HomeMy WebLinkAboutDS Information Technology Service Agreement; October 2019SERVICE AGREEMENT
XANTRION INC.
AND
CITY OF SAN RAFAEL
ri A
TABLE OF CONTENTS
1
Services.................................................................................................................................................4
1.1 Statement of Work........................................................................................................................4
1.2 Personnel......................................................................................................................................4
2
Terms of Payment.................................................................................................................................4
2.1 Services Fees; Equipment and Software Costs.............................................................................4
2.2 Overdue Payments........................................................................................................................4
2.3 Taxes.............................................................................................................................................5
3
Term, Termination................................................................................................................................5
3.1 Term..............................................................................................................................................5
3.2 Termination for Convenience.......................................................................................................5
3.3 Termination for Cause...................................................................................................................5
3.4 Effect of Termination....................................................................................................................6
3.5 Survival..........................................................................................................................................6
4
Equipment, Software and Supplies.......................................................................................................6
4.1 Equipment; Software; Supplies.....................................................................................................6
4.2 Limited Warranty..........................................................................................................................6
5
Independent Contractor Status............................................................................................................7
6
Non-Solicitation.....................................................................................................................................7
7
Unauthorized Access to Data or Use of the Services............................................................................7
8
No Warranties; Limitations of Liability; Indemnification......................................................................7
8.1 No Warranties...............................................................................................................................7
8.2 Limitation of Liability.....................................................................................................................8
8.3 Indemnification.............................................................................................................................8
9
Confidentiality.......................................................................................................................................8
9.1 Definition.......................................................................................................................................8
9.2 Confidentiality...............................................................................................................................9
9.3 Access to Systems.........................................................................................................................
9
10
Compliance............................................................................................................................................9
10.1 Protection of Personally Identifiable Information......................................................................10
10.2 Compliance with Laws Applicable to Client................................................................................10
10.3 Compliance with Software Manufacturer's Licensing and Allowed Usage Requirements .........
10
11
Security Incident Response.................................................................................................................11
11.1 Obligations..................................................................................................................................11
11.2 Disclaimer....................................................................................................................................11
13
Other Insurance Provisions.................................................................................................................12
14
Harassment Free Workplace; Nondiscrimination...............................................................................13
15
Miscellaneous.....................................................................................................................................13
15.1 Notices........................................................................................................................................13
15.2 Governing Law............................................................................................................................13
15.3 Remedies.....................................................................................................................................14
15.4 Dispute Resolution; Attorney's Fees...........................................................................................14
15.5 Force Majeure.............................................................................................................................15
2
15.6 Headings......................................................................................................................................15
15.7 Severability..................................................................................................................................15
15.8 No Waiver...................................................................................................................................16
15.9 No Assignment............................................................................................................................16
15.10 City Business License / Other Taxes............................................................................................16
15.11 Entire Agreement; Modification.................................................................................................16
16 Counterparts........................................................................................................................................17
17 EXHIBIT A............................................................................................................................................18
3
SERVICE AGREEMENT
This Service Agreement, including any attachments referenced herein and made a part hereof (this
"Agreement"), is entered into as of October 1, 2019 (the "Effective Date"), by and between Xantrion, Inc., a
California corporation ("Xantrion"), with offices at 651 20th Street, First Floor, Oakland, CA 94612, and City of
San Rafael with offices at 1400 Fifth Avenue, San Rafael, CA 94901 ("Client").
1 Services
1.1 Statement of Work
Xantrion shall provide the services (the "Services") as described in the Addendum To The Service Agreement
Information Technology Services of even date herewith, attached as Exhibit A hereto and incorporated herein by
reference ("Addendum"). The Services shall be performed and delivered in a workmanlike manner in
accordance with generally recognized industry standards for computer consultants performing similar services.
1.2 Personnel
Xantrion, acting as an independent contractor, shall engage employees, consultants, or subcontractors
("Xantrion Personnel") to provide the Services specifically outlined in the Addendum, and Xantrion shall be fully
and directly responsible for all Xantrion Personnel. Xantrion shall (i) provide competent and qualified personnel
to perform the Services; (ii) ensure that it complies with all laws, regulations, ordinances and licensing
requirements; (iii) ensure Xantrion Personnel performing any Services on Client's premises comply with any
applicable Client guidelines as provided to Xantrion from time to time, including, but not limited to, any data
security policies; and (iv) determine the method, detail, and means of performing the Services under this
Agreement.
