Loading...
HomeMy WebLinkAboutGlobal Document Storage Systems Inc (GDS2); 2008-06-20;AGREEMENT FOR ZENWorks CONFIGURATION MANAGEMENT AND END POINT SECURITY SERVICES GLOBAL DOCUMENT STORAGE SYSTEMS, INC. (GDS2) THIS AGREEMENT is made and entered into as of the day of J"\;^£- , 20O&, by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), and Global Document Storage Systems, Inc., a California corporation, ("Contractor"). RECITALS A. City requires the professional services of a company that is experienced in Novell ZENWorks Configuration Management (ZCM) and End Point Security. B. Contractor has the necessary experience in providing professional services and advice related to Novell ZCM and End Point Security. C. Selection of Contractor is expected to achieve the desired results in an expedited fashion. D. 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. 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 (1) year from the date first above written. 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 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. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will not exceed fifty thousand dollars ($50,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 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 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 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-:VM". 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 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. Workers' Compensation 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. 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. INTELLECTUAL PROPERTY Unless otherwise specified in the Statement of Work, all Work Product delivered by Global Document Storage Systems, Inc. hereunder is a "work for hire." Except as otherwise provided in the applicable Statement of Work, all Work Product, documentation, computer programs, source code, software products or system design specifications reduced to writing or other tangible form that are delivered by Global Document Storage Systems, Inc. to City pursuant to this Agreement, shall be the exclusive property of City. All ideas, concepts, designs, techniques, inventions, procedures, methods, utilities, tools, discoveries or improvements, whether patentable or not, that are conceived of or reduced to practice by Global Document Storage Systems, Inc. or by one or more Global Document Storage Systems, Inc. employees or agents in the performance of services for City under this Agreement, whether acting alone or in conjunction with City's employees, or others ("Inventions"), shall be the exclusive property of Global Document Storage Systems, Inc.. With respect to any Invention, Global Document Storage Systems, Inc. hereby grants to City and to any entity that directly, or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, City, a non-exclusive, non-transferable, limited, perpetual, royalty-free license to use such Inventions in the normal course of City's business. Intellectual Property Warranty and Indemnification. The Contractor represents that to the best of its knowledge any materials or deliverables, including all Works, provided under any resulting contract are either original, not encumbered and do not infringe upon the copyright, trademark, patent or other intellectual property rights of any third party, or are in the public domain. If deliverables, materials or Works provided hereunder become the subject of a claim, suit or allegation of copyright, trademark or patent infringement, City shall have the right, in its sole discretion, to require Contractor to produce, at Contractor's own expense, new non- infringing materials, deliverables or Works as a means of remedying any claim of infringement in addition to any other remedy available to the City under law or equity. Contractor further shall agree to indemnify and hold harmless the City, its officers, employees and agents from and against any and all claims, actions, costs, judgments or damages of any type alleging or threatening that any materials, deliverables, supplies, equipment, services or Works provided under this contract infringe the copyright, trademark, patent or other intellectual property or proprietary rights of any third party (Third Party Claims of Infringement). If a Third Party Claim of Infringement is threatened or made before Contractor receives payment under any resulting contract, City shall be entitled, upon written notice to Contractor, to withhold some or all of such payment. 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 **t. rs6v\ _ Name_Randy Miller Title IDy&imf^x TecMkw b'lve^^- Title President Department X^f?v»W^ TccV^y Address _ 1 1429 Normanton Way _ Address /£3C" f^^J^y /W. _ San Diego, CA 921 31 _ txcl C& X9or Phone No. _866-7628485 Phone No. 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 Crty 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 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 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. This ENTIRE AGREEMENT 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. 