HomeMy WebLinkAboutAccuvant Inc; 2007-07-12;RATIFICATION OF AMENDMENT NO. 2 TO EXTEND AND AMEND AGREEMENT
FOR NETWORK INTEGRATION SERVICES
ACCUVANT, INC.
e . This Ratification of Amendment No. 2 is entered into as of the /Y day
thfh-a*-' , 2009, but effective as of the 30th
e, 2008, extending and amending the agreement dated the twelfth day of July, 2007
(the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and
Accuvant Inc., a Colorado corporation, ("Contractor") (collectively, the "Parties").
RECITALS
A. On July 12, 2007, the Parties executed an agreement for network integration
services); and
B. The term of the original agreement may be amended to extend for three (3)
additional one (1) year periods or parts thereof; and
C. The Agreement, lacking an extension, expired on June 30, 2008 and Contractor
continued to perform work on the services specified therein without the benefit of an
amendment to the Agreement; and
D. The Parties desire to alter the scope of work of the Agreement to include the
purchase and implementation of a Blue Coat Proxy device on the City of Carlsbad Safety
Services network; and
E. The Parties desire to extend the Agreement for a period of two years; and
F. 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", 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. The retroactive extension and amendment of the Agreement is ratified.
2. That the Agreement, as may have been amended from time to time, is hereby
extended for a period of two (2) years ending on June 30, 2010 on a time and materials basis
not-to-exceed fifty thousand dollars ($50,000) per agreement year. In addition to those services
contained in the Agreement, as may have been amended from time to time, Contractor will
provide those services described in Exhibit "A".
4. City will pay Contractor for all work associated with those services described in
Exhibit "A" on a time and materials basis not-to-exceed eleven thousand and thirty two dollars
($11,032).
City Attorney Approved Version #05.22..01
($11,032).
5. Contractor will complete all work described in Exhibit "A" by January 31 st, 2010.
6. All other provisions of the Agreement, as may have been amended from time to
time, will remain in full force and effect.
7. 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.
City Attorney Approved Version #05.22..01
8. 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.
CONTRACTOR
"By:
CITY OF CARLSBAD, a municipal
corporation of the State of California
By:
City Manager or Mayef
(print name/title)
ATTEST:
(e-mail address)
LORRAINE/MA WOOt) J
Cfty Clerk CJ
here)
Qufl/v/
(print name/title)
(e-mail address)
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:
? City Attorney
By:
" iDdptrty" City Attorney
'T
City Attorney Approved Version #05.22..01
EXHIBIT "A"
SCOPE OF SERVICES AND FEE
DESCRIPTION OF ADDITIONAL SERVICES:
Installation and configuration of a Blue Coat Proxy device at the Safety Center
The contractor will install and configure the Blue Coat Proxy device at the Safety Center.
Services and deliverables to include the following:
• Delivery of Blue Coat SG210 Proxy device
• Review configuration of existing Safety Center proxy device
• Knowledge transfer from contractor to Safety Center IT staff on new proxy
device and configurations
• Assist Safety Center IT staff with device configuration at time of installation
• Ensure that configuration of new device is up, operational and meets the
needs of Safety Center IT staff
• Ten (10) hours of implementation services
• Support services for one (1) year for hardware and software. Support is 24x7
for one year, from the date of delivery / installation (pick one)
Contract Ipact
Item
Blue Coat SG210 Proxy
(includes sales tax)
Sales tax
Hardware support (24x7x4)
Software support (24x7)
Implementation Services
Total estimates
Rate / Cost
$ 6,500
$537
$ 715
$780
$250/ Hour
Hours
0
0
0
10
10
Total
$ 6,500.00
$ 537.00
$ 715.00
$ 780.00
$ 2,500.00
$ 11,032.00
City Attorney Approved Version #05.22..01
PROJECT TASK DESCRIPTION AND FEE ALLOTMENT
PROJECT: Security Assessment for the City Treasurer's Office
This Second (2nd) Project Task Description and Fee Allotment, is entered into on
Qc&bur 7.1 , 2008, pursuant to an Agreement between Accuvant, Inc., and the City of
Carlsbad, dated July 12 2007 (the "Agreement"), as may have been amended from time to
time, the terms of which are incorporated herein by this reference.
