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Home My WebLink AboutWILLIAMS COMMUNICATIONS SOLUTIONS - 2001-05-070 Council/Agency Meeting Held: 0 Deferred/Continued to: O\Ap roved ❑ Conditionally Approved ❑ Denied My- C"RY"Cler s Signature Council Meeting Date: May 7, 2001 Department ID Number: FD 01-011 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION o SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS 2 —'`—' , O SUBMITTED BY: N Q- RAY SILVER, City AdministratorQ'� -O -1 a _C C-) A-�,�rnM PREPARED BY: MICHAEL P. DOLDER, Fire Chief/Information Systems Dire�,°I�or . a cn � D SUBJECT: APPROVE SETTLEMENT COMMITTEE RECOMMENDATION TO ADOPT INSURANCE AND INDEMNIFICATION WAIVERS REQUESTED BY WILLIAMS COMMUNICATIONS SOLUTIONS AS PART OF THE MASTER ORDER AND MAINTENANCE AGREEMENT BETWEEN WILLIAMS COMMUNICATIONS SOLUTIONS AND THE CITY OF HUNTINGTON BEACH Fs - of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: Should the City Council approve the Settlement Committee's recommendation to adopt the insurance and indemnification modifications requested by Williams Communications Solutions as part of the Master Order and Maintenance Agreement between Williams Communications Solutions and the City of Huntington Beach? Funding Source: None Required. Recommended Action: MOTION TO: Approve the Settlement Committee recommendation to adopt the insurance and indemnification waivers. Alternative Action(s): Do not approve the Settlement Committee recommendation. .Analysis: At this time, the City is in the process of entering into a Master Order and Maintenance Agreement with Williams Communications Solutions to facilitate the procurement of budgeted telecommunications equipment and services on an ongoing basis. Pursuant to City Code Section 3.02.050, such services can be procured by the Fire Chief/Information Systems Director and approved by the City Administrator. C, . S REQUEST FOR COUNCIL ACMN MEETING DATE: May 7, 2001 DEPARTMENT ID NUMBER: FD 01-011 Analysis: (continued) Williams Communications Solutions has asked for modifications to the liability portions of the agreement. Specifically, they have requested that their indemnification obligation be limited to willful misconduct or negligence. They have also requested a limited liability provision under paragraph 37 of the agreement including a limitation for any special or consequential damages or commercial loss due to business interruption. As required by City Resolution 97-20, the proposed Master Agreement was reviewed by the Settlement Committee (Attachment 1), who made the following recommendations: 1. Accept the request by Williams Communications Solutions to limit their liability to bodily injury and tangible property damage for indemnity and general liability insurance purposes. 2. Accept a waiver of standard indemnification obligations thereby limiting the vendor's obligation to negligence or willful misconduct. City Council previously approved similar requests with the same vendor on May 4, 1998 and March 20, 2000. At this time, it is recommended that City Council approve the Settlement Committee's recommendation to adopt insurance and indemnification waivers requested by Williams Communications Solutions as part of the Master Order and Maintenance Agreement. Environmental Status: Not applicable. Attachment(s): RCA Author: White/Dolder FD01 011 Williams Communications Indemnif2.doc -2- 4/26/01 4:26 PM ATTACHMENT1 CITY OF HUNTINGTON BEACH APPLICATION FOR INSURANCE REQUIREMENTS WAIVER OR MODIFICATION 3 1. Name/Title/Department of Requesting Staff Member AtL6•o1 2. Date of Request 4 3. 4. 5. Value of Contract 4$-'o0a- 6. Length of Contract eirlf�J`?ir�. - 7. Type of Insurance Waiver or Modification Requested: (a) Limits: (b) Coverage 8. Have you contacted Risk Management to determine if professional liability coverage is available through SCOPE? 9. Reason for Request Waiver or Reduction of 10. Identify the risks to the City if this request for waiver or modifications granted_ Department Head Signature ) JI.CcQ.L (This section to be completed by Risk Manager) Recommendation: Approve �Den Risk Manager's Signature/Date �✓ / / (This section to be completed by City Attorney) Recommendation: Approve �, I ent� City Attorney's Signature/Date W Settlement Committee appro 1 [is] 'Xficetto ] required for this waiver. If Settlement Committee approval is�equired, submit this form to Ci Attorneys be placed on the agenda. Recommendation: Approve — City Deny Ciry Council appro 4[is] [i quired for this waiver. If City Council approval is required, attach this form to the RCA after considerati a Settlement Committee. This insurance waiver [is not] on City Cou it agenda. Reviewer's initials: imp/mi s/inswai ver/3/ 14/00 ZIZFXe if Ao A7��C,4Me,,-7 f 0 atus, if shall, upon the execution of this Agreement and on an annual basis thereafter, prc CONT CT with valid tax exemption certificates for every state in which it clai su status. Failure rovide such certificates will cause CONTRACTOR to invo' e CITY as taxable. TAX-EXWPT TAXABLE. (b) Any billin or job changZordersauth ed by CITY shall be invoiced separately to the CITY. Such invoice sha ontmation required above and shall be for an amount not to exceed the mutuaby the parties in the signed change order plus applicable taxes, if a Such invoices s 1 be approved by CITY if the work performed is in accordance wit a job change order requested, an CITY is satisfied that the amounZinvoicedis e. Such approval shall not be unreasonably wit d. Any invoiced amounfaith by the CITY with respect to a particular Order Form ecutedhereunas separate and apart from the performance of any other Order Fo hereunder. 