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Home My WebLink AboutC20-143 Lewan and AssociatesAGREEMENT FOR SERVICES BETWEEN EAGLE COUNTY, COLORADO AND LEWAN & ASSOCIATES, INC. THIS AGREEMENT (“Agreement”) is effective as of _____________________, by and between Lewan & Associates, Inc a Colorado corporation (hereinafter “Contractor” or “Consultant”) and Eagle County, Colorado, a body corporate and politic (hereinafter “County”). RECITALS WHEREAS, the County desires to hire Contractor to provide IT engineering services related to on premises equipment and software, and to provide general IT engineering services on an On-Call ad-hoc basis; and WHEREAS, Contractor is authorized to do business in the State of Colorado and has the time, skill, expertise, and experience necessary to provide the Services as defined below in paragraph 1 hereof; and WHEREAS, this Agreement shall govern the relationship between Contractor and County in connection with the Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Contractor and County agree as follows: 1.Services or Work. Contractor agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete the services or work described in Exhibit A (“Services” or “Work”) which is attached hereto and incorporated herein by reference. Contractor further agrees to provide general IT engineering services to the County on an on-call basis in accordance with a statement of work, in writing, for each on-call service to be provided by Contractor and approved by County at the hourly rates set forth in Exhibit A which his attached hereto and incorporated herein by reference (“On-Call Services”). The Services and On-Call Services shall be performed in accordance with the provisions and conditions of this Agreement. a.Contractor agrees to furnish the Services in accordance with the schedule established in Exhibit A.If no completion date is specified in Exhibit A, then Contractor agrees to furnish the Services in a timely and expeditious manner consistent with the applicable standard of care. By signing below Contractor represents that it has the expertise and personnel necessary to properly and timely perform the Services. b.In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. 2.County’s Representative. The Innovation and Technology Department’s designee shall be Contractor’s contact with respect to this Agreement and performance of the Services. 3.Term of the Agreement. This Agreement shall commence upon the date first written above, and subject to the provisions of paragraph 11 hereof, shall continue in full force and effect through the 31st day of December, 2020. DocuSign Envelope ID: FDF93E59-92B7-4D90-8890-775C1E2BE0E7 4/14/2020 C20-143 2 Eagle County Professional Services IT Final 5/14 4. Extension or Modification. This Agreement may be extended for up to three additional one year terms upon written agreement of the parties. Any amendments or modifications shall be in writing signed by both parties. No additional services or work performed by Contractor shall be the basis for additional compensation unless and until Contractor has obtained written authorization and acknowledgement by County for such additional services in accordance with County’s internal policies. Accordingly, no course of conduct or dealings between the parties, nor verbal change orders, express or implied acceptance of alterations or additions to the Services, and no claim that County has been unjustly enriched by any additional services, whether or not there is in fact any such unjust enrichment, shall be the basis of any increase in the compensation payable hereunder. In the event that written authorization and acknowledgment by County for such additional services is not timely executed and issued in strict accordance with this Agreement, Contractor’s rights with respect to such additional services shall be deemed waived and such failure shall result in non-payment for such additional services or work performed. 5. Compensation. County shall compensate Contractor for the performance of the Services as set forth in Exhibit A. The performance of any Services or On Call Services under this Agreement shall not exceed a total of $40,000. Outages often require services to be performed outside of normal business hours (Monday through Friday, 8:00 am−5:00 pm). Off-hours services will be billed at double the hourly rate for Sundays and holidays, and time-and-one-half the hourly rate for other off-hours services. Contractor is entitled to bill at overtime and/or double time rates for work done outside of normal business hours. a. Payment will be made for Services and On-Call Services satisfactorily performed within thirty (30) days of receipt of a proper and accurate invoice from Contractor. All invoices shall include detail regarding the hours spent, tasks performed, who performed each task and such other detail as County may request. b. If, at any time during the term or after termination or expiration of this Agreement, County reasonably determines that any payment made by County to Contractor was improper because the Services for which payment was made were not performed as set forth in this Agreement, then upon written notice of such determination and request for reimbursement from County, Contractor shall forthwith return such payment(s) to County. Upon termination or expiration of this Agreement, unexpended funds advanced by County, if any, shall forthwith be returned to County. c. County will not withhold any taxes from monies paid to the Contractor hereunder and Contractor agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. d. