REQUEST FOR PROPOSALS
FOR
CITY OF SAN BERNARDINO
FOR
RFP-F-23-72
BACKUP STORAGE REPLACEMENT
CITY OF SAN BERNARDINO
290 North D Street
San Bernardino, California 92401
Telephone: (909) 384-7272
https://www.ci.san-bernardino.ca.us/
1 CITY OF SAN BERNARDINO
NOTICE INVITING PROPOSALS, RFP NO. RFP F-23-72
BACKUP STORAGE REPLACEMENT
PUBLIC NOTICE IS HEREBY GIVEN that proposals will be received by the City of San Bernardino (“City”) electronically through the City’s online bid management provider (“Planetbids”) until 3:00 p.m., on October 18, 2023. Proposals may NOT be submitted by fax, email, telephone, mail, hand delivery, or other means; any Proposals received through any means other than Planetbids will be returned to the Vendor unopened.
The City is requesting proposals to provide: BACKUP STORAGE REPLACEMENT The award of this contract is subject to available budget adequate to carry out the provisions of the proposed agreement including the identified scope of w ork. The City reserves the right to reject any or all proposals determined not to be in the best interest of the City.
Certain labor categories under this project may be subject to prevailing wages as identified in the State of California Labor Code commencing at s ections 1720 et seq. and 1770 et seq. If applicable, employees working in these categories at the site must be paid not less than the basic hourly rates of pay and fringe benefits established by the California Department of Industrial Relations. Copies of the State of California wage schedules are available for review at www.dir.ca.gov/dlsr/
. In addition, a copy of the prevailing rate of per diem wages will be made available at the City’ s INFORMATION T ECHNOLOGY DEPARTMENT upon request. The successful bidder shall post a copy of the prevailing wage rates at each job site. It shall be mandatory upon the Bidder to whom the Contract is awarded, and upon any subcontractors, to comply with all Labor Code provisions, which include but are not limited to the payment of not less than the said specified prevailing wage rates to all workers employed by them in the execution of the Contract, employment of apprentices, hours of labor and debarment of contractors and subcontractors. If the total compensation under the contract will exceed $25,000 and pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations (“DIR”). No bid shall be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the DIR to perform public work. If awarded a contract, the bidder and its subcontractors, of any tier, shall maintain active registration with the DIR for the duration of the project. The contract awarded pursuant to this proposal may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations.
Interested proposers may download copies of the Request for Proposals (“RFP”) by visiting the City’s web site, https://www.ci.san-bernardino.ca.us/. All addenda will be published on the City’s website.
For more information regarding the RFP, please contact:
City of San Bernardino, Purchasing Division
[email protected]
2 CITY OF SAN BERNARDINO
REQUEST FOR PROPOSALS
BACKUP STORAGE REPLACEMENT
I. BACKGROUND AND INTRODUCTION
The City of San Bernardino (“City”) is requesting proposals from qualified firms 1 (“Proposers”) for BACKUP STORAGE REPLACEMENT services (“Services”).
To serve and promote the welfare of its residents, the City intends to procure the Services, as described below.
II. REQUEST FOR PROPOSALS
A. Scope of Services
The Services sought under this Request for Proposals (“RFP”) are set forth in more detail in Exhibit “A”, attached hereto and incorporated herein by this reference. Notwithstanding the inclusion of such Services in Exhibit “A” , the final scope of Services negotiated between City and the successful Proposer shall be set forth in the PROFESSIONAL SOFTWARE SERVICE (“Agreement”) executed by and between City and the successful Proposer. A copy of the Agreement is attached hereto as Exhibit “B” and incorporated herein by this reference.
1. Public Works Prevailing Wage and Contractor Registration Certain labor categories under this project may be subject to prevailing wages as identif ied in the State of California Labor Code commencing at s ections 1720 et seq. and 1770 et seq. If applicable, employees working in these categories at the site must be paid not less than the basic hourly rates of pay and fringe benefits established by the California Department of Industrial Relations.
Copies of the State of California wage schedules are available for review at www.dir.ca.gov/dlsr/.
In addition, a copy of the prevailing rate of per diem wages will be made available at the City’s INFORMATION TECHNOLOGY DEPARTMENT upon request. The successful bidder shall post a copy of the prevailing wage rates at each job site. It shall be mandatory upon the Bidder to whom the Contract is awarded, and upon any subcontractors, to comply with all Labor Code provisions, which include but are not limited to the payment of not less than the said specified prevailing wage rates to all workers employed by them in the execution of the Contract, employment of apprentices, hours of labor and debarment of contractors and subcontractors. If the total compensation under the contract will exceed $25,000 and pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations (“DIR”). No bid shall be accepted nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the DIR to perform public work. If awarded a contract, the bidder and its subcontractors, of any tier, shall maintain active registration with the DIR for the duration of the Project. The contract awarded pursuant to this proposal may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations.
1Use of the term “firm” shall mean individual proprietorship, partnership, Limited Liability Company, corporation or joint venture.
3 B. City Contact for this RFP
The principal contact for the City regarding this RFP will be Michelle Parra, Buyer for the Purchasing Division, [email protected] or a designated representative, who will coordinate the assistance to be provided by the City to the Proposer.
C. Requests for Clarification
All questions, requests for interpretations or clarifications, either administrative or technical must be requested in writing and directed to the City Contact for this RFP, identified above.
All written questions, if answered, will be issued to all prospective proposers via e -mail notification from Planetbids. Oral statements regarding this RFP by any persons should be considered unverified information unless confirmed in writing. To ensure a response, questions must be submitted to Planetbids by Wednesday, September 27, 2023, by 3:00 p.m. local time on the date identified in the Proposal Schedule. Each Proposer is responsible for ensuring that it has received all addenda, clarifications, supplemental information and responses to questions prior to submitting a proposal.
D. Pre-Proposal Meeting
Each Proposer is requested to attend a mandatory pre-proposal meeting to be held on Wednesday, September 20, 2023, from 9:30 a.m. to10:30 a.m. via Microsoft Teams. Failure to attend this meeting WILL preclude a Proposer from submitting a proposal. Attendance at the pre-proposal meeting will ensure the Proposer understands the full scope of the S ervices requested.
E. Content and Format of Proposal
Proposals shall be concise, well organized and demonstrate qualifications and applicable experience. Proposals shall include one (1) electronic proposal submitted to Planetbids. Proposals shall be organized, tabbed, and numbered in the order presented below.
Proposals must include page numbers for all pages in the proposal.
Proposals shall be in the following order and shall include:
1. Executive Summary: (limit: 1 page) Summarize the content of your proposal in a clear and concise manner.
2. Table of Contents: (limit: 1 page)
3. Identification of Proposer: (limit: 1 page)
a. Legal name and address of the company.
b. Legal form of company (partnership, corporation).
c. If company is a wholly owned subsidiary of a “parent company,” identify the “parent company.”
