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HomeMy WebLinkAboutC-5843 - PSA for Electronic Collection of Hazardous Material Disclosures�r J `moi �r) IN PROFESSIONAL SERVICES AGREEMENT WITH ECOMPLIANCE, INC. FOR ELECTRONIC COLLECTION OF HAZARDOUS MATERIALS DISCLOSURE THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into as of this 6th day of October, 2015 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City'), and ECOMPLIANCE, INC., a California corporation ("Consultant'), whose address is 1663 Mission Street, Suite 525, San Francisco, California 94103, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide a web -based software product that will enable the City to comply with internet reporting requirements for hazardous materials disclosure required by Assembly Bill No. 2286 (2008 Reg. Sess.) ('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: TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2017, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform Services attached hereto as Exhibit A and or "Work"). City may elect to delete certaii sole discretion. all the services described in the Scope of incorporated herein by reference ("Services" i Services within the Scope of Services at its cco 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 Eleven Thousand Nine Hundred Dollars and 001100 ($11,900.00), 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. ECompliance, Inc. Page 2 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Bijan Foulasi 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 Fire Department. City's Assistant Fire Chief 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 ECompliance, Inc. Page 3 standards. 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. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims'), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. ECompliance, 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 ECompliance, 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. ECompliance, 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 ECompliance, Inc. Page 7 bome 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: Kevin Kitch, Assistant Fire Chief Fire 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: Bijan Fouladi ECompliance, Inc. 1663 Mission Street, Suite 525 San Francisco, California 94103 ECompliance, Inc. Page 8 �Z��d�11iL6? 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. ECompliance, 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 race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 28.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] ECompliance, 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 ATTOR EY'S OFFICE Date: By: Aaron C. Harp CAM City Attorney ATTEST: I I. 1r Date: S� By: Le4iBrown City Clerk I� fioR"i CITY OF NEWPORT BEACH, a California municipal corporation Date: By: (�S; Scott Poster Fire Chief CONSULTANT: ECompliance, Inc., a California corporation Date: Signed in Counterpart By: Bijan Fouladi President Date: Signed in Counterpart By: Yi-Che Lu Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements ECompliance, Inc. Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date:—5 -19 - N �MI,.. ♦ v A .• • ATTEST: Date: 44��By: ' Leilani I. Brown City Clerk F CITY OF NEWPORT BEACH, a California mwiell woration Date: By: Scott Poster Fire Chief CONSULTANT: eCompliance, Inc., a California corporation Date: Bv: Bijan Fouladi President Date: By: Yi-Che Lu CFO [END OF SIGNATURES] Attachments: Exhibit A – Scope of Services and Support Terms Exhibit B – Schedule of Billing Rates Exhibit C – Insurance Requirements eCompliance, Inc. Page 11 EXHIBIT A SCOPE OF SERVICES Scope of Services eCompliance Inc. ("Consultant") has developed a web -based software product that enables users to comply with the intemet reporting requirements for hazardous materials disclosure as required by AB2286 (2008). This product is used by the Orange County Healthcare Agency and will permit seamless reporting by the Newport Beach Fire Department to the Orange County Healthcare Agency and the State of California, as required by AB2286. In consideration of the Fees for Services set forth in Exhibit B and payable hereunder, Consultant agrees to provide technical, operational and training services needed to implement the product and to integrate the product with City's existing databases and applications, including but not limited to remote technical assistance and consultation to the City's staff and regulated facilities in City's jurisdiction via telephone or email during the hours of 9:00a.m. to 5:00p.m. PST, Monday through Friday, excluding holidays. Consultant agrees to provide to the City as part of the technical, operational and training services hereunder all revisions, updates, improvements, modifications and enhancements to the product. An update, once incorporated by the City into the product, shall be considered part of the product for all purposes hereunder and shall not cause a loss of existing functionality. All