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CONTRACT 4982 Professional Services Agreement CLOSEDAgreement No. 4982 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF EL SEGUNDO AND DZ SOLUTIONS ENTERPRISES, INC. This AGREEMENT is entered into as of January 1, 2016, by and between the CITY OF EL SEGUNDO, a municipal corporation and general law city ( "CITY ") and DZ SOLUTIONS ENTERPRISES, INC., a California Corporation ( "CONSULTANT ") (each of CITY and CONSULTANT is a "Party ", and together, the "Parties "). 1. CONSIDERATION. A. As partial consideration, CONSULTANT agrees to perform the work listed in the SCOPE OF SERVICES, below; B. As additional consideration, CONSULTANT and CITY agree to abide by the terms and conditions contained in this Agreement; C. As additional consideration, CITY agrees to pay CONSULTANT a sum not to exceed twenty -four thousand, five hundred dollars ($24,500.00), at the hourly rates listed under the "Professional Services Package" in the attached Exhibit "A" for CONSULTANT's services. CITY may increase this amount as set forth below. Unless otherwise specified by written amendment to this Agreement. 2. SCOPE OF SERVICES. A. CONSULTANT will perform the services listed in the attached Exhibit "A," ( "Scope of Work ") which is incorporated herein. B. CONSULTANT will, in a professional manner, furnish all of the labor, technical, administrative, professional and other personnel, all supplies and materials, equipment, printing, vehicles, transportation, office space and facilities, and all tests, testing and analyses, calculation, and all other means whatsoever, except as herein otherwise expressly specified to be furnished by CITY, necessary or proper to perform and complete the work and provide the professional services required of CONSULTANT by this Agreement. 3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT will use commercially reasonable standards of practice existing at the time of performance utilized by persons engaged in providing similar services. CITY will continuously monitor CONSULTANT's services. CITY will notify CONSULTANT of any deficiencies and CONSULTANT will have fifteen (15) days after such notification to cure any shortcomings to CITY's reasonable satisfaction. Costs associated with curing the deficiencies will be borne by CONSULTANT. -1 Agreement No. 4982 4. PAYMENTS. For CITY to pay CONSULTANT as specified by this Agreement, CONSULTANT must submit a detailed invoice to CITY which lists the hours worked and hourly rates for each personnel category and reimbursable costs for the tasks performed. CITY shall pay CONSULTANT the amount specified in each such invoice within forty -five (45) days of receipt of each such invoice. 5. 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, (a) CITY shall deliver prompt written notice to CONSULTANT of CITY'S failure to appropriate sufficient funds, and (b) this Agreement will cover only those costs incurred up to the conclusion of the current fiscal year. Notwithstanding anything to the contrary contained in this Agreement, CONSULTANT shall have no obligation to provide any services pursuant to this Agreement beyond the funds appropriated. 6. ADDITIONAL WORK. A. Subject to CONSULTANT's written consent in each instance, CITY's city manager ( "Manager ") may determine, at the Manager's sole discretion, that CONSULTANT must perform additional work ( "Additional Work ") to complete the Scope of Work. If Additional Work is needed, the Manager will give written authorization to CONSULTANT to perform such Additional Work at a rate mutually agreed upon by the Parties in writing. B. If CONSULTANT believes Additional Work is needed to complete the Scope of Work, CONSULTANT will provide the Manager with written notification that contains a specific description of the proposed Additional Work, reasons for such Additional Work, and a detailed proposal regarding cost. C. Payments for Additional Work which would cause the total amount of this Agreement to exceed Twenty -Five Thousand Dollars ($25,000), must be approved by CITY's city council. All Additional Work will be subject to all other terms and provisions of this Agreement. 