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HomeMy WebLinkAboutC2017-510 - 12/19/2017 - Approved a Amendment Mit City of Corpus Christi Purchasing Division Date: November 9, 2017 Service Agreement#IName: No. 946-City Performance Reporting System Amendment No. 2 Service Agreement Current Value: $49,900(w/prior amendment) Amendment No. 2 Value: $39.600 Service Agreement Total Amended Value: $89 500 The City of Corpus Christi ("City") and Brio Services, LLC, dba Brio Consulting, LLC ("Contractor)entered into the above-referenced agreement("Agreement") on or about November 4, 2016; executed an amendment to the Agreement on or about January 26,2017("Amendment No. 1'); and now desire to mutually execute this amendment("Amendment No. 2°)in order to reinstate the Agreement and Amendment No. 1 and put into effect the modifications or revisions stated in this instrument, which, by execution below and taken together with the Agreement and Amendment No. 1, constitutes the entire understanding and agreement between the parties. (A) The Agreement and Amendment No. 1 to the Agreement are reinstated for all intents and purposes by the parties as if the Agreement and Amendment No. 1 had not expired. By execution of this Amendment No. 2, the parties desire to ensure the continuation of annual software hosting and support services for the enhanced and now-functional CPR product. (B) Section 1 of the Agreement, entitled "Scope," is deleted in its entirety and replaced with language to read as follows: "1. Scope. Contractor shall provide City Performance Reporting System ("Services") in accordance with the attached Scope of Work, as shown in Attachment A, the content of which is incorporated by reference into this Agreement as if fully set out here in its entirety, and in accordance with Exhibit 2. Contractor shall also provide annual software hosting and support services ("Hosting") in accordance with Attachment A-1, the content of which is incorporated by reference into this Agreement as If fully set out here in its entirety." (C) Section 2 of the Agreement, entitled "Term" is deleted in its entirety and replaced with language to read as follows: "2. Term. This Agreement is for a term of approximately 25 months,with performance commencing November4,2016, and concluding December 11, 2018. The parties agree that the first Hosting period commences December 12, 2017, subject to approval of the execution of this Amendment No. 2 by the City's City Council,and terminates at midnight December 11,2018. The parties may mutually extend the term of this Agreement for the provision of Hosting for up to four additional 12-month periods ("Option Period°), provided, the parties do so in writing and prior to the expiration of the initial or the then- current Option Period. The City's extension authorization must be executed by the City Manager or designee." (D) Section 3 of the Agreement, entitled "Compensation and Payment," is amended by deleting only the first sentence and replacing it with language to read as follows: "3. Compensation and Payment. The total value of this Agreement is$89,500, subject to approved extensions and changes, including a possible Increase in the annual price 2017-510-e parties' exercise of an Option Period) but which increase may be 12/19/17 Page 1 oft M2017-190 Brio Services LLC INDEXED no greater than the average U.S. rate of inflation for the immediately preceding 12-month period elapsed prior to the Option Period. The total value of this Agreement is represented by work to be completed under Attachment A for$49,900 and annual hosting services to be provided under Attachment A-1 for$39,600." (E) Section 4 of the Agreement, entitled "Contract Administrator," is amended by deleting the identified employee and contact information and replacing it with the following employee and contact information: "Eddie Houlihan, Director Office of Management & Budget Phone: 361-826-3792 Email: EddieHo@cctexas.com" (F) Contractor shall submit updated copies of Contractor's certificate of insurance to the Contract Administrator and Risk Manager, pursuant to the terms of the Agreement. (G) Contractor agrees to comply with Section 2252.908, Texas Government Code, as it may be amended, and to complete and submit a Form 1295 "Certificate of Interested Parties" upon Contractor's