CC SR 20210119 H - Prosum Contract AmendmentCITY COUNCIL MEETING DATE: 01/19/2021
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA TITLE:
Consideration and possible action to authorize Amendment No. 1 to the Professional
Services Agreement for contractual services with Prosum, Inc., approving the contract
assignment to Netrix, LLC.
RECOMMENDED COUNCIL ACTION:
(1) Authorize the City Manager to sign Amendment No. 1 to the Professional
Services Agreement for contractual services with Prosum, Inc., approving the
contract assignment to Netrix, LLC.
FISCAL IMPACT: N/A
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: Lukasz Buchwald, IT Manager
REVIEWED BY: Karina Bañales, Deputy City Manager
APPROVED BY: Ara Mihranian, AICP, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A.
B.
Prosum Contract Amendment No. 1 (page A-1)
July 16, 2019 staff report, including original agreement (page B-1)
BACKGROUND AND DISCUSSION:
Following the Information Technology Services and Support request for proposals
(RFP) issued on April 23, 2019, on July 16, 2019, the City Council authorized the Mayor
and City Clerk to enter into a new four-year Professional Services Agreement
(Agreement) with Prosum, Inc. for Managed IT Services (Attachment B).
On December 22, 2020, Prosum, Inc. (Prosum) was acquired by Netrix, LLC (Netrix).
Section 4.5 of the City’s current Agreement with Prosum, “Prohibition Against
Subcontracting or Assignment,” requires that any assignment of this contract is to be
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approved by the City. This amendment (Attachment A) includes an acknowledgment of
the assignment by Netrix, requiring Netrix to assume all responsibilities and liabilities
imposed by the Agreement. Beyond the assignment, there are no material terms of the
original Agreement being changed by this amendment.
Staff has been assured that there will be no changes to the dedicated RPV support
team and no negative impact on the level of services provided, Staff recommends
continuing to utilize the current IT Services contract and support model. Should there be
any undesirable effects of the Netrix acquisition, the City still has the six-month
convenience cancellation clause.
ALTERNATIVES:
In addition to the Staff recommendation, the following alternative action s are available
for the City Council’s consideration:
1. Do not authorize the City Manager to sign Amendment No. 1 to the
agreement.
2. Take other action, as deemed appropriate.
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DocuSign Envelope ID: 0E26D76F-8A6B-459C-8EF8-F510F87A0E3C
AMENDMENT NO. 1
TO AGREEMENT FOR CONTRACTUAL SERVICES
THIS AMENDMENT TO THE AGREEMENT FOR CONTRACTUAL SERVICES
(“Amendment No. 1”) by and between the CITY OF RANCHO PALOS VERDES, a municipal
corporation (“City”) and NETRIX, LLC., a California limited liability company (“Consultant”)
is effective as of , 2021.
RECITALS
A. City entered into an Agreement for Contractual Services with Prosum, Inc.
(“Prosum”) dated July 8, 2019 (“Agreement”) whereby Prosum agreed to provide
Information Technology services (the “Services”) for four years, for a Contract Sum of
$832,956.30. The Agreement provided for one additional two-year extension at the City’s
discretion.
B. On or about December 22, 2020, Prosum was purchased by Consultant Netrix,
LLC. Consultant is the successor-in-interest to Prosum.
C. City and Consultant now desire to amend the Agreement to reflect Consultant’s
status as successor-in-interest to Prosum and acceptance of assignment of the Agreement.
TERMS
1. Contract Changes. The Agreement is amended as provided herein. Deleted text is
indicated in strikethrough and added text in bold italics.
a. Exhibit “E”, Acknowledgement of Assignment, is hereby added to the
Agreement, as attached hereto.
2. Continuing Effect of Agreement. Except as amended by this Amendment No. 1,
all provisions of the Agreement shall remain unchanged and in full force and effect. From and
after the date of this Amendment No. 1, whenever the term “Agreement” appears in the Agreement,
it shall mean the Agreement, as amended by this Amendment No. 1 to the Agreement.
3. Affirmation of Agreement; Warranty Re Absence of Defaults. City and
Consultant each ratify and reaffirm each and every one of the respective rights and obligations
arising under the Agreement. Each party represents and warrants to the other that there have been
no written or oral modifications to the Agreement other than as provided herein. Each party
represents and warrants to the other that the Agreement is currently an effective, valid, and binding
obligation.
Consultant represents and warrants to City that, as of the date of this Amendment No. 1,
City is not in default of any material term of the Agreement and that there have been no events
that, with the passing of time or the giving of notice, or both, would constitute a material default
under the Agreement.
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City represents and warrants to Consultant that, as of the date of this Amendment No. 1,
Consultant is not in default of any material term of the Agreement and that there have been no
events that, with the passing of time or the giving of notice, or both, would constitute a material
default under the Agreement.
4. Adequate Consideration. The parties hereto irrevocably stipulate and agree that
they have each received adequate and independent consideration for the performance of the
obligations they have undertaken pursuant to this Amendment No. 1.
5. Authority. The persons executing this Amendment No. 1 on behalf of the parties
hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to
execute and deliver this Amendment No. 1 on behalf of said party, (iii) by so executing this
Amendment No. 1, such party is formally bound to the provisions of this Amendment No. 1, and
(iv) the entering into this Amendment No. 1 does not violate any provision of any other agreement
to which said party is bound.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
and year first-above written.
CITY:
CITY OF RANCHO PALOS VERDES, a
municipal corporation
ATTEST:
Ara Mihranian, City Manager
Emily Colborn, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
William W. Wynder, City Attorney
CONSULTANT:
NETRIX, LLC., a California limited liability
company
By:
Name:
Title:
Greg P. Richards
Chief Financial Officer
By:
Name:
Title:
Vytas Kasniunas
SVP Revenue Operations
Address: 2801 Lakeside Drive
Bannockburn, IL 60015
Two corporate officer signatures required when Consultant is a corporation, with one signature required from
each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any
Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT’S SIGNATURES
SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS
MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR
REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
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01203.0001/689581.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On , 2021 before me, , personally appeared , proved to me on the
basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature:
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form .
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
TITLE(S)
TITLE OR TYPE OF DOCUMENT
PARTNER(S) LIMITED
GENERAL
NUMBER OF PAGES
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
SIGNER(S) OTHER THAN NAMED ABOVE
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01203.0001/689581.1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On , 2021 before me, , personally appeared , proved to me on the
basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature:
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form .
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLE(S)
PARTNER(S) LIMITED
GENERAL NUMBER OF PAGES
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER DATE OF DOCUMENT
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES)) SIGNER(S) OTHER THAN NAMED ABOVE
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DocuSign Envelope ID: 0E26D76F-8A6B-459C-8EF8-F510F87A0E3C
01203.0001/689581.1
Exhibit “E ”
Acknowledgment of Assignment
THIS ACKNOWLEDGMENT OF ASSIGNMENT (“Assignment”) by and between the
CITY OF RANCHO PALOS VERDES, a California municipal corporation (“City”), and
NETRIX, LLC., a California limited liability company (“Netrix”), is effective as of the January
, 2021 (“Effective Date”).
A. City and Prosum, Inc. (“Prosum”), entered into an Agreement for information
technology services dated July 8, 2019 (“Agreement”).
B. Prosum has informed the City that Prosum has assigned to Netrix and Netrix has
assumed from Prosum all of Prosum’s rights and obligations under the On-Call Agreement.
D. Prosum and Netrix have requested that City acknowledge and accept this
assignment, and City is willing to do so.
NOW, THEREFORE, in consideration of the mutual promises of the parties hereto and for
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, City and Netrix agree as follows:
TERMS
Representations. Netrix represents and warrants the following:
a. That Prosum has assigned to Netrix and Netrix has assumed from Prosum all of
Prosum’s rights and obligations under the Agreement;
b. That Netrix has sufficient experience and expertise to perform the obligations of
Prosum under the Agreement;
c. That, to the best of Netrix’s knowledge, no default presently exists under the
Agreement and no state of facts exists which would constitute a default under the
Agreement; and
d. That the terms of this Assignment are consistent with the terms of all agreements
between Prosum and Netrix related to the assignment of the Agreement.
2. Assumption of Rights and Obligations. Netrix hereby accepts all of Prosum’s interests and
rights under the Agreement and assumes and agrees to perform all of Prosum’s obligations
under the Agreement in accordance with the terms, covenants, and conditions thereof, on,
from, and after the Effective Date. Netrix acknowledges that (i) it has received a copy of
the Agreement and is fully familiar with its terms, and (ii) City has made no representations
concerning the Agreement except as expressly provided herein. Netrix further
acknowledges and agrees that the Agreement shall control the obligations of Netrix and
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01203.0001/689581.1
City, and that the Agreement shall control over any inconsistent provision in any agreement
that may exist between Prosum and Netrix .
3. Payment of Invoices. Netrix represents and warrants that per its agreement with Prosum,
invoices for work performed under the Agreement up through January 1, 2021, shall be
paid to Prosum, and invoices for work performed after such date shall be paid to Netrix .
City will pay all invoices accordingly in reliance on this representation. Netrix agrees to
indemnify, defend, and hold harmless City from and against any claim by Prosum for
payment of any invoice for work performed under the Agreement after January 1, 2021.
5. Due Execution. The person(s) executing this Assignment on behalf of the parties hereto
warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to
execute and deliver this Assignment on behalf of said party, (iii) by so executing this
Assignment, such party is formally bound to the provisions of this Assignment, and (iv)
that entering into this Assignment does not violate any provision of any other agreement
to which said party is bound.
6. Full Force and Effect. The parties further agree that, except as specifically provided in this
Assignment, the terms of the Agreement shall remain unchanged and in full force and
effect.
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01203.0001/689581.1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
and year first-above written.
CITY:
CITY OF RANCHO PALOS VERDES, a municipal
corporation
ATTEST:
Ara Mihranian, City Manager
Emily Colborn, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
William W. Wynder, City Attorney
NETRIX, LLC., a California limited liability
company
By:
Name:
Title:
Greg P. Richards
Chief Financial Officer
By:
Name:
Title:
Vytas Kasniunas
SVP Revenue Operations
Address: 2801 Lakeside Drive
Bannockburn, IL 60015
Two corporate officer signatures required when Consultant is a corporation, with one signature required from
each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any
Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT’S SIGNATURES
SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS
MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR
REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
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RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 07/16/2019
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA DESCRIPTION:
Consideration and possible action to reject all bids for the Information Technology
Services and Support Request for Proposals (RFP) issued on April 23, 2019 and
approve entering into a new, four-year agreement with the current Managed IT Services
Provider, Prosum Inc.