2 Terms of Payment
2.1 Services Fees; Equipment and Software Costs
Unless otherwise agreed to in writing by the parties, payment for Services by Xantrion ("Service Fees") rendered
and any equipment, software, licenses, 3rd party services, hardware, parts and supplies ("Supplies") shall be due
within forty-five (45) days from the date of the applicable invoice provided by Xantrion to Client. If Xantrion
does not receive payment within such forty-five (45) day -period, Xantrion shall have the option to suspend the
Services without any liability until payment is received.
2.2 Overdue Payments
Interest shall accrue on any delinquent amounts owed by Client to Xantrion at the rate of[0.8333% per month.
In the event of a good faith dispute related to the invoices submitted by Xantrion, Client shall notify Xantrion in
writing setting forth the reasons of such dispute, and the parties shall cooperate to resolve such dispute.
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2.3 Taxes
Client shall be responsible for any applicable sales or use taxes on any amounts payable by Client hereunder.
3 Term, Termination
3.1 Term
The term of this Agreement shall be for one (1) month commencing on October 1, 2019, and ending on October
31, 2019. Upon mutual agreement of the parties, and subject to the approval of the City Manager the term of
this Agreement may be extended for an additional period of up to one (1) month.
Unless sooner terminated, the term of this Agreement, and the applicable Services requested as set forth in the
accompanying Addendum shall be for one (1) year commencing on the Effective Date ("Term") and shall continue
during the Term unless this Agreement is otherwise terminated sooner in accordance with Section 3.2 or Section
3.3. During this Term, Xantrion shall not increase its fee rates over and above the rates charged on Services provided
as of the Effective Date. New Services added during the Term may be charged at Xantrion's then -current rates. The
termination of any Service shall not modify any Term of this Agreement. The termination of this Agreement shall
immediately terminate any and all Services executed hereunder.
3.2 Termination for Convenience
Either party may terminate this Agreement or any applicable Service at any time without cause upon at
least ninety (30) days' prior written notice to the other party. In the event that either party elects to
terminate this Agreement pursuant to this Section 3.2, Xantrion agrees to provide sufficient efforts and
cooperation to ensure an orderly and efficient transition of Services to Client or another service provider,
whichever Client elects, at Xantrion's then -current time and materials rates.
3.3 Termination for Cause
Either party may terminate this Agreement or any applicable Service for Cause (as defined below)
immediately upon written notice to the other party.
For purposes of this Agreement, "Cause" means: (i) Client's failure to pay any amount due within thirty (30)
days of the applicable due date; (ii) a party's conviction of, or plea of nolo contendere to, any felony, or any
other crime involving fraud, embezzlement, or act of moral turpitude; (iii) a party's unauthorized use or
disclosure of any Confidential Information or other proprietary information of the other party or any other
party to whom the offending party owes an obligation of nondisclosure as a result of the parties' relationship;
(iv) a material breach of this Agreement by a party which is incapable of cure, or with respect to a material
breach capable of cure, is not cured within thirty (30) days after receipt of written notice from the affected
party of such breach; (v) a dissolution or liquidation of any party, or any corporate action taken by any party
for such purpose; (vi) any party's insolvency or admission of its inability to pay its debts generally as they
become due; or (vii) any party's voluntary filing of a bankruptcy petition or general assignment for the benefit
of creditors.
3.4 Effect of Termination
Upon termination of this Agreement, Xantrion shall not be obligated to provide any further Services to Client
and Xantrion shall have the right to remove any equipment or other Supplies belonging to Xantrion which has
been installed or placed at Client's location for the performance of the Services hereunder. Client shall pay all
outstanding invoices, as well as any invoices which may be submitted to Client following the date of termination
for Services Fees or Supplies or costs incurred up to the date of termination, within ten (10) days of the date of
termination or within thirty (30) days of the date of the invoice, whichever is later. Upon termination of this
Agreement for any reason, each party shall (i) return to the other party or destroy all documents and tangible
materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential
Information, (ii) permanently erase all of the other party's Confidential Information from its computer systems,
and (iii) if requested by the other party, provide written confirmation within ten (10) days of receiving such
request that it has complied with the requirements of this section.
3.5 Survival.
The terms of Sections 2, 3, 4, 5, 7, 8, 9, and 15 shall survive the termination of this Agreement.
4 Equipment, Software and Supplies
4.1 Equipment; Software; Suppne,
Xantrion is not responsible for compatibility issues, project delays, or other problems with Supplies (i) provided
by Client, (ii) purchased by Client through a third party, or (iii) manufactured by a third party and purchased by
Client from Xantrion (collectively, "Third Party Products") except if expressly recommended by Xantrion.
Notwithstanding anything contained herein to the contrary, in the event Xantrion installs a Third Party Product
and such Third Party Product fails within ninety (90) days of installation, Xantrion will provide the labor to re-
install the product free of charge.
