HomeMy WebLinkAboutA8635 - HIAGO INC.TECHNOLOGY SOFTWARE -AS -A -SERVICE (SaaS) AGREEMENT
AGREEMENT BETWEEN THE CITY OF PALM SPRINGS AND
HIAGO, INC. FOR SOFTWARE -AS -A -SERVICE
THIS AGREEMENT ("Agreement"), by and between the CITY OF PALM SPRINGS, a
California municipal corporation ("City"), and HIAGO INC. ("Contractor"), a Delaware C
Corporation corporation whose address is 1580 West El Camino Real Suite 10,
Mountain View California 94040 ("Software Provider") (collectively referred to as the
"Parties").
RECITALS:
The following Recitals are a substantive portion of this Agreement:
A.City is a municipal corporation duly organized and validly existing under the laws of the
State of California.
B.Software Provider is specially trained, experienced, and competent to perform the
special services which will be required by this Agreement.
C. City and Software Provider desire to enter into an agreement for Software Provider's
provision of software -as -a -service (SaaS) pertaining to City's online systems. The full
scope of services covered by this agreement is described in the attached Exhibit A:
Service Level Agreement (the "SLA").
NOW, THEREFORE, the Parties mutually agree as follows:
1.TERM
The term of this Agreement shall commence on the last date signed below ("Effective
Date"). The term of this Agreement is through June 30, 2021 unless the Agreement is
terminated prior thereto under the provisions of Section 16, below. The City's
appropriate department head or theCity Manager may extend the Term through a written
amendment to this Agreement, provided such extension does not include additional
contract funds. Extensions requiring additional contract funds are subject to the City's
purchasing policy.
2.SCOPE OF SERVICES AND CONDITIONS THEREOF
Subject to the terms and conditions set forth in this Agreement, Software Providershall
perform each and every service to the schedule of performance set forth in the SLA
(collectively "Services"), as described below as Exhibit C.
A.Responsibilities of Software Provider. Software Provider shall provide the software
services as further described in the SLA. The Services provided under this Agreement
shall include (a) any software, plug -ins, or extensions related to the Services or upon
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which the Services are based including any and all updates, upgrades, bug fixes, dot
releases, version upgrades, or any similar changes that maybe made available to the
Software Provider from time to time (the "Software"), (b) any and all technical
documentation necessary or use of the Services, in hard copy form or online (the
"Documentation"), (c) regular maintenance of Software Provider's system, and (d) other
technology, user interfaces, know-how, and other trade secrets, techniques, designs,
inventions, data, images, text, content, APIs, and tools provided in conjunction with the
Services.
B. Equipment. If necessary to enable Software Provider to fulfill its obligations under the
SLA, Software Provider shall, at its sole cost and expense, furnish all facilities, personnel
and equipment to City necessary to provide the Services (the "Equipment"). City agrees,
if necessary, to install the Equipment at the location(s) and in the manner specified by
Software Provider and as directed by Software Provider. Any Equipment installed by City
is a part of the Service and loaned to City by Software Provider, not sold. City agrees to
return the Equipment to Software Provider at the termination of this Agreement in an
undamaged condition, less ordinary wear and tear.
C. Registration. Prior to using the Services, the City shall identify the administrative
users for its account ("Administrators"). Each Administrator will be provided an
administrator ID and password.
D. License Grant. Software Provider hereby grants City a license to use the Software
and the Documentation for the permitted purpose of accessing the Services.
E. Reservation of Rights, IP and Data Ownership.
E.1 City shall own all right, title, and interest in its data that is related to the
services provided by this contract. Software Provider shall not access City user
accounts or City data, except (1) as essential to fulfillment of the objectives of this
Agreement, (2) in response to service or technical issues, or (3) at City's written
request.
E.2 Hiago Services, SaaS Platform, Software & System. Any interest (including
copyright, patent, trademark, and trade secrets interests) of Contractor in the
Services, the Software, the platform and systems through which access to the
Services and Software is provided, any Hiago software architecture, workflow
procedures, source code, and software development code, Hiago software
memoranda, study, report, map, plan, drawing, specification, data, record,
document, or other information or work, in any medium will be property of
Contractor with non-exclusive license to use by the City.
E.3 City property. Any information supplied by the city or communications from the
public will remain property of the City.
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E.4 User -Generated Content. Any public information and content generated by
users of Hiago will be public information and will not have any copyright interest.
Any private posts and content generated by non -government owners will be
owned by the creators of the content with a license to use by Contractor.
F. Data Protection and Confidential Information.
F.1 City Data. In carrying out the Services, Software Provider shall endeavor to
protect the confidentiality of all confidential, non-public City data ("City Data") as
follows:
a. Implement and maintain appropriate security measures to safeguard against
unauthorized access, disclosure, or theft of City Data in accordance with
recognized industry practice.
b. City Data that is not otherwise public information shall be encrypted in transit
with https level security and provided at rest with controlled access through
secure credentials. Unless otherwise stipulated, Software Provider is responsible
for encryption of the City Data.
c. Software Provider shall not use any City Data collected by it in connection with
the Service for any purpose other than fulfilling the obligations under this
Agreement.
