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CONTRACT 3311 Professional Services Agreement CLOSED33 1 1 403 AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES BETWEEN THE CITY OF EL SEGUNDO AND GARTNER, INC. FOR THE PUBLIC SAFETY COMMUNICATIONS CENTER This AGREEMENT is entered into this 10th day of February 2004, by and between the CITY OF EL SEGUNDO, a general law city and municipal corporation ( "CITY ") and GARTNER, INC., a Delaware Corporation ( "CONSULTANT "). 1. CONSIDERATION. As partial consideration, CONSULTANT agrees to perform the work listed in the SCOPE OF SERVICES, below; As additional consideration, CONSULTANT and CITY agree to abide by the terms and conditions contained in this Agreement; As additional consideration, CITY agrees to pay CONSULTANT a sum not to exceed Nine Thousand Five Hundred Dollars ($9,500) for CONSULTANT's services. CITY may modify this amount as set forth below. Unless otherwise specified by written amendment to this Agreement, CITY will pay CONSULTANT on a monthly basis thirty (30) days after receiving an invoice. 2. SCOPE OF SERVICES. CONSULTANT will perform services listed in the attached Exhibit "A," which is incorporated herein. CONSULTANT will, in a professional manner, furnish all of the labor, technical, administrative, professional and other personnel, all supplies and materials, equipment, printing, vehicles, transportation, office space and facilities, and all tests, testing and analyses, calculation, and all other means whatsoever, except as herein otherwise expressly specified to be furnished by CITY, necessary or proper to perform and complete the work and provide the professional services required of CONSULTANT by this Agreement. 3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT will use the appropriate generally accepted professional standards of practice existing at the time of performance utilized by persons engaged in providing similar services. CITY will continuously monitor CONSULTANT's services. In the event CITY notifies CONSULTANT of any deficiencies, CONSULTANT will have fifteen (15) days after such notification to cure any shortcomings to CITY's satisfaction. Costs associated with curing the deficiencies will be borne by CONSULTANT. 33 1 1 .:.. . 4. NO WARRANTY. CITY acknowledges and agrees that CONSULTANT has made no express or implied representation or warranty that CITY will be successful in obtaining the benefits it is seeking as set forth in the Scope of Services. CITY agrees that nothing in this Agreement requires CONSULTANT to change any recommendations, information, or documentation to reflect conditions that exist after this Agreement terminates. 5. DISPUTES AND REMEDIES. Claims, disputes, and other matters in question between the Parties arising out of or relating to this Agreement or the breach thereof, must be resolved by the following procedure: CITY and CONSULTANT will exercise their best efforts to resolve disputes through the development of a consensus. A meeting may be requested by CITY or CONSULTANT at any time for the purpose of resolving a dispute. A determination by CITY'S Public Works Director will be made within two (2) weeks after a meeting to resolve the dispute; ii. If unresolved within thirty (30) days, then CITY'S city manager, or designee, will make a final determination; Following the city manager's final determination, the Parties may submit any unresolved matters to non - binding mediation. The parties may, but are not required to be, represented by counsel in mediation. iv. If the Parties do not agree to mediation, or if mediation does not resolve the Parties' dispute, the matter may be pursued in Los Angeles County Superior Court. The Parties' rights and remedies under this Agreement are in addition to any other rights and remedies provided by law. 6. PAYMENTS. For CITY to pay CONSULTANT as specified by this Agreement, CONSULTANT must submit a detailed invoice to CITY which lists the hours worked and hourly rates for each personnel category and reimbursable costs. 7. ADDITIONAL WORK. CITY's Project Manager ( "Manager ") may determine, at the Manager's sole discretion, that CONSULTANT must perform additional work ( "Additional Work ") to complete the Scope of Work. If Additional Work is needed, the Manager, with the City 33 1 1 771 Manager's written approval, will give written authorization to CONSULTANT to perform such Additional Work. If CONSULTANT believes Additional Work is needed to complete the Scope of Work, CONSULTANT will provide the Manager with written notification that contains a specific description of the proposed Additional Work, reasons for such Additional Work, and a detailed proposal regarding cost. Payments over $10,000 for Additional Work must be approved by the City Council. All Additional Work will be subject to all other terms and provisions of this Agreement. 8. FAMILIARITY WITH WORK. By executing this Agreement, CONSULTANT agrees that, to the best of CONSULTANT's knowledge and belief, CONSULTANT has Carefully investigated and considered the scope of services to be performed; Carefully considered how the services should be performed; and iii. Understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement. If services involve work upon any site, CONSULTANT agrees that CONSULTANT has or will investigate the site and is or will be fully acquainted with the conditions there existing, before commencing the services hereunder. Should CONSULTANT discover any latent or unknown conditions that may materially affect the performance of the services, CONSULTANT will immediately inform CITY of such fact and will not proceed except at CONSULTANT's own risk until written instructions are received from CITY. 9. TERM. The term of this Agreement will be from February 9, 2004, to August 31, 2004. Unless otherwise determined by written amendment between the parties, this Agreement will terminate in the following instances: Completion of the work specified in Exhibit "A "; Termination as stated in Section 17. 