4.2 Limited Warranty
Xantrion represents and warrants to Client that the Supplies, processes, and procedures employed, used, and
operated by Xantrion in providing the Services will be sufficient to provide the Services at the levels of reliability
represented in the description, and definition of the Services.
Third Party Products purchased through Xantrion are warrantied by their respective manufacturers and any
applicable manufacturer's warranties will be passed through to the Client. Xantrion will only accept returns on
such Third Party Products if they are defective and returned within thirty (30) days of Client's receipt of such
Third Party Product.
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s Independent Contractor Status
Client and Xantrion acknowledge and agree that: (i) Xantrion is an independent Contractor, (ii) the parties are
not engaged in a joint venture, partnership, employment, or fiduciary relationship; and (iii) neither party is
authorized to act as agent or incur any obligation on behalf of the other.
6 Non -Solicitation
Client acknowledges that Xantrion will recruit and train personnel to provide Services for Client under this
Agreement, and that this is a costly and time-consuming endeavor. Client therefore agrees not to directly, or
indirectly through a third party, solicit, induce, recruit for employment, or attempt to solicit, induce, or recruit
for employment, any Xantrion personnel who has performed Services for Client under this Agreement to provide
the same or similar services. Client shall comply with this obligation during the term of this Agreement, and for
a period of twelve (12) consecutive months after termination. Client shall be relieved of its obligations under this
provision if Client first pays Xantrion the sum of the actual cost of retaining and training individual personnel.
The Parties further agree that this amount shall be no less than $60,000 per individual personnel, which Client
agrees accurately reflects the minimum reasonable value of Xantrion's time and costs with respect to recruiting
and training personnel to work for Client. Notwithstanding any other provisions in this Agreement, the parties
retain all legal remedies, at law or equity, upon violation of this provision.
7 Unauthorized Access to Data or Use of the Services
Xantrion is not responsible to Client for unauthorized access to the electronic data of Client stored on Xantrion's
servers ("Client Data") or the unauthorized use of the Services unless such unauthorized access or use results
from Xantrion's failure to meet its obligations described in the Agreement. Client is responsible for the use of
the Services by any employee or consultant of Client, other than Xantrion, any person to whom Client has given
access to the Client Data, and any person who gains access to the Client Data or Services as a result of Client's
failure to use reasonable security precautions, even if such use was not authorized by Client.
8 No Warranties; Limitations of Liability; Indemnification
8.1 No Warranties
EXCEPT AS PROVIDED IN SECTION 1.1 (SERVICES) AND SECTION 4.2 (LIMITED WARRANTY), XANTRION
EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH REGARD TO
THE SERVICES PROVIDED HEREUNDER, AND WITH REGARD TO ANY THIRD PARTY PRODUCTS, INCLUDING IN
EACH CASE ANY WARRANTY OF NON -INFRINGEMENT, AND ANY AND ALL WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES
OR USAGE OF TRADE. THESE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY CONSTITUTE AN
ESSENTIAL PART OF THIS AGREEMENT.
Limitation of Liabilitv
IN NO EVENT WILL XANTRION, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, BE LIABLE FOR: (1)
ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF SUCH
DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
WARRANTY.); OR (II) COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, SUPPLIES, LOST
PROFITS, LOSS OF DATA; OR (III) ANY DIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT,
TO THE EXTENT THAT THE AGGREGATE AMOUNT OF SUCH DAMAGES EXCEEDS THE AGGREGATE SERVICES
FEES ACTUALLY PAID BY CLIENT HEREUNDER IN THE SIX (6) CALENDAR MONTHS BEFORE SUCH CLAIM AROSE;
PROVIDED THAT SUCH LIMITATION OF LIABILITY SHALL NOT EXTEND TO DIRECT DAMAGES INCURRED AS A
RESULT OF THE WILLFUL MISCONDUCT OF XANTRION OR ITS EMPLOYEES. THE PARTIES AGREE THAT THE
LIMITATIONS IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH THIS
AGREEMENT AND THAT, WERE XANTRION TO ASSUME ANY FURTHER LIABILITY, SUCH FEES WOULD OF
NECESSITY HAVE BEEN SUBSTANTIALLY HIGHER.