such updates will be provided free of charge. (ONLY CHECKED SERVICES ARE PROVIDED AS PART OF THIS AGREEMENT) PA Forms — Requirements: ® HMBP Title 27 (CERS) ❑ UST CUPA Billing ❑ Tiered Permitting ❑ APSA PA Database Integration One-time upload via Excel spreadsheet ❑ Two-way Synchrony Emergency Response ® Chemical classification dictionary ❑ Internet -independent laptop configuration ® Web -based Response Module ❑ Smart Phone (Android) Response App Submission Review ® Submission Review Criteria ® Business Login Request Processing ® Email Notifications Billing ❑ Business to CUPA Interface — Mailing updates, online payments ECompliance, Inc. Page A-1 Support Terms 1. During the duration of these Support Terms, Consultant shall provide to City support and maintenance for the product in accordance with these Support Terms, including without limitation the response time described in Table A-1 attached hereto and incorporated herein by reference. Support includes, without limitation, problem resolution, periodic review of current outstanding questions and usage issues, and the provision of new and upcoming releases of updates, and customizations and enhancements made to the eSubmit software that City is licensed to access and use (the "Software") that are generally made available without additional charge to other users with similar support and maintenance contracts. 2. Hours of Support. Consultant will provide the support services during the hours as described in Table A-1. 3. New Releases. Consultant will from time -to -time issue new releases of the Software and when it does, it will immediately provide City with access to such updated Software as part of the product. Consultant will not make any changes to the Software that affects the functionality of the Software as described in this Agreement or that renders City and its users unable to access and use the product as ECompliance, Inc. Page A-2 PA to CUPA Interface — Set facility status, set fees, add facilities ® Client fee calculations. ❑ Ability for Client to generate, print and email invoice to business. Inspections and Inspection and Enforcement Interface Enforcements ❑ Client Excel uploads from Existing Inspection application. Training ❑ Regulated Business Training (2x) — Spanish session available ❑ First Responder Training (1 x) ❑ Client Training (1x) Application Hosting ED Externally hosted server. Web -based connectivity, data backup provided by CUPA ❑ PA hosted Hardware n Pads ❑ Laptops Support M -F 9AM — 5 PM Excluding Holidays—Via Phone, Email, Web ❑ 24x7 365 days a year Support Terms 1. During the duration of these Support Terms, Consultant shall provide to City support and maintenance for the product in accordance with these Support Terms, including without limitation the response time described in Table A-1 attached hereto and incorporated herein by reference. Support includes, without limitation, problem resolution, periodic review of current outstanding questions and usage issues, and the provision of new and upcoming releases of updates, and customizations and enhancements made to the eSubmit software that City is licensed to access and use (the "Software") that are generally made available without additional charge to other users with similar support and maintenance contracts. 2. Hours of Support. Consultant will provide the support services during the hours as described in Table A-1. 3. New Releases. Consultant will from time -to -time issue new releases of the Software and when it does, it will immediately provide City with access to such updated Software as part of the product. Consultant will not make any changes to the Software that affects the functionality of the Software as described in this Agreement or that renders City and its users unable to access and use the product as ECompliance, Inc. Page A-2 set forth in this Agreement. In addition, Consultant will provide City a copy of the release documentation and updated user or system documentation. 4. Limitations. Consultant may, in its sole discretion, limit or suspend City's access to support, pursuant to these Support Terms, where City is in material default under the terms of these Support Terms (non-payment is deemed to be a material default). Prior to limiting or suspending support, Consultant will give City forty-five (45) days' written notice of its intention to do so and actively participate with City to remedy any such default or failure. 5. Term. Subject to the termination provisions of this Agreement and this Exhibit A, these Support Terms shall remain in effect for the term of this Agreement. 