10. TIME FOR PERFORMANCE. CONSULTANT will not perform any work under this Agreement until: CONSULTANT furnishes proof of insurance as required under Section 26 of this Agreement; and 3 3 1 1 CITY gives CONSULTANT a written, signed, and numbered purchase order in addition to a written Notice to Proceed. This Agreement will supersede any conflicting provisions included on the purchase order or notice to proceed issued pursuant to this Agreement. Should CONSULTANT begin work on any phase in advance of receiving written authorization to proceed, any such professional services are at CONSULTANT's own risk. 11. TIME EXTENSIONS. Should CONSULTANT be delayed by causes beyond CONSULTANT's control, CITY may grant a time extension for the completion of the contracted services. If delay occurs, CONSULTANT must notify the City Engineer within forty -eight hours (48 hours), in writing, of the cause and the extent of the delay and how such delay interferes with the Agreement's schedule. The City Engineer will extend the completion time, when appropriate, for the completion of the contracted services. 12. CHANGES. CITY may order changes in the services within the general scope of this Agreement, consisting of additions, deletions, or other revisions, and the contract sum and the contract time will be adjusted accordingly. All such changes must be authorized in writing, executed by CONSULTANT and CITY. The cost or credit to CITY resulting from changes in the services will be determined in accordance with written agreement between the parties. 13. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT's Taxpayer Identification Number is 04- 3099750. 14. PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and maintain during the term of this Agreement, all necessary permits, licenses, and certificates that may be required in connection with the performance of services under this Agreement. 15. PROJECT COORDINATION AND SUPERVISION. CONSULTANT's professional services will be actually performed by, or immediately supervised by Mr. Sean Thakkar. Mr. Sean Thakkar will be assigned as CONSULTANT'S Project Manager and will be responsible for job performance, negotiations, contractual matters, and coordination with the CITY'S Project Manager. z 3 Should the Project Manager or Project Engineer be unable to complete his /her respective responsibilities on any specific project assignment as set forth herein, for any reason, he /she will be replaced by another qualified person approved by the City Engineer. 16. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights CITY may have under this Agreement or of any cause of action arising from CONSULTANT's performance. A waiver by CITY of any breach of any term, covenant, or condition contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this Agreement, whether of the same or different character. 17. TERMINATION. Except as otherwise provided, CITY may terminate this Agreement at any time with or without cause. CONSULTANT may terminate this Agreement at any time with CITY's mutual consent. Notice will be in writing at least thirty (30) days before the effective termination date. Upon receiving a termination notice, CONSULTANT will immediately cease performance under this Agreement unless otherwise provided in the termination notice. Except as otherwise provided in the termination notice, any additional work performed by CONSULTANT after receiving a termination notice will be performed at CONSULTANT's own cost; CITY will not be obligated to compensate CONSULTANT for such work. Should termination occur, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by CONSULTANT will, at CITY's option, become CITY's property in accordance with the terms of this Agreement, and CONSULTANT will receive just and equitable compensation for any work satisfactorily completed up to the effective date of notice of termination, not to exceed the total costs under Section 1(C). Should the Agreement be terminated pursuant to this Section, CITY may procure on its own terms services similar to those terminated. By executing this document, CONSULTANT waives any and all claims for damages that might otherwise arise from CITY's termination under this Section. -� 18. NOTICE OF BREACH AND OPPORTUNITY TO CURE. Neither party will be deemed to be in breach of this Agreement based on a breach that is capable of being cured until it has received written notice of the breach from the other party. The party charged with breach will have fifteen (15) days from the date of receiving such notice in which to cure the breach or otherwise respond. If the circumstances leading to the charge that the Agreement was breached have not been cured or explained to the satisfaction of the other party within fifteen (15) days from the date on which the party received notice of breach, the non - breaching party may terminate this Agreement. 