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CivicPlus - 2014 AgreementC AGREEMENT FOR SERVICES (For contracts over $5,000) rd 34ry 2A14 This AGREEMENT made this 23 day of , between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONSULTANT: CivicPlus, having a principal place of business at 317 Houston St, Suite E, Manhattan, Kansas 66502. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on 06/ 1114 and will continue in effect through 613011 unless terminated in accordance with the provisions of Article 7 of this Agreement. ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONSULTANT is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONSULTANT or any employee or agent of CONSULTANT. Both parties acknowledge that CONSULTANT is not an employee for state or federal tax purposes. CONSULTANT shall not be entitled to any of the rights or benefits afforded to CITY'S employees, including, without limitation, disability or unemployment insurance, workers' compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONSULTANT shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONSULTANT A. Specific Services CONSULTANT agrees to: Perform the services as outlined in Exhibit `B" ( "Scope of Services) within the time periods described in Exhibit "C" (Deliverables and Payment Schedule). B. Method of Performing Services CONSULTANT shall determine the method, details and means of performing the above - described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONSULTANT'S services. C. Employment of Assistants CONSULTANT may, at the CONSULTANT'S own expense, employ such assistants as CONSULTANT deems necessary to perform the services required of CONSULTANT by this Agreement, subject to the prohibition against assignment and subcontracting contained in 4843 - 8575- 3109v2 MDOLINGEM04706083 -1- Article 5 below. CITY may not control, direct, or supervise CONSULTANT'S assistants in the performance of those services. CONSULTANT assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social . Security, disability insurance and other applicable withholding. D. Place of Work CONSULTANT shall perform the services required by this Agreement at any place or location and at such times as CONSULTANT shall determine is necessary to properly and timely perform CONSULTANT'S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONSULTANT, CITY agrees to pay CONSULTANT the amounts set forth in Exhibit "C" ( "Deliverables and Payment Schedule "). In no event shall the total compensation paid to CONSULTANT exceed $30,000 for the implementation. As set forth in Exhibit "C ", first year maintenance cost is paid for as part of the implementation project cost. After implementation the annual cost for maintenance for the following 2 years shall not exceed $5,000. B. Invoices CONSULTANT shall submit invoices for all services rendered. C. Payment Payment shall be due upon CITY's issuance of written Notice of Final Acceptance for each phase of the project and according to the payment schedule set forth in Exhibit "C ". No payment will be made unless CONSULTANT has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit "A ", Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONSULTANT of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. D. Expenses CONSULTANT shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by 4843-8575- 3109v2 MDOLINGER104706083 CONSULTANT, all fees, fines, licenses, bonds or taxes required of or imposed against CONSULTANT and all other of CONSULTANT'S costs of doing business. CITY shall not be responsible for any expenses incurred by CONSULTANT in performing services for CITY, except for those expenses constituting "direct expenses" referenced on Exhibit "A." ARTICLE 5. OBLIGATIONS OF CONSULTANT A. Tools and Instrumentalities CONSULTANT shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONSULTANT is not required to purchase or rent any tools, equipment or services from CITY. B. Workers' Compensation CONSULTANT agrees to provide workers' compensation insurance for CONSULTANT'S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys' fees, arising out of any injury, disability, or death of any of CONSULTANT'S employees. C. Indemnification of Liability, Duty to Defend 1. As to professional liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, to the extent arising or resulting directly or indirectly from any willful or negligent acts, errors or omissions of CONSULTANT or CONSULTANT'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. 