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HomeMy WebLinkAboutC-4295 - PSA for Administration of Dog Licensing Programto N PROFESSIONAL SERVICES AGREEMENT 1 WITH PETDATA, INC. FOR ADMINISTRATION OF DOG LICENSING PROGRAM THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 18th day of September, 2014 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and PETDATA, INC., a Texas corporation ("Consultant"), whose address is 1850 Crown Drive, Suite 1110, Farmers Branch, Texas 75234, 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 administer the City's dog licensing program ("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 September 30, 2018, 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, if any, 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 One Hundred Thousand Dollars and 00/100 ($100,000.00), 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. 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. PetData, Inc. Page 2 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 Marilee Seay 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 Revenue 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 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 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. PetData, Inc. Page 3 8.2 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 the highest professional standard. 8.3 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. 8.4 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. PetData, Inc. Page 4 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 PetData, Inc. Page 5 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 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. PetData, Inc. Page 6 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 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 PetData, Inc. Page 7 borne by Consultant. 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 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: Evelyn Tseng, Revenue Manager 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: Christopher A. Richey, President PetData, Inc. P.O. Box 141929 Irving, TX 75014-1929 PetData. Inc. Page 8 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 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. PetData, Inc. Page 9 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 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 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] PetData, Inc. Page 10 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: 9 /;Ohy LM- Aaron C- Marp City Attorney Ccr CITY OF NEWPORT BEACH, a California municipal corporation Date: 1013►I 1* By: Dave -"i City Manager ATTEST: a CONSULTANT: PetData, Inc., a Texas Date: • 1� corporation Date: B: jov�--- Y Leilani I. Brown City Clerk `0 Foa' Signed in Counterpart By: Christopher A. Richey President Date: Signed in Counterpart By: Marilee Seay Vice President [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements PetData, Inc. Page 11 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: C e Aaron C Harp Assistant City Attorney ATTEST: rnN-qi n renani brown, City Clerk o� e� s F0 ft CITY OF NEWPORT BEACH, A Municipal Corporation By: Q (—/—�j len F>erroad Revenue Manager By: (J*4tnv A , M Chris Ritchey President Print Name:c4rl' �o L A By: ----7Z�� Brian Camp Vice President //'� Print Name: ���o�, coq, -,o4 // Attachments: Exhibit "A" — Scope of Services Exhibit "B" — Schedule of Billing Rates 14 EXHIBIT A SCOPE OF SERVICES Consultant Responsibilities and Provisions Consultant shall: 1. Manage daily operations of dog licensing, which shall include, but not be limited to: 1.1 Processing licensing mail from pet owners; 1.2 Processing license sales and vaccination reports; 1.3 Entering and maintaining licensing and vaccination data; 1.4 Providing customer service; and 1.5 Depositing revenues 2. Provide veterinarians and other authorized agents of the City with the supplies (reporting forms, vaccination certificates, citizen mailing envelopes, etc.) necessary to sell license tags and/or provide information on citizens vaccinating their dogs against rabies in compliance with the City's dog licensing program as mandated by the City's Municipal Code. Supplies shall be printed by Consultant; 3. Track monthly vaccination and/or sales reports from all veterinarians participating in Dog Licensing Program and keep records of all tag inventories at authorized agents of the City. Consultant shall provide this information to City at City's request. Furthermore, consultant shall communicate directly with veterinarians and the Orange County Health Officer as may be required by City; 4. Process and mail license tags to customers within ten (10) business days after receipt of the licensing payment and complete documentation; 5. Issue replacement license tags as needed; 6. Process rabies vaccination certificates on behalf of City and mail notices to those pet owners who vaccinated their pet(s) against rabies, but did not purchase license(s); 7. Mail renewal and reminder notices to pet owners; 8. Collect any and all fees associated with dog licensing for the City; PetData, Inc. Page A-1 9. Deposit all receipts collected for license fees, with the exception of those payments made via credit card, Bank of America bank account at a local branch; 10. Provide City with monthly reports in a format approved by City. At a minimum, reports shall consist of the following: 10.1 Report of dogs licensed each respective month, complete with details such as; Dog name & breed, Pet owners name and all contact information, rabies information, tag number and fees collected; 10.2 Deposit Report; and 10.3 Summary of financial activity which shall include: number of one (1) and two (2) year licenses issued; altered and unaltered dogs; late fees collected; and replacement tags issued. 