4 d. Name, title, address and telephone number of the proposed representative to contact concerning the Proposal Submittal. e. California Business License Number
4. Staffing Resources: (limit: 2 pages)
a. Firm Staffing and Key Personnel
(i) Provide the number of staff to be assigned to perform the Services and the names/discipline/job title of each as well as your firm’s capacity to provide additional personnel as needed.
(ii) Identify three (3) persons that shall be principally responsible for working with the City. Indicate the role and responsibility of each individual. If the Proposer is chosen as a finalist, these principal individuals must attend the interview and in-person presentation.
(iii) Describe proposed team organization, including
identification and responsibilities of key personnel. Please include one-page resumes.
(iv) Provide brief biographies of individuals that shall be working directly with the City.
b. Subcontractors
(i) The Proposer shall identify functions that are likely to be subcontracted and identify the subcontractor (s) that is anticipated to perform each function, if known at this time.
5. Fiscal Stability: (limit: 4 pages) - not including supporting documentation) a. The Proposer should provide evidence of corporate stability including:
(i) A current report from any commercial credit rating service such as Dunn and Bradstreet or Experian; or
(ii) A letter from a financial institution stating a current line of credit; and
(iii) Latest audited financial statement and/or annual report that has been certified by a CPA . This information will remain confidential and is not subject to public disclosure.
6. Experience and Technical Competence: (limit: 3 pages) a. Experience
5 (i) The Proposer shall provide a description of how the Proposer’s experience, technical and professional skills will meet the goals and fulfill the general functions identified in this RFP.
(ii) Describe the past experience of the staff to be assigned to perform the Services in performing similar services.
(iii) The Proposer shall state the number of years the firm has conducted business. Proposer must have at least four (4) years’ experience in providing the required scope of
Services for public clients.
(iv) Provide three (3) references regarding the Proposer’s experience and performance performing similar services.
Include the following information: (1) Organization/City, contact name, phone number, e- mail address; and (2)
project size and description, if applicable, and description of services.
(v) Describe the Proposer ’s local experience and knowledge of City.
b. Project Specific Experience
(i) The Proposer shall provide a description of the three most relevant service contracts held within the last five years, one page per project, to include:
(a) Role of the firm
(b) Dollar value of the services
(c) Dollar value of the fee
(d) Description of services
(e) Staffing
(f) Duration of providing services
(g) Relationship to client
(h) Contact name, position, entity name, telephone
number, fax number and e- mail address for each
project.
(ii) If any of the following has occurred, please describe in detail:
(a) Failure to enter into a contract or professional
services agreement once selected.
6 (b) Withdrawal of a proposal as a result of an error. (c) Termination or failure to complete a contract.
(d) Debarment by any municipal, county, state, federal
or local agency.
(e) Involvement in litigation, arbitration or mediation.
Conviction of the firm or its principals for violating a state or federal antitrust law by bid or proposal
rigging, collusion, or restrictive competition between
bidders or proposers, or conviction of violating any
other federal or state law related to bidding or
professional services performance . Knowing
concealment of any deficiency in the performance of
a prior contract.
(f) Falsification of information or submission of
deceptive or fraudulent statements in connection
with a contract.
(g) Willful disregard for applicable rules, laws or
regulations.
Information regarding any of the above may, at the
sole discretion of the City, be deemed to indicate an
unsatisfactory record of performance.
c. Technical Competence
(i) Description of in -house resources (i.e., computer
capabilities, software applications, modem protocol,
modeling programs, etc.)
(ii) Ability to dra w upon multi -disciplinary staff to address the Services requested in this RFP.
7. Proposed Method to Accomplish the Work : (limit: 2 pages) Describe the technical and management approach to providing the Services to the City. Proposer should take into account the scope of the Services, goals of the City, and general functions required. Include a draft first year schedule of tasks, milestones, and deliverables that will provide for timely provision of the Services. In reviewing the scope of Services and goals described in Exhibit “A”, the Proposer may identify additional necessary tasks and is invited to bring these to the City’s attention within the discussion of its proposed method to accomplish the work.
8. Fee P
roposal: (limit: 4 pages) Please provide a unit cost fee proposal for the scope of Services. (as such term is defined in the proposed Agreement attached hereto as Exhibit “B”). Fee proposal shall be uploaded separately to Planetbids under the “Cost File” tab.
9. Ce rtificate of Insurance : (limit: 2 pages) - not including supporting documentation) See the Agreement, attached hereto as Exhibit “B”, for a description of the
7 insurance requirements. Proposers shall provide a copy of their Certificate of Insurance showing that their insurance meets the requirements of the City.
10. Litigation: (limit: 2 pages) Provide litigation history for any claims filed by your firm or against your firm related to the provision of Services in the last five (5) years.
11. Oth er Information : (limit: 2 pages) This section shall contain all other pertinent information regarding the following:
a. Demonstration of record of staffing tasks efficiently and completing projects on time and within the allocated budget.
b. Description of community involvement.
c. Description of any previous involvement with the City. d. A statement that the Proposer has not conflicts of interest in connection with providing the Services.
12. Certification of Proposal: This section shall state:
“The undersigned hereby submits its proposal and, by doing so, agrees to furnish services to the City in accordance with the Request for Proposal (RFP), and to be bound by the terms and conditions of the RFP.”
13. Appendices: (limit: 2 pages)
F. No Deviations from the RFP
In submitting a proposal in response to this RFP, Proposer is certifying that it takes no exceptions to this RFP including, but not limited to, the Agreement. If any exceptions are taken, such exceptions must be clearly noted in the proposal and may be reason for rejection of the proposal. As such, Proposer is directed to carefully review the proposed Agreement and, in particular, the insurance and indemnification provisions therein. If the proposer does not take any exceptions or deviations from the terms and conditions indicated in the agreement, then the proposer must indicate this information by making a statement within the proposal document.
G. Selection Process
1. The City will evaluate proposals based on the following criteria:
a. The Proposer is properly licensed to practice in the State of California.
b. The Proposer has no conflict of interest with regard to any other work performed by the firm for the City.
c. Clarity and conformance of proposal to the RFP.
d. Content of the proposal.
e. Proposer’s experience and performance.
8 f. Team members’ experience and performance.
g. Fee proposal.
h. Comments by references.
i. Exceptions/Deviations to RFP/Agreement Template (Pass/Fail) j. Litigations (Pass/Fail)
2. During the evaluation process, the City reserves the right, where it may serve the City's best interest, to request additional information or clarifications from Proposers, or to allow corrections of errors or omissions.
3. It is the City’s intent to select a Proposer best evidencing demonstrated competence and professional qualification to perform the Services. The City reserves the right to reject all proposals, select by proposal review only or interview as needed. Certain Proposers may be selected to make a brief presentation and oral interview after which a final selection will be made. The successful P roposer will be selected on the basis of information provided in the RFP, in-person presentations, and the results of the City’s research and investigation. Upon selection of a Proposer, the City will endeavor to negotiate a mutually agreeable Agreement with the selected Proposer . In the event that the City is unable to reach agreement, the City will proceed, at its sole discretion, to negotiate with the next Proposer selected by the City. The City reserves the right to contract for services in the manner that most benefits the City including awarding more than one contract if desired.
