Contract DIT 1382
Between Sigma Communications Incorporated and the City of Seattle dated March 8, 2005.
TABLE OF CONTENTS
CITY OF SEATTLE TERMS AND CONDITIONS 4
0.1 Parties 4
0.2 Term 4
0.3 Work Order Procedure 4
0.4 Documentation 5
0.5 Payment 5
0.6 [Intentionally Left Blank] 6
0.7 Taxes 6
0.8 License for Use 6
0.9 Escrowing of Source Language of Licensed Software 6
0.10 Ownership of Deliverables 7
0.11 Risk of Loss 7
0.12 Protection of Persons and Property 7
0.12.1 Property 7
0.12.2 Persons 7
0.12.3 Cleaning Up 7
0.12.4 No Smoking 7
0.12.5 OSHA/WISHA 8
0.13 Termination 8
0.13.1 Termination for Default 8
0.13.2 Acts of Insolvency 8
0.13.3 Force Majeure; Suspension and Termination 9
0.13.4 Notice of Termination 9
0.14 Insurance 9
0.14.1 Insurance Required; Insurance Documentation Required 9
0.14.2 Claims Made Form and Deductibles 11
0.14.3 Evidence of Insurance 11
0.14.4 Insurance Policy Rating 12
0.14.5 Self-Insurance 12
5.15.6 Sub-Contractors 12
0.15 Indemnification 12
0.16 Confidentiality 13
0.17 Publicity 13
0.18 Warranties, Limitations to Liability. 13
0.18.1 Warranty of the System 13
0.18.2 Warranty against Planned Obsolescence 14
0.18.3 No Surreptitious Code Warranty 14
0.18.4 Title Warranty and Warranty against Infringement 14
0.18.5 No Liens 15
0.18.6 Services Warranty 16
0.18.7 Equipment 16
0.18.8 Limitation on Liability 16
0.19 Compliance with Applicable Law 17
0.20 Survival of Warranties and Representations 17
0.21 ACCESS TO BOOKS AND RECORDS 17
0.22 EQUAL EMPLOYMENT 17
0.23 NON-DISCRIMINATION IN BENEFITS 18
0.24 WOMEN AND MINORITY BUSINESS ENTERPRISE REQUIREMENTS 18
0.24.1 Non Discrimination 18
0.24.2 Record Keeping 19
0.24.3 Affirmative Efforts to Utilize WMBEs 19
0.24.4 Sanctions for Violation 20
0.25 FAIR CONTRACTING PRACTICES 20
0.26 Dispute Resolution 20
0.27 Notices 20
0.28 Miscellaneous 20
0.28.1 Amendments 20
0.28.2 Applicable Law 21
0.28.3 Compliance with Law 21
0.28.4 Attorneys’ Fees 21
0.28.5 Interlocal Purchase Agreements 21
0.29 Assignment 21
0.30 Binding Effect 21
0.31 Remedies 22
0.32 Gratuities 22
0.33 Headings 22
0.34 Independent Status of Parties 22
0.35 Severability 22
0.36 Waiver 22
0.37 Authority 23
0.38 Entire Agreement 23
CITY OF SEATTLE TERMS AND CONDITIONS
THIS AGREEMENT is made and entered into by and between THE CITY OF SEATTLE (“City”), a municipal corporation of the State of Washington and Sigma Communications, LLC (“Vendor”), a limited liability company organized and existing under the laws of the State of Indiana and authorized to do business in the State of Washington.
This Agreement shall be effective for an initial term commencing on the Effective Date and extending for ten (10) years after the City’s Final Acceptance (the "Term"); notwithstanding the foregoing, Sigma shall not be obligated during the Term to provide maintenance or support services for the System unless pursuant to a Work Order executed by the parties.
0.3Work Order Procedure
Attachment A, Work Order Number 1 is the Statement of Work for the vendor to furnish the Community Notification System (CNS). Any additional work orders, duly executed by the parties, shall be incorporated into this Agreement by this reference. The vendor shall furnish to the City in aggregate as a single, complete transaction and not as separate items the goods and services identified in each work order. For each work order under this Agreement, vendor shall commence work upon issuance of a notice to proceed by the City.
Signature of the contract will authorize work to commence under Work Order Number 1. which satisfies the requirements of the CNS RFP (hereinafter called the “System”).
Additional work orders under this Agreement may be generated by the City under the following conditions:
A post-warranty annual maintenance agreement is accepted by the City;
The City issues a request to upgrade equipment, software, or to change quantities of any deliverable;
For any subsequent work order(s) requested by either party, the vendor shall submit a detailed proposal for the change or additional work. The vendor shall analyze, record, estimate and submit to the City, for its approval, the proposed scope for the changed or new work, a work schedule, and a rate or price adjustment for completion of the work to be changed or added. Once this proposal is received and approved by the City, a new work order will be issued for the changed or additional work. Upon the City’s written approval and notice to proceed, the vendor shall implement the change or additional work and invoice for the changed or additional work consistent with the City’s approval notice and the terms and conditions of this Agreement.
