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HomeMy WebLinkAboutNetfile; 2007-09-21;RATIFICATION OF AMENDMENT NO. 1 TO EXTEND THE AGREEMENT FOR ONLINE HOSTING OF CONFLICT OF INTEREST FORM 700 (Westcoast Online Information Systems, Inc., dba NETFILE) This Ratification of Amendment No. 1 is entered into as of the _; Q— day of October, 2009, but effective as of the September 21, 2008, extending and amending the agreement dated September 21, 2007 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Westcoast Online Information Systems, Inc., dba "NETFILE", ("Contractor") (collectively, the "Parties'). RECITALS A. On September 21, 2007, the Parties executed the original Agreement for the online hosting of Statements of Economic Interests, FPPC Form 700; and B. The Agreement expired on September 21, 2008 and Contractor continued to work on the services specified therein without the benefit of an agreement. C. The Parties desire to extend the Agreement for a period of two years from the date the Agreement expired. D. With this extension and ratification, the Agreement will expire on September 21, 2010. 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 two years from the date the Agreement expired and that the Agreement as amended will terminate on September 21, 2010, unless extended in writing and signed by the Parties to this Agreement. 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 instalments 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. CONTRACTOR: WESTCOAST ONLINE INFORMATION SYSTEMS, INC., dba NETFILE, (sign here) U David Montgomery, President (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: ATTEST: LORRAINE M. City Clerk (sign here) Tom Diebert, Secretary (print name/title) diebert (S)netfile.com (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 officers) signing to bind the corporation. APPROVED RONAL FORM: City Attorney istant City Attorney City Attorney Approved Version #05.22.01 AGREEMENT FOR PROVIDER SERVICES BETWEEN CITY OF CARLSBAD A MUNICIPAL CORPORATION AND WESTCOAST ONLINE INFORMATION SYSTEMS, INC. DBA NETFILE THIS AGREEMENT is made and entered into this 21st day of September 2007, by and between the CITY OF CARLSBAD, a municipal corporation (hereinafter "USER"), and WESTCOAST ONLINE INFORMATION SYSTEMS, INC., a California corporation doing business as NETFILE (hereinafter "PROVIDER"). RECITALS The purpose for which this AGREEMENT is made, and all pertinent recitals, is listed on EXHIBIT A, entitled "RECITALS", which is attached hereto and incorporated herein. THE PARTIES HEREBY AGREE AS FOLLOWS: SECTION 1. SCOPE OF SERVICES. PROVIDER shall perform those services specified in detail in EXHIBIT B, entitled "SCOPE OF SERVICES", which is attached hereto and incorporated herein. SECTION 2. TERM OF AGREEMENT. The term of this AGREEMENT shall be from September 21, 2007 to September 21, 2008, inclusive, subject to the provisions of SECTION 11 of this AGREEMENT. This AGREEMENT may be extended by written mutual agreement of both parties. SECTION 3. SCHEDULE OF PERFORMANCE. The services of PROVIDER are to be completed according to the schedule set out in EXHIBIT C, entitled "SCHEDULE OF PERFORMANCE", which is attached hereto and incorporated herein. SECTION 4. COMPENSATION. The total compensation to be paid to PROVIDER for payment for professional services under this AGREEMENT shall not exceed a maximum amount of $8,000 on an annual basis for a maximum of 550 filers per year. The rate and schedule of payment is set out in EXHIBIT D, entitled "COMPENSATION", which is attached hereto and incorporated herein. If the AGREEMENT is extended, the price will remain the same unless a change is mutually agreed to by both parties in writing at the time of the extension. SECTION 5. METHOD OF PAYMENT. For each three month period, commencing on the day the contract is signed PROVIDER shall furnish to the USER an invoice due net thirty (30) days from receipt of invoice for compensation for work for the three months for which the invoice relates (hereinafter, including in all exhibits, "quarter"). SECTION 6. INDEPENDENT CONTRACTOR. It is understood and agreed that PROVIDER, in the performance of the work and services agreed to be performed by PROVIDER, shall act as and be an independent contractor and not an agent or employee of USER; and as an independent contractor, neither PROVIDER nor PROVIDER'S officers, employees or agents shall obtain any rights to retirement benefits or other benefits which accrue to USER'S employees, and PROVIDER hereby expressly waives any claim it may have to any such rights. SECTION 7. ASSIGNAB1LITY. The parties agree that the expertise and experience of PROVIDER are material considerations for this AGREEMENT. PROVIDER shall not assign or transfer any interest in this AGREEMENT nor the performance of any of PROVIDER'S obligations hereunder, without the prior written consent