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HomeMy WebLinkAbout2001-07-24; City Council; 16290; Tape Library SystemCITY OF CARLSBAD - AGENDA BILL n 9B# Ib,~~o \- 7 -wa f TITLE: APPROVING AN AGREEMENT WITH DEPTHD. g MTG. LIGHTHOUSE TECHNOLOGY, INC. FOR PURCHASE, CITY ATTY.& DEPT. IT INSTALLATION AND MAlNTENANCE OF A TAPE LIBRARY SYSTEM CITY MGR. & RECOMMENDED ACTION: Adopt Resolution &oor-da-2 No. approving the agreement with Lighthouse Technology, Inc. for purchase, installation and maintenance of STORSetver 2000, a tape library backup system. ITEM EXPLANATION: The City’s wide area network consists of over 20 sites with one or more servers at each site. Currently, nightly data backups are done separately for every server at every site, which requires placing a day’s tape in each server each day. Utilizing backup software, the Information Technology Department schedules these nightly backups and then checks the tbllowing morning to ensure that they completed correctly. Because Information Technology (IT) does not have dedicated personnel at each site, we rely on a designated user(s) at each site to load a new tape each day and to send a tape to IT at Faraday on a weekly basis. This weekly tape then goes to offsite storage for safekeeping. The procedure for restoring data for users also follows much the same process, just in reverse. While the great majority of the time both backups and restores are performed successfully, our current process is cumbersome and time-consuming. Recognizing the need for a simpler and more reliable data backup and recovery system, Information Technology planned and budgeted for a centralized tape backup system. This type of backup system is called a “tape library”. A tape library is a jukebox type device with many tapes that can backup all servers across the network to one device. When data needs to be restored, a request is made to the tape library system, which then automatically loads the correct tape (like a jukebox) and restores the data. The Information Technology staff researched various tape library systems to determine which solution best met our needs. Staff determined that the STORServer 2000, manufactured by Storage Solutions Specialists, Inc., is best suited for our environment. Proposals were solicited from three authorized STORServer providers, and based on the criteria set forth in the RFP, Information Technology staff recommends Lighthouse Technology, Inc. They have the skills, experience, resources and authorizations necessary to install and support this tape library system. There is a vast amount of important information that resides on the data servers throughout the City. Ensuring the availability of this information by performing nightly backups is essential. Through the implementation of this enterprise-wide tape library system, the Information Technology Department will be able to provide more efficient, effective and reliable nightly backups and regular restores. FISCAL IMPACT: The total fees payable to Lighthouse Technology, Inc. for purchase, installation and first year’s maintenance of the tape library system are $111,357. Funds necessary to cover these expenses are available in the Information Technology’s 2001-2002 operating budget. Future years maintenance will be budgeted on an annual basis. 1. Resolution No. a@/~~@ approving the Agreement with Lighthouse Technology, Inc. for the purchase, installation and mkintenance of the STORServer tape library system. 2. System Agreement (Lighthouse Technology) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2o01-222 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, APPROVING AN AGREEMENT WITH LIGHTHOUSE TECHNOLOGY, INC. FOR PURCHASE, INSTALLATION AND MAINTENANCE OF A TAPE LIBRARY SYSTEM. WHEREAS, the City of Carlsbad requires the services of a tape library systems contractor to provide the necessary services for purchase, installation and maintenance of the STORServer tape library system, and; WHEREAS, Lighthouse Technology, Inc. possesses the necessary skills, qualifications and authorizations to provide the purchase, installation and maintenance services of the STORServer tape library system required by the City; and WHEREAS, Lighthouse Technology, Inc. has the necessary experience in providing professional services and advice related to the integration of tape library technologies; and WHEREAS, selection of Lighthouse Technology, Inc. is expected to achieve the desired results in an expedited fashion; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad as follows: 1. That the above recitations are true and correct. 2. That the Agreement with Lighthouse Technology, Inc., a copy of which is attached hereto, is hereby approved and the Mayor is authorized to execute the same on behalf of the City. 3. That the fees and compensation for said tape library system purchase, installation and maintenance services shall not exceed $111,357 and shall be as described in the contract between the City of Carlsbad and Lighthouse Technology, Inc.. II I/ Reso. 2001-222 page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad held on the 24th day Of Julv . 2001 by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Finnila, Nygaard, and Hall. NOES: None - ABSENT: None. SYSTEM AGREEMENT Lighthouse Technology THIS AGREEMENT is made and entered into as of the 26th day of July 9 2001, by and ‘between City of Carlsbad, a municipal corporation, hereinafter referred to as “City”, and Lighthouse Technology, a corporation, hereinafter referred to as “Contractor.” RECITALS City requires the services of an authorized STORServer contractor to provide the necessary services for the purchase, implementation and maintenance of a STORServer 2000 tape library system for City’s Information Technology department; and Contractor possesses the necessary skills and qualifications to provide the services required by City; NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. CONTRACTOR’S OBLIGATIONS Contractor will provide the STORServer tape library system, hereafter referred to as the “System” and those services described in the attached “Exhibit B”, entitled “Description of Services”, which is incorporated herein by reference. Contractor will provide for ongoing system updates and maintenance services for both hardware and software. These ongoing updates and maintenance services are further described in “Exhibit A”, entitled “Systems Maintenance Agreement “, which said Exhibit shall survive the expiration of this Agreement. 