HomeMy WebLinkAboutSolutions II 2022-03-25 COU No. 2122-217
Solutions II Performing Ahead of the Curve
MASTER AGREEMENT
PROPRIETARY INFORMATION Master A regiment Number:COU20210806
CLIENT INFORMATION
Client Name Effective Date
CITY OF UKIAH 3/25/2022
Billing Address(Street,Building,Floor,Room) City, State and Zip Code
300 SEMINARY AVENUE UKIAH, CA 95482
Billing Contact Telephone,Facsimile,E-Mail,Pager
CANDICE RASMASON (707) 467-5716, ap@cityofukiah.com
Primary Address(Street,Building,Floor,Room) City,State and Zip Code
300 SEMINARY AVENUE UKIAH, CA 95482
Designated Representative(Primary Authorized Contact Person) Telephone,Facsimile,E-Mail,Pager
MARY HORGER (707)463-6233,mhorger@cityofiikiah.com
Term
Subject to the terms hereof,this Agreement shall commence on the Effective Date shown above and shall continue for such term as is
designated in each Schedule or Statement of Work set forth below or made subject to this Agreement. Such term(s)shall be subject to
renewal,if applicable,for the periods set forth in each Schedule or Statement of Work(Renewal Term).
The Schedules and Statements of Work checked below are attached to and made a part of this Agreement on the Effective Date. Any
Schedules or Statement(s)of Work attached subsequently shall be deemed an amendment to this Agreement:
❑ Schedule A—Statement of Work ❑ Cloud Services
❑ Managed Services ❑ Version SL
❑ Managed Software Suite License ❑Version AZ
This Master Agreement,together with all Schedules and Statement(s)of Work attached hereto(or to be attached at a later date)is further
subject to the Master Agreement Terms("Agreement Terms")attached hereto,and the Schedules and Statement(s)of Work,if any,are
collectively referred to hereafter as the"Agreement". Client has read and understands the Agreement and agrees to be bound hereby.
This Agreement shall not be effective until signed and dated by a duly authorized representative of Solutions II. The parties have
executed this Agreement as of the last date shown below.
Solutions 11,Inc. (Solutions 1 ) (Client)
Signature: Signature: "'t r'r
Print Name: William Todd Bowling Print Name: SAGE SANGIACOMO
Title: President Title: CITY MANAGER
Date: 4/1/2022 Date: 3/25/2022
Account Executive:
Pagel of3 v111242014
Tnitial
AGREEMENT TERMS
ARTICLE I—Services and Scope
2. Each Party agrees that during the term that Consulting Services are being provided
1. Subject to the terms set forth in this Agreement,Solutions 11 agrees to render the services pursuant to this Agreement and during the period of twelve(12)months after such time or
("Consulting Services")listed in Schedule A.Schedule A will consist ofStatenment(s)of Work termination of this Agreement,it will treat all Confidential Information confidential and will
together with any license agreements(if applicable)which will be agreed to individually and protect it with at least the same degree of care that it protects its own confidential information
become a part of this Agreement when signed by both parties, All Statement(s)of Work will and will not disclose Confidential Information to any person not acting for or on behalf of a
reference this Agreement,be attached hereto and confirm that they are subject to die terms and party to this Agreement and only to those persons that have a need to know in performing dmeir
conditions of this Agreement. Any terms of tie Statement(s)of Work and applicable license duties or obligations under this Agreement,unless otherwise authorized in writing by the
agreements that are inconsistent with this Agreement will take precedent over the language in Disclosing Party. The Receiving Party's obligations under this Article IiI shall continue with
this Agreement. respect to each item of Confidential information until die Disclosing Party publishes said item
or until said item becomes public other than by act of the Receiving Party in breach of this
2. The Client shall appoint a Designated Representative identified on the cover sheet who Agreement.
will be in charge of the project for die Client and have authority to make binding decisions on
behalf of the Client.Solutions II shall report to the Designated Representative. All notices 3. Notwithstanding tie foregoing,Solutions 11 shall retain all right,title and interest in any
regarding changes in the project,revisions to the Statement(s)of Work,or otherwise related to intellectual property created in or while performing the Consulting Services provided under
this Agreement shall be delivered to the Designated Representative, this Agreement. For avoidance ofany doubt,all copyrights,patent rights,and other intellectual
property rights in die Consulting Services,including any contained in the deliverables,are
3. Client is responsible for ensuring its compliance with all legal and regulatory retained by Solutions II. Nothing in this Agreement shall prohibit or restrict either party from
requirements that are applicable to its business. It is the Client's sole responsibility to obtain the use of its knowhow.