F.2 Confidential Information. Each party ("Receiving Party") agrees to keep
confidential and not disclose or use except in performance of its obligations or
exercise of its rights under this Agreement, confidential or proprietary information
related to the other party's ("Disclosing Party") technology or business that the
Receiving Party learns in connection with this Agreement and any other
information received from the other, including without limitation, to the extent
previously, currently or subsequently disclosed to the Receiving Party hereunder
or otherwise: information relating to products or technology of the Disclosing
Party or the properties, composition, structure, use or processing thereof, or
systems therefore, or to the Disclosing Party's business, including, without
limitation, computer programs, code, algorithms, schematics, data, know-how,
processes, ideas, inventions (whether patentable or not), names and expertise of
employees and consultants, all information relating to customers and customer
transactions and other technical, business, financial, customer and product
development plans, forecasts, strategies and information, all of the foregoing,
"Confidential Information." The Software and Services constitute Confidential
Information of Service Provider. Confidential Information shall not include
information (i) already lawfully known to or independently developed by the
receiving party without access to or use of the other party's Confidential
Information, (ii) disclosed in published materials, (iii) generally known to the public
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through no fault of the Receiving Party, (iv) lawfully obtained from any third party,
or (v) required to be disclosed by law.
G. Software Ownership. Software Provider owns the Services, Software,
Documentation, and any underlying infrastructure provided by Service Provider in
connection with this Agreement. City acknowledges and agrees that (a) the Services,
any Software, and Documentation are protected by United States and international
copyright, trademark, patent, trade secret, and other intellectual property or proprietary
rights laws, (b) Software Provider retains all right, title, and interest (including, without
limitation, all patent, copyright, trade secret, and other intellectual property rights) in and
to the Services, the Software, any Documentation, any other deliverables, any and all
related and underlying technology and any derivative works or modifications of any of the
foregoing, including, without limitation, (c) the Software and access to the Services are
licensed on a subscription basis, not sold, and City acquires no ownership or other
interest in or to the Services, the Software, or the Documentation other than the license
rights expressly stated herein, and (d) the Services are offered as an on-line, hosted
solution, and that City has no right to obtain a copy of the Services.
H. Restrictions. City agrees not to, directly or indirectly,: (i) modify, translate, copy, or
create derivative works based on the Service or any element of the Software, (ii)
interfere with or disrupt the integrity or performance of the Services or the data contained
therein or block or disrupt any use or enjoyment of the Services by any third party, (iii)
attempt to gain unauthorized access to the Services or their related systems or networks
or (iv) remove or obscure any proprietary or other notice contained in the Services,
including on any reports or data printed from the Services.
I. Security Incident. In the event a data breach occurs with respect to City Data,
Software Provider shall immediately notify the appropriate City contact by telephone in
accordance with the agreed upon security plan or security procedures if it reasonably
believes there has been a security incident. Software Provider shall (1) cooperate with
City to investigate and resolve the data breach, (2) promptly implement necessary
remedial measures, if necessary, and (3) document responsive actions taken related to
the data breach, including any post -incident review of events and actions taken to make
changes in business practices in providing the services, if necessary.
J. Notification of Legal Requests. Software Provider shall contact City upon receipt of
any electronic discovery, litigation holds, discovery searches, and expert testimonies
related to City Data. Software Provider shall not respond to subpoenas, service of
process, and other legal requests related to City without first notifying City, unless
prohibited by law from providing such notice.
K. Access to Security Logs and Reports. Software Provider shall provide reports to
City in a format as specified in the SLA agreed to by both Software Provider and City.
Reports shall include latency statistics, user access, user access IP address, user
access history, and security logs for all City files related to this Agreement.
L. Responsibilities and Uptime Guarantee. Software Provider shall be responsible for
the acquisition and operation of all hardware, software, and network support related to
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the services being provided. The technical and professional activities required for
establishing, managing and maintaining the environments are the responsibilities of
Software Provider. The system shall be available for City's use on a 24/7/365 basis (with
agreed -upon maintenance downtime) with target 99% uptime or better.
M. Subcontractor Disclosure. Software Provider shall identify all of its strategic
business partners related to services provided under this Agreement, including all
subcontractors or other entities or individuals who may be a party to a joint venture or
similar agreement with Software Provider, and who shall be involved in any application
development and/or operations.
N. Business Continuity and Disaster Recovery. Software Provider shall provide to
City a written business continuity and disaster recovery plan prior to or at the time of
execution of this agreement and shall ensure that it meets City's recovery time objective
(RTO) of four (4) hours or less.
O. Compliance with Accessibility Standards. Software Provider shall comply with and
adhere to the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101).
P. Web Services. Software Provider shall use Web services exclusively to interface
with City Data in near real time when possible.
Q.Encryption of Data at Rest. Software Provider shall ensure hard drive encryption
consistent with validated cryptography standards as referenced in FIPS 140-2,Security
Requirements for Cryptographic Modules for all personal data, unless City approves the
storage of personal data on Software Provider's portable device inorder to accomplish
work as defined in the statement of work.
3.COMPENSATION TO SOFTWARE PROVIDER
Software Provider shall be compensated for services performed pursuant to this
Agreement based on the service level as explained in Exhibit C:
$500.00 a month from December 1, 2020 until June 30, 2021.
The payments specified in this section shall be the only payments to be made to
Software Provider for services rendered pursuant to this Agreement.
City shall pay Contractor within thirty (30) days after receipt of Service Provider's invoice.
City shall return to Contractor any payment request determined not to be a proper
payment request as soon as practicable, but not later than seven (7) days after receipt,
and shall explain in writing the reasons why the payment request is not proper.
4.TIME IS OF THE ESSENCE
Software Provider and City agree that time is of the essence regarding the performance
of this Agreement.
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5.LICENSES; PERMITS; ETC.
Software Provider represents and warrants toCity that it has all licenses,
permits,qualifications, and approvals of whatsoever nature which are legally required to
carry out the purposes of this Agreement.
