HomeMy WebLinkAboutF.H. BLACK & COMPANY, INC.INSURANCE NOT ON FILE
WORK MAY NOT PROCEED N-2019-027
CLERK OF COUNCIL
DATE: FEB 0 4 2019
® AGREEMENT WITH F.H. BLACK & COMPANY, INC.
TO PROVIDE TECHNICAL CONSULTANT SERVICES TO IMPLEMENT
\vc�fo CAy'�' CITYWIDE BUDGET MANAGEMENT SOFTWARE
THIS AGREEMENT is made and entered into this 7`s day of March, 2018 by and between F.H.
Black & Company, Inc., ("Consultant'), and the City of Santa Ana, a charter city and municipal
corporation organized and existing under the Constitution and laws of the State of California
("City").
RECITALS
A. On May 4, 2017, the City issued a Request for Proposal ("RFP) #17-053, by which it sought
consultants with extensive experience in providing budget management software for large
organizations to deliver a public sector budgeting solution that supports the various needs
of the budget office and City departments in the development and publication of the City's
annual budget and related documents.
B. Consultant's services were presented to the City as part of a responsive proposal submitted
by Questica, LTD, and selected by the City. As part of the implementation of the Citywide
Budget Management Software, City will purchase a separate software package from
CaseWare to publish the City's budget. Consultant shall provide technical consultant
services to implement and install the CaseWare software required by the City and provide
additional services as required by the City. Consultant represents that it is able and willing
to provide such services to the City.
C. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
Consultant shall perform during the term of this Agreement, the tasks and obligations
including all labor, materials, tools, equipment, and incidental customary work required to fully
and adequately complete the services which includes the initial implementation and related
services to install and maintain the CaseWare software which will allow the City to automatically
publish its budget book.
2. COMPENSATION
a. The total amount to be expended during the term of this Agreement shall not exceed
$23,949. This amount includes: 1) $10,000 for custom training of five (5) users; 2)
$13,650 for seventy (70) hours of consulting at a standard hourly rate; and 3) $299 for
the Questica Sync Tool.
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b. Consultant shall not charge the City for any annual fees associated with the
implementation of the CaseWare software. This does not include maintenance services
costs as provided above.
c. Payment by City shall be made within 45 days (forty-five) days following receipt of
proper invoice evidencing work performed, subject to City accounting procedures.
Payment need not be made for work which fails to meet the standards of performance
set forth in the Recitals which may reasonably be expected by City.
3. TERM
This Agreement shall commence on the date first written above for a one (1) year term,
unless terminated earlier in accordance with Section 14, below.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor shall
it be construed to create an employer-employee relationship, a joint venture relationship, or to
allow the City to exercise discretion or control over the professional manner in which Consultant
performs the services which are the subject matter of this Agreement; however, the services to be
provided by Consultant shall be provided in a manner consistent with all applicable standards and
regulations governing such services. Consultant shall pay all salaries and wages, employer's social
security taxes, unemployment insurance and similar taxes relating to employees and shall be
responsible for all applicable withholding taxes.
5. OWNERSHIP OF MATERIALS
This Agreement creates a non -transferable and perpetual license for City to copy, use,
modify, or reuse any and all copyrights, designs, and other intellectual property embodied in plans,
specifications, studies, drawings, estimates, and other documents or works of authorship fixed in
any tangible medium of expression, including but not limited to, physical drawings or data
magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be
prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all
subcontractors to agree in writing that City is granted a non -transferable and perpetual license for
any Documents & Data the subcontractor prepares under this Agreement. Consultant represents
and warrants that Consultant has the legal right to license any and all Documents & Data.
Consultant makes no such representation and warranty in regard to Documents & Data which were
provided to Consultant by the City. Consultant retains all right and title to any computer programs
and related intellectual capital created under the terms of this Agreement and is able to use such
IP for other customers. F.H. Black & Company Incorporated shall retain all right and title to any
computer programs and related intellectual capital developed hereunder (collectively, the
"Intellectual Property") and shall have the right to incorporate such Intellectual Property in work
for other customers and in its programs generally. Upon payment of agreed fees, the City shall
have a non-exclusive, non -transferable 99 year license to use such Intellectual Property for its and
its affiliated companies' internal business use only. The City expressly recognizes that it is not the
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owner of such Intellectual Property and has no right to use such Intellectual Property except as
expressly stated in this Agreement. Nothing in this Agreement shall be construed as restraining
F.H. Black & Company Incorporated, its employees, agents, or subcontractors in the subsequent
use of techniques and skills which may be acquired in the course of performance of this
Agreement, or providing our client with any rights to the F.H. Black & Company Incorporated
Intellectual Property. City shall not be limited in any way in its use of the Documents and Data at
any time, provided City's use of the Documents and Data does not breach any terms of this
Agreement and provided further that any such use not within the purposes intended by this
Agreement shall be at City's sole risk.
6. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall maintain
and shall require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Commercial General Liability Insurance. Consultant shall maintain commercial
general liability insurance naming the City, its officers, employees, agents,
volunteers and representatives as additional insured(s) and shall include, but not be
limited to protection against claims arising from bodily and personal injury,
including death resulting therefrom and damage to property, resulting from any act
or occurrence arising out of Consultant's operations in the performance of this
Agreement, including, without limitation, acts involving vehicles. The amounts of
insurance shall be not less than the following: single limit coverage applying to
bodily and personal injury, including death resulting therefrom, and property
damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the
aggregate. Such insurance shall (a) name the City, its officers, employees, agents,
and representatives as additional insured(s); (b) be primary and not contributory
with respect to insurance or self-insurance programs maintained by the City; and
(c) contain standard separation of insureds provisions.
b. Worker's Compensation Insurance. In accordance with the provisions of Section
3700 of the Labor Code, Consultant, if Consultant has any employees, is required
to be insured against liability for worker's compensation or to undertake self-
insurance. Prior to commencing the performance of the work under this
Agreement, Consultant agrees to obtain and maintain any employer's liability
insurance with limits not less than $1,000,000 per accident.
C. The following requirements apply to the insurance to be provided by Consultant
pursuant to this section:
i. Consultant shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
ii. Certificates of insurance shall be furnished to the City upon execution of
this Agreement and shall be approved by the City.
iii. Certificates and policies shall state that the policies shall not be canceled or
reduced in coverage or changed in any other material aspect without thirty
(30) days prior written notice to the City.
iv. Consultant shall supply City with a fully executed additional insured
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endorsement
d. If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has
been procured and is in force and paid for, the City shall have the right, at the City's
election, to forthwith terminate this Agreement. Such termination shall not affect
Consultant's right to be paid for its time and materials expended prior to notification
of termination. Consultant waives the right to receive compensation and agrees to
indemnify the City for any work performed prior to approval of insurance by the
City.
7. INDEMNIFICATION
The parties agree to defend, and shall indemnify and hold harmless its officers, agents,
employees, contractors, special counsel, and representatives from liability: (1) for personal injury,
damages, just compensation, restitution, judicial or equitable relief arising out of claims for
personal injury, including death, and claims for property damage, which may arise from the
negligent operations of the Consultant, its subcontractors, agents, employees, or other persons
acting on its behalf which relates to the services described in section 1 of this Agreement; and (2)
from any claim that personal injury, damages, just compensation, restitution, judicial or equitable
relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and
hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial
or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in
this Section or by reason of the terms of, or effects, arising from this Agreement. The obligations
of the parties pursuant to this section shall survive the expiration or earlier termination of this
Agreement.
8. RECORDS
Consultant shall keep records and invoices in connection with the work to be performed
under this Agreement. Consultant shall maintain complete and accurate records with respect to
the costs incurred under this Agreement and any services, expenditures, and disbursements
charged to the City for a minimum period of three (3) years, or for any longer period required by
law, from the date of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of the City to
examine, audit, and make transcripts or copies of such records and any other documents created
pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all
work, data, documents, proceedings, and activities related to this Agreement for a period of three
(3) years from the date of final payment to Consultant under this Agreement.
9. CONFIDENTIALITY
The parties agree that information which due to the nature of such information is
reasonably understood to be confidential and/or proprietary, each party agrees that it shall not use
or disclose such information except in the performance of this Agreement, and further agrees to
exercise the same degree of care it uses to protect its own information of like importance, but in
no event less than reasonable care. Confidential information includes not only written information,
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but also information transferred orally, visually, electronically, or by other means. Confidential
information disclosed to either party by any subsidiary and/or agent of the other party is covered
by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any
information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the
parties disclosed in a publicly available source; (c) is in rightful possession of the parties without
an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is
independently developed by each party without reference to information disclosed by the other.
The obligations of the parties pursuant to this section shall survive the expiration or earlier
termination of this Agreement.
10. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct
or indirect, which would conflict in any manner with performance of services specified under this
Agreement.
11. DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital status,
sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by
applicable law, in the recruitment, selection, training, utilization, promotion, termination or other
employment related activities. Consultant affirms that it is an equal opportunity employer and shall
comply with all applicable federal, state and local laws and regulations.
12. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties. In
the event of a conflict between the terms of this Agreement and any attachments hereto, the terms
of this Agreement shall prevail. This Agreement may not be modified except by written instrument
signed by the City and by an authorized representative of Consultant. The parties agree that any
terms or conditions of any purchase order or other instrument that are inconsistent with, or in
addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each
party to this Agreement acknowledges that no representations, inducements, promises or
agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any
party, which is not embodied herein.
13. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement shall
be construed to limit the City's ability to have any of the services which are the subject to this
Agreement performed by City personnel or by other consultants retained by City.
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14. TERMINATION
This Agreement may be terminated by the parties upon thirty (30) days written notice of
termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant
compensation for all services performed by Consultant prior to receipt of such notice of
termination, subject to the following conditions:
a. As a condition of such payment, the Executive Director may require Consultant to
deliver to the City all work product(s) completed as of such date, and in such case
such work product shall be the property of the City unless prohibited by law, and
Consultant consents to the City's use thereof for such purposes as the City deems
appropriate.
b. Payment need not be made for work which fails to meet the standard of
performance specified in the Recitals of this Agreement.
15. WAIVER
No waiver of breach, failure of any condition, or any right or remedy contained in or
granted by the provisions of this Agreement shall be effective unless it is in writing and signed by
the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or
remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not
similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.
16. JURISDICTION - VENUE
This Agreement has been executed and delivered in the State of California and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be
determined and governed by the laws of the State of California. Both parties further agree that
Orange County, California, shall be the venue for any action or proceeding that may be brought or
arise out of, in connection with or by reason of this Agreement.
17. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder
and required by the laws and regulations of the United States, the State of California, the City of
Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and
in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and
exemptions. Said inability shall be cause for termination of this Agreement.
18. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the
power, authority and right to bind their respective parties to each of the terms of
this Agreement, and shall indemnify City fully, including reasonable costs and
attorney's fees, for any injuries or damages to City in the event that such authority
or power is not, in fact, held by the signatory or is withdrawn.
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b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully
set forth in the body of this Agreement.
C. Consultant does not warrant, nor will we be responsible for, the performance of
any third party products. C it y' s sole and exclusive rights and remedies with
respect to any third party product, including rights and remedies in the event a
third party product gives rise to an infringement claim, will be against the third
party vendor and not against us. Consultant does agree, however, to assign to you
any assignable warranties it may receive from any such third party vendor. THE
PRECEDING IS CONSULTANT'S ONLY WARRANTY CONCERNING THE
SERVICES AND ANY WORK PRODUCT, AND IS MADE EXPRESSLY IN
LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS
OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS
FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE,
TO THE MAXIMUM EXTENT PERMITTED BY LAW.
d. City agrees to not solicit employees of F.H. Black during the term of this Agreement
19. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this Agreement
shall be in writing and shall be deemed to be properly given if delivered in person or mailed by
first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in
the manner provided in this Section, to the following persons:
To City:
Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax: 714- 647-6956
With courtesy copies to:
Executive Director, Sonia R. Carvalho
Finance and Management Services Agency City Attorney
City of Santa Ana City of Santa Ana
20 Civic Center Plaza (1\4-17) 20 Civic Center Plaza (M-29)
P.O. Box 1988 P.O. Box 1988
Santa Ana, California 92702 Santa Ana, California 92702
Fax: 714- 647-6515
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N-2019-027
To Consultant:
F.H. Black & Company, Inc.
Attn: Jamie Black
36 Roslyn Road
Winnipeg, MB
R3L OG6
A party may change its address by giving notice in writing to the other party. Thereafter,
any communication shall be addressed and transmitted to the new address. If sent by mail,
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by fax, communication shall be effective or deemed to have
been given twenty-four (24) hours after the time set forth on the transmission report issued by the
transmitting facsimile machine, addressed as set forth above. For purposes of calculating these
time frames, weekends, federal, state, County or City holidays shall be excluded.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first
above written.
1
Norma Mitre
Acting Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:�t-
Lisa Storck
Assistant City Attorney
RECOMMENDED FOR APPROVAL:
— 6�"
Kathryn
Downs, CPA
Executive Director
Finance and Management Services Agency
CITY OF SANTA ANA
�c `---
STEVEN A. MENDOZA
Acting City Manager
F.H. BLACK & COMPANY, INC.:
law e Flack
By: Jamie Black
Title: President
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F.H. Black & Company Incorporated
Efficient I Effective I Reliable
PREPAID SERVICE LEVEL AGREEMENTS
Rates are effective June 1, 2017 and are subject to change without notice.
