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HomeMy WebLinkAboutElevator Marketing Store; 2014-04-17;ASSIGNMENT AND ASSUMPTION AGREEMENT FOR INTERNET HOSTING SERVICES THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment Agreement") is made and entered into this / '-f th day of mo~ 20i}, by and between the CITY OF CARLSBAD, a political subdivision of the Stateof alif a ("City"), ELEVATOR MARKETING STORE, INC., A CALIFORNIA CORPORATION ("Assignor'') and DIGITOPIA, A CALIFORNIA BENEFIT CORPORATION ("Assignee"), and is made with reference to the following facts: RECITALS A. On April 17, 2014, the City and Assignor entered into that certain Professional Services Agreement concerning Internet hosting services, (the "Agreement"). B. Paragraph 25 of the Agreement allows Assignor to assign rights and obligations under the Agreement upon written approval of the City. C. Assignor desires to assign its interest in the Agreement to Assignee. Further, Assignee desires to accept assignment of Assignor's interest in the Agreement and City consents to the assignment of the interest in the Agreement from Assignor to Assignee. NOW THEREFORE, incorporating the above recitals and in consideration of the covenants and obligations set forth herein, the parties hereto agree as follows: 1. Assignment. Assignor hereby assigns to Assignee all of Assignor's rights and obligations as set forth in the Agreement. 2. Assumption. Assignee hereby assumes all of Assignor's rights and obligations as set forth in the Agreement. 3. City Consent. City hereby agrees and consents to the assignment of all of Assignor's rights and obligations as set forth in the Agreement to Assignee. 4. General Terms and Conditions. The following general terms and conditions shall apply to this Assignment Agreement. 4.1 Hold Harmless. In addition to the hold harmless provisions contained within the Agreement, and except as to the sole negligence, or willful misconduct of City, Assignee shall defend, indemnify and hold the City, its officers and employees, harmless from any and all loss, damage, claim for damage, liability, expense or cost, including attorneys fees, which arises out of or is in any way connected with this Assignment Agreement, notwithstanding that City may have benefitted from this Assignment Agreement. The hold harmless provision shall apply to any acts or omissions, wilful! misconduct or negligent conduct, whether active or passive, on the part of Assignee. The parties expressly agree that this section shall survive the expiration or early termination of this Agreement. 4.2. Counterparts. This Assignment Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. City Attorney Approved 07/11/16 4.3. Successors and Assigns. It is mutually understood and agreed that this Assignment Agreement shall be binding upon City, Assignor and Assignee and their respective successors. Neither this Assignment Agreement or any part hereof nor any monies due or to become due hereunder may be assigned by Assignee without the prior consent of City. 4.4. Governing Law. This Assignment Agreement shall be governed by, interpreted under, and construed and enforced in accordance with, the laws of the State of California. 4.5. Venue. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Assignment Agreement shalt be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county. 4.6. Notices. Service of any notices, bills, invoices or other documents required or permitted under this Assignment Agreement shall be sufficient if sent by one party to the other by United States mail, postage prepaid and addressed as follows: City: Assignor: Assignee: Joseph Stewart City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Elevator Marketing Store, Inc. 5431 Avenida Encinas, Ste. J Carlsbad, CA 92008 Digitopia 5431 Avenida Encinas, Ste. J Carlsbad,CA 92008 4.7. Nondiscrimination. During the term of this Assignment Agreement, the parties shall comply with the state and federal laws regarding non-discrimination. 4.8 Authority. The parties executing this Assignment Agreement on behalf of City, Assignor and Assignee each represent and warrant that they have the legal power, right and actual authority to bind the City, Assignor and Assignee, respectively, to the terms and conditions hereof. 4.9 Severability. Each provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement shall be considered severable. In the event any provision, term, condition, covenant, and/or restriction, in whole and in part, in this Assignment Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this Assignment Agreement and shall not affect any other provision, term, condition, covenant, and/or restriction, of this Assignment Agreement and the remainder of this Assignment Agreement shall continue in full force and effect. 4.10 Effective Date. This Assignment Agreement shall be effective upon the date and year first above written. 2 City Attorney Approved 07/11/16 ASSIGNOR: ELEVATOR MARKETING STORE, INC., A California :,9rporation ·~ •By ~ **By: 1/ ( I Jos~ 'hz.ee-W\~ CDO (pr;nt name/Utle) I ~~'-(sign here) ~t4'~k.