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Res 1388 - Prof Serv Advis Serv COUNCil Bill NO. 1760 RESOLUTION NO. 1388 A RESOLUTION ENTERING INTO AN AGREEMENT FOR PROFESSIONAL SERVICES WITH MOSS ADAMS ADVISORY SERVICES, AND AUTHORIZING THE MAYOR TO SIGN SAID AGREEMENT. WHEREAS, the City of Woodburn data processing system is in need of a comprehensive evaluation; and WHEREAS, the City requested proposals for evaluating current management information needs, including hardware, software, funding, and culminating in a final report to serve as the Data Processing Strategic Plan; and WHEREAS, the City Council accepted the proposal of Moss Adams, LLP and directed staff to negotiate an agreement; and WHEREAS, said agreement has now been prepared for City Council consideration; NOW THEREFORE, THE CITY OF WOODBURN RESOLVES AS FOllOWS: Section 1. That the City of Woodburn enter into an agreement with Moss Adams, LLP to provide data processing consultant services. Section 2. That the Mayor is authorized to execute, on behalf of the City, said agreement, a copy of which is attached hereto and, by this reference, incorporated herein. Approved as to for~~ City Attorney )/~S-~b Date APPROVED: / / Page 1 - COUNCIL BILL NO. 1760 RESOLUTION NO. 1388 _...._..._-_..~.. ----r- Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: j77~~~ Mary T nant, City Recorder City of Woodburn, Oregon Page 2 - COUNCIL BILL NO. 1760 RESOLUTION NO. 1388 "--------'--'------"~- November 12, 1996 November 13, 1996 November 13, 1996 November 13, 1996 AGREEMENT FOR PROFESSIONAL SERVICES This agreement, dated as of Nav.13 J996, is entered into by and between the City of Woodburn (The City) and Moss Adams Advisory Services ("Consultant"). Section 1. The Services 1.1 Consultant shall perfonn the services described in the attached Schedule A dated October 14, , 1996. 1.2 Except as otherwise specifically provided in this Agreement, Consultant shall furnish the following, all as the same may be required to perform the services described in paragraph 1.1 in accordance with this Agreement: persoMe~ labor and supervision; technical, professional and other services. All such services, property and other items furnished or required to be furnished, together with all other obligations performed or required to be performed, by Consultant under this Agreement are sometimes collectively referred to in this Agreement as the "Services." 1.3 All provisions of this Agreement are intended to be complementary, and any Services required by one and not mentioned in another shall be performed to the same extent as though required by all. Details of the Services that are necessary to carry out the intent of this Agreement, but that are not expressly required, shall be performed or furnished by Consultant as part of the Services, without any increase in the compensation otherwise payable under this Agreement. Section 2. Schedule 2.1 Consultant shall commence, prosecute and complete such Services in accordance with Schedule A. Section 3. Compensation 3.1 As full compensation for satisfactory performance of the Services, the City shall pay Consultant the compensation described in Schedule A. 3.2 Consultant shall submit each calendar month, Consultant's invoice for the compensation payable under this Agreement for the Services performed during tJ1e preceding period. Each of Consultant's invoices shall set forth a detailed description of the Services performed during the applicable month, the number of hours spent performing such Services and any reimbursable costs and expenses incurred in cOMection with such Services. N:IMAClCONI'RACI\OREGON,DOC " "'r -....,..,...., "-"'__'_'_."_'~_"_""""-"'" ."-''''-'"""._-",,,,,,~,----,-,~,,,-~,~,,,-","^,,~~w._ 3.3 The City shall pay each of Consultant's invoices within thirty (30) days after the City's receipt and verification thereof. Section 4. Performance by Consultants 4.1 Consultant shall not (by contract, operation of law or otherwise) delegate or subcontract performance of any Services to any other person or entity without the prior written consent of the City. Any such delegation or subcontracting without the City's prior written consent shall be voidable at the City's option. No delegation or subcontracting of performance of any of the Services, with or without the CitYs prior written consent, shall relieve Consultant of its responsibility to perform the services in accordance with this Agreement. Consultant shall be fully responsible for the performance, acts and omissions of Consultant's employees, Consultant's subcontractors and any other person who perfonns or furnishes any Services (collectively, the "Support"). 4.2 Consultant shall at all times be an independent contractor and not an agent or representative of the City with regard to performance of the Services, Consultant shall not represent that it is, or hold itself out as, an agent or representative of the City. In no event shall Consultant be authorized to enter into any agreement or undertaking for or on behalf of the City.. 4.3 Consultant shall perform the Services in a timely manner and in accordance with the standards of the profession. At the time of performance, Consultant shall be properly licensed, equipped, organized and financed to perform the Services in accordance with this Agreement, Subject to compliance with the requirements of this Agreement, Consultant shall perform the Services in accordance with its own methods. 