HomeMy WebLinkAboutC-7193-1 - PSA for Whitebirch Software Services and Forecasting Advisory ServicesKa
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PROFESSIONAL SERVICES AGREEMENT
CJ WITH PFM SOLUTIONS LLC FOR
WHITEBIRCH SOFTWARE SERVICES AND FORECASTING ADVISORY
SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and
entered into as of this 25th day of September, 2017 ("Effective Date"), by and between
the CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("City"), and PFM SOLUTIONS LLC, a Delaware limited liability company ("Consultant'),
whose address is 1735 Market Street, 43rd Floor, Philadelphia, Pennsylvania 19103, 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 Consultant to provide, host, manage, operate and maintain
the Whitebirch Service Software for remote electronic access and to provide
forecasting advisory services ("Project').
C. Consultant 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 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 the Effective Date, and shall
terminate on July 31, 2020, 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 ("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 Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
the schedule set forth in Exhibit A or perform the Services in a diligent and timely manner
may result in termination of this Agreement by City.
3.2 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 within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant 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 Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand-delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not-to-
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B 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 Sixty Five Thousand
Dollars and 00/100 ($65,000.00), 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 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) calendar
days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
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4.4 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
5.1 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 Katherine Ficken 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.
5.2 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.
5.3 If Consultant 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 Finance Department. City's Finance
Director 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 Consultant in the execution of its responsibilities under this Agreement,
City agrees to 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.
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
and with the ordinary degree of skill and care that would be used by other reasonably
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competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant 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 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, 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
9.1 To the fullest extent permitted by law, Consultant 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 Consultant's presence or activities conducted on
the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Consultant, 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).
9.2 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 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 Consultant.
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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. No civil
service status or other right of employment shall accrue to Consultant or its employees.
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 of the Work 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.
13. PROGRESS
Consultant 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 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 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
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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 co -tenancy, 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 subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant 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 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 or any
other party. Additionally, all material posted in cyberspace 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 or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 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.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
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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, unless disclosure is
required by law or judicial or regulatory process.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services 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 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.
21. 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 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.
22. 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 Section is intended to limit City's rights under the law or any
other sections of this Agreement.
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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 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.
24.2 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.
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 Consultant to City shall
be addressed to City at:
Attn: Finance Director
Finance Department
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 Consultant shall
be addressed to Consultant at:
Attn: Brett Matteo
PFM Solutions LLC
1735 Market Street, 43rd Floor
Philadelphia, PA 19103
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
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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 Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant 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 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 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 Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 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.
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
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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 Consultant 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.
28.10 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 race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
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]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. Harp a i9
City Attorney
ATTEST:
Date: <
Ijj
W r
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: !n - In -1 7
CONSULTANT: PFM Solutions LLC, a
Delaware limited liability company
Signed in Counterpart
By:
Albert P. Matteo, Jr.
President
Date:
By: Signed in Counterpart
Steve Boyle
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rates
Exhibit C - Insurance Requirements
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTO NEY'S OFFICE
Date:
By:
Aaron C. Harp w
City Attorney 4 -X�41
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Dan Matusiewicz
Finance Director
ATTEST: CONSULTANT: PFM Solutions LLC, a
Date: Delaware limited liability company
Date: 4.2b • 1-7
By: By:
Leilani I. Brown Albert P. Matteo, Jr.
City Clerk President
Date:
W- RVIA2111
r:.Ti
[END OF SIGNATURES]
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rates
Exhibit C - Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
SECTION 1 — WHITEBIRCH SERVICE SOFTWARE SUBSCRIPTION
Consultant shall provide software Services to the City in accordance to the following
terms:
1. Services
1.1 Subscription Service. Consultant shall provide software Services in
accordance with the terms and conditions hereof, including to host, manage,
operate and maintain the Whitebirch Service Software for remote electronic access
via the internet and use by City and its authorized users ("Hosted Services"). The
terms and conditions of this Agreement shall also apply to updates and upgrades
to the Hosted Services subsequently provided by Consultant to City.
