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Oceanview Technologies LLC - IT Consulting Services Professional/ Technical Services Agreement for Services Regarding the hformation Technology System of the City of Rancho Palos Verdes Between Oceanview Technologies, LLC (CONSULTANT) 1111111 The City of Rancho Palos Verdes (CITY) PROFESSIONAL/TECHNICAL SERVICES AGREEMENT This Agreement is made and entered into this 8th day of September, 2014, by and between the City of Rancho Palos Verdes (hereinafter referred to as the "CITY") and Oceanview Technologies, LLC. (hereafter referred to as "CONSULTANT"). IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto mutually agree as follows: ARTICLE 1 SCOPE OF SERVICES 1.1 Engagement Description The Information Technology Support and Services may include, but not be limited to the following areas of expertise. Appropriate access to systems and devices will be required in some cases, along with any relevant support contract details. 1. Systems administration and documentation of servers, network devices, and topology 2. Configuration of equipment including servers, network equipment, and other systems 3. Process analysis and related project documentation 4. Desktop and end-user support We will work side-by-side with any other vendors providing services to RPV, and assist where required with Information Technology (IT) projects. If CITY requests additional specified work that exceeds twenty five thousand ($25,000) dollars, such additional work must be approved by the City Council, prior to commencement of the work 1.2 Description of Services CONSULTANT shall perform IT consulting services, as described in CONSULTANT'S Proposal, which is attached hereto as Exhibit "A" and incorporated herein by this reference. 1.3 Schedule of Work Upon receipt of written Notice to Proceed from the CITY, CONSULTANT shall perform with due diligence the services set forth in Exhibit"A." Time is of the essence in this Agreement. CONSULTANT shall not be responsible for delay, nor shall CONSULTANT be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely information or to approve or disapprove CONSULTANT's work promptly, or delay or faulty performance by CITY, other CONSULTANT/contractors, or governmental agencies, or any other delays beyond CONSULTANT's control or without CONSULTANT's fault. Page 2 of 11 CONSULTANT shall complete the services described herein on a per assignment basis. ARTICLE 2 COMPENSATION 2.1 Fee (a) CITY agrees to compensate CONSULTANT a standard base rate of $85 / hour or other rates as agreed to and described in ARTICLE 1. (b) CITY may request additional specified work under this Agreement. All such work must be authorized in writing by CITY'S Information Technology Manager (IT Manager) prior to commencement. CONSULTANT shall be paid for such additional services in accordance with CONSULTANT's schedule of hourly rates included in its Proposal, attached hereto as Exhibit "A" and incorporated herein by reference. If CITY requests additional specified work that exceeds twenty five thousand ($25,000) dollars, such additional work must be approved by the City Council, prior to commencement of the work. 2.2 Payment Address All payments due CONSULTANT shall be paid to: Oceanview Technologies, LLC 2514 Ridgeland Rd. Torrance, CA 90505 2.3 Terms of Compensation CONSULTANT will submit invoices weekly for the hours of work completed in the prior week. CITY agrees to authorize payment for all undisputed invoice amounts within thirty(30) days of receipt of the invoice. CITY agrees to use its best efforts to notify CONSULTANT of any disputed invoice amounts or claimed completion percentages within ten (10) days of the receipt of each invoice. However, CITY's failure to timely notify CONSULTANT of a disputed amount of claimed completion percentage shall not be deemed a waiver of CITY's right to challenge such amount or percentage. Additionally, in the event CITY fails to pay any undisputed amounts due CONSULTANT within forty-five (45) days after invoices are received by CITY then CITY agrees that CONSULTANT shall have the right to consider said default a total breach of this Agreement and be terminated by CONSULTANT without liability to CONSULTANT upon ten (10) working days advance written notice. 2.4 Term of Agreement: This Agreement shall commence on 8th of September, 2014 and shall terminate on the date services are completed. Page 3 of 11 ARTICLE 3 INDEMNIFICATION AND INSURANCE 3.1 Indemnification Contractor shall defend, indemnify, and hold harmless the City, its officials, and every officer, employee and agent of City (collectively "City") from any claim, liability or financial loss (including, without limitation, attorneys fees and costs), injuries to property or persons (including without limitation, attorneys fees and costs) arising out of any acts or omissions of Contractor, its officials, officers, employees or agents in connection with the performance of this Agreement, except for such claim, liability or financial loss or damage arising from the sole negligence or willful misconduct of the City, as determined by final arbitration or court decision or by the agreement of the Parties. Contractor shall defend City, with counsel of City's choice, at Contractor's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against City. Contractor shall reimburse City for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Contractor or City. All duties of Contractor under this Section shall survive termination of this Agreement. 