HomeMy WebLinkAboutGranicus Inc; 2015-05-21;AGREEMENT FOR MONTHLY LICENSING FEE AND MAINTENANCE FOR VIDEO
STREAMING SERVICES
(GRANiCUS)
THIS AGREEMENT is made and entered into as of the day of
kAH , 20_1^ by and between the CITY OF CARLSBAD, a municipal
corporationTrCity"), and Granicus, Inc., a Califomia Corporation, ("Contractor").
RECITALS
A. City requires the professional services of a video streaming provider that is
experienced in video streaming for City video.
B. Contractor has the necessary experience in providing professional services and
advice related to streaming media and storage.
C. Contractor has submitted a proposal to City and has afTirmed 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 Sen/ices, Contractor will exercise the reasonable professional care and skill
customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern Califomia 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 (6) months from the date first above
written.
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 perfonned during the Agreement ternn will be fourteen
thousand five hundred eighty two dollars and forty cents ($14,582.40). 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 wori< 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 perfonn 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
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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 subconti-actors. 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 wori^ 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. TITLES AND COPYRIGHT ASSIGNMENT
Contractor and City intend this to be an Agreement for Services.
Granicus agrees to provide Client with a revocable, non-transferable and non-exclusive
license to access the Granicus Software listed in the Solution Description and a revocable,
non-sub licensable, non-transferable and non-exclusive right to use the Granicus Software.
All Granicus Software is proprietary to Granicus and protected by intellectual property laws
and international intellectual property treaties. Pursuant to this Agreement, Client may use
the Granicus Software to perform its own work and woric of its customers/constituents.
Cancellation of the Client's Managed Services will also result in the immediate temiination
of the Client's Software license as described in this Section.
Except for the license granted by this Agreement Granicus retains all ownership and
proprietary rights in and to the Granicus Software, and Client is not permitted, and will not
assist or pennit a third party, to: (a) utilize the Granicus Software in the capacity of a service
bureau or on a time share basis; (b) reverse engineer, decompile or othenA/ise attempt to
derive source code from the Granicus Software; (c) provide, disclose, or othenvise make
available the Granicus Software, or copies thereof, to any third party; or (d) share, loan, or
otherwise allow another Meeting Body, in or outside its jurisdiction, to use the Granicus
Software, or copies thereof, except as expressly outlined in the Proposal.
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TERMINATION OR EXPIRATION OPTIONS REGARDING CONTENT
In case of termination by Client or expiration of the Service Agreement, Granicus and the
Client shall work together to provide the Client with a copy of its Content. The Client shall
have the option to choose one (1) of the following methods to obtain a copy of its Content:
• Option 1: Video files on DVR and a compact disc (CD) that contains the index
and clip name data in CSV or XML fonnat will be created and sent to the Client.
This option may result in an additional charge to Client.
• Option 2: Provide the Content via download from MediaManager or from a
special site created by Granicus. This option shall be provided free of charge.
• Option 3: Granicus shall provide the means to pull the content from the
MediaVault in CSV or XML fonnat. This option shall be provided free of charge.
The Client and Granicus shall woric together and make their best effortis to transfer the
Content within the sixty (60) day tennination period. Granicus has the right to delete
Content from its services after sixty (60) days.
10. INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT
Contractor agrees to defend, Indemnify and hold hannless City, its elected officials,
employees and agents from and against any claim, action, proceeding, liability, loss,
damage, cost or expense, including, without limitation, reasonable attorneys' fees, as
provided herein, arising out of any claim that the Contractor's Works, products, services
and/or deliverables, or any part of them, infringes upon or otherwise violates any copyright,
trade secret, trademark, service marie, patent, invention, proprietary infonnation, or other
rights of any third party, or that City's use of them othenwise violates this Section
[collectively refenred to for purposes of this Section as "Infringement Claims(s)"], by paying
all amounts that a court finally awards or that Contractor agrees to in settlement of such
Infringement Claim(s), as well as any and all expenses or charges arising from such
Infringement Claim(s), including reasonable attorneys' fees, as they are incurred by City or
any other party indemnified under this Section.
