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Contract - Technology - 2010-07-01 AGREEMENT FOR COSTA MESA SANITARY DISTRICT INFORMATION TECHNOLOGY SYSTEM MAINTENANCE THIS AGREEMENT is made and effective as of July 1, 2010 between the Costa Mesa Sanitary District, a sanitary district ("DISTRICT") and Technology Resource Center, a California Corporation, ("Consultant") In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: 1 TERM This Agreement shall commence on July 1, 2010, and shall remain and continue in effect until tasks described herein are completed, but in no event later than June 30 2011 unless sooner terminated pursuant to the provisions of this Agreement. 2. SERVICES Consultant shall perform the tasks described and set forth as follows: a. Consultant shall integrate and maintain all DISTRICT new and existing hardware and software systems identified as follows: i. Current Dell or follow-on Tower systems and software, ii. Current Toshiba and Dell or follow-on notebook systems and software. iii. Current Standard or follow-on servers and software iv Current Sony tape drive or follow-on back-up systems and software v Internet Protocol switch network monitoring software; vi. Current or follow-on rack and mounted hardware subsystems including Cisco-equivalent switch, power distribution switch, APC Smart UPS, modems and patch cables; vii. Current HP Laserjet 1012 and 3050 printer models or follow- on printers; viii. Current Xerox Phaser 8560 and MOO network or follow-on printers; ix. Axis network or follow-on camera, cabling and software; x. Current and new peripherals including but not limited to external drives, scanners, monitors, keyboards, mice, replicators and associated computer hardware and supporting software and backup tape drives; xi. Uninterruptible Power Supplies (UPS); xii. Antivirus software, xiii. Internet Access; xiv Firewall and VPN; xv Software License status for DISTRICT renewals as appropriate; b Performance Requirements — Consultant shall be available up to twice monthly for routine hardware and software maintenance for an average of four hours of support services per maintenance visit at a fixed standard rate specified in paragraph 5, PAYMENT Consultant shall provide the professional services described as follows: i. Consultant shall maintain the DISTRICT'S Information Technology system at full operational capability (FOC) defined as full station functionality for all fifteen DISTRICT work stations, including servers, modems, network access, printer access, and backup systems; ii. Consultant shall maintain all DISTRICT software for all DISTRICT Information Technology systems located at the DISTRICT Headquarters and the DISTRICT Yard including but not limited to: 1 Windows operating system; 2. Server operating system; 3. Synchronization software 4 MS Office software; 5. Springbrook accounting and permitting software; 6 Antivirus software; 7 Adobe Acrobat software; 8. Microsoft Outlook e-mail software 9 Networking and network monitoring software and 10 Internet access software iii. Consultant shall recommend cost-effective replacement and upgrade hardware and software to meet District needs throughout the performance period, with emphasis during the last quarter of the performance of this agreement to replace equipment nearing the end of its useful life. Consultant shall complete the tasks according to the schedule in paragraph 5, PAYMENT 3. PERFORMANCE Consultant shall at all times faithfully competently and to the best of his/her/its ability experience, and talent perform all tasks described herein. Consultant shall employ at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder in meeting its obligations under this Agreement. 4 DISTRICT MANAGEMENT District's Operations Manager shall represent District in all matters pertaining to the administration of this Agreement, review and approval of all products submitted by 2 Consultant, but not including the authority to enlarge the Tasks to be Performed or change the compensation due to Consultant. The District General Manager shall be authorized to act on DISTRICT's behalf and to execute all necessary documents which enlarge the Tasks to be Performed or change Consultant's compensation, subject to Section 5 hereof 5. PAYMENT (a) The DISTRICT agrees to pay Consultant the sum of $10,875 00 for one year's service, unless otherwise provided herein. Compensation shall be paid monthly based on services provided for the previous month, as documented by Consultant's invoice showing services rendered at the hourly rate of $125.00 per hour Consultant has represented that an average of 7.25 hours of service per month should be sufficient to maintain the system, which would equate to a total of 87 hours for the year The parties have agreed that said monthly service shall be provided with visits of approximately 3.625 hours twice a month on the first and third Tuesdays, unless the parties agree otherwise at the staff level. No additional compensation shall be allowed Consultant unless approval is obtained as provided for below (b) Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the District General Manager Consultant shall be compensated for any additional services in the amounts and in the manner as agreed to by District General Manager and Consultant at the time DISTRICT's written authorization is given to Consultant for the performance of said services. The District General Manager may approve additional work not to exceed the greater of fifteen-thousand dollars ($15,000.00) or ten percent (10%) of the total contract sum. Any additional work in excess of this amount shall be approved by