2. As to other liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising or resulting directly or indirectly from any act or omission of CONSULTANT or CONSULTANT'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONSULTANT shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non -owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages 4843-8575- 3109v2 _3_ MDOLINGER104706083 due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof; and (b) Professional Liability Insurance (Errors & Omissions) with a minimum coverage of $1,000,000 per occurrence or claim, and $2,000,000 aggregate; provided however, Professional Liability Insurance written on a claims made basis must comply with the requirements set forth below. Professional Liability Insurance written on a claims made basis (including without limitation the initial policy obtained and all subsequent policies purchased as renewals or replacements) must show the retroactive date, and the retroactive date must be before the earlier of the effective date of the contract or the beginning of the contract work. Claims made Professional Liability Insurance must be maintained, and written evidence of insurance must be provided, for at least five (5) years after the completion of the contract work. If claims made coverage is canceled or non - renewed, and not replaced with another claims -made policy form with a retroactive date prior to the earlier of the effective date of the contract or the beginning of the contract work, CONSULTANT must purchase so called "extended reporting" or "tail" coverage for a minimum of five (5) years after completion of work, which must also show a retroactive date that is before the earlier of the effective date of the contract or the beginning of the contract work. As a condition precedent to CITY'S obligations under this Agreement, CONSULTANT shall furnish written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONSULTANT under this Agreement may be assigned or subcontracted by CONSULTANT without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONSULTANT is not CITY'S employee, CONSULTANT shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONSULTANT acknowledges and agrees that: • CITY will not withhold FICA (Social Security) from CONSULTANT'S payments; • CITY will not make state or federal unemployment insurance contributions on CONSULTANT'S behalf, • CITY will not withhold state or federal income tax from payment to CONSULTANT; • CITY will not make disability insurance contributions on behalf of CONSULTANT; • CITY will not obtain workers' compensation insurance on behalf of CONSULTANT. 4843-8575- 3109v2 _4 _ MDOLINGER104706083 ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONSULTANT and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONSULTANT'S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONSULTANT. Such assignment shall not release CONSULTANT from any of CONSULTANT'S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of Consultant's Business/ Death of Consultant. CONSULTANT shall notify CITY of the proposed sale of CONSULTANT's business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONSULTANT set forth in Exhibit "A ", Subsection V.H., no later than thirty (30) days after CITY' receipt of such notice of sale. If CONSULTANT is an individual, this Agreement shall be deemed automatically terminated upon death of CONSULTANT. B. Termination by City for Default of Consultant Should CONSULTANT default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY'S option, may terminate this Agreement by giving written notification to CONSULTANT. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONSULTANT'S failure to professionally and/or timely perform any of the services contemplated by this Agreement. 2. CONSULTANT'S breach of any of its representations, warranties or covenants contained in this Agreement. CONSULTANT shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit "C" which have been fully, competently and timely rendered by CONSULTANT. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONSULTANT'S default in the performance of this Agreement or material breach by CONSULTANT of any of its provisions, then in addition to any other rights and remedies CITY 4843 -8575- 3109v2 _5_ MDOLINGER \04706083 may have, CONSULTANT shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONSULTANT for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed -Upon Payments Should CITY fail to pay CONSULTANT all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONSULTANT, at the CONSULTANT'S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONSULTANT to CITY. D. Transition after Termination Upon termination, CONSULTANT shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONSULTANT shall cease such work as soon as it is safe to do so. CONSULTANT shall incur no further expenses in connection with this Agreement. CONSULTANT shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONSULTANT's duties by any new consultant hired by the CITY to complete such services. E. Basic Redesign Eligibility In the event of early termination of this Agreement by the CITY, CITY forfeits eligibility for the Basic Redesign (as defined in Exhibit C) and all funds applied to such eligibility and full payment of the remainder of the contract phase is due within 15 days of termination as detailed in exhibits `B" and "C ". ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONSULTANT shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 ( "the Act ") in its current form and as it may be amended from time to time. CONSULTANT shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. 