HomeMy WebLinkAboutC-5255 - PSA for NFPA Target Safety Employee Training19)
L6
l{� AMENDMENT NO. ONE TO
PROFESSIONAL SERVICES AGREEMENT
v WITH TARGETSAFETY, INC. (DBA TARGETSOLUTIONS) FOR
NFPA TARGETSAFETY EMPLOYEE TRAINING
THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT
("Agreement') is made and entered into as of this 16th day of September, 2014
("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City'), and TARGETSAFETY, INC. (DBA
TARGETSOLUTIONS), a California corporation ("Consultant"), whose address is 10805
Rancho Bernardo Road, Suite 200, San Diego, California 92127-5703, and is made with
reference to the following:
RECITALS
A. On October 2, 2012, City and Consultant entered into a Professional Services
Agreement ("Agreement") for Web based access to the NFPA/TargetSafety
online employee training platform ("Project').
B. City desires to enter into this Amendment No. One to increase the annual cost
and maximum compensation limit.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. COMPENSATION TO CONTRACTOR
Exhibit B to the Agreement shall be supplemented to include the Schedule of
Billing Rates, attached hereto as Exhibit B and incorporated herein by reference
("Services" or "Work"). Exhibit B to the Agreement and Exhibit B to Amendment No.
One shall collectively be known as "Exhibit B."
Section 4.1 of the Agreement is amended in its entirety and replaced with the
following: "City shall pay Contractor in advance for the Services utilized on an annual
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. The first year cost
shall not exceed $11,609.00, second and subsequent years cost shall not exceed
$10,735.00 annually. One-time setup fee for creation of customized website and
database is waived with the three year initial term of this Agreement. Contractor's
compensation for all Services provided in accordance with this Agreement, including all
reimbursable items and subcontractor fees, shall not exceed Fifty Three Thousand
Four Hundred Fifty Six Dollars and 00 1100 ($53,456.00) 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."
Section 4.3 of the Agreement is amended an additional user classification for
Administrative staff as follows: "City shall reimburse Contractor only for those costs or
expenses specifically identified in Exhibit B to this Agreement, or specifically approved
in writing in advance by City. Rates are based upon the classification of the user and
number of total allowable active users. The first year price for the initial 111 Firefighter
users shall not exceed $89.00 per user, with the option to add Firefighter users at a
price not to exceed $75.00 per additional Firefighter user, up to a maximum number of
121 Firefighter users. All subsequent contract year pricing for Firefighter personnel
shall not exceed $75.00 per Firefighter user, up to a maximum of 121 active Firefighter
users annually. The deletion of one or more Firefighter users shall allow the City to
replace the Firefighter users within the same billing year without any additional costs to
the City, so long as the total number of Firefighter users does not exceed the maximum
of 121 active Firefighter users. The price for Lifeguards shall not exceed $49.00 per
Lifeguard user up to a maximum of 20 active Lifeguard users annually. The deletion of
one or more Lifeguard users shall allow the City to replace the Lifeguard users within
the same billing year without any additional costs to the City, so long as the total
number of Lifeguard users does not exceed the maximum of 20 active Lifeguard users.
The price for Administrative users shall not exceed $34.00 per Administrative user up to
a maximum of 20 active Administrative users annually. The deletion of one or more
Administrative users shall allow the City to replace the Administrative users within the
same billing year without any additional costs to the City, so long as the total number of
Administrative users does not exceed the maximum of 20 active Administrative users.
The total amended compensation reflects Consultant's additional compensation
for additional Services to be performed in accordance with this Amendment No. One,
including all reimbursable items and subconsultant fees, in an amount not to exceed
One Thousand Six Hundred Twenty Seven Dollars and 001100 ($1,627.00).
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
TargetSafety, Inc. (DBA TargetSolutions) Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to
be executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTO NE 'S OFFICE a California municipal orporation
Date: CUM IN Date: Cl Z /
By: By:
Aaro6 q. Harp V Scott Poster
City Atforney �� �� Fire Chief
ATTEST: /Q
Date:
City Clerk
0-1-1 Fof, 'S
CONSULTANT: TargetSafety, Inc. (DBA
TargetSolutions), a California corporation
Date:
Bv:
Thomas Woodward
Executive Vice President
Date:
Kevin Adamek
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit B — Schedule of Billing Rates
TargetSafety, Inc. (DBA TargetSolutions) Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to
be executed on the dates written below.