of USER, and any attempt by PROVIDER to so assign this AGREEMENT or any rights, duties or obligations arising hereunder shall be void and of no effect. SECTION 8. INDEMNIFICATION. PROVIDER agrees to defend, indemnify and hold harmless USER, its officers, employees, agents, and volunteers for any and all claims, losses, actions, damages and/or liability arising out of any negligent act or omission of PROVIDER, including any costs or expenses incurred by USER, in the performance of or related to this AGREEMENT, except as may be prohibited by law. USER agrees to defend, indemnify and hold harmless PROVIDER, its officers, employees, agents and volunteers for any and all claims, losses, actions, damages and/or liability arising out of any negligent act or omission of the USER, including any costs or expenses incurred by PROVIDER, in the performance of or related to this AGREEMENT, except as may be prohibited by law. In the event that USER and/or PROVIDER are determined to be comparatively at fault for any claim, action, loss or damage which results from their respective obligations under this AGREEMENT, the USER and/or PROVIDER shall indemnify the other to the extent of its comparative fault. SECTION 9. INSURANCE REQUIREMENTS. PROVIDER agrees to have and maintain the policies set forth in EXHIBIT E, entitled "INSURANCE," which is attached hereto and incorporated herein. SECTION 10. NONDISCRIMINATION. PROVIDER shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin, in connection with or related to the performance of this AGREEMENT. SECTION 11. TERMINATION. A. USER or PROVIDER may terminate this AGREEMENT without cause by giving the other Party written notice ("Notice of Termination") which clearly expresses that Party's intent to terminate the AGREEMENT. Notice of Termination shall become effective no less than thirty (30) calendar days ("Effective Date") after a Party 3 receives such notice. After either Party terminates the AGREEMENT, PROVIDER shall discontinue further services as of the Effective Date of termination. B. For purposes of this AGREEMENT, the term "default" shall mean the failure of any Party to perform any material obligation in the time and manner provided by this AGREEMENT. Upon determination of any default, the non-defaulting party agrees to notify the defaulting party immediately and shall allow three (3) business days for the default to be rectified. If the default is not rectified by the end of this time period, the USER or PROVIDER may terminate this AGREEMENT by providing a written Notice of Termination to the defaulting Party. Such Notice of Termination shall become effective no less than ten (10) calendar days after a Party receives such notice. Such Notice of Termination for cause shall include a statement by the terminating Party setting forth grounds for determination of default under the AGREEMENT. C. In the event of termination, PROVIDER shall deliver to USER electronic copies of all reports, documents, and other work performed by PROVIDER under this AGREEMENT. USER shall pay PROVIDER for all services satisfactorily performed up to the date the AGREEMENT is terminated. USER may deduct from such payment the amount of actual damage, if any, sustained by USER due to PROVIDER'S failure to perform the Services or for breach of this AGREEMENT. SECTION 12. GOVERNING LAW. USER and PROVIDER agree that the law governing this AGREEMENT shall be that of the State of California. SECTION 13. COMPLIANCE WITH LAWS. PROVIDER shall comply with all applicable laws, ordinances, codes and regulations of the federal, California State and local governments. SECTION 14. CONFIDENTIAL INFORMATION. All data, documents, discussions or other information developed or received by or for PROVIDER in performance of this AGREEMENT are confidential and not to be disclosed to any person except as authorized by USER, or as required by law. If USER receives a request to disclose any Confidential Information under any Public Information Act, Open Records Act or similar law ("Request"), USER shall immediately notify PROVIDER and prior to disclosure give PROVIDER an opportunity to take any protective action it deems appropriate. If PROVIDER has not responded timely to the Request, as defined by the applicable law for which the Request is made pursuant to, USER may, in its sole discretion and without being in breach of this AGREEMENT, respond to the Request as USER deems appropriate. In the event that PROVIDER directs USER not to disclose the Confidential Information materials sought pursuant to the Request, PROVIDER will indemnify USER against any losses, including reasonable attorney fees and costs, sustained arising from the non- disclosure of the Confidential Information material requested in the Request. USER, in its sole discretion may tender the Request to PROVIDER for response, including, any and all subsequent legal actions or