The City may, at its option, add, delete or modify any part of any work order by giving vendor notice of such change within the time period specified in the applicable work order. Within seven (7) days after the date of such notice, the vendor shall deliver to the City an amended work order reflecting the change in description, schedule and/or dollar amount due using the unit prices as proposed for the specific work order in vendor’s Proposal.
The City does not guarantee utilization of goods and services provided for in this Agreement for which the City has not issued a work order(s). The City may itself provide these goods or services or may award contracts to other vendors for similar goods and services. In such instances, the vendor shall not be responsible for the operation, performance or maintenance for equipment so obtained.
Vendor shall provide City with all associated documentation for each Deliverable and any modification or enhancement thereof. The City reserves the right to withhold payment for a Deliverable, modification or enhancement until it receives all documentation associated with the same.
All payments shall be made as per the conditions set forth in Attachment D hereto. The aggregate amount set forth in the work order represents the full and final amount to be paid by the City for all hardware, software, and/or services rendered and for all investigation, analysis, design, and supervision performed, and all labor, supplies, materials, equipment or use thereof provided, and for all other expenses incurred and incidentals necessary to complete the work to provide a fully integrated and operational System.
The City shall not be obligated to pay any other compensation, fees, charges, prices or costs, nor shall vendor charge any additional compensation for completing the work order of the Statement of Work. All costs invoiced to the City, shall be associated with an active and open work order.
Invoices for hardware and software installed in City facilities and other work performed under this Agreement shall be submitted, in writing to the City’s Project Director. In addition to agreed upon charges, invoices shall include such information as is necessary for the City to determine the exact nature of all expenditures and shall reference this Agreement. Additional payment terms or invoice instructions may be mutually agreed upon by the City and the vendor.
If between the date of this Agreement and the date the System is delivered to the City, the vendor announces a reduction in the price for any of the System equipment or software contained herein, then the price for such System equipment or software shall be decreased by an amount equal to the general reduction in the price for such System equipment or software.
Payment does not constitute whole or partial acceptance of the System; City acceptance of the System shall only occur by formal written notice to that effect.
0.6[Intentionally Left Blank]
The City shall pay sales and use taxes imposed on the City’s acquisition of Software licensed hereunder. The vendor shall pay all other applicable state, local or federal taxes including, but not limited to, state and local business and occupational tax, taxes on the vendor’s gross or net income, and personal property taxes levied or assessed on personal property to which the City does not hold title.
0.8License for Use
As part of the price of the System, the vendor hereby grants to the City, and the City accepts from the vendor, a license in accordance with the terms and conditions of Attachment B attached hereto.
0.9Escrowing of Source Language of Licensed Software
Upon request by the City, within four (4) weeks of such request, vendor shall deposit with its escrow agent (the “Escrow Agent”) a copy of all Software in that Software’s source language form and its documentation (including but not limited to all relevant commentary and explanations as well as instructions to compile the source code) provided under this Agreement. Such depositing shall be subject to an escrow agreement (the "Escrow Agreement") that is subject to the City’s prior approval. Such escrow agreement shall obligate the vendor to identify, in a notice to the Escrow Agent and the City sent concurrently with such depositing, what material is being deposited with the Escrow Agent. The City shall bear all costs associated this Section 1.9.
The City may access any or all of the escrowed material upon the occurrence of any one of the following instances of default:
Vendor stops maintenance support of the current and most recent preceding version of the Software; or
B. Vendor suffers any act of insolvency or is declared bankrupt.
The City shall give written notice by certified mail to the Escrow Agent and the vendor of the occurrence of any instance of default. The vendor shall have thirty (30) calendar days from the date the notice is sent to cure the default, but if the default has not been cured within such period, then upon the thirty-first (31st) calendar day and the Escrow Agent’s receipt of notice from the City, the Escrow Agent shall, in accordance with the terms and conditions of the Escrow Agreement, deliver to the City all of the escrowed material without the payment of any compensation to the vendor or the Escrow Agent. In the event of the occurrence of any of the conditions listed in subparagraphs (A) or (B) above, or upon the direct request from the vendor, the City shall have the unconditional right to immediately obtain and use the escrowed material.
0.10Ownership of Deliverables
Only the licensed System Software specifically identified in this Agreement, and its related documentation, all Deliverables produced under this Agreement (except for Hardware), shall be the exclusive property of the Vendor. Notwithstanding the foregoing, the City shall have the right to quiet enjoyment of all documentation necessary to implement the project. All Hardware shall be owned exclusively by the City.
0.11Risk of Loss
The vendor shall bear the risk of loss or damage to the Deliverables during the period of transportation, and installation , except when said loss or damage is due to the sole fault or negligence of the City.
0.12Protection of Persons and Property
The vendor shall take reasonable steps to protect the City’s property from injury or loss arising in connection with the vendor’s performance or failure of performance under this Agreement.
The vendor and the City shall each take reasonable precautions for the safety of employees of the other, and shall each comply with all applicable provisions of federal, state, and local laws, codes and regulations to prevent or avoid any accident or injury to a person on, about or adjacent to any premises where work under this Agreement is being performed.