execution of Amendment No. 2. (H) In accordance with Chapter 2270, Texas Government Code, the City may not enter into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The signatory executing this Amendment No. 2 (which reinstates the Agreement and Amendment No. 1) on behalf of the Contractor verifies that the company does not boycott Israel and will not boycott Israel during the term of Amendment No. 2 nor any Option Period pursuant to the Agreement. (I) The parties acknowledge and agree that the Services (e.g., interface restoration and system upgrades for the CPR product) provided pursuant to the Agreement and Amendment No. 1 have been completed. (J) A copy of Attachment A-1 is attached to this Amendment No. 2,the content of which attachment is incorporated by reference into this Amendment No. 2 as if fully set out here in its entirety. The terms and conditions of the reinstated Agreement and Amendment No. 1 not modified or revised by this Amendment No. 2 remain in full force and effect for all intents and purposes of the parties. Upon final execution, the entire content of this Amendment No. 2 supplements the Agreement and Amendment No. 1 and is incorporated by reference into the Agreement as if fully set out in its entirety in the Agreement. Contractor City of Corpus Christi CN Nancy Leffler C=US0=&ia Conan!Vv.LLC 11/15/2017ao/117 Date'.2017 11 16 00 35 57-C600. Nancy B. Lerner Date Maria Pedraza 3 Date Chief Executive Officer Procurement Manager Approved as to legal form: Elizabeth Digitally signed by Elizabeth Hundley DN:cn-Elizabeth Hundley,o=City of Corpus Christi,ou=City Attorneys Office, Hundley - email-elizabethh@,cctezas.com,c=c=1.15S Date:,01711.1609-11.29 06'00' Elizabeth Hundley Assistant City Attorney N—\ C1 1 ~ '9�AUT UK![t► for Miles Risley, City Attorney ...1,41.c,\ ATTEST: ��TT COUNCIL �� -E=ECCA HUERTA _a........ _ i CITY SECRETARY ATTACHMENT A-1 Brio Consulting,LLC B 1-91 O 11152 Westheimer Road:685 Houston,Texas 77042-3208 713-858-2425 Consulting vnvw.brio-consulting.com August 14,2017 Kim Baker,Assistant Director of Financial Services Purchasing Department City of Corpus Christi 1201 Leopard Street Corpus Christi TX 78401-2825 Re:Annual Contract for Hosting Services for City Performance Reporting(CPR)System Dear Ms. Baker: We are pleased to offer services for ongoing hosting and support of the City Performance Reporting (CPR)System developed under City Service Agreement 946. Pursuant to the recommendations and action plan developed under Service Agreement 946,we offer the following scope,term and fees: Proposed Scope Brio will continue to provide the City with access to the CPR as a hosted service under the General Terms and Conditions for StatWindow© Hosting attached hereto.This includes a monthly allowance of eight (8) hours of technical services that can be applied to general user support or the development of interfaces or enhancements,at the City's discretion. Hosting Term and Fee Brio will provide hosting services for one (1)year for a fee of$39,600, payable in advance of service. If the City requests services to enhance the CPR and such services fall outside the limits defined in Section 4.3 of the attached General Terms and Conditions for StatWindowi Hosting, Brio will provide such additional services on a time and materials basis. Labor rates for additional services are as follows: Annual hosting fees and rates may increase no Labor Category Hourly Rate more than once per year(at renewal)and by no Principal/Program Manager $275 more than the U.S. rate of inflation. Senior Systems Architect $205 Senior Programmer $155 We look forward to working with you. Support $105 Sincerely, g Nancy B. Lerner Chief Executive Officer Brio Consulting, LLC c. Frank Bailey,City Saundra Thaxton,City Steve Klepper,City Encl. GENERAL TERMS AND CONDITIONS FOR STATWINDOW HOSTING SERVICES These General Terms and Conditions for Hosting Services for the StatWindow©software(THE SOFTWARE)are in addition to the terms and conditions of the agreement through which the hosting services are procured(the HOSTING AGREEMENT). 1. Parties 3.4. SUBSCRIBER is wholly and solely responsible for the accuracy of the PERFORMANCE DATA,for protecting the 1.1. The parties to the HOSTING AGREEMENT are referred to PERFORMANCE DATA against unauthorized access or herein as the HOST(the party providing access to THE SOFTWARE)and the SUBSCRIBER(the party procuring and editing,and for ensuring the PERFORMANCE DATA are legal using the hosting services for THE SOFTWARE). and suitable for public consumption. 