advice of competent legal counsel as to the identification and interpretation of any relevant
laws and regulatory requirements that may affect die Client's business and any actions the ARTICLE IV—Non-Interference
Client may need to take to comply with such laws.Solutions 11 does not provide legal advice
or represent or warrant and expressly disclaims any warranty that its Consulting Services or Client agrees that during the term of this Agreement and during the period of twenty-four(24)
products will ensure that tie Client is in compliance with any law or regulation. Solutions 11 months after tennination,that it will not solicit,hire,or in any way cause an employee,or
is not responsible for the Client's legal and regulatory compliance. contractor of Solutions If to terutinate their relationship with Solutions 11,or in any way
interfere with the relationship that any employee or contractor has with Solutions IL The
ARTICLE II-Performance,Payment,and Expenses parties recognize that damages for a breach of this provision immediately above may be
difficult to calculate and therefore as liquidated damages and not as a penalty for each breach
I. Parfommance. Solutions iI shall diligently perform the Consulting Services,supplying by Client of such provision and as a reasonable amount related to damages that would be
all reasonably necessary professional services,technical knowledge and analytical manpower anticipated to be caused for each breach of such provision,Client shall pay to Solutions iI a
necessary or incidental thereto, except as otherwise expressly provided for herein. The lump sum amount equal to one hundred percent(100%)of the employee's highest awwal
Consulting Services shall be performed in a professional and workmanlike manner consistent compensation,or one hundred thousand dollars($100,000.00),whichever is greater. In order
with standards that are customary in Solutions i1's industry. ALL CONSULTING SERVICES to protect Solutions Ii's confidential information and its relationships with its customers,
ARE PROVIDED"AS iS"AND SOLUTIONS Il DISCLAIMS AND MAKES NO OTHER vendors and employees,Solutions 11 and its employees have executed certain Employment
WARRANTIES,EXPRESS OR IMPLIED,RELATED TO SOLUTION II'S CONSULTING Agreements and Confidential infornation Non Interference and Non Solicitation Agreements
SERVICES OR THIS AGREEMENT; INCLUDING WITHOUT LIMITATION, THE and Covenants not to Compete(collectively,"Employee Agreements"). Client acknowledges
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A the importance of such Employee Agreements and agrees not to knowingly interfere with the
PARTICULAR PURPOSE. Client shall schedule times for Solutions It to provide the Employee Agreements by engaging in transactions with Solutions 11 employees or ex-
Consulting Services and to make available its facilities or other accommodations, its employees that would violate such Employment Agreements.