7. FAMILIARITY WITH WORK. A. By executing this Agreement, CONSULTANT agrees that it has: Carefully investigated and considered the scope of services to be performed; ii. Carefully considered how the services should be performed; and iii. Understands the facilities, difficulties, and restrictions attending performance of the services under this Agreement. -2- Agreement No. 4982 B. If services involve work upon any site and subject to CITY granting CONSULTANT reasonable access to such site, CONSULTANT agrees that CONSULTANT has or will investigate the site and is or will be fully acquainted with the conditions there existing, before commencing the services hereunder. Should CONSULTANT discover any latent or unknown conditions that may materially affect the performance of the services, CONSULTANT will immediately inform CITY of such fact and will not proceed except at CONSULTANT's own risk until written instructions are received from CITY. 8. TERM. The term of this Agreement will be from January 151, 2016 to December 31", 2016. Unless otherwise determined by written amendment between the Parties, this Agreement will automatically terminate in the following instances: A. Completion of the work specified in Exhibit "A "; B. Termination as stated in Section 16; C. On December 31 ", 2016. 9. TIME FOR PERFORMANCE. A. CONSULTANT will not perform any work under this Agreement until: i. CONSULTANT furnishes proof of insurance as required under Section 23 of this Agreement; and ii. CITY gives CONSULTANT a written notice to proceed. B. Should CONSULTANT begin work on any phase in advance of receiving written authorization to proceed, any such professional services are at CONSULTANT's own risk. 10. TIME EXTENSIONS. Should CONSULTANT be delayed by causes beyond CONSULTANT's control, CITY may grant a time extension for the completion of the contracted services. If delay occurs, CONSULTANT must notify the Manager within forty -eight hours (48 hours), in writing, of the cause and the extent of the delay and how such delay interferes with the Agreement's schedule. The Manager will extend the completion time, when appropriate, for the completion of the contracted services. 11. 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. 12. CHANGES. CITY may order changes in the services within the general scope of this Agreement, consisting of additions, deletions, or other revisions, and the contract sum and the 9911 Agreement No. 4982 contract time will be adjusted accordingly. To be effective, all such changes must be authorized in a writing executed by CONSULTANT and CITY. The cost or credit to CITY resulting from changes in the services will be determined in accordance with written agreement between the Parties. 13. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a Taxpayer Identification Number. 14. PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and maintain during the term of this Agreement, all necessary permits, licenses, and certificates that may be required in connection with the performance of services under this Agreement. 15. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights CITY may have under this Agreement or of any cause of action arising from CONSULTANT's performance. A waiver by a Party 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. 16. TERMINATION. A. Except as otherwise provided, CITY may terminate this Agreement at any time with or without cause. B. CONSULTANT may terminate this Agreement at any time with CITY's mutual consent. Notice will be in writing at least thirty (30) days before the effective termination date. C. Upon receiving a termination notice, CONSULTANT will immediately cease performance under this Agreement unless otherwise mutually agreed upon by the Parties. Except as otherwise agreed upon by the Parties, any additional work performed by CONSULTANT after receiving a termination notice will be performed at CONSULTANT's own cost; CITY will not be obligated to compensate CONSULTANT for such work. D. Should termination occur, (i) all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by CONSULTANT will, at CITY's option, become CITY's property, and (ii) CONSULTANT will receive just and equitable compensation for any work satisfactorily completed up to the effective date of notice of termination, not to exceed the total costs under Section 1(C) unless such amounts have been approved by the CITY's city council. E. Should the Agreement be terminated pursuant to this Section, CITY may procure on its own terms services similar to those terminated. no Agreement No. 4982 F. By executing this document, CONSULTANT waives any and all claims for damages that might otherwise arise from CITY's termination under this Section (excluding unpaid fees for services provided prior to the effective date of the notice of termination). 17. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models, photographs and reports prepared by CONSULTANT pursuant to this Agreement are CITY's property. CONSULTANT may retain copies of said documents and materials as desired, but will deliver all original materials to CITY upon CITY's written notice. CITY agrees that use of CONSULTANT's completed work product, for purposes other than identified in this Agreement, or use of incomplete work product, is at CITY's own risk. 18. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service under this Agreement or as required by applicable law, no copies, sketches, or graphs of materials, including graphic art work, prepared pursuant to this Agreement, will be released by CONSULTANT to any other person or the public without CITY's prior written approval. All press releases, including graphic display information to be published in newspapers or magazines, will be approved and distributed solely by CITY, unless otherwise approved by written agreement between the Parties. 19. INDEMNIFICATION; DAMAGES. A. CONSULTANT agrees to the following: i. Indemnification for Professional Services. CONSULTANT will save harmless and indemnify and at CITY's request reimburse defense costs for CITY and all its officers, certified volunteers, employees and representatives from and against any and all third party 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. ii. Indemnification for other Damages. CONSULTANT indemnifies and holds CITY harmless from and against any third party claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, arising from any actual or alleged breach of this Agreement by CONSULTANT, or CONSULTANT's alleged negligent performance, except for such loss or damage arising from CITY's sole negligence or willful misconduct. Should CITY be named in any third party suit, or should any third party claim be brought against it by suit or otherwise, arising from any actual or alleged breach of this Agreement by CONSULTANT, or CONSULTANT'S alleged -5- Agreement No. 4982 negligent 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 from such claim or any sums paid out in settlement or otherwise in connection with such claim. B. Neither Party hereto shall be liable for (i) any consequential, punitive, incidental or indirect damages, however arising, whether from this Agreement or otherwise, whether or not said Party has been advised of the possibility of such damages, and (ii) any damages or losses in excess of Two Million Dollars ($2,000,000). C. For purposes of this section "CITY" includes CITY's officers, officials, employees, agents, representatives, and certified volunteers. D. It is expressly understood and agreed that the foregoing provisions will survive termination of this Agreement. E. The requirements as to the types and limits of insurance coverage to be maintained by CONSULTANT as required by Section 23, 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. 20. ASSIGNABILITY. This Agreement is for CONSULTANT's professional services. CONSULTANT's attempts to assign the benefits or burdens of this Agreement without CITY's written approval are prohibited and will be null and void. 21. INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that CONSULTANT will act as an independent contractor and will have control of all work and the manner in which is it performed. CONSULTANT will be free to contract for similar service to be performed for other employers while under contract with CITY. 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. Any provision in this Agreement that may appear to give CITY the right to direct CONSULTANT as to the details of doing the work or to exercise a measure of control over the work means that CONSULTANT will follow the direction of the CITY as to end results of the work only. 22. AUDIT OF RECORDS. CONSULTANT will maintain, as provided below, full and accurate records with respect to all services and matters provided pursuant to this Agreement and related thereto. CITY will have access, at its own expense, at all reasonable times to such records, and the right to examine and audit the same and to make transcript therefrom, and to inspect all program data, documents, proceedings and activities. CONSULTANT will retain such financial and program service records for at least three (3) years after termination or final payment under this Agreement, whichever is earlier. W Agreement No. 4982 23. INSURANCE. 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: i ln .lranc Limits Commercial general liability: $1,000,000 Professional Liability $1,000,000 Business automobile liability $1,000,000 Workers compensation Statutory requirement B, Commercial general liability insurance will meet or exceed the requirements of the most recent 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 endorsement must be reflected on ISO Form No. CG 20 10 11 85 or 88, or equivalent. 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. Cn 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 renew the insurance for a period of three (3) years after this Agreement expires or is terminated. Such 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. Automobile coverage will be written on ISO Business Auto Coverage Form CA 00 01 06 92, including symbol 1 (Any Auto). E. CONSULTANT will furnish to CITY duly authenticated Certificates of Insurance evidencing maintenance of the insurance required under this Agreement and such -7- Agreement No. 4982 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." F. 