RECOMMENDED COUNCIL ACTION:
(1) Reject all bids for the Information Technology Services and Support RFP issued
on April 23, 2019; and
(2) Authorize the Mayor and City Clerk to enter into a new four-year contract with
Prosum, Inc. for Managed IT Services.
FISCAL IMPACT:
Amount Budgeted: $120,300
Additional Appropriation: $78,789
Account Number(s): 101-400-1470-5101 (Information Technology, Professional Technical Services)
ORIGINATED BY: Lukasz Buchwald, IT Manager
REVIEWED BY: Gabriella Yap, Deputy City Manager
APPROVED BY: Doug Willmore, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. Prosum’s four-year Contract for IT Managed Services (page A-1)
BACKGROUND AND DISCUSSION:
The City of Rancho Palos Verdes has used an outsourcing model for information
technology (IT) services since the late 1990s. Before the most recent 2015 RFP for IT
services was awarded to Prosum, Inc., PVNET provided IT Services for over 18 years.
The City’s IT Department consists of an IT manager, who oversees all programs and
activities of the City’s IT systems and infrastructure, and a geographic information
system (GIS) analyst, the administrator of the City’s GIS program. All of the day-to-day
technology support for the City’s full-time and part-time staff, reactive and proactive
server and network infrastructure, desktop support and maintenance, 24/7 monitoring
and emergency/after-hours support has been outsourced to an IT managed service
provider (MSP).
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To ensure that the City is getting the best value for the outsourced IT services and to
explore the market for possible reduction in the overall IT support cost, on April 23,
2019, an RFP for IT Services and Support was issued. In an attempt to achieve a
significant reduction in the support cost (which currently includes an IT desktop support
engineer onsite at City Hall every day of the week plus an additional two days per week
for an IT support engineer), the City solicited proposals that significantly lowered the
required onsite presence and shifted emergency and after-hours support to a billable
model.
CONCLUSION:
Fourteen prospective bidders participated in an online vendor conference, during which
the City’s IT Manager went over the required RFP documents, desired support model,
the City’s IT environment and answered submitted questions.
A preliminary review of all the submitted proposals and pricing indicated that none of the
options would provide the anticipated savings. Even the lowest received proposal would
provide a cost reduction of only about $15,000 per year in base services. Staff
determined that those potential savings are not worth the additional disruption to
productivity associated with changing the service provider IT and shifting the services
support model. Signing a new contract with the incumbent vendor and maintaining a
similar level of service and onsite presence would ensure stability and continuity that
would ultimately help the City’s staff maintain a high level of productivity.
The only way to achieve the anticipated cost reduction would be to go a fully remote IT
support model, which would very likely negatively impact City staff’s efficiency. Remote
IT assistance, while efficient, does not provide the immediate, dedicated suppo rt
associated with having someone physically onsite and available to answer questions or
assist with issues.
Therefore, Staff recommends the City Council authorize the Mayor and City Clerk to
enter into a new four-year contract with Prosum, Inc. for Managed IT Services for a total
cost of $832,956.30. Prosum did not charge any rate increases in its last four-year
agreement with the City. This agreement reflects a 5% increase the first year, and 3%
each year for the remaining three years.
ALTERNATIVES:
In addition to the Staff recommendation(s), the following alternative action(s) is/are
available for the City Council’s consideration:
1. Direct the Staff to continue with the RFP process.
2. Take other action as deemed appropriate by the City Council.
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CONTRACT SERVICES AGREEMENT
By and Between
CITY OF RANCHO PALOS VERDES
and
PROSUM INC.
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AGREEMENT FOR CONTRACT SERVICES
BETWEEN THE CITY OF RANCHO PALOS VERDES AND
PROSUM INC.
THIS AGREEMENT FOR CONTRACT SERVICES (herein “Agreement”) is made and
entered into this ____ day of ________, 2019 by and between the City of Rancho Palos Verdes, a
California municipal corporation (“City”) and Prosum Inc, a California corporation.
(“Consultant ”). City and Consultant may be referred to, individually or collectively, as “Party” or
“Parties.”
RECITALS
A. Pursuant to the City of Rancho Palos Verdes Municipal Code, City has authority to
enter into and execute this Agreement.
B. The Parties desire to formalize the selection of Consultant for performance of those
services defined and described particularly in Article 1 of this Agreement and desire that the terms
of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the
Parties and contained herein and other consideration, the value and adequ acy of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1. SERVICES OF CONSULTANT
1.1 Scope of Services.
In compliance with all terms and conditions of this Agreement, the Consultant shall provide
those services specified in the “Scope of Services” attached hereto as Exhibit “A” and incorporated
herein by this reference, which may be referred to herein as the “services” or “work” hereunder.
As a material inducement to the City entering into this Agreement, Consultant represents and
warrants that it has the qualifications, experience, and facilities necessary to properly perform the
services required under this Agreement in a thorough, competent, and professional manner, and is
experienced in performing the work and services contemplated herein. Consultant shall at all times
faithfully, competently and to the best of its ability, experience and talent, perform all services
described herein. Consultant covenants that it shall follow the highest professional standards in
performing the work and services required hereunder and that all materials will be both of good
quality as well as fit for the purpose intended. For purposes of this Agreement, the phrase “highest
professional standards” shall mean those standards of practice recognized by one or more first -
class firms performing similar work under similar circumstances.
1.2 Consultant’s Proposal.
The Scope of Service shall include the Consultant’s scope of work or bid which shall be
incorporated herein by this reference as though fully set forth herein. In the event of any
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inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement
shall govern.
1.3 Compliance with Law.
Consultant shall keep itself informed concerning, and shall render all services hereunder in
accordance with, all ordinances, resolutions, statutes, rules, and regulations of the City and any
Federal, State or local governmental entity having jurisdiction in effect at the time service is
rendered.
1.4 California Labor Law.
If the Scope of Services includes any “public work” or “maintenance work,” as those terms
are defined in California Labor Code section 1720 et seq. and California Code of Regulations,
Title 8, Section 16000 et seq., and if the total compensation is $1,000 or more, Consultant shall
pay prevailing wages for such work and comply with the requirements in California Labor Code
section 1770 et seq. and 1810 et seq., and all other applicable laws, including the following
requirements:
(a) Public Work. The Parties acknowledge that some or all of the work to be
performed under this Agreement is a “public work” as defined in Labor Code Section 1720 and
that this Agreement is therefore subject to the requirements of Division 2, Part 7, Chapter 1
(commencing with Section 1720) of t he California Labor Code relating to public works contracts
and the rules and regulations established by the Department of Industrial Relations (“DIR”)
implementing such statutes. The work performed under this Agreement is subject to compliance
monitoring and enforcement by the DIR. Consultant shall post job site notices, as prescribed by
regulation.
(b) Prevailing Wages. Consultant shall pay prevailing wages to the extent
required by Labor Code Section 1771. Pursuant to Labor Code Section 1773.2, copies of the
prevailing rate of per diem wages are on file at City Hall and will be made available to any
interested party on request. By initiating any work under this Agreement, Consultant
acknowledges receipt of a copy of the Department of Industrial Relations (DIR ) determination of
the prevailing rate of per diem wages, and Consultant shall post a copy of the same at each job site
where work is performed under this Agreement.
(c) Penalty for Failure to Pay Prevailing Wages. Consultant shall comply with
and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment
of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The
Consultant shall, as a penalty to the City, forfeit two hundred dollars ($200) for each calendar day,
or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for
the work or craft in which the worker is employed for any public work done pursuant to this
Agreement by Consultant or by any subcontractor.
(d) Payroll Records. Consultant shall comply with and be bound by the
provisions of Labor Code Section 1776, which requires Consultant and each subconsultant to: keep
accurate payroll records and verify such records in writing under penalty of perjury, a s specified
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in Section 1776; certify and make such payroll records available for inspection as provided by
Section 1776; and inform the City of the location of the records.
(e) Apprentices. Consultant shall comply with and be bound by the provisions
of Labor Code Sections 1777.5, 1777.6, and 1777.7 and California Code of Regulations Title 8,
Section 200 et seq. concerning the employment of apprentices on public works projects. Consultant
shall be responsible for compliance with these aforementioned Sections for all apprenticeable
occupations. Prior to commencing work under this Agreement, Consultant shall provide City with
a copy of the information submitted to any applicable apprenticeship program. Within sixty (60)
days after concluding work pursuant to this Agreement, Consultant and each of its subconsultants
shall submit to the City a verified statement of the journeyman and apprentice hours performed
under this Agreement.
(f) Eight-Hour Work Day. Consultant acknowledges that eight (8) hours labor
constitutes a legal day's work. Consultant shall comply with and be bound by Labor Code Section
1810.
(g) Penalties for Excess Hours. Consultant shall comply with and be bound by
the provisions of Labor Code Section 1813 concerning penalties for workers who work excess
hours. The Consultant shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each
worker employed in the performance of this Agreement by the Consultant or by any subcontractor
for each calendar day during which such worker is required or permitted to work more tha n eight
(8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of t he
provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code
section 1815, work performed by employees of Consultant in excess of eight (8) hours per day,
and forty (40) hours during any one week shall be permitted upon public work upon compensation
for all hours worked in excess of 8 hours per day at not less than one and one-half (1½) times the
basic rate of pay.
(h) Workers’ Compensation. California Labor Code Sections 1860 and 3700
provide that every employer will be required to secure the payment of compensation to its
employees if it has employees. In accordance with the provisions of California Labor Code Section
1861, Consultant certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require
every employer to be insured against liability for workers' compensation or to
undertake self-insurance in accordance with the provisions of that code, and I will
comply with such provisions before commencing the performance of the work of
this contract.”
