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CONTRACT 6749 Service AgreementAgreement No. 6749 SOFTWARE SERVICES AGREEMENT BETWEEN THE CITY OF EL SEGUNDO .. AND IMPEX TECHNOLOGIES, INC. THIS AGREEMENT is entered into this 1 lth day of September 2023, by and between CITY OF EL SEGUNDO, a municipal corporation ("CITY") and Impex Technologies, a California corporation ("CONSULTANT"). 1. CONSIDERATION. A. As partial consideration, CONSULTANT agrees to perform the scope of services attached as Exhibit "A," and incorporated by reference ("SERVICES"). The SERVICES include installing and maintaining a software program for various tasks associated with Veeam ("SOFTWARE"). B. As additional consideration, CONSULTANT and CITY agree to abide by the terms and conditions contained in this Agreement. C. As additional consideration, CITY will pay CONSULTANT the compensation set forth in Exhibit A, but in no event more than $19,642.56 for the term of the contract. D. CITY will not be liable for any costs or expenses exceeding the sum paid to CONSULTANT pursuant to Section 1(C) unless otherwise agreed to by the Parties and by written amendment to this Agreement. 2. TERM. The term of this Agreement will be October 27, 2023 through October 26, 2024. Unless otherwise determined by written amendment between the parties, this Agreement will terminate in the following instances: A. Completion of the work specified in Exhibit "A". B. Termination as stated in Section 7. "SELF-HELP" AND "MALICIOUS" CODES PROHIBITED. A. CONSULTANT understands and agrees that CONSULTANT's use of any "self- help" or "malicious" codes, as defined by this Section, is prohibited and constitutes an "unfair business practice" as defined by California law. Notwithstanding any other provision of this Agreement that limits CONSULTANT's liability, CONSULTANT will be fully liable for all penalties and damages arising from use of a self-help or malicious code. B. "Self-help code" means any back -door, time -bomb, drop -dead, time-out, lock -up, Agreement No. 6749 slow -down, data freezing, logic bombs, or other software routine, code, devices, techniques intended to disable, slow, prevent operation of, or otherwise interfere with or change any operation of any computer system, software or other property automatically with the passage of time or under the prior instruction, triggering event or control of someone other than Client. C. "Malicious Code" means any virus, "spyware," "Trojan horse," "worm," "Easter egg," "cancelbot," "trapdoor," or other unapproved or malicious software routine, code, command, device, technique, or instruction or other contaminant intended to Permit unauthorized access to, detection of, modification of, or monitoring of any code, system, or data. ii. Alter, supplement, disable, erase, limit, threaten, infect, assault, vandalize, defraud, disrupt, damage, disable, shut down or delete, threaten, slow or otherwise inhibit the functioning of, or otherwise harm any of the code, documentation or data or any computer system, software or other property. iii. Render any data irretrievable, modified, or disrupted so as to be unreliable in any regard. iv. Perform any other unauthorized action, or prevent, limit, condition or inhibit performance of authorized actions or any function including, without limitation, to its security or end user data. 4. LAWS AND REGULATIONS. CONSULTANT will be responsible for complying with all applicable Federal, State, County, and Municipal laws and regulations and the conditions of any required licenses and permits before entering into this Agreement. Such compliance will be at CONSULTANT's sole cost and without any increase in price or time on account of such compliance, regardless of whether compliance would require additional labor, equipment, and/or materials not expressly provided for in the Agreement or CONSULTANT's proposal. 5. INDEMNIFICATION. A. CONSULTANT agrees to the following: . Indemnification for Professional Services. CONSULTANT will save harmless and indemnify and at CITY's request reimburse defense costs for CITY and all its officers, volunteers, employees and representatives from and against any and all suits, actions, or claims, of any character whatever, brought for, or on account of, any injuries or damages sustained by any person or property resulting or arising from any negligent or wrongful act, error or omission by CONSULTANT or any of CONSULTANT's officers, agents, employees, or representatives, in the performance of this Agreement, except for such loss or damage arising from CITY's sole negligence or willful misconduct. Agreement No. 