4.4 Consultant shall take all reasonable precautions to protect against any bodily injury (including death) or property damage that may occur in connection with the Services. Section 5. Compliance with Laws 5.1 Consultant shall comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits and other requirements, now in effect, of any governmental authority (including, but not limited to, such requirements as may be imposed upon the City and applicable to the Services). Consultant shall furnish such doculnents as may be required to effect or evidence such compliance. All laws, ordinances, rules, order required to be incorporated in agreements of this character are incorporated in this agreement by this reference. N:\MAC\CONTRACJ\OREGON,DOC 2 -or . ---.-.- .. ...."". ..."-.,..___......,..,.,,.. ~_.~ "",,...'....0. '-',', '_"~""_._^"",-".___.. ,_.~,__,..~_"- Section 6. Inspection: Examination of Records 6.1 The Services shall, at all times, be subject to inspection by and with the approval of the City, but the making of (or failure or delay in making) such inspection or approval shall not relieve Consultant of respoDSlbility for perfonnance of the Services in accordance with this Agreement, notwithstanding the City's knowledge of defective or noncomplying performance, its substantiality or the ease of its discovery. Consultant shall provide the City sufficient, safe and proper facilities and equipment for such inspector and free access to such facilities. 6.2 Consultant shall promptly furnish the City with such information related in the Services as may be requested by the City, Until the expiration of three (3) years after final payment of the compensation payable under this Agreement, Consultant shall provide the City access to (and the City shall have the right to examine, audit and copy) all of Consultant's books, documents, papers and records which are related to the Services or this Agreement. Section 7. Property and Confidential Information 7.1 Consultant shall not, without the prior written consent of the City, disclose to third parties any information received in connection with the Services unless: (a) the information is known to Consultant prior to receiving the same directly or indirectly in connection with the Services; (b) the information is in the public domain at the time of disclosure by Consultant; (c) the infonnation is received by Consultant from a third party who does not have an obligation to keep the same confidential; or (d) the Consultant is required to disclose by order ofa court or other authority. Section 8. Release. Indemnity and Hold Harmless 8.1 Subject to the limitations set forth in paragraph 8.2, Consultant releases and shall defend, indemnifY and hold the City hannless from and against all claims,' costs liabilities, damages and expenses, (mcluding, but not limited to, reasonable attorneys' fees) arising directly out of or in connection with: ( a) any fault, negligence, strict liability or product liability of Consultant in connection with the Services or this Agreement; N:IMAC\COmltAC1\OREGON,DOC 3 (b) any lien asserted upon any property of the City in connection with the Services or this Agreement; ( c) any failure of Consultant, or the Services to comply with any applicable law, ordinance, rule, regulation, order, license, permit and other requirement, now or hereafter in effect, of any governmental authority; or (d) any breach of contract or default under this Agreement by Consultant. 8.2 As permitted by applicable law, paragraph 8,1 shall apply. However, paragraph 8,1 shall not require Consultant to indemnify the City against any liability for damages arising out of bodily injury or property damage caused by or resulting from negligence of the City . Further, in the case of concurrent negligence of Consultant on the one hand and the City on the other hand, Consultant shall be required to indemnify the City only to the extent of the negligence of the Consultant, 8.3 Consultant releases and shall defend, indemnify and hold harmless the City from and against all claims, costs, liabilities, damages, expenses (including, but not limited to reasonable attorneys' fees), and royalties based upon any actual or alleged infringement or misappropriation of any patent, copyright, trade secret trademark or other intellectual property right by any Services. Further, if any Services infringe or misappropriate any patent, copyright, trade secret, trademark or other intellectual property right, Consultant shall either: (a) procure for the City the right to use such Services, or (b) modifY such Services so that they no longer infringe or misappropriate any such right. Section 9. Workers' Compensation and Insurance 9.1 With respect to all persons performing the Services, Consultant shall secure and maintain in effect at all times during performance of the Services coverage or insurance in accordance with the applicable laws relating to workers' compensation and employer's liability insurance, regardless of whether such coverage or insurance is mandatory or merely elective under the law. \. Consultant shall furnish to the City such assurance and evidence of such coverage or insurance (such as copies of insurance policies and Certificates of Compliance issued by the Washington State Department of Labor and Industries) as the City may request. N;\MAC\CON'IllACJ\OREGON.DOC 4 ";"=~'""""'"'-'''^~.''-'''''''.^_'.~~'_'_''_''' ...._.h"...,..~~_.,.,...,~..,,~.__".,~~_.