APPROVED AS TO FORM:
CITY OF NEWPORT BEACH,
CITY ATTO N S FFICE
Date:
a California municipal corporation
Date:
By: ---
By:
A n C. Harp
Scott Poster
City ttomey
a �� Fire Chief
i
ATTEST:
Date:
CONSULTANT: TargetSafety, Inc. (DBA
TargetSolutions), a California corporation
Date:
G / p
Leilani I. Brown
Thomas Woodward
City Clerk
Executive Vice President
Date: 9
By:
Kevin Ada k _
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit B — Schedule of Billing Rates
TargetSafety, Inc. (DBA TargetSolutions) Page 3
EXHIBIT B
SCHEDULE OF BILLING RATES
TargetSafety, Inc. (DBA TargetSolutions) Page B-1
r
TorgetSofety.com,Inc dba TargetSolutions
10805 RANCHO BERNARDO ROAD, SUITE 200
SAN DIEGO, CA 92127-5703
877 -944 -6372 -TOLL FREE
858-592-6880 - DIRECT/ 858-487-8762 - FAX
Newport Beach Fire Department
Training Svcs Battalion Chief
3300 Newport Blv., PO Box 1768
Newport Beach, CA 92663
ITS Sales Contact: Andrew Lynch Email: ail@taraetsolutions.com I Phone: 858.231.4061
SUBMISSION
COMPANY I.D.
SALES MANAGER
LICENSE TERMS
8/28/2014
24155
Andrew Lynch
6/29/14 - 6/28/15
DESCRIPTION
UNIT PRICE
PER USER
QUANTITY
(# of Users)
TOTAL
TargetSolutions Online Training Platform License Customized Website, Administration Tools, and Applications
Proposal Includes:
Premier
Membership$
Firefighters115
75.00
(max 121) $8625 ($9075 max)
Lifeguards $
49.00
13 (max 20) $637 ($980 max)
Fire Admin. $
34.00
17 (max 20) $578 ($680 max)
145 (161 max) $9840($10,735 max)
Terms and Conditions: The term of this contract is 12 months from the "Start Date" listed above. The contract will automatically renew at the end of
12 months at standard rates unless TargetSolutions is notified in writing of a request for cancellation. Payment is required annually in advance of
contract.
SERVICE AGREEMENT
\ WITH TARGETSOLUTIONS FOR
NFPA/TARGETSAFETY EMPLOYEE TRAINING
THIS SERVICE AGREEMENT ("Agreement') is made and entered into as of this
day of September, 2012 ("Effective Date") by and between the CITY OF
w\ NEWPORT BEACH, a California Municipal Corporation ("City"), and TargetSafety, Inc.,
a California corporation doing business as ("DBA") TargetSolutions ("Contractor"),
whose address is 10815 Rancho Bemardo Rd., Suite 250,'San Diego, CA 92127 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 Contractor to provide web based access to the
NFPA/TargetSafety online employee training platform ('Project").
C. Contractor possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
D. The principal member of Contractor for purposes of Project shall be Andrew
Lynch.
E. City has solicited and received a proposal from Contractor, has reviewed the
previous experience and evaluated the expertise of Contractor, and desires to
retain Contractor 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:
TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2015. The initial term shall be three (3) years with the City's
option to renew the Agreement for two (2) additional one (1) year terms ("Renewal
Term") unless terminated earlier as set forth herein. In any event the term of this
Agreement shall not extend beyond June 30, 2017 without a written amendment to the
Agreement
2. SERVICES TO BE PERFORMED
City and Contractor acknowledge that the above Recitals are true and correct
and are hereby incorporated by reference into this Agreement. Contractor shall
diligently perform all the services .described in the Scope of Services and License
Agreement attached hereto as Exhibit A and incorporated herein by reference
("Services" or "Work"). The 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 Contractor 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 Contractor 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.
3.1.1 Notwithstanding the foregoing, Contractor shall not be responsible
for delays due to causes beyond Contractor'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) days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.2 Contractor shall submit all requests for extensions of time for performance
in writing to the Project Administrator (as defined in Section 6 below) 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 Contractor's control.
3.3 For all time periods not specifically set forth herein, Contractor shall
respond in the most expedient and appropriate manner under the circumstances, by
fax, hand -delivery or mail.
4. COMPENSATION TO CONTRACTOR
4.1 City shall pay Contractor'in advance for -the Services utilized on an annual °
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. The first year cost
shall not exceed $11,609.00, second and subsequent years cost shall not exceed
$10,055.00 annually. One-time setup fee for creation of customized website and
database is waived with the three year initial term of this Agreement. Contractor's
compensation for all Services provided in accordance with this Agreement, including all
reimbursable items and subcontractor fees, shall not exceed Fifty One Thousand
Eight Hundred Twenty Nine Dollars and 00 /100 ($51,829.00) 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 Contractor shall submit annual invoices to the City describing the total
annual costs for the coming twelve (12) month calendar year. Contractor's bills shall
include the description of Services to be provided, number of active authorized City
users registered in the program. on July 1st annually, the per user price, a brief
description of the Services to be provided and/or the specific task in the Scope of
Services to which it relates, and a description of any reimbursable expenditures. City
shall pay Contractor no later than thirty (30) days after approval of the annual invoice by
City staff.