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Contractor in respect of any period after December 31 of any year, without an appropriation therefor by County in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 6. Subcontractors. Contractor acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Contractor. Contractor shall not enter into any subcontractor agreements for the performance of any of the Services or additional services without County’s prior written consent, which may be withheld in County’s sole discretion. County shall have the right in its reasonable discretion to approve all personnel assigned to the subject Project during the performance of this Agreement and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned to the Project. Contractor shall require each subcontractor, as approved by County and to the extent of the Services to be performed by the subcontractor, to be bound to Contractor by the terms of this Agreement, and to assume toward Contractor all the obligations and DocuSign Envelope ID: FDF93E59-92B7-4D90-8890-775C1E2BE0E7 3 Eagle County Professional Services IT Final 5/14 responsibilities which Contractor, by this Agreement, assumes toward County. County shall have the right (but not the obligation) to enforce the provisions of this Agreement against any subcontractor hired by Contractor and Contractor shall cooperate in such process. The Contractor shall be responsible for the acts and omissions of its agents, employees and subcontractors. 7. Insurance. Contractor agrees to provide and maintain at Contractor’s sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. i. Workers’ Compensation insurance as required by law. ii. Auto coverage with limits of liability not less than $1,000,000 each accident combined bodily injury and property damage liability insurance, including coverage for owned, hired, and non-owned vehicles. iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $1,000,000 aggregate limits. iv. Professional Liability (Errors and Omissions) including Cyber Liability with prior acts coverage for all deliverables, Services and additional services required hereunder, in a form and with insurer or insurers satisfactory to County, with limits of liability of not less than $3,000,000 per claim and $3,000,000 in the aggregate. The insurance shall provide coverage for (i) liability arising from theft, dissemination and/or use of confidential information stored or transmitted in electronic form; (ii) Network Security Liability arising from unauthorized access to, use of or tampering with computer systems including hacker attacks, inability of an authorized third party to gain access to your Software or Services including denial of access or Services unless caused by a mechanical or electrical failure; (iii) liability arising from the introduction of a computer virus into, or otherwise causing damage to, County or a third person’s computer, computer system, network or similar computer related property and the data, software and programs thereon. v. Crime Coverage shall include employee dishonesty, forgery or alteration and computer fraud. If Consultant is physically located on County premises, third party fidelity coverage extension shall apply. The policy shall include coverage for all directors, officers and employees of the Consultant. The bond or policy shall include coverage for extended theft and mysterious disappearance. The bond or policy shall not contain a condition requiring an arrest or conversion. Limits shall be a minimum of $1,000,000 per loss. b. Other Requirements. i. The automobile and commercial general liability coverage shall be endorsed to include Eagle County, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds. A certificate of insurance consistent with the foregoing requirements is attached hereto as Exhibit B. ii. Contractor’s certificates of insurance shall include subcontractors, if any as additional insureds under its policies or Contractor shall furnish to County separate certificates and endorsements for each subcontractor. iii. The insurance provisions of this Agreement shall survive expiration or termination hereof. DocuSign Envelope ID: FDF93E59-92B7-4D90-8890-775C1E2BE0E7 4 Eagle County Professional Services IT Final 5/14 iv. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. v. Contractor is not entitled to workers’ compensation benefits except as provided by the Contractor, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Contractor or some other entity. The Contractor is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 8. Indemnification. The Contractor shall indemnify and hold harmless County, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which County may become subject to insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, or are based upon any performance or nonperformance by Contractor or any of its subcontractors hereunder; and Contractor shall reimburse County for reasonable attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against the County to the extent that County is liable to such third party for such claims without regard to the involvement of the Contractor. This paragraph shall survive expiration or termination hereof. 