3.5. SUBSCRIBER is responsible for managing individual users 2. Rights to Software accounts and for ensuring that authorized users safeguard 2.1. Subject to the terms and conditions herein,and subject to their passwords.SUBSCRIBER is responsible for deleting user full and timely payment of all fees owed under the HOSTING accounts and resetting user passwords as needed. AGREEMENT,the HOST hereby grants to SUBSCRIBER and 3.6. SUBSCRIBER is responsible for protecting its source data.If SUBSCRIBER hereby accepts a limited,non-exclusive,non- THE SOFTWARE includes interfaces to databases outside transferable,right to access and use THE SOFTWARE to StatWindow©then SUBSCRIBER is responsible for ensuring support SUBSCRIBER's business operations and presentation the database accounts used by those interfaces have read- of data directly related to SUBSCRIBER'S business only access to the source data and/or provide access to operations. copies of the source data rather than original records. 2.2. SUBSCRIBER may authorize its employees,contractors or 3.7. SUBSCRIBER will adhere to all laws related to the protection other agents to use THE SOFTWARE to enter and manage of personal data and will ensure the PERFORMANCE DATA data related to SUBSCRIBER's business operations. are lawful public records. SUBSCRIBER is responsible for ensuring that Its authorized users abide by these Terms and Conditions.SUBSCRIBER is 3.8. HOST assumes no responsibility and shall have no liability for wholly responsible for the data entered,updated or deleted the deletion,correction,destruction,damage,loss or failure by the individuals SUBSCRIBER authorizes to use THE to store any PERFORMANCE DATA.SUBSCRIBER warrants that the PERFORMANCE DATA is a matter of public record. SOFTWARE. 2.3. SUBSCRIBER shall not copy,distribute,sell,lease or grant 4. Software Documentation and Service Levels third party rights to THE SOFTWARE. SUBSCRIBER shall not 4.1. Documentation and Upgrades alter,modify,enhance,adapt,reverse engineer, 4.1.1. HOST shall provide SUBSCRIBER with an electronic disassemble,or make works derived from any version of THE copy of documentation that explains how to use THE SOFTWARE or attempt to generate or access the source SOFTWARE,including but not limited to code for THE SOFTWARE,whether by converting, documentation of the methods for entering, translating,decompiling,disassembling or merging any part updating and exporting PERFORMANCE DATA. of THE SOFTWARE with any other software. 4.1.2. From time to time,and at HOST's discretion,HOST 2.4. HOST shall provide access to THE SOFTWARE via the may apply patches and upgrades to THE SOFTWARE. Internet.Subscriber is responsible for obtaining and If upgrades,patches or other planned maintenance maintaining all computer hardware,software and will affect access to THE SOFTWARE,then HOST shall communications equipment needed to access and use THE schedule such maintenance outside SUBSCRIBER'S SOFTWARE and for paying all third-party fees and access normal business hours and shall notify SUBSCRIBER charges incurred while accessing or using THE SOFTWARE, of such planned maintenance in advance. Including but not limited to equipment and services needed to provide access to the Internet. 4.2. System Availability,Trouble Reports and General Requests 4.2.1. HOST will use commercially reasonable efforts to 3 Data Ownership and Responsibility make THE SOFTWARE available twenty-four(24) 3.1. SUBSCRIBER owns the data it enters and manages in THE hours a day and seven(7)days per week except for SOFTWARE,hereafter referred to as PERFORMANCE DATA. planned maintenance. The PERFORMANCE DATA include data entered and updated 4.2.2. HOST will use commercially reasonable efforts to by individual users as well as data that may be added or provide 98%system uptime throughout the term of updated through automated interfaces to SUBSCRIBER's the hosting period.System downtime excludes databases. outages due to planned maintenance announced in 3.2. SUBSCRIBER hereby grants to HOST and HOST hereby advance by HOST,outages caused by SUBSCRIBER's accepts