1.2 Service and System Control. Except as otherwise expressly provided in this
Agreement, as between the parties to the Agreement:
1.2.1 Consultant has and will retain sole control over the operation,
provision, maintenance and management of the Hosted Services and
materials, including the: (i) Consultant's systems; (ii) selection, deployment,
functionality, modification or replacement of the Hosted Services software;
and (iii) performance of Hosted Services software maintenance, upgrades,
corrections or repairs, provided that, for clarity, nothing in this Section 1.2.1
shall create an obligation to perform any such maintenance, upgrades,
corrections or repairs not otherwise required by the Agreement; and
1.2.2 City has and will retain sole control over the operation, maintenance
and management of, and all access to and use of, the Consultant's systems,
and sole responsibility for all access to and use of the Hosted Services and
Consultant's materials by any person by or through the City systems or any
other means controlled by City or any authorized user, including any: (i)
information, instructions or materials provided by any of them to the
Consultant; (ii) results obtained from any use of the Hosted Services or
Consultant materials; and (iii) conclusions, decisions or actions based on
such use.
1.3 Changes. Consultant reserves the right, in its sole discretion, to make any
changes to the Hosted Services and Consultant materials that it deems necessary
or useful to: (a) maintain or enhance (i) the quality or delivery of Consultant's
Services to its clients, (ii) the competitive strength of or market for Consultant's
Services or (iii) the Hosted Services' cost efficiency or performance; or (b) to
comply with applicable law.
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2. City Obliciations
2.1 City Systems and Cooperation. City shall at all times during the term of
this Agreement: (a) set up, maintain and operate in good repair and in
accordance with the documentation, all City systems on or through which the
Hosted Services are accessed or used, including without limitation, internet
connectivity, hardware, and web browsers compatible with the Hosted Services;
(b) provide Consultant, or its subcontractor, with such access to City systems as
is necessary for Consultant to perform the Hosted Services; (c) provide, input,
upload, or otherwise transmit only data or information to which City has all
necessary rights to use in connection with the Hosted Services; and (d) provide
all cooperation and assistance as Consultant may reasonably request to enable
Consultant to exercise its rights and perform its obligations under and in
connection with this Agreement. City shall be solely responsible for ensuring the
accuracy and completeness of all City data.
3 Service Levels
3.2 Service Levels. Subject to the terms and conditions of this Agreement,
Consultant shall use commercially reasonable efforts to make the Hosted Services
available to City and operating in material accordance with the Agreement a
minimum of 99.5% of the time during any calendar month, excluding unavailability
as a result of:
3.2.1 Scheduled downtime in accordance with Section 3.3 hereof;
3.2.2 Downtime or degradation due to a force majeure event;
3.2.3 City's or authorized user's internet connectivity;
3.2.4 Failure, interruption, outage or other problem with any software,
hardware, system, network, facility or other matter not supplied by
Consultant pursuant to this Agreement;
3.2.5 Any other circumstances beyond Consultant's reasonable control,
including City's or any authorized user's use of third party materials, misuse
of the Hosted Services, or use of the Hosted Services other than in
compliance with the express terms of this Agreement; or
3.2.6 Any suspension or termination of City or any authorized users'
access to or use of the Hosted Services as permitted by this Agreement.
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3.3 Scheduled Downtime. Consultant will use commercially reasonable efforts
to give City at least forty-eight hours prior notice of all scheduled outages of the
Hosted Services ("Scheduled Downtime").
3.4 Internet Services: Disclaimer. City understands and acknowledges that
Consultant does not control the flow of data or information to or from the internet.
Such flow depends in large part on the performance of internet Services provided
or controlled by third parties. At times, actions or inactions of such third parties can
impair or disrupt City's connections to the internet (or portions thereof). Although
Consultant will use commercially reasonable efforts to take the action it deems
appropriate to remedy and avoid such events, Consultant cannot guarantee that
such events will not occur. Accordingly, Consultant disclaims any and all liability
resulting from or related to such events to the extent such events are not directly
caused by Consultant, its agents, or subcontractors.