City also agrees that, if the use or operation of the Contractor's Worics, products, services
and/or deliverables, or any part of them, becomes, or in Contractor's opinion is likely to
become, the subject of an Infringement Claim(s), City will permit Contractor, at Contractor's
option and expense for all associated costs, either to procure the right for City to continue to
use Contractor's Works, products, services and/or deliverables, or part thereof, or to replace
or modify them with another item of comparable quality and performance capabilities to
become non-infringing, provided such replacement or modification does not cause the
product, services and/or deliverables, or any part thereof, to fail to comply with any of the
requirements of this Agreement, including but not limited to, all functionality, technical
specifications and perfonnance warranties.
In the event City's ongoing use of Contractor's Wori<'s, products, services and/or
deliverables, or any part of them, is the subject of any act by a third party arising from an
Infringement Claim that would preclude or impair City's use of Contractor's Works, products,
services and/or deliverables (e.g., injunctive relief), or if City's continued use of them may
subject it to punitive damages or statutory penalties, City shall give written notice to
Contractor of such fact(s). Upon notice of such facts. Contractor shall procure the right for
City to continue to use the Wori<s, products, services and/or deliverables, or part thereof, or
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replace or modify the Wori<s, products, services and/or deliverables of comparable quality
and performance capabilities to become non-infringing.
If Contractor fails to complete the remedial acts set forth above within forty-five (45)
calendar days of the date of the written notice from City, City shall have the right to take
such remedial acts it determines to be reasonable to mitigate any impairment of its use
of Contractor's Works, products, services and/or deliverables or damages (hereafter
referred to as "City's Remedial Acts"). Contractor shall indemnify City for all amounts
paid and direct and indirect costs associated with City's Remedial Acts. Failure by
Contractor to pay such amounts within ten (10) calendar days of invoice by City shall, in
addition to and cumulative to all other remedies, entitle City to immediately withhold
payments due Contractor under this Agreement up to the amount paid in connection
with City's Remedial Acts.
11. 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 Califomia. The insurance
canrier is required to have a current Best's Key Rating of not less than "A-:Vir'; OR with a surplus
line insurer on the State of Califomia's List of Approved Surplus Line Insurers (LASLI) with a rating
in the latest Best's Key Rating Guide of at least ''A:X''; OR an alien non-admitted insurer listed by
the National Association of Insurance Commissioners (NAIC) latest quarteriy listings report.
11.1 Coverage and Limits.
Contractor will maintain the types of coverage and minimum limits indicated below, unless the
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. The full limits available to the named insured shall also be available
and applicable to the City as an additional insured.
11.1.1 Commercial General Liability Insurance. $2,000,000 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 wori< under this Agreement
or the general aggregate will be twice the required per occurrence limit.
11.1.2 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.
11.1.3 Wori<ers' Compensation and Employer's Liability. Workers' Compensation limits as
required by the Califomia Labor Code. Wori<ers' Compensation will not be required if Contractor
has no employees and provides, to City's satisfaction, a declaration stating this.
11.1.4 Professional Liability. En-ors 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.
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11.2 Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
11.2.1 The City will be named as an additional insured on Commercial General Liability
which shall provide primary coverage to the City.
11.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which
will be written as claims-made coverage.
11.2.3 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 /^reement.
11.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
11.4 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.
11.5 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.
12. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carisbad Business License for the term of the
Agreement, as may be amended from time-to-time.
13. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incun-ed under this
Agreement. All records will be cleariy identifiable. Contractor will allow a representative of City
during nonnal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this ^reement. 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.
14. 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 wori<
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will t>e delivered at once to City. Contractor will have the right to make one (1) copy
of the work product for Contractor's records.
15. 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.
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16. NOTICES
The name of the persons who are authorized to give written notice or to receive written notice on
behalf of City and on behalf of Contractor under this Agreement.
For City For Contractor / / I
Name Name
Title Title Q
Department Address
City of Carisbad C<D <S0202--
Address Phone No. 11JC>- 2,^^-^$"^^
Email
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.
17. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report
investments or interests in all four categories.
18. 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 sen/ices
with all applicable lavire, 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.
19. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
20. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
fc>e used to resolve any questions of fact or interpretation not othenwise 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 fonwarded 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, ff the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be fonwarded 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
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upon the parties involved, although nothing in this procedure will prohibit the parties from seeking
remedies available to them at law.
21. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may
tenninate this Agreement for nonperfonmance by notifying Contractor by certified mail of the
tennination. 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 woric 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 vi/ill 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.
22. 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 Irom, 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.
23. 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 Califomia 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 debannent 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.
24. JURISDICTION 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 wnll be tried in a court of competent jurisdiction in the
County of San Diego, State of Califomia, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
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25. 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.
