain no rights to retirement benefits or other benefits which accrue to City's employees, and Supplier hereby expressly waives any claim it may have to any such rights.
9. Interest of Supplier. Supplier (including principals, associates and employees) covenants and represents that it does not now have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source of income, interest in real property or investment which would be affected in any manner or degree by the performance of Supplier's services hereunder. Supplier further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement.
Supplier is not a designated employee within the meaning of the Political Reform Act because Supplier:
a. Will conduct research and arrive at conclusions with respect to his/her rendition of information, advice, recommendation or counsel independent of the control and direction of the City or of any City official, other than normal agreement monitoring; and b. Possesses no authority with respect to any City decision beyond rendition of information, advice, recommendation or counsel. (FPPC Reg. 18700(a)(2).)
10. Ability of Supplier. City has relied upon the training and ability of Supplier to perform the services hereunder as a material inducement to enter into this Agreement. The primary provider of the services called for by this Agreement shall be DarkTrace Holdings Limited. This provider shall not be replaced without the written consent of the City. All work performed by Supplier under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent in Supplier's field of expertise.
11. Indemnity. Supplier agrees to defend, indemnify and hold harmless the City, its officers, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all related costs and expenses in connection therein), arising out of the performance of this Agreement, except for any such claim arising out of the sole negligence or willful misconduct of the City, its officers, agents, employees or volunteers.
12. Patent and Copyright Warranty and Indemnity. Supplier hereby warrants that its software, hardware and associated systems or products do not violate or infringe upon any patent, trademark, copyright, service mark, trade secret, mask work or other intellectual property right or proprietary right of any third party. Supplier agrees to defend, at its expense, any suits against the City based upon a claim that any of its software or hardware directly infringes a patent or copyright and to pay costs and damages finally awarded in any such suit, provided that Supplier is notified promptly in writing of the suit and, at Supplier’s request and at its expense, is given full control of the suit and all requested assistance for defense of the suit. This indemnity does not extend to any suit based upon any infringement or alleged infringement of copyright by the combination of any item of Supplier software or hardware and other elements added by the City nor does it extend to any product(s) of City’s design or formula. The foregoing states the entire liability of Supplier for patent or copyright infringement related to the Supplier software or hardware or associated systems.
13. Warranty Disclaimer. Supplier represents and warrants that Supplier shall, on the date of transfer to the City, have title to and the right to sell the software, hardware and associated systems or products delivered to the City. Any warranty issued by the manufacturer of products shall be solely that of the manufacturer and not of Supplier. Supplier hereby assigns to City, as of the date that title passes to City for such product, all of the manufacturer’s or vendor’s warranties, express or implied, if any and if assignable, with respect to the software, hardware and associated systems or products. Supplier hereby authorizes City to make or settle any claims under such warranties directly with any such manufacturer or vendor. EXCEPT FOR THIS
EXPRESS WARRANTY, SUPPLIER DISCLAIMS ALL WARRANTIES ON PRODUCTS (INCLUDING SOFTWARE), EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT
NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE EXPRESS WARRANTIES IN THIS
AGREEMENT ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF
SUPPLIER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE PRODUCT. THE FOREGOING WARRANTIES EXTEND ONLY TO THE CITY OF PLEASANT HILL AND SHALL NOT BE ASSIGNABLE TO ANY OTHER PARTY.
14. Limitation of Liability. Supplier is not liable, for alleged defects in products sold or services performed, to third parties or anyone with whom it does not have a direct contractual relationship. Supplier is not liable for defects in information provided by secondary sources. All documents, including reports, drawings, plans, designs and specifications, prepared by Supplier or its subcontractors are not intended or represented by Supplier to be suitable for use by or relied upon by anyone but the Customer or for uses beyond the scope of the specific uses or purposes set forth in the contract documents. INDEPENDENTLY OF ANY OTHER REMEDY
LIMITATION HEREOF AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL
PURPOSE OF ANY SUCH LIMITED REMEDY, IN NO EVENT SHALL SUPPLIER BE
LIABLE FOR SPECIAL, INCIDENTAL, COST OF COVER, LOST PROFITS OR
CONSEQUENTIAL DAMAGES OF ANY KIND WHETHER UNDER CONTRACT, TORT
OR OTHER LEGAL ACTION UNDER THIS AGREEMENT, EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. Nondisclosure. City acknowledges that, in the course of using the software, hardware and associated systems or products contemplated by this Agreement, City may obtain confidential or proprietary information relating to the technology or the accompanying documentation of Supplier or its subcontractors, including without limitation all technical know-how and specifications (“Proprietary Information”). For purposes of this Agreement, Proprietary Information further includes any information and data which is, or should be reasonably understood to be, confidential or proprietary to the disclosing party, which may include, without limitation, proprietary technical, financial, personnel, marketing, pricing, sales and/or commercial information with respect to the products and services of the parties, as well as ideas, concepts, designs, computer programs and inventions and all record bearing media containing or disclosing such Proprietary Information which are disclosed pursuant to this Agreement. Such Proprietary Information shall belong solely to Supplier. Proprietary Information shall not include information that is or becomes publicly known through no wrongful act of City. City shall not use or disclose Proprietary Information to third parties without the prior written consent of Supplier unless required by law, and City agrees to undertake reasonable measures to maintain the Proprietary Information in confidence. City agrees to report immediately to Supplier any unauthorized use or disclosure of Proprietary Information of which City has actual knowledge.