8.:: indemnification
To the fullest extent permitted by law subject to the limitations set forth in this Agreement„ Xantrion shall
indemnify and hold harmless, and defend the Client, its officers, agents, employees and volunteers (collectively,
the "Client Indemnitees") from and against any and all suits, actions, legal proceedings, claims, demands,
damages, losses and expenses which may be made by individuals or organizations, including, but not limited to
attorneys' fees, expert fees and all other costs and fees of litigation (each a "Claim" and collectively the
"Claims"), arising out of or resulting from the Xantrion's negligence or willful misconduct in the performance of
the Services . The acceptance or approval of Xantrion's Services by Client or any of its directors, officers or
employees shall not relieve or reduce Xantrion's indemnification obligations. However, to the extent that any
Claim arises from, relates to, or is in connection with, the negligence or willful misconduct of the Client
Indemnitees, or any of them, then Xantrion's indemnification obligation and liability hereunder for the Claim
shall be reduced in proportion to the Client Indemnitees' total share of liability for the Claim as a result of the
Client Indemnitees' negligence or willful misconduct
9 Confidentiality
9.1 Definition
The term "Confidential Information" as used in this Agreement shall mean any information disclosed, directly or
indirectly, by a party (the "Discloser") to the other party (the "Recipient") that may reasonably be considered
proprietary or confidential including, without limitation, the Discloser's operational and business methods and
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practices, economic and financial information, know-how, recommendations, instructional methods, Client Data
(as defined below), software and information systems, technical processes, products, product designs,
machinery, research and development, intellectual property, and any material embodiments thereof.
Notwithstanding the foregoing, the term "Confidential Information" shall not include any information that (i) is
or becomes generally available to the public other than as a result of the Recipient's breach of this agreement;
(ii) is or becomes available to the Recipient on a non -confidential basis from a third -party source, provided that
such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in
Recipient's possession prior to the Discloser's disclosure hereunder; or (iv) was or is independently developed by
Recipient without using any Confidential Information.
9.2 Confidentiality
The Recipient agrees to (i) take reasonable measures to protect and safeguard the confidentiality of, and avoid
disclosure and unauthorized use of, the Discloser's Confidential Information with at least the same degree of
care as the Recipient would protect its own Confidential Information, but in no event with less than a
commercially reasonable degree of care; (ii) not use the Discloser's Confidential Information, or permit it to be
accessed or used, for any purpose other than to exercise its rights or perform its obligations under this
Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except as required to
assist the Recipient to exercise its rights or perform its obligations under this Agreement.
Disclosure of Confidential Information is not prohibited if such disclosure is compelled pursuant to a legal
proceeding or is otherwise prescribed by law. If the Recipient receives a request to disclose any Confidential
Information pursuant to the order or requirement of a court, administrative agency, or other governmental
body, the Recipient, prior to disclosing any Confidential Information, and, except as may be prohibited by law,
will notify the Discloser of such requirements to afford the Discloser the opportunity to seek a protective order
or other remedy.
9.3 Access to Systems
Xantrion representatives and contractors, shall only access Client systems and data as is necessary to perform
the Services agreed to. Client understands that Xantrion representatives may share access with other vendors
to the limited extent required to perform the Services. Notwithstanding the foregoing, when access to criminal
justice data or systems is necessary to perform the Services, Xantrion agrees that its designated representatives
will comply with Client's requirements for access to such systems and information, including but not limited to
fingerprinting and a satisfactory background check, as a precondition to being granted access to those systems
or data.
10 Compliance
None of the Services or underlying information or technology may be downloaded, exported, or re-exported
into any country to which the United States has embargoed goods, or to any individual or entity that has been
denied export privileges by the U.S. Treasury Department or the U.S. Department of Commerce. By using the
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Services, Client is agreeing to the foregoing and Client is representing and warranting that Client is not a national
resident of, or located in or under the control of, any country subject to such export controls.
10.1 Protection of Personally Identifiable Information
The parties agree to use commercially reasonable security precautions to protect Personally Identifiable
Information, "PII", (as hereafter defined) transmitted to or from, or stored at, Xantrion's data centers. Client
must comply with the laws applicable to Client's use of the Services and with Xantrion's policies and procedures,
as may be amended. Client agrees to cooperate with Xantrion's reasonable investigation of Service outages,
security problems, and any suspected breach. For purposes of this Agreement, "PII" means (i) any information
that identifies an individual, such as name, social security number or other government- issued number, date of
birth, address, telephone number, biometric data, mother's maiden name, or other personally identifiable
information; (ii) any "non-public personal information" as that term is defined in the Gramm -Leach -Bliley Act
found at 15 USC Subchapter 1, § 6809(4), and (iii) any "protected health information" as defined in the Health
Insurance Portability and Accountability Act of 1996 ("HIPAA")
The parties agree to comply with the applicable provisions of HIPAA, the requirements of any regulations
promulgated thereunder including, without limitation, the federal privacy regulations as contained in 45 CFR
Parts 160 and 164 (the "Federal Privacy Standards"), the Electronic Transaction Standards (45 CFR Parts 160 and
162) the Security Standards (45 CFR Parts 160, 162 and 164), and the Health Information Technology for
Economic and Clinical Health Act (the "HITECH Act"), Public Law 111-05 and regulations promulgated thereafter.