employees and its subcontractors,for Solutions II to perform the Consulting Services;failure
to do any of the foregoing shall be a breach of the Agreement by Client, ARTICLE V—indemnification
2, Payment. Client agrees to pay Solutions ii for die Consulting Services in die amounts, 1. Each party("Indemnifying Party")hereby indemnities and agrees to hold harnmless and
and pursuant to the terms,set forth in Schedule A or tie Statement(s)of Work. In the event release the other party("Indemnified Party"),its affiliates,and subcontractors and its and each
Schedule A or tie Statement(s)of Work do not specify any terns for payment,Client shall of their officers, directors, shareholders, members, managers, employees, representatives,
pay:(i)forty percent(40%)ofthe total contract amount upon execution ofthe initial Schedule subcontractors,agents representatives,successors,affiliates and assigns,from and against any
A and forty percent(40%)of die total amowmt of each additional Statement(s)of Work upon and all liabilities, losses, claims, damages, costs, demands, fines,judgments, penalties,
execution ofthe Statement(s)of Work by both parties;and(ii)the remaining balance due wider obligations and payments,together with any reasonable costs and expenses(including,without
Schedule A and each Statement(s)of Work,in equal installments as set forth in Schedule A or limitation,reasonable attorneys'fees and out-of-pocket expenses and reasonable costs and
each Statement(s)of Work. The installment payments shall be due at the end of each such expenses of investigation or litigation) resulting fi-om,relating to or arising out of or in
installment period over the remaining period of time for which Consulting Services are to be connection with:(i)any breach by the Indemnifying Party of the Agreement or die failure of
performed under Schedule A or each additional Statement(s) of Work. The installment the Indemnifying Party (or any person or entity acting directly or indirectly for the
amounts shall be due regardless ofwhether Consulting Services have been performed during indemnifying Party,including employees and subcontractors of the Indemnifying Party)to
the period of time covered by the invoice. Client shall pay all invoices within thirty(30)days perform or observe any tern,provision,covenant,agreement or condition of this Agreement
of receipt ofsucln invoices by Client. Client agrees to pay late charges on all past due balances to be performed or observed by or on behalf of the Indemnifying Party;(ii)any negligence or
in an amount equal to 1-1/2%per month,or the highest rate allowed by law,whichever is less intentional or willful misconduct of the Indemnifying Party(or any person or entity acting
Client shall be liable for all costs incurred in collection ofpast due balances,including,but not directly or indirectly for die indemnifying Party,including employees and subcontractors of
limited to,attorneys'fees,filing fees and court costs. Except for income tax imposed on the Indemnifying Party);or(iii)any claim by a third pity asserted against the Indem-mifhed
Solutions II relating to this Agreement,Client shall pay any and all taxes imposed or assessed Party related to the indemnifying Party's business,
by reason of this Agreement,including,but not finited to,sales or use taxes.The tees charged
by Solutions iI for Consulting Services for all Renewal Terms shall be an amount that is an 2. In any and all claims against an Indemnified Party by any employee ofthe Indemnifying
increase often percent(10%)over the rates charged in die previous term Party,the indemnification and hold-harmless obligation in this Article shall not be limited in
any way by any lintation on the amount or type ofdamages,compensation or benefits payable
3. Expi;oscs, Reasonable expenses incurred by Solutions It for travel(but if such travel is by or for the indemnifying Party under worker's compensation acts,disability benefits acts,or
by first-class air,excluding the differential between the cost of a first-class and economy ticket other employee benefits acts,AND EACH PARTY SPECIFICALLY AND EXPRESSLY
unless the only available seating is first class seating),lodging and meals, together with WAIVES ANY IMMUNITY UNDER SUCH ACTS FOR PURPOSES OF ITS INDEMNITY
Solution ii out-of-pocket expenses,such as expenses for express shipments,administrative OBLIGATIONS TO THE OTHER HEREUNDER. EACH PARTY ACKNOWLEDGES
services(copying,document printing,etc,)and normal telephone expenses("Expenses")will THAT THIS WAIVER HAS BEEN MUTUALLY NEGOTIATED BY THE PARTIES
be reimbursed by Client if itemized separately and accompanied by original receipts as backup
to such expenses on Solutions It's invoices, Client agrees to pay expense invoices within ARTICLE VI-Termination
fifteen(15)days ofreceipt of such invoices;provided however,in no event shall the Expenses
exceed the sum of five thousand dollars($5,000.00)during any one calendar month unless 1. Terumination—General;Removal of Licensed Programs. Each Schedule or Statement of
approved in writing by Client's Designated Representative, Work shall set forth any provisions relating to termination ofthe Consulting Services provided
pursuant to the Schedule or Statement of Work, and any applicable termination fees
ARTICLE III-Confidentiality Notwithstanding anything to the contrary herein or in a Schedule or Statement of Work,and
regardless of the reason for termination,upon a termination of a Schedule or Statement of
1, Each party acknowledges that in its relationship associated with this Agreement each Work in which licensed software programs are provided to Client and/or installed by Solutions
may receive from the other("Receiving Party")information that is not publicly available and iI on Client hardware, the applicable license agreement shall be deemed terminated and
that die party disclosing the information("Disclosing Party")regards as being confidential, Solutions ii shall have the right to uninstall all programs and remove all copies,archives and
which may include but is not limited to: financial information; technical information; manuals immediately_ Client shall provide Solutions II with access to Client's equipment and
projections; customer or prospect information; information relating to: employees, shall cooperate with Solutions 11 to complete die removal ofthe programs.
