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HomeMy WebLinkAboutC-5828 - PSA for City Website Upgrade and Maintenance(yT 'h! AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH VISION TECHNOLOGY SOLUTIONS, LLC, DBA VISION INTERNET PROVIDERS (FKA VISION INTERNET PROVIDERS, INC.) FOR CITY WEBSITE UPGRADE SERVICES THIS AMENDMENT NO. ONE TO THE PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 14th day of November, 2014 ("Effective Date'), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City'), and VISION TECHNOLOGY SOLUTIONS, LLC DBA VISION INTERNET PROVIDERS, a Delaware corporation ("Consultant"), whose address is 2530 Wilshire Boulevard, 2nd Floor, Santa Monica, California 90403, and is made with reference to the following: RECITALS A. On April 30, 2014, City and Consultant entered into a Professional Services Agreement ("Agreement") to provide an upgrade to the City's website Content Management System and annual maintenance ("Project"). Consultant, operating as VISION INTERNET PROVIDERS, INC. at the time, was sold on August 15, 2014, and is now known as VISION TECHNOLOGY SOLUTIONS, LLC, DBA VISION INTERNET PROVIDERS. B. City desires to enter into this Amendment No. One to reflect additional Services not included in the Agreement and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Services, attached hereto as Exhibit A and incorporated herein by reference ("Services' or "Work"). Exhibit A to the Agreement and Exhibit A to Amendment No. One shall collectively be known as "Exhibit A." The City may elect to delete certain Services within the Scope of Services at its sole discretion. 2. COMPENSATION TO CONSULTANT Exhibit A to the Agreement shall be supplemented to include the Schedule of Billing Rates, attached hereto as Exhibit A and incorporated herein by reference. Exhibit A to the Agreement and Exhibit A to Amendment No. One shall collectively be known as "Exhibit A." Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "City shall pay Consultant for the Services on a flat fee not -to -exceed basis in accordance with the provisions of this Section and the Exhibits A and B attached hereto and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Seventy Thousand Thirty -Three Dollars and 001100 ($70,033.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Consultant's additional compensation for additional Services to be performed in accordance with this Amendment No. One, including all reimbursable items and subconsultant fees, in an amount not to exceed Nine Thousand Dollars and 001100 (9,000.00). 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Vision Technology Solutions, LLC DBA Vision Internet Providers Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 311q By: <) Aaron C. Harp U1M �Olgoj 1H City Attorney ATTEST: Date: �a ��• By:_Al��Tmy-'-- Leilani 4I. brown IJ City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: l t!x By: l DaveK-ift City Manager CONSULTANT: Vision Technology Solutions, L C,,a Delaware corporation Date: By: JZ j1kV V V D via Nachman Chief Executive Officer Date: 6/• / 2-. /`/ Eric Tis Vice President of Finance / Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services and Schedule of Billing Rates Vision Technology Solutions, LLC DBA Vision Internet Providers Page 3 F* ■1 O ■ ".1 SCOPE OF SERVICES AND SCHEDULE OF BILLING RATES Vision Technology Solutions, LLC Page A-1 VISION a INTERNET August 22, 2014 City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Re: Design Themes To Whom It May Concern, vision internet 2530 wilshire blvd. 2nd fl santa monica ca 90403 888.263.8847 / 310.656.3100 310.656.3103 fax info@visioninternet.com www.visioninternet.com We've really enjoyed working with the City of Newport Beach on its upgrade so far, and we are especially glad that you are considering Design Themes for your new website. Design Themes will provide your community with even more opportunities to interact with the City's website. Below are details on the types of Design Themes available and related costs: Desian Themes The Design Themes tool allows you to give subsections of the website their own unique look and feel while providing overall navigational and page layout consistency for your website visitors. The navigational and page layout consistency will make navigating the site easier for your users; the structure will remain the same throughout the website. At the same time, however, by being able to apply different graphic designs and color schemes to different sections, you can incorporate distinct branding elements into a single website. To make it easy for your staff, they can simply select the design theme to be applied to the page from a list of available options that Vision Internet defines for the content management system. Below are examples from the City of Bell website. Different templates are used for promoting branding of individual programs. Templates include unique banner collages and color themes. Navigation remains consistent throughout the site. Please note that Vision Internet offers two types of Design Themes. Below are the details on these options: BASIC DESIGN THEMES Included with our basic Design Themes are changes to the following, allowing you to create a unique online presence for departments: • Color Changes • Logo Changes • Background Changes • Font Changes Please note that a Design Theme would act as a skin only with no custom programming required Page 1 V IS ION I INTERNET ADVANCED DESIGN THEMES Advanced Design Themes provide an even more customized presence for your department's sub sections. Included with this option are specific widgets or custom content settings. This means that if your main website has a changeable background, we can customize it so that pages using an Advanced Design Theme can also change their background. Additionally, if the main website has its logo or social icon buttons in the footer or header of its webpages, we can customize pages using the Advanced Design Theme to have different links. Advanced Design Themes include up to one new page template with up to three new widgets for that template. More templates and widgets can be developed for an additional cost. Page 2 VISION low I N f E. R N E T Costs i Design Themes - Basic Cost for first Design Theme I $2,490 Cost for each additional Design Theme $1,625 Design Themes - Advanced j Cost for first Design Theme $5,0001 Cost for each additional Design Theme $4,0001 If you have any questions about this quote, please feel free to contact Project Manager Jannelle Salcido. We look forward to speaking with you further about your website! Respectfully submitted, David Luong Senior Project Coordinator Vision Internet Providers Page 3 PROFESSIONAL SERVICES AGREEMENT WITH VISION INTERNET PROVIDERS, INC. FOR CITY WEBSITE UPGRADE AND MAINTENANCE THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into as of this 30th day of April, 2014 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and VISION INTERNET PROVIDERS, INC., a California corporation ("Vision Internet'), whose address is 2530 Wilshire Boulevard, 2nd Floor, Santa Monica, California 90403, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Vision Internet to provide an upgrade to the City's website Content Management System and annual maintenance ("Project'). C. Vision Internet possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Vision Internet, has reviewed the previous experience and evaluated the expertise of Vision Internet, and desires to retain Vision Internet to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on September 30, 2018, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Vision Internet shall diligently perform all the upgrade and support services described in the Scope of Services attached hereto as Exhibit A ("Upgrade Services") and Exhibit B ("Maintenance Services") and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Vision Internet shall perform the Services in accordance with the schedule included in Exhibit A and Exhibit B. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Vision Internet to strictly adhere to the schedule set forth in Exhibit A or Exhibit B, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Maintenance Services as set forth in Exhibit B shall commence upon the transfer of website files to City. 3.3 Notwithstanding the foregoing, Vision Internet shall not be responsible for delays due to causes beyond Vision Internet's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.4 Vision Internet shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Vision Internet's control. 3.5 For all time periods not specifically set forth herein, Vision Internet shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO VISION INTERNET 4.1 City shall pay Vision Internet for the Services on a flat fee not -to -exceed basis in accordance with the provisions of this Section and Exhibits A and B. Vision Internet's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Sixty -One Thousand Thirty -Three Dollars and 001100 ($61,033.