9. Ownership of Documents. All documents (including electronic files) and materials obtained during, purchased or prepared in the performance of the Services shall remain the property of the County and are to be delivered to County before final payment is made to Contractor or upon earlier termination of this Agreement. 10. Notice. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (iv) when sent via facsimile so long as the sending party can provide facsimile machine or other confirmation showing the date, time and receiving facsimile number for the transmission, or (v) when transmitted via e-mail with confirmation of receipt. Either party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. COUNTY: Eagle County, Colorado Attention: Jake Klearman 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-3595 E-Mail: Jake.klearman@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 DocuSign Envelope ID: FDF93E59-92B7-4D90-8890-775C1E2BE0E7 5 Eagle County Professional Services IT Final 5/14 E-Mail: atty@eaglecounty.us CONTRACTOR: Lewan & Associates, Inc, 1400 S Colorado Blvd. Denver, CO 80222 Telephone: 303-968-2313 Email: vicki.mares@lewan.com 11. Termination. County may terminate this Agreement, in whole or in part, at any time and for any reason, with or without cause, and without penalty therefor with seven (7) calendar days’ prior written notice to the Contractor. Upon termination of this Agreement, Contractor shall immediately provide County with all documents as defined in paragraph 9 hereof, in such format as County shall direct and shall return all County owned materials and documents. County shall pay Contractor for Services satisfactorily performed to the date of termination. 12. Venue, Jurisdiction and Applicable Law. Any and all claims, disputes or controversies related to this Agreement, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. 13. Execution by Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121. 14. Other Contract Requirements and Contractor Representations. a. Contractor has familiarized itself with the nature and extent of the Services to be provided hereunder and the Property, and with all local conditions, federal, state and local laws, ordinances, rules and regulations that in any manner affect cost, progress, or performance of the Services. b. Contractor will make, or cause to be made, examinations, investigations, and tests as he deems necessary for the performance of the Services. c. To the extent possible, Contractor has correlated the results of such observations, examinations, investigations, tests, reports, and data with the terms and conditions of this Agreement. d. To the extent possible, Contractor has given County written notice of all conflicts, errors, or discrepancies. e. Contractor shall be responsible for the completeness and accuracy of the Services and shall correct, at its sole expense, all significant errors and omissions in performance of the Services. The fact that the County has accepted or approved the Services shall not relieve Contractor of any of its responsibilities. Contractor shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to contractors performing similar services. Contractor represents and warrants DocuSign Envelope ID: FDF93E59-92B7-4D90-8890-775C1E2BE0E7 6 Eagle County Professional Services IT Final 5/14 that it has the expertise and personnel necessary to properly perform the Services and shall comply with the highest standards of customer service to the public. Contractor shall provide appropriate supervision to its employees to ensure the Services are performed in accordance with this Agreement. This paragraph shall survive termination of this Agreement. f. Contractor agrees to work in an expeditious manner, within the sound exercise of its judgment and professional standards, in the performance of this Agreement. Time is of the essence with respect to this Agreement. g. This Agreement constitutes an agreement for performance of the Services by Contractor as an independent contractor and not as an employee of County. Nothing contained in this Agreement shall be deemed to create a relationship of employer-employee, master-servant, partnership, joint venture or any other relationship between County and Contractor except that of independent contractor. Contractor shall have no authority to bind County. h. Contractor represents and warrants that at all times in the performance of the Services, Contractor shall comply with any and all applicable laws, codes, rules and regulations. i. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. j. Contractor shall not assign any portion of this Agreement without the prior written consent of the County. Any attempt to assign this Agreement without such consent shall be void. k. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties, and not to any third party. l. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. m. