AGREEMENT BETWEEN THE COUNTY OF SAN MATEO AND
CIMS LAB, INC.

 

THIS AGREEMENT, entered into this 8th day of November, 2005, by and between the COUNTY OF SAN MATEO, hereinafter called "County," and CIMS LAB, INC., hereinafter called "Contractor";

W I T N E S S E T H:

WHEREAS, pursuant to Government Code Section 31000, County may contract with independent contractors for the furnishing of such services to or for County or any Department thereof;

WHEREAS, it is necessary and desirable that Contractor be retained for the purpose of providing a perpetual license and proprietary software support for Information Services Department’s chargeback accounting system; and

NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES HERETO AS FOLLOWS:

1.

Exhibits.

 

The following exhibits are attached hereto and incorporated by reference herein:

Exhibit A—Services

Exhibit B—Payments and rates

Exhibit C – Terms and conditions

Attachment I—§504 Compliance

2.

Services to be performed by Contractor.

 

In consideration of the payments set forth herein and in Exhibit “B,” Contractor shall perform services for County in accordance with the terms, conditions, and specifications set forth herein and in Exhibit “A.”

3.

Payments.

 

In consideration of the services provided by Contractor in accordance with all terms, conditions, and specifications set forth herein and in Exhibit "A," County shall make payment to Contractor based on the rates and in the manner specified in Exhibit "B.” The County reserves the right to withhold payment if the County determines that the quantity or quality of the work performed is unacceptable. In no event shall the County’s total fiscal obligation under this Agreement exceed ONE HUNDRED TWENTY NINE THOUSAND NINE HUNDRED DOLLARS [$129,900].

4.

Term and Termination.

 

Subject to compliance with all terms and conditions, the term of this Agreement shall be from NOVEMBER 8, 2005 through NOVEMBER 7, 2010.

This Agreement may be terminated by Contractor, the Chief Information Officer, or his/her designee, at any time without a requirement of good cause upon thirty (30) days’ written notice to the other party.

In the event of termination, all finished or unfinished documents, data, studies, maps, photographs, reports, and materials (hereafter referred to as materials) prepared by Contractor under this Agreement shall become the property of the County and shall be promptly delivered to the County. Upon termination, the Contractor may make and retain a copy of such materials. Subject to availability of funding, Contractor shall be entitled to receive payment for work/services provided prior to termination of the Agreement. Such payment shall be that portion of the full payment which is determined by comparing the work/services completed to the work/services required by the Agreement.

5.

Availability of Funds.

 

The County may terminate this Agreement or a portion of the services referenced in the Attachments and Exhibits based upon unavailability of Federal, State, or County funds, by providing written notice to Contractor as soon as is reasonably possible after the County learns of said unavailability of outside funding.

6.

Relationship of Parties.

 

Contractor agrees and understands that the work/services performed under this Agreement are performed as an independent contractor and not as an employee of the County and that Contractor acquires none of the rights, privileges, powers, or advantages of County employees.

7.

Hold Harmless.

 

Contractor shall indemnify and save harmless County, its officers, agents, employees, and servants from all claims, suits, or actions of every name, kind, and description, brought for, or on account of: (A) injuries to or death of any person, including Contractor, or (B) damage to any property of any kind whatsoever and to whomsoever belonging, (C) any sanctions, penalties, or claims of damages resulting from Contractor’s failure to comply with the requirements set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended, or (D) any other loss or cost, including but not limited to that caused by the concurrent active or passive negligence of County, its officers, agents, employees, or servants, resulting from the performance of any work required of Contractor or payments made pursuant to this Agreement, provided that this shall not apply to injuries or damage for which County has been found in a court of competent jurisdiction to be solely liable by reason of its own negligence or willful misconduct.

The duty of Contractor to indemnify and save harmless as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code.

8.

Assignability and Subcontracting.

 

Contractor shall not assign this Agreement or any portion thereof to a third party or subcontract with a third party to provide services required by Contractor under this Agreement without the prior written consent of County. Any such assignment or subcontract without the County’s prior written consent shall give County the right to automatically and immediately terminate this Agreement.