6. On Site Services. Consultant shall not provide any on-site services to City. 7. City Obligations. City agrees to: a. Furnish descriptions of problem(s) with the product in the form reasonably requested by Consultant Support Representatives, b. Assist Consultant efforts to troubleshoot the problem; and C. Make available qualified, trained staff on-site to carry out Consultant instructions City shall take appropriate steps to educate its regulated facilities about the need to contact City (rather than Consultant directly) when support is needed. City shall appropriately publicize the name, telephone number, and/or fax number and/or electronic mail address if applicable, of its Support Contact. Consultant is not responsible for supporting regulated facilities. ECompliance, Inc. Page A-3 Table A-1 eCompliance's hours for Support Service are as follows: Incident/Reauest for Service Prioritv All support and maintenance incidents/ requests for service will be prioritized on the following basis: Priority Definition A Product is stopped to the point that critical business activities cannot continue, e.g., loss of use of major features, file system corruption, data loss, security issue, system outage. B Issues or features of the product prevent normal operations. C Non-critical features, for which a convenient or reasonable work around exists, or a feature which functions unexpectedly. Resoonse Time The following table outlines the response times for each priority: ority ''Response Time During Regular Hours ce thin 2 hours of eCompliance receipt of verbal, electronic notice thereof. iin 1 business day, correct the Priority A Issue. Priority A Issue is not corrected within 1 busines of the original notification, eCompliance wi ide the City with reports of its efforts to correct th ritv A Issue as reauested by City. After Hours of hours from time )tifying the vendor contacl rough voice mail or e-mail ECompliance, Inc. Page A-4 REGULAR HOURS OF SERVIC FTER-HOURS SERVICE ,(PACIFIC TIME) i(PACIFIC TIME) Service Hours: 0900 to 1700 Hours, Monday- Friday;.1700 to 0900 Hours, Monday excluding Holidays observed by theFriday; Saturday; Sunday; and United States Federal Government ',Holidays observed by the United States Federal Government Correspondence Telephone Calls, a-Mailsle-Mails ype Accepted: Correspondence 415-437-3980 (Telephone Calls) linfonecomDliance,net (e -Mails) Receiving Party: info6Zbecompliance.net (e -Mails) Incident/Reauest for Service Prioritv All support and maintenance incidents/ requests for service will be prioritized on the following basis: Priority Definition A Product is stopped to the point that critical business activities cannot continue, e.g., loss of use of major features, file system corruption, data loss, security issue, system outage. B Issues or features of the product prevent normal operations. C Non-critical features, for which a convenient or reasonable work around exists, or a feature which functions unexpectedly. Resoonse Time The following table outlines the response times for each priority: ority ''Response Time During Regular Hours ce thin 2 hours of eCompliance receipt of verbal, electronic notice thereof. iin 1 business day, correct the Priority A Issue. Priority A Issue is not corrected within 1 busines of the original notification, eCompliance wi ide the City with reports of its efforts to correct th ritv A Issue as reauested by City. After Hours of hours from time )tifying the vendor contacl rough voice mail or e-mail ECompliance, Inc. Page A-4 thin 4 hours of eCompliance receipt of verbal, writterNot available electronic notice thereof. :hin 2 business days, correct the Priority B Issue. If Priority 8 Issue is not corrected within 2 business (s of the original notification, eCompliance will vide the City with reports of its efforts to correct the )rity B Issue as requested by City. -1 -- ------------------- — -- time permits basis or inclusion in the next scheduled;Not available late to the Software/Hosted Services. j Incident/Reauest for Service Reportina Procedure All problems, queries or requests for assistance must be made to eCompliance at info()ecompliance.net, or by calling eCompliance's support line at 415-437-3980 during regular business hours of service. City must be prepared to leave a contact name, phone number, screenshots, a description of the problem/service and the impact. eCompliance will contact the following City contacts when responding to reported problems, in the following order: Primary: Project Administrator Secondary: IT Manager eCompliance's resources will work with the City to diagnose the problem. After investigating the issue, eCompliance and the City will jointly categorize the problem into: Type of Problem Server Hardware Desktop Hardware Isolated Workstation Issue Database Performance/storage Application or software related Ownership Orange County Healthcare Agency City City eCompliance eCompliance eCompliance shall resolve the problem/incident according to the priority assigned. If a problem cannot be readily resolved, eCompliance shall attempt to identify a work around. As soon as eCompliance corrects a problem, eCompliance shall notify the City that the problem has been corrected by sending an electronic mail with a confirming phone call to the Project Administrator. ECompliance, Inc. Page A-5 EXHIBIT B SCHEDULE OF BILLING RATES Ongoing annual fee for services: $5,950.00* *Prices shall not increase during the terms of this agreement without thirty (30) days written notice. The total of any price increases for these services for the Product during the course of the contract shall not exceed 5% of the prior year's price. Hourly rate for authorized Extra Work $150.00 ECompliance, Inc. Page B-1 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its 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. ECompliance, Inc. Page C-1 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its 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. ECompliance, Inc. Page C-2 B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. 