05-037, City of San Francisco, Information Technology Services
INFORMATION TECHNOLOGY SERVICES AGREEMENT
BETWEEN
THE CITY OF SOUTH SAN FRANCISCO AND
THE CITY OF CUPERTINO
THIS AGREEMENT for information technology services is made by and between the City of South
San Francisco ("City") and the City of Cupertino ("Cupertino") as of _May 9th, 2005.
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement, City shall
provide to Cupertino the services described in the Scope of Services attached hereto as Exhibit A at the
time and place and in the manner specified therein. In the event of a conflict in or inconsistency between
the terms of this Agreement and Exhibit A, the Agreement shall prevail.
Section 2.
following:
1.1
Term of Services. The term of this Agreement shall begin on the date first noted above
and shall continue from month-to-month. Any party may terminate this Agreement at any
time, by giving written notice thirty (30) days in advance.
1.2
Standard of Performance. City agrees to perform all services required pursuant to this
Agreement in the manner and according to the standards observed by a competent
provider elf Information Technology services in the geographical area in which City
provides services.
1.3
Assianment of Personnel. City shall assign only competent personnel to perform
services pursuant to this Agreement. City may assign employees of the City of South San
Francisco or employees of business partners of City to perform services pursuant to this
Agreement.
1.4
Time. City shall devote such time to the performance of services pursuant to this
Agreement as may be reasonably necessary to meet the standard of performance
provided in Section 1.2 above and to satisfy City's obligations hereunder.
1.5
Confidential Information. City and Cupertino agree to use confidential information solely
in accordance with the provisions of this Agreement and will not disclose, or permit to be
disclosed, either directly or indirectly, confidential information to any third party without
prior written authorization. Notwithstanding anything to the contrary herein, neither party
bears responsibility for safeguarding information that is (a) publicly available; (b) obtained
from third-parties no under confidentiality restrictions; (c) required to be disclosed by law.
COMPENSATION. Cupertino hereby agrees to pay to City fees in accordance with the
2.1
Fees. Fees based on the provision of services to Cupertino in accordance with the fee
schedule attached hereto as Exhibit A. All fees are payable in U.S. dollars.
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City of South San Francisco and City of Cupertino
date
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2.2 Invoices. City shall submit invoices, not more than once a month during the term of this
Agreement, based on the cost for services performed and reimbursable costs incurred
prior to the invoice date.
2.3 Monthlv Payment. Cupertino shall make monthly payments, based on invoices received,
for services satisfactorily performed, and for authorized reimbursable costs incurred.
Cupertino shall have thirty (30) days from the receipt of an invoice to pay City.
2.4
Reimbursable EXDenses. Reimbursable expenses are specified in the schedule attached
hereto.i3s exhibit A. _ _ - { Deleted: as~
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2.5 Additional Services. Cupertino may purchase services in addition to those listed in
Exhibit A for additional monthly fees to be negotiated at that time by the parties.
2.6 No EXDiration of Fee Obliaation. Notwithstanding any other provision of this Agreement,
regardless of the occurrence of any termination of this Agreement, all fees and other
payment obligations shall continue hereunder for so long as Cupertino uses the
_service_.
Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Cupertino shall, at its sole
cost and expense, provide all facilities and equipment that may be necessary to perform the services
required by this Agreement. City shall make available to Cupertino only the facilities and equipment listed
in this section, and only under the terms and conditions set forth herein.
3.1 Hardware. NONE
3.2 Software. NONE
3.3 Network Infrastructure. NONE
3.4 Telecommunications Infrastructure. NONE
Section 4. Effective October 1, 2002, the City participates in the Association of Bay Area
Governments Pooled Liability Assurance Network (ABAG PLAN) organized within the Joint Powers
Authority Association of Bay Area Governments. The PLAN provides $10,000,000 coverage for general
and automobile liability in excess of the City's $50,000 deductible. Prior to this, the City is self-insured for
General Liability, Auto Liability, Public Officials Errors and Omissions including Employment Practices
Liability claims up to $100,000 per occurrence. Claims in excess of this amount are insured up to $9 million
with commercial insurance companies, with the exception of Employment Practices Liability, which is
sublimited to $5 million. The City contracted with a third-party administrator for the administration of the
program.