(o~Q_ C{;o (print name/title) ASSIGNEE: DIGITOPIA, a California Benefit Corporation *By: L~~~=- **By: (print name/title) CITY OF CARLSBAD, a municipal corporation o the State of California By: • 1/ti-a/l , f a{.iil/t:; MARIA CALLANDER Director, Information Technology ATTEST: ( ) ~ . , , 1VYY:x~ .\ IA /4 :rfJ __ ya A'.'v'/1--/' , BARBARA ENGLESON ~~ity Clerk If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups: *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A, ~RE'f{E~ City Attorney By: /i{;0( _.--, Assistant City Attorney 3 City Attorney Approved 07/11/16 ,. , AMENDMENT NO. 2 TO EXTEND THE AGREEMENT FOR INTERNET HOSTING SERVICES ELEVATOR MARKETING STORE, INC. This Amendment No. 2 is entered into and effective as of the s3 I st:day of March, 2017, extending the agreement dated April 17, 201~ (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"}, and Elevator Marketing Store, Inc., ("Contractor") (collectively, the "Parties") for Internet Hosting Services. RECITALS A. On June 11, 2014, the Parties executed Amendment No. 1 to the Agreement to alter the Agreement's pricing and payment schedule; and B. The Parties desire to extend the Agreement for a period of three (3) years. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. The Agreement, as may have been amended from time to time, is hereby extended for a period of three (3) years ending on April15, 2020. 2. All other provisions of the Agreement, as may have been amended from time to time, shall remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, shall include coverage for this Amendment. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill City Attorney Approved Version 1/30/13 4. The individuals executing this Amendment and the instruments referenced on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions hereof of this Amendment. CONTRACTOR By:r (s1gn here) lia.~'-Cvvyd { B-l s.&IL.J= CITY OF CARLSBAD, a municipal corporation of the State of California By: 121 Cit;::;er ATTEST: ' .... e '/Z?> '<lJaYlluc -'LLA-~~ By: ~ ... / => (' A J/ir)/J/J/1 - rntlere) B~RBARA ENGLSON J f?t,;;"fl% ~ ~ . St.;c tt%:r~-C1ty Clerk (print name/title) 1 Y If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A BREWER, City Attorney City Attorney Approved Version 1/30/13 2 AGREEMENT FOR INTERNET HOSTING SERVICES ELEVATOR MARKETING STORE, INC. THIS AGREEMENT is made and entered into as of the f'T'^ day of A(piriC^ , 2014, by and between the CITY OF CARLSBAD, a municipal corporation, (''City"), and Elevator Marketing Store, Inc., a California Corporation, ("Contractor"). RECITALS A. City requires the professional services of an Internet Hosting Service that is experienced in configuration, maintenance and security of website hosting. B. Contractor has the necessary experience in providing hosting services and advice related to hosting and maintaining websites. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein. City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of three (3) years from the date first above written. The City Manager may amend the Agreement to extend it for one (1) additional three (3) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date, pricing, and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be eleven thousand nine hundred eighty-eight dollars ($11,988). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 6. STATUS OF CONTRACTOR City Attorney Approved Version 1/30/13 1 Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election. City may deduct the indemnification amount from any balance owing to Contractor 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. DISENTAGLEMENT AT TERMINATION Contractor shall take all necessary and appropriate actions to accomplish a complete, timely, and seamless transition of any terminated services from Contractor and the Subcontractors, if any, to the City, or to any replacement provider designated by the City, without material interruption of or material adverse impact on the terminated services or any other services provided by third-parties or other service providers that Contractor shall continue to provide (each transition, a "Disentanglement"). Contractor shall cooperate with the City and any new service provider and othenwise promptly take all steps required or reasonably requested to assist the City in effecting a complete and timely Disentanglement of City's terminated Services. Contractor shall provide all information regarding the terminated Services or as othenwise needed for Disentanglement, including data conversion, interface specifications, and related professional services. Contractor shall provide for the prompt and orderly conclusion of all terminated Services, as the City may direct including completion or partial completion of projects, documentation of work in process, and other measures to assure an orderly transition to the City ofthe City's designee. Contractor's obligation to provide the Services shall not cease until a Disentanglement satisfactory to the City, including the performance by Contractor of all asset-transfers and other obligations of Contractor provided in this Section 9, has been completed in accordance with mutually agreed to completion or acceptance criteria or if no agreed acceptance criteria exist, then to the City's reasonable satisfaction. 10. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys' fees arising out of the performance of the work described herein caused by any negligence, City Attorney Approved Version 1/30/13 recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 11. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the sen/ices by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VH". OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". 11.1 Coverages and Limits. Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate. Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. 11.1.1 Commercial General Liability Insurance. $1.000.000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 11.1.2 Automobile Liability. (If the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 11.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 11.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. box is checked. Professional Liability City's Initials Confrictor's Initials Insurance requirement is waived. 11.2. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 11.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. City Attorney Approved Version 1/30/13 11.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 11.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 11.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 11.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 11.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 12. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 13. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment underthis Agreement. 14. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, ali work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City Contractor will have the right to make one (1) copy ofthe work product for Contractor's records. 15. INTELLECTUAL PROPERTY Work for Hire. Contractor understands and agrees that any and all materials and deliverables (e.g. including but not limited to, documentation, computer programs, source code, software products or system design specification, etc.) that are subject to copyright protection that are developed in connection with the performance of this contract (Works) shall constitute a work for hire as that term is defined in the Copyright Act of 1976 (Act), as amended. As a result, all right title and interest in and to all such Works shall belong exclusively to the City, including without limitation all copyrights and other intellectual property rights therein. If for any reason a Work is not deemed to be a work for hire. Contractor hereby grants, transfers, sells and assigns, free of charge, exclusively to the City, all title, rights and interest in and to said Work, including all copyrights and other intellectual property rights. The Contractor further agrees to execute and deliver to the City a confirmatory grant and assignment of all rights in and to Works and to execute any other proper document the City deems necessary to ensure the complete and effective transfer of all rights in Works to the City. City Attorney Approved Version 1/30/13 In the event that Contractor utilizes a sub-contractor(s) for any portion of the Work that is in whole or in part of the specified deliverable(s) to the City, Contractor shall include a statement in the Contractor-subcontractor agreement (Subcontractor Agreement) that identifies that the deliverable/ Work product to the City is a work-for hire as defined in the Act and that all intellectual property rights in the deliverable/ Work product, whether arising in copyright, trademark, service mark or other belongs to and shall vest in the City. Further, the Subcontractor Agreement shall require that the subcontractor grants, transfers, sells and assigns, free of charge, exclusively to the City, all titles, rights and interests in and to said Work/ deliverable, including all copyrights and other intellectual property rights. Intellectual Property Warranty and Indemnification. The Contractor represents that to the best of its knowledge any material or deliverables, including all Works, provided under any resulting contract are either original, not encumbered and do not infringe upon the copyright, trademark, patent or other intellectual property rights of any third party, or are in the public domain. If deliverables, materials or Works provided hereunder become the subject of a claim, suit or allegation of copyright, trademark or patent infringement. City shall have the right, in its sole discretion, to require Contractor to produce, at Contractor's own expense, new non-infringing materials, deliverables or Works as a means of remedying any claim of infringement in addition to any other remedy available to the City under law or equity. Contractor further shall agree to indemnify and hold harmless the City, its officers, employees and agents from and against any and all claims, actions, costs, judgments or damages of any type alleging or threatening that any materials, deliverables, supplies, equipment, services or Works provided under this contract infringe the copyright, trademark, patent or other intellectual property or proprietary rights of any third party (Third Party Claims of Infringement). If a Third Party Claim of Infringement