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 For Upgrade Services, City shall pay Vision Internet fifty percent (50%) of the total cost set forth in Exhibit A prior to commence of Work. City shall pay Vision Internet the remaining fifty percent (50%) of the total cost set forth in Exhibit A no later than thirty (30) calendar days after completion of Upgrade Services. Upgrade Services shall be considered complete upon transfer of website files to City. 4.3 For Maintenance Services, Vision Internet shall submit an invoice for the total cost of Work for the upcoming year thirty (30) calendar days prior to commencement of Work. City shall pay Vision Internet no later than thirty (30) calendar days after receipt and approval of the invoice by City staff. Vision Internet Providers, Inc. Page 2 4.4 City shall reimburse Vision Internet only for those costs or expenses specifically identified in this Agreement or specifically approved in writing in advance by City. 4.5 Vision Internet shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Fee Schedule set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Vision Internet shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Vision Internet shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Vision Internet, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Vision Internet warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Vision Internet is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office. City's Public Information Manager or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Vision Internet in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Vision Internet, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Vision Internet's Work schedule. Vision Internet Providers, Inc. Page 3 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Vision Internet or under Vision Internet's supervision. Vision Internet represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first- class firms performing similar work under similar circumstances. 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Vision Internet certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.3 Vision Internet represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Vision Internet to practice its profession. Vision Internet shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Vision Internet shall not be responsible for delay, nor shall Vision Internet be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Vision Internet's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Vision Internet shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Vision Internet's presence or activities conducted on the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions of Vision Internet, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). Vision Internet Providers, Inc. Page 4 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Vision Internet to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Vision Internet. 10. INDEPENDENT CONTRACTOR It is understood that City retains Vision Internet on an independent contractor basis and Vision Internet is not an agent or employee of City. The manner and means of conducting the Work are under the control of Vision Internet, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Vision Internet or its employees. Nothing in this Agreement shall be deemed to constitute approval for Vision Internet or any of Vision Internet's employees or agents, to be the agents or employees of City. Vision Internet shall have the responsibility for and control over the means of performing the Work, provided that Vision Internet is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Vision Internet as to the details of the performance of the Work or to exercise a measure of control over Vision Internet shall mean only that Vision Internet shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Vision Internet agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Vision Internet on the Project. 12. CITY POLICY Vision Internet shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Vision Internet is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Vision Internet's indemnification of City, and prior to commencement of Work, Vision Internet shall obtain, provide and maintain at its own Vision Internet Providers, Inc. Page 5 expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Vision Internet, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Vision Internet is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Vision Internet. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Vision Internet shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Vision Internet, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Vision Internet or any other party. Additionally, all material posted in cyberspace by Vision Internet, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Vision Internet or any other party. Vision Internet shall, at Vision Internet's expense, provide such Documents, including all logins and password information to City upon prior written request. Vision Internet Providers, Inc. Page 6 17.2 Documents, including drawings and specifications, prepared by Vision Internet pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Vision Internet will be at City's sole risk and without liability to Vision Internet. Further, any and all liability arising out of changes made to Vision Internet's deliverables under this Agreement by City or persons other than Vision Internet is waived against Vision Internet, and City assumes full responsibility for such changes unless City has given Vision Internet prior notice and has received from Vision Internet written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY Vision Internet, at its expense, shall defend and indemnify City, its agents, officers, representatives and employees against third -party action, suit, or proceeding ("Claim") for infringement or alleged infringement of any United States' letters patent, trademark, or copyright contained in Vision Internet's Documents provided under this Agreement. Notwithstanding the foregoing, Vision Internet shall have no defense or indemnity obligation for Documents modified by a party other than Vision Internet, for Documents modified in accordance with City's specifications or instructions, or Claims of infringement based on City's other products or other third -party products. 20. RECORDS Vision Internet shall keep records and invoices in connection with the Services to be performed under this Agreement. Vision Internet shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Vision Internet under this Agreement. All such records and invoices shall be clearly identifiable. Vision Internet shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Vision Internet shall 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 to Vision Internet under this Agreement. Vision Internet Providers, Inc. Page 7 21. WITHHOLDINGS City may withhold payment to Vision Internet of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Vision Internet shall not discontinue Work as a result of such withholding. Vision Internet shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Vision Internet shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Vision Internet which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Vision Internet, the additional design, construction and/or restoration expense shall be borne by Vision Intemet. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Vision Internet or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act, Vision Internet shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Vision Internet shall indemnify and hold harmless City for any and all claims for damages resulting from Vision Internet's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Vision Internet to City shall be addressed to City at: Vision Internet Providers, Inc. Page 8 Attn: Tara Finnigan, Public Information Manager City Manager's Office City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Vision Internet shall be addressed to Vision Internet at: Attn: Katrina Bondoc Vision Internet 2530 Wilshire Boulevard, 2nd Floor Santa Monica, CA 90403 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Vision Internet shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Vision Internet's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Vision Internet in writing as unsettled at the time of its final request for payment. Vision Internet and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Vision Internet shall be required to file any claim Vision Internet may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Vision Internet. In the event of termination under this Section, City shall pay Vision Internet for Services satisfactorily performed and costs incurred up to the effective date of termination for which Vision Internet has not been previously paid. On the effective date of termination, Vision Internet Providers, Inc. Page 9 Vision Internet shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Recitals. City and Vision Internet acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 28.2 Compliance with all Laws. Vision Internet shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Vision Internet shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Vision Internet and City and approved as to form by the City Attorney. 