3.2 General Liability CONSULTANT shall at all times during the term of the Agreement carry, maintain, and keep in full force and effect, a policy or policies of Commercial General Liability Insurance, with minimum limits of one million dollars ($1,000,000) for each occurrence and two million dollars($2,000,000)general aggregate for bodily injury, death, loss or property damage for products or completed operations and any and all other activities undertaken by CONSULTANT in the performance of this Agreement. Said policy or policies shall be issued by an insurer admitted or authorized to do business in the State of California and rated in A.M. Best's Insurance Guide with a rating of A:VII or better. 3.3 Professional Liability CONSULTANT shall at all times during the term of this Agreement, carry, maintain, and keep in full force and effect a policy or policies of professional liability insurance with a minimum limit of one million dollars ($1,000,000) per claim and aggregate for errors and/or omissions of CONSULTANT in the performance of this Agreement. Said policy or policies shall be issued by an insurer admitted or authorized to do business in the State of California and rated in Best's Insurance Guide with a rating of A:VII or better. If a "claims made" policy is provided, such policy shall be maintained in effect from the date of performance of work or services on the CITY's behalf until three (3) years after the date of work or services are accepted as completed. Coverage for the post-completion period may be provided by renewal or replacement of the policy for each of the three (3)years or by a three-year extended reporting period endorsement, which reinstates all limits for the extended reporting period. If any such policy and/or policies have a retroactive date, that date shall be no later than the date of first performance of work or services on behalf of the Page 4 of 11 CITY. Renewal or replacement policies shall not allow for any advancement of such retroactive date. 3.4 Worker's Compensation CONSULTANT agree to maintain in force at all times during the performance of work under this Agreement worker's compensation insurance as required by the law. CONSULTANT shall require any subcontractor similarly to provide such compensation insurance for their respective employees. 3.5 Notice of Cancellation A. All insurance policies shall provide that the insurance coverage shall not be cancelled by the insurance carrier without thirty (30) days prior written notice to CITY, or ten (10) days notice if cancellation is due to nonpayment of premium. CONSULTANT agrees that it will not cancel or reduce said insurance coverage. B. CONSULTANT agrees that if it does not keep the aforesaid insurance in full force and effect, CITY may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, CITY may take out the necessary insurance and pay, at CONSULTANT's expense, the premium thereon. 3.7 Certificate of Insurance At all times during the term of this Agreement, CONSULTANT shall maintain on file with the CITY Clerk a certificate of insurance showing that the aforesaid policies are in effect in the required amounts. The commercial general liability policy shall contain endorsements naming the CITY, its officers, agents and employees as additional insured. 3.8 Primary Coverage The insurance provided by CONSULTANT shall be primary to any coverage available to CITY. The insurance policies (other than workers compensation and professional liability) shall include provisions for waiver of subrogation. ARTICLE 4 TERMINATION 4.1 Termination of Agreement (a) This Agreement may be terminated at any time,with or without cause, by the CITY upon thirty(30) days prior written notice or by CONSULTANT upon thirty(30) days prior written notice. Notice shall be deemed served if completed in compliance with Article 6.13. (b) In the event of termination or cancellation of this Agreement by Page 5 of 11 CONSULTANT or CITY, due to no fault or failure of performance by CONSULTANT, CONSULTANT shall be paid compensation for all services performed by CONSULTANT, in an amount to be determined as follows: for work satisfactorily done in accordance with all of the terms and provisions of this Agreement, CONSULTANT shall be paid an amount equal to the percentage of services performed prior to the effective date of termination or cancellation in accordance with the work items; provided, in no event shall the amount of money paid under the foregoing provisions of this paragraph exceed the amount which would have been paid to CONSULTANT for the full performance of the services described in Article 2.1. ARTICLE 5 OWNERSHIP OF DOCUMENTS 5.1 Ownership of Documents and Work Product All final documents, plans, specifications, reports, photographs, images, video files and media created or developed by CONSULTANT pursuant to this Agreement ("Written Products") shall be and remain the property of the CITY without restriction or limitation upon its use, duplication or dissemination by the CITY. All Written Products shall be considered "works made for hire," and all Written Products and any and all intellectual property rights arising from their creation, including, but not limited to, all copyrights and other proprietary rights, shall be and remain the property of the CITY without restriction or limitation upon their use, duplication or dissemination by the CITY. CONSULTANT shall not obtain or attempt to obtain copyright protection as to any Written Products. CONSULTANT hereby assigns to the CITY all ownership and any and all intellectual property rights to the Written Products that are not otherwise vested in the CITY pursuant to the paragraph directly above this one. CONSULTANT warrants and represents that it has secured all necessary licenses, consents or approvals to use any instrumentality, thing or component as to which any intellectual property right exists, including computer software, used in the rendering of the services and the production of all Written Products produced under this Agreement, and that the CITY has full legal title to and the right to reproduce the Written Products. CONSULTANT shall defend, indemnify and hold the