is threatened or made before Contractor receives payment under any resulting contract. City shall be entitled, upon written notice to Contractor, to withhold some or all of such payment. Other Warranties and Remedies. There are no other warranties, express or implied, except those expressly set forth herein. There is no warranty of merchantability or fitness for a particular purpose. Neither party shall be liable for any claim or demand of the other party made directly or as a result of third party claims for lost profits or for indirect, special or consequential damages. Except for the infringement indemnity described herein. Contractor shall not be liable to City for more than the amount received from city for performance of the Services described in any Exhibit to this Agreement. 16. NOTICES The name of the persons who are authorized to give written notices or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For Citv For Contractor Name Bill Baer Name Frank Cowell Title Information Technology Manager Title President & Creative Director Department Infomnation Technology Address 2965 Roosevelt SL, Suite C City of Carlsbad Carlsbad, CA 92008 Address 1635 Faraday Ave. Phone No. 760-494-7590 ext 200 Carlsbad, CA 92008 Email fcowell@elevatoragencycom Phone No. 760-602-2451 City Attorney Approved Version 1/30/13 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 17. CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 18. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 19. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 20. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not othenwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be fonwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party a letter outlining the disputes will be fonwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 21. TERMINATION In the event of the Conlractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination. Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering sixty (60) days written notice to the other party may terminate this Agreement. In this event and upon request of City Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee City Attorney Approved Version 1/30/13 payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 22. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or othenwise recover, the full amount ofthe fee, commission, percentage, brokerage fees, gift, or contingent fee. 23. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.. the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 24. JURISDICTIONS AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 25. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 26. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 27. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. City Attorney Approved Version 1/30/13 CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of Califomia By: yy (sign here) (print name/title) (sign here) (print name/title) City Manager or MoyoF eV'Pivision Director as authorized by the City Manager Tina Steffan ATTEST , BARBARA ENGL^l^ON ^''^^CI.yClerK If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIAA. W&^E^, City Attorney ssistant City Attorney City Attorney Approved Version 1/30/13 EXHIBIT "A" Statement of Work Scope 1. Initial Set-up and Configuration Contractor agrees to provide hosting services including any necessary CMS installation and maintenance. The City acknowledges and accepts that the Contractor will sub- contract the housing ofthe physical sen/er and infrastructure to Media Temple. Hosting DV MANAGED LEVEL 1 DV Managed Servers utilizing patent pending, state-of-the-art server technology that transforms a single physical server into a multi-tenant environment that provisions several virtual private servers (VPS) with guaranteed resources. Server Configuration HP Proliant Servers (HT) Inte Xeon(R) 2.13 Ghz Multi-Core 64 GB Fully Buffered (DDR-3) RAM 1TB Fast SAS disks IOK RPM (RAID-10) 64 Bit OS The Contractor will have the previously mentioned server configuration available 30 days priorto go live. Support and Maintenance SECURITY PACKAGE • Proactive Security Monitoring • Alerts • 2 Clean-ups per Month BACKUPS • Full Server Snapshots APPLICATION MAINTENANCE • Monthly updates to CMS core and, when applicable, plugins • Active rolling offsite backups stored on an Elevator storage account • User management • t?ckmn\irkl f\f QOAAA rurimmrxnto City Attorney Approved Version 1/30/13 2. The economic development site is business-critical and must have a service level that meets and/or exceeds 99.5% accessibility and operability, 24/7/365. In the event that subcontractor is not able to meet a 99.5% service level as described below, the subcontractor agrees to credit the City based on the following schedule: Credit Entitlement Schedule Uptime Level > 99.5% < 99.5% Credit of Monthly Subscription Fee 0% 100% 3. Calculation for Uptime Level Monthly Uptime Percentage is calculated by subtracting A.) The total number of Downtime minutes (See: Downtime Definition - Table 4) experienced in a given calendar month, from B) the total number of minutes in a calendar month, and dividing the results by C). The total