4843-8575- 3109v2 MDOLINGER104706083 The CONSULTANT shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys' fees, that may arise out of any violations of the Act by the CONSULTANT, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys' Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONSULTANT shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONSULTANT agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. F. Conflict of Interest CONSULTANT certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONSULTANT and that no person associated with CONSULTANT has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. 4843 - 8575- 3109v2 _�_ MDOLINGER104706083 G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONSULTANT for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I. Notices Any notice to be given hereunder by either party to the other may be effected either by e -mail, personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit "A ", Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K. Time of the Essence All dates and times referred to in this Agreement are of the essence. 4843 - 8575- 3109v2 MDOLINGER104706083 L. Waiver CONSULTANT agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Executed at Gilroy, California, on the date and year first above written. CONSULTANT: �� C r By:\ Name: —N, fn Gkorl Title: Q�-EL�cc & sc Social Security or Taxpayer Identification Number �S - 020` i Approved as to Form City Attorney, did 4843 - 8575- 3109v2 MDOLINGER104706083 -9- CITY: GILROY Name Title: EXHIBIT "A" SPECIFIC PROVISIONS I. PROJECT MANAGER CONSULTANT shall provide the services indicated on the attached Exhibit `B ", Scope of Services ( "Services "). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONSULTANT agrees to assign , who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONSULTANT shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED /COMPLETION OF SERVICE A. NOTICE TO PROCEED CONSULTANT shall commence the Services upon delivery to CONSULTANT of a written "Notice to Proceed ", which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Jimmy Salandanan shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONSULTANT or if otherwise delivered as provided in the Section V.H. ( "Notices ") of this Exhibit "A ". B. COMPLETION OF SERVICES When CITY determines that CONSULTANT has completed all of the Services for each phase of the project as outlined in Exhibit "C" and in accordance with the terms of this Agreement, CITY shall give CONSULTANT written Notice of Final Acceptance, and CONSULTANT shall not incur any further costs for that phase of the project. The CITY shall also sign a project completion and acceptance form prior to project go -live. The date may be extended if material system or operational failures are encountered. Immediately after the website goes live the final bill for the project development services will be billable and payable. All Parties agree that the website will not go -live until the project is accepted in writing by the CITY. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit "C ". 4843 -8575- 3109v2 1_ MDOLINGER104706083 r IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement. Direct expenses are charges and fees not included in Exhibit "C ". CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONSULTANT shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONSULTANT represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONSULTANT'S representations and warranties regarding its skills, qualifications and licenses. CONSULTANT shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well- organized, technically and grammatically correct, checked, and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONSULTANT CONSULTANT shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONSULTANT shall not be responsible for the accuracy of any project or technical information provided by the CITY. By signing the project acceptance form, the CITY agrees that the CONSULTANT has meet the requirements of the PROJECT at that time your website will go -live. Upon completion of the development of the site, CITY will assume full responsibility for website content maintenance and content administration. CITY, not CONSULTANT, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Content. The CITY'S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONSULTANT shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONSULTANT'S negligent performance of any of the services furnished under this Agreement. 4843 - 8575- 3109v2 2_ MDOLINGER104706083 C. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of verifying any and all charges made by CONSULTANT in connection with this Agreement. CONSULTANT shall maintain for a minimum period of three (3) years (from the date of final payment to CONSULTANT), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONSULTANT, all of which shall be made available to CITY at the CITY's offices within five (5) business days after CITY's request. D. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONSULTANT and all other written and oral information developed or received by or for CONSULTANT and all other written and oral information submitted to CONSULTANT in connection with the performance of this Agreement shall be held confidential by CONSULTANT and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONSULTANT which is otherwise known to CONSULTANT or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONSULTANT'S disclosure thereof) shall be deemed confidential. CONSULTANT shall not use CITY'S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY, except as noted below. • The CITY will work with the CONSULTANT's Marketing Department to make a reasonable attempt to gather information and meet deadlines associated with website award contest entries throughout the term of this agreement, and to create a case study related to their website. • The CITY permits CONSULTANT to include an example of the CITY's home page and a link to the CITY's website on the CONSULTANT corporate website. • The CITY will make a reasonable attempt to work with the CONSULTANT Marketing Department to create a news item to be released in conjunction with their project Go -Live date. • The CITY will provide CONSULTANT with contact information for local and regional media outlets. CONSULTANT may use the press release in any marketing materials as desired throughout the term of this Agreement. • The CITY allows CONSULTANT to display a "Government Websites by CivicPlus" insignia, and web link at the bottom of their web pages. The CITY understands that the 4843-8575- 3109v2 3- MDOLINGER104706083 pricing and any related discount structure provided under this agreement assumes such perpetual permission. E. NO PLEDGING OF CITY'S CREDIT. Under no circumstances shall CONSULTANT have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. F. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONSULTANT may retain and use copies thereof subject to Section V.D of this Exhibit "A ". CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. Provided the Client's account is current, at any time the Client may request an electronic copy of the website graphic designs, the page content, all module content, all importable /exportable data, and all archived information ( "Customer Content "). Client agrees to pay $250 per completed request. Provided the Client's account is current, upon termination of services Client may request a complimentary electronic copy of website Customer Content. Upon full and complete payment of submitted invoices for the Project Development and launch of the website, The CITY will own the Customer Content. Upon completion of the development of the site, CITY will assume full responsibility for website content maintenance and content administration. CITY, not CONSULTANT, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Content. The CITY shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the GCMS® software in any way; (ii) modify or make derivative works based upon the GCMS® software; (iii) create Internet "links" to the GCMS® software or "frame" or "mirror" any GCMS® administrative access on any other server or wireless or Internet -based device; or (iv) reverse engineer or access the GCMS® software in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the GCMS® software, or (c) copy any ideas, features, functions or graphics of the GCMS® software. The CONSULTANT name, the CONSULTANT logo, and the product and module names associated with the GCMS® software are trademarks of CONSULTANT, and no right or license is granted to use them. 4843 -8575- 3109v2 4_ MDOLINGER104706083 G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. H. NOTICES. Notices are to be sent as follows: CITY: Jimmy Salandanan City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONSULTANT: CivicPlus 317 Houston St, Suite E, Manhattan, Kansas 66502 I. FEDERAL FUNDING REQUIREMENTS. ❑ If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply. ® If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. 1. DBE Program CONSULTANT shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City- adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONSULTANT warrants that he /she has not employed or retained any company or person, other than a bona fide employee working for the CONSULTANT, to solicit or secure this Agreement, and that he /she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or 4843. 8575- 3109v2 5- MDOLINGER104706083 consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 48438575- 3109v2 6_ MDOLINGER104706083 EXHIBIT `B" SCOPE OF SERVICES CONSULTANT agrees to provide the CITY with the following products and services: 1. Creation and redesign of a new internet website for the CITY. 2. Migration of the existing CITY internet site and sub - folders contents to the new internet site. 3. CONSULTANT will provide unlimited telephone support Monday- Friday, 7:00 am — 7:00 pm (Central Time) excluding holidays, for all trained The CITY staff. Emergency Support is provided on a 24/7/365 basis for emergency contacts named by the CITY. The CITY is responsible for providing CONSULTANT with contact updates. 