The parties further agree to comply with the applicable provisions of the PROTECT Our Children Act contained in
42 USC 13032 and 18 USC 2258A.
10.2 Compliance with Laws Applicable to Client
As it pertains to Client's Confidential Information and/or Data stored or managed by Xantrion, Xantrion will
comply with any and all confidentiality, security, privacy and or compliance requirements, rules and/or
regulations imposed on Client by local, state or federal authorities, agencies, regulatory agreements and or laws
to the extent Client has provided to Xantrion in writing the specific requirements to satisfy said confidentiality,
security, privacy and or compliance requirements, rules and/or regulations.
10.3 Compliance with Software Manufacturer's Licensing and Allowed Usage Requirements
Client acknowledges its obligation to comply with all provisions of software manufacturer's licensing and
allowed usage requirements. Client agrees to honor the provisions of the "Microsoft Cloud Agreement"
incorporated herein by reference.
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11 Security Incident Response
11.1 Obligations
Xantrion acknowledges its obligation to support Clients in the event of a Security Incident. Services we will
perform and the basis on which they will be billed are described in the Addendum — Services.
11.2 Disclaimer
Xantrion does not represent that any service will prevent a security incident. Nor do we represent that we have
legal expertise or expertise in forensic investigations. Clients are advised to consider purchasing cyber -liability
policies to protect against the risk of a security incident. In the event of an incident, Client is advised to contact
their own legal counsel to determine their obligations to report an incident, and to notify their insurance carrier
of a potential claim and to permit the insurance company or its designated agents to conduct any investigation.
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12 INSURANCE
During the term of this Agreement, Xantrion shall, at its own expense, maintain and carry insurance with
financially sound and reputable insurers, in full force and effect that includes, but is not limited to:
Insurance Type
Description of Liability covered
Aggregate
Limit
Cyber Liability, Privacy/Network
Data breach of our systems or a Client system for which we
$10 mm
Security, Cyber Crime & Cyber
are liable Including forensic costs, notification costs, credit
Deception Endorsement
or identity protection, extortion, regulatory action, fines and
penalties. and business interruption.
Third Party Crime
Third Party Crime
$250 K
Commercial General Liability
Bodily injury, personal injury and property damage caused
$2 mm
by the business' operations, products, or injury that occurs
on the business' premises.
Errors and Omissions Liability
Claims made by Clients for failure to provide products or
$10 mm
services, inadequate work or negligent actions.
Workers Compensation
On the job injury
$1 mm
Automobile Liability
Owned, non -owned, and hired vehicles, per occurrence.
$1 mm
Employment Practices Liability
Claims made by employees alleging discrimination (based on
$1 mm
sex, race, age or disability, for example), wrongful
termination, harassment and other employment-related
issues, this also extends to Third Party — Clients, Vendors,
etc.
13 Other Insurance Provisions
13.1 Except for professional liability insurance or worker's compensation insurance, the insurance policies shall be
specifically endorsed to include Client, its officers, agents, employees, and volunteers, as additional insureds under
the policies.
13.2 The additional insured coverage under Xantrion's insurance policies shall be "primary and noncontributory"
with respect to any insurance or coverage maintained by Client and shall not call upon Client's insurance or self-
insurance coverage for any contribution. The "primary and noncontributory" coverage in Xantrion's policies shall be
at least as broad as ISO form CG20 010413.
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13.3 Except for professional liability insurance or worker's compensation insurance, the insurance policies shall
include, in their text or by endorsement, coverage for contractual liability and personal injury.
13.4 By execution of this Agreement, Xantrion hereby grants to Client a waiver of any right to subrogation
which any insurer of Xantrion may acquire against Client by virtue of the payment of any loss under such
insurance. Xantrion agrees to obtain any endorsement that may be necessary to effect this waiver of
subrogation, but this provision applies regardless of whether or not Client has received a waiver of subrogation
endorsement from the insurer.
13.5 Xantrion's worker's compensation insurance shall be specifically endorsed to waive any right of
subrogation against Client.
13.6 Xantrion shall cooperate with Client in providing Client with copies of all insurance provisions or
endorsements required by this Agreement.
14 Harassment Free Workplace; Nondiscrimination
Xantrion and Client mutually commit to observing the highest standards of conduct in maintaining an environment
that is free of discrimination, including harassment of any kind and on the basis of a legally protected status.
Accordingly, Xantrion and Client will not tolerate any form of harassment against anyone, including employees,
vendors, independent contractors, or guests. Xantrion and Client understand and acknowledge their legal
obligation both, not to engage in, and to report any unwelcome conduct, whether verbal, physical, sexual, or
visual, and that is based upon a person's protected status. Xantrion and Client shall not discriminate, in any way,
against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection
with or related to the performance of their duties and obligations under this Agreement.