number of minutes in a calendar month. Uptime Level= (Total minutes-Downtime minutes)/Total minutes 4. Downtime Definition Downtime is any unplanned period oftime that a Customer User is unable to access their hosted application for which they have been granted permissions. Downtime Does Not Include: Scheduled Downtime Uncontrollable Conditions Adverse Customer Action Minor Outages Scheduled outages and outages occurring with defined schedules for routine network, hardware, or service maintenance or upgrades. (See Downtime Schedule below.) Downtime as a result of any uncontrolled variable outside our exterior Firewall or physical Data Center that causes an outage in service. Downtime caused by a Customer User actions, applications, or system changes that cause an outage in service. Intermittent Outages or period of Downtime for less than 15 minutes will not be counted towards any Downtime. The following table lists the possible Scheduled Downtimes. Scheduled Downtime Service Description Performed Schedule Times 10 City Attorney Approved Version 1/30/13 Daily Minor Major Critical Routine Maintenance and Repairs, Security Updates, Backups and Restores, Equipment Replacement All Services Above, in addition to: Software Updates and Patches, Network Upgrades, Infrastructure Maintenance, Full Back-up and Recoveries Software and Hardware Upgrades Monday- Saturday Sunday 10:00PM-3:00AM Pacific Standard Time 12:00AM-11:59PM Pacific Standard Time Issues Requiring Emergency Any Day Response As Scheduled i As Scheduled ; Any Time 5. Contractor will actively monitor 7/24/365 for any outages, failures, threats and provide eariy warnings. In the event that any issues are detected, notification will be communicated to the City based on the Notification Schedule below. For planned outages and maintenance, advanced notification will be given prior to the outage or maintenance taking place and immediately after the systems are online. For unplanned outages, notification will be sent immediately, via email, posted announcements on Contractor's website and also inbound phone announcements. Notification will be sent immediately following system recovery. An incident report will be delivered via email no later than 24 hours after an unscheduled outage. Notification Schedule Service Performed Policy Notifications Daily Our goal is to provide routine Daily Services As Required and Maintenance without interrupting your service. During this time the systems consume additional resources and you may see a decrease in performance times. If an outage is required, the outbound communication process used for Critical Service. Minor Major For Minor Services scheduled that have a potential cause disruption to your service, we will notify you on the Wednesday and Friday preceding the Sunday the work is to be performed. For Major Services scheduled that have a potential cause disruption to your service, we will notify you 10 days prior and the Wednesday and the Friday preceding the Sunday the work is to be performed. If an outage occurs, customers will be notified immediately following system recovery. 5 & 2 Days Prior to Service 10, 5&2 Days Prior to Service 11 City Attorney Approved Version 1/30/13 Critical For Critical Service and Unplanned As Required Outages, customers will be notified immediately, via email, posted announcements on Contractor's website and also inbound phone announcements. Customers will be notified immediately following system recovery. . Contractor will perform routine maintenance and upgrades on both their infrastructure and software applications supporting the City's economic development website. All planned maintenance and upgrade activities will be communicated with the City per the Notification Schedule. Scheduled Downtime is not considered Downtime for calculating our 99.5% Uptime guarantee and is not qualify for any Downtime credit reimbursement. 7. Pricing: Based on the configuration, availability and support outlined in the previous sections, the City agrees to pay, consistent with the below chart and Section 5 Compensation, an on-going monthly fee of three thousand nine hundred ninety-six dollars ($3,996). DV Managed Level 1 server $408/yr. Security and Monitoring $1188/yr. Snapshots and Backups $240/yr. Application Maintenance $1560/yr. Hosting Administration $600/yr. Total $3996/yr. Credit for Downtime In the event that either the Contractor or any subcontractor fails to meet the Sen/ice Level Uptime as expressed in Section 2 of Exhibit A above. City shall receive a credit based on the Section 2 Credit Entitlement Schedule. The credit cannot exceed the monthly subscription fee. Contractor is responsible for issuing the credit. Notwithstanding, City agrees to provide reasonable assistance to the Contractor in Contractor's attempt to secure any reimbursement from a responsible subcontractor. Contractor will provide an annual invoice forthe annual price of three thousand nine hundred ninety-six dollars ($3,996). 9. Payments will be within a prompt and reasonable timeframe, but in no event later than 21 business days from the receipt of the invoice with the exception of any disputed charges. City Attorney Approved Version 1/30/13 12