the Board of Directors. (c) Consultant will submit invoices for actual services performed. Invoices shall be submitted on or about the first business day of each month, or as soon thereafter as practical, for services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the DISTRICT disputes any of Consultant's fees it shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice. 6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE (a) The DISTRICT may at any time, for any reason, with or without cause, suspend or terminate this Agreement, or any portion hereof by serving upon the Consultant at least ten (10) days prior written notice. Upon receipt of said notice, the consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the DISTRICT suspends or terminates a portion of this Agreement such suspension or termination shall not make void or invalidate the remainder of this Agreement. (b) In the event this Agreement is terminated pursuant to this Section, the DISTRICT shall pay to Consultant the actual value of the work performed up to the time of termination, provided that the work performed is of value to the DISTRICT Upon termination of the Agreement pursuant to this Section, the Consultant will submit an invoice to the DISTRICT pursuant to Section 5. 7 DEFAULT OF CONSULTANT (a) The Consultant's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, DISTRICT shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Consultant. If such failure by the Consultant to make progress in the performance of work hereunder arises out of causes beyond the Consultant's control, and without fault or negligence of the Consultant, it shall not be considered a default. (b) If the District General Manager or his/her delegate determines that the Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall cause to be served upon the Consultant a written notice of the default. The Consultant shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the DISTRICT shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law in equity or under this Agreement. 8. OWNERSHIP OF DOCUMENTS (a) Consultant shall maintain complete and accurate records with respect to documenting and maintaining the upgrades and process for DISTRICT equipment and software and software licenses to post and remove additional downloads in the digital Administration Instructional Tutorial' manual, the CMSD Network Manual and other such information required by DISTRICT that relate to the performance of services under this Agreement. Consultant shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible Consultant shall provide free access to the representatives of DISTRICT or its designees at reasonable times to such books and records; shall give DISTRICT the right to examine and audit said books and records; shall permit DISTRICT to make transcripts therefrom as necessary and shall allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. (b) Upon completion termination or suspension of this Agreement all management information system documentation and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the DISTRICT and may be used, reused or otherwise disposed of by the DISTRICT without the permission of the Consultant. With respect to computer files, 4 Consultant shall make available to the DISTRICT at the Consultant's office and upon reasonable written request by the DISTRICT the necessary computer software and hardware for purposes of accessing, compiling, transferring and printing computer files. 9. INDEMNIFICATION (a) Indemnification for Professional Liability When the law establishes a professional standard of care for Consultant's Services, to the fullest extent permitted by law Consultant shall indemnify protect, defend and hold harmless DISTRICT and any and all of its officials, employees and agents ("Indemnified Parties") from and against any and all losses, liabilities, damages, costs and expenses, including attorney's fees and costs to the extent the same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement. (b) Indemnification for Other Than Professional Liability Other than in the performance of professional services and to the full extent permitted by law Consultant shall indemnify defend and hold harmless DISTRICT and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, loses, expenses or costs of any kind, whether actual, alleged or threatened, including attomeys fees and costs, court costs, interest, defense costs and expert witness fees) where the same arise out of are a consequence of or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subconsultants of Consultant. (c) General Indemnification Provisions. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subconsultant or any other person or entity involved by for with or on behalf of Consultant in the performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of DISTRICT to monitor compliance with these requirements imposes no additional obligations on DISTRICT and will in no way act as a waiver of any rights hereunder This obligation to indemnify and defend DISTRICT as set forth here is binding on the successors, assigns or heirs of Consultant and shall survive the termination of this Agreement or this section. 10. INSURANCE Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit A (certificate of insurance) attached to and part of this Agreement. 5 11 INDEPENDENT CONSULTANT (a) Consultant is and shall at all times remain as to the DISTRICT a wholly independent Consultant. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither DISTRICT nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the DISTRICT Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against DISTRICT or bind DISTRICT in any manner (b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, DISTRICT shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for DISTRICT DISTRICT shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder Consultant shall indemnify defend and hold DISTRICT harmless from any claim by consultant's employees to seek benefits. 12. LEGAL RESPONSIBILITIES The Consultant shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Consultant shall at all times observe and comply with all such laws and regulations. The DISTRICT and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this Section. 13. UNDUE INFLUENCE Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of the DISTRICT in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement or financial inducement. No officer or employee of the DISTRICT will receive compensation, directly or indirectly from Consultant, or from any officer employee or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling the DISTRICT to any and all remedies at law or in equity 14. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES No member officer or employee of DISTRICT or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Project during his/her tenure or for one year thereafter shall have any interest, direct or 6 indirect, in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in connection with the Project performed under this Agreement. 15. RELEASE OF INFORMATION / CONFLICTS OF INTEREST (a) All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without DISTRICT's prior written authorization. Consultant, its officers, employees, agents or subconsultants, shall not without written authorization from the District General Manager or unless requested by the District Counsel, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the DISTRICT Response to a subpoena or court order shall not be considered 'voluntary' provided Consultant gives DISTRICT notice of such court order or subpoena. (b) Consultant shall promptly notify DISTRICT should Consultant, its officers, employees, agents or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions, or other discovery request, court order or subpoena from any person or party regarding this Agreement and the work performed thereunder or with respect to any project or property located within the DISTRICT DISTRICT retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding. Consultant agrees to cooperate fully with DISTRICT and to provide the opportunity to review any response to discovery requests provided by Consultant. However DISTRICT's right to review any such response does not imply or mean the right by DISTRICT to control, direct, or rewrite said response. 16. NOTICES Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by (i) personal service, (ii) delivery by a reputable document delivery service such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice To DISTRICT Costa Mesa Sanitary District 628 West 191h St Costa Mesa, CA 92627 Attn District Clerk To Consultant: Technology Resource Center 2101 E. 4m Street Santa Ana, CA 92705 ATTN: Mark Serres 17 ASSIGNMENT The Consultant shall not assign the performance of this Agreement, nor any part thereof nor any monies due hereunder without prior written consent of the DISTRICT Because of the personal nature of the services to be rendered pursuant to this Agreement, only Consultant, its officers, employees, agents or subconsultants shall perform the services described in this Agreement. Consultant, its officers, employees, agents or subconsultants may use assistants, under its direct supervision, to perform some of the services under this Agreement. Consultant shall provide DISTRICT fourteen (14) day's notice prior to the departure of Mark Serres from Consultant's employ Should he/she leave Consultant's employ the DISTRICT shall have the option to immediately terminate this Agreement, within three (3) days of the close of said notice period. Upon termination of this Agreement, Consultant's sole compensation shall not exceed payment for actual services performed up to, and including, the date of termination or as may be otherwise agreed to in writing between the Board of Directors and the Consultant. 18. LICENSES At all times during the term of this Agreement, Consultant shall have in full force and effect, all licenses required of it by law for the performance of the services described in this Agreement. 19. GOVERNING LAW The DISTRICT and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the superior or federal district court with jurisdiction over the Costa Mesa Sanitary District. 20. ENTIRE AGREEMENT This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 21 WORK SCHEDULED/TIME OF COMPLETION Consultant agrees to complete all tasks by June 30, 2011 unless the DISTRICT authorizes a mutually agreed upon extension to complete existing or added tasks. 8 22. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL Consultant is bound to perform the services specified in Section 2. 23. AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this Agreement on behalf of Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder. 24. INTERPRETATION In the event of conflict or inconsistency between this Agreement and any other document, including any proposal or Exhibit hereto, this Agreement shall control unless a contrary intent is clearly stated. IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed the day and year first above written. COSTA MESA SANITARY DISTRICT n By. \ - '7x _ _ ' 4 _ La Pr .ident By � Il —ret CONSULTANT By 274-47.2-- Title: 672 /v APPROVED AS • FORM: ALAN BURNS LEGAL COU By 9