Section 5.
INDEMNIFICATION.
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City of South San Francisco and City of Cupertino
date
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Cupertino shall indemnify, defend with counsel acceptable to City, and hold harmless the City and its
officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims,
suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life,
or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent
caused, (i) by the willful misconduct or negligent acts or omissions of Cupertino or its employees,
subcontractors, or agents, (ii) by acts for which they could be held strictly liable, or (iii) by the quality or
character of their work. The foregoing obligation of Cupertino shall not apply when (1) the injury, loss of
life, damage to property, or violation of law arises wholly from the negligence or willful misconduct of the
City or its officers, employees, agents, or volunteers and (2) the actions of Cupertino or its employees,
subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of Cupertino to indemnify and hold harmless includes the
duty to defend as set forth in Section 2778 of the California Civil Code. This indemnification and hold
harmless clause shall apply to any damages or claims for damages whether or not such insurance
policies shall have been determined to apply. By execution of this Agreement, Cupertino acknowledges
and agrees to the provisions of this Section and that it is a material element of consideration.
City shall indemnify, defend with counsel acceptable to Cupertino, and hold harmless Cupertino and its
officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims,
suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life,
or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent
caused, (i) by the willful misconduct or negligent acts or omissions of City or its employees,
subcontractors, or agents, (ii) by acts for which they could be held strictly liable, or (iii) by the quality or
character of their work. The foregoing obligation of City shall not apply when (1) the injury, loss of life,
damage to property, or violation of law arises wholly from the negligence or willful misconduct of
Cupertino or its officers, employees, agents, or volunteers and (2) the actions of City or its employees,
subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or
violation of law. It is understood that the duty of City to indemnify and hold harmless includes the duty to
defend as set forth in Section 2778 of the California Civil Code. This indemnification and hold harmless
clause shall apply to any damages or claims for damages whether or not such insurance policies shall
have been determined to apply. By execution of this Agreement, City acknowledges and agrees to the
provisions of this Section and that it is a material element of consideration.
Section 6.
STATUS OF CITY.
6.1
Indeoendent Contractor. At all times during the term of this Agreement, City shall be an
independent contractor and shall not be an employee of Cupertino. Cupertino shall have
the right to control City only insofar as the results of City's services rendered pursuant to
this Agreement; however, otherwise Cupertino shall not have the right to control the means
by which City accomplishes services rendered pursuant to this Agreement.
6.2
City No Aaent. Except as Cupertino may specify in writing, City shall have no authority,
express or implied, to act on behalf of Cupertino in any capacity whatsoever as an agent.
City shall have no authority, express or implied, pursuant to this Agreement to bind
Cupertino to any obligation whatsoever.
Section 7.
LEGAL REQUIREMENTS.
7.1
Governina Law. The laws of the State of California shall govern this Agreement.
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City of South San Francisco and City of Cupertino
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7.2 Comoliance with Aoolicable Laws. City and any subcontractors shall comply with all
laws applicable to the performance of the work hereunder.
7.3 Other Governmental Reaulations. To the extent that this Agreement may be funded by
fiscal assistance from another governmental entity, City and any subcontractors shall
comply with all applicable rules and regulations to which Cupertino is bound by the terms
of such fiscal assistance program.
7.4 Licenses and Permits. City represents and warrants to Cupertino that City and its
employees, agents, and any subcontractors have all licenses, permits, qualifications, and
approvals of whatsoever nature that are legally required to practice their respective
professions. City represents and warrants to Cupertino that City and its employees,
agents, any subcontractors shall, at their sole cost and expense, keep in effect at all times
during the term of this Agreement any licenses, permits, and approvals that are legally
required to practice their respective professions. In addition to the foregoing, City and any
subcontractors shall obtain and maintain during the term of this Agreement valid Business
Licenses from Cupertino.