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. n. The signatories to this Agreement aver to their knowledge no employee of the County has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement. The Contractor has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Services and Contractor shall not employ any person having such known interests. o. The Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) to the extent applicable shall comply with C.R.S. 24-76.5-103 prior to the effective date of this Agreement. [REST OF PAGE INTENTIONALLY LEFT BLANK] DocuSign Envelope ID: FDF93E59-92B7-4D90-8890-775C1E2BE0E7 7 Eagle County Professional Services IT Final 5/14 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER By: ______________________________ Jeff Shroll, County Manager CONTRACTOR: By:________________________________ Print Name: _________________________ Title: ______________________________ DocuSign Envelope ID: FDF93E59-92B7-4D90-8890-775C1E2BE0E7 Vicki Mares Executive Director of Operations 8 Eagle County Professional Services IT Final 5/14 EXHIBIT A SCOPE OF SERVICES, SCHEDULE, FEES TASKS & DELIVERABLES ● Upgrade 2 vCenter servers from 6.0 to 6.5u3 ● Upgrade 7 ESXi hosts (5 at primary site, 2 at DR site) ● Backup configuration changes as necessary PHASE 1: PROJECT KICKOFF MEETING As assigned, the Lewan Project Manager will lead a planning and preparation meeting with Client contacts. PHASE 2: VSPHERE UPGRADE 6.0 TO 6.5U3 Tasks – Validate Interoperability with External Software Environment. The following list of activities represents our initial understanding of the work intended for the initial engagement. This scope of services may change based on County direction or other factors that emerge during the course of the engagement. Review existing VMware vSphere environment noting key configurations Discuss with Customer any additional upgrade goals and pain points within the infrastructure described below: o 2 vCenter 6.0 server VMs (1 per site) o 7 vSphere hosts, all HP rack servers, approx. 180 running VMs o 3 clusters running across 2 sites Decide if migrating existing vCenter config vs. building new vCenters using vCSA appliances Discuss implications on Veeam backups if new vCenters are used Plan order of upgrade operations Download and stage all media Obtain approval for any needed maintenance / outage windows Tasks – Upgrade Veeam Upgrade Veeam code from 9.5u4 to 9.5u4b to support vSphere 6.5u3 Tasks – Deploy two new vCenter running as vCSA appliances Download vCSA appliance Based on planning, session migrate existing vCenter config from current Windows vCenter or build new vCenter DocuSign Envelope ID: FDF93E59-92B7-4D90-8890-775C1E2BE0E7 9 Eagle County Professional Services IT Final 5/14 If building new vCenters, review/record current customizations that need to be copied Install/update PSC as per decisions in planning session and best practices Customize settings and update virtual networking as needed Apply licensing from my.vmware.com portal Migrate hosts to new vCenters Demonstrate HTML5 webclient usage Tasks – VMware vSphere Upgrade: Update server firmware levels, as required Upgrade ESXi host software on up to 7 hosts Upgrade / redeploy needed custom or 3rd party drivers for hosts - fresh install may be performed depending on complexity of host remediation necessary Validate successful host upgrade and restoration of full cluster capabilities Confirm compliance to host profiles and proper configuration of HA and DRS if applicable Test for proper vMotion between hosts Discuss VM update process for VMTools and VM hardware version o Perform VM updates on up to 3 non-production VM’s o Note: VM updates require scheduled downtime for each VM. Customer will perform remaining upgrades without Consultant(s) within an appropriate maintenance window. Knowledge Transfer and Documentation: Provide knowledge transfer on the following by Customer staff working closely with Consultant(s) throughout the engagement: o General vSphere best practices o vSphere technical architecture o New features and tools within applicable vSphere version Prepare as-built documentation for final vCenter and hosts configurations as deployed by Lewan Consultant(s) PHASE 3: PROJECT CLOSEOUT Tasks: DocuSign Envelope ID: FDF93E59-92B7-4D90-8890-775C1E2BE0E7 10 Eagle County Professional Services IT Final 5/14 Complete and deliver as-built documentation for vCenter 6.5 environment Review the documentation with Client Obtain Client signoff on project completion Note: Client is expecting 3 days on-site for initial deployment, 4 hours of remote support for followup Professional Services Rate Sheet Resource Category* Rate Code Contracted Engineer I SD-SE1 $130 Engineer II SD-SE2 $160 Consulting Engineer SD-SE3 $200 Architect SD-SE4 $215 Senior Architect SD-SE5 $275 Project Coordinator SD-PM1 $125 Project Manager SD-PM2 $165 Program Manager SD-PM3 $175 The above rates are for support Monday through Friday (excluding local, observed holidays) 8:00 am to 5:00 pm Mountain Time ("Business Hours"). Services performed are charged in quarter-hour increments. Service outside Business Hours is provided per resource availability at double the hourly rate for Sunday and holiday work and time-and-one-half the hourly rate for other off-hours work. There is a 4-hour minimum billing charge to Client’s Account for on-site work. A one-way travel charge will be billed to Client at the hourly rate for the SE or project manager. All travel time will be assessed from the Lewan office at 1400 S. Colorado Boulevard, Denver CO 80222 to the Client location. Standard rates will apply to all travel. There is a minimum 15-minute trip charge. EXHIBIT B INSURANCE CERTIFICATE DocuSign Envelope ID: FDF93E59-92B7-4D90-8890-775C1E2BE0E7