CITY, and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of CITY officials, harmless from any loss, claim or liability in any way related to a claim that CITY's use of any of the Written Products is violating federal, state or local laws, or any contractual provisions, or any laws relating to trade names, licenses, franchises, copyrights, patents or other means of protecting intellectual property rights and/or interests in products or inventions. CONSULTANT shall bear all costs arising from the use of patented, copyrighted, trade secret or trademarked documents, materials, equipment, devices or processes in connection with its provision of the services and Written Products produced under this Agreement. In the event the use of any of the Written Products or other deliverables hereunder by the CITY is held to constitute an infringement and the use of any of the same is enjoined, CONSULTANT, at its expense, shall: (a) secure for CITY the right to continue using the Written Products and other deliverables by suspension of any injunction, or by procuring a license or licenses for CITY; Page 6 of 11 or (b) modify the Written Products and other deliverables so that they become non- infringing while remaining in compliance with the requirements of this Agreement. This covenant shall survive the termination of this Agreement. Upon termination, abandonment or suspension of the Project, the CONSULTANT shall deliver to the CITY all Written Products and other deliverables related to the Project. If CONSULTANT prepares a document on a computer, CONSULTANT shall provide CITY with said document both in a printed format and in an electronic format that follows accepted standards. ARTICLE 6 GENERAL PROVISIONS 6.1 Representation The CITY representative shall be its Information Technology Manager (IT Manager) or his or her designee, and a CONSULTANT representative shall be designated by CONSULTANT as the primary contact person for each party regarding performance of this Agreement. 6.2 Confidentiality As a public entity, CITY has some information that is considered "Public Information,"which is released to the general public on a website or in public meetings, or is otherwise available to the public pursuant to the provisions of the Public Records Act and other information that is considered "Confidential Information". As a technical services provider, CONTRACTOR has potential access to Human Resources records, personal information, attorney-client privileged communications and documents and draft and proprietary CITY information. For the purposes of this Agreement, "Confidential Information" is considered any information that is not Public Information. Information that has not already been released by the CITY to the public should be treated by the CONTRACTOR as "Confidential Information". a) CONTRACTOR shall take care to limit possible access to CITY'S Confidential Information within its own organization to its directors, officers, partners and/or employees having a need to know. b) Non-disclosure — Both parties agree that any operational, business or technical information obtained from the other, whether considered Confidential or non- Confidential shall not be disclosed to any third party(whether an individual, corporation, or other entity) without prior notice to the other Party. c) CONTRACTOR and CITY each agree that, except as otherwise provided herein or required by law, they shall keep such Confidential Information of the other party private and shall hold such Confidential Information in strictest confidence, and shall require their directors, officers, employees, representatives and advisors to keep such Confidential Information private and hold such Confidential Information in strictest confidence. Upon the termination of this Agreement for any reason, CONTACTOR and the City shall return to each other any Confidential Information of the other party that is capable of return. The provisions of this Section 6.2 shall survive the termination of this Agreement. Page 7 of 11 6.3 Personnel CONSULTANT represents that it has, or shall secure at its own expense, all personnel required to perform CONSULTANT's services under this Agreement. CONSULTANT shall make reasonable efforts to maintain the continuity of CONSULTANT's staff who are assigned to perform the services hereunder and shall obtain the approval of the Information Technology Manager(IT Manager) of all proposed staff members who will perform such services. CONSULTANT may associate with or employ associates or subcontractors in the performance of its services under this Agreement, but at all times shall be responsible for their services. 6.4 Conflicts of Interest CONSULTANT agrees not to accept any employment or representation during the term of this Agreement or within twelve(12) months after completion of the work under this Agreement which is or may likely make CONSULTANT "financially interested" (as provided in California Government Code Sections 1090 and 87100) in any decisions made by CITY on any matter in connection with which CONSULTANT has been retained pursuant to this Agreement. 6.5 Legal Action (a) Should either party to this Agreement bring legal action against the other, the validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California, excluding California's choice of law rules. Venue for any such action relating to this Agreement shall be in the Los Angeles County Superior Court. (b) If any legal action or other proceeding, including action for declaratory relief, is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default or misrepresentation in connection with this Agreement,the prevailing party shall be entitled to recover reasonable attorneys' fees, experts' fees, and other costs, in addition to any other relief to which the party may be entitled. (c) Should any legal action about a project between CITY and a party other than CONSULTANT require the testimony of CONSULTANT when there is no allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for its testimony and preparation to testify at the hourly rates in effect at the time of such testimony. 