4. After negotiating a proposed Agreement that is fair and reasonable, City staff will make the final recommendation to the City Council concerning the proposed Agreement.
The City Council has the final authority to approve or reject the Agreement.
H. Protests
1. Protest Contents : Protests based on the content of the RFP shall be submitted to the City no later than ten (10) calendar days prior to the scheduled proposal submittal deadline. If necessary, the proposal submittal deadline may be extended pending a resolution of the protest. Proposer may protest a contract award if the Proposer believes that the award was inconsistent with City policy or this RFP is not in compliance with law. A protest must be filed in writing with the City (email is not acceptable) within five (5) business days after receipt of notification of the contract award. Any protest submitted after 5 p.m. of the fifth business day after notification of the contract award will be rejected by the City as invalid and the Proposer’s failure to timely file a protest shall waive the Proposer’s right to protest the contract award. The Proposer’s protest must include supporting documentation, legal authorities in support of the grounds for the protest and the name, address and telephone number of the person representing the Proposer for purposes of the protest. Any matters not set forth in the protest shall be deemed waived.
2. Cit
y Review: The City will review and evaluate the basis of the protest , provided that the protest is filed in strict conformity with the foregoing. The City shall provide the Proposer submitting the protest with a written statement concurring with or denying the protest.
Action by the City relative to the protest will be final and not subject to appeal or reconsideration.
The procedure and time limits set forth in this section are mandatory and are the Proposer’s sole
9 and exclusive remedy in the event of protest. Failure to comply with these procedures shall constitute a waiver of any right to further pursue the protest, including filing a Government Code claim or legal proceedings.
I. Proposal Schedule
The tentative schedule is as follows:
ACTION DATE
Release of Request for Proposal September 14, 2023
Pre-Proposal Meeting Location: Mandatory meeting via
Microsoft Teams, Wednesday, September 20, 2023,
from 9:30 a.m. to 10:30 a.m. Please confirm on or
before Tuesday, September 19, 2023, by 9:00 a.m. to
the [email protected] email. The Microsoft Teams
link will be sent to you by end of day Tuesday,
September 19, 2023.
September 20, 2023
Last Day to Submit Questions for Clarification
received by the City on or before Wednesday,
September 27, 2023, by 3:00pm
September 27, 2023
Clarifications Issued by City on or before Wednesday,
October 4, 2023, by 3:00pm
October 4, 2023
Deadline for Receipt of Proposals
submitted on or before Wednesday, October 18, 2023,
by 3:00pm
October 18, 2023
The above scheduled dates are tentative, and City retains the sole discretion to adjust the above schedule. Nothing set forth herein shall be deemed to bind City to award a contract for the above-described Professional Services and City retains the sole discretion to cancel or modify any part of or all of this RFP at any time.
J. Submittal Requirements
1. General: It is strongly recommended that the Proposer submit proposals in the format identified in this RFP to allow the City to fully evaluate and compare the proposal .
All requirements and questions in the RFP should be addressed and all requested data shall be supplied. The City reserves the right to request additional information which, in the City’s opinion, is necessary to assure that the Proposer’s competence, number of qualified employees, business organization, and financial resources are adequate to perform according to the Agreement.
2. P
reparation : Proposals should be prepared in such a way as to provide a straightforward, concise delineation of capabilities to satisfy the requirements of this RFP .
Responses should emphasize the Proposer’s demonstrated capability to perform the Services .
Expensive bindings and promotional materials, etc., are not necessary or desired. However, technical literature that supports the approach to providing the Services and work plan should be
10 forwarded as part of the proposal. Emphasis should be concentrated on completeness, approach to the work and clarity of proposal.
3. Site Examination: Proposers may visit the City and its physical facilities to determine the local conditions which may in any way affect the performance of the work; familiarize themselves with all federal, state and local laws, ordinances, rules, regulations, and codes affecting the performance of the work; make such investigations, as it may deem necessary for performance of the Services at its proposal price within the terms of the Agreement; and correlate its observations, investigations, and determinations with the requirements of the Agreement.
4. A
uthorization: The proposal shall be signed by an individual, partner, officer or officers authorized to execute legal documents on behalf of the Proposer.
5. C onfidentiality of Proposal: Pursuant to Michaelis, Montanari, & Johnson v. Superior Court (2006) 38 Cal.4th 1065, proposals submitted in response to this RFP shall be held confidential by City and shall not be subject to disclosure under the California Public Records Act (Cal. Government Code section 6250 et seq.) until after either City and the successful Proposer have completed negotiations and entered into an Agreement or City has rejected all proposals. All correspondence with the City including responses to this RFP shall become the exclusive property of the City and shall become public records under the California Public Records Act. Furthermore, the City shall have no liability to the Proposer or other party as a result of any public disclosure of any proposal or the Agreement.
If a Proposer desires to exclude a portion of its proposal from disclosure under the California Public Records Act, the Proposer must mark it as such and state the specific provision in the California Public Records Act which provides the exemption as well as the factual basis for claiming the exemption. For example, if a Proposer submits trade secr et information, the Proposer must plainly mark the information as “Trade Secret” and refer to the appropriate section of the California Public Records Act which provides the exemption as well as the factual basis for claiming the exemption. Although the California Public Records Act recognizes that certain confidential trade secret information may be protected from disclosure, the City may not be in a position to establish that the information that a Proposer submits is a trade secret. If a request is made for information marked “Confidential”, “Trade Secret” or “Proprietary” (“Proprietary Information”), the City will provide Proposers who submitted the information with reasonable notice to seek protection from disclosure by a court of competent jurisdiction. Proposer shall have five (5) working days after receipt of such notice to give City written notice of Proposer's objection to the City's release of Proprietary Information. Proposer shall indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney's fees) arising out of a legal action brought to com pel the release of Proprietary Information.
Proposals which indiscriminately identify all or most of the proposal as exempt from disclosure without justification may be deemed unresponsive and disqualified from further participation in this procurement.
Submittal Instructions: Electronic PDF file format via Planetbids. Please allow time for system to process your proposal. The proposal must be received no later than 3:00pm local time, on or before Wednesday, October 18, 2023. The City shall not be responsible for proposals that are not received on time. The City will not be responsible for and will not accept late bids due to slow internet connections, or incomplete transmissions.
11 K. General Conditions
1. Amendments to RFP: The City reserves the right to amend the RFP and issue to all Proposers an addendum.
2. A mendments to Proposals : Unless specifically requested by the City, no amendment, addendum or modification shall be accepted after a proposal has been submitted to City. If a change to a proposal that has been submitted is desired, the submitted proposal must be withdrawn and the replacement proposal submitted prior to the deadline stated herein for receiving proposals.
3. No n -Responsive Proposals : A p roposal may be considered non - responsive if conditional, incomplete, or if it contains alterations of form, additions not called for, or other irregularities that may constitute a material change to the proposal.
4. C osts for Preparing: The City shall not compensate any Proposer for the cost of preparing any proposal, and all materials submitted with a p roposal shall become the property of the City. The City will retain all proposals submitted and may use any idea in a proposal regardless of whether that proposal is selected.
