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HomeMy WebLinkAboutContracts & Agreements_166-2017 AGREEMENT TO FURNISH LABOR COMPLIANCE REVIEW SOFTWARE This agreement for the provision of a license and related services ("Agreement") is made and entered into this 24th day of July, 2017 ("Effective Date"), by and between the City of Redlands, a municipal corporation ("City") and LCPtracker, Inc ("Consultant") City and Consultant are sometimes individually referred to herein as a "Party" and, together, as the "Parties" In consideration of the mutual promises contained herein, City and Consultant agree as follows ARTICLE 1 —ENGAGEMENT OF CONSULTANT I I City hereby engages Consultant to provide licensed software and hosting services (the "Services") referenced herein for the City 1 2 The Services shall be performed by Consultant in a professional manner, and Consultant represents that it has the skill and the professional expertise necessary to provide the Services to City at a level of competency presently maintained by other, practicing professional consultants in the industry providing like and similar types of such Services ARTICLE 2—LICENSE 2 1 Consultant hereby grants to City a non-exclusive,revocable, limited license to use software owned by Consultant Such software is named"LCPtracker" ("Licensed Software") The Licensed Software can only be used as delineated in this Agreement 22 Consultant may, with or without court approval, revoke this license, if City materially violates the Agreement in any way 23 Any right not expressly granted by this Agreement shall not be implied,the license granted pursuant to this Agreement permits only the use of the Licensed Software, as expressly delineated in this Agreement 24 The license granted herein is operative foi up to three years, commencing upon the Effective Date of this Agreement 25 The Parties agree, and Consultant warrants, that Consultant is the exclusive owner of the Licensed Software Consultant furthei warrants that it has full authority to grant this I icense 26 City acknowledges that the source code, and anything else that underlies the Licensed Software, including without limitation, underlying ideas, underlying algorithms, undei lying concepts, underlying procedures, underlying processes, underlying piinciples, and underlying methods of operates are trade secrets, which belong to Consultant To the extent that City may ever learn any of the foregoing, City agrees to never communicate the same to any individual of entity, except as may be required by law 27 City may not sublease,assign,transfer, loan,hypothecate,or in any other way allow anyone other than City to use the Licensed Software, without Consultant's express, written permission I I 1cakdyn\Agreements%LPC Tracker labor compliance software agreement.doex 28 Confidential Information Herein "Confidential Information" means data that is, or is somehow, related to financial, accounting, statistical, personal, goal-related, need-related, strategic-plan-related, account, insurance-related, other proprietary-related, and/or personnel data of any entity/individual with which LCPtracker ever has had any dealings,and any entity/individual related to such, inclusive without limitation of any employee of such, and of any entity/individual with which such has ever had a business/contracting relationship City promises that it will never disseminate, distribute, share, copy, send, or in any other manner of communicate, and that it will never allow anyone else to disseminate,distribute, share, copy, send, of in any other manner of communicate Confidential Information to anyone other than someone who absolutely must have such Confidential Information in order for the services defined herein to operate 29 City assumes all risks associated with City and/or anyone who has accessed Confidential Information through, because, or by way of City, disseminating, distributing, sharing, copying, sending, or in any other manner communicating any Confidential Information to anyone othei than as such is absolutely necessary in oder for the service defined in this agreement to operate ARTICLE 3 —SERVICES 3 1 The Services that Consultant shall provide are delineated in Exhibit"A,"entitled"Services and Rate Schedule,"which is incorporated into this Agreement 32 Consultant shall perform and complete the Services in a prompt and diligent manner ARTICLE 4—RESPONSIBILITIES OF THE CITY 41 City shall make available to Consultant information in its possession that may assist Consultant in performing the Services 42 City designates Chits Diggs, City's Municipal Utilities and Engineering Department Directoi, as City's representative with respect to performance of the Services, and such person shall have the authority to transmit instructions, receive information, interpret and define City's policies and decisions with respect to performance of the Services ARTICLE 5—PAYMENTS TO CONSULTANT 5 1 City shall pay Consultant a not to exceed sum of thirty nine thousand dollars ($39,000) as compensation for the license mentioned herein and the associated Services City shall pay Consultant in accordance with Exhibit"A " 52 Any notice of other