subcontractors,products,research,development,marketing,business plans,and vendors,or
findings,conclusions,studies,and recommendations relating to the Consulting Services;and 2. Other Termination. in the event that a Schedule or Statement of Work does not set forth
this Agreement, its contents and die fact of its existence (collectively referred to as terms or conditions with regard to termination,the following terms and conditions shall apply:
"Confidential Information").
Page 2 of 3 v01242014
Initial
AGREEMENT TERMS
a. Termination Without Cause, This Agreement niay be terminated,without CONSEQUENTIAL, INCIDENTAL, ECONOMIC OR PUNITIVE DAMAGES,
cause,by either party upon thirty(30)days prior written notice specifying the date upon which INCLUDING,WITHOUT LIMITATION,LOSS OF DATA,LOSS OF INCOME,LOSS OF
such termination will become effective.in the event that Solutions II terminates the Agreement PROFIT OR FAILURE TO REALIZE EXPECTED SAVINGS ARISING DIRECTLY OR
without cause,or Client terminates the Agreement for cause as set forth in VI. 2. below, INDIRECTLY FROM A BREACH OF THIS AGREEMENT (INCLUDING
Solutions 11 shall promptly:(1)furnish to Clicnt a briefreport sununarizing the work performed FUNDAMENTAL BREACH OR OTHERWISE),A PARTIES'NEGLIGENCE,ANY ACT
in rendering Consulting Services and die then current status of any work in progress tinder the OR OMISSION OF EITHER PARTY OR ITS REPRESENTATIVES,OR UNDER ANY
provisions of this Agreement,and(2)return to Client all copies of Confidential Information OTHER THEORY OF LAW OR EQUITY,EVEN iF THE AGGRIEVED PARTY HAD
belonging to Client and property of Client in tangible form prepared by Solutions IT in the BEEN ADVISED OF, HAD KNOWLEDGE OF, OR REASONABLY COULD HAVE
performance of Consulting Services. Upon Solutions iT's performance of items(1)and(2) FORESEEN,THE POSSIBILITY OF SUCH DAMAGES.
above,Solutions 11 shall be paid the amounts required under Article IT through the effective
date of termination. in the event that Client terminates the Agreement without cause,or in the 2. 1N NO EVENT SHALL SOLUTIONS iT'S LIABILITY FOR ANY DAMAGES
event that Solutions IT terminates(lie Agreement for cause as set forth in VI.2,below,Client UNDER THiS AGREEMENT EXCEED THE AMOUNT OF COMPENSATION IT HAS
will pay to Solutions II all amounts required under Article II through the effective date of the RECEIVED iN THE TWELVE(12)MONTHS IMMEDIATELY PRECEDING THE EVENT
termination plus a lump sum payment equal to one hundred percent(100%)of the installment GiViNG RiSE TO THE ALLEGED LIABILITY.
amounts yet to become due pursuant to Article 11,2.Schedule A,and each Statement(s)of
Work. ARTICLE XIV—Article Headings
l Termination for Cause. Either party may terminate this Agreement at any The article and sub-article headings contained in this Agreement are included for convenience
time upon the giving of written notice to the other,if.(i)the other party fails to perform an only,and shall not limit or otherwise affect the terms hereof
obligation or remedy a default under this Agreement for a period continuing more than five
(5)days for a payment obligation,and thirty(30)days for any other performance obligations, ARTICLE XV-Counterparts
after the aggrieved party shall have given the failing or defaulting party written notice of such
failure or default and that such failure or default continues to exist as of the date upon which This Agreement may be executed in one or more counterparts,each of which shall be deemed
the aggrieved party gives notice so terminating this Agreement,or(ii)immediately,if a party an original but all of which together shall constitute one and the same instrument.
makes a general assignment for the benefit of creditors,or files a petition for bankruptcy or
receivership,or has filed against it an involuntary assignment or petition commenced against ARTICLE XVIi—Non-waiver
it under any applicable bankruptcy or insolvency legislation.
