1 PROFESSIONAL SERVICE AGREEMENT
This professional service agreement (“Agreement”), is made and effective as of September 1, 2023, between the City of Hawaiian Gardens ("City"), a municipal corporation, and SC Consulting (“Consultant”). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows:
1. TERM
This Agreement shall commence on September 1, 2023 and shall remain and continue in effect until August 31, 2026, unless extended in writing by both parties, or sooner terminated pursuant to the provisions of this Agreement.
2. SERVICES
Subject to the terms of this Agreement, Consultant shall perform the scope of services identified in Exhibit "A" attached hereto and incorporated herein by this reference. However, City may request to provide other professional services as the City Manager, or his/her designee may necessitate. Such request would be made in writing and consistent with Consultant's qualifications.
3. PERFORMANCE
Consultant shall at all times faithfully, competently and to the best of his/her ability, experience, and talent, perform all tasks described herein. Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder in meeting its obligations under this Agreement. Consultant represents it is skilled in the professional calling necessary to perform the services and duties agreed to hereunder by Consultant and City relies upon the skills and knowledge of Consultant. Consultant shall perform such services and duties consistent with the standards generally recognized as being employed by professionals performing similar service in the State of California.
4. CITY MANAGEMENT
The City Manager or his/her designee shall represent the City in all matters pertaining to the administration of this Agreement, shall review and approve all products submitted by Consultant, including the authority to enlarge the Tasks to be performed or change the compensation due to Consultant. The City Manager is authorized to execute all necessary documents, subject to Section 5 hereof.
5. PAYMENT
A. The City agrees to pay Consultant monthly, in accordance with the Consultant’s Scope of Services, Exhibit A.
Attachment B
2 B. Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement which are in addition to those set forth herein, unless such additional services are authorized in advance and in writing by the City Manager or designee. Consultant shall be compensated for any additional services in the amounts and in the manner as agreed to by the City Manager or designee and Consultant at the time City's written authorization is given to Consultant for the performance of said services.
C. Consultant shall submit invoices monthly for services based on the schedule of payment as set forth in Exhibit A. Invoices shall be submitted on or about the first business day of each month, or as soon thereafter as practical, for services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the City disputes any of Consultant's fees it shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice.
6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE A. Except as otherwise provided herein below, either party may terminate this Agreement, or any portion hereof, by serving written notice of termination upon the other party at least thirty (30) days prior to the date of termination. Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the City terminates a portion of this Agreement, such termination shall not make void or invalidate the remainder of this Agreement.
B. In the event this Agreement is terminated pursuant to this section, the City shall pay to Consultant the actual value of the work performed up to the time of termination, less any disputed amounts. Upon termination of the Agreement pursuant to this section, the Consultant will submit an invoice to the City as provided herein above.
7. CONSULTANT’S RESPONSIBILITIES FOR ITS EMPLOYEES
At all times Contractor's officers and employees providing services under this Agreement shall be Contractor's employees for all purposes, including the purposes of all required payroll deductions and withholdings, workers' compensation insurance, health benefits and any other employee benefits provided by Contractor to its employees.
8. DEFAULT OF CONSULTANT
A. The Consultant's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate this Agreement immediately by written notice to the Consultant. If such failure by the Consultant to make progress in the performance of work 3 hereunder arises out of causes beyond the Consultant's control, and without fault or negligence of the Consultant, it shall not be considered a default.
B. If the City Manager or his/her designee determines that the Consultant is in default for the performance of any of the terms or conditions of this Agreement, he/she shall cause to be served upon the Consultant a written notice of default.
The Consultant shall have ten (10) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time; the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement.
9. OWNERSHIP OF DOCUMENTS
All documents and materials prepared or caused to be prepared by Consultant pursuant to this Agreement, including electronic media, shall be delivered to, and become the property of the City.
10.INDEMNIFICATION BY CONTRACTOR
A. Indemnification for Professional Liability. Consultant shall protect, indemnify, defend and hold harmless the City and any and all of its officials, employees and agents ("Indemnified Parties") from and against any and all losses, liabilities, damages, costs and expenses, including attorney's fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this agreement.
B. Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall protect, indemnify, defend and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened; including attorney’s fees and costs, court costs, interest, defense costs, and expert witness fees); where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or entity for which Consultant is legally liable, including but not limited to officers, agents, employees or subconsultants of Consultant.
C. General Indemnification Provisions. Consultant agrees to obtain executed indemnity agreements. with provisions identical to those set forth here in this section from each and every subconsultant or any other person or entity involved 4 by, for, with or on behalf of Consultant in the performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on successors, assigns or heirs of Consultant and shall survive the termination of this Agreement or this section.