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 pursuant to Section 16. 24. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written approval to use any consultants while performing any portion of this Agreement. Such approval must approve of the proposed consultant and the terms of compensation. 25. INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the status on the project, which will include a schedule update and a short narrative description of progress during the past month for each major task, a description of the work remaining and a description of the work to be done before the next schedule update. 26. NOTICES. All communications to either Party by the other Party will be deemed made when received by such Party at its respective name and address as follows: 1 °f to CO) -NS I 11,T"A ..l. ". DZ Solutions Enterprise, INC. 14011 Ventura Blvd #301 Sherman Oaks, CA 91423 Attention: Thomas Gilsenan Thomas.gilsenan@dzsolutions.com If to CITY: City of El Segundo 350 Main Street El Segundo, CA Attention: Scott Kim s w trek W l clo a Any such written communications by mail will be conclusively deemed to have been received by the addressee three (3) business days after deposit thereof in the United States Mail, postage prepaid and properly addressed as noted above. 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. 27. CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest laws and regulations including, without limitation, CITY's conflict of interest regulations. 28. SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor retained any company or person, other than CONSULTANT's bona fide employee, to solicit or secure this Agreement. Further, CONSULTANT warrants that it has not paid nor has it agreed to pay any company or person, other than CONSULTANT's bona fide employee, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Should CONSULTANT breach or violate this warranty, CITY may rescind this Agreement without liability. -8- Agreement No. 4982 29. THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is generally for the exclusive benefit of CONSULTANT and CITY and not for the benefit oil,. any other party. There will be no incidental or other beneficiaries of any of CONSUI:,I -ANT s or CITY's obligations under this Agreement. 30. ATTORNEYS' FEES. Should a lawsuit be commenced to interpret or enforce the terms of this Agreement, the prevailing Party shall be entitled to recover costs and attorneys' fees in addition to any other recovery to which such Party may be entitled. 31. INTERPRETATION. This Agreement was drafted in, and will be construed in accordance with the laws of the State of California, and exclusive venue for any action involving this agreement will be in Los Angeles County. 32. COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state, and local laws applicable to this Agreement. 33. ENTIRE AGREEMENT. This Agreement, and its Attachments, sets forth the entire understanding of the Parties. There are no other understandings, terms or other agreements expressed or implied, oral or written. There is one (1) Attachment to this Agreement. This Agreement will bind and inure to the benefit of the Parties to this Agreement and any subsequent successors and assigns. 34. RULES OF CONSTRUCTION. Each Party has had the opportunity to independently review this Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a whole, and in accordance with its fair meaning; it will not be interpreted strictly for or against either Party. 35. 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 achieve the intent of the Parties and, as so modified, such portion and the balance of this Agreement will continue in full force and effect. 36. AUTHORITY /MODIFICATION. The Parties represent and warrant that all necessary action has been taken by the Parties to authorize the undersigned to execute this Agreement and to engage in the actions described herein. This Agreement may be modified by written amendment of the Parties. CITY's executive manager, or designee, may execute any such amendment on behalf of CITY. 37. ACCEPTANCE OF FACSIMILE SIGNATURES. 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 facsimile transmission or via email. Such facsimile or emailed signature page will be treated in all respects as having the same effect as an original signature. In Agreement No. 4982 38. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement. 39. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this Agreement. 40. 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 (excluding CITY's obligation to pay CONSULTANT for services provided prior to such termination). 41. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that its financial resources, service experience, completion ability, personnel, current workload, experience in dealing with private consultants, 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 CITY. [Signatures on next page] -10- Agreement No. 4982 IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written. CI`I Y,4F EL . XIUNDO Greg (" i ty/ A "1 11ST 1 "ray ° ' klvei% f,r Cit Clerk APPROVED AS TO FORM: — D-- I � ' for ,,,, Mark D. Hen�� Attorney � .. sI � y " -11- DZ SOLUTIONS ENTERPRISES, INC. Thomas Gil........ ,....-........ ._....�m ...............�..��,�. senan President Taxpayer ID No. 2,0 - -f'-khi►it -A - 12424 WILSHWE BLVD. SWE 800 LOS ANGELES, CA 90025 DZ(424) 230 —P3®® �* iws Agreement No. 4982 WVW" HSOLUTIOINS COO Representing a wide breadth of knowledge and expertise, our staff of over twenty full -time systems engineers provides the flexibility, technical acumen, and professionalism to solve your challenges. DZ Solutions was founded as a services organization, and while our company has grown, our dedication to providing outstanding customer service remains stronger than ever. We pride ourselves on our superior support and professional services both onsite and off -site. DZ Solutions understands equipping our clients for success means not just solving the most immediate problems, but also anticipating future challenges. DZ engages in projects of all sizes. Our certified technicians tackle unique issues on as- needed basis as well as offer long -term professional support services. Additionally, retainer blocks, "a -la- carte" hourly services, weekly or monthly recurring visits, blanket support agreements, and emergency support services are all provided. From desktop to datacenter, DZS will provide the effective and efficient support and professional services that will help your business thrive in a competitive environment. Customers purchasing DZS installations may also qualify for our support overlay services (SOS) or an Infrastructure Management Agreement (IMA). DZS prides itself on superior on /off -site technical support services. We offer a -la -carte hourly services, blanket support agreements, as well as emergency support services. We welcome the opportunity to take a look at your environment, bid on a services agreement, and perform any network or production infrastructure evaluations needed. Our engineers can help you with a wide range of subject matters and projects, including: Network Design and Engineering Network Security and Threat Protection Cloud Cost Analysis and Migration Block Storage (SAN) Performance Disk — SSD Flash n7, 4n1ntinnc. FntPrnrkPC inr. - PrnnriPtary anal C.nnfidPntial Agreement No. 4982 Disaster Recovery (DR) and Business Continuity Backup, Recovery, and Data Deduplication We provide each customer with a comprehensive and thorough proposal to make certain that every project is executed in a timely and cost effective manner. We offer a full portfolio of next - generation solutions to help our customers continue to do "more with less ". Rest assured, upgrades can be done while you're in production. That's what we do. DZ Solutions holds specialized training and certifications from a wide variety of our supplier partners, including what you will find attached to this note. DZ Solutions, Enterprises Inc. - Proprietary and Confidential DZ Solutions prides itself on its superior on -site technical support services. We have a team of highly qualified Information Technology professionals. We offer a -la -carte hourly services, blanket support agreements, as well as emergency support services. Our technicians are flexible, knowledgeable and professional. We aim to not only solve the problem, but to help our customers prevent similar problems in the future. r� • 3Com • Hitachi Data Systems • A10 Networks • IBM (Servers) • Adobe Systems • IBM N- Series (Network Appliance) • AmberFiin • IBM XIV Storage • Apple AASP • Intel • Apple Professional • Isilon Systems Video VAR (XSAN Certified) • Juniper Networks • Apple, Inc. • JVC • Aspera Software • Mellanox • Atempo Software • Microsoft • ATTO Technology • Miranda • Axceleon Software • NexSan • BakBone Software • Nirvanix • Blackmagic Design • Noren Products • Brocade • Omnibus • CalDigit • Open Drives • Cisco Systems • OS Nexus • Citrix Systems • Overland Storage • CommVault Software • Palo Alto Networks • DarkTrace • Panasonic • Dell • Promise Technology • Dell Compellent • Qlogic Corporation • Data Direct Networks • Quantum (Hardware, Backup -To -Disk, Tape) • Data Domain • Quantum Enterprise Software (StorNext) • Dulce Systems • Quest Software • EMC • Symantec Software • Extreme Networks • SuperMicro • F5 • Tandberg Data • Forcel0 Networks • Temerity Software • Fortinet • Tier Zero • Foundry Networks • Violin Memory • Fusion -io • VMware • G- Technology • Wacom Technology • Hewlett Packard Enterprise • Xyratex • HP, Inc.