4. Support includes providing technical support of the GCMS® software, application support (pages and modules), and technical maintenance of the CITY's website. Following initial setup, additional page design, graphic design, user training, site modification, and custom programming may be contracted separately for an additional fee. 5. During the period of this agreement and subsequent annual renewals, CONSULTANT warrants that it will, without additional charge to the CITY, take action to correct any problems or defects discovered in the GCMS® software and reported to CONSULTANT by the CITY, such warranty to include ongoing maintenance upgrades and technical error correction. 6. CONSULTANT provides online website statistics software at no extra charge. If The CITY desires to use other website statistic software, CONSULTANT will provide the necessary log file access. Additional Services 7. The CITY may contract with CONSULTANT for additional Consulting, Website Design, Setup, Programming, site modification, Training services (Project Development Services), additional Graphic Design that exceed those defined in Exhibit "C ". CONSULTANT will invoice The CITY for the additional services immediately prior to project Go -Live. Services that involve billable time beyond the contracted amount will be documented and invoiced. Written approval by the CITY is necessary before billable time is incurred. 8. The CITY may contract with CONSULTANT for additional Annual Services that exceed those defined in Exhibit "A ". CONSULTANT will invoice the CITY for Annual Services immediately prior to project Go -Live. Modules that incur additional usage fees may be purchased and activated at any time. 9. Acceptance of this Agreement signifies the CITY's approval of any billable time specifically related to training services as detailed in Exhibit "C ", wherein a stated number 4843-8575- 3109v2 _ MDOLINGER104706083 7 of attendees is specified. Coverage for additional attendees not covered under this agreement is billed at a per diem rate specified in Exhibit `B ". The initial installation of the CITY website and WCMS will have the following modules, functionalities, features and support structure: Features and Functionality: Modules • Agenda Center • Alerts Center & Emergency Alert Notification • Archive Center • Bid Postings • Blog • Business /Resource Directory • Calendar • Carbon Calculator • Citizen Request TrackerTm (5 users) • Community Connection • Community VoiceTM • Document Center • ePayment Center • Facilities & Reservations with Activities • Frequently Asked Questions • Forms Center • Healthy City • Intranet • Job Postings • My Dashboard • News Flash • Notify Me® with CivicSend Email & 500 SMS Text Subscription • Online Job Application with 1 Generic Application • Opinion Poll • Photo Gallery • Postcard • Quick Links • Real Estate Locator • Spotlight • Staff Directory Functionality • Action Items Queue • Audit Trail / History Log • Automated PDF Converter • Automatic Content Archiving • Content Library • Dynamic Breadcrumbs • Dynamic Sitemap • Expiring Items Library • Generic Mobile App (iOS & Android) • Graphic Link Administration • Links Redirect and Broken Links Finder • Menu Management • Mouse -over Menu Structure • MuniMobileTm • Online Editor for Editing and Page Creation (WYSIWYG) • Online Web Statistics (Only With CivicPlus Hosting) • Printer Friendly /Email Page • Rotating Content • RSS • Search Engine Registration • Site Layout Options • Site Search & Entry Log • Slideshow • Social Media Integration (Facebook & Twitter) • User & Group Administration Rights • Web Page Upload Utility • Website Administrative Log Support Features: Support Maintenance of CivicPlus Hosting 7 a.m. — 7 p.m. (CST) Monday — Friday (excluding holidays) 24/7 Emergency Support Dedicated Support Personnel Application & Modules Install Service Patches for OS Upgrades Fixes Improvements 4843575- 3109v2 MDOLINGER104706083 g- Shared Web /SQL Server DNS Consulting & Maintenance Monitor Bandwidth- Router Traffic Redundant ISP 2 -hour Response During Normal Hours Usability Improvements Integration New & Upgraded Services Proactive Support for Updates & Fixes Online Training Manuals Monthly Newsletters Phone Consulting CivicPlus Integration Testing Development Usage License 4843 - 8575- 3109v2 9_ MDOLINGER104706083 Redundant Cooling Diesel Powered Generator Daily Tape Backup Intrusion Detection & Prevention Antivirus Protection Upgrade Hardware EXHIBIT "C" DELIVERABLES AND PAYMENT SCHEDULE Delivery dates listed below are approximate. The final delivery dates will be determined by mutual agreement of the consultant and the City. WEBSITE MIGRATION AND HOSTING — INITIAL YEAR Descrlptiori a Deliverables Dellery Dates Payments Schedule, R �UprrnWtttierr Notice of 'i7' b 4 k i ff I 1 �i .71._ 111,_ III .. 1 6, Nf. x J G e�.44tiid'^ LS2 5ni i�^ 3v�d a_ ti"S ^i n.� d J�.� y - �a.�b� ._ f 3.- g_ � g Kick -off Meeting 1.Project schedule July 2014 2.Training jump start 3.W orksheets Phase I - Consulting 1.Needs assessment, best July 2014 $5,000 practices 2.W orksheets Phase II — Website Preview 1.Website layout and mood August 2014 Presentation board presentation for CITY's approval. Phase III — Website Reveal 1.Completed website design September 2014 $10,000 Presentation & navigation structure presentation for CITY's approval. Note: CITY can still recommend changes towards the final website design. 