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 ECompliance, Inc. Page C-3 judgment may be necessary for its proper protection and prosecution of the Work. ECompliance, Inc. Page C-4 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 11/3/15 Dept./Contact Received From: Angela Date Completed: 11/3/15 Sent to: Angela By: Chris Company/Person required to have certificate: Type of contract: eCompliance All Others I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 2/6/15-2/6/16 A. INSURANCE COMPANY: Foremost Signature Insurance Company B. AM BEST RATING (A-: VII or greater): A:XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? E Yes ❑ No D. LIMITS (Must be $1M or greater): What is limit provided? 1M/2M E. ADDITIONAL INSURED ENDORSEMENT — please attach E Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does N/A F. not apply to Waste Haulers or Recreation) ❑ Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND E NIA ❑ Yes ❑ No G. COMPLETED OPERATIONS ENDORSEMENT (completed ❑ N/A E Yes ❑ No H. Operations status does not apply to Waste Haulers) ❑ Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? E Yes ❑ No 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: ❑ NIA E Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 2/6115-2/6/16 A. INSURANCE COMPANY: Foremost Signature Insurance Company B. AM BEST RATING (A-: VII or greater) A:XV C. ADMITTED COMPANY (Must be Califomia Admitted): Is Company admitted in California? E Yes ❑ No D. LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? 1,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): E NIA ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A E Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A 0 Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 10/12/15-10/12/16 A. INSURANCE COMPANY: Hartford Accident and Indemnity Company B. AM BEST RATING (A-: VII or greater): A+:XV C. ADMITTED Company (Must be California Admitted): ® Yes []No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater) 1M F. WAIVER OF SUBROGATION (To include): Is it included? ❑ Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No 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: 0 Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 11/3/15 Date ❑ 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: Sheri approved WC without waiver of subrogation 11/3/15 Approved: Risk Management * Subject to the terms of the contract. ---sa"N ECOMINC-01 CMCENTIRE .411c"11011 R CERTIFICATE OF LIABILITY INSURANCE DATEIMM1201 vYl `� 10!2112015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER, IMPORTANT: N the certificate holder Is an ADDITIONAL INSURED, the policy(les) must be endorsed. if SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the PRODUCER License If OE02096 DIBuduo $ DeFendis Insurance Brokers, LLC INSURED eCompliance, Inc. One Ottis Street San Francisco, CA 94103 COVERAGES CFRTIFICATF NtIMRFP- REVISION NUMBER: 4_1513 22357 18058 a THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHORN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 015 _. ___—_._. _. ._....POLI E POLICYE%P_ ..___._—__ -- LTR TYPE OF INSURANCE j POLICY NUMBER MHIDVIYYYY MMIDDIYYYY LIMITS A X COMMERCIAL GENERAL LIABILITY OCCURRENCE $ 1,000,00 �, i X X PP$03480847 02106/20160210612016 _EACH DAMA�ET6RERTE6— CLAIMS -MAGE a OCCUR PREMISES Ea ocuerenee S .1,000,00 . MED EXP Any one Person) S 10000 PERSONAL& ADV INJURY $ _ Excluded 1—GENERAL GEML AGGREGATE GATE LIMIT APPLIES PER. 'II AREGS 2,000,000 AGGREGATE X POLICY ,, JET '`_I LOCISI _ _._ _. _.. PRODUCTS-COMPIOPAGG S 2,000,000 HIRED NON OWNED $ 1,000,000 OTHER: AUTOMOBILE LIABILITY �. COMBINED SINGLE LIMIT $ ANY AUTO BODILY INJURY(Perpemon) $ ALL DIMMED SCHEDULED a BODILY INJURY S A ALTOS Al1TOS AUTOS I NON-0WNEDi � PROPERTY DAMAGE $ 1 L— HIRED AUTOS AUTOS {Par auideld S_ UMBRELLA DAB OCCUR EACH OCCURRENCE B EXCESS LAS CLAIMS MADE AGGREGATE $ _ —; DEO RETENTIONS $ B WORKERSCOMPENSATION AND EMPLOYERS LIABILITY YIN ANY PROPRIETORIPARTNEREXECUMVE 7011212016 -PER OTH- X LSTgTUTE ER _ $ 1,000,000 E L EACH ACCIDENT EMBER EXCLUDED' (Mandatory In NH) _ _ _ E.L.DISEASE-EA EMPLOYEE $ 1,000,000 R yes, desva,e anter �'i 1,000,00 DE8CRIPTIOe OF OPERATIONS Debvi IN/A E L DISEASE -POLICY LIMIT $ C Professional Liab. (I PHSD1039016 06/1112015 0611112016 1$5,000 deductible 1,000,00 