Consultant ’s Authorized Initials ________
(i) Consultant ’s Responsibility for Subcontractors. For every subcontractor
who will perform work under this Agreement, Consultant shall be responsible for such
subcontractor's compliance with Division 2, Part 7, Chapter 1 (commencing with Section 1720) of
the California Labor Code, and shall make such compliance a requirement in any contract with
any subcontractor for work under this Agreement. Consultant shall be required to take all actions
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necessary to enforce such contractual provisions and ensure subcontractor's compliance, including
without limitation, conducting a review of the certified payroll records of the subcontractor on a
periodic basis or upon becoming aware of the failure of the subcontractor to pay his or her workers
the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or
rectify any such failure by any subcontractor.
1.5 Licenses, Permits, Fees and Assessments.
Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as
may be required by law for the performance of the services required by this Agreement. Consultant
shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties
and interest, which may be imposed by law and arise from or are necessary for the Consultant’s
performance of the services required by this Agreement, and shall indemnify, defend and hold
harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes,
penalties or interest levied, assessed or imposed against City hereunder.
1.6 Familiarity with Work.
By executing this Agreement, Consultant warrants that Consultant (i) has thoroughly
investigated and considered the scope of services to be performed, (ii) has carefully considered
how the services should be performed, and (iii) fully understands the facilities, difficulties and
restrictions attending performance of the services under this Agreement. If the services involve
work upon any site, Consultant warrants that Consultant has or will investigate the site and is or
will be fully acquainted with the conditions there existing, prior to commencement of services
hereunder. Should the Consultant discover any latent or unknown conditions, which will materially
affect the performance of the services hereunder, Consultant shall immediately inform the City of
such fact and shall not proceed except at Consultant’s risk until written instructions are received
from the Contract Officer.
1.7 Care of Work.
The Consultant shall adopt reasonable methods during the life of the Agreement to furnish
continuous protection to the work, and the equipment, materials, papers, documents, plans, studies
and/or other components thereof to prevent losses or damages, and shall be responsible for all such
damages, to persons or property, until acceptance of the work by City, except such losses or
damages as may be caused by City’s own negligence.
1.8 Further Responsibilities of Parties.
Both parties agree to use reasonable care and diligence to perform their respective
obligations under this Agreement. Both parties agree to act in good faith to execute all instruments,
prepare all documents and take all actions as may be reasonably necessary to carry out the purposes
of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of
the other.
1.9 Additional Services.
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City shall have the right at any time during the performance of the services, without
invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or
make changes by altering, adding to or deducting from said work. No such extra work may be
undertaken unless a written order is first given by the Contract Officer to the Consultant,
incorporating therein any adjustment in (i) the Contract Sum for the actual costs of the extra work,
and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written
approval of the Consultant . Any increase in compensation of up to ten percent (10%) of the
Contract Sum or $25,000, whichever is less; or, in the time to perform of up to one hundred eighty
(180) days, may be approved by the Contract Officer. Any greater increases, taken either separately
or cumulatively, must be approved by the City Council. It is expressly understood by Consultant
that the provisions of this Section shall not apply to services specifically set forth in the Scope of
Services. Consultant hereby acknowledges that it accepts the risk that the services to be provided
pursuant to the Scope of Services may be more costly or time consuming than Consultant
anticipates and that Consultant shall not be entitled to additional compensation therefor. City may
in its sole and absolute discretion have similar work done by other Consultants. No claims for an
increase in the Contract Sum or time for performance shall be valid unless the procedures
established in this Section are followed.
1.10 Special Requirements.
Additional terms and conditions of this Agreement, if any, which are made a part hereof
are set forth in the “Special Requirements” attached hereto as Exhibit “B” and incorporated herein
by this reference. In the event of a conflict between the provis ions of Exhibit “B” and any other
provisions of this Agreement, the provisions of Exhibit “B” shall govern.
ARTICLE 2. COMPENSATION AND METHOD OF PAYMENT.
2.1 Contract Sum.
Subject to any limitations set forth in this Agreement, City agrees to pay Consultant the
amounts specified in the “Schedule of Compensation” attached hereto as Exhibit “C” and
incorporated herein by this reference. The total compensation, including reimbursement for actual
expenses, shall not exceed $832,956.30 (Eight Hundred Thousand Nine Hundred Fifty Six
Dollars and Thirty Cents) (the “Contract Sum”), unless additional compensation is approved
pursuant to Section 1.9.
2.2 Method of Compensation.
The method of compensation may include: (i) a lump sum payment upon completion; (ii)
payment in accordance with specified tasks or the percentage of completion of the services, less
contract retention; (iii) payment for time and materials based upon the Consultant’s rates as
specified in the Schedule of Compensation, provided that (a) time estimates are provided for the
performance of sub tasks, (b) contract retention is maintained, and (c) the Contract Sum is not
exceeded; or (iv) such other methods as may be specified in Exhibit “C”, Schedule of
Compensation.
2.3 Reimbursable Expenses.
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Compensation may include reimbursement for actual and necessary expenditures for
reproduction costs, telephone expenses, and travel expenses approved by the Contract Officer in
advance, or actual subcontractor expenses of an approved subcontractor pursuant to Section 4.5,
and only if specified in the Schedule of Compensation. The Contract Sum shall include the
attendance of Consultant at all project meetings reasonably deemed necessary by the City.
Coordination of the performance of the work with City is a critical component of the services. If
Consultant is required to attend additional meetings to facilitate such coordination, Consultant
shall not be entitled to any additional compensation for attending said meetings.
2.4 Invoices.
Each month Consultant shall furnish to City an original invoice for all work performed and
expenses incurred during the preceding month in a form approved by City’s Director of Finance.
By submitting an invoice for payment under this Agreement, Consultant is certifying compliance
with all provisions of the Agreement. The invoice shall contain all information specified in Exhibit
“C”, and shall detail charges for all necessary and actual expenses by the following categories:
labor (by sub-category), travel, materials, equ ipment, supplies, and sub-contractor contracts. Sub-
contractor charges shall also be detailed by such categories. Consultant shall not invoice City for
any duplicate services performed by more than one person.
City shall independently review each invoice submitted by the Consultant to determine
whether the work performed and expenses incurred are in compliance with the provisions of this
Agreement. Except as to any charges for work performed or expenses incurred by Consultant
which are disputed by City, or as provided in Section 7.3, City will use its best efforts to cause
Consultant to be paid within forty-five (45) days of receipt of Consultant’s correct and undisputed
invoice; however, Consultant acknowledges and agrees that due to City warrant run proce dures,
the City cannot guarantee that payment will occur within this time period. In the event any charges
or expenses are disputed by City, the original invoice shall be returned by City to Consultant for
correction and resubmission. Review and payment by City for any invoice provided by the
Consultant shall not constitute a waiver of any rights or remedies provided herein or any applicable
law.
2.5 Waiver.
Payment to Consultant for work performed pursuant to this Agreement shall not be deemed
to waive any defects in work performed by Consultant.
ARTICLE 3. PERFORMANCE SCHEDULE
3.1 Time of Essence.
Time is of the essence in the performance of this Agreement.
3.2 Schedule of Performance.
Consultant shall commence the services pursuant to this Agreement upon receipt of a
written notice to proceed and shall perform all services within the time period(s) established in the
“Schedule of Performance” attached hereto as Exhibit “D” and incorporated herein by this
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reference. When requested by the Consultant, extensions to the time period(s) specified in the
Schedule of Performance may be approved in writing by the Contract Officer but not exceeding
one hundred eighty (180) days cumulatively.
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the
services rendered pursuant to this Agreement shall be extended because of any delays due to
unforeseeable causes beyond the control and without the fault or negligence of the Consultant,
including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires,
earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars,
litigation, and/or acts of any governmental agency, including the City, if the Consultant shall
within ten (10) days of the commencement of such delay notify the Contract Officer in writing of
the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and
extend the time for performing the services for the per iod of the enforced delay when and if in the
judgment of the Contract Officer such delay is justified. The Contract Officer’s determination shall
be final and conclusive upon the parties to this Agreement. In no event shall Consultant be entitled
to recover damages against the City for any delay in the performance of this Agreement, however
caused, Consultant ’s sole remedy being extension of the Agreement pursuant to this Section.
3.4 Term.
Unless earlier terminated in accordance with Article 7 of this Agreement, this Agreement
shall continue in full force and effect until completion of the services but not exceeding four (4)
years from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit
“D”). The City may, in its sole discretion, extend the Term for one (1) additional two-year term
with an annual increase of 3% each year .
ARTICLE 4. COORDINATION OF WORK
4.1 Representatives and Personnel of Consultant.
The following principals of Consultant (“Principals”) are hereby designated as being the
principals and representatives of Consultant authorized to act in its behalf with respect to the work
specified herein and make all decisions in connection therewith:
Deepika Bhatia Vice President, IT Professional Services
(Name) (Title)
Ravi Chatwani CO-CEO_______________________________
(Name) (Title)
It is expressly understood that the experience, knowledge, capability and reputation of the
foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Consultant and devoting sufficient time to personally supervise the
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services hereunder. All personnel of Consultant, and any authorized agents, shall at all times be
under the exclusive direction and control of the Principals. For purposes of this Agreement, the
foregoing Principals may not be replaced nor may their responsibilities be substantially reduced
by Consultant without the express written approval of City. Additionally, Consultant shall utilize
only competent personnel to perform services pursuant to this Agreement. Consultant shall make
every reasonable effort to maintain the stability and continuity of Consultant’s staff and
subcontractors, if any, assigned to perform the services required under this Agreement. Consultant
shall notify City of any changes in Consultant’s staff and subcontractors, if any, assigned to
perform the services required under this Agreement, prior to a nd during any such performance.
4.2 Status of Consultant.
Consultant shall have no authority to bind City in any manner, or to incur any obligation,
debt or liability of any kind on behalf of or against City, whether by contract or otherwise, unless
such authority is expressly conferred under this Agreement or is otherwise expressly conferred in
writing by City. Consultant shall not at any time or in any manner represent that Consultant or any
of Consultant ’s officers, employees, or agents are in any manner officials, officers, employees or
agents of City. Neither Consultant , nor any of Consultant’s officers, employees or agents, shall
obtain any rights to retirement, health care or any other benefits which may otherwise accrue to
City’s employees. Consultant expressly waives any claim Consultant may have to any such rights.
