Loading...
HomeMy WebLinkAboutiPressroom; 2010-06-08;AGREEMENT FOR MONTHLY ONLINE NEWSROOM SOFTWARE HOSTING FEE AND MANAGEMENT WITH (PRESSROOM JS AGREEMENT is made and entered into as of the Q _ day of _ siui- 20/£) , by and between the CITY OF CARLSBAD, a municipal corporation, ("City"), iPressroom, a Nevada Corporation ("Contractor"). RECITALS City requires online newsroom software hosting and management support. Contractor has the necessary experience in providing these professional services, has submitted proposals 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 Exhibit "A," attached hereto and incorporated herein by this reference in accordance with the terms and conditions set forth in this Agreement. 2. Term. The initial term of this Agreement is for three (3) years. This Agreement may be extended once for an addition two year term by mutual consent of the City and the Contractor. 3. Compensation. The cumulative total for the first year of this Agreement shall not exceed sixteen thousand seven hundred and twenty five dollars ($16,725) and includes a one-time set up fee of four thousand four hundred and fifty five dollars ($4,455), newsroom package (hosting) fee of ten thousand two hundred and sixty dollars ($10,260), and iPressroom Content Management Services of two thousand and ten dollars ($2,010). Compensation for subsequent years shall not exceed twelve thousand two hundred and seventy dollars ($12,270) per Agreement year and includes hosting and iPressroom Content Management Services. No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or the Services specified in Exhibit "A." 4. Status of Contractor. Contractor will perform the Services as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under the control of City only as to the results to be accomplished. 5. Progress and Completion: The work for any project granted to the Contractor pursuant to this Agreement will begin within a mutually agreed upon time after receipt of notification to proceed by the City and will be completed within the time specified in Exhibit "A" for the project. In no event shall a specific task exceed the term of this Agreement. 6. Licenses and Ownership of Work(s). Excepting such items which are specifically identified by Contractor as proprietary trade secrets, any and all sketches, drawings, tracings, field survey notes, computations, detail, and other materials and documents (collectively "Work(s)") prepared by Contractor in the performance of this Agreement shall be the property of City Attorney Approved Version #11.28.06 City from the moment of their preparation, and Contractor shall deliver such materials and documents to City, upon request. Contractor shall have the right to make duplicate copies of such materials and documents for its own file or for other purposes the City may agree as to in writing. A. During the term of this Agreement, Contractor will provide City with (i) non-exclusive access to and use of the proprietary and licensed software, databases and documentation (the "System") that is specified in Exhibit "A" of this Agreement and (ii) exclusive access to the data and information provided by and/or compiled for City ("Licensee Materials") resident on the System, which shall be and be considered to be the Confidential and/or proprietary information of City, and (iii) the professional services, that are described in Exhibit "A" (the "Services"). B. City is granted a limited, personal, non-exclusive, non-transferable license, during the term of this Agreement, with no right to sublicense, solely to use the System in accordance with the terms and conditions of this Agreement, as long as City pays the non-disputed fees and expenses in the amounts and at the times set forth in Paragraph 3 of this Agreement. City may use the System only on the terms and conditions of this Agreement. City may use any provided documentation solely in conjunction with City's use of the System. C. City acknowledges and agrees that the System is owned by, and shall remain the sole property of, Contractor and its licensors, and that Contractor and its licensors shall continue to be the sole owner of all intellectual property rights in and to the System, including, without limitation, any derivative works of the System, except for and to the extent of any Licensee Materials which shall remain the property of City. This Agreement does not convey to City title or ownership of the System, but only a right of limited use in accordance with the terms of this Agreement. City shall take affirmative steps to ensure that employees and authorized consultants of City use the System in accordance with the terms of this Agreement. D. City agrees not to modify, create derivative works of, translate, reverse engineer, decompile, disassemble or otherwise recreate or gain access to the source code of the System, except that City may create reports using the System or information therefrom for internal business purposes and use the System as otherwise designed and intended. E. All City Materials are and shall remain the sole and exclusive property of City, who shall retain all intellectual property rights therein. City hereby grants to Contractor a non-exclusive, royalty-free limited license, during the term of this Agreement, to use, modify and/or copy the Licensee Materials solely for the purposes of inclusion of such Licensee Materials within the System for the sole and exclusive use of City. On the expiration or termination of this Agreement, any and all Licensee Materials shall be timely removed and deleted from the System. 