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HomeMy WebLinkAboutQuetel Inc; 2013-05-29;AMENDMENT NO. 1 TO EXTEND AND AMEND AGREEMENT FOR SUPPORT SERVICES QUETEL, INC. mendment No.1 is entered into and effective as of the l tJtf' day of -::-:--:-:--:-:--4----!....!o<:...-¥---:::-----' 2016, extending and amending the agreement dated May 29, 2013 (the 'Agree ent") by and between the City of Carlsbad, a municipal corporation, ("City"), and Quetel, Inc., ("Contractor") (collectively, the "Parties") for support services. RECITALS A. The Parties desire to alter the Agreement's scope of work to change the Quetel phone numbers to be contacted by the City to obtain support service after normal business hours and to extend and fund the Agreement for a period of _three years; and B. The Parties desire to extend the Agreement for a period of three years; and C. The Parties have negotiated and agreed to a supplemental scope of work and fee schedule, which is attached to and incorporated in by this reference as Exhibit "A-1 ", Scope of Services and Fee. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. That the Agreement, as may have been amended from time to time, is hereby extended for a period of three years ending on May 29, 2019. 2. In addition to those services contained in the Agreement, Contractor will provide those services described in Exhibit "A-1". 3. City will pay Contractor for services as specified in Exhibit "A-1 ". 4. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 5. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. Ill Ill Ill Ill City Attorney Approved Version 1/30/13 5. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. ,,/' (sign here) t Jar;;es R. Cleaveland I President (print name/title) By: ,/ (sign here) ) Laura Campbell/ Secretary (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By:~ City Manager or1JFaY'6'r or Director ATTEST: BAR ARA ENGLESON City Clerk If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. ~REWER, 'Ci~ Attorney . "~~c.~;c_ ;] BY. C7c <=- ~ JJ. , Assistant City Attorney City Attorney Approved Version 1/30/13 2 EXHIBIT "A-1" SCOPE OF SERVICES AND FEE Service will be provided by the Contractor as defined in the original Agreement for an annual fee of $14,475. The following contact numbers for priority one failures are updated as follows: 1. If the City experiences a priority one failure that occurs outside of contractor business hours, City will contact Contractor at 202-651-0958. 2. If the City experiences a priority one failure that occurs during contractor business hours, City will contact Contractor at 800-354-6777 (Option 2 for support) City Attorney Approved Version 1/30/13 3 General Receipts BUSLIC -BUS LICENSE license#: 1230701 last Name: QUETEl CORPORATION Address: 14100 SUllYFIElD CIR STE 700 City/St: CHANTillY,\! Zip: 20151-1668 Amt: 1@81.17 Sub Total: 81.17 Tot: 81.17 Srce: Walk-In <149/1#10-1> 1610601-215Apr1610:09AM 81.17 *0011 * 11TEMS: AMT DUE $81.17 Card#:************8747 Auth#: 07869G Action: Sale 81.17 Credit Card AGREEMENT FOR SOFTWARE SUPPORT SERVICES QUETEL, INC. THIS AGREEMENT is made and entered into as of the ~C[-Ift day of f(\ a. , 2013, by and between the CITY OF CARLSBAD, a municipal corporation, 'City"), and Quetel, Inc., a corporation organized and existing under the laws of the Commonwealth of Virginia, (hereinafter "Quetel" or "Contractor"). RECITALS A. The City issued a Request for Proposals for an electronic Police Evidence System and Quetel, Inc. was awarded the contract. The Police Evidence System was successfully installed, tested, and accepted by City. After the warranty period concluded, the Police Evidence System is maintained and software is upgrade pursuant to an annual maintenance agreement. Quetel is most qualified to maintain the City's Police Evidence System pursuant to an annual maintenance agreement. B. Quetel has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of three (3) years from the date first above written so long as the City needs the services of Contractor and funds are appropriated on an annual basis to fund the second and third year of this Agreement. The City Manager may amend the Agreement to extend it for one additional three year period or parts thereof in an amount not to exceed fourteen thousand four hundred and seventy five dollars ($14,475) per Agreement year. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and annual appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total not-to-exceed fee payable for the Services to be performed during the initial Agreement term will be fifty one thousand eight hundred and sixty seven dollars ($51 ,867). The total fee will be paid in three annual payments of $17,289 each per Agreement year on the first City Attorney Approved Version 1/30/13 day of June of each subsequent Agreement year. Annual payments will be made based upon a satisfactory review of Contractor's performance, appropriation of funds by the City council and determination of the City's need for support services. No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax with holdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys' fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE City Attorney Approved Version 1/30/13 2 Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII". OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 1 0.1.1 Commercial General Liability Insurance. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 1 0.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 1 0.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 1 0.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1 ,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. City's Initials Contractor's Initials D If box is checked, Professional Liability Insurance requirement is waived. 10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 1 0.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 1 0.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 1 0.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. City Attorney Approved Version 1/30/13 3 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will 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. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City Name Maria Callander Title Public Safety IT Manager Department __.P .... o.;;.;l~ic;.;:;e.__ _____ _ City of Carlsbad Address 2560 Orion Way Phone No. (760) 931-2176 For Contractor Name James Cleaveland Title President Address 141 00 Sullyfield Circle, Suite 100 Chantilly, VA 20151 Phone No. (800) 354-6777 Email jcleaveland@guetel.com City Attorney Approved Version 1/30/13 4 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (1 0) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. City Attorney Approved Version 1/30/13 5 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor 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 making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. City Attorney Approved Version 1/30/13 6 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR 6"4nze, tJ2 C-c~ (print name/title) 'rRe.> 1 o e-"-r By~c£ ~,Jtu__Q (sign here) f - CITY OF CARLSBAD, a municipal corporation of the State of California BARBARA ENGLESON ~ft--~ ~p~GLc . CityCierk Pi~titl~~.uc(' If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s · ing to bind the corporation. torney 7 JAI D. KOHLI Notary Public ommonweallh of Vlrglnlo 123236 My Commission Expires Mar 31, 201 'D A._~ 7 os; /rs [:2o 11 City Attorney Approved Version 1/30/13 EXHIBIT "A" SCOPE OF SERVICES The purpose of this Exhibit is to define the level of service to be provided by Contractor for as long as there is a software support agreement between the parties. 1. TERMS OF AGREEMENT The annual cost of software support services shall be $17,289. Subject to appropriations of funds by the City Council and a satisfactory review of Contractors performance, payment for software support services will be paid annually. Either party at the end of the annual term or any renewal period can cancel this software support service with respect to all or any of the Software by giving the other party a 60-days written notice. Contractor may, in addition, cancel software support services with respect to any Software that, in its good faith judgment has become excessively abused, modified by other than Contractor personnel, or obsolete, and return any unused funds to the Client. 2. SERVICE OBLIGATIONS Contractor shall use its best efforts to remedy any failure or malfunction as follows: 2.1 Priority one failures: 2.1.1 For purposes of this Agreement, a priority one failure will have occurred if (a) the City has essentially no effective use of the Police Evidence system and/or (b) the Police Evidence system does not allow officers to enter data in the system, and after a journeyman-level IT Administrator has rebooted the server, they are still unable to enter data. 2.1.2 Contractor will respond with as many qualified and knowledgeable representatives as necessary within sixty (60) minutes after notification by the City. 2.1.3 Contractor will furnish uninterrupted, continuous efforts to remedy priority one failures on an emergency basis. 2.1.4 Contractor will be available 24 hours per day, seven days per week, 365 days per year for resolution of Priority one failures 2.1.5 Priority one failures which, in Contractor's good faith judgment, are due to the City's sole negligence, operation error, abnormal use, or alteration or repairs not performed or authorized by Contractor, may be repaired by Contractor, the City agrees to pay for such services at Contractor's current time and material rates. Contractor will not perform any such services without prior consent and knowledge of the City. 2.1.6 If the City experiences a priority one failure that occurs outside of contractor business hours, City will contact Contractor at 860-869-1254. 2.1.7 If the City experiences a priority one failure that occurs during contractor business hours, City will contact Contractor at 800-354-6777 (Option 2 for support or Ext 777) 2.2 Major errors and/or malfunctions 2.2.1 For purposes of this Agreement, a major error or malfunction will have occurred if a key function or operation of the Police Evidence system is substantially impaired but the City still has effective use of the Police Evidence system. 2.2.2 Contractor will respond with as many qualified and knowledgeable representatives as necessary within four hours after notification by the City. 2.2.3 Contractor will be available from 8:00am to 6:00pm (EST) Monday through Friday for resolution of major errors and/or malfunctions. City Attorney Approved Version 1/30/13 8