5. C ancellation of RFP: City reserves the right to cancel this RFP at any time prior to contract award without obligation in any manner for proposal preparation, interview, fee negotiation or other marketing costs associated with this RFP.
6. P
rice Validity : Prices provided by Proposers in response to this RFP are valid for 120 days from the proposal due date. The City intends to award the contract within this time but may request an extension from the Proposers to hold pricing, until negotiations are complete and the contract is awarded.
7. N o Commitment to Award: Issuance of this RFP and receipt of proposals does not commit the City to award a contract. City expressly reserves the right to postpone the proposal for its own convenience, to accept or reject any or all proposals received in response to this RFP, to negotiate with more than one Proposer concurrently, or to cancel all or part of this RFP.
8. R ight to Negotiate and/or Reject Proposals : City reserves the right to negotiate any price or provision, task order or service, accept any part or all of any proposals, waive any irregularities, and to reject any and all, or parts of any and all proposals, whenever, in the sole opinion of City, such action shall serve its best interests and those of the tax -paying public. The Proposers are encouraged to submit their best prices in their proposals, and City intends to negotiate only with the Proposer(s) whose proposal most closely meets City’s requirements at the lowest estimated cost. The Agreement, if any is awarded, shall go to the Proposer whose proposal best meets City’s requirements.
9. No
n -Discrimination: The City does not discriminate on the basis of race, color, national origin, religion, age, ancestry, medical condition, disability or gender in consideration for an award of contract.
Publication Date of RFP: September 14, 2023
Exhibit A
EXHIBIT A
SCOPE OF SERVICES
Introduction:
The City of San Bernardino is seeking proposals from qualified vendors to replace the two existing Data domain 3300's currently used for backups. The City currently houses one Data domain 3300 at City Hall and another at the Police Department. The replacements ideally should have at least double the existing storage capacity and should be able to replicate to each other. These devices should include features such as immutability and built-in ransomware protection, if possible. The City of San Bernardino is interested in receiving proposals from vendors who can use tools such as rvtools or live optics to analyze our current as well as future backup storage needs.
Objectives:
The objectives of this project are as follows:
• To purchase new storage devices replacing the existing data domain 3300's used for backups. • Must be compatible with Commvault backup software.
• Sized have at least double the existing storage capacity. • Ability to replicate data between the two storage units. • Include features such as immutability and built-in ransomware protection, if possible; encryption; deduplication. • 10 Gb fiber Ethernet capable
• Data retention of at least 6 months
• Expandable
Scope of Work:
Vendors are required to submit their proposals, which should include the following:
a) Detailed description of the proposed storage units
b) Capacity of the proposed storage units
c) Features of the proposed storage units
d) Does the storage device integrate with the cloud?
e) Explain the devices lifecycle management.
f) Cost of the proposed storage units, including any ongoing maintenance or support fees g) Implementation plan, including timelines and any additional resources required.
Bidders must acknowledge all requirements of scope of work, previous section, including all categories and sub-points.
Please Sign and Acknowledge Here: __________________________________________
_________________________________________________________________________
If Bidder can provide additional services t hat are related to the services above, but not mentioned in this section, please list the additional services and detail how they will be beneficial to the city
BIDDER’S RESPONSE:
- 2 -
EXHIBIT B
CITY OF SAN BERNARDINO
[***INSERT AGREEMENT NAME***]
PROFESSIONAL SOFTWARE SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND [***INSERT NAME***]
1. P ARTIES AND DATE.
This Agreement is made and entered into this ____ day of ___________, 2021 (“Effective Date”), by and between the City of San Bernardino, a charter city and municipal corporation (“City”) and [***INSERT NAME***] , a [***INSERT TYPE OF ENTITY AND STATE - CORPORATION, PARTNERSHIP, SOLE PROPRIETORSHIP OR OTHER LEGAL ENTITY***] with its principal place of business at [***INSERT ADDRESS***] (“Vendor”). Vendor is registered with the State of California and permitted to conduct the types of sales and business ser vices included in this Agreement. City and Vendor are sometimes individually referred to as “Party” and collectively as “Parties.”
2. R ECITALS.
2.1 City. City is a public agency of the State of California and is in need of professional software services for the following project:
[***INSERT DESCRIPTION***] (hereinafter referred to as “the Project”)
2.2 V endor . Vendor desires to perform and assume responsibility for the provision of certain professional services including, but not limited to, software programming and on- going maintenance services as required by the City on the terms and conditions set forth in this Agreement. Vendor represents that it is experienced in providing [***INSERT TYPE OF SERVICES***] projects to public agency clients, is licensed in the State of California, and is familiar with the computing environment of the City.
2.3 G
rant of License. Vendor hereby represents and warrants to City that Vendor is the owner of the Application Software, as defined herein, or otherwise has the right to grant to City the rights to use of the Application Software, as set forth in this Agreement and the attached License Agreement.
2.4 P
roject . City desires to engage Vendor to render such services for the [***INSERT NAME OF PROJECT***] project (“Project”) as set forth in this Agreement.
2.5 H ardware Specifications . The Parties acknowledge and agree that the City has or will be purchasing certain hardware necessary for the proper operation of the
3 System, defined below, in reliance on the recommendations and specifications to be provided by Vendor.
3. D EFINITIONS
3.1 Acceptance. The term Acceptance as used in this Agreement shall refer to a thirty (30) day period following notification by the Vendor that the Application Software or any component or element thereof is ready for use. During this period, the City will test the System and if no Defects are reported, that component or element of the Application Software will be deemed Accepted. If Defects are reported, the Vendor will correct the Defect and a new Acceptance period will begin once the City has been notified by the Vendor.
3.2 A
pplication Software. The term Application Software as used in this Agreement shall refer to the collection of software programs (i.e. executable code) provided to the City by Vendor that will perform the set of functions described in the Exhibit “B”.
3.3 C
ustom Software. The term Custom Software is computer programs developed under this Agreement that extends the functionality of the Application Software to include features specified or required as part of this Project and under this Agreement not originally part of the Vendor’s baseline or prior version of the Application Software.
3.4 D
efect. The term Defect as used in this Agreement shall refer to any error or malfunction in the operation of the System under this Agreement that prevents the City or its agents or employees from using the Application Software to perform the features and functions proposed in Exhibit “B”.
3.5 De
livery. The term Delivery related to software shall mean the transfer and receipt (electronically) of the Application Software to the designated, City approved computing environment. Delivery of professional Services, as used in this Agreement, shall mean that the City’s designated agent under this Agreement has signed off on a given task or work order.
3.6 F
inal Acceptance. The term Final Acceptance as used in this Agreement shall be used to refer to the thirty (30) day period following the complete Acceptance and operation in productive use of all the components and elements of the System that is free of Defects. If Defects are reported by the City, the Vendor will correct the Defect(s) and notify the City after which a new Final Acceptance period will begin.