The vendor shall ensure that project work sites are maintained in a clean and orderly fashion. Immediately after completion of the work contemplated in this Agreement, the vendor shall clean up and remove all refuse and unused materials resulting from such work.
Upon the vendor’s failure to complete such clean-up and removal activity within twenty-four (24) hours after having been notified in writing by the City of the vendor’s obligation to complete such activity, the clean-up and removal activity may be done by one or more other parties at the direction of the City. The cost of all such clean-up and removal activity performed by a person or entity other than the vendor shall be charged to the vendor or deducted from any payment due to the vendor.
The vendor shall not allow any employee of the vendor or any subcontractor or agent thereof to smoke inside any City facility.
The vendor certifies that it is in compliance with the conditions of the Federal Occupational Safety and Health Act of 1970 (OSHA), the Washington Industrial Safety and Health act of 1973 (WISHA), and the standards and regulations issued thereunder and certifies that all items furnished or purchased under this Agreement will conform to and comply with said standards and regulations. The vendor shall indemnify, defend, and hold the City harmless from all damages assessed against the City as a result of the vendor’s failure to comply with the OSHA and WISHA and the standards issued thereunder and for the failure of any of the items furnished to the City under this Agreement to so comply.
0.13.1Termination for Default
In the event the vendor fails to comply with a provision of this Agreement (“Default”) and such Default has not been cured by the vendor within the time specified below for such cure, the City may immediately terminate this Agreement by delivering written notice of such termination to the vendor. The vendor shall have thirty (30) days to effect a cure of any Default involving the delivery of any Hardware or Software item that is to be delivered to the City and ten (10) days to effect a cure of any other Default. Each such cure period shall commence upon the vendor’s receipt of the City’s notice specifying such Default and demand for its correction.
The City shall not be in default unless the City fails to perform an obligation required of it within a reasonable time, which time shall not extend more than thirty (30) days after written notice by the vendor to the City specifying the particular obligation that the City has failed to perform.
0.13.1.3Extension of Cure Period
Notwithstanding the time deadlines established in Subsections 220.127.116.11 and 18.104.22.168, if the nature of either obligation is such that more than thirty (30) days are required for performance, then such party shall not be in default if it commences performance within such specified period and thereafter diligently prosecutes the same to completion.
0.13.2Acts of Insolvency
The City may terminate this Agreement by written notice to the vendor if the vendor becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, or is wound up or liquidated, voluntarily or otherwise.
0.13.3Force Majeure; Suspension and Termination
In the event that either party is unable to perform all of its obligations under this Agreement or to enjoy any of its benefits because of a natural disaster or action or decree of a superior governmental body (hereinafter referred to as a “Force Majeure Event” or “Event”), the party that has been so affected immediately shall give notice to the other party and shall do everything possible to resume performance.
Upon receipt of such notice, the affected party shall be excused from such performance as is affected by the Force Majeure Event for the period of such Event; but if the period of the non-performance exceeds fifteen (15) days from the date of the other party’s receipt of the notice of the Force Majeure Event, the party that has not had its ability to perform so affected may terminate this Agreement by giving written notice of termination to the party suffering from the effect of the Event. If such Event affects the delivery date or warranty provisions of this Agreement, such date or warranty period shall automatically be extended for a period equal to the duration of such Event.
0.13.4Notice of Termination
Termination of this Agreement may only occur under the conditions specified herein, and must be by written notice to the other party specifying the date when the termination shall be effective.
0.14.1Insurance Required; Insurance Documentation Required
Prior to undertaking any work under this Agreement, the vendor shall obtain, and shall thereafter maintain continuously, at no expense to the City, and file with the City’s Purchasing Services and the City’s Risk Management Administrator in the Contracting Services Division, evidence of a policy or policies of insurance as specified below.
0.14.1.1Commercial General Liability Insurance
A policy of commercial general liability insurance, written on an occurrence form, including all the usual coverages known as:
Independent Contractors Liability
Stop Gap or Employers Contingent Liability
Fire Damage Legal
Such policy(ies) must provide the following minimum coverage:
Bodily Injury and Property Damage
$1,000,000 General Aggregate
$1,000,000 Products & Completed Operations Aggregate
$1,000,000 Personal & Advertising Injury
$1,000,000 Each Occurrence
$ 100,000 Fire Damage
Stop Gap/Employers Liability
$1,000,000 Each Accident
$1,000,000 Disease – Policy Limit
$1,000,000 Disease – Each Employee
0.14.1.2Business Automobile Liability Insurance
A policy of Business Automobile Liability, including coverage for owned, non-owned, leased or hired vehicles written on an insurance industry standard form (CA 00 01) or equivalent.
Such policy(ies) must provide the following minimum limit:
Bodily Injury and Property Damage
$1,000,000 aggregate liability.
0.14.1.3Errors and Omissions Liability Insurance
A policy of Errors and Omissions Liability Insurance appropriate to the vendor’s profession. Coverage should be for a professional error, act or omission arising out of the scope of services shown in the contract. The policy form may not exclude Bodily injury or Property damage. The minimum limit of coverage shall be $1,000,000 per Claim/Aggregate.
