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Contract - Kasprzyk, Theresa R. - 2013-02-01 AGREEMENT FOR CONSULTANT SERVICES This Agreement ("AGREEMENT") is made and effective as of February 1, 2013, between the Costa Mesa Sanitary District, a sanitary district ("DISTRICT"), and Theresa R. Kasprzyk, an Independent Contractor ("CONSULTANT"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: Recitals WHEREAS, the DISTRICT has determined that it is in the best interest of the DISTRICT to contract for website maintenance services; and WHEREAS, CONSULTANT is an independent contractor and DISTRICT desires to utilize the services of CONSULTANT to edit, revise, update or create new textual content on existing pages based on the DISTRICT'S website located at www.cmsdca.gov, and WHEREAS, the DISTRICT has determined that the CONSULTANT possesses the professional skills and ability to provide said services for the DISTRICT; NOW, THEREFORE, the parties hereto agree as follows: 1. TERM This AGREEMENT shall commence on February 1, 2013, and shall remain and continue in effect until tasks described herein are completed unless sooner terminated pursuant to the provisions of this AGREEMENT. 2. SERVICES CONSULTANT shall perform the tasks described and set forth in Exhibit A, attached hereto and incorporated herein as though set forth in full. CONSULTANT shall complete the tasks according to the compansation fee schedule which is also set forth in Exhibit A. 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. 1 • 4. DISTRICT MANAGEMENT The General Manager shall represent DISTRICT in all matters pertaining to the administration of this AGREEMENT, including review and approval of all products submitted by CONSULTANT. Notwithstanding the foregoing, the General Manager's authority to enlarge the tasks to be performed or change CONSULTANT's compensation is subject to Section 5 hereof. 5. PAYMENT (a) DISTRICT agrees to pay CONSULTANT an amount not to exceed Thirty Dollars ($30.00) per hour from February 1, 2013 through December 31, 2013 and Forty- five Dollars ($45.00) per hour from January 1, 2014 through December 31, 2014 for the total term of this AGREEMENT unless additional payment is approved as provided in this AGREEMENT. (b) CONSULTANT shall not be compensated for any services rendered in connection with its performance of this AGREEMENT that are in addition to those set forth herein, unless such additional services are requested in a written change order and are approved in advance and in writing by DISTRICT. The written change order requirement cannot be waived. The General Manager may approve change orders for additional work not to exceed the cumulative value of ten percent (10%) of the total contract sum. Any additional work in excess of this cumulative amount shall be approved by the Board of Directors. (c) CONSULTANT will submit invoices upon task completion unless otherwise agreed. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If DISTRICT disputes any of CONSULTANT's fees, DISTRICT shall give written notice to CONSULTANT within thirty (30) days of receipt of an invoice of any disputed fees contained in 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 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. 2 CONSULTANT shall immediately turn over all work-product to DISTRICT in a readily usable form. 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 of negligence of the CONSULTANT, it shall not be considered a default. (b) As an alternative to the procedure for immediate termination for default set forth in subparagraph (a), 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 may in his/her discretion cause to be served upon the CONSULTANT a written notice of the default and demand to cure. The CONSULTANT shall have ten (10) days after service upon it of said notice 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 the professional services required by this AGREEMENT and will produce the work product specified in Exhibit A 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. 3 (b) Upon completion, termination, or suspension of this AGREEMENT, all work product reduced to any medium 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. Said software and hardware shall be made available to DISTRICT at CONSULTANT's cost. 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 from and against any and all losses, liabilities, damages, costs, and expenses, including attorney's fees and costs to the extent the same arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct 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 fullest 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, losses, expenses, or costs of any kind, whether actual, alleged, or threatened, including attorney's fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, pertain to, relate to, 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, agent, employees, or subconsultants of CONSULTANT. 10. INSURANCE CONSULTANT shall maintain prior to the beginning of and for the duration of this AGREEMENT insurance coverage as specified in Exhibit B attached to and made part of this AGREEMENT. 4 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 whatsoever 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. 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 has been 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. 5 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 has 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 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 the performance of this AGREEMENT shall be considered confidential and shall not be released by CONSULTANT without DISTRICT's prior written authorization. CONSULTANT and its officers, employees, agents, or subconsultants shall not, without written authorization from the 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 or 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 or 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 that DISTRICT has a right to control, direct, or rewrite said response. (c) CONSULTANT covenants that neither he/she/it nor any officer or principal of their firm have any interest in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services hereunder. CONSULTANT further covenants that in the performance of this AGREEMENT, no person having such interest shall be employed by it/them as an officer, employee, agent, or subconsultant. CONSULTANT further covenants that CONSULTANT has not contracted with nor is performing any services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning property in the DISTRICT or the study area and further covenants and agrees that CONSULTANT and/or its subconsultants shall provide no service or enter into any agreement or agreements with a/any developer(s) and/or property owner(s) and/or 6 firm(s) and/or partnership(s) owning property in the DISTRICT or the study area prior to the completion of the work under this AGREEMENT. 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 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 19th Street Costa Mesa, California 92627 Attn: District Clerk To CONSULTANT: Theresa R. Kasprzyk 13861 Jasperson Way Westminster, California 92683 Attn: Theresa R. Kasprzyk 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. 