All fees are subject to applicable taxes.
Service Level Agreement
® Standard Time and Materials
❑ Standard Level Agreement (25 Hrs.)
❑ Standard Level Agreement (40 Hrs.)
❑ Enhanced Level Agreement (70 Hrs.)
Price
$195/hr
Min. charge per incident I hr.
$4,625
Effective hourly rate =$185
$7,000
Effective hourly rate =$175
$11,550
Effective hourly rate =$165
Exhibit A
• Standard Time and Materials will be billed at the current standard hourly rate. At the time of issuance, this
rate was $195. You will be notified in advance of any changes to the standard hourly rate.
• Unused hours, purchased pursuant to this Service Level Agreement expire 36 months from the date of
purchase.
• This agreement, inclusive of FHB's Standard Agreement Terms, constitutes the entire agreement between
the parties with respect to all of the matters herein and its execution has not been induced by, nor do
either of the parties hereto rely upon or regard as material, any representations or writings whatsoever
made by or on behalf of the parties or their respective agents not expressly incorporated herein in writing.
No modifications or amendments are valid unless rendered in writing and signed by both parties.
• Fees respecting unused hours are non-refundable and quoted in US dollars.
• We accept pre -payment by cheque or electronic funds transfer.
Please check the appropriate box to select a level of service and return a signed copy of this document to us.
Sincerely,
F.H. Black & Company Incorporated
Per:
'X.4 A"
Jamie Black
Director of IT Services
The services and terms set out above are agreed.
Company:
Per:
AUTHOR17ED SIGNATURE
Date:
AUg.t4,2017 USA SLA NoTax 20 I7
CERTIFICATE OF INSURANCE
Certificate Holder: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702 USA
Named Insured: F.H. Black & Company Inc.
36 Roslyn Road
Winnipeg, MB R3LOG6
Schedule o
Type of Company Policy
Policy
Insurance and Effective
Expiry
Policy Date
Date
Number
COMMERCIAL
GENERAL
LIABILITY
Trisura i March 21,
Guarantee 2018
Insurance
i
Company
Policy No. i
TOP1003266 i
This is to certify that the policies of insurance listed below have been issued to the
insured named above for the policy period indicated, notwithstanding any
requirement, term or condition of any contract or other document with respect to
which this certificate may be issued or may pertain. The insurance afforded by
the policies described herein is subject to all the terms, exclusions and conditions
of such policies. Limits shown may have been reduced by paid claims/expenses.
This Certificate is issued as a matter of information only and confers no rights
upon the Certificate Holder. This certificate does not amend, extend or alter the
coverage afforded by the policy listed herein. Where an aggregate limit applies,
the Certificate Holder is advised that the limit shown may apply to projects other
than shown in this Certificate and the Limit may be reduced by Claims/Expenses
paid.
flnsurance
March 21, i $2,000,000
2019 ! $2,000,000
$2,000,000
$2,000,000
$500,000
! $5,000
$1,000,000
Amounts in Canadian Dollars
Limit of Liability/Amount
Bodily Injury & Property Damage - Each Occurrence
General Annual Aggregate
Personal & Advertising Injury Limit
Products -Completed Operations Aggregate Limit
Tenant's Legal Liability
Medical Payments, any one person
Non -Owned Auto Liability
Policy Includes: ® City of Santa Ana is added as an Additional Insured on the Commercial General Liability policy but only with respect to the
Operations of the Named Insured
(ONLY IF INDICATED BY'X')
------------- ._._-I ._._._._._._._._'-------------------------- ._-_-_-_._._._i_._._._._._._._._._._._._..
ERRORS & ' Trisura I March 21, ! March 21, I $2,000,000 I Each Claim
OMISSIONS ;Guarantee i 2018 2019 i $2,000,000 i Aggregate Limit of Liability
' Insurance
Company
i Policy No.
i TPL1009568 i
Policy Includes: ® Evidence only of Errors & Omissions Insurance
IF INDICATED BY W)
Retroactive Date: March 21, 2017
$5,000 Deductible
Cancellation: Should any of the above described policies be cancelled before the expiration date thereof, the issuing company will endeavor to mail
30 days written notice, or 15 days written notice for non-payment of premium, to the certificate holder.
DATE: November 5, 2018
ISSUED BY:
LMS PROUNK Ltd. &
PROUNK Insurance Group Inc.
800 - 480 University Avenue
Toronto, ON MSG 1V2
Phone: 416-595-7484
Fax: 416-595-1649
PRO_-INX
J.V. McCabe, FCIP
Chairman of the Board, PROLINK