2. CITY OBLIGATIONS rev. 7/l 9100 -1 - City shall be responsible for such information, services, and support described in the attached “Exhibit C”, entitled “City’s Responsibilities”, which is incorporated herein by reference. 3. PROGRESS AND COMPLETION Contractor’s work under this Agreement will begin within ten (IO) days after Agreement signing and be completed within ninety (90) calendar days of that date. The City may grant extensions of time if requested by Contractor and agreed to in writing. The City will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of Contractor, or delays caused by City inaction or other agencies’ lack of timely action. When work is completed, Contractor shall submit to the City written notification listing the tasks completed. After receiving said notification, City shall have thirty (30) working days to test the System to ensure that it is working properly in accordance to “Exhibit A” and without failures. If City accepts the System, a written letter confirming City’s acceptance will be sent to Contractor, and City will release the payment funds, as stated in Paragraph 4 below, to Contractor. 4. FEES TO BE PAID TO CONTRACTOR As further described in attached “Exhibit B”, which is incorporated herein by reference, the total fee payable for product and services to be performed shall be $111,357. No other compensation for services will be allowed except those items covered by supplemental agreements per Paragraph 7, “Changes in Work.” The City will withhold payment for the 30-day money back guarantee period. At the end of the money back period, the City will either accept or reject the system. Once accepted by rev. 7/l 9100 -2 - the City, an invoice of payment of product and services may be issued and will subsequently paid under normal billing cycle. Lighthouse Technology, and its subcontractors, stand behind the products and services being offered and if it fails to perform the functions that have been promised Lighthouse Technology and its subcontractors agree to accept the return of the equipment and software in the first 30 days following delivery provided the City pays for the freight and installation services upon return. City may increase the number of licenses as agreed upon in this Agreement. An increase in the number of licenses will be reflected by written amendment to this Agreement, pursuant to Paragraph 7 below. If requested by the City, the Contractor agrees to sell and install additional licenses to the City. City understands that the fee for certain specialty modules will exceed the standard fee for modules mentioned above. 5. DURATION OF CONTRACT This Agreement shall extend for a period of one year from date thereof. The Agreement may be extended by City Manager for three additional one (I) year periods or parts thereof. Extensions will be based upon a review of satisfactory performance and City’s needs. The parties shall prepare extensions in writing indicating effective date and length of the extended Agreement. 6. PAYMENT OF FEES Payment of approved items on the invoice shall be mailed to Contractor within 30 days of receipt of the invoice. 7. CHANGES IN WORK rev. 7/l 9/00 -3 - If, in the course of the Agreement, changes seem merited by Contractor or City, and informal consultations with the other party indicate that a change in the conditions of the Agreement is warranted, Contractor or City may request a change in Agreement. Such changes shall be processed by City in the following manner: A letter outlining the required changes shall be forwarded to City by Contractor to inform them of the proposed changes along with a statement of estimated changes in charges or time schedule. A Standard Amendment to Agreement shall be prepared by City and approved by City according to the procedures described in Carlsbad Municipal Code Section 3.28172. Such Amendment to Agreement shall not render ineffective or invalidate unaffected portions of the Agreement. 8. WARRANTIES. The warranties enumerated in this Paragraph 8 shall commence upon City’s acceptance of the system and remain in effect for one year after acceptance or the term of any maintenance agreement signed by the parties, whichever is longer. A breach of any of these warranties by Contractor shall constitute a Material Breach under this Agreement. This Paragraph 8 shall survive the expiration of the Agreement. Warranties: A. Contractor has title to the System. B. Software will be free of known viruses, worms and Trojan horses, and any code designed to disable the Software because of the passage of time, alleged failure to make payments due, or otherwise (except for documented security measures such as password expiration functions); rev. 7/l 9100 -4 - C. During the Warranty Period, the System will perform in conformity with the Specifications and Requirements. Specifications and requirements shall mean: All written or electronic materials relating to the use or function of the system are provided by Contractor to City or generally made available by Contractor, including but not limited to reference, user, installation, systems administration and technical guides and manuals, and functional and technical specifications. Contractor will, at its expense, correct any errors in the system attributable solely to Contractor or their assigned or sub-contracted parties. D. All Documentation is in all material respects complete and accurate, and will enable information technology professionals and other City employees with ordinary skills and experience to utilize the System for all purposes for which it is being acquired by City. The Documentation will be updated to reflect all releases of the System and any and all other modifications, enhancements, updates, error corrections, improvements and the like provided by Contractor, and all such updates will be of equal or greater quality to the initial Documentation provided to City and will be delivered to City within thirty (30) days after the release, modifications, enhancements, updates, error corrections or improvements to which the Documentation update applies has been delivered to City; E. System products are and will be general release versions that have been fully tested at Contractor’s site in accordance with industry standards, and are not beta or pre-release versions; and F. All work performed by Contractor and/or its subcontractors pursuant to this Agreement shall meet industry accepted standards of excellence, and shall be rev. 7/l 9100 -5 - performed in a professional and workmanlike manner by staff with the necessary skills, experience and knowledge. 