TargetSafety, Inc. DBA targetsolutions Page 2
4.3 City shall reimburse Contractor only for those costs or expenses
specifically identified in Exhibit B to this Agreement, or specifically approved in writing in
advance by City. Rates are based upon the classification of the user and number of
total allowable active users. The first year price for the initial 111 Firefighter users shall
not exceed $89.00 per user, with the option to add Firefighter users at a price not to
exceed $75.00 per additional Firefighter user, up to a maximum number of 121
Firefighter users. All subsequent contract year pricing for Firefighter personnel shall not
exceed $75.00 per Firefighter user, up to a maximum of 121 active Firefighter users
annually. The deletion of one or more Firefighter users shall allow the City to replace
the Firefighter users within the same billing year without any additional costs to the City,
so long as the total number of Firefighter users does not exceed the maximum of 121
active Firefighter users. The price for Lifeguards and other staff member users
("Lifeguard users') shall not exceed $49.00 per Lifeguard user up to a maximum of 20
active Lifeguard users annually. The deletion of one or more Lifeguard users shall allow
the City to replace the Lifeguard users within the same billing year without any
additional costs to the City, so long as the total number of Lifeguard users does not
exceed the maximum of 20 active Lifeguard users.
4.4 Contractor 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 Contractor 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. Contractor has designated Andrew Lynch to be its
Project Manager. Contractor 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 Contractor, 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.
Contractor 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 Fire Department. The Training
Service Battalion Chief/Safety Officer or his/her designee, shall be the Project
Administrator and shall have the authority to act for City under this Agreement. The
Project Administrator or his/her designee shall represent City in all matters pertaining to
the Services to be rendered pursuant to this Agreement.
TargetSafety, Inc. DBA targetsolutions Page 3
7. CITVS RESPONSIBILITIES
To assist Contractor in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Contractor, one (1) 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 Contractor's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Contractor or under Contractor's
supervision. Contractor 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 industry standards.
For purposes of this Agreement, the phrase "highest industry standards" shall mean
those standards of practice recognized by one (1) or more first-class firms performing
similar work under similar circumstances.
8.2 All Services shall be performed by qualified and experienced personnel
who are not employed by City, nor have any contractual relationship with City. By
delivery of completed Work, Contractor certifies that the Work conforms to the
requirements of this Agreement and all applicable federal, state and local laws and the
highest industry standard.
8.3 Contractor 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 Contractor to practice its profession. Contractor shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 Contractor shall not be responsible for delay nor shall Contractor 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 Contractor'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, Contractor shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents and
employees (collectively, the "Indemnified Parties") from and against any and all claims
(including, Without limitation, claims for bodily injury, death or damage to property),
demands, obligations, damages, actions, causes of action, suits, losses, judgments,
fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's
fees, disbursements and court costs) of every kind and nature whatsoever (individually,
a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or
indirectly) to any breach of the terms and conditions of this Agreement, any Work
performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Contractor's presence or activities conducted on
the Project (including the negligent and/or willful acts, errors and/or omissions of
Contractor, its principals, officers, agents, employees, vendors, suppliers, consultants,
TargetSafety, Inc. DBA targetsolutions Page 4
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 Contractor to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed'as authorizing'any award of attorney's fees in any action
on or to enforce the terms of this Agreement. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy
limits do not act as a limitation upon the amount of indemnification to be provided by the
Contractor.
rTtIIIIIIIIIIIIfi1�7CUM 1I7W • a •
It is understood that City retains Contractor on an independent contractor basis
-and Contractor is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Contractor, 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 Contractor or its
employees. Nothing in this Agreement shall be. deemed to constitute approval for
Contractor or any of Contractor's employees or agents, to be the agents or employees
of City. Contractor shall have the responsibility for and control over the means of
performing the Work, provided that Contractor is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right,to direct
Contractor as to the details of the performance of the Work or to exercise a measure of
control over Contractor shall mean only that Contractor shall follow the desires of City
with respect to the results of the Services.
11. COOPERATION
Contractor 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 Contractor on the Project.
12. CITY POLICY
Contractor 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
Contractor .is responsible for keeping the Project Administrator and/or his/her
duly authorized designee informed on a regular basis regarding the status and'progress
of the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
TargetSafety, Inc. DBA targetsolutions Page 5
14. INSURANCE
Without limiting Contractor's indemnification of City, and prior to commencement
of Work, Contractor 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 of the issued and outstanding capital stock of Contractor, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Contractor is a
partnership or joint -venture or syndicate or cotenancy, which shall result in changing the
control of Contractor. 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. Contractor 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. The City is an intended
beneficiary of any Work-perfonngd by the subcontractor for purposes of establishir)g a
duty of care between the subcontractor and the 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 (hereinafter "Documents"), prepared or caused to be prepared by
Contractor, 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 Contractor or any other party. Contractor shall, at Contractor's
expense, provide such Documents to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Contractor
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
Contractor will be at City's sole risk and without liability to Contractor. Further, any and
TargetSafety, Inc. DBA targetsolutions Page 6
all liability arising out of changes made to Contractors deliverables under this
Agreement by City or persons other than Contractor is waived against Contractor and
City assumes full responsibility for such changes unless City has given Contractor prior
notice and has received from Contractor written consent for such changes.