11. Provide City with statistical reports as requested, within ten (10) business days of request; 12. Respond to and communicate with Animal Control Officer Inquiries or dog owners' requests in a timely fashion; 13. Communicate with citizens by phone, mail or email as needed; 14. Comply with all state and local laws governing dog licensing; 15. Provide customers with ability to apply, renew and pay online at web site; 16. Provide customers with toll free phone number to reach customer service; and 17. Provide a website or data system where Animal Control Officers and other authorized users can access dog licensing and vaccination data. Data system shall be searchable by various data fields such as license tag number, pet owner name, phone number, pet name and other fields as requested. PetData, Inc. Page A-2 EXHIBIT B SCHEDULE OF BILLING RATES 1. Base Fees Consultant shall receive Base Fees as follows: $3.95 per license for a one-year license or a replacement tag. $2.00 for each additional year after year one if there are multi-year licenses. $2.50 Collection Service Fee for each late fee collected during the term of this Agreement. The Base Fee for each license shall not be charged until each license is issued. Data entry of rabies vaccination certificates and incomplete licenses, which may or may not result in a license, are included at no extra charge. An agreed-upon method to follow-up with pet owners who did not respond to a prior notice is also included at no additional cost. PetData is paid for all licenses issued during the Agreement period, including those licenses issued over the counter by City and any authorized registrars or agents. 2. Start -Up Fee The standard $1,000 Start -Up Fee is waived for the City of Newport Beach with acceptance of this response. 3. Convenience Fee (paid by licensee, not by City) PetData provides the option of licensing online via PetLicense and does not charge the City for this service. If a pet owner chooses to license online, PetData charges a convenience fee of $1.95 per transaction. Multiple pets may be licensed per transaction. Pet owners may choose to mail in their application if they do not wish to pay the convenience fee. 4. Additional Service Fees or Costs 4.1 Postage Rates. If the United States Postal Service increases its postage rates during the contract term, PetData may adjust its fees from time to time in order to compensate PetData for actual increased postage costs. PetData will notify the City thirty days prior to the date that any increase described in this paragraph will go into effect. 4.2 City -Imposed Rate Increases. The fees paid to PetData are further subject to reasonable adjustment in the event that the City adds, PetData, Inc. Page B-1 modifies or eliminates any fees that are charged to Licensees during the term of this Agreement. PetData and the City of Newport Beach agree to negotiate any such reasonable adjustments in good faith. 5. Optional Services and Fees The following fees or cost reimbursements will apply to the extent that the corresponding services described below are requested by the City of Newport Beach: 5.1 Cost of Bank Account. The City of Newport Beach will be responsible for all out-of-pocket costs related to any Bank Account. The City will reimburse PetData on a monthly basis for any out-of-pocket costs for a Bank Account that are paid by PetData. City may request copies of bank statements for a Maintained Account at any time and PetData will provide available bank statements for that Maintained Account within five business days after a request is received. 5.2 Bank Deposit Mailing Fees. If the City of Newport Beach requires PetData to deposit money into a City Account other than at a branch located in the city where PetData's principal office is located, PetData may make any deposit to that City Account by means of any form of U.S. Mail or overnight delivery service, and the actual cost to transmit the deposits to the required bank location will be borne by the City and included in invoices submitted to the City for the Services. 5.3 Postal Box/Mail Forwarding Fee. If the City requests PetData to establish a local post office box for mail collection and forwarding, the City of Newport Beach will pay or reimburse PetData for the actual costs of mail box rental, mail forwarding and postage fees. 5.4 Supply Fee. If the City requests changes to supplies which it has previously approved, including but not limited to fee or program changes, the City will be responsible for the actual costs associated with changing, replacing or discontinuing the use of the previously approved supplies. If contract is terminated by City for any reason other than for cause, City of Las Vegas will remain responsible for the actual cost of supplies purchased on its behalf. 5.5 Lock Box Fees. If the City chooses to utilize a lockbox, the actual fees and costs associated with the lockbox, including the cost to forward mail to PetData from a lockbox, shall be borne solely by the City of Newport Beach. PetData, Inc. Page B-2 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 officers, agents, employees and volunteers. 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. PetData, Inc. Page C-1 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 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 and its officers, officials, employees, 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 (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. 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 PetData, Inc. Page C-2 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. 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. 