3.7 I
nstallation. The term Installation as used in this Agreement shall refer to the loading of executable code necessary for the operation of the Application Software on one of the computing environments designated herein with the Platform Software.
3.8 Li
cense Agreement . The term License Agreement as used in this Agreement shall mean the license agreement(s) for the Application Software attached hereto as Exhibit “F”.
4 3.9 On-going Maintenance and Support Services . The term On -going Maintenance and Support Services as used in this Agreement shall mean those Services required for on-going Application Software maintenance and support.
3.10 P latform Software. The term Platform Software shall mean all of the server and client operating systems, utilities, objects, database software, and any 3 rd Party software necessary to operate the Application Software as required by this Agreement.
3.11 P roject. The term Project as used in this Agreement shall refer to all of the materials, labor and Services required to deliver the System.
3.12 P roject Deliverables. The term Products as used in this Agreement shall refer to, collectively, the Application Software, Custom Software, Platform Software, Updates, Source Code and any other products, including intellectual property, provided by Vendor under this Agreement, as more specifically set forth in Exhibit “B”.
3.13 P
roject Services. The term Project Services as used in this Agreement shall mean those Services to be provided by Vendor in order to complete the Project, through Final Acceptance.
3.14 S
ervices. The term Services as used in this Agreement shall mean, collectively, the Project Services and the On-going Maintenance and Support Services.
3.15 S ource Code. The term Source Code as used in this Agreement shall refer to all programming language code, objects, stored procedures, utilities, and compilers necessary to generate executable code for all of the Application Software and Custom Software provided under this Agreement, including all user, technical and system documentation necessary for a reasonable person to understand how to operate all elements of the System.
3.16 S
ystem. The term System shall be used in this Agreement to refer to the collection of software, firmware, operating system, database system, hardware and peripherals necessary to operate the Application Software to perform the functions specified in Exhibit “B”.
3.17 U
pdate. The term Update shall be used in this Agreement to refer to any bug fix, patch, enhancement, error correction, revision, performance improvement, new version, added features to or replacement of the Application Software, or any component or element thereof, designed to perform the same functions as the Application Software on any Platform Software or computing environment.
4. T ERMS.
4.1 Incorporation of Documents and Recitals; Order of Precedence. The attached exhibits and the recitals set forth above are incorporated into this Agreement by reference as though fully set forth herein.
5 4.2 Scope of Services and Term.
4.2.1 General Scope of Services . Vendor promises and agrees to furnish to the City all labor (technical consulting, training, programming, etc.), software, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply [***INSERT TYPE OF PRODUCTS AND SERVICES***] necessary for the Project. The Project is more particularly described in Exhibit “A” (Statement of Work) attached hereto and incorporated herein by reference including definitions required for interpreting the services described. The Project shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
4.2.2 On-G
oing Maintenance and Support Services. Vendor further
promises and agrees to furnish to the City all labor (technical consulting, training, programming, etc.), software, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the On -going Maintenance Services as required hereunder. The On- going Maintenance and Support Services are more particularly described in Exhibit “G” (On-going Maintenance Services Statement of Work) attached hereto and incorporated herein by reference including, if applicable, definitions required for interpreting the services described. The On -going Maintenance and Support Services shall be subject to, and performed in accordance with, the applicable provisions of this Agreement and the attached exhibits, and all applicable local, state and federal laws, rules and regulations.
4.2.3 T
erm.
4.2.3.1 License Agreement. The term of the License
Agreement shall continue in perpetuity, regardless of any termination of this Agreement or the provision by Vendor of On-going Maintenance and Support Services, as further set forth in the License Agreement.
4. 2.3.2 On-going Maintenance and Support Services. The term of this Agreement as relates to the provision of On-going Maintenance and Support Services shall commence upon Final Acceptance and shall remain in effect for up to [***INSERT NUMBER***] (#) successive one (1) year periods, to be renewed annually in the City’s sole discretion.
4. 2.3.3 Project Services . The term of this Agreement, as relates to the Project Services, shall commence on the Effective Date and shall terminate on the date of Final Acceptance. Notwithstanding the foregoing, the indemnification and warranty provisions of this Agreement shall remain in full force and effect as to such Services.
4.3 R
esponsibilities of Vendor .
6 4.3.1 Control and Payment of Subordinates; Independent Contractor .
The Project Deliverables and Services shall be provided by Vendor or under its supervision. Vendor will determine the means, methods and details of performing Project subject to the requirements of this Agreement. City retains Vendor on an independent contractor basis and not as an employee. Vendor retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the S ervices under this Agreement on behalf of Vendor shall also not be employees of City and shall at all times be under Vendor’s exclusive direction and control.
Vendor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Vendor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation insurance.
4.3.2 S
chedule of Services. Vendor shall perform the Project Services expeditiously, within the term of this Agreement, and in accordance with the Project Plan, attached hereto as Exhibit “D” and incorporated herein by this reference. Vendor shall perform the On- Going Maintenance and Support Services in accordance with the schedule therefore included in Exhibit “G”. Vendor represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate Vendor’s conformance with the foregoing schedules, City shall respond to Vendor’s submittals in a timely manner.
4.3.3 C
onformance to Applicable Requirements . All work prepared and Services performed by Vendor shall be subject to the approval of City.
4.3.4 W arranty. Vendor warrants that the Application Software shall perform as proposed and represented in Exhibit “B”. In addition, Vendor represents and warrants that, at Final Acceptance, the Application Software shall perform all of the functions specified in Exhibit “B”.
4.3.5 S
ubstitution of Key Personnel. Vendor has represented to City that certain key personnel will perform and coordinate the Services under this Agreement.
Should one or more of such personnel become unavailable, Vendor may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Vendor cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Vendor at the request of the City. The key personnel for performance of this Agreement are as follows: [**INSERT NAMES***].
4.3.6 C oordination of Services. Vendor agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, Vendors and other staff at all reasonable times.
7 4.3.7 Standard of Care; Performance of Employees. Vendor shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Vendor represents and maintains that it is skilled in the professional calling necessary to perform the Services. Vendor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them. Finally, Vendor represents that it, its employees and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Vendor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the Vendor’s failure to comply with the standard of care provided for herein. Any employee of the Vendor or its sub- Vendors who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project or from the provision of On-Going Maintenance and Support Services by the Vendor and shall not be re-employed to perform any of the Services or to work on the Project.
4.3.8 R
egulatory Compliance. Vendor shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project and the On- Going Maintenance and Support Services, including all federal and state requirements, and shall give all notices required by law. Any and all Application Software provided under this Agreement shall be compliance with all relevant federal and state laws and regulations including, but not limited to IRS, Social Security, Federal Trade Commission, Homeland Security, California Public Employees Retirement System (CalPERS), and California Franchise Tax Board.
Vendor shall be liable for all violations of such laws and regulations in connection with delivery of Products and Services under this Agreement. If the Vendor performs any work knowing it to be contrary to such laws, rules and regulations and without giving written notice to the City, Vendor shall be solely responsible for all costs arising ther efrom.