A policy of Worker’s Compensation. As respects Workers’ Compensation insurance in the state of Washington, the vendor shall secure its liability for industrial injury to its employees in accordance with the provisions of Title 51 RCW. If the vendor is qualified as a self-insurer in accordance with Chapter 51.14 RCW, vendor shall so certify by delivering to the Risk Management Administrator in the City’s Contracting Services Division a letter signed by an authorized representative of the vendor indicating that the vendor is a qualified self-Insured, and setting forth the limits of any policy of excess insurance covering its employees; or any similar coverage required. The vendor further waives, with respect to the City only, its immunity under RCW Title 51, Industrial Insurance.
0.14.1.5Assumption of Risk
Vendor hereby assumes all risk of damage to its property, or injury to its officers, directors, agents, contractors, or invitees, in or about the Property from any cause, and hereby waives all claims against the City.
0.14.1.6Other Requirements for Vendor’s Insurance
The insurance provided pursuant to Sections 22.214.171.124 and 126.96.36.199, shall be endorsed to include The City of Seattle, its officers, elected officials, employees, agents and volunteers as additional insured, and shall not be reduced or canceled without forty-five (45) days prior written notice to the City. In addition, vendor’s insurance shall be primary, as respects the City and any other insurance maintained by the City shall be excess and not contributing insurance with the vendor’s insurance.
0.14.2Claims Made Form and Deductibles
If any such policy(ies) above is written on a Claims Made Form, the retroactive date shall be prior to or coincident with the effective date of this Agreement. The policy shall state that coverage is Claims Made, and state the retroactive date. Claims made form coverage shall be maintained by the vendor for a minimum of three years following the expiration or earlier termination of this Agreement. The vendor shall annually provide the City with proof of renewal. If renewal of the claims made form of coverage becomes unavailable, or economically prohibitive, the vendor shall purchase an extended reporting period (“tail”) or execute another form of guarantee acceptable to the City to assure financial responsibility for liability for services performed.
Any deductible or self-insured retention must be disclosed and is subject to approval by Risk Management Administrator in the City’s Contracting Services Division. The cost of any claim payments falling within the deductible shall be the responsibility of the vendor.
0.14.3Evidence of Insurance
The following documents must be provided as evidence of insurance coverage.
A copy of the policy’s declarations pages, showing the Insuring Company, policy effective dates, limits of liability and the Schedule of Forms and Endorsements including any company-specific or manuscript endorsements. The City reserves the right to require a copy or certified copy of said policy or policies including all forms and endorsements attached.
A copy of the endorsement naming The City of Seattle as an Additional Insured (excluding Professional Liability Insurance), showing the policy number, and signed by an authorized representative of the insurance company on Form CG 2026 or equivalent.
A copy of an endorsement stating that the coverages provided by this policy to the City or any other named insured shall not be terminated, reduced or otherwise materially changed without providing at least forty-five (45) days prior written notice to The City of Seattle, c/o Risk Management Administrator.
With respect to the Commercial General Liability and Business Automobile Liability Insurance to be provided under Subsections 188.8.131.52 and 184.108.40.206, a copy of a “Separation of Insureds” or “Severability of Interests” clause indicating essentially that except with respect to the limits of insurance and any rights or duties specifically assigned to the first named insured, this insurance applies as if each named insured were the only named insured, and separately to each insured against whom claim is made or suit is brought.
0.14.4Insurance Policy Rating
All policies shall be subject to approval by the Risk Management Administrator in the Contracting Services Division as to company (must be rated A-(VII) or higher in the A.M. Best’s Key Rating Guide and licensed to do business in the State of Washington or issued as a surplus line by a Washington Surplus lines broker), form and coverage, and primary to all other insurance.
If the vendor is self-insured for purposes of the Commercial General Liability and the Business Automobile to be provided under Subsections 220.127.116.11 through 18.104.22.168, a letter to the City’s Project Director must be submitted by the vendor’s Risk Manager or appropriate Finance Officer, indicating whether the self-insurance is actuarially funded and if so, what the fund limits are. Such letter shall be accompanied by any declaration pages of excess coverage required to meet the Agreement limit requirements. Further, this letter should advise how the vendor would protect and defend The City of Seattle as an Additional Insured in the vendor’s Self-Insured layer, and include claims handling directions in the event of a claim.
Vendor shall include all subcontractors as insureds under its policies or shall furnish separate evidence of insurance as stated above for each subcontractor. All coverages for subcontractors shall be subject to all the requirements stated herein and applicable to their profession.
Vendor shall indemnify, hold harmless and defend (including paying reasonable attorney’s fees and costs) the City, and any officer, employee or agent thereof, (each of the foregoing being hereinafter referred to individually as an “Indemnified Party”) against all claims of, and liability to, third parties (other than liability the fault of the Indemnified Party, to the extent of such fault) arising from or in connection with any grossly negligent act, omission, or willful misconduct of the vendor or any of its officers, employees, agents or subcontractors under this Agreement; or the sale or license to or use by the City of the System resulting in the violation of any third party’s trade secrets, proprietary information, trademark, copyright, or patent rights in connection with goods to be provided and services to be performed under this Agreement. Vendor shall conduct the defense in any such third party action arising as described herein and the City promises to cooperate fully with such defense.