a limited,non-exclusive,non-transferable,right to errors or SUBSCRIBER's infrastructure failures,and access,process and use the PERFORMANCE DATA for the causes beyond HOST's reasonable control. sole purpose of providing the services defined herein and in 4.2.3. HOST will respond to reports of system outages the HOSTING AGREEMENT. within twenty-four(24)hours of notification by 3.3. SUBSCRIBER has the right to copy,store and use the SUBSCRIBER and will target resolution of such issues PERFORMANCE DATA outside THE SOFTWARE. within forty-eight(48)hours. General Terms and Conditions for StatWindow©Hosting Services Page 1 of 3 Rev 1.2 4.2.4. HOST will respond to other trouble reports,technical 5.3. Limitations on Warranties.The limited warranty set forth inquiries,and requests for enhancement within two herein will not apply to any misuse or negligence in the business days and will target resolution of problems operation or use of THE SOFTWARE by the SUBSCRIBER or with THE SOFTWARE within three(3)business days. any breach by SUBSCRIBER of any of the terms hereof.The The schedule for development of enhancements will limited warranties set forth herein are made for be negotiated,as will additional fees that may apply SUBSCRIBER's benefit only.The remedies in this Section 5 for such enhancements. are the sole and exclusive remedies for breach of these 4.3. Technical and User Support limited warranties. 4.3.1. Unless otherwise specified in the Hosting 5.4. Disclaimer of Warranties.The express warranties set forth Agreement,HOST will provide up to eight(8)hours in this section 5 are the only warranties made by HOST with per month of user and technical support,which may respect to the hosting services,THE SOFTWARE,and any be applied to development of enhancements or other services provided hereunder.HOST makes no Interfaces as well as general support. warranty or representation that SUBSCRIBER's access to and use of THE SOFWTARE will be uninterrupted or error-free, 4.3.2. Technical support hours are not transferable to and specifically disclaims any and all other warranties, other parties or agreements and have no cash value whether written or oral,express or implied,with respect to to SUBSCRIBER. THE SOFTWARE,including any implied warranties of 4.3.3. Time needed to address system outages and issues merchantability or fitness for a particular purpose. with THE SOFTWARE that are HOST's responsibility do not count toward the SUBSCRIBER'S use of 6. Limitation on Liability support hours. 6.1. HOST shall not be liable to SUBSCRIBER for any indirect, 4.4. Backup and Recovery incidental,reliance or special damages or consequential damages arising under or in connection with the HOSTING 4.4.1. HOST will provide nightly backups of SUBSCRIBER's AGREEMENT,regardless of the form of action,whether in PERFORMANCE DATA and database-controlled contract,warranty,strict liability or tort,excluding configurations of THE SOFTWARE and will retain negligence of any kind.To the extent allowed under Texas such backups for up to thirty(30)days. law,SUBSCRIBER hereby releases HOST and each of its 4.4.2. In the event of data loss that is the direct result of officers,directors,employees and agents from any such HOST action(s)and/or hosting infrastructure failures, claim. HOST will invoke immediate steps to assess the 6.2. In no event shall the aggregate liability of HOST to situation to recover and restore the data affected. SUBSCRIBER arising out of or by reason of the HOSTING Recovery point objective(RPO)or the acceptable AGREEMENT(including by reason of any breaches or failures amount of data loss,Is no more than 24 hours and to perform hereunder)exceed the aggregate amount target restoration is within a 24-hour period from payable to HOST under the HOSTING AGREEMENT. when the system crash or data loss occurred 6.3. Any claims arising out of,related to or in connection with 4.4.3. In the event of data loss as a direct result of the HOSTING AGREEMENT must be asserted(through the SUBSCRIBER'S action(s)or force majeure,HOST will due commencement of legal proceedings)within one year of provide recovery services using technical support the date SUBSCRIBER knows or should have known of the hours as defined herein and/or on a Time and existence of such claim. Materials basis upon approval from the SUBSCRIBER to proceed with such services 6.4. HOST shall under no circumstances be liable for any claim or demand by any third party based on or related to S. Limited Warranties and Disclaimers. SUBSCRIBER's use of THE SOFTWARE or errors or alleged 5.1. Intellectual Property Warranty.HOST has the right,power errors in THE SOFTWARE,including,without limitation, and authority to provide access to THE SOFTWARE.To the persons using the facilities or services of SUBSCRIBER or knowledge of HOST,THE SOFTWARE does not infringe the their heirs or dependents. intellectual property rights of any third party. 