Supplier acknowledges that, in the course of installing, supporting and maintaining the software, hardware and associated systems or products for the City, Supplier may obtain information regarding the City or its associated computer systems. Notwithstanding that certain parts of such data may become a public record, Supplier shall not disclose or use any such potentially confidential information without the City’s prior written consent. Supplier agrees to take all appropriate steps to protect the integrity and confidentiality of the City’s computer systems.
Each party shall protect and safeguard the Proprietary Information of the other party using at least the same degree of care such party uses to protect its own Proprietary Information of like importance. Each party agrees that all employees and subcontractors to whom Proprietary Information is disclosed will have signed a confidentiality agreement in form and substance reasonably acceptable to the disclosing party, copies of which will be provided upon request.
16. Insurance Requirements.
a. Supplier, at Supplier's own cost and expense, shall procure and maintain, for the duration of the contract, the following insurance policies.
i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his/her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non-renewal of all Workers' Compensation policies must be received by the City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City.
This provision shall not apply if Supplier has no employees performing work under this Agreement. If the Supplier has no employees for the purposes of this Agreement, Supplier shall sign the "Certificate of Exemption from Workers' Compensation Insurance" which is attached hereto as Exhibit D. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than two million dollars ($2,000,000) per occurrence for bodily injury, personal injury and property damage. If a commercial general liability insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit.
iii. Automobile Liability Coverage. Supplier shall maintain automobile liability insurance covering bodily injury and property damage for all activities of the Supplier arising out of or in connection with the work to be performed under this Agreement, including coverage for owned, hired and non-owned vehicles, in an amount of not less than two million dollars ($2,000,000) combined single limit for each occurrence.
b. Policy Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing a Best's rating of no less than A:VII and shall be endorsed with the following specific language:
i. The City of Pleasant Hill, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Supplier, including materials, parts or equipment furnished in connection with such work or operations.
ii. This policy shall be considered primary insurance as respects the City, its elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self-insured retention the City may have, shall be considered excess insurance only and shall not contribute with it.
If Consultant maintains higher insurance limits than the minimums specified herein, City shall be entitled to coverage for the higher limits maintained by the Consultant.
iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company.
iv. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected or appointed officers, officials, employees, agents or volunteers.
v. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days written notice has been received by the City.
c. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the City's option, Supplier shall demonstrate financial capability for payment of such deductibles or self-insured retentions.
d. Certificates of Insurance and Endorsements. Supplier shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement. e. Wasting Policies. No policy required herein shall include a “wasting” policy limit (i.e. limit that is eroded by the cost of defense).
f. Waiver of Subrogation. Consultant hereby agrees to waive subrogation which any insurer or contractor may require from Consultant by virtue of the payment of any loss. Consultant agrees to obtain any endorsements that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
17. Compliance with Laws. Supplier shall use the standard of care in its profession to comply with all applicable federal, state and local laws, codes, ordinances and regulations.
18. Licenses. Supplier represents and warrants to City that it has all licenses, permits, qualifications, insurance and approvals of whatsoever nature which are legally required of Supplier to practice its profession. Supplier represents and warrants to City that Supplier shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance and approvals which are legally required of Supplier to practice its profession. Supplier shall maintain a City of Pleasant Hill business license.
19. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Contra Costa, Martinez, California.
20. Written Notification. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other party shall be in writing and either served personally or sent prepaid, first class mail. Any such notice, demand, etc. shall be addressed to the other party at the address set forth herein below. Either party may change its address by notifying the other party of the change of address. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.