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. PetData, Inc. Page C-3 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. " Date Received: 11/3/14 Dept./Contact Received From: Anthony Date Completed: 12/2/14 Sent to: Anthony By: Chris Company/Person required to have certificate: Pet Data, Inc. Type of contract: All Others _ I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 11/13/14-11113/15 A. INSURANCE COMPANY: State Farm Lloyds B. AM BEST RATING (A-: VII or greater): B++:XII C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ❑ Yes E No D. LIMITS (Must be $1 M or greater): What is limit provided? 2,000,000/4,000,000 E. ADDITIONAL INSURED ENDORSEMENT— please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does not apply to Waste Haulers or Recreation) E Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND COMPLETED OPERATIONS ENDORSEMENT (completed Operations status does not apply to Waste Haulers) E Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? E Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? E Yes ❑ No 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? ❑ Yes E No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): E N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A E Yes ❑ No H. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: Auto Exemption Form Signed A. INSURANCE COMPANY: B. AM BEST RATING (A-: VII or greater) C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? D. LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste ❑ Yes ❑ No Haulers only): E N/A ❑ Yes G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes H. NOTICE OF CANCELLATION: ❑ N/A E Yes III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 7111/14-7111/15 A. INSURANCE COMPANY: State Farm Fire and Casualty Company B. AM BEST RATING (A-: VII or greater): A+;XV C. ADMITTED Company (Must be California Admitted): D. WORKERS' COMPENSATION LIMIT: Statutory E. EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater) F. WAIVER OF SUBROGATION (To include): Is it included? G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: H. NOTICE OF CANCELLATION ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO. WHICH ITEMS NEED TO BE COMPLETED? Approved: Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 12/2/14 Date ® Yes ❑ No ® Yes ❑ No 1,000,000 ® Yes [--]No ® N/A ❑ Yes ❑ No ❑ N/A ® Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® Yes ❑ No RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _; Self Insured Retention or Deductible greater than$ ) ❑ NIA ❑ Yes ❑ No Reason for Risk Management approval/exception/waiver: Risk Management approval needed for non -admitted status and for AM Best's Financial Strength Rating (B++) of general liability carrier. Approved by Sheri Approved: Risk Management * Subject to the terms of the contract. Date AUTOMOBILE INSURANCE COVERAGE — MODIFIED COVERAGE PROVISIONS I hereby certify that in the performance of Dog Licensing Program Administration Services (hereby defined as "Work") for which this Agreement is entered into, the following provisions shall apply to the Automobile Insurance coverage applicable to this Agreement: Automobile Insurance In the performance of Work for which this Agreement is entered into, Petdata shall, during the entire duration of the Agreement term, not use automobiles or drive any vehicles while performing any and all Work pursuant to this Agreement for the City of Newport Beach. As such, the City of Newport Beach shall waive Automobile Insurance Coverage requirements for this Agreement. Unless specifically authorized in writing from the City, any and all other insurance provision terms and conditions as set forth in Exhibit C of this Agreement shall prevail and remain unchanged. Executed on this 3 f41 -L day of Ne ue . &, , 20L at Newport Beach, California. i A. (Contractors Signature► (Print Contractor's Name and Title) C—`I&6I S (Print Contract Number) City of Newport Beach Risk Management Approval PROFESSIONAL SERVICES AGREEMENT WITH PETDATA, INC. FOR DOG LICENSING cJ .+c THIS AGREEMENT is made and entered into as of this '30 day of _ , 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ("City"), and PETDATA, INC., a Texas Corporation, whose address is 1850 Crown Drive, Farmers Branch, TX 75234, Texas ("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 intends to outsource its dog licensing operations and desires to engage Consultant to manage City's dog licensing program ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. D. The principal members of Consultant for purposes of the Project shall be Marilee Seay, Mark Gilbert and Brian Campbell. E. City solicited and received a proposal from Consultant, 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 above written date, and shall terminate on the Lr day of 'Zwr , 2011, unless terminated earlier as set forth herein. Upon mutual agreemerit, City and Consultant may extend the term for two (2) additional consecutive terms of twelve (12) months each. Such option must be exercised within thirty (30) days of the expiration of the prior term. 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. City may elect to delete certain tasks of the Scope of Services at its sole discretion. 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 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 Twenty Thousand Dollars and no/100 ($20,000.00) 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. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include 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, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after submission of the monthly invoice to City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing 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 Marilee Seay to be its Project Manager. Consultant shall not remove or reassign the Project Manager 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 Revenue Division. Glen Everroad shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 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, provide 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 historical licensing data, consisting of licenses older than 90 days, in a readily importable format. S. 