2-Final website design & navigation structure presentation for CITY's approval Phase IV — 3 Days of 1.System Administrator(s) October 2014 $10,000 Customized onsite Training training on GCMS® for up to 12 employees. Administration, permissions, setting up groups and users, module administration. 2.13asic User training on pages, module entries, applying modules to pages. Note: CONSULTANT will apply use and usability consulting to bring out effective communication 10 4843 -8575- 3109v2 Printed: 612012014 9:30:36 AM MDOLINGER104706083 :Each project phase is considered complete and billable upon CITY's issuance of a written Notice of Final Acceptance as noted in Article 4, Section C of this agreement. $5,000 of the total First Year Fee will be billed upon completion of Phase 1 - Consulting. $10,000 of the total First Year Fee will be billed upon completion of Phase 3 - Website Reveal Presentation. $10,000 of the total First Year Fee and any additional Project Development services will be invoiced after Phase 4 - Customized Website Training has been completed. The remainder of the total First Year Fee and any additional Project Development services will be invoiced after Phase 5 - Go -Live. Total First Year invoices are due by the first of the following month, but no later than 30 days from invoice date. Project Development will be discontinued if payment is not made within 30 days after the invoice due date. The CITY will be invoiced electronically through email. Upon request CONSULTANT will mail invoices and the CITY will be charged a $5.00 convenience fee. Unless otherwise limited by law, a finance charge of 2.9 percent ( %) per month or $5.00, whichever is greater, will be added to past due accounts. Payments received will be applied first to finance charges, then to the oldest outstanding invoice(s). 11 4843- 8575- 3109v2 Printed: 6/2012014 9:30:36 AM MDOLINGER104706083 through your website. Phase V — Go -live 1.Content migration from November 2014 $5,000 current primary site to new site based on best practices. 2. Final custom website with updated content. 3. Final site registration with major search engines. 4. Google Translation Tool added feature at no additional cost. Note: Content from sites other than the primary site can be migrated to the new primary site for an additional fee. First year website hosting 0 and maintenance cost Total First Year Cost $30,000 :Each project phase is considered complete and billable upon CITY's issuance of a written Notice of Final Acceptance as noted in Article 4, Section C of this agreement. $5,000 of the total First Year Fee will be billed upon completion of Phase 1 - Consulting. $10,000 of the total First Year Fee will be billed upon completion of Phase 3 - Website Reveal Presentation. $10,000 of the total First Year Fee and any additional Project Development services will be invoiced after Phase 4 - Customized Website Training has been completed. The remainder of the total First Year Fee and any additional Project Development services will be invoiced after Phase 5 - Go -Live. Total First Year invoices are due by the first of the following month, but no later than 30 days from invoice date. Project Development will be discontinued if payment is not made within 30 days after the invoice due date. The CITY will be invoiced electronically through email. Upon request CONSULTANT will mail invoices and the CITY will be charged a $5.00 convenience fee. Unless otherwise limited by law, a finance charge of 2.9 percent ( %) per month or $5.00, whichever is greater, will be added to past due accounts. Payments received will be applied first to finance charges, then to the oldest outstanding invoice(s). 11 4843- 8575- 3109v2 Printed: 6/2012014 9:30:36 AM MDOLINGER104706083 Annual Service rates for web site hosting and product maintenance are outlined below. Starting in year 3, each year this Agreement is in effect, a technology investment and benefit fee of 5 percent ( %) of the total Annual Services costs will be applied. ANNUAL WEBSITE HOSTING AND MAINTENANCE COST �''`.._�il q u I,I; „Illp',VI,' a °j11 N' P tl11.v A n� ttdl i� �};•'I �"4�� t��NGa � k a�i^�i � r I ; :- I al �'IIP � hw�lll 67:0�i i ig �k ii:. %I r� .,s. ,��trJ1 U11 '„ x,11 yI 1, a;I!lti�Ir: �J{ N''a3 d r I.iil NrvINII v MM �II �i`C NF 11 N} di J'� {� N I• "i T � 11�II . ppd'��tu pr6lp 1'6g�i / f�, L ip�mJ'. S' i 'fr �1?.ifiB V �i , I'i- 101 I� d'.'a' 411 v 14�h`'a' .sr f First Year of Implementation $ 0 Next 2 year Not to exceed $5,000 Invoicing for Year 2 Annual Services begins one (1) year from contract signing. This contract shall remain in effect for a period of one year (12 months) from signing. In the event that neither party gives 60 days' notice prior to the end of the initial or any subsequent term, this Agreement will automatically renew for an additional contract term. After 48 consecutive months under the terms of this contract and associated pricing, CITY will be fully eligible for a Basic Redesign at no additional cost. 12 4843. 