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HomeMy WebLinkAboutVIII-11 Authorize Signature on Professional Services Agreement - 7 Minute Security City Council Memorandum To: Mayor Mary Fasbender & City Council Members From: Dave Hokstad, IT Manager Date: March 21, 2022 Item: Authorize Signature on Professional Services Agreement with 7 Minute Security Council Action Requested: Authorize signature on the Professional Services Agreement for a comprehensive security assessment to identify and make a remediation plan for risks related to administrative and technical security controls. Background Information: The 2022 budget includes approval for a cyber security assessment that would include penetration testing to review security practices and determine where we have security flaws on our network. Two proposals were received. The key features of the proposals under review were cost and scope. 7 Minute Security was the lowest priced proposal that included the entire scope of the project. Staff is recommending moving forward with the 7 Minute Security proposal. Financial Impact: The proposed cyber security assessment is approved in the 2022 budget. Advisory Commission Discussion: N/A Council Committee Discussion: N/A Attachments: Professional Services Agreement 7 Minute Security Proposal VIII-11 1 AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT (“Agreement”) is made and executed this _____day of ____________, 2022, by and between the City of Hastings, 101 4th Street, Hastings, Minnesota 55033, (“City”) and 7 Minute Security, 4601 Dean Lakes Boulevard, Shakopee, Minnesota, 55379 (“Consultant”). WHEREAS, the City has accepted the proposal of the Consultant for certain professional Services; and WHEREAS, Consultant desires to perform the Services for the City under the terms and conditions set forth in this Agreement. NOW THEREFORE, in consideration of the mutual consideration contained herein, it is hereby agreed as follows: 1. SERVICES. a. City agrees to engage Consultant as an independent contractor for the purpose of performing certain professional Services (“Services”), as defined in the following documents: i. A proposal dated February 2, 2022, incorporated herein as Exhibit A. b. Consultant covenants and agrees to provide Services to the satisfaction of the City in a timely fashion, as set forth in Exhibit A, subject to Section 7 of this Agreement. 2. PAYMENT. a. City agrees to pay and Consultant agrees to receive and accept payment for Services as set forth in Exhibit A. b. Any changes in the scope of the work of the Services that may result in an increase to the compensation due the Consultant shall require prior written approval by the authorized representative of the City or by the City Council. The City will not pay additional compensation for Services that do not have prior written authorization. c. Consultant shall submit itemized bills for Services provided to City on a monthly basis. Bills submitted shall be paid in the same manner as other claims made to City. 3. TERM. The term of this Agreement is identified in Exhibit A. This Agreement may be extended upon the written mutual consent of the parties for such additional period as they deem appropriate, and upon the same terms and conditions as herein stated. VIII-11 2 4. TERMINATION. a. Termination by Either Party. This Agreement may be terminated by either party upon 30 days’ written notice delivered to the other party to the addresses listed in Section 13 of this Agreement. Upon termination under this provision, if there is no default by the Consultant, Consultant shall be paid for Services rendered and reimbursable expenses until the effective date of termination. b. Termination Due to Default. This Agreement may be terminated by either party upon written notice in the event of substantial failure by the other party to perform in accordance with the terms of this Agreement. The non-performing party shall have fifteen (15) calendar days from the date of the termination notice to cure or to submit a plan for cure that is acceptable to the other party. 5. SUBCONTRACTORS. Consultant shall not enter into subcontracts for any of the Services provided for in this Agreement without the express written consent of the City, unless specifically provided for in Exhibit A. The Consultant shall pay any subcontractor involved in the performance of this Agreement within the ten (10) days of the Consultant’s receipt of payment by the City for undisputed services provided by the subcontractor. 6. STANDARD OF CARE. In performing its Services, Consultant will use that degree of care and skill ordinarily exercised, under similar circumstances, by reputable members of its profession in the same locality at the time the Services are provided. No warranty, express or implied, is made or intended by Consultant’s undertaking herein or its performance of Services. 7. DELAY IN PERFORMANCE. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the nonperforming party. For purposes of this Agreement, such circumstances include, but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war, riots, and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage; judicial restraint; and inability to procure permits, licenses or authorizations from any local, state, or federal agency for any of the supplies, materials, accesses, or services required to be provided by either City or Consultant under this Agreement. If such circumstances occur, the nonperforming party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement. Consultant will be entitled to payment for its reasonable additional charges, if any, due to the delay. 