Contract - Technology - 2006-07-01 AGREEMENT FOR COSTA MESA SANITARY DISTRICT INFORMATION
TECHNOLOGY SYSTEM MAINTENANCE
THIS AGREEMENT is made and effective as of July 1, 2006 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.
TERM
This Agreement shall commence on July 1, 2006 and shall remain and continue in
effect until tasks described herein are completed but in no event later than June 30,
2008 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,
H. Current Toshiba 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 or follow-on printers
Current Xerox Phaser 8400N 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
xi. Antivirus software;
xii. Internet Access
xiii. Firewall and VPN
xiv 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 ten 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 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 Assistant Manager shall represent District in all matters pertaining to the
administration of this Agreement, review and approval of all products submitted by
Consultant, but not including the authority to enlarge the Tasks to be Performed or
change the compensation due to Consultant. The District 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
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5. PAYMENT
(a) The District agrees to pay Consultant upon completion of tasks, District
acceptance of effort and receipt of Consultant's invoice for this two-year service. This
amount shall not exceed Eighteen Thousand Two Hundred and Forty dollars ($18,240.00)
for the total term of the Agreement unless additional payment is approved as provided in
this Agreement. This amount is based on the rate of $95 00/hour for a planned monthly
maintenance not to exceed an average of 8 hours per month over a period of 24 months
for a total of 192 hours. It is anticipated Consultant shall provide monthly service of four
hours service per service visit scheduled to occur on the first and third Tuesday of every
month, allowing adjustment in the schedule to account for holidays and special
circumstances.
(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
Manager Consultant shall be compensated for any additional services in the amounts
and in the manner as agreed to by District Manager and Consultant at the time District's
written authorization is given to Consultant for the performance of said services. The
District Manager may approve additional work not to exceed the greater of fifteen-
thousand dollars ($15 000 00) or two percent (2%) 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
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(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 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 relating to
employment 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, 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
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(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 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
attorneys 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.
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,
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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 Costa Mesa Sanitary 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 Costa Mesa Sanitary 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 indirect,
in any agreement or sub-agreement, or the proceed 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 Manager or unless requested by the
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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, (H) 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 19th St
Costa Mesa, CA 92627
Attn. District Clerk
To Consultant: Technology Resource Center
2101 E. 4th 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
Serves 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 be 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 municipal, 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 2008 unless the District
authorizes a mutually agreed upon extension to complete existing or added tasks
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
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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
By. 4''. ,� ���0
/14407 Presie
dnt
By. QS s - =
Secittary
CONSULTANT
By:,7 I
Title. V tr)
APPROVED AS TO FORM:
ALAN BURNS
LEGAL CO SE
By.
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