6749 ii. Indemnification for other Damages. CONSULTANT indemnifies and holds CITY harmless from and against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, arising out of this Agreement, or its performance, except for such loss or damage arising from CITY's sole negligence or willful misconduct. Should CITY be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, arising out of this Agreement, or its performance, CONSULTANT will defend CITY (at CITY's request and with counsel satisfactory to CITY) and will indemnify CITY for any judgment rendered against it or any sums paid out in settlement or otherwise. ii . Intellectual Property Infringement. Notwithstanding any provision to the contrary, CONSULTANT will, at its own expense, indemnify and defend CITY against any claim that CONSULTANT's services or work product furnished under this Agreement infringes a patent or copyright in the United States or Puerto Rico. In such event, CONSULTANT will pay all costs damages and attorney's fees that a court finally awards as a result of such claim. To qualify for such defense and payment, CITY must (a) give CONSULTANT prompt written notice of any such claim; and (b) allow CONSULTANT to control, and fully cooperate with CONSULTANT in the defense and all related settlement negotiations. CITY agrees that if the use of CONSULTANT's services or work product becomes, or CONSULTANT believes is likely to become, the subject of such an intellectual property claim, CITY will permit CONSULTANT, at its option and expense, either to secure the right for CITY to continue using CONSULTANT's services and work product or to replace it with comparable services and work product. B. For purposes of this section "CITY" includes CITY's elected and appointed officials, officers, employees, and volunteers. C. It is expressly understood and agreed that the foregoing provisions will survive termination of this Agreement. D. The requirements as to the types and limits of insurance coverage to be maintained by CONSULTANT as required by Section 6, and any approval of said insurance by CITY, are not intended to and will not in any manner limit or qualify the liabilities and obligations otherwise assumed by CONSULTANT pursuant to this Agreement, including, without limitation, to the provisions concerning indemnification. 6. INSURANCE. Agreement No. 6749 A. Before commencing performance under this Agreement, and at all other times this Agreement is effective, Consultant will procure and maintain the following types of insurance with coverage limits complying, at a minimum, with the limits set forth below: Type_ of Insurance Commercial general liability: Professional Liability Workers compensation Limits combined single) $1,000,000 $1,000,000 Statutory requirement. B. Commercial general liability insurance will meet or exceed the requirements of the most current ISO-CGL Form. The amount of insurance set forth above will be a combined single limit per occurrence for bodily injury, personal injury, and property damage for the policy coverage. Liability policies will be endorsed to name City, its officials, and employees as "additional insureds" under said insurance coverage and to state that such insurance will be deemed "primary" such that any other insurance that may be carried by City will be excess thereto. Such insurance will be on an "occurrence," not a "claims made," basis and will not be cancelable or subject to reduction except upon thirty (30) days prior written notice to City. C. Professional liability coverage will be on an "occurrence basis" if such coverage is available, or on a "claims made" basis if not available. When coverage is provided on a "claims made basis," Consultant will continue to maintain the insurance in effect for a period of three (3) years after this Agreement expires or is terminated ("extended insurance"). Such extended insurance will have the same coverage and limits as the policy that was in effect during the term of this Agreement and will cover Consultant for all claims made by City arising out of any errors or omissions of Consultant, or its officers, employees or agents during the time this Agreement was in effect. D. Consultant will furnish to City duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement, endorsements as required herein, and such other evidence of insurance or copies of policies as may be reasonably required by City from time to time. Insurance must be placed with insurers with a current A.M. Best Company Rating equivalent to at least a Rating of "A: VII." E. Should Consultant, for any reason, fail to obtain and maintain the insurance required by this Agreement, City may obtain such coverage at Consultant's expense and deduct the cost of such insurance from payments due to Consultant under this Agreement or terminate. 