Vendor shall defend, indemnify and hold City, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
4.3.9 A
dditional Provisions Related to On- going Maintenance and Support Services.
4.3.9.1 Defect Remediation. Vendor shall correct any reported Defects in a timely manner. Defects that result in the City’s inability to conduct its normal business operations may incur financial penalties as further described below.
8 4.3.9.2 Penalties. If Vendor cannot resolve the problem of a reported Defect within 48 hours, the Vendor shall pay the City $500 per day (24 hours) until the Defect is remedied and the City is able to resume its normal business operations.
4.3.9.3 U pdates/Platform Protection. Vendor expressly agrees that the continuous payment for On-going Maintenance and Support Services hereunder shall entitle the City to all Updates released by Vendor (or the Application Software manufacturer), at no additional cost to the City, regardless of the operating system or database platform on which the Updates operate. Vendor shall, on a quarterly basis, make the City aware of any available Updates. Updates shall be installed only after completion, to City’s satisfaction, of reasonable testing in a City test environment. The City shall only be responsible for data conversion and/or training costs associated with the Update, which shall be at the Vendor’s then current standard rates charged to similar customers for similar services, and as shall be agreed upon in writing, in advance by the Parties.
4.4 P
arty Representatives .
4.4.1 City’s Representative. The City hereby designates [***INSERT NAME OR TITLE***] , or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract. Vendor shall not accept direction or orders from any person other than the City’s Representative or his or her designee.
4.4.2 Vendor’s Representative. Vendor hereby designates [***INSERT NAME OR TITLE***] , or his or her designee, to act as its representative for the performance of this Agreement (“Vendor’s Representative”). Vendor’s Representative shall have full authority to represent and act on behalf of the Vendor for all purposes under this Agreement. The Vendor’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
4.5 Insurance. [***INSURANCE COVERAGE TO BE REVIEWED BY RISK MANAGEMENT***]
4.5.1.1 T ime for Compliance . Vendor shall not commence the Project under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Vendor shall not allow any subcontractor to commence work on any subcontract until it has provided evidence satisfactory to the City that the subcontractor has secured all insurance required under this section.
4.5.1.2 A
dditional Insured . The City of San Bernardino, its
officials, officers, employees, agents, and volunteers shall be named as additional insureds on Vendor’s and its subvendors’ policies of commercial general liability and
9 automobile liability insurance using the endorsements and forms specified herein or exact equivalents.
4.5.1.3 Commercial General Liability
(A) The Vendor shall take out and maintain, during the
performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City.
(B) Coverage for Commercial General Liability
insurance shall be at least as broad as the following: Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (C) Commercial General Liability Insurance must
include coverage for the following:
(a) Bodily Injury and Property Damage
(b) Personal Injury/Advertising Injury
(c) Premises/Operations Liability
(d) Products/Completed Operations Liability
(e) Aggregate Limits that Apply per Project
(f) Explosion, Collapse and Underground
(UCX) exclusion deleted
(g) Contractual Liability with respect to this
Contract\
(h) Broad Form Property Damage
(i) Independent Vendors Coverage
(D) The policy shall contain no endorsements or
provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. (E) The policy shall give City, its elected and appointed officials, officers, employees, agents, and City -designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage.
10 (F) The general liability program may utilize either deductibles or provide coverage excess of a self -insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured.
4.5.1.4 Automobile Liability.
(A) At all times during the performance of the work
under this Agreement, the Vendor shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City. (B) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(C) The policy shall give City, its elected and appointed officials, officers, employees, agents and City designated volunteers additional insured status.
(D) Subject to written approval by the City, the
automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.
4.5.1.5 Workers’ Compensation/Employer’s Liability.
(A) Vendor certifies that he/she is aware of the
provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(B) To the extent Vendor has employees at any time
during the term of this Agreement, at all times during the performance of the work under this Agreement, the Vendor shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Vendor shall require all subvendor s to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section.
4.5.1.6 Professional Liability (Errors and Omissions). At all times during the performance of the work under this Agreement the Vendor shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein. This insurance shall be endorsed to include contractual liability applicable to this
11 Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Vendor. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement.
The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend.
4.5.1.7 Privacy/Network Security (Cyber). At all times during the performance of work under this Agreement, the Designer shall maintain privacy/network security insurance, in a form and with insurance companies acceptable to the City, for:
(1) privacy breaches, (2) system breaches, (3) denial or loss of service, and (4) the introduction, implantation or spread of malicious software code.
4.5.1.8 M
inimum Policy Limits Required.
(A) The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/$4,000,000 aggregate for bodily injury, personal injury,
and property damage
Automobile Liability $1,000,000 per occurrence for bodily injury and property damage
Employer’s Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
Cyber Liability $1,000,000 per occurrence limit
(B) Defense costs shall be payable in addition to the
limits.
(C) Requirements of specific coverage or limits
contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement.
4.5.1.9 Evidence Required. Prior to execution of the Agreement, the Vendor shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly
12 authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.
4.5.1.10 Policy Provisions Required.
(A) Vendor shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Vendor shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non- payment of the premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Vendor shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. (B) The Commercial General Liability Policy and
Automobile Policy shall each contain a provision stating that Vendor’s policy is primary insurance and that any insurance, self -insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. (C) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Vendor shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Vendor shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims -made policy with a retroactive date subsequent to the effective date of this Agreement. (D) All required insurance coverages, except for the
professional liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Vendor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Vendor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subvendors. (E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Vendor from liability in excess of such coverage, nor shall it limit the Vendor’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
4.5.1.11 Qualifying Insurers.
(A) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum
13 requirements: each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
4.5.1.12 Additional Insurance Provisions.
(A) The foregoing requirements as to the types and
limits of insurance coverage to be maintained by Vendor , and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Vendor pursuant to this Agreement, including, but not limited to, the provisions concerning indemnification. (B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Vendor or City will withhold amounts sufficient to pay premium from Vendor payments. In the alternative, City may cancel this Agreement. (C) The City may require the Vendor to provide
complete copies of all insurance policies in effect for the duration of the Project. (D) Neither the City nor the City Council, nor any
member of the City Council, nor any of the officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
4.5.1.13 Subvendor Insurance Requirements . Vendor shall not allow any subcontractors or subvendors to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section. Policies of commercial general liability insurance provided by such subcontractors or subvendors shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Vendor, City may approve different scopes or minimum limits of insurance for particular subcontractors or subvendors.
4.5.2 S
afety. Vendor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Vendor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed.
4.6 Re
sponsibilities of City.
14 4.6.1 City Support of Vendor. City shall furnish to the Vendor priority access to the System for the period of time reasonably required by the Vendor for Installation, testing, training, diagnostics, etc. City shall provide the following resources for Vendor's use in fulfillment of this Agreement:
(a) City personnel upon reasonable request of Vendor to answer questions and advise Vendor on City's facilities, operations and requirements.
(b) Input data in accordance with the agreed upon test and Acceptance procedures for use by the Vendor in Acceptance Testing.
(c) Conversion format and procedures that the Vendor shall complete at its expense.