Maty" 77214P1AY117449
All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City expressly authorizes in writing the release of information.
20. INTELLECTUAL PROPERTY INDEMNITY
The Contractor 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 Contractor's Documents provided under this
Agreement.
21. RECORDS
Contractor shall keep records and invoices in connection with the Services to be
performed under this Agreement. Contractor 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
Contractor under this Agreement. All such records and invoices shall be clearly
identifiable. Contractor shall allow a representative of City to examine, audit and make
transcripts -or copies of such records and invoices during regular business hours.
Contractor 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 Contractor under this Agreement.
22. WITHHOLDINGS
City may withhold payment to Contractor 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. Contractor shall not
discontinue Work as a result of such withholding. Contractor shall have an immediate
right to appeal to the City Manager or his/her. designee with respect to such disputed
sums. Contractor 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.
TargetSafety, Inc. DBA targetsolutions Page 7
23. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Contractor which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Contractor,
the additional design, construction and/or restoration expense shall be borne by
Contractor. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
24. CITY'S RIGHT TO EMPLOY OTHER CONTRACTORS
City reserves the right to employ other Contractors in connection with the Project.
25. CONFLICTS OF INTEREST
25.1 The Contractor 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.
252 If subject to the Act, Contractor 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. Contractor shall indemnify and hold harmless
City for any and all claims for damages resulting from Contractor's violation of this
Section.
26. NOTICES
26.1 All notices, demands, requests or approvals, including any change in
mailinb 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. All notices; demands, requests or
approvals from Contractor to City shall be addressed to City at:
Attn: Battalion Chief/Safety Officer
Training Services, Newport Beach Fire Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 644-3368
26.2 All notices, demands, requests or approvals from City to Contractor shall
be addressed to Contractor at:
Attn: Andrew Lynch
TargetSafety, Inc. DBA targetsolutions
10805 Rancho Bemardo Rd., Suite 200
TargetSafety, Inc. DBA targetsolutions Page 8
San Diego, CA 92127
Phone: (800) 840-8048
27. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Contractor shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement.
Contractors 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 Contractor in writing as unsettled at the time of its final request
for payment. The Contractor and the City expressly agree that in addition to any claims
filing requirements set forth in the Agreement, the Contractor shall be required to file
any claim the Contractor may have against the City in strict conformance with the Tort
Claims Act (Govemment Code sections 900 et seq.).
28. TERMINATION
28.1 Contractor will have the right, in its sole discretion, to terminate City's
account or City's access to the Web Sites or Services for any of the following reasons:
(i) City's violation of any part of this Agreement, (ii) City's violation of the rights of any
third party; or (iii) the failure to extend any term or Renewal Term. City may terminate
the user profiles of the account for any reason at any time by providing notice to
Contractor of the intention to do so, subject to this Agreement. If City's account is
terminated, Contractor may, in its sole discretion, delete any comments, web sites, files,
.graphics or other content or materials relating to City's use of the Web Sites or Services
on Contractors' servicers or otherwise in its possession or control. Following
termination, City may not be permitted to use the Web Sites or the Services without first
obtaining Contractor's consent. If City's account or access to the Web Sites or Services
is terminated, Contractor reserves the right to exercise whatever means it deems
necessary to prevent unauthorized access :to the Web Sites or the Services, including,
but not limited to, technological barriers, IP mapping, and direct contact with the City's
Internet Service Provider. All provisions of this Agreement which by their nature should
survive termination shall survive termination, including without limitation, ownership of
content and services provisions and intellectual property rights thereto, disclaimers,
exclusions and limitations of liability.
28.2 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.
TargetSafety, Inc. DBA targetsolutions Page 9
28.3 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 Contractor. In the
event of termination under this Section, City shall pay Contractor for Services
satisfactorily performed and costs incurred up to the effective date of termination for
which Contractor has not been previously paid. On the effective date of termination,
Contractor 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.
29. REPRESENTATIONS AND WARRANTIES.
29.1 By Each Party. Each party represents and warrants to the other party: (i)
that it has the full power and authority to enter into and perform its obligations under this
Agreement, (ii) the assent to and performance by it of its obligations under this
Agreement do not constitute a breach of or conflict with any other agreement or
arrangement by which it is bound, or any applicable laws, regulations or rules, and (iii)
this Agreement constitutes legal, valid and binding obligations of the parties executing
or assenting to this Agreement, enforceable in accordance with its terms and conditions.
29.2 By City. City represents and warrants to Contractor that: (i) You will not
infringe the patent, copyright, trademark, trade secret, right of publicity or other
intellectual property or proprietary right of Contractor or of any third party in your use of
.the Web Sites or the Services, and (ii) you will comply with all applicable laws, rules and
regulations in your use of the Services and the Web Sites, including this Agreement.