7. TERMINATION OF AGREEMENT Agreement No. 6749 A. During the term of this Agreement, CITY may, in its sole discretion, terminate this Agreement with or without cause by giving written notice to CONSULTANT. Termination will become effective immediately upon the giving of notice as provided in this section of the Agreement. The City Manager may exercise such right of termination on behalf of CITY. B. Except as otherwise provided, upon termination of this Agreement, CITY will be liable to CONSULTANT only for all work done by CONSULTANT up to and including the date of termination of this Agreement unless the termination is for cause, in which event CONSULTANT need be compensated only to the extent required by law. NOTICES A. CONSULTANT will notify CITY of changes in address. All notices given or required to be given pursuant to this Agreement will be in writing and may be given by personal delivery or by mail. Notice sent by mail will be addressed as follows: To CITY:. JOSE CALDERON DIRECTOR - ITSD CITY OF EL SEGUNDO 350 MAIN STREET EL SEGUNDO, CA 90245 To CONSULTANT: STEVEN ROMAN IMPEX TECHNOLOGIES 880 APOLLO STREET, SUITE 315 EL SEGUNDO, CA 90245 and, when addressed in accordance with this paragraph, will be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices will be deemed given at the time of actual delivery. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this paragraph. 9. AUDIT AND ACCESS TO RECORDS. CONSULTANT, including CONSULTANT's subcontractors, will maintain records and other evidence of all expenses incurred in the performance of this Agreement for a period of three (3) years after completion. CITY or any of its duly authorized representatives will, for the purpose of audit and examination, have access to and be permitted to inspect such records and other evidence of expenses and costs charged to CITY and/or incurred for work related to SERVICES. For purposes of audit, the date of completion of the Agreement will be the date of CITY'S payment for CONSULTANT's final Agreement No. 6749 billing (so noted on invoice) under this Agreement 10. NON -APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of the CITY. In the event the CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this Agreement will cover only those costs incurred up to the conclusion of the current fiscal year. 11. INDEPENDENT CONTRACTOR. CONSULTANT, CONSULTANT's subconsultants, employees, agents, and representatives, will act as independent contractors while performing the SERVICES and will have control of CONSULTANT's work and the manner in which it is performed, except as is otherwise provided herein. CONSULTANT will be free to contract for other services performed during the term of this Agreement. CONSULTANT is not an agent or employee of CITY and is not entitled to participate in any pension plan, insurance, bonus or similar benefits CITY provides for its employees. 12. ASSIGNMENT. An essential element of this Agreement is the skill and creativity of CONSULTANT. CONSULTANT may not, therefore, assign the creative portions of the work to a third party for the production of the work without CITY's prior written consent. Failure to conform to this provision may result in termination of the Agreement. 13. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main body of this Agreement takes precedence over the attached Exhibits; this Agreement supersedes any conflicting provisions. Any inconsistency between the Exhibits will be resolved in the order in which the Exhibits appear below: A. Exhibit A: Impex Technologies Quote #ITIQ 16259 14. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the Parties' entire understanding. There are no other understandings, terms or other agreements expressed or implied, oral or written. There are three (3) attachments to this Agreement. Except as otherwise provided, this Agreement will bind and inure to the benefit of the Parties to this Agreement and any subsequent successors and assigns. 