9.

Insurance.

 

The Contractor shall not commence work or be required to commence work under this Agreement unless and until all insurance required under this paragraph has been obtained and such insurance has been approved by Risk Management, and Contractor shall use diligence to obtain such issuance and to obtain such approval. The Contractor shall furnish the Department/Division with certificates of insurance evidencing the required coverage, and there shall be a specific contractual liability endorsement extending the Contractor's coverage to include the contractual liability assumed by the Contractor pursuant to this Agreement. These certificates shall specify or be endorsed to provide that thirty (30) days' notice must be given, in writing, to the Department/Division of any pending change in the limits of liability or of any cancellation or modification of the policy.

A.

Worker's Compensation and Employer's Liability Insurance. The Contractor shall have in effect during the entire life of this Agreement Workers' Compensation and Employer's Liability Insurance providing full statutory coverage. In signing this Agreement, the Contractor certifies, as required by Section 1861 of the California Labor Code, that it is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of the Code, and Contractor will comply with such provisions before commencing the performance of the work of this Agreement.

B.

Liability Insurance. The Contractor shall take out and maintain during the life of this Agreement such Bodily Injury Liability and Property Damage Liability Insurance as shall protect him/her while performing work covered by this Agreement from any and all claims for damages for bodily injury, including accidental death, as well as any and all claims for property damage which may arise from Contractor’s operations under this Agreement, whether such operations be by himself/herself or by any sub-contractor or by anyone directly or indirectly employed by either of them. Such insurance shall be combined single limit bodily injury and property damage for each occurrence and shall be not less than the amount specified below.

 

Such insurance shall include:

 

1)

Comprehensive General Liability . . . . . . . . . . . . . . .

$1,000,000

 

2)

Motor Vehicle Liability Insurance . . . . . . . . . . . . . . .

$1,000,000

 

3)

Professional Liability . . . . . . . . . . . . . . . . . . . . . . . . .

$1,000,000

 

County and its officers, agents, employees, and servants shall be named as additional insured on any such policies of insurance, which shall also contain a provision that the insurance afforded thereby to the County, its officers, agents, employees, and servants shall be primary insurance to the full limits of liability of the policy, and that if the County or its officers and employees have other insurance against the loss covered by such a policy, such other insurance shall be excess insurance only.

 

In the event of the breach of any provision of this section, or in the event any notice is received which indicates any required insurance coverage will be diminished or canceled, the County of San Mateo at its option, may, notwithstanding any other provision of this Agreement to the contrary, immediately declare a material breach of this Agreement and suspend all further work pursuant to this Agreement.

10.

Compliance with laws; Payment of Permits/Licenses.

 

All services to be performed by Contractor pursuant to this Agreement shall be performed in accordance with all applicable Federal, State, County, and municipal laws, including, but not limited to, Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended, and the Americans with Disabilities Act of 1990, as amended, and Section 504 of the Rehabilitation Act of 1973, as amended and attached hereto and incorporated by reference herein as Attachment “I,” which prohibits discrimination on the basis of handicap in programs and activities receiving any Federal or County financial assistance. Such services shall also be performed in accordance with all applicable ordinances and regulations, including, but not limited to, appropriate licensure, certification regulations, provisions pertaining to confidentiality of records, and applicable quality assurance regulations.

In the event of a conflict between the terms of this Agreement and State, Federal, County, or municipal law or regulations, the requirements of the applicable law will take precedence over the requirements set forth in this Agreement.

Contractor will timely and accurately complete, sign, and submit all necessary documentation of compliance.

11.

Non-Discrimination.

A.

Section 504 applies only to Contractors who are providing services to members of the public. Contractor shall comply with § 504 of the Rehabilitation Act of 1973, which provides that no otherwise qualified handicapped individual shall, solely by reason of a disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in the performance of this Agreement.

B.