30. STANDARD PROVISIONS
30.1 Compliance with all Laws. Contractor 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 Contractor 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.
30.2 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.
30.3 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.
30.4 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.
TargetSafety, Inc. DBA targetsolutions Page 10
30.5 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.
30.6 Amendments. This Agreement may be modified or amended only by a
written document executed by both Contractor and City and approved as to form by the
City Attorney.
30.7 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.
30.8 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.
30.9 Equal Opportunity Employment. Contractor 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.
30.10 No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorney's fees.
30.11 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]
TargetSafety, Inc. DBA targetsolutions Page 11
EXHIBIT A
SCOPE OF SERVICES AND LICENSE AGREEMENT
These terms are binding between the Contractor and the users of all Contractor's
web sites, whether personally or on behalf of the City ("you").
1. Using the Web Sites.
(a) Eligibility. Except as expressly provided below, certain services may only
be used by, and registered user status is limited to, individuals who can form legally
binding contracts under applicable law ("Registered Users"). Without limitation, minors
are prohibited from becoming Registered Users. References in this Agreement to
"users" include Registered Users only.
(b) User Registration. To become a Registered User, you must create an
account with Contractor through the online registration process on the Web Sites. In
some cases, and only at your organization's request, Contractor may create an online
registration for you or groups of users. In other cases, your organization may register
you. If you create an account, you must provide accurate and complete registration
information, as prompted in the registration form. You should promptly update your
online profile if any of this information changes. If someone else completes an online
registration for you, you should review and update your online profile.
(c) Passwords. If you create an account you will be asked to choose a
password. If your account was created for you, you will be asked to create a new
password. You must keep your password confidential. You will be responsible for all
uses of your password and account, including, without limitation, any use by any
unauthorized third party. You must notify Contractor immedjately if you believe your
password or account has been obtained, or may be accessed or used by, any
unauthorized person or entity. In addition, you must notify Contractor immediately if you
become aware of any other breach or attempted breach of the security of the Web
Sites. For security purposes, Contractor recommends that you change your password
often.
(d) Scope of Usage Rights. The right to use the Web Sites does not
necessarily include access to all of the software, course content, services and support
provided and licensed by Contractor to its "Clients" for a fee. "Clients" are organizations
or business enterprises that independently contract directly with Contractor on behalf of
select groups of Registered Users for access to Contractor services for a fee.
(e) License to use. As a Registered User, Contractor grants you a non-
exclusive, nontransferable personal license for individual use of the Services during the
term of your service agreement. Contractor warrants that the services provided to you
by Contractor hereunder shall be performed in a competent manner, consistent with
industry standards.
TargetSafety, Inc. DBA targetsolutions Page A-1
2. Program Description.
(a) The online training program includes full access for all users to
Contractor's complete library of online course selection including NFPA Series of online
training courses inclusive of environmental, occupational health, general safety, EMS,
EVOC, HR training course titles, and FEMA Terrorism courses, plus course content
revisions or updates, and new course additions. Contractor hereby agrees keep its
complete library of online courses current and up to date with all applicable federal,
state and local statues, laws, regulations and case law.
(b) The platform also provides the ability to customize training content to
integrate departmental policies, procedures, and standards as well as add additional
informational resources and announcements.
(c) The self -paced employee training platform provides access 24 hours per
day, 7 days per week along with compliant content to include safety question
capabilities and a virtual employee safety suggestion communication tool. Platform also
includes randomized employee testing and automatically generated certificates upon
course completion.
(d) Service includes access to a customized "TargetSolutions Management
System" with capabilities to include: assigning employee training, monitoring,
departmental reporting, tracking completions, test scores, certificates, CICCS
Management, report generation and data export capabilities.
(e) Setup of customized website and recordkeeping database; programming
of SOP's integrated to result in a customized training experience for personnel and to
minimize legal liability. .
(f) Ongoing client supportservices shall be available 24 hours per day, 7
days per week.
3. Content Posted by You or Others in Your Organization.
(a) Objectionable Content. Due to the amount of user -generated content,
Contractor may not have the ability to control the nature of the content presented by
users on or through the Web Sites. City's users are solely responsible for their
interactions with other users of the Web Sites and any content that they post.
Contractor is not and will not be liable for any damage or harm resulting from any of the
Web Sites' users' content or their interactions with other users of the Web Sites.
Contractor reserves the right, but has no obligation, to monitor interactions between
City's users and other users of the Web Sites and to take any other action to restrict
access to or the availability of any material or another user of the Web Sites may
consider to be obscene, lewd, lascivious, violent, harassing, defamatory, infringing,
abusive, inflammatory, vulgar, fraudulent, invasive of privacy or publicity rights, hateful,
or racially, ethnically or otherwise objectionable (including, without limitation, because it
violates this Agreement).