&ASSIGNMENTS
Software Provider may assign, sublease, or transfer thisAgreement, or any interest
therein, to a third party with the prior written consent of City. Such consent shall not be
unreasonably withheld. City's withholding of consent shall be deemed reasonable if it
appears that the intended assignee in question is not financially or technically capable of
performing Software Provider's obligations under this Agreement, or if City has reason to
conclude that the proposed assignee is otherwise incapable of fulfilling Software
Provider's duties hereunder.
7.INDEPENDENT PARTIES
City and Software Provider intend that the relationship between them created by this
Agreement is that of independent contractor. No civil service status or other right of
employment will be acquired by virtue of Software Provider's services.None of the
benefits provided by City to its employees, including but not limited to unemployment
insurance, workers' compensation plans, vacation, and sick leave are available from City
to Software Provider, its employees, or agents. SoftwareProvider is not a "public official"
for purposes of Government Code §§ 87200 et seq.
&IMMIGRATION REFORM AND CONTROL ACT (IRCA)
Software Provider assumes any and all responsibility for verifying the identity and
employment authorization of all of his/her employees performing work
hereunder,pursuant to all applicable IRCA or other federal or state rules and
reg u lations. Software Provider shall indemnify and hold City harmless from and against
any loss, damage, liability, costs, or expenses arising from any noncompliance of this
provision by Software Provider.
9.NON-DISCRIMINATION
Consistent with City's policy prohibiting harassment and discrimination, SoftwareProvider
agrees that neither it nor its employee or subcontractors shall harass ordiscriminate
against a job applicant, a City employee, or a citizen on the basis ofrace, religious creed,
color, national origin, ancestry, handicap, disability, maritalstatus, pregnancy, sex, age,
sexual orientation, or any other protected class status.Software Provider agrees that any
and all violations of this provision shallconstitute a material breach of this Agreement.
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10.INTELLECTUAL PROPERTY INDEMNIFICATION
Software Provider agrees to, at its expense, defend and/or settle any claim made by a
third party against City alleging that the City's use of the Services infringes such third
party's United States patent, copyright, trademark, or trade secret (an "IPClaim"), and
pay those amounts finally awarded by a court of competent jurisdiction against City with
respect to such IP Claim.
11.DUTY TO INDEMNIFY AND HOLD HARMLESS
Software Provider shall indemnify, defend, and hold harmless City and its
officers, officiaIs, agents, employees, and volunteers from and against any and all
liability,claims, actions, causes of action, or demands whatsoever against any of
them,including for any injury to or death of any person or damage to property or other
liability of any nature, whether physical, emotional, consequential, or otherwise,arising
out of, pertaining to, or related to the performance of this Agreement bySoftware
Provider or Software Provider's employees, officers, officials, agents, or subcontractors,
except where such liability arises solely as a result of the active negligence or willful
misconduct of City. Such costs and expenses shall include reasonable attorneys' fees of
counsel of City's choice, expert fees, and all other costs and fees of litigation.
Provider agrees to obtain executed indemnity agreements with provisions identical to
those set forth here in this Section 11 from each and every subcontractor, or any other
person or entity involved by, for, with, or on behalf of Contractor in the performance of
this Agreement. Failure of City to monitor compliance with these requirements imposes
no additional obligations on City and will in no way act as a waiver of any rights
hereunder.
The provisions of this Section 11 survive the completion of the Services or termination of
this Agreement.
12.INSURANCE:
A.General Requirements. On or before the commencement of the term of
thisAgreement, Software Provider shall furnish City with certificates showing the
type,amount, class of operations covered, effective dates, and dates of expiration of
insurance coverage in compliance with the requirements listed in Exhibit B.Software
Provider shall maintain in force at all times during the performance of thisAgreement all
appropriate coverage of insurance required by this Agreement.
B.Subrogation Waiver. Software Provider agrees that in the event of loss due to any of
the perils for which it has agreed to provide comprehensive general and automotive
liability insurance, Software Provider shall look solely to its insurance for recovery.
Software Provider hereby grants to City, on behalf of any insurer providing
comprehensive general and automotive liability insurance to eitherSoftware Provider or
City with respect to the services of Software Provider herein,a waiver of any right to
subrogation which any such insurer of said SoftwareProvider may acquire against City
by virtue of the payment of any loss under such insurance.
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13.RECORDS
Software Provider shall maintain internal records reflecting that the Services were
performed by Software Provider hereunder in accordance with customary record keeping
practices in the software development industry. Software Provider shall provide free
access to such records to the representatives of City or itsdesignee's at all reasonable
and proper times, and gives City the right to examine and audit same, and to make
transcripts therefrom as necessary. No such examination and audit shall give the City
the right to access records relating to otherSoftware Provider customers. Such records
shall be maintained for a period of four(4)years after the Software Provider receives final
payment from City for all services required under this Agreement.
14.NONAPPROPRIATION
This Agreement is subject to the fiscal provisions of the Palm Springs Municipal
Code,and this Agreement will terminate without any penalty (a) at the end of any fiscal
year in the event that funds are not appropriated for the following fiscal year, or (b)at any
time within a fiscal year in the event that funds are only appropriated for apportion of the
fiscal year and funds for this Agreement are no longer available. ThisSection shall take
precedence in the event of a conflict with any other covenant,term, condition, or
provision of this Agreement.
15.NOTICES
All notices, requests, and approvals must be sent to the persons below in writing to the
persons below, and will be considered effective on the date of personal delivery,the
delivery date confirmed by a reputable overnight delivery service, on the fifth(5th)
calendar day after deposit in the United States Mail, postage prepaid, registered or
certified, or the next business day following electronic submission:
To City of Palm Springs:
3200 E. Tahquitz Canyon Way
Palm Springs CA 92262
Attention: Anthony Mejia, City Clerk
Email: anthony.mejia@palmspringsca.gov
To Contractor:
Hiago, Inc.