4.3 Contract Officer.
The Contract Officer shall be Lukasz Buchwald, IT Manager or such person as may be
designated by the City Manager. It shall be the Consultant’s responsibility to assure that the
Contract Officer is kept informed of the progress of the performance of the services and the
Consultant shall refer any decisions, which must be made by City to the Contract Officer. Unless
otherwise specified herein, any approval of City required hereunder shall mean the approval of the
Contract Officer. The Contract Officer shall have authority, if specified in writing by the City
Manager, to sign all documents on behalf of the City required hereunder to carry out the terms of
this Agreement.
4.4 Independent Consultant.
Neither the City nor any of its emplo yees shall have any control over the manner, mode or
means by which Consultant , its agents or employees, perform the services required herein, except
as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision or
contro l of Consultant ’s employees, servants, representatives or agents, or in fixing their number,
compensation or hours of service. Consultant shall perform all services required herein as an
independent contractor of City and shall remain at all times as to City a wholly independent
contractor with only such obligations as are consistent with that role. Consultant shall not at any
time or in any manner represent that it or any of its agents or employees are agents or employees
of City. City shall not in any way or for any purpose become or be deemed to be a partner of
Consultant in its business or otherwise or a joint venturer or a member of any joint enterprise with
Consultant .
4.5 Prohibition Against Subcontracting or Assignment .
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The experience, knowledge, capability and reputation of Consultant, its principals and
employees were a substantial inducement for the City to enter into this Agreement. Therefore,
Consultant shall not contract with any other entity to perform in whole or in part the services
required hereunder without the express written approval of the City. In addition, neither this
Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or
encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise,
without the prior written approval of City. Transfers restricted hereunder shall include the transfer
to any person or group of persons acting in concert of more than twenty five percent (25%) of the
present ownership and/or control of Consultant, taking all transfers into account on a cumulative
basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this
Agreement shall be void. No approved transfer shall release the Consultant or any surety of
Consultant of any liability hereunder without the express consent of City.
ARTICLE 5. INSURANCE AND INDEMNIFICATION
5.1 Insurance Coverages.
Without limiting Consultant’s indemnification of City, and prior to commencement of any
services under this Agreement, Consultant shall obtain, provide and maintain at its own expense
during the term of this Agreement, policies of insurance of the type and amounts described below
and in a form satisfactory to City.
(a) General liability insurance. Consultant shall maintain commercial general
liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in
an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily
injury, personal injury, and property damage. The policy must include contractual liability that has
not been amended. Any endorsement restricting standard ISO “insured contract” language will not
be accepted.
(b) Automobile liability insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and
property damage for all activities of the Consultant arising out of or in connection with Services
to be performed under this Agreement, including coverage for any o wned, hired, non-owned or
rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
(c) Professional liability (errors & omissions) insurance. Consultant shall
maintain professional liability insurance that covers the Services to be performed in connection
with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any
policy inception date, continuity date, or retroactive date must be before the effective date of this
Agreement and Consulta nt agrees to maintain continuous coverage through a period no less than
three (3) years after completion of the services required by this Agreement.
(d) Workers’ compensation insurance. Consultant shall maintain Workers’
Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at
least $1,000,000).
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(e) Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall include all of the requirements stated herein.
(f) Additional Insurance. Policies of such other insurance, as may be required
in the Special Requirements in Exhibit “B”.
5.2 General Insurance Requirements.
(a) Proof of insurance. Consultant shall provide certificates of insurance to City
as evidence of the insurance coverage required herein, along with a waiver of subrogation
endorsement for workers’ compensation. Insurance certificates and endorsements must be
approved by City’s Risk Manager prior to commencement of performance. Current certification
of insurance shall be kept on file with City at all times during the term of this Agreement. City
reserves the right to require complete, certified copies of all required insurance policies, at any
time.
(b) Duration of coverage. Consultant shall procure and maintain for the
duration of this Agreement insurance against claims for injuries to per sons or damages to property,
which may arise from or in connection with the performance of the Services hereunder by
Consultant, its agents, representatives, employees or subconsultants.
(c) Primary/noncontributing. Coverage provided by Consultant shall be
primary and any insurance or self-insurance procured or maintained by City shall not be required
to contribute with it. The limits of insurance required herein may be satisfied by a combination of
primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be
endorsed to contain a provision that such coverage shall also apply on a primary and non-
contributory basis for the benefit of City before the City’s own insurance or self-insurance shall
be called upon to protect it as a named insured.
(d) City’s rights of enforcement . In the event any policy of insurance required
under this Agreement does not comply with these specifications or is canceled and not replaced,
City has the right but not the duty to obtain the insurance it deems necessary and any premium
paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient
to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(e) Acceptable insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of insurance or
that is on the List of Approved Surplus Line Insurers in the State of California, with an assigned
policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in
accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the
City’s Risk Manager.
(f) Waiver of subrogation. All insurance coverage maintained or procured
pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or
appointed officers, agents, officials, employees and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance with these specifications to
waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery
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against City, and shall require similar written express waivers and insurance clauses from each of
its subconsultants.
(g) Enforcement of contract provisions (non-estoppel). Consultant
acknowledges and agrees that any actual or alleged failure on the part of the City to inform
Consultant of non-compliance with any requirement imposes no additional obligations on the City
nor does it waive any rights hereunder.
(h) Requirements not limiting. Requirements of specific coverage features or
limits contained in this section are not intended as a limitation on coverage, limits or other
requirements, or a waiver of any coverage norma lly provided by any insurance. Specific reference
to a given coverage feature is for purposes of clarification only as it pertains to a given issue and
is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or
a waiver of any type. If the Consultant maintains higher limits than the minimums shown above,
the City requires and shall be entitled to coverage for the higher limits maintained by the
Consultant. Any available insurance proceeds in excess of the specifie d minimum limits of
insurance and coverage shall be available to the City.
(i) Notice of cancellation. Consultant agrees to oblige its insurance agent or
broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for
nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each
required coverage.
(j) Additional insured status. General liability policies shall provide or be
endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall
be additional insureds under such policies. This provision shall also apply to any excess/umbrella
liability policies.
(k) Prohibition of undisclosed coverage limitations. None of the coverages
required herein will be in compliance with these requirements if they include any limiting
endorsement of any kind that has not been first submitted to City and approved of in writing.
(l) Separation of insureds. A severability of interests provision must apply for
all additional insured s ensuring that Consultant’s insurance shall apply separately to each insured
against whom claim is made or suit is brought, except with respect to the insurer’s limits of
liability. The policy(ies) shall not contain any cross-liability exclusions.
(m) Pass through clause. Consultant agrees to ensure that its subconsultants,
subcontractors, and any other party involved with the project who is brought onto or involved in
the project by Consultant, provide the same minimum insurance coverage and endorsements
required of Consultant. Consultant agrees to monitor and review all such coverage and assumes
all responsibility for ensuring that such coverage is provided in conformity with the requirements
of this section. Consultant agrees that upon request, all agree ments with consultants,
subcontractors, and others engaged in the project will be submitted to City for review.
(n) Agency’s right to revise specifications. The City reserves the right at any
time during the term of the contract to change the amounts and t ypes of insurance required by
giving the Consultant ninety (90) days advance written notice of such change. If such change
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results in substantial additional cost to the Consultant, the City and Consultant may renegotiate
Consultant’s compensation.
(o) Self-insured retentions. Any self-insured retentions must be declared to and
approved by City. City reserves the right to require that self-insured retentions be eliminated,
lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these
specifications unless approved by City.
(p) Timely notice of claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from Consultant’s performance
under this Agreement, and that involve or may involve coverage under any of the required liability
policies.
(q) Additional insurance. Consultant shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own judgment may be necessary
for its proper protection and prosecution of the work.
5.3 Indemnification.
To the full extent permitted by law, Consultant agrees to indemnify, defend and hold
harmless the City, its officers, employees and agents (“Indemnified Parties”) against, and will hold
and save them and each of them harmless from, any and all actions, either judicial, administrative,
arbitration or regulatory claims, damages to persons or property, losses, costs, penalties,
obligations, errors, omissions or liabilities whether actual or threatened (herein “claims or
liabilities”) that may be asserted or claimed by any person, firm or entity arising out of or in
connection with the negligent performance of the work, operations or activities provided herein of
Consultant, its officers, employees, agents, subcontractors, or invitees, or any individual or entity
for which Consultant is legally liable (“indemnit ors”), or arising from Consultant’s or indemnitors’
reckless or willful misconduct, or arising from Consultant’s or indemnit ors’ negligent performance
of or failure to perform any term, provision, covenant or condition of this Agreement, and in
connection therewith:
(a) Consultant will defend any action or actions filed in connection with any
of said claims or liabilities and will pay all costs and expenses, including legal costs and
attorneys’ fees incurred in connection therewith;
(b) Consultant will promptly pay any judgment rendered against the City, its
officers, agents or employees for any such claims or liabilities arising out of or in connection
with the negligent performance of or failure to perform such work, operations or activities of
Consultant hereunder; and Consultant agrees to save and hold the City, its officers, agents, and
employees harmless therefrom;
(c) In the event the City, its officers, agents or employees is made a party to
any action or proceeding filed or prosecuted against Consultant for such damages or other claims
arising out of or in connection with the negligent performance of or failure to per form the work,
operation or activities of Consultant hereunder, Consultant agrees to pay to the City, its officers,
agents or employees, any and all costs and expenses incurred by the City, its officers, agents or
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employees in such action or proceeding, including but not limited to, legal costs and attorneys’
fees.
Consultant shall incorporate similar indemnity agreements with its subcontractors and if it
fails to do so Consultant shall be fully responsible to indemnify City hereunder therefore, and
failure of City to monitor compliance with these provisions shall not be a waiver hereof. This
indemnification includes claims or liabilities arising from any negligent or wrongful act, error or
omission, or reckless or willful misconduct of Consultant in the performance of professional
services hereunder. The provisions of this Section do not apply to claims or liabilities occurring as
a result of City’s sole negligence or willful acts or omissions, but, to the fullest extent permitted
by law, shall apply to claims and liabilities resulting in part from City’s negligence, except that
design professionals’ indemnity hereunder shall be limited to claims and liabilities arising out of
the negligence, recklessness or willful misconduct of the design professional. The indemnity
obligation shall be binding on successors and assigns of Consultant and shall survive termination
of this Agreement.