Indemnity of Vendor. The City shall indemnify, defend, and hold Vendor harmless with respect to any suit, claim, or proceeding brought against Vendor pertaining to the use of the REVERSE 911 trademark, REVERSE 911 Configuration, REVERSE 911 Software or REVERSE 911 Database arising out of any negligence of the City or any intentional acts of the City not specifically permitted pursuant to this Agreement. City shall also indemnify, defend, and hold Vendor harmless with respect to any suit, claim or proceeding brought against Vendor alleging that an individual suffered damage, injury, death or loss of property resulting from any failure of the REVERSE 911 System to properly deliver an automated telephone message to such individual.
The vendor shall not permit the disclosure or duplication of any information received from the City unless such disclosure or duplication is specifically authorized in writing by the City. Please refer to the Non-Disclosure Agreement at the end of this chapter. The City shall not permit the duplication by, or disclose any information conspicuously designated in advance by the vendor as “Confidential and Proprietary” information to, any person (other than City officers, employees, or consultants who must have such information for the performance of their City duties or obligations), unless such duplication, use or disclosure is specifically authorized in writing by the vendor or is required by law. The term “Confidential and Proprietary” information is not meant to include ideas, concepts, know-how or techniques related to any information that, at the time of disclosure, is in the public domain unless the entry of that information into the public domain is a result of any breach of this Agreement. In the event any request is made for material that the vendor has designated as containing Confidential Information, the City will notify the vendor of the request pursuant to RCW 42.17.320 or its successor legislation. Upon receipt of such notice, the vendor shall take such action as it deems necessary and appropriate to prevent the release of such information pursuant to RCW 42.17.330 or its successor legislation, and the City shall have no further obligations in this regard provided, however, that the vendor may not take any action that would affect a) the ability of the City to use the goods or services provided under this Agreement or b) the obligations of the vendor under this Agreement. In the event the vendor does not take action to prevent the disclosure of its Confidential Information within the time period required by law, the vendor shall be deemed to have authorized the release of such information and the City shall not be liable to the vendor in the event the Confidential Information is released.
No news release, advertisement, promotional material, tour, or demonstration related to the City’s purchase or use of the vendor’s product or any work performed pursuant to this Agreement shall be produced, distributed or take place without the prior, specific approval of the City’s Project Director or his/her designee.
0.18Warranties, Limitations to Liability.
0.18.1Warranty of the System
Commencing on the date that the City issues its Final Acceptance Certificate, and extending for a period of one(1) year, the vendor warrants that the Software furnished hereunder shall be free from programming errors and that the Software and hardware shall be free from defects in workmanship and materials and shall operate in conformity as specified in the vendors response to the RFP and with Vendor's published specifications; that the services shall be performed in a timely and professional manner by qualified professional personnel; and that the services, Software and Hardware shall conform to the standards generally observed in the industry for similar services, Software and hardware; and such other representations, warranties, and limitations as set forth in Attachments B and C hereto, and the same are hereby agreed to by the City.
0.18.2Warranty against Planned Obsolescence
The vendor warrants that the products proposed to and acquired by the City under this Agreement are new and of current manufacture, and that it has no current plans for announcing a replacement line that would be marketed by vendor as a replacement for any of the products provide to the City under this Agreement and would result in reduced support for the product line within which the System furnished to the City is contained.
0.18.3No Surreptitious Code Warranty
The vendor warrants to the City that no copy of the licensed Software provided to the City contains or will contain any Self-help Code or any Unauthorized Code as defined below. This warranty is referred to in this Agreement as the “No Surreptitious Code Warranty.”
As used in this Agreement, “Self-help Code” means any back door, time bomb, drop dead device, or other Software routine designed to disable a computer program automatically with the passage of time or under the positive control of a person other than the licensee of the Software. The term “Self-help Code” does not include Software routines in a computer program, if any, designed to permit an owner of the computer program (or other person acting by authority of the owner) to obtain access to a licensee’s computer system(s) (e.g. remote access via modem) for purposes of maintenance or technical support.
As used in this Agreement, “Unauthorized Code” means any “virus,” “Trojan horse,” “worm” or other Software routines or Equipment components designed to permit unauthorized access to disable, erase, or otherwise harm Software, Equipment, or data or to perform any other actions. The term Unauthorized Code does not include Self-help Code.
The vendor shall defend City against any claim, and indemnify the City against any loss or expense arising out of any breach of the No Surreptitious Code Warranty.
0.18.4Title Warranty and Warranty against Infringement
The vendor warrants and represents that the hardware and Software provided under this Agreement is the sole and exclusive property of the vendor or that the vendor is authorized to provide full use of the hardware and Software to the City as provided herein. The vendor warrants that it has full power and authority to grant the rights granted by this Agreement to the City without the consent of any other person or entity.