7.5 Nondiscrimination and Eaual Oooortunitv. City shall not discriminate, on the basis of a
person's race, religion, color, national origin, age, physical or mental handicap or disability,
medical condition, marital status, sex, or sexual orientation, against any employee,
applicant for employment, subcontractor, bidder for a subcontract, or participant in,
recipient of, or applicant for any services or programs provided by City under this
Agreement. City shall comply with all applicable federal, state, and local laws, policies,
rules, and requirements related to equal opportunity and nondiscrimination in employment,
contracting, and the provision of any services that are the subject of this Agreement,
including but not limited to the satisfaction of any positive obligations required of City
thereby.
City shall include the provisions of this Subsection in any subcontract approved by the
Contract Administrator or this Agreement.
Section 8.
TERMINATION AND MODIFICATION.
8.1 Termination. Either party may terminate the agreement at any time with or
without cause upon 30 days prior written notice to the other party.
In the event of termination, City shall be entitled to compensation for services performed
up to and including the effective date of termination; Cupertino, however, may condition
payment of such compensation upon City's delivering to Cupertino any or all documents,
photographs, computer software, video and audio tapes, and other materials provided to
City or prepared by or for Cupertino or the City in connection with this Agreement.
8.2 Amendments. The parties may amend this Agreement only by a writing signed by all the
parties.
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City of South San Francisco and City of Cupertino
date
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8.3 Assianment and Subcontractina. City and Cupertino recognize and agree that this
Agreement contemplates performance by City and is based upon a determination of City's
unique competence, experience, and specialized knowledge. Moreover, a substantial
inducement to Cupertino for entering into this Agreement was and is the professional
reputation and competence of City. City may not assign this Agreement or any interest
therein without the prior written approval of Cupertino. City shall not subcontract any
portion of the performance contemplated and provided for herein without prior written
approval of Cupertino.
8.4 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between City and Cupertino shall survive
the termination of this Agreement.
8.5 Ootions uoon Breach by City. If City materially breaches any of the terms of this
Agreement, Cupertino's remedies shall include but not be limited to, all of the following:
8.5.1 Immediately terminate the Agreement;
8.5.2 Retain the work product prepared by City pursuant to this Agreement;
8.5.3 Retain a different service provider to complete the work described in Exhibit A not
finished by City.
8.6 Return of Information. Upon termination of this Agreement for any reason whatsoever, City
immediately shall return to Cupertino all confidential information within the possession or
control of City or its personnel.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 City's Books and Records. City shall maintain any and all ledgers, books of account,
invoices, vouchers, canceled checks, and other records or documents evidencing or
relating to charges for services or expenditures and disbursements charged to the City
under this Agreement for a minimum of three (3) years, or for any longer period required
by law, from the date of final payment to the City to this Agreement. .
9.2 Insoection and Audit of Records. Any records or documents that Section 9.2 of this
Agreement requires City to maintain shall be made available for inspection, audit, and/or
copying at any time during regular business hours, upon oral or written request of the City.
Under California Government Code Section 8546.7, if the amount of public funds
expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the
Agreement shall be subject to the examination and audit of the State Auditor, at the
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City of South San Francisco and City of Cupertino
date
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request of City or as part of any audit of the City, for a period of three (3) years after final
payment under the Agreement.
Section 10 MISCELLANEOUS PROVISIONS.
10.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for
declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees in addition to any other relief to which
that party may be entitled. The court may set such fees in the same action or in a
separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under this
Agreement, the parties agree that trial of such action shall be vested exclusively in the
state courts of California in the County of San Mateo or in the United States District Court
for the Northern District of California.
10.3 Severabilitv. If a court of competent jurisdiction finds or rules that any provision of this
Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so
adjudged shall remain in full force and effect. The invalidity in whole or in part of any
provision of this Agreement shall not void or affect the validity of any other provision of this
Agreement.