10. INDEMNIFICATION, DEFENSE, HOLD HARMLESS CONTRACTOR hereby agrees to protect, defend, indemnify and hold and save harmless CITY, its officers, and employees against any and all liability, claims, judgments, costs and demands, including those resulting from death or injury to CONTRACTOR's employees and damage to CONTRACTOR's property, to the extent arising directly out of the negligence or willful misconduct of CONTRACTOR, including those arising from the passive concurrent negligence of CITY, but save and except those which arise out of the active concurrent negligence, sole negligence, or the.sole willful misconduct of CITY. CONTRACTOR will conduct all defense at its sole cost and expense. 01 agree/williams/4/12/01 8 uses the System solely for CITY's internal business purposes; (iii) does not copy any part o the s&kvare without CONTRACTOR'S consent and does not attempt to develop any code from software; and (iv) returns to CONTRACTOR or erases or destroys software on any media bei recycled or discarded and so certifies to CONTRALTO CITY may only transfer the right to us a software to any end user who subsequently quires the right to use the System, agrees to be bou d by the terms of this license and a es to pay any applicable fees plus applicable taxes. (b) All title to, owne ip of and a proprietary rights (including, but not limited to, patent rights, copyrights, trade sec or other intellectual property rights) in and to the software, other than the limited rights pressl anted to CITY herein, shall remain vested in CONTRACTOR or its third part uppliers. (c) Notwi tanding any other provision o is Agreement, failure by CITY, its ag/tn' o comply with the terms of this Section sh be deemed a material breacnt, entitling CONTRACTOR to immediately term ate this Agreement and as and privileges with respect to the licensed software, to obtain injunlief necessary to protect CONTRACTOR from any potential age from such breach. 37. CONTRACTOR'S DAMAGE LIABILITY (a) In no event shall CONTRACTOR and its suppliers or subcontractors, be liable for (i) any special, incidental, exemplary, or consequential damages, (ii) commercial loss of any kind (including loss of business or profits), or (iii) any damages of any kind resulting from unauthorized use of the System, including, without limitation, toll fraud. This provision applies to all claims whether based upon breach of warranty, breach of contract, negligence, strict 01 agree/williams/4/12/01 29 liability in tort or any other legal theory, and whether CONTRACTOR or its suppliers or its subcontractors have been advised of the possibility of such damage or loss. (b) CONTRACTOR shall be liable for any physical damage it causes to the System. This liability is limited to repair of the System or component thereof, or if the System or component cannot be repaired, replacement with a comparable System or component, and is otherwise limited as set forth in Section 37(a) above. 38. WAIVERS No action or inaction by either party shall be interpreted as a "waiv " No waiver by the TY shall be valid unless it is in writing and signed by the ' Administrator. No waiver by CON CTOR shall be valid unless signed by an aut rized representative of CONTRACTOR. 39. GOVERNING LA Any controversy or claim 'sing o of or relating to this Agreement or the breach thereof, shall be settled in accordanc the laws of the State of California. 40. /ne ACTOR d CITY agree that CITY not liable for payment of any subcooly' g legal services, and that such legal se 'ces are expressly outside the scontemplated hereunder. CONTRACTOR underst s that pursuant to HuntiCharter Section 309, the City Attorney is the exclusive al counsel for CITY; not be liable for payment of any legal services expenses incurre by 01 agree/williamV4/12/01 30 0 RCA ROUTING SHEET INITIATING DEPARTMENT: FIRE SUBJECT: Approve Settlement Committee recommendation to adopt insurance & indemnification waivers requested by Williams Communications as part of Master Order & Maintenance Agreement between Williams Communications & the City COUNCIL MEETING DATE: I May 7, 2001 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attome Not Applicable Subleases, Third Party Agreements, etc. Approved as to form by City Attome) Not Applicable Certificates of Insurance (Approved by the City Attome) Attached Financial Impact Statement Unbud et, over $5,000 Not Applicable Bonds If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Find in s/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING -ATTACHMENTS:.", REVIEW D RETURNED FORWARDED Administrative Staff 15� Assistant City Administrator Initial City Administrator (initial) rfe City Clerk -EXPLANATION•- OF _fur VM RCA Author: White/Dolder