challenges related to the non-disclosure. SECTION 15. OWNERSHIP OF MATERIALS. All intellectual property, including existing source code or additional source code written for the purpose of developing this system for the USER, will be the sole property of PROVIDER. If PROVIDER were to cease operations during the contractual period, PROVIDER would provide to the USER all source code relative to the USER'S system. All data created in the system by the USER is the property of the USER. SECTION 16. WAIVER. PROVIDER agrees that waiver by USER of any breach or violation of any term or condition of this AGREEMENT shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the 5 same or any other term or condition. The acceptance by USER of the performance of any work or services by PROVIDER shall not be deemed to be a waiver of any term or condition of this AGREEMENT. SECTION 17. PROVIDER'S BOOKS AND RECORDS. A. PROVIDER shall maintain any and all ledgers, books of account, invoices, vouchers, cancelled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to USER for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to PROVIDER pursuant to this AGREEMENT. B. PROVIDER shall maintain all documents and records which demonstrate performance under this AGREEMENT for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this AGREEMENT. SECTION 18. CONFLICT OF INTEREST. PROVIDER shall avoid all conflict of interest or appearance of conflict of interest in performance of this AGREEMENT. SECTION 19. SPECIAL PROVISIONS. Special provisions to this AGREEMENT are specified in EXHIBIT F, entitled, "SPECIAL PROVISIONS", which is attached hereto and incorporated herein. SECTION 20. NOTICES. All notices and other communications required or permitted to be given under this AGREEMENT shall be in writing and shall be personally served or mailed, postage prepaid and return receipt requested, addressed to the respective parties as follows: To USER: City of Carlsbad Attn: Karen R. Kundtz 1200 Carlsbad Village Drive Carlsbad, CA 92008 To PROVIDER: Netfile Attn: David Montgomery 2707 Aurora Road Mariposa, CA 95338 Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after deposit in the mail. SECTION 23. VENUE. In the event that suit shall be brought by either party to this AGREEMENT, the parties agree that venue shall be exclusively vested in the Superior Court of California, County of San Diego. SECTION 24. PRIOR AGREEMENTS AND AMENDMENTS. This AGREEMENT, including all Exhibits attached hereto, represents the entire understanding of the parties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This AGREEMENT may be modified only by a written amendment duly executed by the parties to this AGREEMENT. WITNESS THE EXECUTION HEREOF on the day and year first hereinabove written. WESTCOAST ONLINE INFORMATION SYSTEMS, INC., a California corporation dba NETFILE David Montgomery, President Date: CITY OF CARLSBAD Date: APPRO1 Iputy City Attorney ATTEST: EXHIBIT A RECITALS WHEREAS, the City of Carlsbad, a municipal corporation desires to obtain services to provide online Statement of Economic Interests FPPC Form 700 forms; and WHEREAS, PROVIDER has the necessary professional expertise and skill to perform such services; WHEREAS, the purpose of this Agreement is for the USER to retain PROVIDER to perform those services specified in SECTION 1 of this AGREEMENT. NOW, THEREFORE, the Parties agree to be bound by the terms and conditions of this AGREEMENT. EXHIBIT B SCOPE OF SERVICES PROVIDER shall provide online hosting of Statement of Economic Interests FPPC Form 700 forms, and shall perform the following services: A. Expected Outcome PROVIDER will develop and maintain a system that permits the USER and filers authorized by the USER (up to 550 filers annually) to (1) file FPPC Form 700 Statement of Economic Interests in electronic format to be available in redacted form (at USER'S option) for public viewing of documents over the Internet through a link on the USER'S website; (2) maintain a database of the FPPC Form 700 forms to track filings and generate filing deadline and amendment letters; and, (3) allow the USER to scan reports not submitted electronically. If USER exceeds 550 filers for the FPPC Form 700, there will be no additional charge the first year of the contract. If the contract is extended (see Section 2. Terms of Agreement), an additional fee of $250 per quarter will be added for every additional 100 filers above the annual number of filers listed in the second line of this paragraph. B. Scope of Service 1. For one year from the date of execution of the AGREEMENT, PROVIDER will develop, implement and maintain a system that: (a) For FPPC 700 Filers Using the Internet: i. Allows the USER to provide to Filers who have their own access to the Internet, a user ID and password which is used to log on to a secure site utilizing SSL encryption hosted on PROVIDER'S web