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HomeMy Public PortalAbout030-2008 Spam Soap contractPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT made and entered into this _28th day of _February , 2008 by and be- tween the City of Richmond, Indiana, a municipal corporation acting by and through its Board of Public Works and Safety (hereinafter referred to as the "City") and Spam Soap Inc., 3193 Red Hill Avenue, Costa Mesa, CA 92626 (hereinafter referred to as the "Contractor"). SECTION I. STATEMENT AND SUBJECT OF WORK City hereby retains Contractor to perform email filtering services to block and/or remove SPAM, viruses, adware, spyware, etc. from City's email network, hereafter referred to as the "Service." A verbal Request for Proposals was made on November 6, 2007, and the response of the Con- tractor to said Request for Proposals, dated November 6, 2007, is attached hereto as Exhibit "A", which Exhibit consists of seven (7) pages, is incorporated herein and made a part of this Agree- ment. Contractor agrees to abide by the same. Should any provisions, terms, or conditions contained in any of the documents attached hereto as Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the provisions, terms, or conditions of this Agreement, this Agreement shall be controlling. Contractor shall perform all work herein in a timely manner, conforming to all applicable profes- sional standards. The Contractor shall furnish all labor, material, equipment and services necessary for the proper completion of all work specified. No work shall commence until the City is in receipt of any required bonds and certificates of in- surance, and until a purchase order has been issued by the Purchasing Department. SECTION IL STATUS OF CONTRACTOR Contractor shall be deemed to be an independent contractor and is not an employee or agent of the City of Richmond. The Contractor shall provide, at its own expense, competent supervision of the work. SECTION III. COMPENSATION City shall pay Contractor a sum not to exceed Four Thousand Thirty -Two Dollars and No Cents ($ 4,032.00) for performing all work described herein in a satisfactory and proper manner, said sum to be paid in two semi-annual payments of Two Thousand Sixteen Dollars and Zero cents ($2,016.00) each. Contract No. 30 -2008 Page 1 of 5 SECTION IV. TERM OF AGREEMENT This Agreement shall become effective when signed by all parties and shall continue in effect for one (1) year thereafter. Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying the effective date and the reasons for termination which shall include but not be limited to the follow- ing: a. failure, for any reason of the Contractor to fulfill in a timely manner and/or competent manner its obligations under this Agreement, which include, but are not limited to, all work listed in this Agreement or its exhibit(s) b. ineffective or improper use of funds provided under this Agreement; suspension or termination of the grant funding to the City under which this Agreement may be made; or d. unavailability of sufficient funds to make payment on this Agreement. In the event of such termination, the City shall be required to make prorated payment for all work performed prior to the date this Agreement is terminated, but shall be relieved of any other re- sponsibility herein, and Contractor shall be obligated to make prompt refund of payment already made for work not yet performed. This Agreement may also be terminated by either the City or the Contractor, in whole or in part, by mutual Agreement setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated, with prorated payment or refund to be promptly made based upon such determination. All data, analysis, and work product provided by the Contractor to the City prior to any such ter- mination remains solely the property of the City, provided prorated payment has been made for such. SECTION V. INDEMNIFICATION AND INSURANCE Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to per- son or property or any other claims which may arise from the Contractor's conduct or perform- ance of this Agreement, either intentionally or negligently; provided, however, that nothing con- tained in this Agreement shall be construed as rendering the Contractor liable for acts of the City, its officers, agents, or employees. Provided further, that the City and the Contractor acknowledge and agree that no data system is absolutely secure. The City therefore agrees to accept the risk that data may become accessible to unauthorized persons despite the Contractor's best efforts to maintain privacy and security. In the event of an unauthorized release of data the City agrees to cooperate with the Contractor to minimize any damage that may occur and to prevent future oc- currences. The City agrees to hold the Contractor harmless for any unauthorized release of data by Contractor that did not occur as a result of negligence by the Contractor or any of its employ- ees or contractors. Contractor shall as a prerequisite to this Agreement, purchase and thereafter maintain such insurance as will protect it from the claims set forth below which may arise out of or result from the Contractor's