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14-115 Dragon Fire Consulting for Mobile 95014 Application OFFICE OF THE CITY CLERIC CITY HALL 10300 TORRE AVENUE•CUPERTINO,CA 95014-3255 TELEPHONE:(408)777-3223•FAX: (408)777-3366 WEBSITE:wwwxupertino.org CUPERTINO August 4, 2015 Dragon Fire Consulting 965 E. El Camino Real#333 Sunnyvale, CA 94087 Re: Pt Amendment to agreement for consulting services Enclosed is a fully executed copy of your agreement with the City of Cupertino. If you have any questions or need additional information, please contact the Communications Department at(408) 777-3262 Sincerely, Andrea Sanders Senior Office Assistant City Clerk's Office Enclosure cc: Communications I ST AMENDMENT ONE TO AGREEMENT BETWEEN THE CITY OF CUPERTINO AND DRAGON.FIRE.CONSULTING FOR CONSULTANT SERVICES FOR MOBILE 95014 APPLICATION FOR THE IPHONE/IPAD AND ANDROID PHONE AND TABLET THIS AGREEMENT, for reference dated June 1, 2014, is by and between CITY OF CUPERTINO, a municipal corporation(hereinafter referred to as "City"), and Dragon Fire Consulting(California corporation,partnership, sole proprietor, individual) whose address is 965 E El Camino Real'; #333. Sunnyvale, CA 94087_(hereinafter referred to as "Consultant"), and is made(with ref6rence to'the=following: RECITALS 1. TERM: The term of this Agreement shall commence on June 1, 2014, and shall terminate on October 1, 2014,unless terminated earlier as set forth herein. City and Consultant desire to modify the Agreement on the terms and conditions set forth herein. The tern of this Agreement is modified to: The term of this Agreement shall commence on June 1, 2014 and shall terminate on October 1, 2015,unless terminated earlier as set forth herein. IN WITNESS WHEREOF,the parties have caused the Agreement to be executed. CONSULTANT CITY OF CUPERTINO A Municipal Corporation ASoftw and Nidhi Mathur y ConsultantTitle: Web Specialist Date: July 27, 2015 Date: July 27,'2015 RECOMMENDED FOR APPROVAL: Title kA q x " APPROVED AS TO FORM: City Attorney ATTEST: City Clerk �< OFFICE OF THE CITY CLERK CITY HALL ' 10300 TORRE AVENUE-CUPERTINO, CA 95014-3255 TELEPHONE:(408)777-3223•FAX: (408)777-3366 WEBSITE:www.cupertino.org CUPERTINO June 25, 2014 Dragon Fire Consulting 965 E. El Camino Real #333 Sunnyvale, CA 94087 Re: Agreement for consulting services Enclosed is a fully executed copy of your agreement with the City of Cupertino. If you have any questions or need additional information, please contact the Communications Department at(408) 777-3264. Sincerely, Andrea Sanders Senior Office Assistant City Clerk's Office Enclosure cc: Communications AGREEMENT BETWEEN THE CITY OF CJPERTINO AND DRAGON FIRE CONSULTING FOR CONSULTANT SERVICES FOR MOBILE 95014 APPLICATION FOR THE IPHONE/IPAD AND ANDROID PHONE AND TABLET PO THIS AGREEMENT, for reference dated June 1, 2014, is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and Dragon Fire Consulting (California corporation, partnership, sole proprietor, individual) whose address is 965 E E1 Camino Real, #333. Sunnyvale, CA 94087 (hereinafter referred to as"Consultant"), and is made with reference to the following: RECITALS: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the Constitution and the statutes of the State of California and the Cupertino Municipal Code. B. Consultant is specially trained, experienced and competent to perform the special services which will be required by this .Agreement; and C. Consultant possesses the skill,experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. D. City and Consultant desire to enter into an agreement for upon the terms and conditions herein. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM: The term of this Agreement shall comrrtence on June 1, 2014, and shall terminate on October 1, 2014, unless terminated earlier aS set forth herein. 2. SERVICES TO BE PERFORMED: Consultant shall perform each and every service set forth in Exhibit "A" which is attached hereto and incorporated herein by this reference. 3. COMPENSATION TO CONSULTAiiXT: Consultant shall be,compensated for services performed pursuant to this Agreement in the amount set forth in Exhibit "A" which is attached hereto and incorporated herein by this reference. Payment shall be made by checks drawn on the treasury of the City, to be taken from the 110-8408-9100 fund ($10,000). Payment will be made by the City in the following manner: On the first day of each month, Consultant shall submit a written estimate of the total amount of work done the previous month. Payment shall be made for 90% of the value of the work. The City shall retain 10% of the value of the work as pa:rt:ial security for the completion of the work by Consultant. Retained amounts shall be paid to Consultant within 7 days of acceptance by the City of the project. Payment shall not be construed as acceptance of defective work. No interest will be paid to Consultant on retained funds. 4. STANDARD OF CARE: Consultant agrees to perform all services hereunder in a manner commensurate with the prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with City. 5. INDEPENDENT PARTIES: City and Consultant intend that the relationship between them created by this Agreement is that of employer-independent contractor. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Consultant's services. None of the benefits provided by City to its employees, including but not limited to, unemployment insurance, workers' Compensation plans, vacation and sick leave are available from City to Consultant, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA.payments, PERS payments, or other purposes normally associated with an employe=r--employee relationship from any fees due Consultant. Payments of the above items, if required, are the responsibility of Consultant. 6. IMMIGRATION REFORM AND CONTROL ACT (IRCA): Consultant assumes any and all responsibility for verifying the identity and employment authorization of all of his/her employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Consultant shall indemnify and hold City harmless from and against any loss, damage, liability, costs or expenses arising from any no=ncompliance of this provision by Consultant. 7. NON-DISCRIMINATION: Consistent with City's policy that harassment and discrimination are unacceptable employer/employee conduct, Consultant agrees that harassment or discrimination directed toward a job applicant, a City employee, or a citizen by Consultant or Consultant's employee or subcontractor on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Consultant agrees that any and all violations of this provision shall constitute a material breach:of this Agreement. 