4 Data Security and Backup
4.1 Consultant Systems and Security Obligations. Consultant will employ
security measures in accordance with applicable industry standards and practice.
4.2 Backup. In providing the Services, Consultant will routinely backup City
Data. However, the Hosted Services do not replace the need for City to maintain
regular data backups or redundant data archives. CONSULTANT HAS NO
OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION,
DAMAGE, CORRUPTION OR RECOVERY OF CITY DATA.
4.3 Client Control and Responsibility. City has and will retain sole responsibility
for: (a) all City data, including its content and use; (b) all information, instructions
and materials provided by or on behalf of City or any authorized user in connection
with the Hosted Services; (c) City systems; (d) the security and use of City's and
its authorized users' access credentials; and (e) all access to and use of the
Services and Consultant materials directly or indirectly by or through the City
systems or its or its authorized users' access credentials, with or without City 's
knowledge or consent, including all results obtained from, and all conclusions,
decisions and actions based on, such access or use.
4.4 Access and Securitv. City shall employ all physical, administrative and
technical controls, screening and security procedures and other safeguards
necessary to: (a) securely administer the distribution and use of all access
credentials and protect against any unauthorized sharing, access to or use of the
Services; and (b) control the content and use of City data, including the uploading
or other provision of City data for Processing by the Hosted Services.
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SECTION 2 — FORECASTING ADVISORY SERVICES
Consultant shall provide Forecasting Advisory Services to the City in accordance to the
following terms:
1. Scope of Forecasting Advisory Services
1.1 Scope of Services. The Scope of Services shall mean: (i) the
Implementation Services as defined in Section 1.1.1 below (and subsections
thereto), (ii) the Ongoing Services as defined in Section 1.1.2 below, and (iii) the
Ancillary Services as defined in Section 1.1.3 below; provided, however, that
unless specifically included in the Agreement or in accordance with Section 1.1.3
below, such Ancillary Services shall be provided upon City's request and subject
to payment of the applicable fee(s) at Consultant's then current rates. The
Implementation Services, the Ongoing Services, and the Ancillary Services are
collectively referred to as the "Forecasting Advisory Services."
1.1.1 Implementation Services. "Implementation Services" shall mean the
Forecasting Advisory Services provided by Consultant in connection with
the development of a financial model (the "Model") based on the Whitebirch
Financial Modeling Platform ("Whitebirch"), to which City and authorized
users have been granted access, as described in the Agreement. The
Model so implemented will take advantage of Whitebirch's presentation
interface (the "Decks"), in which users, as defined in the Agreement, drive
analysis and review reports, charts, and other output. The Implementation
Services comprise:
1.1.1.1 Project Management. Consultant shall manage the
process of implementing Whitebirch, including: (i) developing a
mutually -acceptable schedule (the "Schedule") to complete the
Implementation Services, (ii) confirming the authorized users as
identified by City, (iii) confirming other key stakeholders in the
implementation process as identified by City (with the authorized
users, the "Responsible Parties"), (iv) managing access to
Whitebirch and the Model, (v) arranging access to all electronic and
telephonic meetings and sessions, (vi) managing the flow of
information between Consultant and City, (vii) and providing periodic
reports to the Responsible Parties describing progress against the
Schedule.
1.1.1.2 Introductory Training. Consultant shall provide: (i) one
(1) one -hour-long internet session, as needed, to introduce City to
Whitebirch, and (ii) materials, electronic or otherwise, designed to
introduce City to key concepts and skills related to Whitebirch (the
"User Guide").
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1.1.1.3 Data and Design Process. Consultant will work
collaboratively with City to develop and import the data requirements
for City's Model (the "Data Process"). The Data Process will
comprise the following steps as needed:
1.1.1.3.1 Required Data. Consultant will conduct one (1)
one -hour-long internet session, as needed, to describe the
data requirements (the "Required Data") for the Model.
1.1.1.3.2 Data Importation. Consultant will import the
Required Data into the Model.