28.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. Vision Internet Providers, Inc. Page 10 28.10 Equal Opportunity Employment. Vision Internet represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 28.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Vision Internet Providers, Inc. Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTORNEY'S OFFICE a Califo1<41 m nicipal corporation Date: 5-1.3-14 Date: t By: Uiv' By: Aaron C. arp Da iff City Attorney City Manager ATTEST: VISION INTERNET: Vision Internet Date: J �" Providers, Inc , Ca ' r ' cor ation Date: 5 l� By: ` By: Leilani f. Brown Steve Chapin City Clerk President Date: 5%►(,j ►4 - By: GtVtf Fiiraneial-Offiear [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services: Upgrade Exhibit B — Scope of Services: Maintenance Subscription Exhibit C —Insurance Requirements Vision Internet Providers, Inc. Page 12 EXHIBIT A SCOPE OF SERVICES: UPGRADE Vision Internet Providers, Inc. Page A-1 VISION rw INTERNET The most recent version of the vision CMSTM includes many enhancements and features that were created in direct response to suggestions from clients like you. We are excited to be able to offer even more advanced tools to allow for greater flexibility for website administrators. Highlights include: • Page template builder for creating new layouts on the fly. • Departmental page restrictions so that you can control staff access to individual page templates. • Drag & drop for uploading and sorting pictures, files, and documents in one simple step. • Personal toolbars making it easy for your staff to access frequently used features with one click. • Backend dashboard so that users can oversee site activity and tailor their workspace to their unique needs. • In -page editing for updating content from a front-end view. • iOS friendly editing to allow basic page editing on mobile devices like the iPad and iPhone. Included Interactive Components and Features Included in your upgrade estimate are the following components and functionality: • Audit Trail Log • Backend Content Title Search • Backend Dashboard • Broken Link Reporter • Content Review and Publishing • Component Manager • Content Scheduling • Context Sensitive Online Help • Departmental Page Restrictions • Document Central • Drag and Drop Multiple File and Image Uploading • Email Address Masking • Enhanced User Interface Page 1 • Flexible Site Variable Settings • Image Library • Page Template Library • Personal Toolbar • Role -Based Security • Scheduled Content Review • SiteMasterTm Template Builder • Submission Validation (reCAPTCHA) • Recycle Bin • Updated and Expired Content Reporting • Web Traffic Statistics • Widget -based Layout Options • Workspace V 15 1 ON I N T E R N E T • Advanced WYSIWYG Editor . Table Wizard • Search and Replace • Undo/Redo • Spell Checker • User Commenting • Style Gallery • Version Control • Automatic Breadcrumbs • Navigation Control • Connected Pages • Navigation Redirect • Content Categories • Page Linking • Dynamic Drop Down Menus • Quick Links • Error 404 (Page Not Found) Handling • Single -Source Publishing • External Link Splash Page • Site Search (Google CSE) • Friendly URL Redirect • Sitemap Generator • Business Directory • In -page Content Editing • Business Submissions • Job Application Manager • Community Spotlight • Job Posts • Dynamic Calendar System . News • Dynamic Homepage • Online Polls • Event Registrations • RFP Posts • Event Submissions . Rotating Homepage Banners • Facilities Directory • Service Directory • Facilities Reservations • Single Sign On • Feedback Form • Staff Directory • Form Builder • Sticky News • Frequently Asked Questions • Weather Update • Department -Level Administration • Department -Level Navigation • Department -Level Sitemap • Audio and Video Embedding • Forward to a Friend • Bookmark and Share • GovTrack CRMT1 • eNotification • Photo Gallery & Slideshow Page 2 VISION w-y INTERNET • Emergency Alert (site wide) • Facebook FeedReaderT"' • Automatic Alt -Tags • Dynamic Font Resizing • Dynamic Reader Download Links • Active Directory Integration • Approval Cycle • RSS FeedReaderT°" • Twitter FeedReaderTM • Google Translation Integration • Printer Friendly Pages • Table Accessibility Tools • Responsive Design While the most important tools and functions carry over to the new version, not all functionality from your current content management system will be identical in the new .NET version. We will do everything reasonably possible to ensure at least 95% similarity between your current design and that of the new site. Please note: • If your staff has created customizations or integrations to the site files or database, they will not carry over to the new visionCMSTM. Your staff may be responsible for identifying any customizations they have made and implementing them in the new system. • The listed price for this upgrade is valid for ninety (90) days after receipt of this document, provided no new components or customizations are added to your current site. • We will migrate your existing content to the new site except for content from the Form Tool. The Form Tool has been revamped and the City will need to recreate any forms currently used on the website. Key Component Descriptions As outlined above, the upgrade includes many system enhancements and greatly expanded standard functionality. Key features are described below: SITEMASTERTm TEMPLATE BUILDER Unique to the visionC MSTM the SiteMaster'mTemplate Builder allows your website administrators to create and configure custom interior page layouts throughout website. Need to create a two column page that displays just news and calendar items? Have a special event that needs a unique landing page? No problem! Simply drag and drop your desired content and widgets and your new layout is set. Best of all, you can determine which department content editors are able to use individual templates, providing additional oversight. The SiteMasterTm Template Builder puts you in control and ensures you will be able to easily adapt to your organization's changing content needs. GovTRACK CRMTM With the govTrack CRMTM your residents will be able to make service and information requests based on categories defined by the City. Users can also send comments and files (such as photos of a street lamp requiring maintenance, graffiti that needs to be removed, etc.) to the case processor so that they will have a clearer idea of the work that needs to be done. These requests will be automatically routed to the appropriate case processor and a confirmation email will be sent to the user. Passwords provided to users will allow them to log -in and track Page 3 %, VISION ry I N T E R N E T the progress of their request throughout the process. Users will also receive emails updating them on their requests. Additionally, because govTrack CR MTM is integrated with the included Frequently Asked Questions component, your users will also be able to check for common solutions to their problem before sending it to the City. FACILITIES DIRECTORY WITH RESERVATIONS Facility Directory (Map ;,.,,,, ,,., ,g 1_, View) The Facilities Directory provides citizens with a listing of all types of facilities in the community. Site users are able to search the listing by type (such as parks, recreation centers, and schools) amenities (such as swimming pool, meeting rooms, and kitchen), and capacity. Because the tool is designed to list all facilities in the community, it has a registration form where organizations can put in the necessary information about the facility they have available. Entered information does not become live on the website until after review and approval by your designated administrator. Facilities listed on the directory can also be added to a Google map of your area, providing website visitors with a visual guide to City amenities. t t• ....... Sa 1.1ap Salelh(e HyUne11, D Bul9ank - AI 5 k5 Ptk PNk r..s .Past Aggro rons cmanisas Cletxlnle . _x..e.West kt i. I u 6° eYH t. p e e< Los Angeles , w. ip rQ0� LTi (x � Santa:- M aid! Mcn,ca b H.m.mgton g*p Ie R,, = Park GaNen! ini3lenoal ! Gate (J E ..y.in�o tira•!erre I YrnsxO - [ 1.