The failure of either party to insist upon or enforce strict performance of any provision of this
ARTICLE Vii—Assignment and Affiliates Agreement,or to exercise any right under this Agreement,shall not be construed as a waiver
or relinquishment to any extent of such parties'right to assert or rely upon any such provision
This Agreement shall not be assigned,or the duties created hereunder delegated,without the or right in that or any other instance;rather,the same shall be and remain in full force and
written consent of tie other party hereto other than to an entity acquiring all or substantially effect.
all of the stock or assets of the assignor by merger, consolidation, purchase or similar
transaction. Client may add an affiliate that controls,is controlled by,or is under common ARTICLE XViH-Force Majeure
control with,Client("Affiliate")to obtain Consulting Services hereunder,upon addition of the
appropriate Statements)of Work executed by Solutions II and such Affiliate Except for the payment of any amounts to be paid to a party,neither Solutions II nor Client
will be in violation of the Agreement if the failure to perform the obligation is due to an event
ARTICLE Vlll-Changes to This Agreement beyond either party's control,such as significant failure of a part of the power grid,sabotage,
denial of service attack, significant failure of the Internet, natural disaster, war, riot,
This Agreement may be amended,terminated or superseded only by a written Agreement insurrection,epidemic,strikes or other organized labor action,terrorism,or other events of a
between Solutions iT and Client that expressly amends, terminates or supersedes this magnitude or type for which precautions are not generally taken in the industry;provided
Agreement. This Agreement represents the entire understanding between the parties and however if the force majeure event continues beyond thirty(30)days,the performing party
supersedes any prior understanding whether written or oral with regard to the subject matter may terminate the affected Services.
hereof with die express exception of any agreement limiting the disclosure of any confidential
information,
ARTICLE 1X-Maintenance of Agreement
If any of the provisions of this Agreement shall be invalid or unenforceable,such invalidity or
unenforceability shall not invalidate or render unenforceable this entire Agreement,but rather
such provision shall be modified or severed(as the case may be)so as to maintain to the
maximum extent possible the benefits of the parties hereunder and the remaining provisions of
this Agreement shall be unaffected thereby,
ARTICLE X-Controlling Law,Venue and Attorneys Fees
This Agreement shall be construed under and governed by the laws of the State of Colorado
and any dispute between the Parties in respect to this Agreement shall be submitted to
arbitration before a single arbitrator from JAMS located in Northern California,CA;provided
however,nothing contained herein shall prohibit either party from seeking injunctive relief in
any tort of conhpetentjurisdiction. The prevailing party in any action to enforce the terns of
this Agreement shall be awarded its attorneys fees and costs. The"United Nations Convention
on international Sale of Goods"does riot apply to this Agreement.
ARTICLE Xi-Relationship of the Parties
The relationship of the parties under this Agreement shall be and at all times remain one of
independent contractors. Client and Solutions II are not partners,agents,employees or legal
representatives of the other and neither is authorized to bind the other. This Agreement does
not grant Client any rights in any patents,copyrights,trademarks,trade names or service marks
of Solutions IT or its vendors or suppliers
ARTICLE XII—Schedules
Schedule A and any other Schedules,Statement(s)of Work or attachments that specifically
reference this Agreement and acknowledge that they are subject to the terms and conditions
hereof shall become a pail of this Agreement. In the event of a conflict between tie terms and
conditions of Schedule A,another Schedule or a Statement of Work,the following order of
precedence shall be applicable: (1)Statement of Work,(2)Schedule,(3)Schedule A,and
lastly,(4)these Agreement Terns,
ARTICLE XHI-Consequential Damages and Limitation of Liability
1, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL,
Page 3 of3 v01242Oi4
Initial