19. CONFIDENTIAL INFORMATION. CITY agrees not to disclose any material or information identified by CONSULTANT as proprietary and confidential to third parties without CONSULTANT's prior written permission, unless CONSULTANT makes such material or information public or disclosure is required by law including, without limitation, the California Public Records Act. If CITY is required by law to disclose such material or information, CITY agrees to notify CONSULTANT before such disclosure. 20. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models, photographs and reports prepared by CONSULTANT in performing this Agreement are CITY's property. CONSULTANT may retain copies of said documents and materials as desired, but will deliver all original materials to CITY upon CITY's written notice. CITY agrees that it may not use CONSULTANT's completed work product, except as authorized herein, for purposes other than identified in this Agreement, or use of incomplete work product, and if the CITY does, it is at CITY's own risk. CITY will indemnify and hold CONSULTANT harmless for any use of the work product other than as contemplated by this Agreement. 21. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service under this Agreement, no copies, sketches, or graphs of materials, including graphic art work, prepared pursuant to this Agreement, will be released by CONSULTANT to any other person or City without CITY's prior written approval. All press releases, including graphic display information to be published in newspapers or magazines, will be approved and distributed solely by CITY, unless otherwise provided by written agreement between the parties. CITY agrees not to use CONSULTANT's corporate name for any commercial purpose without CONSULTANT's prior written consent; nothing, however, prevents CITY from identifying CONSULTANT in informational documents as required for internal uses or public information. 22. INDEMNIFICATION. CONSULTANT agrees to the following: Indemnification for Professional Services. CONSULTANT will save harmless and indemnify and at CITY's request reimburse defense costs for CITY and all its officers, volunteers, employees and representatives from and against any and all suits, actions, or claims, of any character whatever, brought for, or on account of, any injuries or damages sustained by any person or property resulting or arising from any negligent or wrongful act, error or omission by CONSULTANT or any of CONSULTANT's officers, agents, employees, or representatives, in the performance of this Agreement. Indemnification for other Damages. CONSULTANT indemnifies and holds CITY harmless from and against any claim, action, damages, costs (including, without limitation, reasonable attorney's fees), injuries, or liability, arising out of this Agreement, or its performance. Should CITY be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of this Agreement, or its performance, CONSULTANT will defend CITY (at CITY's request and with counsel satisfactory to CITY) and will indemnify CITY for any judgment rendered against it or any sums paid out in settlement or otherwise. CONSULTANT's obligations under this section are effective if CITY: Promptly notifies CONSULTANT in writing of any such claim; iv. Permits CONSULTANT to control the defense or settlement of such claim, and V. Cooperates with CONSULTANT in such defense or settlement. CONSULTANT is not obligated under this section for any claim of intellectual property infringement based on any modification of the materials submitted by CONSULTANT to CITY or any third party or use of such materials for purposes outside of the contemplation of the parties to this Agreement. For purposes of this section "CITY" includes CITY's officers, officials, employees, agents, and representatives. It is expressly understood and agreed that the foregoing provisions will survive termination of this Agreement. 331 1 The requirements as to the types and limits of insurance coverage to be maintained by CONSULTANT as required by Section 24, and any approval of said insurance by CITY, are not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by CONSULTANT pursuant to this Agreement, including, without limitation, to the provisions concerning indemnification. 23. ASSIGNABILITY. This Agreement is for CONSULTANT's professional services. CONSULTANT's attempts to assign the benefits or burdens of this Agreement without CITY's written approval are prohibited and will be null and void. 24. INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that CONSULTANT will act as an independent contractor and will have control of all work and the manner in which is it performed. CONSULTANT will be free to contract for similar service to be performed for other employers while under contract with CITY. CONSULTANT is not an agent or employee of CITY and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY provides for its employees. Any provision in this Agreement that may appear to give CITY the right to direct CONSULTANT as to the details of doing the work or to exercise a measure of control over the work means that CONSULTANT will follow the direction of the CITY as to end results of the work only. 25. AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records with respect to all services and matters covered under this Agreement. CITY will have free access at all reasonable times to such records, and the right to examine and audit the same and to make transcript therefrom, and to inspect all program data, documents, proceedings and activities. CONSULTANT will retain such financial and program service records for at least four (4) years after termination or final payment under this Agreement. 