1. CONTRACTOR'S OBLIGATIONS
Contractor shall provide services related to the assessment of policies, procedures, and
technical security controls in place for the City Treasurer's Office and deliver
comprehensive documentation detailing the findings and steps to remediate risks found.
Task Description and Fee Allotment ("Table 1"), contains a description of the tasks
involved for this assessment ("Project"). The Project services shall include assessment,
report on findings, guidelines for remediation and knowledge transfer.
2. PROGRESS AND COMPLETION
Contractor's receipt of this Project Task Description and Fee Allotment, signed by the
City and a Purchase Order from the City's Purchasing Department, constitutes
notification to proceed to the Contractor. Contractor shall begin work within fifteen (15)
working days after receiving this fully executed document and a City Purchase Order.
Contractor shall complete the work within sixty (60) working days thereafter.
3. FEES TO BE PAID TO THE CONTRACTOR
Contractor's compensation for the Project is shown on Table 1, herein. Fees shall be
paid on a fixed price basis for work completed and a not-to-exceed basis for travel
associated with completion of the Project. Progress payments shall be based on work
completed. Table 1, prepared by Contractor and reviewed by City, shows the parties'
intent as to the elements, scope and extent of the task groups.
Additional task groups, not shown in Table 1, will be performed by the Contractor only
upon authorization of the City through the mechanism of a separate Project Task
Description and Fee Allotment. In the event that City directs Contractor to curtail or
eliminate all, or portions of the task groups identified in Table 1, then the Contractor
shall only invoice the City for work actually performed. The maximum total cost of
Contractor's services for this Project Task Description and Fee Allotment shall not
exceed twelve thousand three-hundred seventy-five dollars ($12,375.00), including
travel
City Attorney Approved Version #07.24.02
If Contractor is a corporation, this document must be signed by one individual from each
column:
Column A
Chairman, president or vice-president
Column 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.
CITY OF CARLSBAD, a municipal corporation of the State of California
Date:
Administrative Services Director
By:
n
V
APPROVED AS TO FORM:
^City Attorney
B
Deputy City Attorney
City Attorney Approved Version #07.24.02
TASK DESCRIPTION AND FEE ALLOTMENT
Security Assessment for the City Treasurer's Office
Table 1
TASK DESCRIPTION
Security Posture Assessment, Analysis and Remediation Plan completed for City of
Carlsbad Treasurer's Office.
Tasks include:
Information Gathering & Environment Overview
Gather Input & Documentation
Review Enterprise Assessment
Personnel Interviews
Internal Testing & Analysis
Physical Security Gap Analysis
Network Architecture Analysis
Configuration Reviews
Remediation Planning and Knowledge Transfer
Report
Describes the security posture of the City Treasurer's environment and offers
a list of immediate action items to improve that security posture. Consists of
an executive summary, a detailed list of the work performed, a scorecard of
the areas tested, a listing of the key security measures already in place, a
listing of the security issues that were identified, the risk they pose, and
recommendations on how to fix or mitigate the risks identified.
Travel and Expenses (not-to-exceed)
TOTAL (Not-to-Exceed)
FEE
$11,250.00
$1,125.00
$12,375.00
Executed by Contractor this /"-H day of,
CONTRACTOR:
/rCcau&t/T. :£/uc-.
2008
(name of Contractor)
By:
(sign here)
(print name/title)
(e-mail address)
(print name/title)
(e-mail address)
City Attorney Approved Version #07.24.02
AMENDMENT NO. 1 TO EXTEND THE AGREEMENT FOR NETWORK INTEGRATION
SERVICES
ACCUVANT, INC.
This Amendment No. 1 is entered into and effective as of the 30th day of June,
2008, extending the agreement dated July 12, 2007 (the "Agreement") by and between the City of
Carlsbad, a municipal corporation, ("City"), and Accuvant, Inc., a Delaware corporation,
("Contractor") (collectively, the "Parties").