communication required, or which may be given, pursuant to this Agreement, shall be in writing Any such notice shall be deemed delivered (i) on the date of delivery in person,(ii) five(5)days after deposit in first class registered mail,with return receipt requested, (iii) on the actual delivery date if deposited with an overnight courier; of (iv)on the date sent by facsimile, if confirmed with a copy sent contemporaneously by first 2 11ca\djm\Agreements\LPC Tracker labor compliance software agreement.doex class, certified, registered or express mail, in each case properly posted and fully prepaid to the appropriate address set forth below, or such other address as a Party may provide notice in accordance with this section city LCPtracker Chris Diggs, Director Mark Douglas, President Municipal & Engineering Department LCPtracker, Inc. City of Redlands P O Box 187 35 Capon Street, Suite 15A Orange, CA 92856 P O Box 3005 (mailing) Redlands, CA 92373 Such addresses may be changed by notice to the other Party given in the same manner as provided above ARTICLE 6—INSURANCE AND INDEMNIFICATION 6 1 Insurance required by this Agreement shall be maintained by Consultant for the duration of its performance of the Services Consultant shall not perform any Services unless and until the required insurance listed below is obtained by Consultant Consultant shall provide City with certificates of insurance and endorsements evidencing such insurance prior to commencement of the Services Insurance policies shall include a provision prohibiting cancellation or modification of the policy except upon thirty (30) days prior written notice to City. 62 Workers' Compensation and Employer's Liability insurance in the amount that meets statutory requirements with an insurance carrier acceptable to City, or certification to City that Consultant is self-insured of exempt from the workers' compensation laws of the State of California Consultant shall provide City with Exhibit "B," entitled "Workers' Compensation Insurance Certification," which is attached hereto and incorporated herein by this reference prior to performance of the Services 63 Consultant shall secure and maintain comprehensive general liability insurance with carriers acceptable to City Minimum coverage of One Million Dollars ($1,000,000) pei occurrence and Two Million Dollars ($2,000,000) aggregate foi public liability, property damage and personal injury is required City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self-insurance maintained by City 6.4 Consultant shall secure and maintain professional liability insurance throughout the term of this Agreement in the amount of One Million Dollar, ($1,000,000)pei claim made 65 Consultant shall have business auto liability coverage,with minimum limits of One Million Dollars ($1,000,000) per occurrence, combined single limit bodily injury liability and property damage liability This coverage shall include e.11 Consultant owned vehicles used in connection with Consultant's provision of the Services, hired and non-owned vehicles, and employee non-ownership vehicles City shall be named as an additional insured and 3 1 1ca\djmlAgreements\LPC Tracker labor compliance software agreementAcex such insurance shall be primary and non-contributing to any insurance of self-insurance maintained by City 66 Consultant shall defend, indemnify and hold harmless City and its elected officials, employees and agents from and against any and all claims, losses or liability, including attorneys' fees, arising from injury or death to persons or damage to property occasioned by and negligent act or omission by,or the willful misconduct of,Consultant,of its officers, employees and agents in performing the Services 67 City agrees to indemnify Consultant for any claim,judgment, inunction,damages,attorney fees, litigation expenses, settlement,or any other loss that results from City of anyone who has accessed Confidential Information through, because, or by way of, City disseminating, distributing, sharing, copying, sending, or in any other manner communicating any Confidential Information to anyone other than as such is absolutely necessary in order for the license identified in this Agreement to operate The indemnity described herein is owed from the moment that a claim is made, outside of a lawsuit or in a lawsuit ARTICLE 7—CONFLICTS OF INTEREST 71 Consultant covenants and represents that it does not have any investment of interest in any real property that may be the subject of this Agreement or any other source of income, interest in real property or investment that would be affected in any manner or degree by the performance of Consultant's services Consultant further covenants and represents that in the performance of its duties hereunder,no person hai ing any such interest shall perform any Services undei this Agreement 72 Consultant agrees it is not a designated employee within the meaning of the Political Reform Act because Consultant- A Does not make a governmental decision whether to (i) approve a rate, rule or regulation, or adopt or enforce a City law, (ii) issue, deny, suspend or revolve any City