9. ADDITIONAL SERVICES City may require additional services on a project-by-project basis to assist with operation and/or desired functionality of the enterprise tape library system. When additional services are requested, Contractor will provide City with a written proposal for each requested project, which may be accepted or rejected by City. If accepted by City in writing, and upon completion of the project, Contractor shall submit an invoice to City for approval. 10. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that their firm 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, 1 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 shall 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 such fee, commission, percentage, brokerage fees, gift, or contingent fee. 11. COMPLIANCE WITH LAWS AND ORDINANCES. Contractor agrees to make itself aware of and comply with all local, state and federal ordinances, statutes, laws, rules and regulations applicable to the performance rev. 7/l 9/00 -6 - of its obligations under this Agreement, including but not limited to all applicable federal, state and/or local laws regarding employment practices and discrimination. 12. DISPUTES If a dispute should arise regarding the performance of work under this Agreement, the following procedure shall be used to resolve any questions of fact or interpretation not otherwise settled by agreement between parties. Representative of Contractor or of City shall reduce such questions, to writing a letter. A copy of such documented dispute shall be forwarded to the other party involved along with recommended methods of resolution, which would be of benefit to both parties. Either the party receiving the letter shall 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 shall be forwarded to the City Council through the Office of the City Manager. The City Council may then opt to consider the directed solution to the problem. In such cases, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law. 13. TERMINATION OF CONTRACT Along with the other remedies available City in this Agreement, in the event of Contractor’s failure to prosecute, deliver, or perform the work as provided for in this Agreement, the City Manager may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination of the Agreement. Contractor, thereupon, has five (5) working days to deliver all computer programs, files, documentation, data, media related material, any other materials and equipment owned rev. 7/l 9100 -7 - by City and all work in progress to the Information Technology Director. The Information Technology Director shall make a determination of fact based upon the materials delivered to City of the percentage of work, which Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding as reported to the City Manager, the City Manager shall determine the final payment of the Agreement. This Agreement may be terminated by either party upon tendering thirty (30) days written notice to the other party. In the event of such suspension or termination, upon request of City, Contractor shall assemble the work product and put same in order for proper filing and closing and deliver said product to City. In the event of termination, Contractor shall be paid for work performed to the termination date; however, the total shall not exceed the lump sum fee payable under Paragraph 4 of this Agreement. The City Manager shall make the final determination as to the portions of tasks completed and the compensation to be made. 14. SUSPENSION OF SERVICES Notwithstanding anything to the contrary in this Agreement, in the event that City disputes in good faith an allegation of default by Contractor, Contractor agrees that it will not terminate this Agreement or suspend or limit any of its performance obligations or warranties or repossess, disable or render unusable the system, unless 1) the parties agree in writing, or 2) an order of a court of competent jurisdiction determines otherwise. 15. ASSIGNMENT Contractor shall not assign this Agreement or any part thereof or any monies due there under without the prior written consent of City. Any assignment attempted without rev. 7/l 9/00 -8 - the written consent of the other party shall be void. For purposes of this Agreement, the term “assignment” shall include any transfer of rights or obligations under this Agreement to a successor by merger or consolidation or to any person or entity that acquires all or substantially all of Contractor’s capital stock or assets, and shall include Contractor’s assignment of this Agreement to any person or entity to which Contractor transfers any of its rights in the System. 16. CLAIMS AND LAWSUITS Contractor agrees that any contract claim submitted to City must be asserted as part of the contract 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, 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 wherein Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five years. Contractor acknowledges debarment by Contractor from the selection process. is grounds for City to disqualify (Initial) The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32.026, rev. 7/l 9100 -9 - nd 3.32.028 pertaining to false claims are incorporated herein by reference. (Initial) 17. JURISDICTION Contractor agrees and hereby stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this Agreement is San Diego County, California. 18. STATUS OF CONTRACTOR Contractor shall perform the services provided for herein 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 shall be under control of City only as to the result to be accomplished, but shall consult with City as provided for in the request for proposal. The persons used by Contractor to provide services under this Agreement shall not be considered employees of City for any purposes whatsoever. Contractor is an independent contractor of City. The payment made to Contractor pursuant to the Agreement shall be the full and complete compensation to which Contractor is entitled. City shall not make any federal or state tax withholdings on behalf of Contractor or its employees or subcontractors. City shall 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 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 employee or subcontractor of Contractor for rev. 7/l 9100 -10 - work done under this Agreement or such indemnification amount may be deducted by . City from any balance owing to Contractor. Contractor shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and Consultants that are included in this Agreement. 