In the event of any claim by a third party against the City asserting a patent, copyright, trade or secret, or proprietary right violation involving the System acquired by the City hereunder or any portion thereof, vendor shall defend, at its expense, and shall indemnify the City against any loss, cost, expense, or liability arising out of such claim, whether or not such claim is successful; provided, however, that vendor is notified by the City in writing within a reasonable time after the City first receives written notice of any such claim, action, or allegation of infringement. In the event a final injunction or order is obtained against the City’s full use of either the System or any portion thereof as a result of any such claim, suit or proceeding, and if no further appeal of such ruling is practicable, vendor shall, at the City’s option and at vendor’s expense:
procure for the City the right to continue full use of the System or
replace or modify the same so that it becomes non infringing (which modification or replacement shall not affect the obligation to ensure the System conforms with applicable specifications); or
if the product was purchased and the actions described in item (1) or (2) of Section 5.19.4, are not practicable, re-purchase the product from the City at a price mutually agreed upon, which shall relate to the value and utility of the product to the City; or
if the System was leased, licensed, or rented, and the actions described in item (1), (2), or (3) of Section 5.19.4, are not practicable, remove such System from the City’s site(s) and pay the City promptly after notification for all direct and consequential damages suffered by the City as a result of the loss of the infringing product and any other continued utility of which to the City is adversely affected by the removal of the infringing product, and hold the City harmless from any further liability therefore under any applicable Order, Settlement, or other agreement. In no event shall the City be liable to vendor for any lease, rental, or maintenance payments after the date, if any, that the City is no longer legally permitted to use the System because of such actual or claimed infringement. In the event removal or replacement of the System is required pursuant to this paragraph, vendor shall use reasonable care in the removal or modification thereof and shall, at its own expense, restore the City’s premises as nearly to their condition immediately prior to the installation of the System as is reasonably possible.
No settlement that prevents the City from continuing to use the Software, other products or Software documentation as provided in this Agreement shall be made without the City’s prior written consent. In all events, the City shall have the right to participate at its own expense in the defense of any such suit or proceeding through counsel of its own choosing.
The indemnification obligation set forth in this section shall survive the expiration or earlier termination of this Agreement.
The vendor warrants that the Software and Equipment is the sole and exclusive property of the vendor and that the vendor is authorized to provide full use of the Software to the City as provided herein and that such Software is not subject to any lien, claim or encumbrance inconsistent with any of the City’s rights under this Agreement and that the City is entitled to and shall be able to enjoy quiet possession and use of the Software and Equipment without interruption by vendor or any other person making a claim under or through the vendor or by right of paramount title.
The vendor warrants that, in performing the services under the Maintenance Agreement appended as Attachment C.
The vendor shall strictly comply with the descriptions and representations as to the services, including performance capabilities, accuracy, completeness, characteristics, specifications, configurations, standards, function and requirements, which appear in this Agreement and in the vendor’s response to the City’s Request for Proposal DIT 26.
Its products shall be uniform in appearance and clean and presentable in accordance with generally applicable standards in the industry.
Any preparation Software or data analysis used in the Services shall be available to the City for a period of five (5) years following the completion of the Services. This warranty shall apply only to preparation Software or data analysis owned by or under the control of the vendor. Errors or omissions committed by the vendor in the course of providing Services shall be remedied by the vendor at its own expense.
The vendor warrants and represents that the Equipment provided to meet the requirements of the Statement of Work shall be free from all defects, shall be in good operating order, and shall operate in conformity with the descriptions and standards as set forth in the vendor’s Proposal and the City’s RFP for a period of one (1) year from and after the Acceptance Date. During the warranty period, vendor shall promptly, without additional charge, repair or replace the equipment or any part thereof that fails to function according the vendor’s specifications or the specifications of the manufacturer thereof.
0.18.8Limitation on Liability
VENDOR SHALL NOT BE LIABLE FOR ANY DELAY OR FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER RESULTING FROM THE CITY’S FAILURE TO TIMELY SUPPLY VENDOR WITH NECESSARY DATA, INFORMATION OR SPECIFICATIONS OR ANY CHANGES IN SUCH DATA, INFORMATION OR SPECIFICATIONS.
VENDOR SHALL NOT BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE REVERSE 911 SYSTEM, EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VENDOR WILL NOT BE RESPONSIBLE FOR ANY PERSONAL INJURY, DEATH OR DAMAGE DUE TO THE USE, MISUSE OR FAILURE OF THE REVERSE 911 SYSTEM.
VENDOR’S SOLE OBLIGATION FOR ANY DEFECTS OR FAILURE OF THE REVERSE 911 SYSTEM IS TO FIX THE REVERSE 911 SYSTEM AS PROVIDED IN THIS AGREEMENT, DURING THE WARRANTY PERIOD. IN NO EVENT SHALL VENDOR’S TOTAL LIABLITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CITY FOR THE REVERSE 911 SYSTEM.
0.19Compliance with Applicable Law
The vendor warrants that the System, and the manufacture and production thereof, are in compliance with any and all applicable laws, rules, and regulations.
0.20Survival of Warranties and Representations
The representations and warranties of the vendor made pursuant to this Agreement shall survive the delivery of the System, the payment of the purchase price, and the expiration or earlier termination of this Agreement.