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 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 DISTRICT. 7 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. CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL CONSULTANT is bound by the contents of Exhibit A, hereto and incorporated herein by this reference. In the event of conflict, the requirements of DISTRICT's Request for Proposals and this AGREEMENT shall take precedence over those contained in the CONSULTANT's proposals. 22. MODIFICATION No modification to this AGREEMENT shall be effective unless it is in writing and signed by authorized representatives of the parties hereto. This written modification requirement cannot be waived. 23. AUTHORITY TO EXECUTE THIS AGREEMENT The person or persons executing this AGREEMENT on behalf of CONSULTANT warrant(s) and represent(s) that he/she/they has/have the authority to execute this AGREEMENT on behalf of the CONSULTANT and has/have 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. 25. BUSINESS LICENSE CONSULTANT shall obtain a business license from the City of Costa Mesa unless legally exempt. 8 IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed this day and year first above written. COSTA MESA SANITARY DISTRICT THERESA R. KASPRZYK Scott C. Carroll, General Manager Signature i 0V_I//.:w,3 THERESA R. KASPRZYK Typed Name CONSULTANT ATTEST: Title District Clerk APPROVED AS TO FORM: . r Colin R. Burns, Associate District Counsel 9 • Exhibit A. Theresa R.Kasprzyk 13861 Jasperson Way-Westminster,CA 92683-Telephone:714-721-4535-Email:trk7777 @gmail.com Website Design—Graphic Design—Multimedia—Grant Writing—Publicist Services January 2, 2013 Javier Ochiqui Costa Mesa Sanitary District 628 W. 19th Street Costa Mesa, CA 92627-2716 Subject: Web Site Maintenance Agreement This agreement is by and between Costa Mesa Sanitary District hereafter"The Client" and Theresa Kasprzyk dba Terrastar Media,hereafter"The Consultant". Date of launch guarantee: minor updates and textual changes to new websites for 30 days from date of launch of live website will be provided at no charge to the Client. "The Client" is contracting "The Consultant" as a provider of web site maintenance services. Services not considered 'standard website maintenance' are subject to be charged at a regular hourly rate of$45.00, and will not be considered part of this contract. What IS included in this agreement: 1. Edit,revise,update or create new textual content on existing pages based on "The Client"request. 2. New pages added to the main navigation with content and images provided by Client. 3. Consultation and guidance on the use of the web site. 4. Full backup of web site each month. This backup will be stored on Client's Hostgator Server through Akeeba Backup for Joomla or similar backup module. What is NOT included in this agreement: 1. Web site redesign,re-alignment or re-development 2. Search engine optimization services 3. CMS design or integration including but not limited to blogs, shopping carts and web forums. These require a separate design agreement. 4. Modifications independently made to pages by Client which can substantially affect and alter rendering, appearance and performance for the site pages,without timely notification to Contractor,may result in duplication of work by Contractor. Such altered pages will, therefore, no longer be considered part of the original agreement, and may be billed separately in order for work to continue on the altered pages. Total Agreement: "The Consultant" shall provide "The Client" with minor updates to the web site for a period of 12 1 months within this contract. After that time a new agreement must be drawn up. Minor updates should not exceed more than 50% of the content on any single site page. During the duration of this contract, the "The Client" agrees that the "The Consultant" will be the sole provider of maintenance services for the web site, and no other party will have access to or rights to change the web site. If a party other than the "The Consultant",including CMSD staff, makes changes to the web site any errors that are created, that must be repaired will be charged for at the hourly rate specified above. Compensation "The Client" agrees to compensate "The Consultant"by the 15a'day of each month via check for the amount specified in the following retainer options: Introductory Website maintenance for first $30 per hour calendar year- January 1, 2013-December 31, 2013. Website maintenance rate be adjusted after the $45 per hour first calendar year-2nd year rate: January 1,2014-December 31, 2014. In the event "The Client" fails to adhere to the schedule of payment referenced by the deadline set forth, "The Consultant" retains the rights,but are not obligated,to pursue any or all of the following remedies: 1. terminate the Agreement 2. immediately stop all works-in-progress or remove unpaid for material 3. bring legal action Deadlines &Deliverables: "The Consultant" will respond to all maintenance requests from "The Client" within 24 hours on weekdays and 48 hours on weekends,via email or phone,with a confirmation that the request was received, and an estimated completion date for each action item in the request. Maintenance requests received after 3:00pm PST may not be completed until the next business day unless prior arrangements have been made. "The Consultant" will adhere to all quoted deadlines for the deliverables in the maintenance requests at all possible costs. In the event that "The Consultant" has any issues in delivering on a quoted deadline, "The Client"will be notified via email or telephone the reasoning for any change. Additional Services: Any revisions, additions or redesign "The Client" requests "The Consultant"to perform that is not specified in this document shall be considered "additional" and will require separate agreement and payment. "The Consultant"shall advise "The Client" on any requested work that falls within these bounds. Authorization: "The Client"hereby authorizes "The Consultant" to access their web hosting account,providing active user name/password combinations for access to the server via FTP, assuring that'write permissions'are in place on said hosting provider. 2 Termination: "The Client"may cancel this website maintenance agreement at any time,by providing one month's written notice,provided that payment is up-to-date. A pro-rata refund will be given for any unused period of the advance payment. "The Consultant"reserves the right cancel this website maintenance agreement at any time, for any reason,without prior notification and will provide a cancellation notice either electronically or in writing sent to the address of record. Legal: "The Client" and "The Consultant" are independent parties and nothing in this Agreement shall constitute either party as the employer,principal or partner of or joint venture with the other party. Neither"The Client" nor "The Consultant" has any authority to assume or create any obligation or liability, either express or implied, on behalf of the other. This Agreement shall be governed by and construed in accordance with the laws of the State of California applicable therein. The undersigned agrees to the terms of this agreement on behalf of his or her organization or business. On behalf of the Client: Date On behalf of Consultant: Date 3