6.5. HOST shall indemnify SUBSCRIBER and its agents against any 5.2. Hosting Services Warranty.HOST represents and warrants third party claims,demands,costs,or liabilities alleging that that,during the first sixty(60)days of the term of the THE SOFTWARE infringes the intellectual property rights of HOSTING AGREEMENT,THE SOFTWARE will operate any third party(an"IPR Claim");provided,however,that substantially in accordance with the Software HOST will not be obligated to indemnify SUBSCRIBER to the Documentation,provided the Subscriber accesses and uses extent the alleged infringement is caused by(a)SUBSCRIBER's THE SOFTWARE in compliance with such Documentation or breach of any of its obligations hereunder or misuse or other instructions provided by HOST.In the event the modification of THE SOFWTARE,or(b)SUBSCRIBER's use of Hosting Services fail to satisfy the warranty immediately THE SOFTWARE in combination with any product,process or above,HOST's sole obligation,and SUBSCRIBER'S sole information not owned,developed or delivered by HOST remedy for non-conformance of this warranty shall be,at Independent Contractor HOST's option,to(a)use reasonable efforts to correct the nonconformity or(b)refund any pre paid fees paid by 7.1 HOST is an independent contractor and will maintain SUBSCRIBER for the non-conforming Hosting Services and complete control of and responsibility for its employees, terminate the HOSTING AGREEMENT. subcontractors,and agents. General Terms and Conditions for SlotWindow©Hosting Services Page 2 of 3 Rev 1.2 7.2. Nothing contained in the HOSTING AGREEMENT or these and may include,but is not limited to,extraordinary General Terms and Conditions shall be construed to create a weather conditions,electromagnetic disturbances,or other partnership,joint venture or agency relationship,and, natural catastrophes,war,riots,terrorism,strikes,lockouts, notwithstanding anything else herein,neither party shall or other industrial disturbances or acts of any governmental have the right to incur(and will not attempt to incur)any agencies. obligation or liability on behalf of the other party. 11. Compliance with Laws 8. Termination by Host 11.1.SUBSCRIBER shall comply with,and is solely responsible 8.1. HOST may suspend,revoke or limit SUBSCRIBER's use of THE for compliance with,all applicable laws governing the SOFTWARE if HOST determines there is a material breach of access to or use of THE SOFTWARE,including without SUBSCRIBER'S obligations,a security breach,or a violation of limitation export,import and use regulations of the United law or if HOST is directed to suspend,revoke,or limit States and other countries. SUBSCRIBER's use of THE SOFTWARE by a government, 12. Gratuities regulatory,or law enforcement agency with jurisdiction over HOST or SUBSCRIBER.If the cause of a suspension can 12.1.HOST warrants that neither It nor any of its employees, reasonably be remedied,the HOST will provide notice of the agents or representatives has offered or given any gratuities actions SUBSCRIBER must take to reinstate access to THE to SUBSCRIBER's employees,agents,or representatives with SOFTWARE.If the SUBSCRIBER fails to take such actions a view toward securing the HOSTING AGREEMENT or within a reasonable time,HOST may terminate access to securing favorable treatment with respect thereto. THE SOFTWARE. 13. Successors and Assigns 8.2. Failure to pay is a material breach. 13.1.This HOSTING AGREEMENT is to be binding on the 8.3. If HOST limits,suspends or terminates SUBSCRIBER's access successors and assigns of the Parties hereto but may not be to THE SOFTWARE for reasons of material breach,security assigned by either Party without first obtaining the written breach,violation of law,or direction of a government, consent of the other. regulatory or law enforcement agency,then SUBSCRIBER shall not be entitled to refund of any prepayments. 