0.21ACCESS TO BOOKS AND RECORDS
For a period of six (6) years after the completion of this Agreement, the City or its agents shall have the right at reasonable times to audit in King County, Washington, the books and records of the vendor bearing upon or connected with the terms and conditions of this Agreement in order to determine compliance with the provisions of this Agreement. The vendor shall require its subcontractors to allow the City or its agents to audit the subcontractors’ books and records as necessary in order to determine compliance with the provisions of this Agreement. In the event that the audit reveals that there has been an error in payment, the parties agree to immediately correct such errors. A written request for audit documentation shall be provided to the vendor. The vendor, within thirty (30) days from and after its receipt of the request, shall furnish the required documentation. Such documentation shall be confined to those matters directly related or pertinent to the vendor’s performance of this Agreement.
The vendor will not discriminate against any employee or applicant for employment because of creed, religion, race, age, color, sex, marital status, sexual orientation, gender identity, ideology, ancestry, national origin, or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification. The vendor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their creed, religion, race, age, color, sex, national origin, marital status, political ideology, ancestry, sexual orientation, gender identity, or the presence of any sensory, mental or physical handicap. Such action shall include but not be limited to the following: Employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship.
The vendor shall post in conspicuous places, available to employees and applicants for employment, notices to be provided by the City setting forth the provisions of this nondiscrimination clause.
0.23NON-DISCRIMINATION IN BENEFITS
The vendor shall comply with the requirements of SMC Ch.20.45 and the Equal Benefits Program Rules. Failure to comply will subject the Contractor to one or more of the following penalties: disqualification from bidding on or being awarded a City contract for a period of up to 5 years, actual damages, termination of the contract, or other remedial actions such as payment of cash equivalent payments or expedited implementation of equal benefits.
0.24WOMEN AND MINORITY BUSINESS ENTERPRISE REQUIREMENTS
Notwithstanding any other provision in any procurement document, City women- and minority owned business (WMBE) utilization requirements shall not apply to this Agreement. Any affirmative action requirements set forth in any federal regulations or statutes included or referenced in the Agreement shall apply.
The City encourages the vendor to employ a workforce reflective of the region’s diversity. The vendor shall adhere to all nondiscrimination requirements as set forth in federal and state laws and regulations and Seattle municipal code provisions.
The vendor shall not create barriers to open and fair opportunities for WMBEs to participate in all City contracts and to obtain or compete for contracts and subcontracts as sources of supplies, equipment, construction and services. In considering offers from and doing business with subcontractors and suppliers, the vendor shall not discriminate on the basis of race, color, creed, religion, sex, age, nationality, marital status, sexual orientation or the presence of any mental or physical disability in an otherwise qualified disabled person.
The vendor shall maintain, for at least twelve (12) months after completion of this Agreement, relevant records and information necessary to document the level of utilization of WMBEs and other businesses as subcontractors and suppliers in the Agreement and in its overall public and private business activities. The vendor shall also maintain all written quotes, bids, estimates, or proposals submitted to the vendor by all businesses seeking to participate as subcontractors or suppliers in this Agreement. The City shall have the right to inspect and copy such records. If this Agreement involves federal funds, the vendor shall comply with all record keeping requirements set forth in any federal rules, regulations or statutes included or referenced in the Agreement documents.
0.24.3Affirmative Efforts to Utilize WMBEs
The City encourages the utilization of minority owned businesses (“MBEs”) and women-owned businesses (“WBEs”) (collectively, “WMBEs”), in all City contracts. The City encourages the following practices by the vendor to open competitive opportunities for WMBEs:
Attending a pre bid or pre solicitation conference, if scheduled by the City, to provide project information and to inform WMBEs of contracting and subcontracting opportunities.
Placing all qualified WMBEs attempting to do business in the City on solicitation lists, and providing written notice of subcontracting opportunities to WMBEs capable of performing the work, including without limitation all businesses on any list provided by the City, in sufficient time to allow such businesses to respond to the written solicitations.
Breaking down total requirements into smaller tasks or quantities, where economically feasible, in order to permit maximum participation by small businesses, including WMBEs.
Establishing delivery schedules, where the requirements of this Agreement permit, that encourage participation by WMBEs.
Providing WMBEs that express interest with adequate and timely information about plans, specifications, and requirements of the Agreement.
Utilizing the services of available minority community organizations, minority contractor groups, local minority assistance offices, the City, and other organizations that provide assistance in the recruitment and placement of WMBEs.
0.24.4Sanctions for Violation
Any violation of the requirements of Sections 5.25.1 and 5.25.2 shall be a material breach of contract for which the vendor may be subject to damages and sanctions provided for by contract and by applicable law.