RECITALS
A. The Parties desire to extend and fund the Agreement for a period of one (1) year; and
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. The Agreement, as may have been amended from time to time, is hereby
extended for a period of one (1) year ending on July 12, 2009 in an amount not to exceed fifty
thousand dollars ($50,000).
2. All other provisions of the Agreement, as may have been amended from time to
time, shall remain in full force and effect.
3. All requisite insurance policies to be maintained by the Contractor pursuant to the
Agreement, as may have been amended from time to time, shall include coverage for this
Amendment.
City Attorney Approved Version #05.22.01
4. The individuals executing this Amendment and the instruments referenced 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 hereof of this Amendment.
(sign here)
Dan Wilson. VP of Partner Relationships
(print name/title)
dwilson@accuvant.com
(e-mail address)
'By:
(sign here)
Edward Wittman. Chief Financial Officer
(print name/title)
ewittman@accuvant.com
(e-mail address)
CITY
corpojp
municipal
rnia
ori^faybr
ATTEST:
LORRAINE M. WOOD
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:
RONALD^BALL, City Attorney
Jeputy City Attorney
City Attorney Approved Version #05.22.01
On this 30th day of June, 2008, there appeared before me, personally, Dan Wilson, to be known to me to be
the individual described in, and who executed this AMENDMENT NO. 1 TO EXTEND THE
AGREEMENT FOR NETWORK INTEGRATION SERVICES BETWEEN ACCUVANT, INC. AND
THE CITY OF CARLSBAD, and he/ she thereupon acknowledged to me that he/ she executed the same.
My commission expires: ^LJ^. 5/£>
Notary Public Signa
(Seal)
City Attorney Approved Version # 05.22.01
MASTER AGREEMENT FOR NETWORK INTERGRATION SERVICES
ACCUVANT, INC.
THIS AGREEMENT is made and entered into as of the 11 day of
_ , 2007, by and between the CITY OF CARLSBAD, a municipal
corporation, (TCity"), and Accuvant Inc., a Colorado corporation ("Contractor").
RECITALS
A. City requires the professional services of a network technology integration
contractor that is experienced in security technology, practices, methodologies,
implementation and management.
B. The professional services are required on a non-exclusive, project-by-
project basis.
C. Contractor has the necessary experience in providing professional
services and advice related to technology infrastructure implementation, integration and
management.
D. Selection of Contractor is expected to achieve the desired results in an
expedited fashion.
E. Contractor has submitted a proposal to City and 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.
Contractor's obligations with respect to any project granted to Contractor under this
Agreement will be as specified in the Task Description for the project (see paragraph 5
below).
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 from the date first above written to June 30,
2008. The City Manager may amend the Agreement to extend it for three (3) additional
one (1) year periods or parts thereof in an amount not to exceed fifty thousand dollars
($50,000) per Agreement year. Extensions will be based upon a satisfactory review of
1 City Attorney Approved Version #04/03/02
thousand dollars ($50,000) per Agreement year. Extensions will be based upon a
satisfactory review of Contractor's performance, City needs, and 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. PROGRESS AND COMPLETION
The work for any project granted to Contractor pursuant to this Agreement will begin
within fifteen (15) days after receipt of notification to proceed by City and be completed
within the time specified in the Task Description for the project (see paragraph 5
below). Extensions of time for a specific Task Description may be granted if requested
by Contractor and agreed to in writing by the Administrative Services Director or
Information Technology Director, as his designee. The Administrative Services Director
or Information Technology Director, as his designee will give allowance for documented
and substantiated unforeseeable and unavoidable delays not caused by a lack of
foresight on the part of Contractor, or delays caused by City inaction or other agencies'
lack of timely action. In no event shall a specific Task Description exceed the term of
this Agreement.
5. COMPENSATION
The cumulative total for all projects allowed pursuant to this Agreement will not exceed
fifty thousand dollars ($50,000) per fiscal year. Fees will be paid on a project-by-project
basis and will be based on Contractor's Schedule of Rates specified in Exhibit "A".