1580 West El Camino Real Suite 10
Mountain View, CA 94040
Attention: Mircea Voskerician, Chief Executive Officer
Email: mircea@hiago.com
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167ERMINATION
A.Basis for Termination. In the event Software Provider fails or refuses to perform any
of the provisions hereof at the time and in the manner required hereunder, Software
Provider shall be deemed in default in the performance of thisAgreement. If Software
Provider fails to cure the default within the time specified and according to the
requirements set forth in City's written notice of default, and in addition to any other
remedy available to the City by law, the City Manager or her designee may terminate the
Agreement by giving Software Provider written notice thereof, which shall be effective
immediately. The City Manager or her designee shall also have the option, at her sole
discretion and without cause, of terminating this Agreement by giving seven (7) calendar
days' prior written notice to the Software Provider as provided herein. Upon receipt of
any notice of termination,the Software Provider shall immediately discontinue
performance.
B.Pro Rata Payments. City shall pay Software Provider for services satisfactorily
performed up to the effective date of termination. In such an event, a calculation of the
amounts due shall be deemed correct as computed on a pro rata basis with
compensation provided for the period of service paid as a percentage of the total
contract amount.
C.Handling of City Data. In the event of a termination of this Agreement,the Software
Provider shall implement an orderly return of City data in a CSV or another mutually
agreeable format at a time agreed to by the parties and the subsequent secure disposal
of City data. During any period of service suspension, Software Provider shall not take
any action to intentionally erase any City data for a period of thirty (30) days after the
effective date of termination, unless authorizedby City. City shall be entitled to any post -
termination assistance generally made available with respect to the Services; unless a
unique data retrieval arrangement has been established as part of the SLA. Software
Provider shall securely dispose of all requested data in all of its forms, including disk,
CD/DVD, backup tape, and paper, when requested by the City. Data shall be
permanently deleted and shall not be recoverable, according to National Institute of
Standards and Technology (NIST)-approved methods. Certificates of destruction shall be
provided to the City.
17.WARRANTY AND WARRANTY DISCLAIMER
Software Provider warrants that, (i) the Services shall be provided in a
diligent,professional, and workmanlike manner in accordance with industry standards,
(ii)the Services provided under this Agreement do not infringe or misappropriate any
intellectual property rights of any third party, and (iii) the Services shall substantially
perform in all material respects as described in the SLA. In the event of any breach of
section (iii), above, Software Provider shall, as its sole liability and as City's sole remedy,
repair or replace the Services that are subject to the warranty claim at no cost to City, or
if Software Provider is unable to repair or replace, then it will refund any pre -paid fees for
services not rendered. Except for the warranty described in this section, the Services
are provided without warranty of any kind, express or implied, including, but not limited
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to, the implied warranties or conditions of design, merchantability, fitness for a particular
purpose, and any warranties of title and non -infringement.
18.COMPLIANCE
Software Provider shall comply with all state or federal laws and all ordinances, rules,
policies, and regulations enacted or issued by the City.
19.CONFLICT OF LAW
This Agreement shall be interpreted under, and enforced by the laws of the State of
California excepting any choice of law rules which may direct the application of laws of
another jurisdiction. Any suits brought pursuant to this Agreement shall be filed with the
Superior Court for the County of Riverside, State of California.
20.ADVERTISEMENT
Software Provider shall not post, exhibit, or display, or allow to be posted,exhibited, or
displayed, any signs, advertising, show bills, lithographs, posters, or cards of any kind
pertaining to the services performed under this Agreement unless prior written approval
has been secured from City to do otherwise.
21.INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the Parties, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant
shall be held to vary the provisions hereof. Any modification of this Agreement will be
effective only by written execution signed by both Cityand Software Provider. In the
event that any Service Level Agreement, Exhibit, associated instrument, or agreement
executed by the Parties in conjunction with this Agreement or prior thereto contains a
term that conflicts with the terms of this Agreement, the terms of this Agreement shall
govern and supersede any other document or Exhibit.
22.AUTHORITY
The individual(s) executing this Agreement represent and warrant that they have the
legal capacity and authority to do so on behalf of their respective legal entities.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
HEREBY READ AND AGREED
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11
CITY OF PALM SPRINGS, a Municipal Corporation
Signatory
w
Title Anthony J. Mejia, City Clerk,
Date 1T�20� ►J
HIAGO. INC.
Signatory
Title Mircea Voskerician, Chief Executive Officer
Date 11/18/20
Tax I.D. No.: 84-3765843
AMFOM AS TO FORM
�1057
Di re&6r N ferb'tA
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Exhibits:
Exhibit A: Service Level Agreement
Exhibit B: Insurance Requirements
Exhibit C: Description of Services
("SLA")
and Proof of Insurance
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It
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Exhibit A: Service Level Agreement ("SLA")
PROFESSIONAL/CONSULTING SERVICES AGREEMENT
1. PARTIES
This Agreement is made by and between the City of Palm Springs, a municipal
corporation ("City"), and HIAGO INC ("Contractor"), a Delaware C Corporation whose
address is 1580 West El Camino Real Suite 10, Mountain View California 94040 for
HIAGO platform integration, and is effective on the last date signed below ("Effective
Date").
2. SERVICES
Contractor agrees to provide the services and perform the tasks ("Services") set forth in
detail in Scope of Services, attached here and incorporated as Exhibit C.
3. TIME OF PERFORMANCE
3.1 This Agreement begins on the Effective Date and ends on ("Contract Time"), unless
terminated earlier as provided herein.
3.2 Schedule of Performance. Contractor must deliver the Services in accordance with
the Schedule of Performance, attached and incorporated here Exhibit C.