ARTICLE 6. RECORDS, REPORTS, AND RELEASE OF INFORMATION
6.1 Records.
Consultant shall keep, and require subcontractors to keep, such ledgers, books of accounts,
invoices, vouchers, canceled checks, reports, studies or other documents relating to the
disbursements charged to City and services performed hereunder (the “books and records”), as
shall be necessary to perform the services required by this Agreement and enable the Contract
Officer to evaluate the performance of such services. Any and all such documents shall be
maintained in accordance with generally accepted accounting principles and shall be complete and
detailed. The Contract Officer shall have full and free access to such books and records at all times
during normal business hours of City, including the right to inspect, copy, audit and make records
and transcripts from such records. Such records shall be maintained for a period of three (3) years
following completion of the services hereunder, and the City shall have access to such records in
the event any audit is required. In the event of dissolution of Consultant’s business, custody of the
books and records may be given to City, and access shall be provided by Consultant’s successor
in interest. Notwithstanding the above, the Consultant shall fully cooperate with the City in
providing access to the books and records if a public records request is made and disclosure is
required by law including but not limited to the California Public Records Act.
6.2 Reports.
Consultant shall periodically prepare and submit to the Contract Officer such reports
concerning the performance of the services required by this Agreement as the Contract Officer
shall require. Consultant hereby acknowledges that the City is greatly concerned about the cost of
work and services to be performed pursuant to this Agreement. For this reason, Consultant agrees
that if Consultant becomes aware of any facts, circu mstances, techniques, or events that may or
will materially increase or decrease the cost of the work or services contemplated herein or, if
Consultant is providing design services, the cost of the project being designed, Consultant shall
promptly notify t he Contract Officer of said fact, circumstance, technique or event and the
estimated increased or decreased cost related thereto and, if Consultant is providing design
services, the estimated increased or decreased cost estimate for the project being desig ned.
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6.3 Ownership of Documents.
All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes,
computer files, reports, records, documents and other materials (the “documents and materials”)
prepared by Consultant , its employees, subcontractors and agents in the performance of this
Agreement shall be the property of City and shall be delivered to City upon request of the Contract
Officer or upon the termination of this Agreement, and Consultant shall have no claim for further
employment or additional compensation as a result of the exercise by City of its full rights of
ownership use, reuse, or assignment of the documents and materials hereunder. Any use, reuse or
assignment of such completed do cuments for other projects and/or use of uncompleted documents
without specific written authorization by the Consultant will be at the City’s sole risk and without
liability to Consultant , and Consultant’s guarantee and warranties shall not extend to such use,
reuse or assignment . Consultant may retain copies of such documents for its own use. Consultant
shall have the right to use the concepts embodied therein. All subcontractors shall provide for
assignment to City of any documents or materials prepared b y them, and in the event Consultant
fails to secure such assignment, Consultant shall indemnify City for all damages resulting
therefrom. Moreover, Consultant with respect to any documents and materials that may qualify as
“works made for hire” as defined in 17 U.S.C. § 101, such documents and materials are hereby
deemed “works made for hire” for the City.
6.4 Confidentiality and Release of Information.
(a) All information gained or work product produced by Consultant in
performance of this Agreement shall be considered confidential, unless such information is in the
public domain or already known to Consultant. Consultant shall not release or disclose any such
information or work product to persons or entities other than City without prior written
authorizatio n from the Contract Officer.
(b) Consultant , its officers, employees, agents or subcontractors, shall not,
without prior written authorization from the Contract Officer or unless requested by the City
Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions,
response to interrogatories or other information concerning the work performed under this
Agreement. Response to a subpoena or court order shall not be considered “voluntary” provided
Consultant gives City not ice of such court order or subpoena.
(c) If Consultant , or any officer, employee, agent or subcontractor of
Consultant , provides any information or work product in violation of this Agreement, then City
shall have the right to reimbursement and indemnity from Consultant for any damages, costs and
fees, including attorney’s fees, caused by or incurred as a result of Consultant’s conduct.
(d) Consultant shall promptly notify City should Consultant, its officers,
employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of
deposition, request for documents, interrogatories, request for admiss ions or other discovery
request, court order or subpoena from any party regarding this Agreement and the work performed
there under. City retains the right, but has no obligation, to represent Consultant or be present at
any deposition, hearing or similar proceeding. Consultant agrees to cooperate fully with City and
to provide City with the opportunity to review any response to discovery requests provided by
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Consultant . However, this right to review any such response does not imply or mean the right by
City to control, direct, or rewrite said response.
ARTICLE 7. ENFORCEMENT OF AGREEMENT AND TERMINATION
7.1 California Law.
This Agreement shall be interpreted, construed and governed both as to validity and to
performance of the parties in accordance with the laws of the State of California. Legal actions
concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be
instituted in the Superior Court of the County of Los Angeles, State of California, or any other
appropriate court in such county, and Consultant covenants and agrees to submit to the personal
jurisdiction of such court in the event of such action. In the event of litigation in a U.S. District
Court, venue shall lie exclusively in the Central District of California, in the County of Los
Angeles, St ate of California.
7.2 Disputes; Default.
In the event that Consultant is in default under the terms of this Agreement, the City shall
not have any obligation or duty to continue compensating Consultant for any work performed after
the date of default. Instead, the City may give notice to Consultant of the default and the reasons
for the default. The notice shall include the timeframe in which Consultant may cure the default.
This timeframe is presumptively thirty (30) days, but may be extended, though not redu ced, if
circumstances warrant. During the period of time that Consultant is in default, the City shall hold
all invoices and shall, when the default is cured, proceed with payment on the invoices. In the
alternative, the City may, in its sole discretion, e lect to pay some or all of the outstanding invoices
during the period of default. If Consultant does not cure the default, the City may take necessary
steps to terminate this Agreement under this Article. Any failure on the part of the City to give
notice of the Consultant ’s default shall not be deemed to result in a waiver of the City’s legal rights
or any rights arising out of any provision of this Agreement.
7.3 Retention of Funds.
Consultant hereby authorizes City to deduct from any amount payable to Consultant
(whether or not arising out of this Agreement) (i) any amounts the payment of which may be in
dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or
damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by
reason of Consultant ’s acts or omissions in performing or failing to perform Consultant’s
obligation under this Agreement. In the event that any claim is made by a third party, the amount
or validity of which is disputed by Consultant, or any indebtedness shall exist which shall appear
to be the basis for a claim of lien, City may withhold from any payment due, without liability for
interest because of such withholding, an amount sufficient to cover such claim. The failure of City
to exercise such right to deduct or to withhold shall not, however, affect the obligations of the
Consultant to insure, indemnify, and protect City a s elsewhere provided herein.
7.4 Waiver.
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Waiver by any party to this Agreement of any term, condition, or covenant of this
Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any
party of any breach of the provisions of this Agreement shall not constitute a waiver of any other
provision or a waiver of any subsequent breach or violation of any provision of this Agreement.
Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of
the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by
a non-defaulting party on any default shall impair such right or remedy or be construed as a waiver.
Any waiver by either party of any default must be in writing and shall not be a waiver of any other
default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative.
Except with respect to rights and remedies expressly declared to be exclusive in this
Agreement, the rights and remedies of the parties are cumulative and the exercise by either party
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other defa ult by the
other party.
7.6 Legal Action.
In addition to any other rights or remedies, either party may take legal action, in law or in
equity, to cure, correct or remedy any default, to recover damages for any default, to compel
specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any
other remedy consistent with the purposes of this Agreement. Notwithstanding any contrary
provision herein, Consultant shall file a statutory claim pursuant to Government Code Sections
905 et seq. and 910 et seq., in order to pursue a legal action under this Agreement.
7.7 Liquidated Damages.
Since the determination of actual damages for any delay in performance of this Agreement
would be extremely difficult or impractical to determine in t he event of a breach of this Agreement,
the Consultant and its sureties shall be liable for and shall pay to the City the sum of zero ($0) as
liquidated damages for each working day of delay in the performance of any service required
hereunder. The City may withhold from any monies payable on account of services performed by
the Contractor any accrued liquidated damages.
7.8 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically provided
in the following Section for termination for cause. The City reserves the right to terminate this
Contract at any time, with or without cause, upon thirty (30) days ’ written notice to Consultant,
except that where termination is due to the fault of the Consultant, the period of notice may be
such shorter time as may be determined by the Contract Officer. In addition, the Consultant
reserves the right to terminate this Contract at any time, with or without cause, upon sixty (60)
days’ written notice to City, except that where termination is due to the fault of the City, the period
of notice may be such shorter time as the Consultant may determine. Upon receipt of any notice
of termination, Consultant shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Except where the Consultant has initiated
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termination, the Consultant shall be entitled to compensation for all services rendered prior to the
effective date of the notice of termination and for any services authorized by the Contract Officer
thereafter in accordance with the Schedule of Compensation or such as may be approved by the
Contract Officer, except as provided in Section 7.3. In the event the Consultant has initiated
termination, the Consultant shall be entitled to compensation only for the reasonable value of the
work product actually produced hereunder. In the event of termination without cause pursuant to
this Section, the terminating party need not provide the non-terminating party with the opportunity
to cure pursuant to Section 7.2.
7.9 Termination for Default of Consultant.
If termination is due to the failure of the Consultant to fulfill its obligations under this
Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and
prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to
the extent that the tot al cost for completion of the services required hereunder exceeds the
compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such
damages), and City may withhold any payments to the Consultant for the purpose of set-off or
partial payment of the amounts owed the City as previously stated.
7.10 Attorneys’ Fees.
If either party to this Agreement is required to initiate or defend or made a party to any
action or proceeding in any way connected with this Agreement, the prevailing party in such action
or proceeding, in addition to any other relief which may be granted, whether legal or equitable,
shall be entitled to reasonable attorney’s fees. Attorney’s fees shall include attorney’s fees on any
appeal, and in addition a party entitled to attorney’s fees shall be entitled to all other reasonable
costs for investigating such action, taking depositions and discovery and all other necessary costs
the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued
on commencement of such action and shall be enforceable whether or not such action is prosecuted
to judgment.