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Addlllonal Remarks Schedule, may be anach" If more apace is required) RE: City of Newport Beach. The City of Newport Beach, Its officers, agents, employees and volunteers are named as additional Insured as respects to general liability CG20100704. Waiver of subrogation applies to general liability per company form. rr[)rinrnrc unl nco tour Cl I A71AM ©1988-2014 ACURU GUKPVKA I IVN. An ngnis reserveo. ACORD 25 (2014!01) The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Newport Beach THE EXPIRATION DATE ACCORDANCE WITH THE POLICY THEREOF, PROVISIONS. WILL BE DELIVERED IN Attn: Kevin Kitch, Assistant Fire Chief Fire Department 100 Civic Center Drive Newport Beach, CA 92658 AUTHORIZED REPRESENTATIVE h415 r ©1988-2014 ACURU GUKPVKA I IVN. An ngnis reserveo. ACORD 25 (2014!01) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: PPS03480847 COMMERCIAL GENERAL LIABILITY CG 2010 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): Locations Of Covered Operations City of Newport Beach, its officers, officials, employees 100 Civic Center Drive and volunteers Newport Beach, CA 92658 Fire Department 100 Civic Center Drive Newport Beach, CA 92658 Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section If — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) desig- nated above. B. With respect to the insurance afforded to these additional insureds, the following additional exclu- sions apply: This insurance does not apply to "bodily injury' or " property damage" occurring after: 1. All work, including materials, parts or equip- ment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of 'your work" out of which the injury or damage arises has been put to its in- tended use by any person or organization other than another contractor or subcontractor en- gaged in performing operations for a principal as a part of the same project. CG 20 10 07 04 © ISO Properties, Inc., 2004 Page 1 of 1 1�1 36329 4, Motor Vehicle Laws With respect to "mobile equipment' to which this insurance applies: a. When this Coverage Part is certified as proof of financial responsibility under the provisions of any motor vehicle financial responsibility law, the insurance provided by the Coverage Part for Bodily Injury Liability or Property Damage Liability will comply with the provisions of the law to the ex -tent of the coverage and limits of insurance required by that law. b. We will provide any liability, uninsured motorists, underinsured motorists, nofault or other coverages required by any motor vehicle insurance law. We will provide the required limits for those coverages. 5. Other Insurance If other valid and collectible insurance is available to the insured for a loss we cover under Coverages A or B of this Coverage Part, our obligations are limited as follows: a. Primary insurance This insurance is primary except when b. below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in c. below. b. Excess Insurance This insurance is excess over: (1) Any of the other insurance, whether primary, excess, contingent or on any other basis: (a) That is Fire, Extended Coverage, Builder's Risk, installation Risk or similar coverage for "your work"; (b) That insures for direct physical loss to premises rented to you or temporarily occupied by you with permission of the owner; (c) That is insurance purchased by you to cover your liability as a ten -ant for "property damage" to premises rented to you or temporarily occupied by you with permission of the owner; or (d) If the loss arises out of the 9S2001 Ed. 4-99 maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of SECTION I COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LI- ABILITY. (2) Any other primary insurance available to you covering liability for damages arising out of the premises or operations for which you have been added as an additional insured by attachment of an endorsement. When this insurance is excess, we will have no duty under Coverages A or B to defend the insured against any claim or "suit" 9 any other insurer has a duty to defend the insured against that claim or "suit". If no other Insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self-insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. Includes copyrighted )aWal of Insun nCe SWIM MM Inc.. YM6 Its permlss. Qlpyn9K Inwmnce 5e111 Office. Inc.. 1597 Page 12 of 17 ro L W In PROFESSIONAL SERVICES AGREEMENT WITH ECOMPLIANCE, INC. FOR U ELECTRONIC COLLECTION OF HAZARDOUS MATERIAL DISCLOSURES THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into as of this 10th day of June, 2014 ("Effective Date'), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and ECOMPLIANCE, INC., a California corporation ("Consultant'), whose address is 1663 Mission Street, Suite 525, San Francisco, California 94103, 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 perform Electronic Collection of Hazardous Material Disclosures ("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 June 30, 2015, 