___.._ 9.2 Consultant shall secure and maintain insurance with provisions, coverages and limits substantially as specified in the attached certificate of insurance, endorsement and/or schedule of insurance requirements or, unone is attached, with such provisions, coverages and limits as the City may from time to time specify to protect the City, its successors and assigns, (collectively, the "Additional Insured") from any claims, losses, harm, costs, liabilities, damages and expenses (mcluding, but not limited to, reasonable attorneys' fees) that may arise out of any property damage, bodily injury (including death) or professional liability related to the Services. Upon the City's request, Consultant shall furnish the City with such additional assurance and evidence of such insurance (such as copies of all insurance policies) as the City may request. Within thirty (30) days after any renewal or any notice of tennination, cancellations, expiration or alteration in any policy of insurance required under this Agreement, Consultant shall deliver to the City a certificate of insurance acceptable to the City with respect to any replacement policy. Section 10. Changes 10.1 The City may, at any time by written three (3) week notice thereof to Consultant, make changes in the Services within the general scope of this Agreement (including, but not limited to, additions to or deletions from any Services, suspension of performance and changes in Schedule A, and location of performance). 10,2 If any change under paragraph 10,1 causes an increase or decrease in the cost or the time required for performance of the Services, an equitable adjustment in the compensation and schedule under this Agreement shall be made to reflect such increase or decrease, and this Agreement shall be modified in writing accordingly. Such equitable adjustment shall constitute full compensation to Consultant for such change. If any change under paragraph 10.1 results in a decrease in the Services to be performed, Consultant shall not be entitled to anticipated profit on Services not performed and the loss of anticipated profit shall not reduce the decrease in compensation under this Agreement resulting from such change. Further, Consultant shall not be entitled to any reallocation of cost, profit or overhead. 10.3 Notwithstanding any dispute or delay in arriving at a mutually acceptable equitable adjustment under paragraph 10.2, Consultant shall immediately proceed with performance of the Services as changed pursuant to paragraph 10,1. If Consultant intends to assert a claim for equitable adjustment under paragraph 10.2, Consultant must, within sixty (60) days after Consultant's receipt of any notice under paragraph 19.2 that does not set forth an acceptable adjustment, submit to the City, a written statement of the basis and nature of the adjustment claimed. Consultant shall not be entitled to any adjustment unless such written statement is submitted by Consultant to the City within the applicable period. N:IMACICONTIlACI\OREGON,DOC 5 O_Or" ..', -...''''....<..... ,""._.".~..,.." .,,,.,.. ....,...,.,'"'~''"',..,.._---~",~'"'''''''''''"~...~..~'"~... Section 11. Tennination 11.1 The City may, by written three (3) week notice thereof to Consultant, terminate this Agreement as to all or any portion of the Services not then performed, whether or not Consultant is in breach or default. Upon receipt of any such notice of termination, Consultant shall, except as otherwise directed by the City, immediately schedule to stop within three (3) weeks the performance of the Services to the extent specified in such notice. Consultant shall have the same termination rights in Section 11. 11.2 In the event of termination pursuant to paragraph ILl, an equitable adjustment shall be made in the compensation payable to Consultant under this Agreement, provided that such compensation as so adjusted shall in no event exceed a percentage of the total compensation otherwise payable under this Agreement equal to the percentage of the Services satisfactorily completed at the time of termination. Further, Consultant shall not be entitled to any reallocation of cost, profit or overl1ead, Consultant shall not in any event be entitled to anticipated profit on Services not performed on account of such termination. Consultant shall use its best efforts to minimize the compensation payable under this Agreement in the event of such termination, 11.3 If the City purports to terminate or cancel all or any part of this agreement for Consultant's breach or default when Consultant is not in breach or default which would pennit such tennination or cancellation, such termination or cancellation shall be deemed to have been a termination by the City pursuant to paragraph 11.1 and the rights of the parties shall be determined accordingly, Section 12. Miscellaneous 12.1 Any notice, request, designation, direction, statement or other communication under this Agreement shall be in writing and shall be delivered in person or mailed, properly addressed and stamped with the required postage, to the attention of: the Finance Director for the City of Woodburn, or to Tom Krippaehne, representative of Moss Adams Advisory Services. 12.2 Consultant shall not (by contract, operation of law or otherwise) assign this Agreement or any right or interest in this Agreement without the prior written consent of the City. For the purposes of the foregoing, any transfer of a controlling interest in Consultant (e.g., by a transfer of Securities or otherwise) shall be deemed an assigiunent of this Agreement. Any assignment without the City's prior written consent shall be voidable at the City's option. No such assignment, with or without the City's prior written consent, shall relieve Consultant from its responsibility to perform the Services in accordance with this Agreement. Subject to the foregoing restriction on assignment by Consultant, this Agreement shall be fully binding upon, and be enforceable by the successors, assigns and legal representatives of the respective parties to this Agreement. N:IMAC\CON"ffiACI\OREGON.DOC 6 .._. T , '~""'''''''' - ~~._-" '-"'_".'''