6.6 Assignment Neither this Agreement nor any part thereof shall be assigned by CONSULTANT without the prior written consent of the CITY. Any such purported assignment without written consent shall be null and void, and CONSULTANT shall hold harmless, defend and indemnify the CITY and its officers, officials, employees, agents and representatives with respect to any claim, demand or action arising from any unauthorized Page 8 of 11 assignment. Notwithstanding the above, CONSULTANT may use the services of persons and entities not in CONSULTANT's direct employ,when it is appropriate and customary to do so. CONSULTANT's use of subcontractors for additional services shall not be unreasonably restricted by the CITY provided CONSULTANT notifies the CITY in advance. 6.7 Fair Employment Practices/Equal Opportunity Acts In the performance of this Agreement, CONSULTANT shall comply with all applicable provisions of the California Fair Employment Practices Act (California Government Code Sections 12940-48) and the applicable equal employment provisions of the Civil Rights Act of 1964 (42 U.S.C. 200e-217), and the Americans with Disabilities Act of 1992 (42 U.S.C. § 11200, et seq.). 6.8 Independent Contractor CONSULTANT is and shall at all times remain, as to the CITY, a wholly independent contractor. Neither the CITY nor any of its agents shall have control over the conduct of CONSULTANT or any of the CONSULTANT's employees, except as herein set forth, and CONSULTANT is free to dispose of all portions of its time and activities which it is not obligated to devote to the CITY in such a manner and to such persons, firms, or corporations as the CONSULTANT wishes except as expressly provided in this Agreement. CONSULTANT shall have no power to incur any debt, obligation, or liability on behalf of the CITY or otherwise act on behalf of the CITY as an agent. CONSULTANT shall not, at any time or in any manner, represent that it or any of its agents, servants or employees, are in any manner agents, servants or employees of CITY. CONSULTANT agrees to pay all required taxes on amounts paid to CONSULTANT under this Agreement, and to indemnify and hold the CITY harmless from any and all taxes, assessments, penalties, and interest asserted against the CITY by reason of the independent contractor relationship created by this Agreement. CONSULTANT shall fully comply with the workers' compensation law regarding CONSULTANT and its employees. CONSULTANT further agrees to indemnify and hold the CITY harmless from any failure of CONSULTANT to comply with applicable workers' compensation laws. The CITY shall have the right to offset against the amount of any fees due to CONSULTANT under this Agreement any amount due to the CITY from CONSULTANT as a result of its failure to promptly pay to the CITY any reimbursement or indemnification arising under this Article. 6.9 Titles The titles used in this Agreement are for general reference only and are not part of the Agreement. 6.10 Entire Agreement This Agreement, including any other documents incorporated herein by specific reference, represents the entire and integrated agreement between CITY and Page 9 of 11 • CONSULTANT and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended, or provisions or breach may be waived, only by subsequent written agreement signed by both parties. 6.11 Construction In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement. 6.12 Non-Waiver of Terms, Rights and Remedies Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by the CITY of any payment to CONSULTANT constitute or be construed as a waiver by the CITY of any breach of covenant, or any default which may then exist on the part of CONSULTANT, and the making of any such payment by the CITY shall in no way impair or prejudice any right or remedy available to the CITY with regard to such breach or default. 6.13 Severability If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 6.14 Notice Except as otherwise required by law, any notice, request, direction, demand, consent, waiver, approval or other communication required or permitted to be given hereunder shall not be effective unless it is given in writing and shall be delivered (a) in person or (b) by certified mail, postage prepaid, and addressed to the parties at the addresses stated below, or at such other address as either party may hereafter notify the other in writing as aforementioned: To CITY: Responsible Person: Dan Landon, Information Technology Manager (IT Manager) City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275 Page 10 of 11 • To CONSULTANT: Responsible Person: Daniel Rico, Principal Oceanview Technologies LLC 2914 Ridgeland Rd. Torrance, CA 90505 A party may change its address by giving written notice to the other party. Thereafter, any notice or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery or other communication shall be deemed effective three (3) business days after it has been deposited in the United States mail. For purposes of communicating these time frames, weekends and federal, state, religious, County of Los Angeles or CITY holidays shall be excluded. No communication via facsimile or electronic mail shall be effective to give any such notice or other communication hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. . f Dated: 61— c`� - CONSULTANT BY: Its: Dated: CITY OF RANCHO PALOS VERDES A Municipal Corporation BY: ---A' Its: Acting City Manager ATT -ST fl (. '14•4_ tairiiez2Z-C„ C!TY CLERK Attachments: Exhibit A— Contract Employee / Service and Support Agreement— Craig Pettit, Michael Ramirez, James Pavlick, Dan Rico Page 11 of 11