7. Titles and Copyright Assignment. Contractor and City intend this to be an Agreement for Services and each considers the deliverable product (Work) and results of the Services to be rendered by Contractor hereunder to be a work made-for-hire. Contractor acknowledges and agrees that the Work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City. If for any reason the Work would not be considered a work made-for-hire under applicable law, Contractor does hereby sell, assign, and transfer to City, its successors and assigns, the entire right, title and interest in and to the copyright in the Work and any registrations and copyright applications relating thereto and any renewals and extensions thereof, and in and to all works based upon, derived from, or incorporating the Work, and in and to all income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, and in and to all causes of action, either in law or in equity for past, present, or future infringement based on the copyrights, and in and to all rights corresponding to the foregoing throughout the world. City Attorney Approved Version #11.28.06 If the Work is one to which the provisions of 17 U.S.C. 106A apply, the Contractor hereby waives and appoints City to assert on the Contractor's behalf the Contractor's moral rights or any equivalent rights regarding the form or extent of any alteration to the Work (including, without limitation, removal or destruction) or the making of any derivative works based on the Work, including, without limitation, photographs, drawings or other visual reproductions or the Work, in any medium, for City purposes. Contractor agrees to execute all required documents and to perform such other proper acts, as City may deem necessary to secure for City or its designee the rights herein assigned. 8. Indemnification for Intellectual Property Infringement. Contractor agrees to defend, indemnify and hold harmless 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 mark, patent, invention, proprietary information, or other rights of any third party, or that City's use of them otherwise violates this Section [collectively referred 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 Works, 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 performance warranties. In the event City's ongoing use of Contractor's Work'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 Works, products, services and/or deliverables, or part thereof, or replace or modify the Works, 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 City Attorney Approved Version #11.28.06 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. 9. Indemnification - General. 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 policies of commercial general liability insurance, automobile liability insurance, a combined policy of workers' compensation, employers liability insurance, and professional liability insurance from an insurance company authorized to transact the business of insurance in the State of California which has a current rating in the Best's Key Rating guide of at least A-:V in an amount of not less than five hundred thousand dollars ($500,000) each, unless otherwise authorized and approved by the City Attorney or the City Manager. Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. The insurance will be in force during the life of this Agreement and will not be canceled without thirty (30) days prior written notice to the City by certified mail. City will be named as an additional insured on General and Automobile liability. Contractor will furnish certificates of insurance to the Contract Department, with endorsements to City prior to City's execution of this Agreement. 11. 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 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. 12. Compliance With Laws. Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment and will obtain and maintain a City of Carlsbad Business License for the term of this Agreement. 13. Termination. City or Contractor may terminate this Agreement at any time after a discussion, and written notice to the other party. City will pay Contractor's costs for services delivered up to the time of termination, if the services have been delivered in accordance with the Agreement. City may terminate this agreement if City Council does not appropriate funds for subsequent agreement years. 14. Claims and Lawsuits. By signing this Agreement, Contractor agrees it may be subject to civil penalties for the filing of false claims as set forth in the California False Claims Act, Government Code sections 12650, et seq.. and Carlsbad Municipal Code Sections 3.32.025, et City Attorney Approved Version #11.28.06 seq. Contractor further acknowledges that debarment by another jurisdiction is grounds for the City of Carlsbad to terminate this Agreement. 15. Venue and Jurisdiction. Contractor agrees and stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this Agreement is the State Superior Court, San Diego County, California. 16. Assignment. Contractor may assign neither this Agreement nor any part of it, nor any monies due or to become due under it, without the prior written consent of City. 17. Amendments This Agreement may be amended by mutual consent of City and Contractor. Any amendment will be in writing, signed by both parties, with a statement of estimated changes in charges or time schedule. 18. 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. (Remainder of Page Intentionally Left Blank) City Attorney Approved Version #11.28.06 CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the Stateof California City Manager or Moyor (print name/title) (e-mail address) press i£afl>*v ATTEST: (sign here) ^ VS LORRA\NE ,City (print name/title) ou / (e-mail address) If required by City, proper notary 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. ^^ **Group B. Onsirmsn, oscrstsry, President, or Assistant Secretary, Vice-President 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: RONALQ_R^BALL, City Attorney This document was edged before me on -Beptny City Attorney OFFICIAL SEAL LAURA COOK Notary Public State of New Mexico My Comm. Expires {Ml fill7 /if/H// City Attorney Approved Version #11.28.06 EXHIBIT "A" SCOPE OF SERVICES 1. Set-up: Implementation, training pre-launch*(one-time fee): $4,455/one-time o Design newsroom templates to match the Web site and city's brand look: Contractor to design templates for the newsroom's home page, news page, index page, image gallery, RSS, search, video, podcast and social media o Implement templates with existing domain: Contractor will work directly with the City's Communications Department via phone and e-mail so that the integration between the City's Web site and the Contractor site is seamless o Training ten (10) hours over three (3) sessions: Contractor will provide