+anhat!sr- 3arue;.a Compton Reacn .. I . .. iR07onCo - la: Figure 1: Locations listed on the Facilities Directory can be posted onto a Google As an additional function of the Facilities map. Directory, your users will be able to reserve facilities online, making it more convenient for your visitors and residents who are trying to plan events. With the Directory implemented with maps and reservation capabilities, your website will become a one-stop location for finding and using City amenities! ACTIVE DIRECTORY INTEGRATION It is important for a government website to protect itself from unauthorized users. The Vision CMS includes a user and permission system with encrypted passwords that ensures only authorized staff can login to the backend. As an option, Vision Internet can also add custom programming to integrate the CMS login with Active Directory if needed. Please note that the City needs to provide an internal server to host a web service that can be used for the website to interface with the Active Directory server. SSL is the required protocol for data communication. RESPONSIVE DESIGN Your site visitors utilize a wide variety of devices to access your website, including mobile phones, tablets, and computers with large and small monitors. Fortunately, with Responsive Design your website will detect the screen resolution of the user's device and automatically respond, producing a view of the site optimized specifically for that screen. This ensures your site visitors will be able to easily use the site, no matter what device they are using. Page 4 VISION N T E R N E T Vision Internet's creative ability and expertise will allow us to develop compelling graphic design to make your website look great, while maintaining its usability. We will work very closely with your staff to establish a new design for the website that reflects your unique identity. Included in our scope of work, we will implement a new homepage design for your website. We will will provide the City with one homepage design concept for your approval. We will provide revisions of the homepage design concept. Upon approval of the final homepage design concept by the City, we will also create up to three interior page designs. These interior page templates can be applied to your website's departmental pages, providing a consistent overall look. Towards the end of the design phase, we will deliver the following: • One homepage design concept • Approved homepage design • Up to three interior page templates Project Note • Teleworks integration will not carry over to the new visionCMST"' • The vision CMSTM upgrade does not apply to the City's intranet site. City understands and agrees that Vision Internet will develop website frontend to be compatible with Internet Explorer 9, 10, and 11, and the latest released versions at the time of Completion of: Firefox, Chrome, and Safari. Website backend will be compatible with Internet Explorer 9, 10 and 11, and the latest released version at the time of Completion of Chrome and Firefox. Website may not be compatible with previous or future versions. Website backend will be optimized for 1024 x 768 pixels resolution or above. City understands and agrees that the website will be developed with Hypertext Markup Language ("HTML"), CSS, JavaScript, and Microsoft ASP.NET ("MS -ASP") interfaced with a database created in Microsoft SQL Server 2012 R2 ("MS - SQL"). City understands and agrees that the website is developed to run on a Microsoft Windows Server 2012 ("MS -Server"). visionMobileT", if provided under this Agreement, will be compatible with the latest released versions at the time of Completion of iOS Safari, Android Chrome, and Windows Phone 7 Internet Explorer. visionMobileTM may not be compatible with previous or future versions. visionMobileTM, if provided under this Agreement, shall include "Powered by Vision Internet" in the footer and always be linked to a Vision Internet web page. City is responsible for the costs of all software licensing. City understands and agrees that the website frontend and content migrated by Vision Internet will be designed to be compliant with Section 508 guidelines on accessibility as follows: Compliance standards will be verified via Watchfire's BobbyTm software to be compliant to automatic checkpoints prior to Completion. City understands and agrees that website backend and third party tools may not be Section 508 compliant. Vision Internet is not responsible for content migrated by City or any third party." Vision Internet may use any web pages developed for the City in any of its own promotional materials as examples of its work. City agrees that Vision Internet may place in the website footer an unobtrusive text link reading "Developed by Vision Internet" or the equivalent. Vision Internet's footer text credit shall always be linked to a Vision Internet web page. Page 5 VISION N T E R N E T Would you like a subscription -based maintenance plan, but would prefer to host your site in-house? No problem! With our On- • • Premise Subscription Maintenance option, vision­ support you will receive all the maintenance and services outlined below, but will be able to host the site on your own servers. • Unlimited technical support' • CMS system upgrades • Newly developed CMS components' • Free redesign after 4 consecutive years of visionLiveTM service Does not include updates to configuration, content, or formatting among other restrictions. ' Does not include new features that require design customization to implement. Page 6 VISION INTERN ET Our vision CMSTM package is comprehensive and includes: • The newest version of the Vision Content Management SystemT"" • Web -based consultation • A web -based training session • Content migration • The above -listed interactive components • Graphic redesign visionCMST"' Upgrade Responsive Design Graphic Redesign Active Directory Integration Discount Total $16,000 $2,000 $7,000 $4,000 ($2,500) $26,500 As described on page 6, we are offering the City our visionLiveTM subscription maintenance service for a low annual subscription rate of $7,200 with a 5% annual increase. As a part of this service, we are able to provide maintenance, upgrades for the visionCMSTI , newly developed CMS components and a free redesign after four years of visionLiveTM service'. ' Does not include updates to configuration, content, or formatting among other restrictions; does not include new features that require design customization to implement. Page 7 EXHIBIT B SCOPE OF SERVICES: MAINTENANCE SUBSCRIPTION Vision Internet Providers, Inc. Page B-1 visionLiveTM On -Premise Subscription Services Agreement Vision Internet Providers Incorporated Account Terms and Conditions These Terms and Conditions, and any addendum attached hereto, represents the complete agreement and understanding ("Agreement") between Vision Internet Providers hie. ("Vision Internet"), a California corporation, and CITY OF NEWPORT BEACH, CA (the "Client"), and supersedes any other written or oral agreement with regard to the Subscription Services provided for herein. Client and Vision Internet are sometimes individually referred to as "Party" and collectively as "Parties." 1. Ongoing Service Provisions Pursuant to the terms herein, Vision Internet agrees to provide Upgrade Services and Support Services (collectively "Subscription Services") as provided below for the Client's website, which utilizes Vision Internet's Vision Content Management System ("VCMS') developed under a prior or concurrent agreement by and between Vision Internet and Client ("Website Development Agreement"). To the extent that the Website Development Agreement and/or any other prior agreement entered into by and between Vision Internet and Client conflicts with this Agreement, then the terms and conditions of this Agreement shall supersede, replace, and amend any and all conflicting provisions of such prior agreement. Vision Internet will provide Subscription Services to the Client in exchange for payment of fees and compliance with the terms and conditions of this Agreement. Subscription Services include the following: (a) Hosting Services Vision Internet is not providing Hosting Services. Client to provide Hosting Services on its own infrastructure. Vision Internet will assist Client with setting up the website on Client server. A flat rate of $475 will be charged for assistance in setting up the website according to Contractor's Standard Hosting Procedure. Any additional work will be billed at the Technical Support hourly rate. (b) Upgrade Services Vision Internet will provide Upgrade Services which include: • Enhancements to the backend VCMS functionality. • Enhancements to the Included Interactive Components that were developed under the Website Development Agreement or other prior agreement entered into by and between Vision Internet and Client. • New Interactive Components released from time to time according to the visionLivJ"t Roadmap ("Roadmap"). • Bug fixes to the VCMS code. • Updates to provide compatibility to future versions of Supported Web Browsers (as defined below) within three months of their release. Compatibility with previous versions of Supported Web Browsers is not guaranteed. Client understands and agrees that the Supported Web Browsers for the fromend of the website currently are Firefox, Internet Explorer, Chrome, and Safari. Client understands and agrees that Supported Web Browsers for the backend of the website currently are the latest released versions at the time of �*y 1 Client's Initials Vision Internet's Initials Completion of Firefox and hitemet Explorer. Client understands and agrees that Supported Web Browsers for visionMobileTM currently are iOS Safari, Android Chrome, and Windows Phone 7 Internet Explorer. All of the web browsers listed in this paragraph, and any others added by Vision Internet at its discretion are