10.4 No Imolied Waiver of Breach. The waiver of any breach of a specific provision of this
Agreement does not constitute a waiver of any other breach of that term or any other term
of this Agreement.
10.5 Successors and Assians. The provisions of this Agreement shall inure to the benefit of
and shall apply to and bind the successors and assigns of the parties.
10.6 Use of Recycled Products. City shall prepare and submit all reports, written studies and
other printed material on recycled paper to the extent it is available at equal or less cost
than virgin paper.
10.7 Contract Administration. This Agreement shall be administered by Doug Hollis,
Director of Information Technology ("Contract Administrator"). All correspondence
shall be directed to or through the Contract Administrator or his or her designee.
10.8 Notices. Any written notice to the City of Cupertino shall be sent to:
Carol Atwood
Director of Administrative Services
City of Cupertino
Cupertino, CA 94010
Tel No (408) 777-3226
Carola@cupertino.org
Information Technology Services Agreement between
City of South San Francisco and City of Cupertino
date
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Any written notice to City shall be sent to:
Doug Hollis
Director of Information Technology
City of South San Francisco
South San Francisco, CA 94080
Tel No 650.829.3919
Fax No 650.875.6915
doughollis@ssf.net
10.9 Intearation. This Agreement, including the scope of work , and the fee schedule attached
hereto and incorporated herein as Exhibit A, represents the entire and integrated agreement
between City and City and supersedes all prior negotiations, representations, or agreements,
either written or oral.
10.10 Hirina. Cupertino shall not hire an SSF employee or contract employee for 6 months after
termination from SSF without expressed approval from SSF and/or a possible fee of $5,000.
CITY OF SOUTH SAN FRANCISCO
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CITY OF CUPERTINO
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David Knapp, City Manager
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Information Technology Services Agreement between
City of South San Francisco and City of Cupertino
date
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EXHIBIT A
EXHIBIT A
SERVICES AND FEES
I. Scope of Services
Desktop Support
IT Management
Third party Services (at Cupertino's request and upon Cupertino's prior approval):
Network Infrastructure*
Network Administration*
Telecommunications*
Application Support
*TEA, a business partner of City, may be used to provide these services.
2. Maintenance and Support Services, Response Time. and Contacts
a. Services: I. On-site support.
ii. Phone support via the SFF Help Desk (includes Dial-in
support/Remote support).
b. Response Time:
i. Normal business hours: approximately two hours.
(Applies to all service requests received during normal business hours.)
ii. After hours: approximately four hours.
c. Cupertino shall report a problem by either:
i. Phone call to the SSF Help Desk at 650.829.3915
ii. Email tosupport~SSF.net
Reporting a problem any other way may delay support. Reporting the problem as
set forth above means that more than one City person will be able to know that
there is a support need.
d. Quinton Adams is the primary Cupertino contact for all support requests.
Phone: (408) 777-3252. Email: Quintona@cupertino.org.
3. Fees and Costs
IT Management:
Third Party Services:
During normal business hours: $ 85 per hour **
During after hours: $125 per hour**
$130 per hour**
Pass-through costs (without any mark-up)
a. Desktop Support:
Information Technology Services Agreement between
City of South San Francisco and City of Cupertino Page 1 of 3
5/10/2005
**Hourly rates will be evaluated each July.
b. Travel time (billed in 30 minute increments) and phone support (billed in 15 minute
increments) shall be billed at the same hourly rate as for Desktop Support.
c. City may purchase replacement parts using City's business partners and stock on hand.
Replacement parts shall be billed to Cupertino at cost plus 15% handling.
4. Normal Business Hours and After Hours
Normal business hours are Monday through Friday, 8 a.m. to 5 p.m., excluding holidays
observed by City (i.e., when the City Clerk's office is closed). After hours are all times
other than normal business hours.
i.
Information Technology Services Agreement between
City of South San Francisco and City of Cupertino Page 2 of 3
5/10/2005