3.3 Time is of the essence for the performance of all the Services. Contractor must have
sufficient time, resources, and qualified staff to deliver the Services on time.
4. COMPENSATION
4.1 Maximum Compensation. $500 per month. City will pay Contractor for satisfactory
performance of the Services an amount that will be based on actual costs but that will be
capped so as not to exceed $500 per month ("Contract Price"), based upon the scope of
services in Exhibit C.
The maximum compensation includes all expenses and reimbursements and will remain
in place even if Contractor's actual costs exceed the capped amount. No extra work or
payment is permitted without prior written approval of the City.
4.2 Invoices and Payments. Monthly invoices must state a description of the
deliverable completed and the amount due for the preceding month. Within thirty (30)
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days of completion of Services, Contractor must submit a requisition for final and
complete payment of costs and pending claims for City approval. Failure to timely submit
a complete and accurate payment requisition relieves City of any further payment or
other obligations under the Agreement.
5. INDEPENDENT CONTRACTOR
5.1 Status. Contractor is an independent contractor and not an employee, partner, or
joint venture of City. Contractor is solely responsible for the means and methods of
performing the Services and for the persons hired to work under this Agreement.
Contractor is not entitled to health benefits, worker's compensation, or other benefits
from the City.
5.2 Contractor's Qualifications. Contractor warrants on behalf of itself and its
subcontractors that they have the qualifications and skills to perform the Services in a
competent and professional manner and according to the highest standards and best
practices in the industry.
5.3 Permits and Licenses. Contractor warrants on behalf of itself and its
subcontractors that they are properly licensed, registered, and/or certified to perform the
Services as required by law and have procured a City Business License, if required by
the Cupertino Municipal Code.
5.4 Subcontractors. Only Contractor's employees are authorized to work under this
Agreement. Prior written approval from City is required for any subcontractor, and the
terms and conditions of this Agreement will apply to any approved subcontractor.
5.5 Tools, Materials, and Equipment. Contractor will supply all tools, materials and
equipment required to perform the Services under this Agreement.
5.6 Payment of Benefits and Taxes. Contractor is solely responsible for the payment
of employment taxes incurred under this Agreement and any similar federal or state
taxes. Contractor and any of its employees, agents, and subcontractors shall not have
any claim under this Agreement or otherwise against City for seniority, vacation time,
vacation pay, sick leave, personal time off, overtime, health insurance, medical care,
hospital care, insurance benefits, social security, disability, unemployment, workers
compensation or employee benefits of any kind. Contractor shall be solely liable for and
obligated to pay directly all applicable taxes, fees, contributions, or charges applicable to
Contractor's business including, but not limited to, federal and state income taxes. City
shall have no obligation whatsoever to pay or withhold any taxes or benefits on behalf of
Contractor. Should any court, arbitrator, or administrative authority, including but not
limited to the California Public Employees Retirement System (PERS), the Internal
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Revenue Service or the State Employment Development Division, determine that
Contractor, or any of its employees, agents, or subcontractors, is an employee for any
purpose, then Contractor agrees to a reduction in amounts payable under this
Agreement, or to promptly remint to City any payments due by the City as a result of
such determination, so that the City's total expenses under this Agreement are not
greater than they would have been had the determination not been made.
6. PROPRIETARY/CONFIDENTIAL INFORMATION
In performing this Agreement, Contractor may have access to private or confidential
information owned or controlled by the City, which may contain proprietary or confidential
details the disclosure of which to third parties may be damaging to City. Contractor shall
hold in confidence all City information provided by City to Contractor and use it only to
perform this Agreement. Contractor shall exercise the same standard of care to protect
City information as a reasonably prudent contractor would use to protect its own
proprietary data.
7. OWNERSHIP OF MATERIALS
7.1 Hiago Software & System. Any interest (including copyright, patent, trademark,
and trade secrets interests) of Contractor in any Hiago software architecture, workflow
procedures, source code, and software development code, Hiago software memoranda,
study, report, map, plan, drawing, specification, data, record, document, or other
information or work, in any medium will be property of Contractor with non-exclusive
license to use by the City.
7.2 City property. Any information supplied by the city and communications from the
public will remain property of the City.
7.3 User -Generated Content. Any public information and content generated by users
of Hiago will be public information and will not have any copyright interest. Any private
posts and content generated by non -government owners will be owned by the creators of
the content with a license to use by Contractor.
8. RECORDS
8.1 Contractor must maintain complete and accurate accounting records relating to its
performance in accordance with generally accepted accounting principles. The records
must include detailed information of Contractor's performance, benchmarks and
deliverables, which must be available to City for review and audit. The records and
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supporting documents must be kept separate from other records and must be
maintained for four (4) years from the date of City's final payment.
9. ASSIGNMENT
9.1 Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or
any interest therein, directly or indirectly, by operation of law or otherwise, without prior
written consent of City. Any attempt to do so will be null and void. Any changes related to
the financial control or business nature of Contractor as a legal entity is considered an
assignment of the Agreement and subject to City approval, which shall not be
unreasonably withheld. Control means fifty percent (50%) or more of the voting power of
the business entity.
10. PUBLICITY / SIGNS
Any publicity generated by Contractor for the project under this Agreement, during the
term of this Agreement and for one year thereafter, will reference the City's contributions
in making the project possible. The words "City of Palm Springs" will be displayed in all
pieces of publicity, including flyers, press releases, posters, brochures, public service
announcements, interviews and newspaper articles. No signs may be posted, exhibited
or displayed on or about City property, except signage required by law or this Contract,
without prior written approval from the City.