Prior to initiation of any project work by Contractor, City shall prepare a Project Task
Description and Fee Allotment (the "Task Description") which, upon signature by
Contractor and for City, the City Manager, or Administrative Services Director, as his
designee, will be considered a part of this Agreement. The Task Description will include
a detailed scope of services for the particular project being considered and a statement
of Contractor's fee to complete the project in accordance with the specified scope of
services. The Task Description will also include a description of the method of payment
and will be based upon an hourly rate, percentage of project complete, completion of
specific project tasks or a combination thereof.
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 withholdings 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
2 City Attorney Approved Version #04/03/02
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 in whole or in part by any willful misconduct or negligent act or omission 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
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-:V".
City Attorney Approved Version #04/03/02
10.1 Coverages and Limits. Contractor will maintain the types of coverages and
minimum limits indicated below, unless City Attorney 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.
10.1.1 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.
10.1.2 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.
10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation
limits as required by the California Labor Code and Employer's Liability limits of
$1,000,000 per accident for bodily injury. Workers' Compensation and Employer's
Liability insurance will not be required if Contractor has no employees and provides, to
City's satisfaction, a declaration stating this.
10.1.4 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.
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:
10.2.1 The City will be named as an additional insured on General Liability.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 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.
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.
4 City Attorney Approved Version #04/03/02
10.5 Submission of Insurance Policies. City reserves the right to require, at
anytime, 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: For Contractor:
Name: fepndo nTT^lento r>> Name:
Title: \ . {.. atfVxrjgA. Title:
Department: "£r\Prt T^-^ _ Address: G-Z- i lT^ St S,;k 2M Z S
City of Carlsbad _ bow*r , Co
Address: Kp"^S , . r^xACLccc -W . Phone No.: ?D *> Z/l Z - 0 &00
O/juJ)*: \rw~ifQ. rf
Phone No.:1
5 City Attorney Approved Version #04/03/02
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
City will evaluate Contractor's duties pursuant to this Agreement to determine whether
disclosure under the Political Reform Act and City's Conflict of Interest Code is required
of Contractor or any of Contractor's employees, agents, or subcontractors. Should it be
determined that disclosure is required, Contractor or Contractor's affected employees,
agents, or subcontractors will complete and file with the City Clerk those schedules
specified by City and contained in the Statement of Economic Interests Form 700.
Contractor, for Contractor and on behalf of Contractor's agents, employees,
subcontractors and consultants warrants that by execution of this Agreement, that they
have no interest, present or contemplated, in the projects affected by this Agreement.
Contractor further warrants that neither Contractor, nor Contractor's agents,
employees, subcontractors and consultants have any ancillary real property, business
interests or income that will be affected by this Agreement or, alternatively, that
Contractor will file with the City an affidavit disclosing this interest.
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
that the services 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 (10) business days. If the resolution thus obtained is
unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to
5 City Attorney Approved Version #04/03/02
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.
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
6 City Attorney Approved Version #04/03/02
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 or 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. LIMITED NO-HIRE PROVISION
City and Contractor recognize the highly trained and skilled nature of each other's
employees and the significant investment each party has made in their respective
employees. Consequently, both parties agree not to hire as an employee, independent
contractor, agent, or any other capacity, any of the other's employees that have
specifically worked on the project described in this Agreement, and have been on-site
at any of the client locations, during the period of the project. This prohibition ends with
the completion of work by the Contractor and acceptance of the work by the City.
26. 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 #04/03/02
8 City Attorney Approved Version #04/03/02
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.
Executed by Contractor this_
CONTRACTOR:
day of.,2001 .
(name of Contractor)
By:
CITY OF CARLSBAD, a municipal
corporation of the State of California
By:
City Manager or Mayor
S ec re
(print name/title}^ATTEST:
(e-mail address)
(sign here)
VP
(print name/title)
UKRAINE M
City Clerk
(e-mail address)
(Proper notarial acknowledgment of execution by Contractor must be attached. If a
corporation, document must be signed by one from each column:
Column A
Chairman, president or vice-president
Column 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.)