8. CITY’S REPRESENTATIVE. The City has designated Dan Wietecha to act as the City’s representative with respect to the Services to be performed under this Agreement. He shall have complete authority to transmit instructions, receive information, interpret, and define the City’s policy and decisions with respect to the Services covered by this Agreement. VIII-11 3 9. PROJECT MANAGER AND STAFFING. The Consultant has designated Brian Johnson to be the primary contact for the City in the performance of the Services. He shall be assisted by other staff members as necessary to facilitate the completion of the Services in accordance with the terms established herein. Consultant may not remove or replace the designated staff without the approval of the City. 10. INDEMNIFICATION. a. Consultant and City each agree to indemnify, and hold harmless each other, its agents and employees, from and against legal liability for all claims, losses, damages, and expenses to the extent such claims, losses, damages, or expenses are caused by its negligent acts, errors, or omissions. In the event claims, losses, damages, or expenses are caused by the joint or concurrent negligence of Consultant and City, they shall be borne by each party in proportion to its own negligence. b. Consultant shall indemnify City against legal liability for damages arising out of claims by Consultant’s employees. City shall indemnify Consultant against legal liability for damages arising out of claims by City’s employees. 11. INSURANCE. During the performance of the Services under this Agreement, Consultant shall maintain the following insurance: a. General Liability Insurance, with a limit of $2,000,000 for any number of claims arising out of a single occurrence; b. Professional Liability Insurance, with a limit of $2,000,000 for any number of claims arising out of a single occurrence. Consultant shall furnish the City with certificates of insurance, which shall include a provision that such insurance shall not be canceled without written notice to the City. The City shall be named as an additional insured on the General Liability Insurance policy. 12. OWNERSHIP OF DOCUMENTS. Professional documents, drawings, and specifications prepared by the Consultant as part of the Services shall become the property of the City when Consultant has been compensated for all Services rendered, provided, however, that Consultant shall have the unrestricted right to their use. Consultant shall retain its rights in its standard drawing details, specifications, databases, computer software, and other proprietary property. Rights to proprietary intellectual property developed, utilized, or modified in the performance of the Services shall remain the property of the Consultant. 13. NOTICES. Notices shall be communicated to the following addresses: If to City: City of Hastings City Administrator 101 4th Street VIII-11 4 Hastings, MN 55033 Or e-mailed: dwietecha@hastingsmn.gov If to Consultant: Brian Johnson 4601 Dean Lakes Boulevard Shakopee, Minnesota, 55379 Or emailed: brian@7minsec.com 14. INDEPENDENT CONTRACTOR STATUS. All services provided by Consultant, its officers, agents and employees pursuant to this Agreement shall be provided as employees of Consultant or as independent contractors of Consultant and not as employees of the City for any purpose. 15. HIERARCHY OF DOCUMENTS. To the extent that there is a conflict, discrepancy or ambiguity between the provisions of this Agreement and Exhibit A, the Agreement shall prevail and take priority over Exhibit A and all other documents related thereto. 16. GENERAL PROVISIONS. a. Assignment. This Agreement is not assignable without the mutual written agreement of the parties. b. Waiver. A waiver by either City or Consultant of any breach of this Agreement shall be in writing. Such a waiver shall not affect the waiving party’s rights with respect to any other or further breach. c. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Minnesota and any action must be venued in Dakota County District Court. d. Severability. If any term of this Agreement is found be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. e. Data Practices Compliance. All data collected by the City pursuant to this Agreement shall be subject to the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13. f. Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to the subject matter hereof, whether oral or written. VIII-11 5 CITY OF HASTINGS By: ____________________________________ Mary Fasbender, Mayor ATTEST: By: _____________________________________ Kelly Murtaugh, City Clerk STATE OF MINNESOTA ) ) COUNTY OF DAKOTA ) On this ___ day of ____________________, 2022, before me a Notary Public within and for said County, personally appeared Mary Fasbender and Kelly Murtaugh to me personally known, who being each by me duly sworn, each did say that they are respectively the Mayor and the City Clerk of the City of Hastings, the Minnesota municipal corporation named in the foregoing instrument, and that the seal affixed to said instrument was signed and sealed in behalf of said municipal corporation by authority of its City Council and said Mayor and City Clerk acknowledged said instrument to be the free act and deed of said municipal corporation. ____________________________________ Notary Public VIII-11 6 CONTRACTOR By: Brian Johnson, President, 7 Minute Security STATE OF MINNESOTA ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this ____ day of __________________, 2022, by Brian Johnson, the President of 7 Minute Security, a Minnesota limited liability company, on behalf of said limited liability company. Notary Public VIII-11