11.INSURANCE REQUIREMENTS
On or before beginning any of the services or work called for by any term of this agreement, Consultant, at its own cost and expense, shall carry and maintain for the duration of the agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Insurance required herein shall be provided by insurers in good standing with the State of California and having a minimum Best's Guide Rating of AClass VII or better.
A. Comprehensive General Liability. Throughout the terms of this agreement, Consultant shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than one million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit.
B. Comprehensive Automobile Liability. Throughout the term of this agreement Consultant shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non-owned vehicles in an, amount not less than one million dollars per occurrence ($1,000,000.00).
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 not less than $1,000,000. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage.
D. Worker's Compensation Insurance. Consultant shall maintain, during the term of this agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law.
5 12.INDEPENDENT CONSULTANT
A. Consultant is and shall at all times remain as to the City a wholly independent Consultant. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be. Under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the City. Consultant shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner.
B. No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement. City shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder.
13.LEGAL RESPONSIBILITIES
The Consultant shall keep itself informed of State and Federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Consultant shall at all times observe and comply with all such laws and regulations. The City, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this Section.
14.RELEASE OF INFORMATION/CONFLICTS OF INTEREST
A. All information gained by Consultant in performance of this Agreement shall be considered confidential and shall not be released by Consultant without City's prior written authorization. Consultant, its officers, employees, agents, or subconsultants, shall not without written authorization from the City Manager or unless requested by the City Attorney, voluntarily provide declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement or relating to any project or property located within the City. Response to a subpoena or court order shall not be considered "voluntary" provided Consultant gives City notice of such court order or subpoena.
B. Consultant shall promptly notify City should Consultant, its officers, employees, agents, or subconsultants be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request (“Discovery”), court order, or subpoena from any person or party regarding this Agreement and the work performed 6 thereunder or with respect to any project or property located within the City, unless the City is a party to any lawsuit, arbitration, or administrative proceeding connected to such Discovery, or unless Consultant is prohibited by law from informing the City of such Discovery. City retains the right, but has no obligation, to represent Consultant and/or be present at any deposition, hearing, or similar proceeding as allowed by law. Unless City is a party to the lawsuit, arbitration, or administrative proceeding and is adverse to Consultant in such proceeding, Consultant agrees to cooperate fully with City and to provide the opportunity to review any response to Discovery requests provided by Consultant. However, City's right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response.
C. Consultant acknowledges that as part of Consultant's performance under this Agreement, Consultant will have access to electronic confidential data and information through City's various workstations; consequently, any release of such information in violation of this Paragraph 14 shall render this Agreement immediately terminated.
15.NOTICES
Any notices which either party may desire to give to the other party under this Agreement must be in writing and may be given either by: (i) personal service; (ii) delivery by a reputable document delivery service (e.g., Federal Express), which provides a receipt showing date and time of delivery; or (iii) United States mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party as set forth below or at any other address as that party may later designate by notice:
To CITY: City of Hawaiian Gardens
Attention: City Manager
21815 Pioneer Blvd.
Hawaiian Gardens, California 90716
To CONSULTANT: SC Consulting LLC
Attention: Sergio Cueva
11278 Los Alamitos Blvd., #343
Los Alamitos, CA 90720
16.ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part thereof, nor any monies due hereunder, to any subcontractor without prior written consent of the City. Such written consent shall not be unreasonably withheld. 7 17.LICENSES
At all times during the term of this Agreement, Consultant shall have in full force and effect, all licenses required of it by law for the performance of the services described in this Agreement.
All software licenses for either the exclusive or non-exclusive use by the City under this Agreement shall be the sole responsibility by the City, including any payment thereof. Failure by City to secure all software licenses shall render this Agreement terminated at Consultant's discretion.
18.GOVERNING LAW
The City and Consultant understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. Any litigation concerning this Agreement shall take place in the municipal, superior, or federal district court with jurisdiction over the City of Hawaiian Gardens.
19.ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written and pertaining to the subject of this Agreement or with respect to the terms and conditions of this Agreement, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material.
20.SEVERABILITY
The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of the other provisions of this Agreement.
21.NO PRESUMPTION REGARDING DRAFTER OF THIS AGREEMENT
The parties acknowledge and agree that the terms and provisions of this Agreement have been negotiated and discussed between the parties and their attorneys, and this Agreement reflects their mutual agreement regarding the same. Because of the nature of such negotiations and discussions, it would be inappropriate to deem any party to be the drafter of this Agreement, and therefore, no presumption for or against validity or as to any interpretation hereof, based upon the identity of the drafter shall be applicable in interpreting or enforcing this Agreement. 8 22.CONTENTS OF PROPOSAL
Consultant is bound by the contents of the proposal/scope of services submitted by the Consultant, found in Exhibit A incorporated hereto.