General non-discrimination. No person shall, on the grounds of race, color, religion, ancestry, gender, age (over 40), national origin, medical condition (cancer), physical or mental disability, sexual orientation, pregnancy, childbirth or related medical condition, marital status, or political affiliation be denied any benefits or subject to discrimination under this Agreement.

C.

Equal employment opportunity. Contractor shall ensure equal employment opportunity based on objective standards of recruitment, classification, selection, promotion, compensation, performance evaluation, and management relations for all employees under this Agreement. Contractor’s equal employment policies shall be made available to County of San Mateo upon request.

D.

Violation of non-discrimination provisions. Violation of the non-discrimination provisions of this Agreement shall be considered a breach of this Agreement and subject the Contractor to penalties, to be determined by the County Manager, including but not limited to:

 

1)

termination of this Agreement;

 

2)

disqualification of the Contractor from bidding on or being awarded a County contract for a period of up to 3 years;

 

3)

liquidated damages of $2,500 per violation;

 

4)

imposition of other appropriate contractual and civil remedies and sanctions, as determined by the County Manager.

 

To effectuate the provisions of this section, the County Manager shall have the authority to examine Contractor’s employment records with respect to compliance with this paragraph and/or to set off all or any portion of the amount described in this paragraph against amounts due to Contractor under the Contract or any other Contract between Contractor and County.

Contractor shall report to the County Manager the filing by any person in any court of any complaint of discrimination or the filing by any person of any and all charges with the Equal Employment Opportunity Commission, the Fair Employment and Housing Commission, or any other entity charged with the investigation of allegations within 30 days of such filing, provided that within such 30 days such entity has not notified Contractor that such charges are dismissed or otherwise unfounded. Such notification shall include the name of the complainant, a copy of such complaint, and a description of the circumstance. Contractor shall provide County with a copy of their response to the Complaint when filed.

E.

Compliance with Equal Benefits Ordinance. With respect to the provision of employee benefits, Contractor shall comply with the County Ordinance which prohibits contractors from discriminating in the provision of employee benefits between an employee with a domestic partner and an employee with a spouse.

F.

The Contractor shall comply fully with the non-discrimination requirements required by 41 CFR 60-741.5(a), which is incorporated herein as if fully set forth.

12.

Retention of Records, Right to Monitor and Audit

 

(a) Contractor shall maintain all required records for three (3) years after the County makes final payment and all other pending matters are closed, and shall be subject to the examination and/or audit of the County, a Federal grantor agency, and the State of California.

(b) Reporting and Record Keeping: Contractor shall comply with all program and fiscal reporting requirements set forth by appropriate Federal, State and local agencies, and as required by the County.

(c) Contractor agrees to provide to County, to any Federal or State department having monitoring or review authority, to County's authorized representatives, and/or their appropriate audit agencies upon reasonable notice, access to and the right to examine all records and documents necessary to determine compliance with relevant Federal, State, and local statutes, rules and regulations, and this Agreement, and to evaluate the quality, appropriateness, and timeliness of services performed.

3

13.

Merger Clause.

 

This Agreement, including the Exhibits and Attachments attached hereto and incorporated herein by reference, constitutes the sole Agreement of the parties hereto and correctly states the rights, duties, and obligations of each party as of this document's date. Any prior agreement, promises, negotiations, or representations between the parties not expressly stated in this document are not binding. All subsequent modifications shall be in writing and signed by the parties.

14.

Controlling Law.

The validity of this Agreement and of its terms or provisions, as well as the rights and duties of the parties hereunder, the interpretation, and performance of this Agreement shall be governed by the laws of the State of California.

   
   

15.

Notices.

 

Any notice, request, demand, or other communication required or permitted hereunder shall be deemed to be properly given when deposited in the United State mail, postage prepaid, or when deposited with a public telegraph company for transmittal, charges prepaid, addressed to:

 

    In the case of County, to:

San Mateo County

Information Services Department

Chris Flatmoe, CIO/Director

455 County Center, Third Floor

    Redwood City, CA 94063

 
   

In the case of Contractor, to:

Mark Church
CIMS Lab, Inc.

3013 Douglas Blvd., Suite 120

    Roseville, CA 95661

IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have affixed their hands.