1.1.1.3.3 Design. Consultant will work with City,
conducting up to one (1) one -hour-long internet session as
needed, to understand City presentation preferences, key
benchmarks, and other Model requirements ("Model
Requirements").
1.1.1.4 Configuration Process. Consultant will configure the
Model to reflect the Model Requirements (the "Configuration
Process").
1.1.1.5 Training Process. Consultant will conduct up to four (4)
one -hour-long internet sessions, as needed, focusing on the use of
Whitebirch and the Model (the "Training Process"). The Training
Process will focus on:
1.1.1.5.1 Navigation. How to efficiently and effectively
navigate the Decks.
1.1.1.5.2 Assumptions. How to set Model assumptions
and parameters to drive the projection.
1.1.1.5.3 Analysis. How to conduct sensitivity and what -if
analysis.
1.1.1.5.4 Visual Content. How to amend the visual
content within the Decks.
1.1.2 Ongoing Services. "Ongoing Services" shall mean the forecasting
Advisory services provided by Consultant in connection with the ongoing
use of the Model by City and authorized users. The Ongoing Services
comprise:
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1.1.2.1 Development Assistance. Consultant will provide City
post -implementation assistance by which Consultant personnel
answer City questions and otherwise direct City in how City can or
should reconfigure the Decks and Model. As requested by City,
Consultant will provide Development Assistance via telephone,
internet and/or email from 9 AM to 6 PM Eastern Time, Monday
through Friday, except on recognized US holidays. Any request for
Development Assistance outside of the times provided in the
foregoing sentence shall be on a previously scheduled appointment -
only basis as mutually agreed upon by Consultant and City.
1.1.2.2 Forum(s). Consultant will provide City access to one or
more internet portals hosted by Consultant on which City and other
Whitebirch subscribers are provided a platform to exchange insights,
use cases, and other information.
1.1.2.3 Hosted Discussions. Consultant may, in its sole
discretion, host discussions, meetings, and sessions, internet-based
or otherwise, during which City and other Whitebirch subscribers are
provided opportunities to exchange insights, use cases, and other
information.
1.1.2.4 Post -implementation Training. Consultant may, in its
sole discretion, host training sessions, internet-based or otherwise,
during which Whitebirch's features and functionality will be explored.
1.1.3 Ancillary Services. "Ancillary Services" shall mean post -
implementation support related to Whitebirch and/or the Model, as
requested by City. The Ancillary Services comprise: (i) post -implementation
modifications, additions, and/or deletions of elements of the Model
executed on behalf of City by Consultant, and (ii) post -implementation
training requested specifically by and for City. Consultant will provide
Ancillary Services via telephone, Internet and/or email from 9 AM to 6 PM
Eastern Time, Monday through Friday, except on recognized US holidays.
Any request for Ancillary Services outside of the times provided in the
foregoing sentence shall be on a previously scheduled appointment -only
basis as mutually agreed upon by Consultant and City.
2. City Responsibilities
2.1 Model -Development Responsibilities. City will actively participate in the
Data Process.
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2.2 Training -Related Responsibilities. City will: (i) participate in the introductory
training sessions, and (ii) review the User Guide. City acknowledges that the
Training Process is serially dependent on the Data Process.
2.3 Data -Related Responsibilities. City will provide the Required Data, as
needed, to load the Model in support of the Implementation Services.
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EXHIBIT B
SCHEDULE OF BILLING RATES
The following Schedule of Billing Rates shall apply to the Services provided in accordance
with this Agreement:
— — YEAR-
— DESCRIPTION
RATE
Year 1
Implementation Fee:
$10,000.00
(Aug2017 -Aug 2018
Year 1
Whitebirch Access Fee:
$12,500.00
(Aug2017 - Aug2018
Year 2
Whitebirch Access Fee:
$12,500.00
(Aug2018 - Aug2019
Year 3
Whitebirch Access Fee:
$12,500.00
(Aug2019 -July 2020
Ancillary Services (refer to Exhibit A, Section 2 of the Agreement) shall be performed on
an as -needed basis as requested by the City and shall be preceded by an approved Letter
Proposal. The Letter Proposal shall include the work to be done, the hourly rates involved,
and an estimated timeline of completion, and shall not exceed $17,500.00 in Ancillary
Services.