14. Severability,Survival and Conflicts 8.4. HOST may terminate for convenience with sixty(60)days' 14.1.If any of the provisions contained in the HOSTING written notice prior to the termination of the HOSTING AGREEMENT or in these General Terms and Conditions are AGREEMENT.If HOST terminates for convenience,then held invalid,illegal,or unenforceable.the enforceability of SUBSCRIBER is entitled to refund of prepayments for hosting the other remaining provisions shall not be impaired services. 14.2.Limitations of liability,indemnities,and rights in data, confidentiality,and other express representations shall 9 Termination by Subscriber survive any termination or expiration of the HOSTING 9.1. SUBSCRIBER may request termination for cause with thirty AGREEMENT (30)days'written notice if HOST fails to provide access to 14.3.In the event of conflict between the HOSTING AGREEMENT THE SOFTWARE in accordance with the terms herein.If and these General Terms and Conditions,the more terminating for cause,SUBSCRIBER shall provide restrictive terms shall apply documentation of the claimed lapse in service.If HOST remedies the lapse in service or provides evidence that no 15. Waivers lapse in service occurred or that the lapse was the result of 15.1.No waiver by either Party of any default by the other Party SUBSCRIBER actions or force majeure,then SUBSCRIBER may In the performance of any provision of the HOSTING choose to(a)continue service or(b)terminate for AGREEMENT shall operate or be construed as a waiver of convenience,and SUBSCRIBER will not be entitled to refund any future default,whether like or different in character. of prepayments. If HOST does not remedy the lapse in service or provide evidence that no lapse in service occurred 16. Headers Not Controlling or that the lapse was the result of SUBSCRIBER actions or 16.1.Headers herein are not controlling. force majeure,then SUBSCRIBER will be entitled to refund of prepayments for hosting services scheduled to begin thirty (30)days after the notice of termination for cause. 9.2. SUBSCRIBER may request termination for convenience with thirty(30)days'written notice.SUBSCRIBER is not entitled to refund of prepayments if terminating for convenience. 10 Force Majeure 10.1.Neither party shall be responsible for delay or disruption in the performance of its obligations under the HOSTING AGREEMENT caused by a force majeure event. This includes delays in SUBSCRIBER's transmittal of payments to HOST and disruption of access to THE SOFTWARE due to an occurrence or circumstance beyond the control of the claiming Party General Terms and Conditions for Stat Window©Hosting Services Page 3 of 3 Rev 1.2 CERTIFICATE OF INTERESTED PARTIES FORM 1295 1 of 1 Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2017-282247 Brio Services,LLC d/b/a Brio Consulting, LLC Houston,TX United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 11/09/2017 being filed. City of Corpus Christi Dat Acknoledged: 'fv- \� 'Lk 'A-1 3 Provide the identification number used by the governmental entity or state agency to track or identify the co tract, nd provide a description of the services,goods,or other property to be provided under the contract. SA946 City Performance Reporting System 4 Nature of interest Name of Interested Party City,State,Country(place of business) (check applicable) Controlling I Intermediary Wehmeyer, Mark Orlando, FL United States X Lerner,Nancy Houston,TX United States X 5 Check only if there is NO Interested Party. EJ 6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct. q stInf LEANN 6UMPUS ;,pr' � Notary Public,State of Texas it Comm.Expires 06-18-2020 4a��;s !i +lr,,,sm.,N,r Notary ID 10 5-18-2 Signature o authorized agent of contracting business entity AFFIX NOTARY STAMP I SEAL ABOVE nMO-. fi. y�n�.� (,,,- Sworn to and subscribed before me,by the said 1`��ci�j}--g% �j/jJ ,this the /Or, day of /(�v�InY!'�l! 20 1 7 ,to certify which,witness my hand and seal of office./ gidAr: 4/yr) Z-e nr f'G(tv� US �9 trSigre of officer administering oath Printed name of officer administering oath Title of officer Ndministering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.3337