operations under this Agreement, whether such operations by the Contractor or by any sub -contractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts the Contractor may be held responsible. Page 2 of 5 Coverage Limits A. Worker's Compensation & Statutory Disability Requirements B. Employer's Liability $100,000 C. Comprehensive General Liability Section 1. Bodily Injury $300,000 each occurrence $300,000 aggregate Section 2. Property Damage $100,000 each occurrence D. Comprehensive Auto Liability Section 1. Bodily Injury $300,000 each person $300,000 each occurrence Section 2. Property Damage $100,000 each occurrence E. Comprehensive Umbrella Liability $1,000,000 each occurrence $1,000,000 each aggregate F. Malpractice/Errors & Omissions Insurance $500,000 each occurrence $500,000 each aggregate SECTION IX. COMPLIANCE WITH WORKER'S COMPENSATION LAW Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before commencing work under this Agreement, provide the City a certificate of insurance, or a certificate from the industrial board showing that the Contractor has complied with Indiana Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore subject to another state's worker's compensation law, Contractor may choose to comply with all provisions of its home state's worker's compensation law and provide the City proof of such compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law. SECTION X. PROHIBITION AGAINST DISCRIMINATION A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting on behalf of Contractor or any sub -contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter di- rectly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees: That in the hiring of employees for the performance of work under this Agree- ment of any subcontract hereunder, Contractor, any subcontractor, or any person acting on behalf of Contractor or any sub -contractor, shall not discriminate by reason of race, religion, color, sex, national origin or ancestry against any citizen Page 3 of 5 of the State of Indiana who is qualified and available to perform the work to which the employment relates; 2. That Contractor, any sub -contractor, or any person action on behalf of Contractor or any sub -contractor shall in no manner discriminate against or intimidate any employee hired for the performance of work under this Agreement on account of race, religion, color, sex, national origin or ancestry; That there may be deducted from the amount payable to Contractor by the City under this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of the Agreement; and 4. That this Agreement may be canceled or terminated by the City and all money due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this section of the Agreement. C. Violation of the terms or conditions of this Agreement relating to discrimination or in- timidation shall be considered a material breach of this Agreement. SECTION XI. MISCELLANEOUS This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party. Any such delegation or assignment, without the prior written consent of the other party, shall be null and void. This Agreement shall be controlled by and interpreted according to Indiana law and shall be binding upon the parties, their successors and assigns. This document constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing with the Agreement a written instrument setting forth such changes signed by both parties. By executing this Agreement the parties agree that this document supersedes any previ- ous discussion, negotiation, or conversation relating to the subject matter contained herein. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit arising out of this Agreement must be filed in said courts. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said Courts. By executing this Agreement, Contractor is estopped from bringing suit or any other ac- tion in any alternative forum, venue, or in front of any other tribunal, court, or administrative body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right Consultant may have to bring such suit in front of other tribunals or in other venues. Any person executing this Agreement in a representative capacity hereby warrants that he/she has been duly authorized by his or her principal to execute this Agreement. In the event of any breach of this Agreement by Contractor, and in addition to any other damages or remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this Agreement, including but not limited to, City's reasonable attorney's fees. In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Page 4 of 5 IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day and year first written above, although signatures may be affixed on different dates. "CITY" "CONTRACTOR" THE CITY OF RICHMOND, INDIANA by and through its SPAM SOAP INC. Board of Public Works and Safety By:_S/S Kevin Krusiewicz By:_S/S Vicki Robinson Printed name: (—Kevin Krusiewicz_____) Vicki Robinson, President Title: Director S/S Dian Lawson Dian Lawson, Member _S/S Mary Jo Flood Mary Jo Flood, Member Date: February 28, 2008 APPROVED:_S/S Sarah L. Hutton_ Sarah L. Hutton, Mayor Date: February 29, 2008 Date: March 4, 2008 Page 5 of 5