11. INDEMNIFICATION
11.1 To the fullest extent allowed by law, and except for losses caused by the sole and
active negligence or willful misconduct of City personnel, Contractor shall indemnify,
defend and hold harmless City, its City Council, boards and commissions, officers,
officials, employees, agents, servants, volunteers, and consultants ("Indemnitees"),
through legal counsel acceptable to City, from and against any and all liability, damages,
claims, actions, causes of action, demands, charges, losses, costs, and expenses
(including attorney fees, legal costs, and expenses related to litigation and dispute
resolution proceedings) of every nature, arising directly or indirectly from this Agreement
or in any manner relating to any of the following:
1. Breach of contract, obligations, representations, or warranties;
2. Negligent or willful acts or omissions committed during performance of the
Services;
3. Personal injury, property damage, or economic loss resulting from the work or
performance of Contractor or its subcontractors or sub -subcontractors;
4. Unauthorized use or disclosure of City's confidential and proprietary Information;
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5. Claim of infringement or violation of a U.S. patent or copyright, trade secret,
trademark, or service mark or other proprietary or intellectual property rights of
any third party.
11.2 Contractor must pay the costs City incurs in enforcing this provision. Contractor
must accept a tender of defense upon receiving notice from City of a third -party claim. At
City's request, Contractor will assist City in the defense of a claim, dispute, or lawsuit
arising out of this Agreement.
11.3 Contractor's duties under this section are not limited to the Contract Price, workers'
compensation payments, or the insurance or bond amounts required in the Agreement.
Nothing in the Agreement shall be construed to give rise to an implied right of indemnity
in favor of Contractor against City or any Indemnitee.
11.4 Contractor's payments may be deducted or offset to cover any money the City lost
due to a claim or counterclaim arising out of this Agreement, a purchase order, or other
transaction.
11.5 Contractor agrees to obtain executed indemnity agreements with provisions
identical to those set forth here in this Section 11 from each and every subcontractor, or
any other person or entity involved by, for, with, or on behalf of Contractor in the
performance of this Agreement. Failure of City to monitor compliance with these
requirements imposes no additional obligations on City and will in no way act as a waiver
of any rights hereunder.
12. INSURANCE
Contractor shall comply with the Insurance Requirements, attached and incorporated
here as Exhibit A, and must maintain the insurance for the duration of the Agreement, or
longer as required by City. City will not execute the Agreement until City approves
receipt of satisfactory certificates of insurance and endorsements evidencing the type,
amount, class of operations covered, and the effective and expiration dates of coverage.
Failure to comply with this provision may result in City, at its sole discretion and without
notice, purchasing insurance for Contractor and deducting the costs from Contractor's
compensation or terminating the Agreement.
13. COMPLIANCE WITH LAWS
13.1 General Laws. Contractor shall comply with all local, state, and federal laws and
regulations applicable to this Agreement. Contractor will promptly notify the City of
changes in the law or other conditions that may affect the Project or Contractor's ability
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to perform. Contractor is responsible for verifying the employment authorization of
employees performing the Services, as required by the Immigration Reform and Control
Act.
13.2 Labor Laws. Contractor shall comply with all labor laws applicable to this
Agreement. If the Scope of Services includes a "public works" component, Contractor is
required to comply with prevailing wage laws under Labor Code Section 1720 and other
labor laws.
13.3 Discrimination Laws. Contractor shall not discriminate on the basis of race,
religious creed, color, ancestry, national origin, ethnicity, handicap, disability, marital
status, pregnancy, age, sex, gender, sexual orientation, gender identity, Acquired -
Immune Deficiency Syndrome (AIDS), or any other protected classification. Contractor
shall comply with all anti -discrimination laws, including Government Code Sections
12900 and 11135, and Labor Code Sections 1735, 1777, and 3077.5. Consistent with
City policy prohibiting harassment and discrimination, Contractor understands that
harassment and discrimination directed toward a job applicant, an employee, a City
employee, or any other person, by Contractor or its employees or sub -contractors will not
be tolerated.
13.4 Conflicts of Interest. Contractor shall comply with all conflict of interest laws
applicable to this Agreement and must avoid any conflict of interest. Contractor warrants
that no public official, employee, or member of a City board or commission who might
have been involved in the making of this Agreement, has or will receive a direct or
indirect financial interest in this Agreement, in violation of California Government Code
Section 1090 et seq. Contractor may be required to file a conflict of interest form if
Contractor makes certain governmental decisions or serves in a staff capacity, as
defined in Section 18700 of Title 2 of the California Code of Regulations. Contractor
agrees to abide by the City's rules governing gifts to public officials and employees.
13.5 Remedies. Any violation of Section 13 constitutes a material breach and may
result in City suspending payments, requiring reimbursements or terminating this
Agreement. City reserves all other rights and remedies available under the law and this
Agreement, including the right to seek indemnification under Section 11 of this
Agreement.
14. PROJECT COORDINATION
14.1 City Project Manager. The City assigns Anthony Mejia as the City's representative
for all purposes under this Agreement, with authority to oversee the progress and
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performance of the Scope of Services. City reserves the right to substitute another
Project manager at any time, and without prior notice to Contractor.
14.2 Contractor Project Manager. Subject to City approval, Contractor assigns Mircea
Voskerician as its single Representative for all purposes under this Agreement, with
authority to oversee the progress and performance of the Scope of Services.
Contractor's Project manager is responsible for coordinating and scheduling the Services
in accordance with the Scope of Services and the Schedule of Performance. Contractor
must regularly update the City's Project Manager about the progress with the work or
any delays, as required under the Scope of Services. City written approval is required
prior to substituting a new Representative.