ARTICLE 8. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability of City Officers and Employees.
No officer or employee of the City shall be personally liable to the Consultant, or any
successor in interest, in the event of any default or breach by the City or for any amount which
may become due to the Consultant or to its successor, or for breach of any obligation of the terms
of this Agreement.
8.2 Conflict of Interest.
Consultant covenants that neither it, nor any officer or principal of its firm, has or shall
acquire any interest, directly or indirectly, which would conflict in any manner with the interests
of City or which would in any way hinder Consultant’s performance of services under this
Agreement. Consultant further covenants that in the performance of this Agreement, no person
having any such interest shall be employed by it as an officer, employee, agent or subcontractor
without the express written consent of the Contract Officer. Consultant agrees to at all times avoid
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conflicts of interest or the appearance of any conflicts of interest with the interests of City in the
performance of this Agreement.
No officer or employee of the City shall have any financial interest, direct or indirect, in
this Agreement nor shall any such officer or employee participate in any decision r elating to the
Agreement which a ffects her/his financial interest or the financial interest of any corporation,
partnership or association in which (s)he is, directly or indirectly, interested, in violation of any
State statute or regulation. The Consultant warrants that it has not paid or given and will not pay
or give any third party any money or other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination.
Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons
claiming under or through them, that there shall be no discrimination against or segregation of,
any person or group of persons on account of race, color, creed, religion, sex, gender, sexual
orientation, marital status, national origin, ancestry or other protected class in the performance of
this Agreement. Consultant shall take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, color, creed, religion,
sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class.
8.4 Unauthorized Aliens.
Consultant hereby promises and agrees to comply with all of the provisions of the Federal
Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., as amended, and in connection
therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ
such unauthorized aliens for the performance of work and/or services covered by this Agreement,
and should any liability or sanctions be imposed against City for such use of unauthorized aliens,
Consultant hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions
imposed, together with any and all costs, including attorneys’ fees, incurred by City.
ARTICLE 9. MISCELLANEOUS PROVISIONS
9.1 Notices.
Any notice, demand, request, document, consent, approval, or communication either party
desires or is required to give to the other party or any other person shall be in writing and either
served personally or sent by prepaid, first -class mail, in the case of the City, to the City Manager
and to the attention of the Contract Officer (with her/his name and City title), City of Rancho Palos
Verdes, 30940 Hawthorne Blvd., Rancho Palos Verdes, California 90275 and in the case of the
Consultant , to the person(s) at the address designated on the execution page of this Agreement.
Either party may change its address by notifying the other party of the change of address in writing.
Notice shall be deemed communicated at the time personally delivered or in seventy-two (72)
hours from the time of mailing if mailed as provided in this Section.
9.2 Interpretation.
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The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship of
this Agreement or any other rule of construction which might otherwise apply.
9.3 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an
original, and such counterparts shall constitute one and the same instrument.
9.4 Integration; Amendment.
This Agreement including the attachments hereto is the entire, complete and exclusive
expression of the understanding of the parties. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels
any and all previous negotiations, arrangements, agreements and understandings, if any, between
the parties, and none shall be used to interpret this Agreement. No amendment to or modification
of this Agreement shall be valid unless made in writing and approved by the Consultant and by
the City Council. The parties agree that this requirement for written modifications cannot be
waived and that any attempted waiver shall be void.
9.5 Severability.
In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections
contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or
decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any
of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are
hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder
unless the invalid provision is so material that its invalidity deprives either party of the basic benefit
of their bargain or renders this Agreement meaningless.
9.6 Warranty & Representation of Non-Collusion.
No official, officer, or employee of City has any financial interest, direct or indirect, in this
Agreement, nor shall any official, officer, or employee of City participate in any decision relating
to this Agreement which may affect his/her financial interest or the financial interest of any
corporation, partnership, or association in which (s)he is directly or indirectly interested, or in
violation of any corporation, partnership, or association in which (s)he is directly or indirectly
interested, or in violation of any State or municipal statute or regulation. The determination of
“financial interest ” shall be consistent with State law and shall not include interests found to be
“remote” or “noninterests” pursuant to Government Code Sections 1091 or 1091.5. Consultant
warrants and represents that it has not paid o r given, and will not pay or give, to any third party
including, but not limited to, any City official, officer, or employee, any money, consideration, or
other thing of value as a result or consequence of obtaining or being awarded any agreement.
Consultant further warrants and represents that (s)he/it has not engaged in any act(s), omission(s),
or other conduct or collusion that would result in the payment of any money, consideration, or
other thing of value to any third party including, but not limited t o, any City official, officer, or
employee, as a result of consequence of obtaining or being awarded any agreement. Consultant is
aware of and understands that any such act(s), omission(s) or other conduct resulting in such
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payment of money, consideration, or other thing of value will render this Agreement void and of
no force or effect.
Consultant ’s Authorized Initials _______
9.7 Corporate Authority.
The persons executing this Agreement on behalf of the parties hereto warrant that (i) such
party is duly organized and existing, (ii) they are duly authorized to execute and deliver this
Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally
bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not
violate any provision of any other Agreement to which said party is bound. This Agreement shall
be binding upon the heirs, executors, administrators, successors and assigns of the parties.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first -above written.
CITY:
CITY OF RANCHO PALOS VERDES, a
municipal corporation
Jerry V. Duhovic, Mayor
ATTEST:
Emily Colborn, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
William W. Wynder, City Attorney
CONSULTANT:
PROSUM INC.
By:
Name:
Title:
By:
Name:
Title:
Address:
Two corporate officer signatures required when Consultant is a corporation, with one signature required
from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2)
Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT’S
SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE
INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
B-24
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2019 before me, ________________, personally appeared ________________, proved to me on
the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
B-25
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On __________, 2019 before me, ________________, personally appeared ________________, proved to me on
the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the Stat e of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature: _____________________________________
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the d ocument and could
prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
INDIVIDUAL
CORPORATE OFFICER
_______________________________
TITLE(S)
PARTNER(S) LIMITED
GENERAL
ATTORNEY-IN-FACT
TRUSTEE(S)
GUARDIAN/CONSERVATOR
OTHER_______________________________
______________________________________
SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
_____________________________________________
_____________________________________________
___________________________________
TITLE OR TYPE OF DOCUMENT
___________________________________
NUMBER OF PAGES
___________________________________
DATE OF DOCUMENT
___________________________________
SIGNER(S) OTHER THAN NAMED ABOVE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
B-26
EXHIBIT “A”
SCOPE OF SERVICES
I. Consultant will perform the helpdesk services, systems administration services, IT
(Information Technology) management, and NOC (Network Operations Center) s ervices
(collectively, the “Base Services”) and Optional Services, as follows:
A. BASE SERVICES.
1. Proactive Services. Consultant shall proactively update and manage all of
City’s computers and servers remotely including weekly patching of workstations and
monthly patching of servers. Patching will take place as unobtrusively as possible.
Consultant shall also monitor and ensure that document backups occur consistently and
successfully.
Type of Operation Operating Level Objectives
Server Services
Server Administration
Full support. Provide server administration services including
maintenance of supported operating system, applications such as
database, messaging, web, and their associated hardware, and
software.
System Backup Full support. Ensure successful backup of critical data on all supported
servers per client retention policies.
Configuration Management
Full support. Provide configuration management, including moves, adds
and changes, minor upgrades and security patches (Windows, Anti-
Virus, Malware).
Server Monitoring
Full support. Monitoring and alerting of incidents, performance,
capacity, uptime and security (Anti-Virus, patch management). Reports
generated and reviewed with client at regular intervals.
Desktop Services
Desktop Administration Full support. Provide desktop administration services including
maintenance of supported operating system and their associated
hardware, and software. Consultant will leverage onsite resources from
City for desktop support as needed.
Configuration Management Full support. Provide configuration management, including moves, adds
and changes, minor upgrades and security patches (Windows, Anti-
Virus, Malware).
Desktop Monitoring Full support. Monitoring and reporting of security services such as anti-
virus, anti-malware and patch management. Reports generated and
reviewed at regular intervals.
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Hardware Problem
Diagnostics
Full Support. Consultant will perform necessary diagnostics to identify
the root cause of the hardware problem. Any small component
replacement will be carried out under the terms of the contract.
Network Services
Network Administration
Full support. Provide network administration of all client network
equipment such as switches, routers, firewalls and other security
devices.
Configuration Backup Full support. Ensure successful backup of configuration on all supported
network devices.
Configuration Management Full support. Provide configuration management, including moves, adds
and changes, minor updates and patches.
Network Monitoring Full support. Monitoring and alerts management, performance, uptime.
Reports generated and reviewed with client at regular intervals.
Application Services
Microsoft Core Full support. Provide administration services including maintenance
and support of Microsoft core applications such as Exchange, SQL, etc.
Provide configuration management, including moves, adds and changes
and security patches and service packs.
Line of Business (LOB) Limited level of support. Consultant is not responsible for any proactive
support or upgrades to LOB applications but will provide intermediary
services by working with the application vendor on the client’s behalf.
Documentation
Documentation
Full Support. Environment and process documentation is to be available
in electronic format within ITGlue. Consultant and City’s ITGlue
implementation will be synced to ensure that both systems are kept in
sync. Documentation includes, and is not limited to, network diagram,
remote access information, server and application inventory, vendor
contact matrix, website, and email.
2. Responsive Support. City shall have unlimited access to Responsive
Support in the event of an issue or a support request. All Responsive Support requests are
tracked through Consultant’s ticketing system. This allows Consultant to track common
issues and their resolutions and manage to the operating level objectives. This information
drives the proactive reporting and trend analysis.
Type of Operation Operating Level Objectives
Server Support
Server Diagnosis
Full support. Triage, troubleshoot and resolve issue. Escalate to
hardware / software vendor for issues not able to resolve. If complete
hardware failure, replace server hardware.
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Server Replacement
Full support. Return the server to its state prior to the failure. In the
event of server failure, install server operating system, restore data
from backup and provide access and support to application vendors for
additional application installation if required. Upgrading the server to
the latest versions of OSs, applications, etc. is excluded from this scope
of services. Consultant will not proceed with any major upgrades (i.e.
new server, upgrade of Exchange, etc.) until receiving written approval
from the client.