 
 

COUNTY OF SAN MATEO

A Political Sub-division of the

State of California

   
 

By:

 
   

Richard Gordon

President, Board of Supervisors, San Mateo County

 

Date:

   
   

ATTEST:

   

By:

   
 

Clerk of Said Board

 
   
 
 
 

CIMS LAB, INC.

   
   
 

By:

 
     
   
 

(Printed Name)

   

Date:

   
     

EXHIBIT A - SERVICES

AGREEMENT BETWEEN COUNTY OF SAN MATEO

AND CIMS LAB, INC.

In consideration of the payments set forth in Exhibit “B”, Contractor shall provide the following services:

 

1.

SCOPE OF WORK

 

Provide perpetual license and proprietary software maintenance support for the County’s chargeback accounting system on both the CIMS Server and CIMS Mainframe environments.

   

Site Location:

    County of San Mateo

    455 County Center

Redwood City, CA 94063

     
       

EXHIBIT B – PAYMENTS AND RATES

AGREEMENT BETWEEN COUNTY OF SAN MATEO

AND CIMS LAB, INC.

 

In consideration of the services provided by Contractor in Exhibit “A”, County shall pay Contractor based on the following fee schedule:

 

1.

SCHEDULE OF CHARGES.

Contractor will paid an annual fee for the license and maintenance on both the CIMS Server and Mainframe as follows:.

 

Term: Fee Schedule

November 8, 2005 through November 7, 2006 $24,000

November 8, 2006 through November 7, 2007 $24,000

November 8, 2007 through November 7, 2008 $24,000

November 8, 2008 through November 7, 2009 $24,000

November 8, 2009 through November 7, 2010 $24,000

Subtotal: $120,000

Total

$129,900 inclusive of taxes

       
   
 

County will submit payment to Contractor within thirty days from the date of receipt of invoice.

   
   
 
     
     
 
 

EXHIBIT C - TERMS AND CONDITIONS

AGREEMENT BETWEEN COUNTY OF SAN MATEO

AND CIMS LAB, INC.

 

In consideration of the payments set forth in Exhibit “B”, Contractor shall bound by the following terms and conditions:

 

1.

Perpetual Software License. Contractor will provide a proprietary software license for both CIMS Server and CIMS Mainframe (“Product(s)”) on the terms and conditions hereinafter provided. Contractor is providing to the County only the physical properties comprising the Product(s) being delivered and the non-exclusive right to use the computer programs and technology embodied in the Product(s) only in Buyer's data processing installation which is described on Exhibit A; it being understood that all other rights related to said computer programs and technology are being retained by Contractor.

 

2.

Use of Product. Notwithstanding any other provision of this Agreement, County shall not divulge or allow to be divulged any data or information with respect to Product(s) or the computer program and technology embodied therein, or any documentation, drawings, descriptions, models, reports or other information relating thereto. County shall in no event sell, assign, license, franchise, sub license or otherwise convey Product(s) or duplication or modifications thereof to any third person. In the event Buyer shall attempt to use or convey Product(s) or the computer program or technology embodied therein, or any duplication or modification thereof, in a manner contrary to the terms of this Agreement, Contractor shall have the right, in addition to any other remedies available to it, to injunctive relief enjoining such acts, it being acknowledged that other remedies are inadequate.

3.

Warranty. Contractor warrants that Product(s), when delivered to County, will operate as described in Product(s) documentation.

THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

4.

Remedies County’s sole and exclusive remedy for the breach of any provision of this Agreement or for the breach of any warranty shall be limited to costs of correction of Product(s) or the refund of the purchase prices, or rents paid, the choice of remedies to be at the option of Contractor.

    County agrees that Contractor shall not be liable to County or anyone else for any loss of business or other consequential damage from any cause whatsoever.

5.

M Maintenance. Maintenance services performed by Contractor shall include product enhancements, product error corrections, technical support and product documentation.

Maintenance services are included in the annual payment for the duration of the term of the Agreement for perpetual licenses.