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, 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 by Consultant of the terms and conditions of this Agreement, any work performed or services provided under this Agreement by or on behalf of Consultant 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, 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). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole or concurrent negligence or willful misconduct of the Indemnified Parties, and Claims do not include any consequential damages that may be incurred by any 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 5 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 and/or his 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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. D. Coverage Requirements. Workers' Compensation Coverape(10 calendar days written notice of non-payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall provide automobile liability coverage under its General Liability Policy. E. Endorsements. Each general liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 7 iv. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. V. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non-payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. 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. 8 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 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. 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. 19. 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. 20. 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 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 7 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 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. 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 paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. EXCLUSIVE AGREEMENT City agrees, for the term of this Agreement, that Consultant shall be the exclusive provider of the services described in Exhibit "A". 24. 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 10 harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. 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 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: Attn: Glen Everroad, Revenue Manager Administrative Services Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949-644-3144 Fax: 949-644-3723 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Chris Richey, President PetData PO Box 141929 Irving, TX 75014-1929 Phone: 214-821-3100 Fax: 214-821-3106 26. 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 ten (10) calendar days, or if more than ten (10) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within ten (10) 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 11 thirty (30) 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. 27. 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. 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. 29. 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. 30. 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. 31. 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. 01K 32. 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. 33. 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. 34. 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. 35. 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. 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: ArM— C Aaron C Harp Assistant City Attorney ✓"' City Clerk 11 so CITY OF NEWPORT BEACH, A Municipal Corporation By: Q 1 len erroad Revenue Manager i By: L641, A - l Chris Ritchey President Print Name:Crl'skple. A • R �%• By: Brian Ciim—phW Vice President Print Name: 1?r1b„ CAS, // Attachments: Exhibit "A" — Scope of Services Exhibit "B" — Schedule of Billing Rates 14 EXHIBIT "A" Scope of Services Consultant shall: 1. Manage daily operations of dog licensing, which shall include, but may not be limited to: processing the licensing mail from pet owners; processing license sales and vaccination reports; entering licensing and vaccination data; providing customer service and depositing money. 2. Provide veterinarians and other authorized registrars with reasonable quantities of supplies (reporting forms, vaccination certificates, citizen mailing envelopes, etc.) necessary to sell license tags and/or report information on citizens vaccinating their dogs against rabies to the Dog License Program. Supplies are to be printed in one color with the design and layout to be determined by Consultant. City shall be responsible for purchasing license tags to Consultant's specifications and shipping them to Consultant. Consultant recommends that tags be shipped directly from tag vendor to Consultant to reduce shipping costs. 3. Track monthly vaccination and/or sales reports from all veterinarians participating in dog licensing program and keep records of all tag inventories at authorized registrars. Consultant shall provide this information to City at City's request. Furthermore, Consultant shall communicate directly with veterinarians and the Orange County Health Officer as may be required by City. 4. Enter all new and renewal licenses into Consultant's proprietary database, provided that all information has been submitted to Consultant in a complete and accurate format. 5. Process and mail license tags to customers within ten business days after receipt of the licensing payment and complete documentation as required by local ordinance. 6. Issue replacement license tags as needed. 7. Process rabies vaccination certificates on behalf of City and mail notices to those pet owners who vaccinated their pet(s) against rabies, but did not purchase license(s). City shall have the right to review and edit all notice forms sent on its behalf prior to transmittal. 