8575- 3109v2 Printed: 612012014 9:30:36 AM MDOLINGER104706083 REDESIGN DETAILS After 48 consecutive months under these terms and associated pricing, the CITY becomes fully eligible for a Basic Redesign at no additional cost. • New design • Redevelop banner • Redevelop navigation method (may choose top drop -down or other options) • Design setup - wireframe • Redevelop graphic elements of website (Newsflash, FAQs, Calendar, etc.) • Project Management • Testing • Review • Content Migration — Includes retouching of all existing published pages to ensure proper formatting, menu structure, and application of new site styles. Note: Content will not be rewritten, reformatted or pages broken up (shortened or re- sectioned) • Site styles and page layouts will be touched so all pages match the new design and migrate cleanly • Spelling and broken links will be checked and reported if unable to correct 13 4843 - 8575- 3109v2 Printed: 612012014 9:30:36 AM MDOLINGER104706083 AC40R °® CERTIFICATE OF LIABILITY INSURANCE DATE {MMIDD /YYYY) 5/28/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). _ PRODUCER Charlson- Wilson Insurance 555 Poyntz Avenue, Suite 205 P.O. BOX 1989 Manhattan KS 66505 -1989 BAMONTACT E: Brooke Steiner N PHONE (7$5) 537 -1600 FAX (785)537 -1657 IAIC AM E SS: bsteiger @charlsonwil son. colh' INSURERS AFFORDING COVERAGE NAIC # INSURERA:Sentinel Insurance Coma an ,LTD 11000 INSURED ICON ENTERPRISES INC D /B /A NETWORK PLUS AND CIVICPLUS 317 HOUSTON STREET MANHATTAN KS 66502 INSURERS :Twin City Fire Insurance Co. 29459 INSURER C:Hartford Fire Insurance Co. 19682 INSURER 0: INSURER E: $ 2,000,000 INSURER F: $ 1,000,000 COVERAGES CERTIFICATE NUMBER:2014 -15 Master Cart REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE POLICY NUMBER _ MMIDDIYYYY MM%DD/YYYY LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 2,000,000 DAMAGE TO RENTED PREMISES Ea occurrence $ 1,000,000 X COMMERCIAL GENERAL LIABILITY MED EXP (Any one person) $ 10,000 A CLAIMS- MADE7XOCCUR X 37SBAAMS566 5/17/2014 5/17/2015 PERSONAL & ADV INJURY $ 2.000,000 GENERAL AGGREGATE $ 4, 000, 000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 4,000,000 $ X 'POLICY PRO- LOC. JECT AUTOMOBILE LIABILITY EOeBcINdEeD(SINGLE'LIMIT 11000,000 BODILY INJURY (Per person) $ A X ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS NON -OWNED HIRED AUTOS AUTOS X 7UECTZ7974 5/17/2014 15/17/2015 BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident $ PIP -Basic $ UMBRELLA LIAR OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS UAB CLAIMS -MADE DED RETENTION $ WORKERS COMPENSATION X WC STATU- DTH- AND EMPLOYERS' LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? (Mandatory in NH) N/A 7WECPA9652 /17/2014 /17/2015 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY. LIMIT $ 11000,000 If es, describe under DESCRIPTION OF OPERATIONS below C Technology E &O X 00 TE 0277079 -14 1/1/2014 1/1/2015 Each Glitch Limit $3,000,000 Claims Made etroActiveDate:7 /31/2006 Aggregate Limit $3,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, H more space is required) City of Gilroy, its officers and employees are additional insureds with respects to the General Liability policy as required by written contract. City of Gilroy 7351 Rosanna Street Gilroy, CA 95050 tLLA SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. ' Brooke Steiger /TAL;� ©1988 -2010 ACORD CORPORATION. All rights reserved. INSn25 rornnnr,i of Tho Armor nama nn,l Inn^ nra ranicfararl mnrkc of annpn POLICY NUMBER: 37 SBA AM8566 4p �y THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: BUSINESS LIABILITY COVERAGE FORM SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): City of Gilroy,Its Officer and Employees 7351 Rosanna Street,Gilroy, CA 950 Location(s) Of Covered Operations: 7351 Rosanna St, Gilroy, CA 95050 Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section C. — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. Form SS 4170 06 11 Process Date: 07/21/14 B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "properly damage" occurring after. 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. Page 1 of 1 Policy Expiration Date: 05/07/15 © 2011, The Hartford (Includes copyrighted material of Insurance Services Office, Inc., with its permission) POLICY NUMBER: 37 SBA AM8566 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: BUSINESS LIABILITY COVERAGE FORM SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): City of Gilroy,Its Officer and Employees 7351 Rosanna Street,Gilroy, CA 950 Location(s) Of Covered Operations: 317 Houston St, Manhattan, KS 66502 Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section C. — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. Form SS 4170 06 11 Process Date: 07/21/14 B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after. 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. Page 1 of 1 Policy Expiration Date: 05/07/15 © 2011, The Hartford (Includes copyrighted material of Insurance Services Office, Inc., with its permission)