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 \s\gn here) _Randall Miller, President/CpQ (print name/title) _rmiller@gds2.com (e-mail address)r, (print name/title) (e-mail address) ISme of California" personally appeared. bef KA ore eA .V7 Public, who proved to me on (he basis of satisfactory evidence to be the penoa(tfwhoM name^jQhre subscribed to the witjun instrument and acknowledged tome thai fijfchc/tncy executed the same in (us^er/their authorized capacilyticjd, and that by q&ner/thetr signatur^f on the instrument the persowM* the entity upon behalf of which the person/) acted, executed the instalment. I certify under PENALTY OF PERJUR Y under the laws of the Stale of Califonn., that the foregoing paragraph is true anil correct. WITNESS my hand and official seal Signature^ Notary Public" OFFICIAL SEAL ANDY SCHRAM ^ INOTARY PUBLIC-CALIFORNIA®1 COMM. NO. 1722232 " SAN DIEGO COUNTY • MY COMM. EXP. JAN. 30, 2011 I CITY OF CA a munici ite of California LORRAINE M City Clerk ^y ^ -••»••'- -—»-» If required by City, proper notarial acknowledgment of e'fcoc^tfn^V 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 officers) signing to bind the corporation. APPROVED AS TO FORM: RONALJXR^LL, City Attorney eputy City Attorney EXHIBIT "A" SCOPE OF SERVICES Analysis Milestone 1: Assessment of Existing Infrastructure • ZCM o Review of Design Specification o Review of current implementation (ZEN/ZCM, ZAM) • End-point Security o Review of Design Specification o Review of current implementation (End-point Security) Design Milestone 2: Solution Design Document Document to contain all necessary information needed to bring solution(s) into production. • Identify any issues with current implementation needing remediation or redesign. • Design complete ZCM, ZAM and End-point Security Solution to address the needs of: o City of Carlsbad Staff Network o City of Carlsbad Safety Network o City of Carlsbad Patron Network Review Milestone 3: Meeting to Review Solution Design Document Incremental Payment for Milestones 1, 2, and 3: $3000.00 (20 Hours @ 150.00 / hour) Implementation Milestone 4: Staff Network • Staff Network Migration o ZEN Works Configuration Management 10 migration from Zen 7 • Check existing server configuration • Authentication to DS (Active Directory / eDirectory) • Database authentication • Policy Configuration • Zone configuration o Model migration of objects in ZCM migration utility • To be approved by City of Carlsbad o Migrate test data • Evaluate completion of test data. o Import select test workstations • Check policy application • Security /I » ZCM managed applications Milestone 5: Safety Network • ZEN Works new Implementation: o ZEN/ZEN works Configuration Management 10 from Zen 7 sp1 • Build ZCM 10 server Windows 2003 SP1 / R2 .NET Framework 2.0 Authentication to DS (Active Directory / eDirectory) Database authentication Policy Configuration Zone configuration o Model migration of objects in ZCM migration utility • To be approved by City of Carlsbad o Migrate test data • Evaluate completion of test data o Import select test workstations • Check policy application • Security • ZCM managed applications Milestone 6: Patron Network • Patron Network Migration: o ZEN/ZEN Works Configuration Management 10 migration from Zen 7 sp1 • Build ZCM 10 server • Windows 2003 SP1 / R2 • .NET Framework 2.0 • Authentication to DS (Active Directory / eDirectory) • Database authentication (If needed) • Policy Configuration • Zone configuration o Model migration of objects in ZCM migration utility « To be approved by City of Carlsbad o Migrate test data • Evaluate completion of test data. o Import select test workstations • Check policy application • Security • ZCM managed applications Milestone 7: Stabilization • Remediation of any existing issues with implementation Milestone 8: Project Review and Acceptance Signoff Payment for Milestones 4 through 8 above will be based on an hourly rate of $ 150.00 per hour for time and materials. Supplier may invoice City of Carlsbad for Time and Materials on a bi-weekly basis during Milestones 4 through 7. A final invoice for Time and Materials may be submitted after the completion of Milestone 8. The total of all payments shall not exceed fifty thousand dollars ($50,000). CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On (Tfj/lfi, J03M ^before me. Date personally appeared >-j /^, g ft*.// Name(s) of Signer(s) SUE GARRISON Commissions 1581476 Notary Public - CoHtomta Orange County Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person^f whose name$(/is/aj#'subscribed to the within instrument and acknowledged to me that he/sJ^eVthpy executed the same in his/hef/trjetf authorized capacity(iei^ and that by his/tyer/their signature^ on the instrument the person^ or the entity upon behalf of which the person^acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand a Signature Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: {J#/J6 // Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: _ D Individual D Corporate Officer — Title(s): _ D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: _ RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing: Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association• 9350 De Soto Ave, P.O.Box 2402-Chatsworth,CA 91313-2402-www.NationalNotary.org Item #5907 Reorder:CallToll-Free 1-800-876-6827