Desktop / Laptop Support
Desktop Diagnostics
Full support. Triage, troubleshoot and resolve issue. Escalate to
hardware / software vendor for issues not able to resolve. If complete
hardware failure, replace desktop hardware.
Desktop Replacement
Full support. Return the desktop to its state prior to the failure. In the
event of desktop failure, install desktop operating system, restore data
from backup and provide access and support to application vendors for
additional application installation if required. The addition of net new
workstations or upgrading of workstation OS to the environment is
normally considered excluded from this scope of services. City can
utilize the onsite desktop resource to upgrade the OS on the desktop
for a maximum of 2 workstations per month. This will enable the onsite
resource to perform their normal support functions.
Mobile Phones / Tablets
(iPads, etc.)
Limited level of support. Consultant will support the email provisioning
and access management related requirements as well as
troubleshooting for client employee mobile devices. Hardware support
will be provided by client and it’s the user’s responsibility to contact the
vendor for additional resolution or replacement.
Printer / Copier / Scanner /
Fax / Phone
Limited level of support. Provide initial issue diagnosis as well as
network and access management support only. All other issues
including hardware will be escalated to the appropriate vendor for
resolution.
Network Support
Network Device Diagnosis
Full support. Triage, troubleshoot and then escalate to hardware /
software vendor for issues not able to resolve. If complete hardware
failure, replace network device.
Network Device
Replacement
Full Support. Return the device to its state prior to the failure. In the
event of network device failure, install new device, restore
configuration from backup and provide access and support. A complete
network re-design is excluded from this scope of services.
Telephone Network
Vendor management only. Consultant will escalate the reported issue
to the telephone vendor for resolution. Consultant will provide updates
to the client until issue is resolved. Consultant will complete simple
moves, adds and changes where the vendor has provided adequate
training. Any server and network connectivity issues linked to the
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phone system will be triaged and resolved by Consultant teaming with
the vendor if necessary.
Data and Voice Circuits
Limited Support - Consultant directly supports the monitoring and
troubleshooting for all devices and components related to the data
circuits starting where the data circuit terminates into the network
device. Consultant troubleshoots data circuit problems beyond the
network devices with the data circuit service provider directly and will
work with the service provider through resolution.
Application Support
Microsoft Core Diagnosis
Full support. Triage, troubleshoot and resolve issues for Microsoft core
applications such as Exchange, SQL, etc. Escalate to application vendor
for issues not able to resolve.
Line of Business (LOB)
Diagnosis
Limited level of support. Provide initial issue diagnosis and then provide
intermediary services by working with the application vendor on the
client’s behalf.
Application Replacement
Limited level of support. Return the application to its state prior to the
failure by leveraging the application vendor for application installation
/configuration. The addition of net new applications to the
environment is excluded from this scope of services. The upgrading of
any applications is excluded from this scope of services.
Help Desk Telephone Support
Customer Care Line
End users will have unlimited access to the remote Consultant
customer care toll free line during operating hours for all incident
priority levels. The hours of operation are from 6:00a to 6:00p PST with
an on-call engineer rotation covering after hours support for
emergency requests (P1 and P2) only. Consultant’s remote support
team (U.S. and offshore) provides after hours monitoring, alerting and
triage.
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3. Advisory Services. Consultant shall provide advisory services to help the
City with IT strategy and spending decisions.
Type of Operation Operating Level Objectives
IT Operations
System Enhancement and
Upgrade Planning
Limited support. Assist the business units with major line of business
system enhancements planning, coordinate with vendors, and provide
cost estimates. Major LOB application releases will be completed by
the application specific vendor.
Procurement services
Provide recommendations and competitive quotes through 3rd party
providers for required hardware and software as well as advice on
vendor selection.
Asset Management
Prosum can assist with the management of all the assets and contracts
including software licensing, hardware assets, contracts etc. Prosum’s
IT Manager can assist in selecting the right vendor and in negotiation
of the contracts.
4. Business Hours, After Hours, and Emergency Support.
The IT service support is typically required during standard City operating hours, 7:30
a.m. to 5:30 p.m. Monday through Thursday and 7:30 a.m. to 4:30 p.m. on Friday. Technical
assistance is also required for City Council and Plann ing Commission meetings Tuesday
evenings until typically 7:30 p.m. The City and Consultant will team to schedule onsite desktop
support no more than 8 hours per day. Consultant will provide emergency and after-hours
support outside of City business hours.
5. Response Times.
Response Times assume that City will provide Consultant personnel with access to relevant
external and internal systems, as Consultant may require. This includes system information such
as login information, Internet accessibility, physical security clearance and other interfacing
systems.
Priority Severity Description Response
P1 CRITICAL The situation needs immediate attention. This level is
reserved for issues having a critical impact on business
operations. This is the highest priority, directly
affecting customer’s time-sensitive business functions
or a majority of the users.
Assign senior resources and
begin resolution immediately
Updates are provided every 2
hours
P2 HIGH This level is used for issues with significant impact or
time sensitive service requests that directly affect
important administrative functionality and/or a large
number of users.
Assign senior resources, begin
resolution within 2 hours
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P3 NORMAL Default level - does not require expedited handling.
Does not directly affect core business functions or
important administrative functionality, and generally
only affects one or a few users.
Assign resources and begin
resolution within 48 hours
P4 LOW This level is not time sensitive. It has no immediate
impact on business functions or administrative
functionality.
Assign resources and begin
resolution within 72 hours
P5 REQUEST This type of request has the most time flexibility, and
will generally consist of requests for new hardware,
software, or upgrades (Move, Add, Changes).
Scheduled based on resource
availability and user needs
B. OPTIONAL SERVICES
The following Optional Services are not included in the Base Services, but can be provided at
City’s request, upon submission and approval of a task proposal by Consultant.
Type of Operation Operating Level Objectives
Projects
New Application or
Infrastructure
Implementation or
Significant Redesign Projects
Consultant will review the service request and report a possible “out
of scope” situation to the client point of contact. Consultant will scope
out the engagement and provide the client an implementation
proposal including the level of effort and associated cost.
C. SUPPORTED SOFTWARE AND HARDWARE
1. Core business proprietary applications.
Current software applications:
APPLICATION TITLE FUNCTIONAL AREA
ERP (Munis) Finance and Accounting
Community Development (Trakit) Business Licensing, Code Enforcement and
Permits
CityWorks
Asset Mgmt. & Work Orders - Public Works
LaserFiche Document Management
Cougar Mountain Denali Point of Sale (POS)
Active.net (SaaS) Facility Rentals & Activities
EZOffice Inventory Management
CoreLogic Parcel Data
CivicPlus Website, emergency notifications
Microsoft SharePoint Intranet portal
Granicus Video streaming for broadcasts
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TelVue TV Broadcast Software
ESRI (GIS) GIS
Should any of the above systems change, support will convert to the new system
subsequent to a change order at no extra cost. Consultant will not be responsible for system
conversion other than minor assistance with server creation, Microsoft configurations,
client installations, etc.
2. Supported Infrastructure.
Current Infrastructure:
DEVICE TYPE QTY VERSION
Total number of Servers 51 Physical and Virtual Servers
Directory Services 3 Domain controllers
Messaging 1 Microsoft Exchange
Backup Veeam
SAN / NAS 1 Nimble
Workstations 140 Workstations, Laptops, and
Tablets
Networking 20
6
Dell network switches
SonicWall firewalls
Unified Communications 80 Cisco and Polycom phone devices
using Cisco Unified
Communications System
Locations of infrastructure:
Headquarters Rancho Palos Verdes, CA
Facilities 7 physical locations including
City Hall and 6 remote
locations
3. All supported devices must meet minimum supportable standards as follows:
Hardware must be under manufacturer’s warranty and kept current as part
of the City’s refresh policy
Software must be supported by the vendor
Backups must be successful and meet the recovery objectives of the
business
Environmental controls for cooling and power
Mobile devices must be in provider-approved format
City shall maintain all valid hardware and software licensing and
maintenance agreements
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The total number of supported devices will be evaluated on a quarterly basis for changes
due to organic growth and attrition. Growth that exceeds 10% annually will require a
change order to the Agreement and will require written validation fro m City’s authorized
officer. If the environment shrinks through consolidation of services, substantial reduction
of trouble tickets or scope of services as described herein, Consultant will work jointly with
the City‘s Contract Officer to reduce the monthly support fees to reflect the changes.
II. As part of the Services, Consultant will prepare and deliver the following tangible work
products to the City:
As needed, the Consultant will create, update and maintain City’s IT environment
documentation as described in Exhibit “A” – Base Services – Proactive Services.
III. In addition to the requirements of Section 6.2, d uring performance of the Services,
Consultant will keep the City appraised of the status of performance by delivering the
following status reports:
City IT Manager should receive or have self-service access to regular reports on
performance metrics and overall system health. Consultant should provide the reports specified
below, but the Consultant can produce more of relevant metrics or KPIs, if available. The
specific content, depth, parameters and format of reports shall be mutually agreed upon by the
City and Consultant.
Weekly Help Desk metrics:
Tickets opened/closed in the prior week
Open tickets report, length of time open
Mean Time to Respond, Mean Time to Resolve
Tickets by category (e.g. application, department, etc.)
Monthly Help Desk metrics:
Tickets opened/closed in the prior month
Open tickets report, length of time open
Mean Time to Respond, Mean Time to Resolve
Anti-Virus deployment
Weekly/Monthly System Report:
Server system health including disk space and patching level
Workstation system health including disk space and patching level
IV. All work product is subject to review and acceptance by the City, and must be revised by
the Consultant without additional charge to the City until found satisfactory and accepted
by City.
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V. Consultant will utilize the following personnel and support structures to accomplish the
Services:
1. Support Team
2. Support Structures.
As part of the Base Services, Consultant will provide a shared pool of remote IT support
staff that work in concert with the onsite staff to maintain the IT infrastructure at or above end
user expectations.
DESKTOP SUPPORT AND CUSTOMER CARE
The City will work with Consultant to pick the best onsite support model for Desktop
Support staff. If the City and Consultant decide to use the 5 day/week onsite desktop support
model, the Desktop Support staff will spend no more than 75% of their working hours supporting
the City. With the 4 day/week onsite desktop support model, the Desktop Support staff will be
100% dedicated to the City.