the Communications Department staff ten (10) hours over (3) sessions of training on how to use the software platform features, including but not limited to Internet pressroom management, e-mail distribution and tracking, RSS feeds and syndications, Web statistics and reporting, online document and news release management, crisis communication module, blog management, podcast management, audio/video on-demand, multi-category RSS feed capability o Content upload support ten (10) hours: Contractor will provide Communications department with ten (10) hours of initial content upload support via phone or e- mail o RSS enablement: Contractor will enable all relevant City content to be syndicated as a unique news feed organized by subject to search engines, news aggregators and category specific portals o Site testing: Contractor's quality assurance team will perform thorough testing on all pages and associated functionality across the site o Pre-launch review: Contractor's Online Newsroom Delivery Team (a professional services consultant, product support professional and the City's account representative) will review the newsroom with the City's Communication and IT departments before the final "go live" 2. Newsroom package: $10,260 ($855/month, $475 per user) o Online PR Pro hosted service and licensing includes: branded Web design and integration, WYSIWYG Web editing/publishing, internet pressroom management, e-mail distribution and tracking, unlimited pages and sections, contacts and list management, RSS feeds and syndication, web statistics and reporting, unlimited external links, security and user management, meta data management, easy navigation/page relocation, vanity URL, online document management, online news release management, online news kit management, search engine optimization, high-resolution image gallery, advanced site search, crisis communications module, measurement and reporting e-newsletters, feedback management (surveys/polls), blog management, podcast management, audio/video on-demand, extranet management (secure areas), multi-category RSS feed capability " 3. iPressroom Content Management Services: $2,010 (up to 30 hours at $67/hr as needed) 4. iPressroom services: o Account manager support: Contractor available to support and facilitate special events, requests, service upgrades or any other activities to help the City get the most out of its online newsroom • Toll free (8 a.m. to 8 p.m. GST): 800-514-1897, ext. 501 City Attorney Approved Version #11.28.06 • E-mail: support@ipressroom.com o 24/7 technical support (one (1) hour response time): Contractor is available for technical support 24 hours a day, 365 days a year at the contact info listed below: • Toll free (8 a.m. to 8 p.m. CST): 800-514-1897, ext. 501 • E-mail: support@ipressroom.com o Product availability: Contractor's application will maintain an average of no less than 99.5 percent (less than three (3) hours and forty-five (45) minutes of downtime per month, excluding standard scheduled maintenance and application enhancements. Downtime is any time in which a computer with a verified functioning connection to the global Internet is unable to connect and log in to the hosted iPressroom application, access application data or upload files because the application is unavailable. If application availability during the month falls below the 99.5 percent uptime commitment, the City will be credited a fifty (50) percent reduction in that month's licensing fee. o Monitoring: Contractor will continually monitor, on a 24/7 basis all data included in the city's newsroom package. The iPressroom application is protected by firewalls and monitored around the clock by security personnel. For each task, Contractor will produce materials by specific deadlines created by communications department. Contractor will receive written notice from communications department for each task and deadline date for each task. Dates and times will be mutually agreed upon by the parties and subject to the availability of city staff and Contractor. Total for contract not to exceed: $16,725 (first year) $12,270 (subsequent years) City Attorney Approved Version #11.28.06 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENTr|1i 1 I iiiiIi ! Ii 1 State of California countvof LnS cTTYV^-rrleS On ^> 2-<8 - If) before me.Ol^lC^ Date . / personally appeared \J\ i T \ ortD^P)\'t 1 v e s t< h h l^S^k Commission* 1790009 t P sgbraeffil Notary Public - California | » Y^lajy tos Angeles County - |J >2S56£^ MvComm. Expires Jan 26. 201 2 | |, } Dil^J?^ YH^vu Pohlic ~ Here Insert Nanje and Title of the (pfficer r 1 PCIZX J( 1 I v ~ *- Name(s) of Signer(s) /ho proved to me on the basis vidence to be the person(9ff whose ubscribed to the within instrument anc 1 mo that hp/shfi/thsy . 0x001 itod is/her/thoir authorized capacity(ie^) is/hyi/lllSir signature(s) on the erson^, or the entity upon beha erson(s/ acted, executed the instrurr certify under PENALTY OF PERU jws of the State of California tha j of satisfactory name^) is/a» J acknowledged the same in , and that by nstrument the f of which the lent. JRY under the the foregoing Jw **•»"»- - J paragraph is true and correct. WITNESS my hand and official seal. Sianature:\^^0%^^/ lA/4/Ld&$f.' Place Notary Seal Above ^nTii^' <X>rXV i 1 1 1 1 1- 1 1 | j Signature of Notary Public <h| \Jl 1 I^SIVf+L. U 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 1 //") t 1 1 tTjlle or Type of Document: drffr-f ^ fi^.i ~lDf lAvfrffolU CW/rt-f /f^tus rt>nnsi SW-7Ccfc?c-€, /Kfic Document Date: ^- "2%>- to Signer(s) Other 1 han Named Above: Capacity(ies) Claimed by Signer(s) Siqner's Name: H Corporate Officer — Title(s): BlUfiiHil^^^^^^^^^H HII""OF' SIGNER"'™ LJ Partner — U Limited D General Top of thumb here n Attorney in Fact D Trustee C Guardian or Conservator n Other: Sianer Is Representing: © 2009 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800 Number of Paaes: Signer's Name: D Corporate Officer — Title(s): ! ! Individual [J] Partner — n Limited D General Z Attorney in Fact H Trustee n Guardian or Conservator LJ Other: Siqner Is Representing: 876-6827) iff RIGHT THUMBPRINT OF SIGNER Top of thumb here 1 Qi '•^1 1 1 1 i t11 1&1111 Item #5907