herein referred to collectively as the "Supported Web Browsers". To receive the Upgrade Services, a non -interrupted Subscription Services Agreement must be in place from time of website launch and the VCMS code must be unmodified. Client must provide Vision Internet continual server access to receive Upgrade Services and at no time may Client modify the code. Modification of code may result in files being overwritten. Upgrade Services do not include: • Optional Interactive Components. • Modules, Programs, or Software Applications. • New VCMS Interactive Components. • Conversion to new platforms. • Modification of third -party products. • Updates to provide compatibility to third -party products, except for those included in VCMS. • Upgrades that require modification or customization to website design. • System configuration, website content editing and/or formatting, website design, custom data updates, etc. (c) Support Services Support Services is defined as technical support for the unmodified VCMS. Vision Internet will provide Support Services to a designated Client account manager, system administrator or webmaster. Technical support is generally available by email and telephone from 6:00 AM to 6:00 PM Pacific Time Monday through Friday excluding holidays ("Business Hours"), with emergency support available 24 hours a day, 7 days a week. An emergency is defined as the website being down for more than ten (10) minutes. (d) Redesign Services At the conclusion of year four of an uninterrupted Subscription Services agreement, the Client will be entitled to a basic graphic redesign of one (1) website. Basic graphic redesign does not include Design Themes. Services shall include: • Project Management • Wireframe Development • Graphic Design Development with one preliminary concept • Graphic Production Vision Internet will not develop a sitemap or new content as part of the redesign, but will assist the Client in transferring existing content into the new design. 2. Fees Rate: $7,200 per year payable to Vision Internet in U.S. funds in advance, which rate shall be increased by five percent (5%) per year, for each year of the Initial Term (defined below), and any and all renewal terms, as provided in Section 3 below. Vision Internet shall invoice Client annually within thirty days of start of service or any renewal term as defined below. Any services not covered in this Agreement will be subject to additional fees and will be considered extra work ("Extra Work"). Extra Work will be billed at 2 Client's Initials vl Vision Internet's Initials4G Vision Internet's prevailing hourly rates, which are currently as follows: HTML Programming, Content Migration, $85/hr; Graphic Production $95/hr, Quality Assurance, Testing, Debugging, Technical Support, Webmaster Services, $105/hr; Consulting, Project Management, Database Design, Dynamic Programming, $135/hr; Graphic Design, Training, $125/hr. Client shall be responsible for any or all additional fees including, without limitation: software, applications, online promotion, marketing, copy writing, redesign, change orders, mailings, fees to any third party vendors if applicable, and websites exceeding IOGB of storage. Websites exceeding IOGB of storage shall be subject to a monthly fee of $50 per 5GB increment. Maintenance work is considered Extra Work as defined herein. Calls outside of Business Hours not deemed an emergency as defined above will be subject to a minimum fee of $135. 3. Term The Subscription Services will begin upon delivery of website files to Client and remain in effect for a period of four years thereafter (the "Initial Term"). With respect to the Initial Term, unless one party has given written notice to the other party of its intent not to renew this Agreement at least thirty (30) days prior to expiration of the Initial Term, this Agreement will continue in effect on a year-to-year basis thereafter until one party gives written notice to the other of its intent not to renew this Agreement at least thirty (30) days prior to the expiration of any renewal term. If the term of this Agreement is extended or renewed in accordance with the foregoing, all of the terms and conditions of this Agreement shall continue, unmodified, in full force and effect, until the end of the last applicable renewal or extension term, except that all rates, fees, charges, and compensation payable to Vision Internet hereunder shall be increased by five percent (5%) per year, for each annual renewal term extending the term hereof. 4. Subscription Services Website Usage (a) The Client shall use the Subscription Services in strict accordance with, but not limited to, all local, state, and federal laws. The Client shall not use the Subscription Services for any unlawful or destructive purpose including, but not limited to, copyright and/or trademark infringement. The Client hereby represents and warrants that any text, data, graphics, or any other material displayed or published by the Client on its Website is, and shall continue to be, throughout the term of this Agreement, free from violation of or infringement upon copyright, trademark, service mark, patent, trade secret, statutory, common law or proprietary or intellectual property rights of others, and is free from obscene or libelous material. (b) The Client represents and warrants that it has or has obtained all rights necessary to display all the images, data, information or other items being displayed at the Client's Website. The Client expressly authorizes Vision Internet to display those images, data, information or other items. (c) The Client shall not misuse any of Vision Internet's resources or cause any disruption to Vision Internet's business ("Misuse"). Examples of Misuse include, but are not limited to, the display of pornography or linking to pornographic material, the sending of chain letters, advertisements, solicitations, or mass mailings to individuals who have not agreed to be contacted in this manner (including, but not limited to, what is commonly referred to as "Spam"). (d) The Client shall not use any process, program or tool via Vision Internet for gaining unauthorized access to the accounts of other parties, including but not limited to, other Vision Internet clients, customers or account holders or other Vision Internet systems. The Client shall not use Subscription Services to make unauthorized attempts to access the systems and networks of others. Client shall not use Vision Internet's services as a door or signpost to another server. r Client's Initials Vision Internet's Initials (e) The Client shall not use Subscription Services in a manner in which system or network resources are denied to other Vision Internet clients, customers or account holders. This includes, but is not limited, to excessive memory usage and programs that consume excessive CPU resources. (f) The Client will have password access to the VCMS through the Subscription Services. The Client agrees to be responsible for keeping all passwords secure and will immediately notify Vision Internet if a password is lost, stolen or compromised in any way. The Client shall be responsible for all use of Subscription Services accessed through the Client's passwords. The Client's passwords are not transferable to any third party and are subject to any limits established by Vision Internet. 5. Disclaimers and Acknowledgments (a) The Internet (i) The Client acknowledges that, when using the Internet, the Client is using a completely different physical network than the Vision Internet communications network and different content than available on Vision Internet. The reliability, availability and performance of resources accessed through the Internet are beyond Vision Internet's control and are not in any way warranted or supported by Vision Internet. The Client acknowledges that safeguards relative to copyright, ownership, decency, reliability and integrity of content may be entirely lacking with respect to the Internet and content accessible through it. Vision Internet makes no warranty that any systems accessed will be free of computer viruses. The Client is responsible for making backup copies of its files. The Client assumes all risk and liability of its use of the Internet. (ii) The Client specifically acknowledges that Vision Internet provides access to other systems not controlled by Vision Internet including, but not limited to, discussion groups, RSS Feeds, websites and databases, that may contain pictures and language intended for adult audiences. The Client further understands that Vision Internet is not responsible for any damages that may result from exposure to such material and the Client shall hold Vision Internet harmless from any damages that may result. (iii) Vision Internet does not warrant (a) any connection to, transmission over, nor results or use of, any network connection or facilities provided under this Agreement or (b) any third - party applications and software obtained by, for, or on behalf of Client. VISION INTERNET MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS OF THE SUBSCRIPTION