15. ABANDONMENT OF PROJECT
City may abandon or postpone the Project or parts therefor at any time. Contractor will
be compensated for satisfactory Services performed through the date of abandonment,
and will be given reasonable time to assemble the work and close out the Services. With
City's pre -approval in writing, the time spent in closing out the Services will be
compensated up to a maximum of ten percent (10%) of the total time expended to date
in the performance of the Services.
16. TERMINATION
City may terminate this Agreement for cause or without cause at any time. Contractor
will be paid for satisfactory Services rendered through the date of termination, but final
payment will not be made until Contractor closes out the Services and delivers the Work
Product.
17. GOVERNING LAW, VENUE, AND DISPUTE RESOLUTION
This Agreement is governed by the laws of the State of California. Any lawsuits filed
related to this Agreement must be filed with the Superior Court for the County of Santa
Clara, State of California. Contractor must comply with the claims filing requirements
under the Government Code prior to filing a civil action in court. If a dispute arises,
Contractor must continue to provide the Services pending resolution of the dispute. If the
Parties elect arbitration, the arbitrator's award must be supported by law and substantial
evidence and include detailed written findings of law and fact.
18. THIRD PARTY BENEFICIARIES
There are no intended third party beneficiaries of this Agreement.
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19. WAIVER
Neither acceptance of the Services nor payment thereof shall constitute a waiver of any
contract provision. City's waiver of a breach shall not constitute waiver of another
provision or breach.
20. ENTIRE AGREEMENT
This Agreement represents the full and complete understanding of every kind or nature
between the Parties, and supersedes any other agreement(s) and understanding(s),
either oral or written, between the Parties. Any modification of this Agreement will be
effective only if in writing and signed by each Party's authorized representative. No
verbal agreement or implied covenant will be valid to amend or abridge this Agreement.
If there is any inconsistency between any term, clause, or provision of the main
Agreement and any term, clause, or provision of the attachments or exhibits thereto, the
terms of the main Agreement shall prevail and be controlling.
21. INSERTED PROVISIONS
Each provision and clause required by law for this Agreement is deemed to be included
and will be inferred herein. Either party may request an amendment to cure mistaken
insertions or omissions of required provisions. The Parties will collaborate to implement
this Section, as appropriate.
22. HEADINGS
The headings in this Agreement are for convenience only, are not a part of the
Agreement and in no way affect, limit, or amplify the terms or provisions of this
Agreement.
23. SEVERABILITYMARTIAL INVALIDITY
If any term or provision of this Agreement, or their application to a particular situation, is
found by the court to be void, invalid, illegal, or unenforceable, such term or provision
shall remain in force and effect to the extent allowed by such ruling. All other terms and
provisions of this Agreement or their application to specific situations shall remain in full
force and effect. The Parties agree to work in good faith to amend this Agreement to
carry out its intent.
24. SURVIVAL
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All provisions which by their nature must continue after the Agreement expires or is
terminated, including the Indemnification, Ownership of Materials/Work Product,
Records, Governing Law, and Attorney Fees, shall survive the Agreement and remain in
full force and effect.
25. NOTICES
All notices, requests and approvals must be sent in writing to the persons below, which
will be considered effective on the date of personal delivery or the date confirmed by a
reputable overnight delivery service, on the fifth calendar day after deposit in the United
States Mail, postage prepaid, registered or certified, or the next business day following
electronic submission:
To City of Palm Springs:
3200 E. Tahquitz Canyon Way
Palm Springs CA 92262
Attention: Anthony Mejia, City Clerk
Email: anthony.mejia@palmspringsca.gov
To Contractor:
Hiago, Inc.
1580 West El Camino Real Suite 10
Mountain View, CA 94040
Attention: Mircea Voskerician, Chief Executive Officer
Email: mircea@hiago.com
26. VALIDITY OF CONTRACT
This Agreement is valid and enforceable only if (a) it complies with the purchasing and
contract provisions of Cupertino Municipal Code Chapters 3.22 and 3.23, as amended
from time to time,
(b) is signed by the City Manager or an authorized designee, and (c) is approved for form
by the City Attorney's Office.
27. EXECUTION
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The person executing this Agreement on behalf of Contractor represents and warrants
that Contractor has full right, power, and authority to enter into and carry out all actions
contemplated by this Agreement and that he or she is authorized to execute this
Agreement, which constitutes a legally binding obligation of Contractor. This Agreement
may be executed in counterparts, each one of which is deemed an original and all of
which, taken together, constitute a single binding instrument.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed.
HEREBY READ AND AGREED
CITY OF Palm Springs, a Municipal Corporation
Signatory
Title
Date
CONTRACTOR
Signatory
711✓ic.ea. yl 4"41,4,nn.
Title Mircea Voskerician, Chief Executive Officer
Date 11/18/20
Tax I.D. No.: 84-3765843
Exhibit B: Insurance Requirements and Proof of Insurance
INSURANCE REQUIREMENTS AND PROOF THEREOF
Proof of insurance coverage described below is attached to this Exhibit, with City named
as additional insured.
MINIMUM SCOPE AND LIMITS OF REQUIRED INSURANCE POLICIES
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Additional Insureds:
The City of Palm Springs, its City Council, officers, officials, employees, agents, servants
and volunteers ("Additional Insureds") are to be covered as additional insureds on
Consultant's Commercial General Liability and Cyber Liability policies. General Liability
coverage can be provided in the form of an endorsement to Consultant's insurance (at
least as broad as ISO Form CG 20 10 (11/ 85) or both CG 20 10 and CG 20 37 forms, if
later editions are used).
Primary Coverage:
Coverage afforded to City/Additional Insureds shall be primary insurance. Any insurance
or self-insurance maintained by City, its officers, officials, employees, or volunteers shall
be excess of Software Provider's insurance and shall not contribute to it.