19. INDEMNIFICATION. To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City and City’s officers, agents and employees from and against any and all loss, damages, obligations, liabilities and expenses (including reasonable attorneys’ fees) that arise directly or indirectly from: A. any infringement of any United States or Canadian copyright, trademark or patent, or misappropriation of the trade secrets of any third party, in connection with the Licensed Product (or any allegation of any of the foregoing) (“Infringement Claims”); or B. any act(s) of negligence or willful misconduct by Contractor or any of its agents, employees or subcontractors (or any allegations of any of the foregoing), including but not limited to any liability caused by an accident or other occurrence resulting in bodily injury, death, sickness or disease to any person(s) or damage or destruction to any property, real or personal; or C. City’s refusal to produce any document or information described in Paragraph C of “Exhibit B” pursuant to a request to review public city records, after receiving a request for such item and after being instructed by Contractor not to produce it; or rev. 7/l 9100 -11 - D. any claims by any persons or entities supplying labor or material to Contractor in connection with the performance of Contractor’s obligations under this Agreement (“Labor and Material Claims”). Indemnity for Infringement Claims shall be contingent upon City: 1) giving prompt notice to Contractor of any such Infringement Claim(s) which Contractor is otherwise unaware of; 2) Contractor having control over the defense of such action, provided City shall have input as to all matters affecting City; and 3) City reasonably cooperating in the defense of such action. If an Infringement Claim occurs, Contractor shall within thirty (30) days after receipt of the City’s written notice of such claim or the date on which Contractor first becomes aware of such claim, whichever is sooner, either: 1) procure for City the right to continue using the affected product, service or component and deliver or provide such product, service or component to City; or 2) repair or replace the infringing project, service or component so that it becomes non-infringing, provided that the performance of the System or any component thereof shall not be adversely affected by such replacement or modification. In the event Contractor is unable to comply with either subsection 1) or 2) of this paragraph within the thirty (30) day time period described above, City shall have the right to terminate this Agreement for default. In the event of such termination, in addition to any other remedies available to City at law, under this Agreement or otherwise, Contractor shall pay to City within ten days of City’s notice of termination a pro rata portion of all License Fees paid as of the date of termination . This Paragraph 19 shall survive termination or expiration of this Agreement. rev. 7/l 9/00 -12 - 20. SUBCONTRACTING If Contractor shall subcontract any of the work to be performed under this Agreement by Contractor, Contractor shall 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 shall create any contractual relationship between any subcontractor of Contractor and City. Contractor shall 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 in question approved in writing by City. 21. PROHIBITED INTEREST No official of City who is authorized in such capacity on behalf of City to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of this Agreement, shall become directly or indirectly interested personally in this Agreement or in any part thereof. No officer or employee of City who is authorized in such capacity and on behalf of City to exercise any executive, supervisory, or similar functions in connection with the performance of this Agreement shall become directly or indirectly interested personally in this Agreement or any part thereof. 22. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of City, either before, during or after the execution of this Agreement, shall affect or modify any of the terms or obligations herein contained nor entitle Contractor to any additional payment whatsoever under the terms of this Agreement. -13 - rev. 7/l 9/00 23. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 19 “Indemnification,” all terms, conditions, and provisions hereof shall inure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns. 24. LIQUIDATION OF CONTRACTOR In the event that Contractor (or a surviving company in the event of merger or sale of the enterprise tape library system is liquidated, dissolved, or ceases to carry on business on a regular basis, City will have a perpetual, irrevocable, nonexclusive, license, title and right of ownership to the System (inclusive of hardware, software and all other documentation) subject to City agreement that it will not, at any time, market the System. 25. EFFECTIVE DATE This Agreement shall be effective on and from the day and year first written above. 26. CONFLICT OF INTEREST City has determined, using the guidelines of the Political Reform Act and City’s conflict of interest code, that Contractor will not be required to file a conflict of interest statement as a requirement of this Agreement. However, Contractor hereby acknowledges that Contractor has the legal responsibility for complying with the Political Reform Act and nothing in this Agreement releases Contractor from this responsibility. 