8. HOLD HARMLESS:] Indemnification: Consultant shall, to the fullest extent allowed by law, with respect to all services performed in connection with the Agreement, 'indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers from and against any and all liability, claims, actions, causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential or otherwise, arising out, pertaining to, or related to the performance of this Agreement by Consultant or Consultant's employees, officers, officials, agents or independent contractors. Such costs and expenses shall include reasonable attorneys' feces of counsel of City's choice, expert fees and all other costs and fees of litigation. A. Claims for Professional Liability. Where the law establishes a standard of care for Consultant's professional services, and to the extent the Consultant breaches or fails to meet such established standard of care, or is alleged to have breached or failed to meet such standard of care, Consultant shall, to the fullest extent allowed by law, with respect to all services performed in connection with the Agreement, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers from and against any and all liability, claims, actions, causes of action or.demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant or Consultant's employees, officers, officials, agents or independent contractors. Such cosiLs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. Consultant shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees. B. Claims for Other Liability. Consultant shall, to the fullest extent allowed by law, with respect to all services performed in connection with the Agreement, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers against any and all liability, claims, actions, causes of action or demands whatsoever from and against any of them, including any injury to or-death of any person or damage to property or other liability of any nature, that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Consultant or Consultant's employees, officers, officials, agents or independent contractors. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. Consultant shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees. C. Claims involving intellectual property. In addition to the obligations set forth in (A) and (B) above, Consultant shall indemnify, defend, and hold the City, its elected and appointed officers, employees, and volunteers, harmless from and against any Claim in which a violation of intellectual property. rights, including but not limited to copyright or patent rights, is alleged that arises,out of, pertains to, or relates to Consultant's negligence, recklessness or willful misconduct under this Agreement. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. 9. INSURANCE: On or before the commencement of the term of this Agreement, Consultant shall furnish City with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurcarice coverage in compliance with paragraphs 9A, B, C, D and E. Such certificates, which do not limit Consultant's indemnification, shall also contain substantially the following statement: "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to the City of Cupertino by certified mail, Attention: City Manager." It is agreed that Consultant shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. Endorsements naming the City as additional insured shall be submitted with the insurance certificates. A. COVERAGE: Consultant shall maintain the following insurance coverage: (1) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Commercial general liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence $1,000,000 aggregate - all other Property Damage: $100,000 each occurrence $2.50,000 aggregate If submitted, combined single limit policy with aggregate limits in the amounts of$1,000,000 will be considered equivalent to the required minimum limit' shown above. (3) Automotive: Comprehensive automotive liability coverage in the following minimum limits: Bodily Injury: $500,000 each occurrence Property Damage: $100,000 each occurrence or Combined Single Limit: $500,000 each occurrence (4) Professional Liability: Professional liability insurance which includes coverage for the professional acts, errors and omissions of Consultant in the amount .of at least $1,000,000. B. SUBROGATION WAIVED: Consultant agrees that in the event of loss due to any of the perils for which he/she has agreed to provide comprehensive general and automotive liability insurance, Consultant shall look solely to his/her insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right to subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. C. FAILURE TO SECURE: If Consultant at any time during the term hereof should fail to secure or maintain the foregoing insurance, City shall be permitted to obtain such insurance in the Consultant's name or as an agent of the Consultant and shall be compensated by the Consultant for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. ADDITIONAL INSURED: City, its City Council, boards and commissions, officers, employees and volunteers shall be named as an additional insured under all insurance coverages, except any professional liability insurance, required by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. SUFFICIENCY OF INSURANCE: The insurance limits required by City are not represented as being sufficient to protect Consultant. Consultant is advised to confer with Consultant's insurance broker to determine adequate coverage for Consultant. 10. CONFLICT OF INTEREST° Consultant warrants that it is not a conflict of interest for Consultant to perform the services required by this Agreement. Consultant may be required to fill out a conflict of interest form if the services provided under this Agreement require Consultant to make certain governmental decisions-or serve in a stiff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations. 11. PROHIBITION AGAINST TRANSFERS: Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Consultant from City under this Agrelement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of such assignment shall be promptly furnished to City by Consultant. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Consultant is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation. 12. SUBCONTRACTOR APPROVAL: Unless prior written consent from City is obtained, only those people and subcontractors whose names and resumes are attached to this Agreement shall be used in the performance of this Agreement. In the event that Consultant employs subcontractors, such subcontractors shall be required to furnish proof of workers' compenscation insurance and shall also be required to carry general, automobile and professional liability insurance in reasonable conformity to the insurance carried by Consultant. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. 13. PERMITS AND LICENSES: Consultant, at his/her sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses including, but not limited to, a City Business License, that may bee required in connection with the performance of services hereunder. 14. REPORTS: A. Each and every report, draft, work product, map, record and other document, hereinafter collectively referred to as "Report", reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement, shall be the exclusive property of City. Consultant shall not copyright any Report required by this Agreement and shall execute appropriate documents to assign to City the copyright to Reports created pursuant to this Agreement. Any Report, information and data acquired or required by this Agreement shall become the property of City, and all publication rights are reserved to City. Consultant may retain a copy of any report furnished to the City pursuant to this Agreement. B. All Reports prepared by Consultant may be used by City in execution or implementation of: (1) The original Project for which Consultant was hired; (2) Completion of the original Project by others; (3) Subsequent additions to the original project; and/or (4) Other City projects as appropriate. C. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. D. All Reports required to be provided by this Agreement shall be printed on recycled paper. All Reports shall be copied on both sides of the paper except for one original, which shall be single sided. E. No Report, information or other data given to or prepared or assembled by Consultant pursuant to this Agreement shall be made available to any individual or organization by Consultant without prior approval by City. 15. RECORDS: Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting; principles and shall be clearly identified and readily accessible. Consultant shall provide free access to such books and records to the representatives of City or its designees at all proper times, and gives City the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after receipt of final payment. If supplemental examination or audit of the records is necessary due to concerns raised by City's preliminary examination or audit of records, and the City's supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of contract or failure to act in good faith, then Consultant shall reimburse City for all reasonable costs and expenses associated with the supplemental examination or audit. 16. NOTICES: All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals from Consultant to City shall be addressed to City at: City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention: Nidhi Mathur All notices, demands, requests, or approvals from City to Consultant shall be addressed to Consultant at: Dragon Fire Consulting 965 E. El Camino Real, #333. Sunnyvale, CA 94087 cireland@dragonfireconsulting.net 17. TERMINATION: In the event Consultant fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Consultant shall be deemed in default in the performance of this Agreement. If such delbult is not cured within within the time specified after receipt by Consultant from City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, City may terminate the Agreement forthwith by giving to the Consultant written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 18. COMPLIANCES: Consultant shall comply with all state or federal laws and all ordinances, rules and regulations enacted or issued by City. 19. CONFLICT OF LAW: This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rule,which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities) Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Santa Clara, State of California. 20. ADVERTISEMENT: Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 21. WAIVED: A waiver by City of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 22. INTEGRATED CONTRACT: This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 22. INSERTED PROVISIONS: Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 23. CAPTIONS: The Captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect,limit or amplify the terms or provisions of this Agreement: IN WITNESS WHEREOF, the parties have caused the Agreement to be executed. CONSULTANT CI'IFY OF CUPERTINO A Id'unicipal Corporation C 'S.opher elan Niclhi Mathur By Title: So e Consultant Titife: Web Specialist Date: Jun 1, 2014 Date: June 1, 2014 { RECOMMENDED OR PRC)VAL: Title; APPROVED AS TO FORM: J City Attorney A TT'ESf': City CIerk f t)vil,h i1 1t Mobile 95014 S Of Work 1 OBJECTIVE The objective of this contract is to create a molt ile application for the iPhone/Wad and the Android phone and tablet. The iPhone and Wad application will target the current iOS which is version iOS7. The phone and tablet version of Android will be Honeycomb. The mobile application will be a universal tool for-the City of Cupertino residents to get useful information about the city. 2 SCOPE OF WORK The scope of the work will consist of three parts: iPhone /Wad, Android phone/tablet, and Website administration pages. The website web pages will consist of admin pages for City of Cupertino personal to update city of Cupertino data, and a webpage so that the mobile apps can get access to this data. The mobile application will contain the following information: • Environmental Services(Street Sweeping and Garbage/Recycling • News • Events • Push Notifications • Community Services • Schools • Parks • Public Safety • Social Media • Weather • City Council/City Directory 3 SCHEDULE The schedule of release of the application will consist of two release dates. The first release date will contain the webpages to support the mobile application and the iPhone/ Wad application. The release date is scheduled for June. The second release date of the project will be the Android phone and table release date which is scheduled for July or August. 4 ACCEPTANCE During development of the different parts of thel project, TestFlightApp website will be used to make the mobile application available to City of Cupertino personal. Some testing will be done by DragonFire Consulting to verify the completeness of the features. The final acceptance testing of the mobile application will be done by City of Cupertino personal to verify that the mobile application is complete and bug free for release. 5 COMPENSATION The total compensation for this project is $10,000.