If to City: City of Pleasant Hill
100 Gregory Lane
Pleasant Hill, CA 94523-3323
Attn: Chief Technology Officer
If to Supplier: Sable Computer, Inc. (DBA: KIS)
43160 Osgood Road
Fremont, CA 94539
Attn: Matt Eickmann
21. Supplier's Books and Records.
a. Supplier shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for supplies or services, or expenditures and disbursements charged to City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Supplier to this Agreement.
b. Supplier shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement.
c. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Auditor or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Supplier's address indicated for receipt of notices in this Agreement.
d. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Supplier's business, City may, by written request by any of the above named officers, require that custody of the records be given to the City and that the records and documents be maintained in City Hall. Access to such records and documents shall be granted to any party authorized by Supplier, Supplier's representatives, or Supplier's successor-in-interest.
22. Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Supplier. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement.
23. Amendments. This Agreement may be modified or amended only by a written document executed by both Supplier and City and approved as to form by the City Attorney.
24. Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder.
25. Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.
26. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
27. Assignment and Subcontracting. The parties recognize that a substantial inducement to City for entering into this Agreement is the reputation, experience and competence of Supplier.
Assignments of any or all rights, duties or obligations of the Supplier under this Agreement shall be permitted only with the express consent of the City. Supplier shall be fully responsible to City for all acts or omissions of its subcontractors. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise is required by law.
28. No Confidentiality. This agreement is a public record and will be available to the public if requested.
29. Termination. This Agreement may be terminated immediately for cause or by either party without cause upon fifteen days' written notice of termination. Upon termination, Supplier shall be entitled to compensation for equipment delivered and services performed up to the effective date of termination.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first written above.
CITY OF PLEASANT HILL: SUPPLIER:
__________________________ By:
Ethan Bindernagel
City Manager
Business License # 43263
APPROVED AS TO FORM:
_________________________
Janet E. Coleson
City Attorney
ATTEST:
__________________________
City Clerk
Exhibit A: Scope of Work
Exhibit B: Certificate of Exemption from Workers’ Compensation Revised 07/09
†
Non-taxable item
Please contact us if you have any questions.
Comments
City of Pleasant Hill is committing to three years (36-months) of the Darktrace offering. The three-year total price is $167,044.20. Invoicing will be done annually at the price listed in this quote.
CMAS #: 3-18-70-2443Q
One-Time Subtotal $55,311.40
Sales Tax (9.25%) $370.00
Total $55,681.40 USD
KIS - Keep IT Simple
43160 Osgood Road
Fremont, CA 94539
United States
Quote # 12065
Date 2024/10/21
Expires 2024/11/29
Sales Contact Matt Eickmann
Prepared for City of Pleasant Hill
Ling King
100 Gregory Ln
Pleasant Hill, CA 94523
United States
T: +19256715269
E: [email protected]
10-21-2024 Network M365 Email MDR Darktrace 3 Year Paid Annually
Fees
Category Item Qty Price Total
License Darktrace DETECT / Apps /Microsoft 365 - Annual Fee 120 $9.71 $1,165.20† License Darktrace DETECT / Apps / Cyber AI Analyst - Annual Fee 120 $9.71 $1,165.20† License Darktrace DETECT / Network - Annual Fee 300 $16.98 $5,094.00† License Darktrace DETECT / Network Cyber AI Analyst - Annual Fee 300 $16.98 $5,094.00† License Darktrace RESPOND / Apps /Microsoft 365 - Annual Fee 120 $19.40 $2,328.00† License Darktrace RESPOND / Email / Office 365 - Annual Fee 140 $83.00 $11,620.00† License Darktrace RESPOND / Network - Annual Fee 300 $33.95 $10,185.00† Appliance Deployment Appliance / Medium - Annual Fee 1 $3,333.00 $3,333.00 Appliance Deployment Appliance / Small - Annual Fee 1 $667.00 $667.00 Service Darktrace Services / Managed Detect and Respond - Annual Fee 1 $14,660.00 $14,660.00† Service Darktrace Services / Training - Annual Fee 1 $0.00 $0.00† Cost Breakdown
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Quote
KIS - Keep IT Simple - Quote # 12065 2 / 3
EXHIBIT A
Exhibit B
CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE I hereby certify that in the performance of the work for which this Agreement is entered into, I shall not employ any person in any manner so as to become subject to the Workers' Compensation Laws of the State of California.
Executed on this _____ day of _________________, 20___, at ________________, California. _________________________________
Sean Canevaro, CEO
KIS
30th October 24 Fremont