15. MODIFICATION. No alteration, change or modification of the terms of the Agreement will be valid unless made in writing and signed by both Parties hereto and approved by appropriate action of CITY. The city manager may exercise this authority on behalf of CITY. 16. ELECTRONIC SIGNATURES FOR SUBSEQUENT AGREEMENTS. This Agreement may be executed by the Parties on any number of separate counterparts, and all such counterparts so executed constitute one Agreement binding on all the Parties notwithstanding that all the Parties are not signatories to the same counterpart. In accordance with Government Code § 16.5, the Parties agree that this Agreement, Agreements ancillary to this Agreement, and related documents to be entered into in connection with this Agreement will be considered signed when the signature of a party is delivered by electronic transmission. Such electronic signature will be treated in all respects as having the same effect as an original signature. Agreement No. 6749 17. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with CONSULTANT's Taxpayer Identification Number. 18. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT represents that CONSULTANT has demonstrated trustworthiness and possesses the quality, fitness, and capacity to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that CONSULTANT's financial resources, surety and insurance experience, service experience, completion ability, personnel, current workload, experience in dealing with private parties, and experience in dealing with public agencies all suggest that CONSULTANT is capable of performing the proposed contract and has a demonstrated capacity to deal fairly and effectively with and to satisfy a public agency. 19. WAIVER. A waiver by CITY of any breach of any term, covenant, or condition contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this Agreement whether of the same or different character. The payment or acceptance of fees for any period after a default will not be deemed a waiver of any right or acceptance of defective performance. 20. SEVERABILITY. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and as so modified, such portion and the balance of this Agreement will continue in full force and effect. 21. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this Agreement. 22. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood, explosion, acts of terrorism, war, embargo, government action, civil or military authority, the natural elements, or other similar causes beyond the Parties' reasonable control, then the Agreement will immediately terminate without obligation of either party to the other. 23. INTERPRETATION; VENUE. This Agreement and its performance will be governed, interpreted, construed and regulated by the laws of the State of California. Exclusive venue for any action involving this Agreement will be in Los Angeles County. [SIGNATURES ON NEXT PAGE] Agreement No. 6749 IN WITNESS WHEREOF the parties hereto have executed this contract the day and year first hereinabove written. CITY OF EL SEGUNDO, a general law city ITSD Director ATTEST: Tracy Weaver, City Clerk APPROVED AS TO FORM: MARK D. HENSLEY, CITY ATTORNEY Joaqu Vazquez, Assis' nt City Attorney Risk Management RVIPEX TECHNOLOGIES, INC. Rajiv Shah, President Taxpayer ID No. 95-4671710 EXHIBIT A Agreement No. 6749 ,� 1e il,'.' 1.. fl d c,, l ul I k s > 11..10..1""1' IIC""'III''CIIIU IMPEX Technologies, Inc. 880 Apollo Street, Suite 315 El Segundo, CA 90245 OFFICE 310-320-0280 FAX 310-320-0290 Iq,),UOTATION QUOTE # ITIQ16259 DATE 09/11 /2023 SALES REP Sourabh Patil QUO .I..E .TO Jose Calderon City of El Segundo 350 Main Street El Segundo, California 90245 United States 310.524.2355 QTY PART NUMBER DESCRIPTION UNIT PRICE EXT. PRICE SegundoJose Calderon City of El Veeam Renewal 32 VEEAM SOFTWARE - Annual Production (24/7) Maintenance $613.83 $19,642.56 RNWL Renewal (includes 24/7 uplift) - Veeam Data Platform Foundation Enterprise. Start Date : 10/2712023, End Date : 10/26/2024 S u bTotal $19, 642.56 Sales Tax $0.00 FOB POINT Origin SHIP DATE QUOTE VALID UNTIL30 Days S/H $0.00 PAYMENT TERMS Net 30 Days, OAC INSTALLATION Billable Upon Request WARRANTY Standard Mfg. Warranty All products on this quotation are non -cancellable and non -returnable (NCNR). By placing purchase orders under this quotation, you acknowledge and accept the products as NCNR. This document contains information that is proprietary, confidential or legally privileged. Any such information is intended only for use by the original recipient and may not be used or relied upon by a third party. Please do not disseminate this proposal without the permission of IMPEX Technologies, Inc. This price quotation does not constitute an offer by IMPEX Technologies to sell products, but is instead an invitation to issue a purchase order to IMPEX until the quotation valid date on this price quotation. Such a purchase order will be subject to IMPEX's Standard Terms and Conditions of Sale. id�fllk "` Sourabh Patil FOR YOUR BUSINESS 310t320-0280 „ ,� spatil@impextechnologies.com 5 100 M 1 of 1