TargetSafety, Inc. DBA targetsolutions Page A-2
(b) Prohibited Content. City users may not post, submit or transmit any
content that: (i) is libelous, defamatory or slanderous; (ii) advocates the violent
overthrow of the government of the United States; (iii) incites, encourages or threatens
immediate physical harm against another; (iv) presents an immediate. and genuine
danger to another person or entity; or (v) violates any applicable law, regulation, or rule.
4. Registered Users.
Registered Users may download and/or copy content or information displayed on
the Web Sites for personal use only, provided that all copyright and other notices
contained therein are maintained, or to further the business purposes of Contractor
'Clients". "Clients" are organizations or business enterprises that independently
contract directly with Contractor on behalf of select groups of Registered Users for
access to Contractor services for a fee. Copying, sharing, publishing, displaying, and/or
preparing derivative works of any content or information from the Web Sites, in any form
or by any means, for anything other than personal (non-commercial) use, onto further
the business purposes of Contractor contracted Clients, is expressly prohibited without
prior written permission from Contractor or the owner of the copyrighted content.
5. Intellectual Property Rights.
(a) Copyright. Except for content and materials owned by City or by other
Registered Users and uploaded onto Contractor's web sites, all materials on the Web
Sites and used in the Services, including without limitation, the Contractor logo, designs,
text, graphics, information, content, data, images, audio, video, applications, software,
metadata, compilations, graphical user interfaces, other files, and the selection,
arrangement and organization thereof are either owned by Contractor or are the
property of Contractor's suppliers or licensors. Except for City's own user content that
City users legally post on the Web Sites, or for contributed content specifically made
available to the general community in the Contractor's Community Resource Center,
and. except for the limited use granted to Registered Users set forth above in Paragraph
4, no Web Sites' content may be modified, copied, distributed, framed, reproduced,
republished, downloaded, scraped, displayed, posted, or transmitted, in any form or by
any means, in whole or in part, without our prior written permission. No Web Site
content may be sold, copied, reproduced, used for derivative works, or used for any
commercial purposes. Provided that City s users are using the Web Sites as a
Registered User, City and its users are granted a limited license to access and use the
Web Sites and the Services and to download or print a copy of any portion of the Web
Sites' content to which the City and its users have properly gained access solely for
City's personal, non-commercial use, or to further the business purposes of Contractor
Clients, as defined in Paragraph No. 4 above, provided that the City and its users do not
alter or delete any trademark, copyright, or other proprietary notices. Except for City's
own user content, the City and its users may not upload, republish, copy, display, or
make derivative works from Web Sites' content on any.lntemet, Intranet or Extranet site
or use the information in any other database or compilation; and any other use of our
Web Sites' content is strictly prohibited. City's license is subject to this Agreement and
does not permit use of any data mining, robots, scraping or similar data gathering or
TargetSafety, Inc. DBA targetsolutions Page A-3
extraction methods. Any use of the Web Sites or the Content or Services beyond the
scope of the license granted above is prohibited.
(b) Trademarks. Contractor, the Contractor logos, and the other Contractor
product names, tag lines, logos, page headers, custom graphics, button icons, and
scripts shown on the Web Sites are trademarks or trade dress of Contractor. Any use
by City of such trademarks and trade dress is for the sole benefit of Contractor and all
goodwill generated by such use will inure to Contractor. If you refer to Contractor
trademarks or logos, City must include appropriate attribution to Contractor. All other
trademarks, trade names and the like that appear on the Web Sites or in the Services
are the property of their respective owners. City may not use (including as part of a
domain name) any of these trademarks, trade dress, or trade names without express
permission.
(c) Ownership and Use. Contractor retains ownership of its intellectual
property rights and City does not obtain any rights therein by virtue of this Agreement or
otherwise. Except for use on the Site or authorized in Section 6 above, City have no
right to use, copy, display, perform, publish, create derivative works from, create new
works or abstracts from, distribute, have distributed, transmit, or sublicense materials or
content available on the Web Sites or through -the Services, except as expressly set
forth in this Agreement. Notwithstanding the foregoing, City may use the content and
materials on our Web Sites and available through our Services in the normal course of
City's use of the Web Sites and the Services. City may not use any third -party
intellectual property without the express written permission of the applicable third party,
except as permitted by law.
(d) City s Content. Except for the material described in the "Suggestions"
section below, to which Contractor will obtain- ownership, Contractor will not acquire an
ownership interest in the materials City posts, inputs or submits to the Web Sites unless
City specifically elects to share such materials, and then Contractor will acquire the non-
exclusive license as set forth in Section 9 below.