8. Mail renewal and reminder notices to pet owners who have a prior license that will be expiring in the near future. Mailing timetables are to be mutually agreed upon. 9. Deposit all receipts collected for license fees, with the exception of those payments made via credit card, into a Bank of America bank account at a local branch in Irving, TX. Credit card payments will be processed through Consultant's merchant account and paid to City monthly. Mailing expenses associated with sending payments to City will be borne by City. 10. Provide a monthly report of licensed dogs. Format of report is to be mutually agreed upon. 11. Provide statistical reports as requested within a timely manner. Depending on the information requested, Consultant can provide most reports within five (5) business days. 12. Respond to and communicate with animal control officer inquiries or dog owners' requests in a timely fashion. 1 13. Communicate with citizens by phone, mail or email as needed. 14. Comply with all state and local laws governing dog licensing. 15. Provide secure password -protected access to animal licensing data via a web -based application developed by Consultant. Access will be granted only to authorized City personnel, and the application will be available 24 hours a day, 7 days a week except for periodic maintenance by Consultant or internet outages outside Consultant's control. The application will allow City to search licensing data by various criteria, including but not limited to pet owner name, address, phone number, and license tag number. 16. Provide an online license tag lookup to the public to include the owner's last name, any available phone numbers and the pet's name and description. Consultant may remove this feature from its website at City's request. IMPORTANT: TRANSITION PHASE Consultant plans to begin processing licenses sixty (60) days from the date the Agreement is executed provided City meet the following requirements: 1. City shall provide historical license data files ("Data") within five (5) business days from the date that the Agreement is executed. 2. Consultant requires certain supplies, Data, feedback, process information and approvals for such items as form designs ("Deliverables") in order for Consultant to begin processing licenses. Such Deliverables shall be requested by Consultant throughout the 60 -day transition phase and City shall provide such requested Deliverables within five (5) business days from Consultant's date of request. Any delays in providing Deliverables will result in delays in implementing this Agreement. Representations made in this Exhibit "A" with regards to processing time for data entry and tag mailings are contingent upon all Deliverables being provided to Consultant in a timely manner. EXHIBIT B - FEES 1. Base Fees CONTRACTOR shall receive base fees as follows: • $3.85 per license for a one-year license or a replacement tag. A one-year license shall be defined as any license issued with a term of 1-18 months. • $2.00 for each additional year of a multi-year license. A two-year license shall be defined as any license issued with a term greater than 18 months and up to 30 months. A three-year license shall be defined as any license issued with a term greater than 30 months up to 36 months. Contractor is paid for all licenses issued during term of this Agreement, whether they are issued by Contractor, City or an agent of the City. • $2.50 Collection Service Fee for each late fee collected during the term of this Agreement, if applicable. 2. Start -Up Fee $1.000 one-time only start -un fee. There are no Start -Up Fees for term extensions and/or renewals. Note: Postal Surcharge. In the event that the United States Postal Service increases its postage rates during the term of this contract in a manner that affects CONTRACTOR'S cost to provide service to Newport Beach, both parties agree that CONTRACTOR'S fees may be adjusted to compensate CONTRACTOR for actual increased costs. The justification for such increase will be submitted to CITY for approval. ADDITIONAL SERVICE FEES The following fee(s) will only apply if services are requested by CITY. 1. In the event CONTRACTOR establishes and/or maintains a separate bank account on behalf of CITY, CITY will be responsible for the actual cost of the bank account. Any bank fees will be paid directly by CONTRACTOR and CONTRACTOR will be reimbursed for those fees on a monthly basis. CITY can request copies of the bank statements at any time and CONTRACTOR will provide bank statements within five business days. 2. Bank Deposit Mailing Fees: In the event that CONTRACTOR is required to deposit money into an CITY bank account other than at a local branch in Texas, the actual cost to mail the deposits to CITY'S bank will be added to the invoice submitted to CITY. 3. Postal Box/Mail Forwarding Fee: In the event that CITY requests CONTRACTOR to establish a local post office box for mail collection and forwarding, CITY will be billed for the actual costs of mail box rental, mail forwarding and postage fees. 4. Supply Fee: In the event that CITY requests changes to supplies which it has previously approved, CITY will be responsible for all reasonable costs associated with changing, replacing or discontinuing the use of the previously approved supplies. 5. Lock Box Fees: In the event that CITY utilizes a lockbox, actual fees and costs associated with the lockbox, including the cost to forward mail to CONTRACTOR from a lockbox, shall be borne solely by CITY. CHARGES TO LICENSEE, NOT CITY 1. Online Transaction Fees (Paid by licensee, not by CITY): $1.75 per online transaction to be charged to licensee. 2. Bad Check/Payment Fees (Paid by licensee, not by CITY): If CONTRACTOR establishes a depository account on behalf of CITY, CONTRACTOR shall be entitled to charge a fee of $25.00 to any individual who submits a check or payment which is not valid or otherwise returned for any reason.