Notice of Cancellation:
Each insurance policy shall state that coverage shall not be canceled or allowed to
expire, except with written notice to the City 30 days in advance or 10 days in advance if
due to non-payment of premiums.
Workers' Compensation:
As required by the State of California, with Statutory Limits and Employer's Liability
Insurance of no less than $1,000,000 per occurrence for bodily injury or disease.
The. Workers' Compensation policy shall be endorsed with a waiver of subrogation in
favor of City for all work performed by Software Provider, its employees, agents, and
subconsultants.
General Liability:
For bodily injury, property damage, personal injury liability for premises operations,
products and completed operations, contractual liability, and personal and advertising
injury with limits no less than $2,000,000 per occurrence (ISO Form CG 00 01). If a
general aggregate limit applies, either the general aggregate limit shall apply separately
to this project/location (ISO Form CG 25 03 or 25 04) or it shall be twice the required
occurrence limit.
a. It shall be a requirement that any available insurance proceeds broader than or in
excess of the specified minimum insurance coverage requirements and/or limits shall be
made available to the Additional Insured and shall be (i) the minimum coverage/limits
specified in this agreement; or (ii) the broader coverage and maximum limits of coverage
of any insurance policy, whichever is greater.
b. Additional Insured coverage under Software Provider's policy shall be "primary and
noncontributory," will not seek contribution from City's insurance/self-insurance, and shall
be at least as broad as ISO Form CG 20 01 (04113).
c. The limits of insurance required may be satisfied by a combination of primary and
umbrella or excess insurance, provided each policy complies with the requirements set
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M
forth in this Agreement. Any umbrella or excess insurance shall contain or be endorsed
to contain a provision that such coverage shall also apply on a primary basis for the
benefit of City before the City's own insurance or self-insurance shall be called upon to
protect City as a named insured.
Automobile Liability
ISO CA 00 01 covering any auto (including owned, hired, and non -owned autos) with
limits no less than $1,000,000 per accident for bodily injury and property damage.
Cyber Liability:
Insurance, with limits not less than:
$2,000,000 each occurrence
$2,000,000 aggregate - all other
Coverage shall be sufficiently broad to respond to the duties and obligations as is
undertaken by
Software Provider in this Agreement and shall include, but not be limited to, claims
involving infringement of intellectual property, including but not limited to infringement of
copyright, trademark, trade dress, invasion of privacy violations, information theft,
damage to or destruction of electronic information, release of private information,
alteration of electronic information, extortion, and network security. The policy shall
provide coverage for breach response costs as well as regulatory fines and penalties as
well as credit monitoring expenses with limits sufficient to respond to these obligations.
If the Software Provider maintains broader coverage and/or higher limits than the
minimums shown above, the City requires and shall be entitled to the broader coverage
and/or higher limits maintained by the Software Provider. Any available insurance
proceeds in excess of the specified minimum limits of insurance and coverage shall be
available to the City.
2. ABSENCE OF INSURANCE COVERAGE.
City may direct Software Provider to immediately cease all activities with respect to this
Agreement if it determines that Software Provider fails to carry, in full force and effect, all
insurance policies with coverages at or above the limits specified in this Agreement. At
the City's discretion, under conditions of lapse, City may purchase appropriate insurance
and charge all costs related to such policy to the Software Provider.
3. PROOF OF INSURANCE COVERAGE AND COVERAGE VERIFICATION.
A Certificate of Insurance, on an Accord form, and completed coverage verification shall
be provided to City by each of Software Provider's insurance companies as evidence of
the stipulated coverages prior to the Commencement Date of this Agreement, and
annually thereafter for the term of this Agreement. All of the insurance companies
providing insurance for Software Provider shall be licensed to do insurance business in
the State of California and shall have, and provide evidence of, a Best Rating Service
rate of AMII or above.
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4.SUBCONTRACTORS
Software Provider shall require and verify that all subconsultants maintain insurance that
meet the requirements of this Contract, including naming the City as an additional
insured on subconsultant's insurance policies.
5. HIGHER INSURANCE LIMITS
If Software Provider maintains broader coverage and/or higher limits than the minimums
shown above, City shall be entitled to coverage for the higher insurance limits
maintained by Software Provider.
6. ADEQUACY OF COVERAGE
City reserves the right to modify these insurance requirements/coverage based on the
nature of the risk, prior experience, insurer or other special circumstances, with not less
than ninety (90) days prior written notice.
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Exhibit C: Services to be delivered by Hiago to Palm Springs, California
Contractor agrees to provide the services and perform the tasks ("Services") set forth in detail in
Scope of Services, described below:
The following services will go live planned by November 20, 2020 :
1. Build a pre -hearing email management system for Palm Springs, so that all external
incoming emails to the city can be automatically flagged, posted on its website, and
administered to be assigned to public agenda items.
2. Build a pre -hearing contact management system for Palm Springs, so that all external
incoming emails to the city can be automatically grouped by interest and organized for
easy notification via email and/or text when upcoming meetings are scheduled matching
expressed interests.
3. Through programming and algorithms, incorporate Artificial Intelligence (AI) in the
product, in order to reduce administrative overhead of managing a dynamic pre -hearing
email management system.
4. Implement security or apply existing third party solutions through SaaS best efforts to
counter malware and phishing links.
5. Build a public facing website in which pre -hearing emails can be viewed, accessed,
searched and commented upon by the public.
6. Build a mobile application for IOS and Android platform in which pre -hearing emails are
automatically accessible with agendas for City Council and/or Planning Commission
meetings taking place in Palm Springs.
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