15 Miscellaneous
15.1 Notices
All notices under this Agreement shall be sent to a party at the respective address indicated in the introductory
paragraph hereof, or to such other address as such party shall have notified the other in writing. All such notices
so addressed shall be deemed duly given (a) upon delivery, if delivered by courier or by hand (against receipt);
or (b) three days after posting, if sent by certified or registered mail, return receipt requested.
15.2 Governing Law
This Agreement shall be construed and controlled by the laws of the State of California, without reference to
conflicts of law principles. To the extent that any lawsuit is permitted under this Agreement, the parties hereby
expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in
Marin County, California.
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15.3 Remedies
The parties agrees that remedies at law for a breach or threatened breach of any of the provisions of this
Agreement, including any disclosure or use of the Confidential Information, may be inadequate and, in
recognition of this fact, in addition to all other remedies available at law, the parties will be entitled to seek
specific performance or injunctive relief to enforce the terms of this Agreement.
15.4 Dispute Resolution; Attorney's Fees
Xantrion and Client agree to each use its best efforts to mutually resolve any claim, controversy, liability or
dispute arises between the parties relating to or in connection in any way with this Agreement or its
interpretation, validity or enforcement (collectively, "Disputes" or, in the singular, "Dispute").
Failing that, and unless otherwise agreed by the parties in writing, such dispute shall be adjudicated by final,
binding arbitration under the auspices, and in accordance with then -applicable commercial arbitration rules and
procedures, of JAMS, Inc. ("JAMS") at JAMS' San Francisco offices. The arbitrator shall be mutually -agreed upon
by the parties to the arbitration. If the parties cannot agree upon an arbitrator within ten (10) business days
after the filing of any demand for arbitration or statement of claims with JAMS (or, if a party is asked to
participate in the joint selection of an arbitrator, but is unresponsive or otherwise does not do so within the
foregoing time period), then JAMS shall select as arbitrator a retired judge having at least ten (10) years'
experience in industry -related disputes pursuant to its normal procedure for selecting an arbitrator when parties
cannot agree upon an arbitrator.
The parties to the Dispute shall share equally in the costs of arbitration. If any party to the Dispute fails or
refuses to pay its portion of JAMS arbitration -related administration fees or arbitrator's fees in a timely manner,
the other party to the Dispute may, at its election, pay such fees and proceed with the arbitration without the
participation of the party who fails or refuses to pay its share of such fees, and any final arbitration award shall
require the non-paying party to reimburse the paying party for such fees and costs.
The arbitrator shall have the power to award only such damages, remedies, or relief that would be available in a
court otherwise having jurisdiction of the matter, but no other damages, remedies or relief. The arbitrator shall
render all rulings and make all adjudications based solely upon the law governing the claims, counterclaims and
defenses pleaded and shall not invoke any basis (including, without limitation, notions of "just cause") other
than such controlling law. The arbitrator shall have the authority to issue an award that provides for both legal
and equitable relief, as applicable, including, without limitation, an order for issuance of a temporary or
preliminary injunction. Notwithstanding the foregoing, the parties may avail themselves in the court of the
rights and remedies provided by Section 1281.8 of the California Code of Civil Procedure. In any arbitration
proceeding commenced under this section, the merits hearing (i.e., trial) shall begin by no later than ninety (90)
calendar days after the filing of any demand for arbitration or statement of claim with JAMS. The arbitrator shall
prepare a written statement of decision and award within five (5) business days following the conclusion of the
arbitration merits hearing. Judgment on the decision, award or other order of the arbitrator may be confirmed
and entered by the court.
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The decision of the arbitrator shall be final and conclusive, and the parties hereby waive the right to trial de
novo or appeal, excepting only for the purpose of confirming the arbitrator's decision, award or other order and
entering judgment thereupon, for which purpose the court shall have sole and exclusive jurisdiction. Such
confirmation and entry of judgment may be obtained by ex parte application. Additionally, any petition to
compel arbitration and any other legal proceeding seeking to enforce or avoid arbitration under this Agreement
shall be filed and litigated exclusively in the court.