27. INSURANCE Contractor shall obtain and maintain for the duration of the Agreement and any and all amendments insurance against claims for injuries to persons or damage to rev. 7/l 9/00 -14 - property, which may arise out of or in connection with performance of the work hereunder by Contractor, his agents, representatives, employees or subcontractors. Said insurance shall be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best’s Key Rating of not less than “A-V’ and shall meet City’s policy for insurance as stated in Resolution No. 91-403. A. Coverages and Limits. Contractor shall maintain the types of coverages and minimum limits indicated herein, unless a lower amount is approved by the City Attorney or City Manager: 1. Comprehensive General Liability Insurance. $1 ,OOO,OOO combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits shall apply separately to the work under this Agreement or the general aggregate shall be twice the required per occurrence limit. 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. 3. Workers’ Compensation and Employer’s Liability. Workers’ Compensation limits as required by the Labor Code of the State of California and Employer’s Liability limits of $1 ,OOO,OOO per accident for bodily injury. 4. Professional Liability. Errors and omissions liability appropriate to Contractor’s profession with limits of not less than $500,000 per claim. Coverage rev. 7/l 9/00 -15- shall be maintained for a period of five years following the date of completion of the work. B. Additional Provisions. Contractor shall ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions. 1. City shall be named. as an additional insured on all policies excluding Workers’ Compensation and Professional Liability. 2. Contractor shall furnish certificates of insurance to City before commencement of work. 3. Contractor shall obtain occurrence coverage, excluding Professional Liability which shall be written as claims-made coverage. 4. This insurance shall be in force during the life of the Agreement and any extension thereof and shall not be canceled without 30 days prior written notice to City sent by certified mail. 5. If Contractor fails to maintain any of the insurance coverages required herein, 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 that the required coverages may be maintained. Contractor is responsible for any payments made by City to obtain or maintain such insurance and City may collect the same from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 2%. RESPONSIBLE PARTIES rev. 7/l 9/00 -16 - 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 in connection with the foregoing are as follows: For City: For Contractor: 29. Title Information Technology Director Name Lee Rautenkranz Address 1635 Faraday Ave Carlsbad, CA Title President Name John Cornelius Address 5909 Sean Lion Place, Suite E Carlsbad, CA BUSINESS LICENSE Contractor shall obtain and maintain a City of Carlsbad Business License for the duration of the Agreement. 30. LIQUIDATED DAMAGES A. If Contractor fails to deliver the system and services according to the Implementation Schedule set forth in “Exhibit A” or as modified by mutual agreement according to Section 7 of this Agreement; or is found to be in Material Breach of this Agreement, City will provide written notification of such failure or Material Breach to Contractor. Contractor will then have ten (10) business days to cure such failure or Material Breach to City’s satisfaction or appeal the notification to City Council pursuant to Paragraph 12 of this Agreement. In the event that Contractor does not correct said failure or Material Breach within the applicable cure period, liquidated damages in the amount of ONE HUNDRED FIFTY dollars ($lSO,OO) per day may be imposed upon rev. 7/l 9/00 -17 - Contractor and subtracted from any amounts then due and payable or, if no amounts are due and payable then, paid by Contractor to City within sixty (60) business days. Any failures by Contractor that are due to the City’s delay in the completion of tasks for implementation of the System will not be considered a Material Breach of this Agreement, and the Contractor will not be imposed of liquidated damages. B. The parties acknowledge that it would be impractical or extremely difficult to fix actual damages in the case of Contractor’s default, and that the amount of damages specified in this Paragraph 31 is a reasonable and complete estimate of City’s damages. Contractor recognizes that Contractor’s prompt response to notices of default and continued commitment to its obligations under this Agreement for which penalties can be imposed, is of critical importance to City. In initialing below, both patties agree that the amount of liquidated damages set forth in this Paragraph 31 is the best reasonable estimate of the cost to City of a violation or breach of this Agreement. LICENSEE: (Initials) (Initials) 31. ENTIRE AGREEMENT This Agreement, together with any other written document referred to, attached or contemplated herein, 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 hereof. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed -1% - rev. 7/l 9/00 by the party against which enforcement of such amendment, waiver or discharge is sought. Executed by Contractor this day of s/y 2001 - IO CONTRACTOR: &nt name/title) /Mm -k2Av&a c/Q 7- ATTEST: APPROVE S TO FORM: (Proper notarial acknowledgment of execution by Contractor must be attached. Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. 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. rev. 7/l 9100 -19- EXHIBIT A SYSTEM MAINTENANCE AGREEMENT TAPE LIBRARY BACKUP SYSTEM THIS SYSTEM MAINTENANCE AGREEMENT is made and entered into as of the 26th day of July I 2001, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as “City”, and Lighthouse Technology, a corporation, hereinafter referred to as “Contractor.” RECITALS A. On July.26 , 2001, City and Contractor executed an Agreement hereinafter referred to as “Agreement”, for the purchase and implementation of a “Tape Library Backup System”, hereafter referred to as the “System” for City’s computer systems. B. Pursuant to Paragraph 1 of the Agreement, Contractor has agreed to provide maintenance and support services to City for the “System”. C. City and Contractor desire to memorialize the terms by which Contractor shall provide the “System”. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: I. STANDARD MAINTENANCE Contractor agrees to provide City with a one (1) year Warranty for the System described in and licensed by the Agreement, commencing with Contractor’s certification to City of the readiness of the System. Said Warranty is provided to City at no charge. Upon the first annual renewal date after final acceptance of the System, City shall have the option of purchasing Contractor’s maintenance coverage for a period of one (1) year and renewable annually unless terminated by City, pursuant to the terms set forth herein. As long as City is paying for maintenance with respect to the System under the terms set forth herein, Contractor shall provide to City at no additional cost the following goods and services: A. All program updates and additions for use with the System, which are developed for the System, provided, however, that no such program update or addition shall materially impair the functionality or performance characteristics of the System. B. Phone-in consultation services in which City may request and receive verbal information regarding the use of the System. These services shall be available between the hours of 8:00 a.m. and 8:00 p.m. Mountain Time. C. All program and hardware changes deemed necessary by City (including any program updates and additions) to make the System perform as described in the user guides, provided, however, that no user guide update shall be effective to delete or reduce a functional specification without City’s consent. D. Maintenance services shall be provided with sufficient promptness in an effort to avoid down-time. Whenever onsite maintenance is deemed necessary and crucial by the City, such service will be make available by Contractor within four (4) hours of the request. E. For the term of this System Maintenance Agreement, Contractor shall provide City, on a timely basis, with updates necessary for the ‘System” to continue to accomplish its principal computing functions and with updates reflecting improvements made for the System. If City notifies Contractor that it suspects an error in the “System”, Contractor shall, as part of such support, use its best efforts to confirm the existence of the error and correct it. F. Contractor shall provide City with such modifications to the System as City may reasonably require to maintain the compatibility of the System with new releases or updates of the “System”. Said modifications shall be provided as part of the System Maintenance Agreement at no additional cost. G. City will have the option, at the end of the first year Warranty under this Agreement, to extend such maintenance from year to year. Should City not exercise the option to extend maintenance beyond the first year of maintenance under this Agreement, City retains the right to purchase at cost from Contractor any future releases and/or enhancements to the System, including modifications to the System to maintain its compatibility with new releases of the operating system. II CHARGES The charges for City’s maintenance coverage for the System are as set forth in “Attachment 2”. All maintenance charges are subject to annual increases provided that such increases cannot be accessed during the term of such extended coverage. Annual increases in maintenance coverage are limited to the increase in the previous year’s CPI for Urban Wage Earners (all items) - Western Region or 2%, which ever is less. Executed by Contractor this 92i- day of d, 2001 . CONTRACTOR: City Clerk (Proper notarial acknowledgment of execution by Contractor must be attached. Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. 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: . BALL, City Attorney BY: 1 2 \3;3- Dep ty City Attorney State of California S&/J D lEt$o County of 1 ss. On rUGy lo! d,@d[beforeme, (4gLLed F E(%Abfi4d , Date Name and Title of Officer (e.g., “Jane Doe. Notary Public”) personally appeared hm~c5A 5fnu4qvV-h, + &+A= -I-. Name(sfof Signer(s) 0 personally known to me a proved to me on the basis of satisfactory evidence HELLEN F. STEADMAN Place Notaty Seal Above to be the person(s) whose name(s) *are subscribed to the within instrument and acknowledged to me that he&e/they executed the same in hie&&their authorized capacity(ies), and that by hi&&their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted. executed the instrument. WITNESS my hand and official seal. 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 orTypeof Document: J \/5 r&fl fi6 /2 e&fl Edr Document Date: /Q, ZQQf Number of Pages: 3s Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer’s Name: qlndividual 0 Corporate Officer - Title(s): 0 Partner - q Limited 0 General III Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: _- Signer Is Representing: Top of thumb here k 0 1999 National Notaty Assedation * 9350 De solo Ave., P.O. Box 2402 * Chatsworth. CA 91313-2402 * ww.nalio~Inatary.org Prod. No. 5907 Recder: Call Toll-Fres 14004766927 EXHIBIT B DESCRIPTION OF SERVICES TAPE LIBRARY BACKUP SYSTEM Beginning on a mutually agreed upon date, Lighthouse Technology will coordinate the following STORServer On-Site Installation Services performed by STORServer, (collectively the “Services”): Manufacturing Services: n Integrate the STORServer K Model 3000. Verify the server by performing network connectivity tests and other diagnostics as required. This is done at the STORServer integration facilities. Installation Services: n n n n n n n n n n n Unpack and install the STORServer Hardware. Verify the server by performing network connectivity tests and other diagnostics as required. Conduct pre-installation meeting to determine key personnel and discuss objectives and issues regarding the installation Conduct The City interview with key personnel to determine the optimum TSM configuration. Design and implement the TSM configuration meeting the The City’s needs. Identify, install and configure up to ten (10) supported TSM clients of the The City’s choosing. Verify the successful installation of these clients by observing the TSM activity log and client log files. Configure TSM to perform day-to-day tasks to include copy storage pool backup, migration and database backup. Provide limited operations, or “skills transfer,” training to customer personnel. Provide TSM & STORServer training for two (2) TSM administrators at the STORServer training Colorado Springs facility. Install and configure ten (10) St. Bernard Open File Manager Installation and implementation of the STORSetver Disaster Recovery Manager A Statement of Work and checklist providing more detailed descriptions of these tasks accompanies this document in Attachment “I”. On-site installation typically for a STORServer 