server but accessible via the USER'S web site. A self- registration feature will be available where the USER will input basic filer information and filer is then instructed to go to a website and register themselves (this is where they will receive user ID and password). Filers will have the capability to enter data and upload to PROVIDER'S secure site electronic formats of FPPC Form 700 Statement of Economic Interests and/or amendments specified by the California Fair Political Practices Commission. ii. Once the FPPC Form 700 Statement of Economic Interests Form has been uploaded, PROVIDER'S secure site utilizing SSL encryption validates the submitted filing and notifies the Filer that the filing was accepted or, if declined, explains why the filing was declined. B-1 iii. Allows filers to print a copy, using Adobe Acrobat Reader, of the FPPC Form 700 Statement of Economic Interests Form that was generated from their upload to PROVIDER'S secure site. iv. Allows filers to access their earlier validated electronically filed FPPC Statement of Economic Interests Forms. (b) For FPPC 700 USER Staff: i. Allows USER to scan both redacted and unredacted FPPC Form 700 filings for posting to the online searchable database. ii. Department level admin for USER (or those otherwise designated) will be available where each identified filing officer (or those otherwise designated) would manage their department's filers' information. USER reserves the right to add administrative users as it deems necessary. The USER would login to the system utilizing SSL encryption via the use of a login ID and password. iii. Filer status reports and correspondence logs are included in the system. iv. Paper copies generated from e-filing will have embedded code that staff will input into the system to confirm receipt of the paper filing. v. System will be able to identify up to 8 different levels of filers. The USER will have the ability to determine which level(s) will be available for public and/or internal viewing in either redacted or unredacted form (with only redacted forms available to the public). vi. Retention of all data created in the system is provided for the length of the contract period. Data can only be deleted or archived by Provider, if and when given expressed prior written authorization by USER. vii. Basic filing disposition reports as well as USER defined reports are included in system at no additional cost. (c) For the Public: i. Allows the public to search and view electronically filed documents (with street addresses blocked from view on the FPPC Form 460) over the internet and for the FPPC Form 700 view the redacted version of the filing. B-2 ii. If a document was not available electronically, PROVIDER'S secure site will notify the searcher that the document is available for viewing in the office of the USER. 2. PROVIDER'S system will, among other things: (a) Issue an ID number and password for filers. (b) Grant different user access and security levels for USER staff utilizing SSL encryption. (c) Store and edit general information about filers. (d) Store and edit all filings by individual statement periods. (e) Allow for entry of miscellaneous notes by USER staff. (f) Generate notification letters (USER option) telling the filers of the upcoming filing deadline. (g) Indicate how filings were received. (h) Track deadlines for filings and amendments and generate letters notifying filers of delinquencies. (i) Track delinquencies and generate letters notifying filers of fines where applicable (USER option). 0) Allow the public to search and view the USER'S approved list of redacted electronic filings via the Internet. (k) Allow the public to search and view the unredacted electronic filings on the computer terminal provided by the USER located in their office. (I) Allow the filer to move data from previous filing into new filing. 3. PROVIDER will also: (a) Help import current filers' filings into database. Manipulation or creation of this data may be required by staff of the USER before import can occur. (b) Once import is uploaded, the USER will need to check the integrity of the data in an initial cleanup. (c) Provide unlimited support to the USER staff by email or phone during PROVIDER'S normal working business hours for the duration of the B-3 AGREEMENT term. In addition, PROVIDER shall maintain after hours telephone support for USER staff for the duration of the AGREEMENT term. 4. All intellectual property, including existing source code or additional source code written for the purpose of developing this system for the USER, will be the sole property of PROVIDER. If PROVIDER were to cease operations during the contractual period, PROVIDER would provide to the USER all source code relative to the USER'S system. C. Performance Standards Performance standards are based upon providing deliverables according to the timeline for performance