(d) Upon completion of Installation and preliminary training, and following Final Acceptance, City shall be responsible for the operation and management of the System, exclusive of hardware maintenance and/or On-going Maintenance and Support Services, which shall be the responsibility of Vendor.
4.7 Fees and Payments.
4.7.1 Compensation for Project Services. The Parties agree that the payment schedule is a performance based payment schedule. Vendor shall receive compensation, including authorized reimbursements, for all Project Services and License Agreements rendered under this Agreement at the rates and in accordance with the compensation schedule set for th in Exhibit “ C” attached hereto and incorporated herein by reference. The total compensation for Project Services shall not exceed [***INSERT WRITTEN DOLLAR AMOUNT***] ($[***INSERT NUMERICAL DOLLAR AMOUNT***]) without written approval of City’s Representative.
4.7.2 C ompensation for On-going Maintenance and Support Services.
Vendor shall receive compensation, including authorized reimbursements, for all On- going Maintenance and Support Services rendered under this Agreement at the rates set forth in Exhibit “ C”. Notwithstanding any other provision of this Agreement, the Parties agree that payment for the first year of On-going Maintenance and Support Services shall be covered under the warranty for the System, included as part of the payment specified in Section 4.7. 1 above, and no additional payment by the City shall be made for such services.
4.7.3 P
rocess for Payment of Compensation; Itemized Statements .
Vendor shall submit to City a monthly itemized statement which indicates work completed and hours of Services rendered by Vendor. The statement shall describe the nature and amount of Services provided; and shall clearly reflect charges against the items described in the “Compensation” set forth in Exhibit “ C” since the initial commencement date, or
15 since the start of the subsequent billing periods, as appropriate, through the date of the statement. Statements not in conformance with the foregoing, or statements containing questions or ambiguities, shall be returned to the Vendor for correction. City shall, within forty-five (45) days of receiving a statement in conformance with the requirements contained herein, review the statement and process for payment all approved and undisputed charges thereon.
4.7.4 Partial Delivery. In the event that the Vendor fails to deliver all of the Application Software elements and Services included in the Project Deliverables, the City, at its sole option, may determine the value of the missing elements and withhold that amount from any payment due to Vendor. Alternatively, or in addition, as required to cover the value of the missing elements, Vendor shall submit to the City a cashier’s check for said amount and present it to the City, to be held as a “Project Bond” until the missing elements have been satisfactorily delivered and Accepted. Upon Acceptance of the missing elements, the City shall return the cashier’s check along with any withheld payment amounts, as applicable. If the Vendor fails to satisfactorily deliver the missing elements, the City may cash the cashier’s check and use the withheld monies to complete the outstanding deliverables with its own forces, or through any other available vendor or consultant.
4.7.5 R
eimbursement for Expenses. Vendor shall not be reimbursed for any expenses unless included in Exhibit “C”, Exhibit “D”, or authorized in writing and in advance by City.
4.7.6 M
odification of Scope. The City may, at any time, request a modification to the Project, or the Statement of Work for the Project Services or the On- going Maintenance and Support Services by submitting written notice to Vendor specifying the desired modifications. Vendor shall provide a written quote for the increased, changed or decreased Services within five (5) working days of receipt of City’s written request. Vendor shall suspend any Services following receipt of the City’s written request until fin al written agreement is reached on the requested modification. The Parties shall then negotiate in good faith any increased or decreased charges related to the requested modification. No request for modification shall be effective until a final agreement between the Parties has been reached, and either a written amendment to this Agreement, or a change order is executed by both Parties. No oral request for modification of Services shall be binding on either Party.
4.7.7 D
iscounts. Vendor shall identify applicable discounts and discount time periods from published list prices for any future Application Software or additional copies of purchased Application Software. [***TO BE ALTERED BASED ON PROCUREMENT PROCESS***] Should any discounts be announced that would normally apply to the City following the initial submission of the response, but before the Agreement is signed, the City reserves the right to take the lesser of the proposed prices or the discounted price.
4.8 A ccounting Records .
16 4.8.1 Maintenance and Inspection. Vendor shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Vendor shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Vendor shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement.
4.9 G
eneral Provisions .
4.9.1 Termination of Agreement.
4.9.1.1 Grounds for Termination. City may, by written notice to Vendor, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Vendor of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Vendor shall be compensated only for those S ervices which have been adequately rendered to City, and Vendor shall be entitled to no further compensation.
Vendor may not terminate this Agreement except for cause.
4.9.1.2 E
ffect of Termination. If this Agreement is terminated as provided herein, City may require Vendor to provide all finished or unfinished Documents & Data, as defined herein, and other information of any kind prepared by Vendor in connection with the performance of Services under this Agreement. Vendor shall be required to provide such documents and other information within fifteen (15) days of the request.
4.9.1.3 A
dditional Services . In the event this Agreement is
terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated.
4.9.2 De
livery of Notices. All notices permitted or required under this Agreement shall be given to the respective Parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
City
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: [***INSERT DEPARTMENT HEAD
TITLE OR “City Manager”***]
Vendor
[***INSERT NAME***]
[***INSERT ADDRESS***]
[***INSERT ADDRESS***]
Attn: [***INSERT NAME***]
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the Party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice
17 occurred, regardless of the method of service.
4.9.3 Ownership of Materials and Confidentiality.
4.9.3.1 Documents & Data; Licensing of Intellectual Property .
Excluding materials and data already owned by the Vendor prior to this Agreement, this Agreement creates a non- exclusive, irrevocable, and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other i ntellectual property embodied in plans, specifications, software programming, 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 digital media, including, without limitation, any Computer Aided Design and Drafting (“CADD”) data, which are prepared or caused to be prepared by Vendor under this Agreement (“Documents & Data”). Vendor shall require all subcontractors to agree in writing that City is granted a non- exclusive, irrevocable, and perpetual license for any Documents & Data, and Custom Software solutions the subcontractor prepares under this Agreement. Vendor represents and warrants that Vendor has the legal right to license any and all Documents & Data. Vendor makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Vendor or provided to Vendor by the City. City shall not be limited in any way in its use of the Documents & Data or Custom Software at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk. Any CADD data delivered to City shall not include the professional stamp or signature of an engineer, architect, or any other licensed professional, but shall be followed with a hard copy with such stamp or signature.
4.9.3.2 Co
nfidentiality. All ideas, memoranda, specifications,
plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Vendor in connection with the performance of this Agreement shall be held confidential by Vendor. Such materials shall not, without the prior written consent of City, be used by Vendor for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing furnished to Vendor which is otherwise known to Vendor or is generally known, or has become known, to the related industry shall be deemed confidential. Vendor shall not use City’s name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
4.9.3.3 I
ntellectual Property Indemnification. Vendor shall defend, indemnify, and hold harmless City, officials, officers, employees, volunteers and agents against any and all claims against City based upon allegations that Vendor has wrongfully utilized Intellectual Property of others in performing work pursuant to this Agreement or that City has wrongfully used Intellectual Property developed by Vendor pursuant to this Agreement.