The prevailing party in any arbitration of a Dispute shall be entitled to recover from the other party or parties
the reasonable attorneys' fees and costs (including all costs of collection and recovery of any monies adjudicated
to be due), experts' fees and costs, arbitration administrative fees, court filing and other fees, and arbitrator's
fees that the prevailing party actually incurs in connection with that proceeding and any related -action or
proceeding in the court; however, the parties agree that, in the event a party to the Dispute is adjudicated to be
a prevailing party, that party shall seek to recover attorneys' fees under this section for the services performed
only by two (2) attorneys from the same law firm retained by that party. In the event this provision is
adjudicated to be unenforceable or the parties to the Dispute jointly elect to seek an adjudication of their
dispute in a judicial forum, the foregoing fees and costs recovery provision shall apply with equal force to that
judicial adjudication of the Dispute.
15.5 Force Majeure
Neither party shall be deemed to have defaulted or breached hereunder, nor shall it hold the other party
responsible for any cessation, interruption or delay in the performance of its obligations hereunder due to
earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, hostile or warlike action including
cyber or armed attacks in times of peace or war by a government or sovereign power, labor strike, lockout,
boycott, or other similar events beyond the reasonable control of such party (collectively, "Force Majeure"),
provided that the party relying upon this provision: (i) gives prompt written notice thereof, and (b) takes all
steps reasonably necessary to mitigate the effects of the Force Majeure event.
15.6 Headings
Headings used in this Agreement are for reference purposes only and shall not be deemed a part of this
Agreement.
_1 Severability
If any provision in this Agreement is found or held to be invalid or unenforceable by a court of competent
jurisdiction, then (i) the validity of other provisions of this Agreement shall not be affected or impaired thereby,
and (ii) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties
and shall be reformed without further action by the parties to the extent necessary to make such provision valid
and enforceable.
15
15.8 No Waiver
A waiver of a breach or default under this Agreement shall not be a waiver of any other breach or default.
Failure of either party to enforce compliance with any term or condition of this Agreement shall not constitute a
waiver of such term or condition unless accompanied by a dear written statement that such term or condition is
waived.
15.9 No Assignment
Client shall not assign this Agreement without the prior written consent of the other party, which consent shall
not be unreasonably withheld, except in the event of a merger, acquisition, or sale of substantially all of Client's
assets. Subject to the foregoing, this Agreement shall inure to the benefit of the parties' permitted successors
and assigns.
15.10 City Business License / Other Taxes.
Xantrion shall obtain and maintain during the duration of this Agreement, a City of San Rafael business license as
required by the San Rafael Municipal Code. Xantrion shall pay any and all state and federal taxes and any other
applicable taxes. Client shall not be required to pay for any Services or work performed under this Agreement, until
Xantrion has provided Client with a completed Internal Revenue Service Form W-9 (Request for Taxpayer
Identification Number and Certification).
15.11 Entire Agreement; Modification
This Agreement, and any attachments hereto, contains the entire understanding of the parties with respect to
the matters contained herein. This Agreement shall supersede any prior understanding or agreement, written or
oral between the parties. In the event of any conflict between the terms hereunder and any attachment, these
terms shall govern unless such attachment expressly states that the terms and conditions of the attachment
shall control. There are no promises, covenants or undertaking other than those expressly set forth herein, and
any other terms and conditions are rejected regardless of content, timing or method of communication. Any
deviations from or additions to the terms of this Agreement must be in writing and will not be valid unless
confirmed in writing by duly authorized officers of Xantrion and Client.
16
16 Counterparts
This Agreement may be executed in counterparts, and each counterpart shall have the same force and effect as
an original and shall constitute an effective, binding agreement on the part of each of the undersigned. This
Agreement may be executed and delivered by facsimile transmission, by electronic mail in ".pdf," or any
electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g., www.docusign.com).
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
Signed: antii�`f
Printed: Anne Bisagno
Title: President
Company Xantrion, Inc.
Date: October 1, 2019
CITY OF SAN RAFAEL
By:
JIM CHU ,City Manalq
ATTEST:
LINDSAY LARA, City Clerk
APPROVED AS TO FORM:
- L- 6, wj (
ROBERT F. EPSTEIN, City Atto ey
17
17 EXHIBIT A
Addendum To The Service Agreement: Managed Technology Support Migration Services
RECITALS
WHEREAS, CITY requires assistance with migrating to a managed services approach for technology support
operations; and
WHEREAS, CONTRACTOR is experienced in providing managed technology support services and is willing to
assist CITY with the migration from its current operations to the new managed services approach;
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
1. PROJECT COORDINATION.
A. CITY'S Project Manager. The Director of Digital Services and Open Government, Rebecca
Woodbury, is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall
supervise all aspects of the progress and execution of this Agreement.
B. CONTRACTOR'S Project Director. CONTRACTOR shall assign a single PROJECT DIRECTOR to have
overall responsibility for the progress and execution of this Agreement for CONTRACTOR. Marlon Sanchez is
hereby designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent
to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONTRACTOR
shall notify the CITY within ten (10) business days of the substitution.