3000 series solution takes between two and five days. CITY’S RESPONSIBILITIES TAPE LIBRARY BACKUP SYSTEM A. The City agrees to use the System licensed under this Contract solely for its own use on the City’s computer system(s) provided that any Software delivered by the Contractor in machine readable form may be copied in whole or in part, in printed or machine readable form, solely for the City’s own use for back-up and archival purposes. Accompanying documentation and user guides may be reproduced for internal use, distribution and training purposes only. 8. The City acknowledges that no title to or ownership of the So&are or any of its parts is transferred to the City and the City’s right to use the System shall at all times be subject to the restriction set forth in this Contract. C. The City acknowledges that the System, including modifications made by the Contractor, constitutes valuable property and a trade secret of the Contractor and that all marketing rights to the system and all modifications made by the Contractor remain the Contractor’s property, whether or not any portion is or may be validly copywritten. City, within its control and capacity, agrees to hold all of the System and related documentation in strictest confidence, agrees not to use them except in the performance of this Contract, and agrees to release them only to employees requiring the System and related documentation and not to release or disclose them to any other party, unless required to do so by a court of law or pursuant to applicable public records statutes. D. The City agrees to commit, if feasible, the City personnel necessary to facilitate the implementation; however, any delay in the City’s completion of tasks shall not be a considered a breach of this Contract. E. Additionally The City agrees to provide adequate power and air conditioning shall be available. F. The City’s personnel shall be available and ready to work with the STORServer consultant. G. The City shall designate a single point of contact for the integration service. The STORServer consultant shall receive direction only from this person. H. The City shall provide reasonable workspace. I. The City shall sign and date each item in the Statement of Work Checklist as these items are completed. A completed checklist shall indicate the STORServer On-Site Integration Service is complete. J. The City agrees to use best efforts to operate and maintain the Product by implementation and enforcement of proper procedures including, but not limited to, security procedures and precautions to avoid unauthorized access or use of the Product, maintenance of the Product according to Lighthouse Technology specifications, provision of an operating environment for the product consistent with Lighthouse Technology specifications, and operating procedures and qualified personnel to ensure proper operation and use of the Product, all of which are consistent with those measures used by the City to protect its other, similar equipment, and are consistent with measures generally used in the industry. The City will bear the risk of damages to Product resulting from its sole negligence or its sole failure to implement and enforce those equipment procedures required by this Paragraph J. K. The City will designated a responsible individual to serve as the primary point of contact and make available the technical matter, data, information, operating supplies, and computer system(s), as may be required by Storage Solutions Specialists, Inc. The software implementation services will be warranted for 30 days following the completion of the work. The City will provide remote dial-in access to the system for required warranty remedial support Attachment I - Statement of Work - STORSERVER K SERIES The following tasks shall be completed. Upon completion of each task, the customer shall sign and date in the boxes indicated. STORServer Manufacturing Integration Task TASK 1 - Integrate STORSetver Hardware/Software: Integration of the required equipment will take place in Colorado Springs. Following successful integration of the purchased equipment, the STORServer will be shipped to the customer location identified as: Customer STORServer srgnature Date Completed STORServer On-Site Installation Task TASK 1 - Install STORServer Hardware: n Unpack STORServer hardware components n Place STORServer Hardware in desired location w Connect STORServer hardware components n Cable STORServer power and network connection n Power up the STORServer and begin verification testing: n Configure STORServer IP address w Test network connection using PING n Verify robotic operation using Tivoli Storage Manager (TSM) Audit Library command w Configure the robot as necessary: n Label and checkin tapes TASK 2 - Conduct Installation pre-meeting n Meet with customer representatives to verify the expectations of the installation. Specifically: 7. Determine primary STORServer customer contact 8. Determine who shall participate in the installation to obtain on the job training 9. Determine who at the City will function as the Customer signature Date Completed STORServer On-Site Installation TSM administrator 10. Determine priorities concerning client installations 11. Determine any barriers with respect to time or resources that may hamper the installation 12. Rectify any shortcomings in the overall plan 13. Agree on all tasks to be accomplished during the installation TASK 3 - Conduct customer interview with key personnel to determine the optimum TSM configuration n Meet with key customer personnel to design the optimum TSM configuration to meet business requirements. n Identify backup and archive retention requirements w Identify overall TSM structure desired by the customer n Determine the TSM domains, sets, classes, copy groups, storage pools, backup schedules, etc. to meet the requirements and objectives of the customer n Design the TSM configuration n Gain agreement on this configuration from customer TASK 4 - Implement the TSM configuration meeting the customer’s needs n Implement policy domains, policy sets, management classes and copy groups to reflect correct retention policies. m Implement storage pools to meet performance requirements for backup and restore requests. m Implement server policies to restore the TSM server in case of a disaster (backup db, backup volhist, copy storage