PFM Solutions LLC Page B-1
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of 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. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant 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. Consultant 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.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant 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).
C. Automobile Liability Insurance. Consultant 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 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 one million dollars ($1,000,000)
combined single limit each accident.
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D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
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
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
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 City Council, boards and commissions, officers, agents, volunteers
and employees 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 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, its City Council, boards and commissions, officers, agents, volunteers
and employees 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
(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. 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 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.
PFM Solutions LLC Page C-2
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 Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant 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. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
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 Consultant 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 Consultant'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 amounts payable to Consultant or reimbursed
by Consultant upon demand.
G. 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 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. Consultant's 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.
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CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. *
Date Received: 10/6/17 Dept./Contact Received From: Anthony
Date Completed: 10/6/17 Sent to: Anthony By: Jan
Company/Person required to have certificate: PFM Solutions LLC
Ty e of contract: All Other
I.
GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 11/30/16 - 11/30/17
A. INSURANCE COMPANY: Great Northern Insurance Compan}
B. AM BEST RATING (A-: VII or greater): A++ / XV
C. ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
D. LIMITS (Must be $1 M or greater): What is limit provided?
E. ADDITIONAL INSURED ENDORSEMENT—please attach
F. PRODUCTS AND COMPLETED OPERATIONS (Must
include): Is it included? (completed Operations status does
not apply to Waste Haulers or Recreation)
G. ADDITIONAL INSURED FOR PRODUCTS AND
COMPLETED OPERATIONS ENDORSEMENT (completed
Operations status does not apply to Waste Haulers)
H. ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
J. CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence' wording?
K. ELECTED SCMAF COVERAGE (RECREATION ONLY):
L. NOTICE OF CANCELLATION:
® Yes ❑ No
$1 M/$2M
® Yes ❑ No
❑ Yes ❑ No
❑ Yes ❑ No
® Yes ❑ No
® Yes ❑ No
❑ Yes
® No
® N/A ❑ Yes
❑ No
❑ N/A ® Yes
❑ No
II. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 11/30/16 - 11/30/17
A.
INSURANCE COMPANY: Federal Insurance Company
B.
AM BEST RATING (A-: VII or greater) A++/ XV
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS - If Employees (Must be $1M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided?
$1,000,000
E
LIMITS Waiver of Auto Insurance / Proof of coverage (If individual)
(What is limits provided?)
N/A
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
Haulers only):
® N/A ❑ Yes ❑ No
G.
HIRED AND NON -OWNED AUTO ONLY:
❑ N/A ❑ Yes ® No
H.
NOTICE OF CANCELLATION:
0 N/A 0 Yes ❑ No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: 1/1/17 -1/11/18
A.
INSURANCE COMPANY: Great Northern Insurance Company
B.
AM BEST RATING (A-: VII or greater): A++/XV
C.
ADMITTED Company (Must be California Admitted):
® Yes
❑ No
D.
WORKERS' COMPENSATION LIMIT: Statutory
® Yes
❑ No
E.
EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater)
$1,000,000
F.
WAIVER OF SUBROGATION (To include): Is it included?
® Yes
❑ No
G.
SIGNED WORKERS' COMPENSATION EXEMPTION FORM:
® N/A ❑ Yes
❑ No
H.
NOTICE -OF CANCELLATION:
❑ N/A—E Yes-
❑ No
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY EFF: 11/30/16-11/30/17 ENDURANCE AMERICAN SPECIALTY INS.
Best Guide Rating: A+/XV NON -ADMITTED LIMIT: $30M ❑ N/A ® Yes ❑ No
V POLLUTION LIABILITY
V BUILDERS RISK
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Approved:
Agent of Alliant Insurance Services Date
Broker of record for the City of Newport Beach
® N/A ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
® Yes ❑ No
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Approved:
Risk Management Date
* Subject to the terms of the contract.