SERVICES FOR ANY PARTICULAR PURPOSE WHATSOEVER. Vision Internet assumes no responsibility for any damages suffered by the Client, including, but not limited to, server down time, loss of data, loss of business, mis-deliveries, delays, non -deliveries, access speed, service interruptions of any kind, or to third -party applications and software used by Client. In no event, at any time, shall the aggregate liability of Vision Internet exceed the amount of fees paid by Client to Vision Internet and Vision Internet shall not be responsible for any lost profits or other damages, including direct, indirect, incidental, special, consequential or any other damages, however caused. (iv) The Client acknowledges that the information available through the Internet may not be accurate. Vision Internet has no ability or authority over the material. In addition, Vision Internet has no liability for the quality, accuracy, or validity of the data/information delivered over the Internet. Use of information gathered through the use of Vision Internet services is at the risk of the Client. e Client's Initials. Vision Internet's Initial (b) Domain Name and Secure Digital Certificate If agreed to under this Agreement, Vision Internet will apply for a custom domain name of the Client's choosing. Vision Internet cannot guarantee the availability of any particular name. Client is responsible for all fees charged by the registrar (i.e. Verisign or Dotster) including setup and renewal fees. Client shall be responsible for all licensing fees, if any, including but not limited to secure digital certificate renewal fees. Vision Internet shall not be responsible for maintaining or renewing domain names, digital certificates, or any other third party registrations. 6. Indemnification (a) Vision Internet will defend, hold harmless and indemnify Client from and against all liability costs and expenses including reasonable attorney fees resulting from claims of injury to person, damages to property, or monetary damages arising out of Vision Internet's negligence or intentional misconduct. (b) The Client will defend, hold harmless and indemnify Vision Internet, its officers, directors, shareholders, employees and agents from and against all liability costs and expenses including reasonable attorney fees resulting from claims of injury to person, damages to property, or monetary damages arising out of the Client's negligence or intentional misconduct. 7. Defaults The occurrence of any one or more of the following shall constitute an Event of Default under this Agreement: (a) Any Misuse of Vision Internet resources that disrupts Vision Internet's business. (b) The Client's breach of any representation, warranty, term or provision of this Agreement. 8. Remedies (a) If Vision Internet discovers that the Client is displaying content that is in violation of any of the foregoing provisions, Vision Internet may discontinue or suspend access to the Client's Website without prior notice, until the violating item(s) have been resolved. However, the Client shall remain liable for all payments due under this Agreement as if access had not been interrupted; (b) If an Event of Default occurs, Vision Internet may immediately discontinue or suspend access to the Client's Website without prior notice and may immediately terminate this Agreement. However, if access is only suspended, the Client shall remain liable for all payments due under this Agreement as if access had not been interrupted; and/or (c) If an Event of Default occurs and remains uncured for at least ten (10) days after Vision Internet's delivery of written or email notice to Client, Vision Internet may immediately terminate Subscription Services and this Agreement. 9. Documents & Data; Licensing of Intellectual Property This Agreement creates a non-exclusive and perpetual license for Client to copy, use, or modify for its own use, any and all copyrights, designs, and other intellectual property embodied in this website, which are prepared or caused to be prepared by Vision Internet under this Agreement ("Documents & Data"), to 5 Client's Initials i3"L% Vision Internet's Initials which Vision Internet retains ownership of all intellectual property rights. Notwithstanding anything to the contrary in any of the agreement documents, Client understands and agrees that Vision Internet shall retain all right, title, and interest to the Vision Content Management System (also known as the Vision Internet Content Management System, VCMT, VCMS and the Vision Content Management Tool), and Dynamic and Interactive Components. 10. Other (a) The headings in this Agreement are intended solely for convenience and shall be given no effect in the construction or interpretation of this Agreement. (b) The Client agrees that a failure to exercise or delay in exercising any right, power or privilege on the part of Vision Internet will not operate as a waiver or estoppel thereof. (c) Neither the course of conduct between parties nor any trade practice shall act to modify the provisions of this Agreement except as expressly stated herein. (d) This Agreement shall be governed by and construed in accordance with the laws of the United States of America, and the State of California. Any cause of action of the Client with respect to the services provided hereunder must be instituted within one year after the claim or cause of action has arisen or be forever barred. Further, jurisdiction and venue for any cause of action or claim with respect to the services provided hereunder shall be exclusively in the County of Los Angeles. (e) Except for any injunctive relief or similar remedy, which may be sought in any court of competent jurisdiction subject to the immediately preceding paragraph, any controversy, dispute, claim or counterclaim, whether it involves a disagreement about this Agreement or its meaning, interpretation, or application; the performance of the Agreement; questions of arbitrability as to subject matter of the dispute; whether an agreement to arbitrate exists and, if so, whether it covers the dispute(s) in question; or any other question of arbitrability or form of disagreement or conflict among the parties to the Agreement, shall be submitted to final and binding arbitration at the request of either party, in accordance with the Commercial Arbitration Rules of the American Arbitration Association, or the comparable rules promulgated by ADR Services or JAMS in Los Angeles, California. The arbitration shall take place in the County of Los Angeles. The arbitrators shall apply California substantive law and the California Evidence Code to the proceeding. The arbitrators shall have the power to grant all legal and equitable remedies and award compensatory damages provided by California law. The arbitrators shall prepare in writing and provide to the parties an award including factual findings and the reasons on which the decision is based. The arbitrators shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected pursuant to California Code of Civil Procedure sections 1286.2 or 1286.6 for any such error. In the event the parties are unable to agree as to the arbitrator, each shall select an arbitrator who shall, in tum, select the third and sole arbitrator. Each party shall be responsible for one-half of the costs for the arbitrator(s) and arbitration. (f) Should a dispute, including but not limited to any litigation or arbitration be commenced (including any proceedings in a bankruptcy court) between the parties hereto or their representatives concerning any provision of this Agreement, or the rights and duties of any person or entity hereunder, the party or parties prevailing shall be entitled to attorneys' fees, expenses of counsel and court costs incurred by reason of such action. (g) With the intent to be legally bound, each of the undersigned hereby covenants and acknowledges that he, she or it (i) has read each of the terms set forth herein, (ii) has the authorit to 6 Client's Initials t, Vision Internet's Initials_ execute this Agreement for such person or entity, and (iii) expressly consents and agrees that the person or entity upon behalf of which the undersigned is acting shall be bound by all terms and conditions contained herein. (h) The parties have each been advised to seek independent legal counsel in entering into this Agreement and the transactions described herein. In the event a party chooses not to seek independent legal counsel, that party does so freely and knowingly and waives any such rights to counsel. As a result, the Parties do not believe that the presumptions of California Civil Code section 1654 relating to the interpretation of contracts against the drafter of any particular clause should be applied in this case and therefore the Parties knowingly and freely waive its effects. (i) Any delay in the performance by either Party hereto of its obligations hereunder shall be excused when such delay in performance is due to any cause or event of any nature whatsoever beyond the reasonable control of such Party, including, without limitation, any act of God; any fire, flood, or weather condition; any computer virus, worm, denial of service attack; any earthquake; any act of a public enemy, war, insurrection, riot, explosion or strike; provided, that written notice thereof must be given by such Party to the other Party within ten (10) days after occurrence of such cause or event. 