pools etc.) n Work with customer personnel to answer technical questions, implement suggestions and perform “knowledge transfe?. TASK 5 - Identify, install and configure up to ten (10) supported TSM clients of the customer’s choosing n Work with customer personnel to identify and install TSM clients n Determine the requirements for the distributed clients as specified by operations personnel, project leader, etc. n Work with customer personnel to identify priority order for client implementation n Install the client code on each client n Install and configure the scheduling component n Verify installation by performing an incremental backup STORServer On-Site Installation n Associate the client with a schedule Client Details Names: Platform Types: Operating Systems: OS Versions: Key Administrator Names: Special Requirements: TASK 6 - Verify the successful installation of clients by observing the TSM activity log and client log files H Client 1 Installed and Verified n Client 2 Installed and Verified n Client 3 Installed and Verified n Client 4 Installed and Verified N Client 5 Installed and Verified n Etc. TASK 7 - Configure TSM to perform day-to-day tasks n Configure STORServer Manager to perform day- today tasks: backup storage pools, migrate storage pools, database backup. n Configure Administrative Schedule to delete database backup volume history information l Verify the above by running STORServer Manager in ad-hoc mode n Verify STORServer Manager in scheduled mode by reviewing the Task Status Log TASK 8 - Skills Transfer STORServer On-Site Installation n During the above tasks, the customer shall provide designated personnel to receive on-the- job training, or skills transfer n Upon completion of the above tasks, the following skills transfer shall be conducted: n Client Software Installation and configuration to augment the on-the-job training received n STORServer Manager overview, configuration and day-to-day tasks n TSM server administration day-to-day tasks including robot and tape operations TASK 9 - Provide technical training for two (2) For TSM/STORServer. The topics covered in the lecture/lab training course include the following items: n Installation/customization of the TSM Server. n Installation and customization of the TSM Administrative and Backup Archive Clients. n Familiarization with the TSM Administrative GUI and command line functions, including: 14. Establishing domains, policy sets, management classes and copy groups. 15. Creating and using TSM macros. 16. Creating automatic schedules for Backup and Archive. n Familiarization with TSM Backup Archive GUI and command line functions. n Configuration of tape drives and libraries n TSM Administrative Functions n Offsite/onsite management n Familiarization with Disaster Recovery Manager n Server backup and recovery Task IO - Disaster Recovery Manager lnstalation and Implementation/Configuration n Load DRM and install licensing n Tie PREPRE to the STORServer Manager functions n Interview customer personnel to determine correct disaster recovery protocol: n System administrator, name, phone number n Vault locations, phone number, contact n Disaster recovery site details n Disaster recovery machine details n Customer fills out text file to customize DRM settings to match customer environment. Lighthouse Technology 5909 Sea Lion Place Z-JUl-Of Carlsbad, CA 92008 :i:.“:contact ~.. .I,,::,, ;:. ~ :.:: j.: Quantiity Fart tirinibsr STORServer K Series T&Is L ;..;g@I$.“,:.;‘i’, : :I: .:,: :’ ::. .:...: ‘: : $111,357 ,. . . . ,., .,. ., .,. . . . . . . . . ,. .., . . . . . . . . . . . . . . . .: . . . . . . . . . . . ,. . . . . . . . . ,.. ,.. . . ., . . . . . . . ./ . . .,. .,. ,.,. . . . . . . ,. ,..... ,.,., ,.; ./ ,. ., ~~ 1 SK-2000-W2k STORSewer 2ooO Wn2K $52,900 $52,900 STORServer 2000 On-Site Installation 1 SI-STORZOOZ STORSewer 2oDo Installation $9. fscQ m, 800 Includes On-Site installation STORServer 2000 Support 1 SR-S2000-SILV Servtce 8x5 - Solution support _ annual $8.400 $8.400 ~~~j!@~g~~~~~$$~~~~ y j :, :.,. ; ;.; ‘.:F: .i.j g ;:.; ‘:- ;,j,:j;,:: i:.:.i:::i.-~.::;::.-i::j:i:i ;:j :;; [$:iji j j ;.;i.i’i’ii::j ; ~.i:j:;::j~~.~~:; /.;:;:3 ‘;,;jii’:;j;i::i:;:;.‘;jii i’i;;:;,;:j i.$ ~,~:~;~~ & :z:!‘:i::: i 3:; 5,; j; ; :.; j.; . : : .. .:! : / ! File-Level LAN/WAN Client 10 SL-TSM-CLI 27 SL-TSM-TRl 2 SL-.rSM-TR2 Stand-Alone Clients Desktops, desk s&a, workstatloo and laptops Tier 1 SeNMS (up ta 4 processors) File, Prmt and Database Servers Intel. AMD Cyrlx 32 bit machines Tier 2 File, Print and Database Servers (From 5 to 23 Pentium processors) (From 1 to 23 RISC and ltaniam processors) RISC. IBM. HP. Sun AS1400 $124 $1.240 $217 $5,859 $465 $930 Client inshll charges during installation are lised below 10 TSM-INST-25 TSM Client lnstallabon l-25-Each $125 $1,250 10 OFM-Clients St. Bernard Open File Manager and 1-yr matntenance $575 $5,750 Client support is charged separately form the Client Su~wort STORServer Model support above. 1 SR-CLNT-85 8x5 Charges for Clients $1,204 $1,204 &.&&&yj @9#&+# &&pg+@# ;;::; j : ; ,:;-.; ;. ;: :. ;:.;::; ;.; -ii. j .‘$ $2 ~.:~.j$~~;,:~; ; ;‘i.; ;,.;Y> i’ j ’ j: i-; $J: ; j ;; y;si.; j: i;c;I,:$ ;.i’ ;,y: i: ,; ‘-.yy:‘;~,i’ ! ; i Disaster Recovery Manager 1 SL-DRM-TRI Tw 1 Server TSM $11,160 $i1.160 1 TSM-INST-DRM lnstallabon $2.790 $2,790 1 SR-DRM85 Addrtronal8x5 Charges for DRM $1,674 $1,674 ~~~~;: .:I,: .,$) .j~::,;~:~:;,j;,: ..:,. i.j‘i~::.,i~~::“:~~~,~~:j’.~~~~~~~:~.~~~~~~~~~~,~~~~~~~~~~~~~~.~~:,~.~~~~~~lil’:~~:~~~~~~:~:~~~,~~~~~~~~~:~.~-~~.~~~~~~,~~~~~~~~,~~,~~~:~~‘::,::;;i~~~:~.~~,~i’.;’.i’.~~~.::’~ i:.,j,;; .: .j;:: This training goes beyond the skills transfer dally operations level training akeady inctuded with instaltation. 2 SI-STRTRN-3 STORSeyer 3-day Tra~~lng(offsite) $1,400 $2.800 ~~~~*: ; ;.:..: ::.: ‘:<j::y ‘.! ::<::j’i:.,, .::,~,::~:~i:‘~~~~li.:‘~~...~,~~~:~~,:~:~~~~~~:~~~~;.:.i:~j.~.”.:~~.‘!:jjii::::i.il::.i:~~:~~.~:‘i.:.~~:~~~:~~~‘~~~~~~.~~~~,~~:~~~.:~.~:I~~~~ ,:.: :;::.$ji.;.: :‘::“y ..: 1 ST-734~GO03-B-BAR BCL for AIT (o-179) $100’ $100 60 ST-646-0034-9 Sony SDX2-50C (AIT2-23OnGOGb) 2 ST-646-0020-8 Sony SDX-TCL - AIT- 30 Cleanings Cartridge $90 $5,400 $50 $100 Shippmg IS NOT mcluded m above costs Quote valrd for 60 days Travel and expenses, and shipping, are not included. All on-site lnst&laUons include sWHs transfer, or daily operations level training.