18 4.9.4 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
4.9.5 A ttorney’s Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney’s fees and all other costs of such action.
4.9.6 I
ndemnification . To the extent permitted by law, Vendor shall defend, indemnify and hold the City, its officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any negligent acts or omissions or willful misconduct of Vendor, its officials, officers, employees, agents, Vendors and contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all damages and attorneys’ fees and other related costs and expenses. Vendor shall defend, at Vendor’s own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees, agents or volunteers. Vendor shall pay and satisfy any such judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal proceeding. Vendor shall reimburse City and its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Vendor’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents or volunteers
4.9.7 E
ntire Agreement . This Agreement contains the entire
Agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both Parties. If there are any conflicts in language in referenced or related agreements, the language in this Agreement shall prevail. Exhibits to this Agreement will include (if not provided for in the main Agreement) the following:
Exhibit A – Statement of Work
Exhibit B – Project Deliverables
Exhibit C – Compensation
Exhibit D – Project Plan
Exhibit E – Escrow Agreement
Exhibit F – Software License Agreement(s)
19 Exhibit G – Scope of Ongoing Maintenance
4.9.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
4.9.9 T ime of Essence. Time is of the essence for each and every provision of this Agreement.
4.9.10 C ity’s Right to Employ Other Vendors. City reserves the right to employ other Vendors in connection with this Project.
4.9.11 S uccessors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties.
4.9.12 A ssignment or Transfer . Vendor shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior written consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
4.9.13 C
onstruction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not workdays. All references to Vendor include all personnel, employees, agents, and subcontractors of Vendor, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
4.9.14 A
mendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
4.9.15 W
aiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
4.9.16 N
o Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
4.9.17 I nvalidity; Severability . If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
20 4.9.18 Prohibited Interests. Vendor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide agent of the Vendor, to solicit or secure this Agreement. Further, Vendor warrants that it has not paid, nor has it agreed to pay any company or person, other than a bona fide employee working solely for Vendor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement.
For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
4.9.19 E
qual Opportunity Employment. Vendor represents that it is an equal opportunity employer, and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
4.9.20 A
uthority to Enter Agreement. Vendor has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement.
Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
4.9.21 C
ounterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
4.10 S ubcontracting.
4.10.1 Prior Approval Required. Vendor shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
4.11 E
lectronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature.
21 SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND [***INSERT NAME***]
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
LICENSOR
CITY OF SAN BERNARDINO
APPROVED BY:
[***INSERT NAME***]
City Manager
ATTESTED BY:
[***INSERT NAME***]
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
LICENSEE
[***INSERT NAME***]
Signature
Name
Title
22 EXHIBIT A
EXHIBIT “A”
STATEMENT OF WORK
Services provided shall include all requirements specified in the Project Bid.
[***INSERT SERVICES***]
23 EXHIBIT B
EXHIBIT “B”
PROJECT DELIVERABLES
This will be the list(s) of specific software features and functions requested.
[***INSERT PROJECT DELIVERABLES***]
24 EXHIBIT C
EXHIBIT “C”
COMPENSATION
[***INSERT RATES OF COMPENSATION***]
25 EXHIBIT D
EXHIBIT “D”
PROJECT PLAN
[***INSERT SCHEDULE OF SERVICES***]
26 EXHIBIT E
EXHIBIT “E”
ESCROW AGREEMENT
If applicable, this will include any Escrow Agreement for the management of source code associated with this Agreement. [***DELETE EXHIBIT IF ESCROW NOT USED***]
27 EXHIBIT F
EXHIBIT “F”
SOFTWARE LICENSE AGREEMENTS
This will include all related software license agreements for the Application Software and Platform Software, if applicable.
1. License in Perpetuity. The license to use all the Application Software shall be irrevocable and in perpetuity and shall not require an annual license fee for continued use after the initial warranty period, and shall survive any termination of this Agreement or the provision of On-going Maintenance and Support Services.
2. R ight to Grant License; Remedies for Breach. Vendor represents and warrants to City that Vendor is the owner of the Application Software, or otherwise has the right to grant to City the rights to use of the Application Software. In the event of any breach or threatened breach of the foregoing representation and warranty, City may, at its sole discretion, require Vendor to: i) procure, at Vendor's expense, the right to use the Application Software, ii) replace the Application Software or any part thereof that is in breach and replace it with software of comparable functionality, as determined by the City, that does not cause any breach, or iii) refund to City the full amount paid by the City for the Project upon the return of the Application Software and all copies thereof to Vendor.
3. A
pplication Software Licensing Provisions
3.1 Source Code Escrow. Source code licensed for use under this License Agreement shall be protected and maintained in a source code escrow account that is kept current with all software releases, technical and user documentation so that in the event the Vendor is unable to perform according to the terms of this License Agreement by reason of bankruptcy, acquisition, or termination of the line of business operations for any other reason, the City shall be entitled to all of the then current source code, technical and user documentation so that it may continue operational use of the Application Software without Vendor restrictions. [***DELETE IF ESCROW WILL NOT BE USED***]
3.2 D isabling Code. The Vendor stipulates that there is no disabling code contained in the Application Software that would render the System unusable if certain events or actions do not occur.
3.3 B
ackup/Disaster Recovery. The City shall have the rights to install the Application Software on a backup/disaster recovery computer environment for the purposes of dynamic or static replication at a hotsite or backup data center. In the event the primary data center at which the Application Software is hosted is inoperable or otherwise unavailable, the City may use the backup version without additional licensing or other charges until the primary site is available again.
3.4 D
evelopment and Test Environments. The City shall be entitled to i nstall and configure the Application Software on additional computing environments (servers, hosts, clients) for the purpose of development and/or testing.
28 EXHIBIT F
4. Updates/Platform Protection. Vendor expressly agrees that the continuous payment for On-going Maintenance and Support Services hereunder shall entitle the City to all Updates released by Vendor (or the Application Software manufacturer), at no additional cost to the City, regardless of the operating system or database platform on which the Updates operate. Vendor shall, on a quarterly basis, make the City aware of any available Updates. Updates shall be installed only after completion, to City’s satisfaction, of reasonable testing in a City test environment. The City shall only be responsible for data conversion and/or training costs associated with the Update, which shall be at the Vendor’s then current standard rates charged to similar customers for similar services, and as shall be agreed upon in writing, in advance by the Parties.
Exhibit B
EXHIBIT “G”
SCOPE OF ONGOING-MAINTENANCE
[***INSERT SCOPE OF ON-GOING MAINTENANCE SERVICES***]
Exhibit C
[***OPTIONAL: IF FEDERAL FUNDS ARE INVOLVED, ATTACH FEDERAL FUNDING REQUIREMENTS - DELETE THIS EXHIBIT OTHERWISE***]
EXHIBIT C
FEDERAL REQUIREMENTS
[***INSERT APPLICABLE FEDERAL REQUIREMENTS – REQUIREMENTS WILL CHANGE BASED ON FUNDING SOURCE***]