23.ATTORNEY’S FEES
If any action at law or suit in equity, including an action for declaratory relief, is brought by either party with respect to this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, in addition to any other relief to which it may be entitled, and such amount may be added to, and made a part of, such judgment.
24.AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant warrants and represents that they have the authority to execute this Agreement on behalf of the Consultant and have the authority to bind Consultant to the performance of its obligations hereunder.
25.WAIVER
The waiver by either party of a breach by the other of any provision of this agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this agreement.
26.AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both Consultant and the City Manager and approved as to form by the City Attorney; otherwise by the City Council. Such document shall expressly state that it is intended by the parties to amend the terms and conditions of this Agreement.
27.NON-DISCRIMINATION
In the performance of the terms of this Agreement, Consultant shall not engage in discrimination in the employment of persons because of race, creed, color, religion, national origin, age, physical handicap, marital status or sex. Consultant's personnel providing services under this agreement shall review City's sexual harassment policy and shall abide by such policy in performing services under this Agreement.
28.COUNTERPARTS
This Agreement may be executed in multiple identical counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument, but the parties agree that the Agreement on file in the Office of City's City Clerk is the version of the Agreement that shall take precedent should any differences exist among counterparts of the document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.
SC Consulting
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Sergio'-!!t!a, President
City of Hawaiian Gardens
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Ernesto Marq~~
ATTEST:
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Pablo Rubio, City Clerk
APPROVED AS TO FORM:
Megan Gaibaldi, City AttOA
9 SC CONSULTING
GROUP
• 90 computers
• 13 servers
Exhibit A
• Maintain VMWARE ESXI server environment
• Maintain and update thirteen city servers
• Monitor back-ups on all thirteen servers
• Perform weekly updates on all servers and computers
• Continuous computer support for Administration
• Continuous computer support for the Planning Department • Continuous computer support for the Finance Department • Continuous computer support for Recreation
• Continuous computer support for Leeware and Clarkdale • Work with 3rd party vendors like Matrix and Happy
• Software and Fund Balance for remote support
• Support various software installs in the Planning Department • Support CRW software -weekly maintenance
• Sports Complex computers and signage
• Sports Complex surveillance system
• All phone line and data line support
Below you will find a list of tasks and duties between new offices and new student computer labs that have been added to my responsibilities that were not part of the original contract. In addition to these tasks and duties I have had to be more vigilant of network security and the risks associated with doing business in today's internet world. Data breaches and ransomware are on the rise with the increase of technology, cloud and online services, due to the fact that businesses of any size can be hacked by using any form of technology, cybercrime is much easier to facilitate than it once was.
• An additional SO computers
• An additional S servers - please see attached vSphere Client list • VEEAM backup appliance
• Offsite backup solution deployment
• Malwarebytes Anti-virus deployment
• New ApplicationXtender
• Indexing server
• Deployed new computers at City Hall {22 new computers of the 50 added) • Deployed new Teen Center {13 new computers ofthe 50 added) • Leeware and pool offices (7 new computers ef the SO added} • New Helen Rosas offices (4 new computers of the 50 added) • VAL computer lab (4 new computers of the SO added)
11278 Los Alamitos Boulevard I Suite #343 I Los Alamitos, California 90720
SC CONSULTING
GROUP
• Deployment of free city wide Wi-Fi. This includes continuous monitoring and management of free Wi-Fi at the following locations:
1. City Hall Administration Building
2. Recreation Center and Senior Center
3. Fedde Sports Complex
4. Clarkdale Park
5. Leeware Pool
6. Helen Rosas Building
• Deployment of surveillance systems at the following locations:
1. City Hall Administration Offices
2. Recreation and Senior Center
3. Facilities Yard
4. Clarkdale Park
5. Fedde Sports Complex
6. Public Safety Center
7. Leeware and Helen Rosas Facilities (due for an update)
8. New Teen Center
9. Carson St./Pioneer Blvd. intersection
10. Carson St/Norwalk Blvd. intersection
11. Carson St./Lakewood Mobile Home Estates intersection
12. Norwalk Blvd./223rd intersection
13. 223rd/Teen Center intersection
14. Norwalk Blvd./212th intersection
Compensation: Monthly retainer fee of $6,900
11278 Los Alamitos -Boulevard I Suite 11343 I Los Alamitos, California 90720