as determined by USER and whether the system meets the expected outcome in terms of timeliness and functionality. PROVIDER servers have a guaranteed uptime of 99%. B-4 EXHIBIT C SCHEDULE OF PERFORMANCE The following dates specify the milestones/timeline for performance (based on the execution of the AGREEMENT on September 21, 2007): October 31, 2007: PROVIDER to receive any electronic data from USER to upload into FPPC 700 system December 1, 2007: PROVIDER installs version of FPPC 700 system December 1, 2007: PROVIDER available to start USER staff training on FPPC 700 system January 1, 2008: System is ready to receive FPPC Form 700 filings The USER shall be authorized to approve, in writing, the extension of any milestone dates set forth above on behalf of the USER. C-1 EXHIBIT D COMPENSATION USER agrees to compensate PROVIDER as set forth below: FORM 700 System Yearl Annual Cost $8,000 Quarterly Invoice Amount $2,000 FPPC Form 700 Additional Pricing info for Contract extension If the AGREEMENT is extended past the original year, for every 100 additional filers on an annual basis (in addition to the first 550 filers), the fee will increase by $250 per quarter beginning the first quarter of the 2nd year of the AGREEMENT. The fee will be adjusted on an annual basis based on the previous 12 months actual number of users. The above costs include maintenance and support costs. There are no reimbursable expenses. D-1 EXHIBIT E INSURANCE PROVIDER, at PROVIDER'S sole cost and expense, shall procure and maintain for the duration of this AGREEMENT insurance against claims for injuries to persons or damages to property which may arise from, or in connection with, the performance of the services hereunder by PROVIDER, its agents, representatives, employees or subcontractors. A) Minimum Limits of Insurance PROVIDER shall maintain limits no less than: 1. Commercial General Liability: $1,000,000 for bodily injury, personal injury and property damage; and 2. Automobile Liability: $1,000,000 limit per accident for bodily injury and property damage; and 3. Workers' Compensation and Employers' Liability: Workers' Compensation limits as required by the California Labor and Employers Liability limits of $1,000,000 per accident. B) 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 USER by certified mail. USER will be named as an additional insured on General and Automobile liability. On request from USER, PROVIDER will furnish certificates of insurance to USER. E-1 EXHIBIT F SPECIAL PROVISIONS LIMITATION OF LIABILITY The maximum liability to the USER by PROVIDER and its licensors, if any, under this AGREEMENT, that arises out of any claim by the USER related to PROVIDER'S services, products, equipment or software for direct damages, whether in contract, tort or otherwise, shall be limited to the total amount of fees collected by PROVIDER from the USER hereunder for the 12 months prior to the time the cause of action giving rise to such liability occurred. In no event shall PROVIDER or its licensors be liable to the USER for any indirect, incidental, consequential, or special damages related to the use of PROVIDER'S services, products, equipment or software or PROVIDER'S failure to perform its obligations under this AGREEMENT, even if advised of the possibility of such damages, regardless of whether PROVIDER or its licensors are negligent. LIABILITY WAIVER The USER accepts any and all liability resulting from the placement of Fair Political Practices Commission campaign disclosure documents scanned by the USER that are made available on the internet for public viewing through the services of the PROVIDER. In no event does the PROVIDER accept liability created by any document scanned into the system by the USER. CONFLICT OF INTEREST PROVIDER shall make all reasonable efforts to ensure that no USER officer or employee, whose position in the USER enables him/her to influence any award of the AGREEMENT or any competing offer, shall have any direct or indirect financial interest resulting from the award of the AGREEMENT or shall have any relationship to the PROVIDER or officer or employee of the PROVIDER. IMPROPER CONSIDERATION PROVIDER shall not offer (either directly or through an intermediary) any improper consideration such as, but not limited to, cash, discounts, service, the provision of travel or entertainment, or any items of value to any officer, employee or agent of the USER in an attempt to secure favorable treatment regarding any AGREEMENT awarded by USER. The USER, by written notice, may immediately terminate this AGREEMENT if it determines that any improper consideration as described in the preceding paragraph was offered to any officer, employee or agent of the USER with respect to the proposal and award process. This prohibition shall apply to any amendment, extension, or evaluation process once an AGREEMENT has been awarded. F-1