CITY OF CARLSBAD, a municipal corporation of the State of California
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
City Attorney Approved Version #04/03/02
ity Attorney
10 City Attorney Approved Version #04/03/02
Exhibit A
Schedule of Rates and Services
Project based efforts
Accuvant shall provide technology integration and deployment project services to
the City of Carlsbad at a standard hourly rate of $250 an hour. This rate does
not apply to "assessment" services. "Assessment" services costs will be
determined on a case by case basis.
Project hours standard requirements
Minimum Charge 8 hours
Overtime Surcharge:
• Monday to Friday (before 7:30AM after 5:30PM) 1.5 times the hourly rate
• Saturday 1.5 times the hourly rate
• Sunday/Holidays 2 times the hourly rate
Non-project based efforts
For network integrations services provided outside of a planned project, the
following rates and requirements apply.
Block of Hours/Time and Materials
Accuvant standard hourly rates are $250 an hour. City of Carlsbad can reduce
their hourly rate by purchasing pre-paid blocks of hours for their projects in the
following increments:
40 - 60 hours $240 per hour
61 - 80 hours $225 per hour
81-100 hours $200 per hour
01 - 200 hours $185 per hour
These pre-paid blocks of hours will be invoiced once City of Carlsbad has chosen
the number of hours desired. Work will commence once payment has been
received by Accuvant. If no block is purchased, the invoice for integration and
management services will be due upon receipt.
Block of hours standard requirements
Minimum Charge 3 hours
Overtime Surcharge:
• Monday to Friday (before 7:30AM after 5:30PM) 1.5 times the hourly rate
• Saturday 1.5 times the hourly rate
• Sunday/Holidays 2 times the hourly rate
PROJECT TASK DESCRIPTION AND FEE ALLOTMENT
PROJECT:
This first (1st) Project Task Description and Fee Allotment, is entered into on
, pursuant to an Agreement between
Accuvant, Inc., ("Contractor") and the City of Carlsbad, ("City") dated
INSERT DATE OF MASTER AGREEMENT, (the "Agreement"), the terms of which are
incorporated herein by this reference.
1. CONTRACTOR'S OBLIGATIONS
Contractor shall provide
_. Attached as Appendix "A" ("proposal") is for
_, (the "Project"). The Project services shall include
. for the purposes described by the City.
2. PROGRESS AND COMPLETION
Contractor's receipt of this Project Task Description and Fee Allotment, signed by the
City and a Purchase Order from the City's Purchasing Department, constitutes
notification to proceed to the Contractor. Contractor shall begin work within fifteen (15)
working days after receiving this fully executed document and a City Purchase Order.
Contractor shall complete the work within sixty (60) working days thereafter.
3. FEES TO BE PAID TO THE CONTRACTOR
Contractor's compensation for the Project is shown in Table 1, "Fee Allotment", herein.
Fees shall be paid on the basis of time and materials. Progress payments shall be
based on work completed. Appendix "A", attached, prepared by Contractor and
reviewed by City, shows the parties' intent as to the elements, scope and extent of the
task groups.
Additional task groups, not shown in Table 1 or Appendix "A", will be performed by the
Contractor only upon authorization of the City through the mechanism of a separate
Project Task Description and Fee Allotment. In the event that City directs Contractor to
curtail or eliminate all, or portions of the task groups identified in Table 1 or Appendix A,
then the Contractor shall only invoice the City for work actually performed. The
maximum total cost of Contractor's services for this Project Task Description and Fee
Allotment is
City Attorney Approved Version #07.24.02
TABLE 1 FEE ALLOTMENT
IMPLEMENTATION OF POLICE NETWORK SERVERS
TASK DESCRIPTION
TOTAL (Not-to-Exceed)
FEE
$
Executed by Contractor this
CONTRACTOR:
day of ,200_
(name of Contractor)
By:
(sign here)
(name of Contractor)
By:
(sign here)
(print name/title)(print name/title)
(e-mail address)(e-mail address)
If Contractor is a corporation, this document must be signed by one individual from each
column:
Column A
Chairman, president or vice-president
Column 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.
CITY OF CARLSBAD, a municipal corporation of the State of California
By:
Administrative Services Director
Date:
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
BY:
Deputy City Attorney
City Attorney Approved Version #07.24.02