26. ENTIRE AGREEMENT
This Agreement, together with any other written document refenred 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.
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27. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it cn behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the tenns and conditions of this Agreement.
CONTRACTOR
By:
CITY OF CARLSBAD, a municipal
corporation of the State of Califomia
By:
(sign here) =ERSDN [INSERT TITLE D£ PERSON
AUTHORIZED TO SIGN (City Manager or
Mayor or Division Director as authorized
by the City Manager)]
Tina Steffan, Chief Technology Officer
(print name/title)
ATTEST:
By:
(sign here)
(print name/title)
BARBARA ENG
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. BREW^City Attorney
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EXHIBIT "A"
SCOPE OF SERVICES
1.0 MAINTENANCE OF EQUIPMENT
1.1 Services
(a) For each year of this Service Agreement, Granicus, Inc. shall repair or replace
any hardware equipment ("Equipment"), provided directly from Granicus that fails
to function property due to normal wear and tear, provided that any such failure is
not covered by insurance maintained by the City. Granicus, Inc. shall not be
responsible, however, for any such failure that is due to other causes, such as
power surge, fire, flood or other casualty, accident, vandalism, misuse or abuse,
alteration of the Equipment or failure of the City to maintain a proper environment
or otherwise property care for the Equipment.
(b) Granicus. Inc. has the technology in place to continually monitor all Equipment
and should any malfunction appear, Granicus, Inc. shall immediately notify the
City. Granicus, Inc. shall respond to requests to repair or replace any
nonfunctioning Equipment, provided directly from Granicus. within 24 hours from
the time that notice is received, and the City shall grant Granicus, Inc. or its
representative's access to the Equipment for this purpose at reasonable times.
Granicus. Inc. will keep the City informed regarding the time frame and progress
of the repairs or replacements.
(c) Granicus, Inc. offers continuous customer support and is dedicated to ensuring
that the City is completely satisfied with Granicus products and services.
Granicus staff is available to the City 24 hours a day, 365 days a year, via the
customer support lines. All support numljers are listed on the bottom of this
exhibit.
2.0 MANAGED SERVICES FEES
2.1 Terms of Agreement
(a) Subject to Section 2 Term provision above, Granicus, Inc. agrees to provide the
City the hosting, storage, and bandwidth necessary for the City to broadcast its
content to the Internet for at least 6 months in accordance with the Granicus
Managed Services defined in The Proposal.
2.2 Payment of Maintenance Fees
(a) The City agrees to pay the monthly fees to Granicus, Inc. by the first day of the
month upon receipt of invoice.
3.0 GRANICUS MANAGED SERVICES
3.1 Technical and User Support
Granicus, Inc. offers continuous customer support and is dedicated to ensuring that the
City is completely satisfied with Granicus products and services. Granicus staff is available to
the City 24 hours a day, 365 days a year, via the contact info below.
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Direct (8 a.m. -6p.m. Pacific Time): 415-357-3618
Toll free (8a.m. to 6 p.m. Pacific Time): 877-889-5495
Site: www.aranicus.com
E-mail: support@oranicus.com
3.2 Monitoring
As part of the City's Managed Services, Granicus will continually monitor, on a 24/7
basis, all the software and hardware included in your solution. Should any malfunction appear,
Granicus will immediately notify the City and proceed to resolve the issue. Granicus is
committed to repair or replace any non-functioning hardware, provided directly from Granicus,
within 24 hours for up to three (3) years.
3.3 Software Upgrades
Granicus provides its software as a "Lifetime License," and all software upgrades are
included as part of your Managed Services program. This includes both the rights to use the
upgraded software and any sen/ices required as part of the upgrade process.
3.4 Bandwidth and Storage
Through Granicus Managed Sen/ices, we will provide all of the bandwidth and storage
necessary to utilize your solution. The Granicus Managed Services plan includes "Unlimited
Bandwidth" for streaming the City's live and on-demand content over the Internet through the
Granicus Media Center™.
The Granicus Managed Services base plan also includes 12 months of archiving for all
public meetings and 50 hours or 7 Gigabytes of storage for additional content at the Granicus
Media Center™.
4.0 FEES
MediaManager Ent. MinutesMaker Monthly Managed Services $1,700.00/mo
VPod Casting Monthly Managed Services $400.00/mo
HomeView Template Monthly Managed Sen/ices $26.80/mo
MediaVault Addt'l Encoder Monthly Managed Services $303.60/mo
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