6. Linking and Framing.
During the term of this Agreement, City may create a plain text hyperlink to
Contractor's Web Sites, provided that neither City nor the link portrays Contractor or any
of its products and services in a false or disparaging manner or suggests sponsorship,
affiliation or endorsement by or with Contractor. Contractor may, at its discretion,
revoke this permission at any time for breach of this Agreement. City may not "frame,"
inline link, or similarly display any Contractor content or property, including, without
limitation, the Web Sites. City may not use any Contractor logo or other of its
trademarks as part of the link without express written permission.
TargetSafety, Inc. DBA targetsolutions Page A-4
7. License Granted to Contractor by Individuals or Organizations Accessing
TargetSolution's Community Sharing Services.
By posting, storing or transmitting any content on or to the Web Sites, City
hereby: (i) grants to Contractor and its licensees, and represents and warrants that City
has the right to grant, a perpetual, worldwide, non-exclusive, royalty -free, fully paid up,
transferable, sub -licensable, right and license to use, copy, display, perform, create
derivative works from, distribute, have distributed, transmit and sublicense such content
in any form, in all media now known or hereinafter created, anywhere in the world, for
any purpose, commercial, advertising, or otherwise, and (ii) agrees that the content is
subject to being changed, rejected, or deleted without notice or explanation to City. City
hereby irrevocably waives any claims based on moral rights, if any. This will not change
the protection under the law for any material which is clearly marked as copyright.
8. DIVICA Copyright Policy and Copyright Agent
Contractor respects the intellectual property rights of others and expects its users
and contributors to do the same. Contractor may remove or disable access to content
that in its sole discretion appears to infringe the intellectual property rights of others. In
addition, Contractor, in its sole and absolute discretion, may terminate the, accounts or
registrations of users who infringe the intellectual property rights of others within the
TargetSolutions.com network. If City believes that a user of the Web Sites or the
Services has infringed its intellectual property rights, please notify Contractor's
Copyright Agent, and provide the following information: (a) a physical or electronic
signature of the person authorized to act on behalf of the owner of the intellectual
property right; (b) an identification of the intellectual property claimed to have been
infringed; (c) a detailed description of the material that City claims is infringing, so that
we may locate it, including the URL where the infringing material appears; '(d) City's
address, telephone number, and email address; (e) a statement by City that it has a
good faith belief that the allegedly infringing use is not authorized by the intellectual
property rights owner, its agent, or the law; and, (f) a statement by City, made under
penalty of perjury, that the foregoing information is accurate and that City is authorized
to act on behalf of the owner of the intellectual property rights involved.
If City has had content removed because there has been a Notification of
Copyright Infringement pursuant to the Digital Millennium Copyright Act (as described
above) you may make a counter notification pursuant to sections 512(g)(2) and (3) of
the Digital Millennium Copyright Act. When we receive a counter notification, we may
reinstate the material in question. To file a counter notification with us, City must
provide a written communication that sets forth the items specified below. Please note
that City will be liable for damages (including costs and attorneys' fees) if City materially
misrepresent that a product or activity is not infringing the copyrights of others.
Therefore, if City is not sure whether certain material infringes the copyrights of others,
we suggest that City first contact an attorney. To submit City's Counter Notification to
us please provide the following information:
TargetSafety, Inc.. DBA targetsolutions Page A-5
(a) Identify the specific URLs or other unique identifying information of the
material to which Contractor has disabled access or removed;
(b) Provide City's name, address, telephone number, email address, and a
statement that you consent to the jurisdiction to the federal District Court for the judicial
district in which City address is located (or San Diego County, California if outside of the
United States), and that City will accept service of process from the person who
provided notification or an agent of such person;
(c) a signed by City under penalty of perjury, that City has a good faith belief that
the content identified above was removed or disabled as a result of a mistake or
misidentification of the material to be removed or disabled, or that the material identified
'by the complainant has been removed or disabled at the URL identified and will no
longer be shown.
TargetSolutions's Copyright Agent can be reached at:
Copyright Agent
TargetSolutions.com, .Inc.
10805 Rancho Bemardo Rd., Suite 200
San Diego, CA 92127
USA
Phone: (858) 376-1630
Fax: (858) 487-8762
Email: copyright@TargetSolutions.com
TargetSafety, Inc. DBA targetsolutions Page A-6
EXHIBIT B
SCHEDULE OF BILLING RATES
Safety
T"- v MArS
Newport Beach Fire Department KFP& Partne�
TargetSafety, Inc.
10815 Rancho Bernardo Road, Suite 250
San Diego, CA 92127 8-03-2012 TBA
877.944.6372 (Ext. 115) - TOLL FREE
858.592.68801858.487.8762 (fax)
Attention: Training Svcs Battalion Chief 3+1+1 1 Andrew Lynch 1 6-30-2012
3300 Newport Blvd., PO Boz 1768 Initial Agreement term is 3 years with City's option to renew
Newport Beach, CA 92663 for two additional 1 year terms unless terminated earlier.
Payment terms are according to Section 4 of the Agreement.