2. DUTIES OF CONTRACTOR.
CONTRACTOR shall perform the duties and/or provide services as described in Exhibit 1 attached and
incorporated herein.
3. DUTIES OF CITY.
CITY shall pay the compensation as provided in Paragraph 4, and perform the duties as described in
Exhibit 1 attached and incorporated herein.
4. COMPENSATION.
For the full performance of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR
on a time and materials basis at the rates listed below for a total amount not to exceed $72,000.00. Payment
will be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONTRACTOR.
18
Hourly rate
C Level
$245/hr.
Engineer IV
$210/hr
Engineer III
$180/hr.
Engineer II
$150/hr.
Engineer I
$120/hr.
19
Exhibit 1: Proposed Work Plan for Migration to Xantrion
Activity
Resources
Milestones and Deliverables
Xantrion develops as -is picture of
Pre -contract Onboarding project
City of San Rafael (CoSR) IT
development
Leadership
CoSR environment based on "read
only" inspection of the environment
Current IT provider
and documentation provided by
CoSR and the current IT provider.
Xantrion Project Team
Gaps vs best practices and client
needs are reviewed and a draft
project is developed.
Security Services Review
CoSRCompliance
Scope of security and compliance
services to be provided by Xantrion
CoSR IT Leadership
reviewed and customized to CoSR
needs.
Xantrion Compliance
Team Assignment
CoSR IT Leadership
Xantrion Service Team agreed to.
Kick-off Meeting
COSRLeadership
Introduce Xantrion team, review on -
boarding plan and service
Xantrion Team
expectations.
Site visits, turnover request
CoSR IT Leadership
Xantrion team gets familiar with
COSR sites, basic network
Xantrion Team
documentation turned over and
entered into our database.
Network Monitoring Onboarding
CoSR IT Primary contact
Comprehensive monitoring of all
devices in parallel with existing IT.
Xantrion Lead Engineer
rocumentation
Xantrion NOC Team
Network devices now present in our
databases supplemented with
Xantrion Lead Engineer
information from turn over requests.
Procedural review
CoSR IT Primary contact
Procedures for user onboarding and
offboarding as well as workstation
I
Xantrion Lead Engineer
setup, site visits etc. developed.
Users call Xantrion for support
Service Begins
Xantrion team
Onboarding project executed
Xantrion vCIO
The onboarding project is revised to
incorporate new information.
Xantrion Security Manager
Changes to the environment are
only performed once we are
CoSR IT and Compliance
responsible for operations.
leadership
Onboarding's typically take 1 to 3
months.
866.926.8746 20
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CONTRACT ROUTING FORM
INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below.
TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER:
Contracting Department: Digital Service and Open Government
Project Manager: slr VAW-JIW Extension: (415) 485-3061
Contractor Name: Xantrion, Inc.
Contractor's Contact: Marlon Sanchez Contact's Email: msanchez@xantrion.com
❑ FPPC: Check if Contractor/Consultant must file Form 700
Step RESPONSIBLE f DESCRIPTION COMPLETED REVIEWER
DEPARTMENT DATE Check/Initial
1 Project Manager a. Email PINS Introductory Notice to Contractor 10/4/2019 ®GB
b. Email contract (in Word) and attachments to City
10/4/2019
®GB
City Attorney
Attorney c/o Laraine.Gittens@cityofsanrafael.org
2
a. Review, revise, and comment on draft agreement
10/7/2019
and return to Project Manager
10/7/2019
b. Confirm insurance requirements, create Job on
PINS, send PINS insurance notice to contractor
Approval of final agreement form to send to
3 Department Director
Click oi
❑
contractor
__t:
to enter a
+ -- _
_ _
date.
lZ
4 Project Manager
Forward three (3) originals of final agreement to
_
contractor for their signature _
5 Project Manager
When necessary, contractor -signed agreement
® N/A
agendized for City Council approval *
*City Council approval required for Professional Services
®GB
Agreements and purchases of goods and services that exceed
Or
$75,000; and for Public Works Contracts that exceed $175,000
Click here to
Date of City Council approval
enter a date.
PRINT
CONTINUE ROUTING PROCESS WITH HARD COPY
6
Project Manager
Forward signed original agreements to City
11/15/19
CF
Attorney with printed copy of this routing form
7
City Attorney
Review and approve hard copy of signed
/�
agreement/ZM)
Review and approve insurance in PINS , and bonds
8
City Attorney
— —
City Manager/ Mayor
(for Public Works Contracts)
Agreement executed by City Council authorized
official
9
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10
City Clerk
Attest signatures, retains original agreement and
forwards copies to Project Manager
1 12 31 I ZpZo
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