26. INSURANCE. Before commencing performance under this Agreement, and at all other times this Agreement is effective, CONSULTANT will procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below: Type of Insurance Commercial general liability: Professional Liability Business automobile liability Limits (combined single) $1,000,000 $1,000,000 $1,000,000 33 1 1 , r d d Workers compensation $1,000,000 Commercial general liability insurance will meet or exceed the requirements of ISO -CGL Form No. CG 00 01 11 85 or 88. The amount of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability policies will be endorsed to name CITY, its officials, and employees as "additional insureds" under said insurance coverage and to state that such insurance will be deemed "primary" such that any other insurance that may be carried by CITY will be excess thereto. Such endorsement must be reflected on ISO Form No. CG 20 10 11 85 or 88, or equivalent. Such insurance will be on an "occurrence," not a "claims made," basis and will not be cancelable or subject to reduction except upon thirty (30) days prior written notice to CITY. Automobile coverage will be written on ISO Business Auto Coverage Form CA 00 01 06 92, including symbol 1 (Any Auto). Professional liability coverage will be on an "occurrence basis" if such coverage is available, or on a "claims made" basis if not available. When coverage is provided on a "claims made basis," CONSULTANT will continue to renew the insurance for a period of three (3) years after this Agreement expires or is terminated. Such insurance will have the same coverage and limits as the policy that was in effect during the term of this Agreement, and will cover CONSULTANT for all claims made by CITY arising out of any errors or omissions of CONSULTANT, or its officers, employees or agents during the time this Agreement was in effect. CONSULTANT will furnish to CITY duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement and such other evidence of insurance or copies of policies as may be reasonably required by CITY from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "A:VII." Should CONSULTANT, for any reason, fail to obtain and maintain the insurance required by this Agreement, CITY may obtain such coverage at CONSULTANT's expense and deduct the cost of such insurance from payments due to CONSULTANT under this Agreement or terminate pursuant to Section 16. 27. USE OF CONSULTANT. CONSULTANT must obtain CITY's prior written approval to use any consultants while performing any portion of this Agreement. Such approval must approve of the proposed consultant and the terms of compensation. The consultants listed in Exhibit "A" are hereby approved. 28. INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the status on the project, which will include a schedule update and a short narrative description of progress during the past month for each major task, a description of the work remaining and a description of the work to be done before the next schedule update. 29. NOTICES. All communications to either party by the other party will be deemed made when received by such party at its respective name and address as follows: CITY City of El Segundo 348 Main Street El Segundo, CA 90245 Facsimile: +1- 310- 524 -2299 CONSULTANT Bill Mohan Gartner, Inc. 8405 Greensboro Drive, Ste 600 McLean, VA 22102 Facsimile: +1- 703 - 226 -4703 Any such written communications by mail will be conclusively deemed to have been received by the addressee upon deposit thereof in the United States Mail, postage prepaid and properly addressed as noted above. In all other instances, notices will be deemed given at the time of actual delivery. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this paragraph. 30. CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest laws and regulations including, without limitation, CITY's conflict of interest regulations. 31. SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor retained any company or person, other than CONSULTANT's bona fide employee, to solicit or secure this Agreement. Further, CONSULTANT warrants that it has not paid nor has it agreed to pay any company or person, other than CONSULTANT's bona fide employee, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Should CONSULTANT breach or violate this warranty, CITY may rescind this Agreement without liability. 32. THIRD -PARTY BENEFICIARIES. This Agreement and every provision herein is generally for the exclusive benefit of CONSULTANT and CITY and not for the benefit of any other party. There will be no incidental or other beneficiaries of any of CONSULTANT's or CITY's obligations under this Agreement. 3311..;'; 33. INTERPRETATION. This Agreement was drafted in, and will be construed in accordance with the laws of the State of California, and exclusive venue for any action involving this agreement will be in Los Angeles County. 34. ENTIRE AGREEMENT. This Agreement and Attachment A sets forth the entire understanding of the parties. There are no other understandings, terms or other agreements expressed or implied, oral or written. This Agreement and its Attachment will bind and inure to the benefit of the parties to this Agreement and any subsequent successors and assigns. 35. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review this Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a whole, and in accordance with its fair meaning; it will not be interpreted strictly for or against either Party. 36. SEVERABILITY. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect. 37. AUTHORITY /MODIFICATION. The Parties represent and warrant that all necessary action has been taken by the Parties to authorize the undersigned to execute this Agreement and to engage in the actions described herein. This Agreement may be modified by written amendment. CITY's city manager, or designee, may execute any such amendment on behalf of CITY. 38. ACCEPTANCE OF FACSIMILE SIGNATURES. The Parties agree that this Agreement, agreements ancillary to this Agreement, and related documents to be entered into in connection with this Agreement will be considered signed when the signature of a party is delivered by facsimile transmission. Such facsimile signature will be treated in all respects as having the same effect as an original signature. 39. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this Agreement. 7 40. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that its financial resources, surety and insurance experience, service experience, completion ability, personnel, current workload, experience in dealing with private consultants, and experience in dealing with public agencies all suggest that CONSULTANT is capable of performing the proposed contract and has a demonstrated capacity to deal fairly and effectively with and to satisfy a public agency. 41. LIMITATION OF LIABILITY. Neither party is liable for any consequential, indirect, special or incidental damages, such as damages for lost profits, business failure or loss arising out of use of the Deliverables or the Services, whether or not advised of the possibility of such damages. Except for liability for personal injury or death or for damage to property caused by the negligence or willful misconduct of CONSULTANT, or its employees, and except for CONSULTANT'S indemnity obligations, CONSULTANT's total liability arising out of this Agreement and the provision of the Services is limited to twice the fee paid by CITY under the Scope of Work under which such liability arises. 42. NO THIRD -PARTY BENEFICIARIES. This Agreement is for the benefit of the parties only. None of the provisions of this Agreement are for the benefit of, or enforceable by, any third party. It is the intention of CONSULTANT and CITY that no third party shall have the right to (i) rely on the Services provided by CONSULTANT, or (ii) seek to impose liability on CONSULTANT as a result of the Services or any Deliverables furnished to CITY. 331 1 IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written. CITY OF EL SEGUNDO, a municipal corporation. Ma r , City Manag ATTEST: Cindy MortNsen, City Clerk APPROVE MARK D.) /V/ ✓. Karl H. Berger, Assistant CitviAt Gartner, Inc. William F.-Mohan, Jr. Director, Government C acts 04- 3099750 Taxpayer ID No. 3311.,, AGREEMENT FOR PROFESSIONAL CONSULTANT SERVICES BETWEEN THE CITY OF EL SEGUNDO AND GARTNER, INC. FOR THE PUBLIC SAFETY COMMUNICATIONS CENTER EXHIBIT "A" The City of El Segundo (City) operates a public safety communications center. The Police Department manages the center, which handles public safety communications and dispatching for the El Segundo Police and Fire Departments. The City of Redondo Beach has issued a Request for Proposal (RFP) to communications centers to determine the feasibility of using El Segundo's dispatch center services. The City has responded to the RFP with Gartner's assistance. Proposing a combined public safety communications center is a complex undertaking. It involves consideration of a wide range of issues, including information and communications systems, radio frequencies, facilities, staffing, operations and costs. As a result of the challenges and opportunities related to developing a competitive communications center proposal, the City has requested that Gartner further assist in the negotiation process. The scope of the consulting assistance will be determined with the Police Department, consistent with its priorities, personnel resources and consulting budget. It may include the following tasks: • Negotiation discussions between the City and Redondo Beach • Participating in technical discussion with Redondo Beach and CAD /RMS vendor Hitech • Reviewing Redondo Beach's contract • Communications Center budget/cost discussions • Participation in discussions on how El Segundo will address Redondo Beach's communications and information technology requirements ■ Participation in discussions on governance procedures and contractual requirements. Gartner has extensive experience working with local government and public safety agencies to successfully address the complex management, organizational, operational and technology issues that are involved with shared public safety communications centers. Gartner will assign consultants with extensive public safety communications experience. Mr. Sean Thakkar, Director, will act as project manager and lead consultant with responsibility for conducting day -to -day project activities. Mr. William Kumagai, Managing Vice President, will act as an independent technical reviewer. He will provide an independent review of deliverables and recommendations, and may also be available to participate in meetings.