Complete terms per Agreement.
p
NFPA/TargetSafetyFhe Industry online
pA1 Initial FF
Annual FF
$89.00 per user for 1" year
$75.00 per user add'I years
$9,879.00
risk management program.
121
$9,075.00
13 LG/Staff
$49.00 per user annually
$637.00
Rates based upon user classification not
Max
to exceed 121 FF and 20 LG/Staff.
20 LG/Staff
$49.00 per user annually
$980.00
Total
1M Year Cost 124 active users
$10,516.00
Maximum Cost for Each Additional Year (141
NFPA CA FD Discounts
users)
$10,055.00
Price includes access to NFPA Series of, Fire Industry online
training courses to include environmental, occupational health,
Included
$0.00
general safety, employment practices, EMS, EVOC, and HR
training course titles including the FEMA Terrorism course.
Employee training platform includes compliant content to
include safety question capabilities and a virtual employee
safety suggestion communication tool. Platform also includes
Included
$0.00
randomized employee testing, and automatically generated
certificates upon course completion.
Service includes access to a customized "TargetSolubons
Management SystemT "with capabilities to include: assigning
employee training, departmental reporting, tracking completions,
Included
$0.00
test scores, certificates, CICCS Management, and report
generation. Ongoing client service and support 2417.
Setup of customized website and recordkeeping database;
One-time fee
$0.00
Programming of SOP's integrated to result in a customized
Waived with 3 yr contract
training experience for personnel and to minimize legal liability.
EXHIBIT C
INSURANCE REQUIREMENTS
1.1 Provision of Insurance. Without limiting Contractor's indemnification of
City, and prior to commencement of Work, Contractor 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. Contractor agrees to
provide insurance in accordance with requirements set forth here. If Contractor uses
existing coverage to comply and that coverage does not meet these requirements,
Contractor agrees to amend, supplement or endorse the existing coverage.
1.2 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.
1.3 Coverage Requirements.
1.3.1 Workers' Compensation Insurance. Contractor 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.
Contractor 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.
1.3.2 General Liability Insurance. Contractor 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, products -completed operations, personal and advertising injury, and liability
assumed under an insured contract (including the tort liability of another assumed in a
business contract) with no endorsement or modification limiting the scope of coverage
for liability assumed under a contract.
1.3.3 Automobile Liability Insurance. Contractor 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 the Contractor 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.
TargetSafety, Inc. DBA targetsolutions Page C-1
1.4 Other Insurance Requirements. The policies are to contain, or be
endorsed to contain, the following provisions:
1.4.1 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 Contractor or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a loss. Contractor
hereby waives its own right of recovery against City, and shall require similar written
express waivers from each of its subcontractors.
1.4.2 Additional Insured Status. All liability policies including general
liability, excess liability, pollution liability, and automobile liability, 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.
1.4.3 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.
1.4.4 Notice of Cancellation. All policies shall provide City with thirty (30)
days notice of cancellation (except for nonpayment for which ten (10) days notice is
required) or nonrenewal of coverage for each required coverage.
1.5 Additional Agreements Between the Parties. The parties hereby agree to
the following:
1.5.1 Evidence of Insurance. Contractor 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
contract. City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
1.5.2 City s Right to Revise Requirements. The City reserves the right at
any time during the term of the contract to change the amounts and types of insurance
required by giving the Contractor sixty (60) days advance written notice of such change.
If such change results in substantial additional cost to the Contractor, the City and
Contractor may renegotiate Contractor's compensation.
1.5.3 Enforcement of Contract Provisions. Contractor acknowledges and
agrees that any actual or alleged failure on the part of the City to inform Contractor of
non-compliance with any requirement imposes no additional obligations on the City nor
does it waive any rights hereunder.
TargetSafety, Inc. DBA targetsolutions Page C-2
1.5.4 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.
1.5.5 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.
1.5.6 City Remedies for Non Compliance If Contractor or any
subcontractor 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 Contractor'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 Contractor or reimbursed by Contractor upon
demand.
1.5.7 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
Contractors performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies.
1.5.8 Contractor's Insurance. Contractor 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.
TargetSafety, Inc. DBA targetsolutions Page C-3
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY 1,TORNfY'S OFFICE
Date:%
3-1
Aatn C. Harp
City Attorney
CITY OF NEWPORT BEACH,
A California munici al corporation
Date: SEP 2 6 22
By:
Scott Poster
Fire Department Chief
ATTEST:10- CONTRACTOR: TargetSafety, Inc., a
Date: �' California corporation, DBA
TargetSolutions
Date:
By: By:
Leilani I. Brown nsel
City Clerk Chief Financial Officer
r, -h
Date:
10L /L4�
By
,r
\
Thomas Woodward
Vice President of Operations
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates/ Progress Payment Schedule
Exhibit C — Insurance Requirements
f:\apps\cat\cyco m\wpdocs\d 019\p006\00010568.docx
TargetSafety, Inc. DBA targetsolutions Page 12