permit, license, application, certification, approval, ordei of similar authorization or entitlement, (iii) authorize the City to enter into, modify of renew a contract, (iv) grant City approval to a contract that requires City approval and to which City is a party, or to the specifications for such a contract; (v) grant City approval to a plan, design, report, study or similar item; (vi) adopt of grant City approval of,policies, standards or guidelines foi City or foi any subdivision thereof K Does not serve in a staff capacity with City, participate in making a governmental decision or otherwise perform the same of substantially the same duties for City that would otherwise be performed by an individual holding a position specified in City's Conflict of Interest Code under Government Code section 87302 4 11caldjtnlAgreements\LPC Tracker labor compliance soifivare agreement,doox 73 In the event City officially determines that Consultant must disclose its financial interests, Consultant shall complete and file a Fair Political Practices Commission Form 700, Statement of Economic Interests, with the City Cleric's office pursuant to the written instructions provided by the City Clerk ARTICLE 8—GENERAL CONSIDERATIONS 81 In the event any action is commenced to enforce or interpret any of the terms or conditions of this Agreement the prevailing Party shall, in addition to any costs and other relief, be entitled to the recovery of its reasonable attorneys' fees, including fees foi the use of in- house counsel by a Party 82 Consultant shall not delegate any of the Services mentioned in this Agreement,except with the prior written approval of City and in strict compliance with the terms and conditions of this Agreement 83 Consultant is for all purposes under this Agreement an independent contractol and shall perform the Services as an independent contractol Neither City nor its agents shall have control over the conduct of Consultant or Consultant's employees, except as herein set forth Consultant shall supply all necessary tools and instrumentalities required to perform the Services Assigned personnel employed by Consultant are for its account only, and in no event shall Consultant or personnel retained by it be deemed to have been employed by City of engaged by City for the account of, or on behalf of, City Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent, nor shall Consultant have any authority, express of implied, to bind City to any obligation 84 Unless earlier terminated as provided foi below, this Agreement shall terminate upon completion and acceptance of the Services by City. This Agreement may be terminated by City, in its sole discretion, by providing not less than five (5) days prior written notice to Consultant (delivered by certified mail, return receipt requested) of City's intent to terminate If this Agreement is terminated by City, an adjustment to Consultant's compensation shall be made, but (1) no amount shall be allowed for anticipated profit of unperformed Services,and (2) any payment due Consultant at the time of termination may be adjusted to the extent of any additional costs to City occasioned by any default by Consultant 85 Consultant shall maintain books, ledgers, invoices, accounts and other records and documents evidencing costs and expenses related to the services for a period of three (3) years,of foi any longer period required by law,from the date of final payment to Consultant pursuant to this Agreement Such books shall be available at reasonable times for examination by City at the office of Consultant 86 This Agreement, including the Exhibits incorporated herein by reference, represents the entire Agreement and understanding between the Parties as to the matters contained herein, and any prior negotiations, written proposals or verbal agreements relating to such matters are superseded by this Agreement Any amendment to this Agreement shall be in writing, approved by City and signed by City and Consultant 5 1 lcald}m\Agreementsli.PC Tracker labor compliance software agreementAm, 87 This Agreement shall be governed by and construed in accordance with the laws of the State of California 88 If one or more of the sentences, clauses,paragraphs or sections contained in this Agreement is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the rernaindoi of this Agreement and shall not affect, impa>i or invalidate the remaining sentences, clauses, paragraphs or sections contained herein, unless to do so would deprive a Party of a material benefit of its bargain under this Agreement, 89 Consultant shall comply with all applicable federal, state and local laws and regulations in the performance of this Agreement including, but not limited to, The Americans with Disabilities Act and the Fair Employment and Housing Act 6 1 1ca\djm\Ag7cements\LPC Tracker labor compliance software agreemerntdocn IN WITNESS WHEREOF, duly authorized representatives of City and Consultant have signed in confirmation of this Agreement CITY OF REDLANDS LCPTRACKER, INC Byl/�.r ' By maul W Foster, Mayor Mark Douglas, Presi ent IoOAttest � ne Donaldson, City Clerk 7 I 1ca\djmlAgreementslLPC Tracker labor compliance software agreement.docx