Consultant may assign multiple, cross-trained resources to provide the Desktop Support
role. Desktop Support staff will be primarily dedicated to performing desktop support services
and completing open tickets for the City. If there are no open tickets to be resolved during the
scheduled onsite days, the City’s Contract Officer may direct the Desktop Support person to
assist with desktop-related project tasks.
In the event of an emergency, the assigned Desktop Support person may be temporarily
reassigned to another client of Consultant, which will not exceed more than 4 hours per day and
8 hours per month and will not interfere with pre-scheduled assignments such as support for a
City Council and Planning Commission meeting.
Desktop Support staff will be allocated 10-15 personal time off days annually, depending
upon their tenure. Scheduled leave will be coordinated with the City’s Contract Officer prior to
Remote/Shared
Resources
Assigned Onsite
Resources
Account Oversight IT Manager
Desktop Support
(4 or 5 days per week
onsite)
Customer Care
(Helpdesk)
Support Engineers
(16 hours per week remote
or onsite as needed)
Project
Coordinators
Project
Engineers
Support
Engineers
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approval. During these periods, Consultant will work jointly with the City’s Contract Officer and
provide a replacement resource.
SUPPORT ENGINEER
Support Services: Consultant will provide up to 50 hours per month of engineering support
services to help maintain the City’s IT environment and to respond to IT issues. Consultant may
assign multiple, cross-trained resources both onsite and offsite to provide engineering support
services. Engineering support will be conducted by a Support or Senior Engineer and will consist
of performing server and network support services by completing tickets for the City. These
tickets may be opened by the City IT Manager or by Prosum w ith the intent to maintain the city’s
infrastructure. These tickets may be both reactive or proactive in nature. Hours will be measured
monthly with no roll over. Note: Hours in excess of 50 hours per month of engineering support
services, upon approval, will be billed per the rate table in Exhibit C-1. Hours will be measured
monthly with no roll over.
Projects: Consultant will provide up to 20 hours per month of engineering services for Projects.
Projects include introducing any new equipment (e.g. networking devices, servers, etc.) or
software applications. into the environment. Projects also include major version upgrades,
migration of large chunks of data, and any tasks that require work across multiple workstations
or servers or impacts multiple users. Consultant may assign multiple, cross-trained resources
both onsite and offsite to provide Project services. Note: Any task over 8 hours is not included
and, upon approval, will be billed per the rate table in Exhibit C-1. Hours will be measured
monthly with no roll over.
IT MANAGEMENT
Consultant will assign an IT Manager to the City to work closely with the City’s Contract Officer
to help ensure that the City’s IT needs are met. This person will act as the City’s Contract
Officer’s single-point-of-contact for all issues related to Consultant’s service delivery and will be
accountable for the continuous improvement of Consultant services by providing best practice
solutions, recommending upgrades and changes, and closely mo nitoring Consultant services. The
assigned IT Manager may be a separate resource from the support engineers or may be one of the
support engineers who works with the City.
Consultant will report to the City’s Contract Officer. All Consultant services performed by
Consultant team members will be directed by the assigned Consultant IT Manager to ensure
service delivery, change management, best practices, documentation, and communication to
other involved team members at Consultant. The assigned Consultant IT Manager will team with
the City’s IT Manager for guidance and input.
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EXHIBIT “B”
SPECIAL REQUIREMENTS
(Superseding Contract Boilerplate)
Added text is indicated in bold italics, deleted text is indicated in strikethrough.
I. Section 1.8, Further Responsibilities of Parties, is amended to read:
1.8 Further Responsibilities of Parties.
(a) Both parties agree to use reasonable care and diligence to perform their respective
obligations under this Agreement. Both parties agree to act in good faith to execute all instruments,
prepare all documents and take all actions as may be reasonably necessary to carry out the purposes
of this Agreement. Unless hereafter specified, neither party shall be responsible for the service of
the other.
(b) Consultant will use common best practices to prevent and minimize virus attacks.
Consultant shall be relieved from any applicable operating level objectives to the extent that any
failure to meet such operating level objectives results from a new or unknown virus being
introduced into the environment, or as a result of the City or its users deliberately or negligently
introducing any virus. Consultant will include up to 60 hours for incident response per year.
Any time spent for remediation of security listed incident will be charged at the Sr. Engineer
hourly rate.
II. Section 3.3, Force Majeure, is amended to read:
3.3 Force Majeure.
The time period(s) specified in the Schedule of Performance for performance of the
services rendered pursuant to this Agreement shall be extended because of any delays due to
unforeseeable causes beyond the control and without the fault or negligence of the Consultant,
including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires,
earthquakes, floods, epidemics, quarantine restrictions, riots, acts of terrorism including external
cyber attacks, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency,
including the City, if the Consultant shall within ten (10) days of the commencement of such delay
notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall
ascertain the facts and the extent of delay, and extend the time for performing the services for the
period of the enforced delay when and if in the judgment of the Contract Officer such delay is
justified. The Contract Officer’s determination shall be final and conclusive upon the parties to
this Agreement. In no event shall Consultant be entitled to recover damages against the City for
any delay in the performance of this Agreement, however caused, Consultant ’s sole remedy being
extension of the Agreement pursuant to this Section.
III. Section 5.4, Cyber Security Insurance, is added as follow:
5.4 Cyber Security Insurance.
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Cyber Security Insurance. City shall obtain cyber liability insurance to mitigate any
damages or losses that may result from network or system infiltration. Neither party is liable for
any damages or losses suffered due to cyber security infiltration provided that reasonable
standards and prevention measures are implemented by the responsible party. Each party hereby
releases, discharges, and holds harmless the other party and its employees, agents, officers and
directors from all claims, liability, and losses or damages related to cyber security infiltration.
The foregoing limitation shall not apply to Consultant in the event that damage s or losses
suffered by the City are due to negligence by Consultant.
VII. Section 7.8, Termination Prior to Expiration of Term, is amended to read:
7.8 Termination Prior to Expiration of Term.
This Section shall govern any termination of this Contract except as specifically provided
in the following Section for termination for cause. The City reserves the right to terminate this
Contract at any time, with or without cause, upon thirty (30)180 (one hundred eighty) days’
written notice to Consultant, except that where termination is due to the fault of the Consultant,
the period of notice may be such shorter time as may be determined by the Contract Officer. In
addition, the Consultant reserves the right to terminat e this Contract at any time, with or without
cause, upon sixty (month)180 (one hundred eight) days’ written notice to City, except that where
termination is due to the fault of the City, the period of notice may be such shorter time as the
Consultant may d etermine. Upon receipt of any notice of termination, Consultant shall
immediately cease all services hereunder except such as may be specifically approved by the
Contract Officer. Except where the Consultant has initiated termination, the Consultant shall be
entitled to compensation for all services rendered prior to the effective date of the notice of
termination and for any services authorized by the Contract Officer thereafter in accordance with
the Schedule of Compensation or such as may be approved by the Contract Officer, except as
provided in Section 7.3. In the event the Consultant has initiated termination, the Consultant shall
be entitled to compensation only for the reasonable value of the work product actually produced
hereunder. In the event of termination without cause pursuant to this Section, the terminating party
need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2.
VIII. Section 7.10, Attorneys’ Fees, is amended to read:
Attorneys’ Fees.
If either party to this Agreement is required to initiate or defend or made a party to any
action or proceeding in any way connected with this Agreement, the prevailing party in such action
or proceeding, in addition to any other relief which may be granted, whether legal or equitable,
shall be entitled to reasonable attorney’s fees. Attorney’s fees shall include attorney’s fees on any
appeal, and in addition a party entitled to attorney’s fees shall be entitled to all other reasonable
costs for investigating such act ion, taking depositions and discovery and all other necessary costs
the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued
on commencement of such action and shall be enforceable whether or not such action is prosecuted
to judgment.
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EXHIBIT “C”
SCHEDULE OF COMPENSATION
I. Consultant shall perform the following tasks at the following rates:
A. Base Services:
BASE MONTHLY RATE SUBBUDGET
Base Services Year 1 $15,083.25 $180,999
Base Services Year 2 $15,535.75 $186,428
Base Services Year 3 $16,001.82 $192,021
Base Services Year 4 $16,481.87 $197,782
Base Services Total $757,322.30
Optional Services Paid on time and materials basis
only; no monthly fee or minimum
$75,724
CONTRACT SUM $832,956.30
II. A retention of ten percent (10%) shall be held from each payment as a contract
retention to be paid as part of the final payment upon satisfactory completion of
services.
NOT APPLICABLE
III. Within the budgeted amounts for each Task, and with the approval of the Contract
Officer, funds may be shifted from one Task subbudget to another so long as the
Contract Sum is not exceeded per Section 2.1, unless Additional Services are
approved per Section 1.9.
IV. The City will compensate Consultant for the Base Services performed upon
submission of a valid monthly invoice. Consultant may list Base Services as a single
monthly line item submitted fifteen (15) days prior to start of the month.
V. For Optional Services, City will compensate Consultant upon su bmission of a valid
invoice. Each invoice is to include:
A. Line items for all personnel describing the work performed, the number of hours
worked, and the hourly rate.
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B. Line items for all materials and equipment properly charged to the Services.
C. Line items for all other approved reimbursable expenses claimed, with supporting
documentation.
D. Line items for all approved subcontractor labor, supplies, equipment, materials, and
travel properly charged to the Services.
V. The total compensation for the Services shall not exceed the Contract Sum as
provided in Section 2.1 of this Agreement.
VI. The Consultant’s billing rates for all personnel are attached as Exhibit C-1.
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EXHIBIT C-1
PERSONNEL RATE TABLE
Role Rate/hour
Project Manager $150
Enterprise Architect $225
Solutions and Technical Architects $200
Senior Systems and Network Engineers $175
Systems and Network Engineers $160
Desktop Support $100
BI Architect & Engineers $205
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EXHIBIT “D”
SCHEDULE OF PERFORMANCE
I. Consultant shall perform all Base Services as provided in Exhibit “A”. Optional
Services shall be provided timely as requested by the City’s Contract Officer.
II. Consultant shall deliver the tangible work products in accordance with Exhibit “A.”
III. The Contract Officer may approve extensions for performance of the services in
accordance with Section 3.2.
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