_.''''''''A ......., ','.. .., .........._ , .. ._~.,_'__''"'_._".______~,......~'._ 12.3 The obligations of Consultant under Sections 6, 7, 8, 11, and 12, and all provisions of this Agreement which may reasonably be interpreted or construed as surviving the completion, termination or cancellation of this Agreement, shall survive the completion, termination or cancellation of this Agreement. 12.4 The rights and remedies of the City or the Consultant set forth in any provision of this Agreement are in addition to and do not in any way limit any other rights or remedies afforded to the City or the Consultant by any other provision of this Agreement or by law. 12.5 This Agreement sets forth the entire agreement of the parties, and supersedes any and all prior agreements, with respect to the Services. No amendment or modification of any provision of this Agreement (other than changes pursuant to Section 10) shall be valid unless set forth in a written amendment to this Agreement signed by both parties. 12.6 The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof: and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted, The headings of sections of this Agreement are for convenience or reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections. 12.7 Consultant shall not commence or prosecute any suit, proceeding or claim to enforce the provisions of this Agreement, to recover damages for breach of or default in this Agreement, or otherwise arising under or by reason of this agreement, other than in the courts of the State of Oregon or the District Court of the United States, State of Oregon. Consultant hereby irrevocably consents to the jurisdiction of the courts of the State of Oregon with venue laid in Marion County and of the District Court of the United States. 12.8 This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of Oregon. CITY OF WOODBURN Date Signed: November 13, 1996 By: CITY OF WOODBURN -?;?~.-?/1~~ NA:;o~. mm- - _ Title: Approved as to Form: CONSUL TANT: MOSS ADAMS ADVISORY SERVICES A Division or Moss Adams LLP Date Signed: By: Title: N:lMAC\CON'IRAcnoREGON,DOC 7 ~"'."~"~'-~,-,~----_..- .... t SCHEDULE A AGREEMENT FOR PROFESSIONAL SERVICES City of Woodburn, OregonIMoss Adams LLP The Services 1. MANAGEMENT INFORMATION NEEDS A. Survey users' perceptions of compatibility with existing systems, nature of present computer applications, relationship to existing networks, and present accessibility to support services. B. Interview managers and heavy users concerning present and future information needs. C. Critically review future information needs to identify those that will enhance economy or efficiency. To the greatest extent possible costlbenefit analysis should be employed to evaluate which needs should be pursued. D. Recommend which applications should be centralized, decentralized, or distributed. 2. SOFIW ARE A. Review and evaluate nature and appropriateness of software utilized in each City department or division. B. Recommend software and/or programming that will meet future information needs. Include recommendations for software standards where appropriate. C. Determine the most feasible approach (or multiple viable alternatives) to meeting the City's software support needs including operating software, applications software, training and custom software. D. Evaluate and recommend the appropriate steps to resolve any software licensing issues. 3. HARDWARE A. Review City's network infrastructure. B. Recommend improvements to enhance stability and increase network performance. "- 'T-" SCHEDULE A AGREEMENT FOR PROFESSIONAL SERVICES City of Woodburn, Oregon/Moss Adams LLP Page 2 C. Review and evaluate nature and appropriateness of hardware utilized in each City department or division. .... D. Recommend equipment that will run the recommended software. E. Determine method(s) of meeting hardware support needs, including LAN and PC equipment. F. Prepare schematic drawing illustrative of present configuration of City computer system and similar schematic illustrations of any significant changes recommended. G. Flow Chart. H. Provide general guidelines for hardware acquisition. 4. FUNDING A. Recommend methods of funding replacements and additions to the system. B. Recommend methods of funding software and hardware support. C. Recommend methods of funding hardware maintenance. 5. STAFFING A. Recommend method(s) of providing ongoing installation, support, troubleshooting and program development. B. Recommend options of internal vs. outside support, giving pros and cons. C. Provide qualifications for any recommended staff. 6. GENERAL REQUIREMENTS A. Prepare two progress drafts of the Strategic Plan for management review. Incorporate management's comments in subsequent drafts. B. Prepare a final report, using a five year planning horizon, that will serve as the City' s Data Processing Strategic Plan. It will be a detailed analysis with specific .". T". '"'.-,-.- --... '.' '''.h''_''_,."_,, "",...,,-,.... ____h_._.,._._ SCHEDULE A AGREEMENT FOR PROFESSIONAL SERVICES City ofW oodbum, OregonIMoss Adams LLP Page 3 recommendations, and it will include an Executive Summary for the City Administrator's review. C. Perform additional research or comparisons necessary to adequately evaluate and comment on the City's data processing. Schedule The final draft of the Data Processing Strategic Plan will be delivered to the City of Woodburn no later than February 28, 1997, Compensation Fees plus Actual costs (not to exceed) $ 10,000 $ 2,000 ...-...r-.... . """ _d "