0.25FAIR CONTRACTING PRACTICES
The Contractor shall comply with the Fair Contracting Practices Ordinance of The City of Seattle (Ordinance 119601), as amended. Conduct made unlawful by that ordinance constitutes a breach of contract. Engaging in an unfair contracting practice may also result in the imposition of a civil fine or forfeiture under the Seattle Criminal Code as well as various civil remedies. (See SMC 14.10 at http://clerk.ci.seattle.wa.us/~public/code1.htm)
Any dispute concerning the vendor’s performance of this Agreement that is not disposed of by agreement between the vendor and the City shall be referred to Nancy Locke, Purchasing Services Manager of the City and the vendor’s Chief Financial Officer, Matt Konkle. If such parties’ representatives do not agree upon a decision within a reasonable period of time, either of the parties may pursue other legal means to resolve such disputes.
All notices and other material to be delivered hereunder shall be in writing or facsimile and shall be delivered or mailed to the following:
If to City: [ city of seattle dept of information technology attn: phil black 700 5th avenue, Suite 2700 Seattle, WA 98124]
If to Vendor: [ Reverse 911® customer service dept 6720 parkdale place indianapolis, in 46254]
or such other respective name(s) and address(es) as either party may, from time to time, designate for itself, by notice to the other party in writing.
The Parties hereto reserve the right to make amendments or modifications to this Agreement by written agreement signed by an authorized representative of each party.
This Agreement shall be governed by the laws of the State of Washington and the Charter and Ordinances of the City. The venue of any action thereunder shall be in King County, Washington.
0.28.3Compliance with Law
The vendor shall comply with all applicable federal or state laws and City ordinances and with applicable directions, rules and regulations of public officials and departments in enforcement of City ordinances and with directions, rules, and regulations from the State of Washington or from the United States of America with respect to any portion of this Agreement.
0.28.3.2Licenses and Similar Authorizations
The vendor, at no additional expense to the City, shall secure and maintain in full force and effect during the term of any Agreement resulting from this procurement process, all required licenses, and similar legal authorization, and comply with all legal requirements.
Subject to the indemnification and limitation of vendor’s liability provisions set forth in this Agreement, if any action or suit is brought with respect to a matter or matters covered by this Agreement, each party shall be responsible for all its own costs and expenses incident to such proceedings, including reasonable attorneys’ fees.
0.28.5Interlocal Purchase Agreements
The City of Seattle has entered into Interlocal Purchase Agreements with other governmental agencies pursuant to RCW 39.34. Sigma Communications agrees to sell additional software at the bid price, terms and conditions to other governmental agencies. The City of Seattle accepts no responsibility for the payment of the purchase price by other governmental agencies.
Neither party shall assign any of its obligations under this Agreement, in whole or in part, without the other party’s written consent; provided, however, that Vendor may assign this Agreement in Vendor's sole discretion to a successor, and without the City's consent, in the event of a change in control of Vendor including a merger, acquisition, or sale, so long as such successor assumes all obligations of Vendor hereunder.
The provisions, covenants and conditions in this Agreement apply to bind the parties, their legal heirs, representatives, successors, and assigns.
All remedies available at law or in equity to either party for breach of this Agreement are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
The City may, by written notice to the vendor, terminate the right of the vendor to proceed under this Agreement upon one (1) calendar day’s notice, if it is found that a gratuity in the form of a bribe, gift, or otherwise was offered or given by the vendor, or any agent as representative of the vendor, to any official, officer or employee of the City, provided that the existence of the facts upon which the City makes such findings may be reviewed by a competent court. In the event of such termination, the City shall be entitled to pursue the same remedies against the vendor as it could pursue in the event of default by the vendor. The above restrictions are not to be interpreted as prohibiting the vendor from providing room and board for the City personnel to attend vendor-sponsored training seminars or schools that are generally held at plant sites and are available to all vendor’s customers, and are a regular element of vendor’s training program.
Section, subsection and paragraph headings are included in this Agreement for convenience only and do not change, modify or limit any right or obligation of this Agreement.
0.34Independent Status of Parties
Both parties hereto, in the performance of this Agreement, will be acting in their individual capacities and not as agents, employees, partners, joint venturers or associates of the other. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever.
If any term or condition of this Agreement or the application hereof to any person(s) or circumstances is held invalid, such invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition or application; to this end the terms and conditions of this Agreement are declared severable.
The waiver of any breach or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further, prior or future breach or right thereunder. No right or obligation of this Agreement shall be deemed to be waived, modified or deleted except by an instrument, in writing, signed by both parties.
Each party has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. Each party further acknowledges that it has read this Agreement, understands it, and shall be bound by it.
This Agreement, including all Appendices, Supplements and Exhibits referenced herein, constitutes the entire agreement between the City and the vendor. The City’s Request for Proposal DIT26 (“RFP”), the Addenda to the RFP; and the vendor’s Proposal submitted in response to the RFP are explicitly included as Supplements to this Agreement. Where there is any conflict between or among these documents, the controlling document will first be this Agreement with attachments , as amended, then the RFP and Addenda, and then the vendor’s EULA.
IN WITNESS WHEREOF, the City and the vendor have caused this Agreement to be executed.
City of Seattle Sigma Communications
Department of Executive Administration
Purchasing Services Division
Name: Nancy Locke Name: Kevin McCarthy
Title: Purchasing Services Mgr Title: President
Date: _________________________ Date: ____________________________