0) This Agreement, including any attached addendum, is the entire, complete, final and exclusive expression of the parties with respect to the Subscription Services and supersedes all other agreements or understandings, whether oral or written, or entered into between Client and Vision Internet prior to the execution of this Agreement related thereto. No amendment to this Agreement shall be valid and binding unless in writing duly executed by the parties or their authorized representatives. (k) It is understood and agreed that if any interpretation is to be made of this Agreement, the same shall not be construed for or against any of the Parties. If any provision of this Agreement is determined to be invalid, all other provisions shall remain in full force and effect. (1) This Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same Agreement. This Agreement becomes effective upon Vision Internet's receipt of an executed copy of this Agreement and receipt of any sums of money that are provided for herein. (m) All notices under this Agreement shall be in writing and effective on the date of delivery if delivered by personal service, Federal Express, or facsimile; or effective three (3) days after deposit in first class U.S. mail, postage prepaid, to each party as follows: (1) Client: City of Newport Beach, CA Address: 100 CtV Z L C -Vv . t"CWiVC- AfA&?Vr+ 3P-MAt , CA 4ZvtOa Attn: — ct ✓u ri VlK i c Gust Fax: qyq— L#44 - T13Z0 (2) Vision Internet: 2530 Wilshire Boulevard, 2nd Floor Santa Monica, California 90403 Attn: Steven Chapin Cc: Rose De Vries 7 Client's Initials Vision Internet's Initials Fax: (310) 656-3103 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates set forth next to their signatures below. CITY OF NEWPORT BEACH DATE:_/LJJ14 By: Print Name IOCAV e- 104 Print Title C i+y MA—& c e_v v DATE: '5 ]I (n r By: t VISION INTERNET PROVIDERS, INC. CHAPIN Title: President Client's Initials"" ,_ Vision Internet's Initials e5;?- Addendum 1 to Subscription Services Agreement Client and Vision Internet may have already entered into one or more separate agreements which specify (1) the inclusion of Included and/or Optional Interactive Components and Features and/or (2) browser compatibility, and/or (3) hosting provisions. To the extent that any prior agreement entered into by and between Vision Internet and Client conflicts with this Agreement, then the terms and conditions of this Agreement shall supersede, replace, and amend any and all conflicting provisions of such prior agreement. 1. Included Interactive Components and Features The following are the initial Included Interactive Components and Features provided in Client's project, subject to upgrades and revisions based on Vision Internet's then current Included Interactive Components listed on the Roadman. Additional options may be available and can be added for an additional fee: • Audit Trail Log • Backend Content Title Search • Backend Dashboard • Broken Link Reporter • Content Review and Publishing • Component Manager • Content Scheduling • Context Sensitive Online Help • Departmental Page Restrictions • Document Central • Drag and Drop Multiple File and Image Uploading • Email Address Masking • Enhanced User Interface • Advanced WYSIWYG Editor • Search and Replace • Spell Checker • Style Gallery • Flexible Site Variable Settings • Image Library • Page Template Library • Personal Toolbar • Role -Based Security • Scheduled Content Review • SiteMasterm Template Builder • Submission Validation (reCAPTCHA) • Recycle Bin • Updated and Expired Content Reporting • Web Traffic Statistics • Widget -based Layout Options • Workspace • Table Wizard • Undo/Redo • User Commenting • Version Control • Automatic Breadcnunbs • Navigation Control • Connected Pages • Navigation Redirect • Content Categories • Page Linking • Dynamic Drop Down Menus • Quick Links • Error 404 (Page Not Found) Handling • Single -Source Publishing • External Link Splash Page • Site Search (Google CSE) E Client's Initials Vision Internet's Initials -5 • Friendly URL Redirect • Business Directory • Community Spotlight • Dynamic Calendar System • Dynamic Homepage • Facilities Directory • Facilities Reservations • Feedback Form • Form Builder • Frequently Asked Questions • Sitemap Generator • In -page Content Editing • Job Posts • News • RFP Posts • Rotating Homepage Banners • Service Directory • Staff Directory • Sticky News • Weather Update ir0 a ry�F py,�i�p"l,l, A d} Ny-�ryB[�"p, y '�(' kp� ✓' B, kl'1C,14'Y'1.1" y f 4 PVI ! 2 iiR H P fs. • Department -Level Administration Department -Level• • Department -Level Sitemap • Forward to a Friend • Automatic Alt -Tags • Dynamic Font Resizing • Dynamic Reader Download Links • Google Translation Integration • Printer Friendly Pages • Table Accessibility Tools • Active Directory Integration Responsive Design • Approval 2. Customizations The following are customizations provided in Client's project: • None. 10 Client's Initials bfo(_. Vision Internet's Initials EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Vision Internet's indemnification of City, and prior to commencement of Work, Vision Internet shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Vision Internet agrees to provide insurance in accordance with requirements set forth here. If Vision Internet uses existing coverage to comply and that coverage does not meet these requirements, Vision Internet agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Vision Internet shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Vision Internet shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Vision Internet shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. Vision Internet shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Vision Internet arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or Vision Internet Providers, Inc. Page C-1 rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. Professional Liability (Errors & Omissions) Insurance. Vision Internet shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000.) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Vision Internet agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. E. Cyber Liability Insurance. Vision Internet shall maintain cyber liability insurance with limits of not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate covering claims involving privacy violations, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information, alteration of electronic information, extortion and network security. Such coverage is required only if any products and/or services related to information technology (including hardware and/or software) are provided to City and for claims involving any professional services for which Vision Internet is engaged with insured for such length of time as necessary to cover any and all claims. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Vision Internet or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Vision Internet hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, volunteers and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten Vision Internet Providers, Inc. Page C-2 (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Vision Internet shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Vision Internet sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Vision Internet, City and Vision Internet may renegotiate Vision Internet's compensation. C. Enforcement of Agreement Provisions. Vision Internet acknowledges and agrees that any actual or alleged failure on the part of City to inform Vision Internet of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Vision Internet or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Vision Internet's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from Vision Internet Providers, Inc. Page C-3 amounts payable to Vision Internet or reimbursed by Vision Internet upon demand. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Vision Internet's Insurance. Vision Internet shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Vision Internet Providers, Inc. Page C-4 E C)3 2. 0002, 0 3L20 -8 c8 o PROFESSIONAL SERVICES AGREEMENT WITH U� VISION INTERNET PROVIDERS, INC. FOR WEBSITE MAINTENANCE THIS AGREEMENT is made and entered into as of this t day of 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporati n ("City"), and VISION INTERNET PROVIDERS, INC., a California Corporation whose address is 2530 Wilshire Boulevard, 2nd Floor, Santa Monica, California, 90403 ("Consultant"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to provide ongoing maintenance for the City's website. C. City desires to engage Consultant to provide website maintenance to include HTML programming, data input, graphic production, webmaster services, database design, dynamic programming graphic design, and training, and to purchase an additional component from Consultant for improved viewing of City's website on mobile devices and to engage Consultant to install and maintain additional component. ("Project"). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Steve Chapin. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on July 1, 2010, and shall terminate on June 30, 2011, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. Consultant shall install the component described in Exhibit B on City's website, and shall support and maintain the component as part of the website maintenance services described in Exhibit A. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand -delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services at a flat rate amount in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit A and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Nine Thousand Eight Hundred and Eighty Five Dollars and no/100 ($9,888.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and/or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing Professional Services Agreement Page 2 in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated TRAVIS GREEN to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office. TARA FINNIGAN, PUBLIC INFORMATION MANAGER, or his/her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. iRi®lARB16i4Y1®fR�(lRWII1191A Professional Services Agreement Page 3 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, Professional Services Agreement Page 4 and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. Professional Services Agreement Page 5 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. C. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Professional Services Agreement Page 6 Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non-payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of Professional Services Agreement Page 7 any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power, or twenty- five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant Professional Services Agreement Page 8 or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. LICENSE Consultant shall retain all right, title, and interest in the Vision Internet Content Management Tool (also known as the Vision Content Management Tool, VCMT, VCMS and the Vision Content Management System), dynamic components, and interactive components (collectively, the "Consultant's Proprietary Tools"). Consultant grants to City a perpetual, non-exclusive, royalty -free license to use, for its own use, any of Consultant's Proprietary Tools provided under this Agreement. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any Professional Services Agreement Page 9 longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall 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 to Consultant under this Agreement. 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered Professional Services Agreement Page 10 personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Tara Finnigan, Public Information Manager City Manager's Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Phone: 949-644-3035 Fax: 949-644-3020 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Rose DeVries Vision Internet Providers, Inc. 2530 Wilshire Boulevard, 2nd Floor Santa Monica, CA 90403 Phone: 310-656-3100 Fax: 310-656-3103 28. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 29. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents Professional Services Agreement Page 11 and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 30. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 31. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 32. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 33. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 34. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 35. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 36. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. Professional Services Agreement Page 12 37. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 38. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Professional Services Agreement Page 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: My tte Beauamp Assistant City ttorney ATTEST: By: AAk Leilani Brown, City Clerk Attachments: CITY OF NEWPORT BEACH, A Municipal Corporation By: w D v' A. Kiff City Manager CONSULTANT: VISION INTERNET By: Title: C porate Officer Printed Name: Steve Chapin By: Title: Financial Officer Printed Name: Robert Ackerman Exhibit A — Scope of Services Exhibit B — Enhancement #2 Professional Services Agreement Page 14 Attachment A 1. Consultant agrees to perform website maintenance up to three (3) hours per month at a price of $330 per month. Any unused hours in a given month will be applied to the following month ("Surplus Hours"). In the event there are Surplus Hours at the end of twelve months, Consultant will allow Client to apply these hours to website component development, provided that: a. Consultant has been paid in full, and on time each month, b. Any work to utilize Surplus Hours is requested by Client prior to the end of the thirteenth month, and C. Work requested by Client can be reasonably completed by Consultant by the end of the fourteenth month. 2. In the event that the conditions of 1 a, b, and c above are not fulfilled then all Surplus Hours are forfeited. 3. Services included within the scope of website maintenance include HTML Programming, Data Input, Graphic Production, Webmaster Services, Database Design, Dynamic Programming Graphic Design, Training. 4. The term of this agreement shall be July 1, 2010 — June 30, 2011. 5. Additional products and services not covered in this Agreement and extra work (i.e., work beyond the three (3) hours per month) may be requested by Client from time to time under this Agreement ("Extra Work"). Extra Work will be billed as quoted at time of request in an addendum signed by the Parties or at prevailing hourly rates which are currently as follows: Data Input, $85/hr; Graphic Production $95/hr; Quality Assurance, Testing, Debugging, Webmaster Services & HTML Programming, $105/hr; Consulting, Project Management, Database Design, Dynamic Programming, $135/hr; Graphic Design, Training, $125/hr; Straight flatbed scanning will be billed at $10 per scan. Touch up work to images will be billed at the graphic design hourly rate. Client shall be responsible for any or all additional fees including, without limitation: photography, stock images, illustration, scanning, software, applications, online promotion, marketing, copy writing, redesign, change orders, mailings, and fees to any third party vendors if applicable. 6. Notwithstanding anything to the contrary in the Agreement, Consultant shall retain all right, title, and interest in the Vision Internet Content Management Tool (also known as the Vision Content Management Tool, VCMT, VCMS and the Vision Content Management System), dynamic components, and interactive components (collectively, the "Consultant's Proprietary Tools"); however, upon payment in full, Consultant hereby grants to City a perpetual, non-exclusive, royalty free license to use for its own use any of Consultant's Proprietary Tools provided under this Agreement. vision I n t e r n e t Attachment B To Whom It May Concern, This document, Attachment B, represents and describes additional work for the City of Newport Beach website. visionMobile7m visionMobileT' dynamically converts all standard web pages and key components, such as the Calendar, News and Newsletters, Job Postings, and FAQs, to your mobile website. Updates remain simple and easy with dynamic posting to the traditional website and the mobile version. Also, intuitive navigation allows users to go through all page levels with ease. Your website will be compatible with all major smart phones including iPhone, Blackberry, Android, Windows Mobile phones and more. E �J'U — Figure 1 visionMobile'm will make your website compatible with all major smart phones including iPhone, Blackberry, Android, Windows Mobile phones and more. Price for Services Item Pricing visionMobileTM $5,925 If you have any questions regarding the above mentioned proposed item, please feel free to contact your Account Manager Travis Green. We look forward to further discussing how Vision Internet can provide the City of Newport Beach with solutions for its website needs. -1- vision I n t e r n e t Notwithstanding anything to the contrary in the Agreement, Consultant shall retain all right, title, and interest in the Vision Internet Content Management Tool (also known as the Vision Content Management Tool, VCMT, VCMS and the Vision Content Management System), dynamic components, and interactive components (collectively, the "Consultant's Proprietary Tools"); however, upon payment in full, Consultant hereby grants to City a perpetual, non-exclusive, royalty free license to use for its own use any of Consultant's Proprietary Tools provided under this Agreement. Sincerely, Steven B. Chapin President, Vision Internet Providers, Inc. -2-