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 and Support Terms 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 Five Thousand Nine Hundred Fifty Dollars and 00/100 ($5,950.00), 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. eCompliance, 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 Bijan Fouladi 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 Fire Department. City's Assistant Fire Chief — Life and Safety Services Division 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. eCompliance, 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. eCompliance, 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 eCompliance, 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. eCompliance, 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. iEa�d�P.Iyl174.1i/_14111 C1 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 eCompliance, 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: Kevin Kitch, Assistant Fire Chief Fire 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: Bijan Fouladi eCompliance, Inc. 1663 Mission Street, Suite 525 San Francisco, CA 94103 eCompliance, Inc. Page 8 K -_d 4iWr1VJK 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. eCompliance, 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] eCompliance, 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: 5-2-9-(d Ar •�. . City Attorney ATTEST: &A1 Date: '�( I By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California mY*ielNworation Date: By: J -- Scott Poster Fire Chief CONSULTANT: eCompliance, Inc., a California corporation Date: By: Bijan Fouladi President Date: Yi-Che Lu CFO [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services and Support Terms Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements eCompliance, Inc. Page 11 u'T INBOUND NOTIFICATION : FAX RECEIVED SUCCESSFULLY nm TIME RECEIVED REMOTE CSID DURATION PAGES STATUS May 30, 2014 5:21:54 PM PDT 4154373978 39 1 Received 05/30/2014 17:27 4154373978 ECOMPLIANCE,INC. PAGE 01/01 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: l� L u t .4 lCity Attorney ♦. • f .. ATTEST: By: CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Scott Poster Fire Chief CONSULTANT: eCompliance, Inc., a California Corporaton Date: A-1 Leilani I. Brown Bijan FoL4di "- City Clerk President Date 5 t r -cam CFO [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services and Support Terms Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements eCompliance, Inc. Page 11 EXHIBIT A SCOPE OF SERVICES AND SUPPORT TERMS Scope of Services eCompliance Inc. ("Consultant") has developed a web -based software product that enables users to comply with the internet reporting requirements for hazardous materials disclosure as required by AB2286 (2008). This product is used by the Orange County Healthcare Agency and will permit seamless reporting by the Newport Beach Fire Department to the Orange County Healthcare Agency and the State of California, as required by AB2286. In consideration of the Fees for Services set forth in Exhibit B and payable hereunder, Consultant agrees to provide technical, operational and training services needed to implement the product and to integrate the product with City's existing databases and applications, including but not limited to remote technical assistance and consultation to the City's staff and regulated facilities in City's jurisdiction via telephone or email during the hours of 9:00 a.m. to 5:00 p.m. PST, Monday through Friday, excluding holidays. Consultant agrees to provide to the City as part of the technical, operational and training services hereunder all revisions, updates, improvements, modifications and enhancements to the product. An update, once incorporated by the City into the product, shall be considered part of the product for all purposes hereunder and shall not cause a loss of existing functionality. All such updates will be provided free of charge. (ONLY CHECKED SERVICES ARE PROVIDED AS PART OF THIS AGREEMENT) PA Forms — ® HMBP Requirements: - Title 27 (CERS) ❑ UST - CUPA Billing ❑ Tiered Permitting ❑ APSA PA Database Integration ❑One-time upload via Excel spreadsheet ❑ Two-way Synchrony Emergency Response ® Chemical classification dictionary ❑ Internet -independent laptop configuration ® Web -based Response Module ❑ Smart Phone (Android) Response App Submission Review ® Submission Review Criteria ® Business Login Request Processing eCompliance, Inc. Page A-1 eCompliance, Inc. Page A-2 Z Email Notifications Billing Business to CUPA Interface — Mailing updates, online payments ® PA to CUPA Interface — Set facility status, set fees, add facilities ® Client fee calculations. ❑ Ability for Client to generate, print and email invoice to business. Inspections and ❑ Inspection and Enforcement Interface Enforcements ❑ Client Excel uploads from Existing Inspection application. Training ❑ Regulated Business Training (2x) — Spanish session available ❑ First Responder Training (1x) ❑ Client Training (1x) Application Hosting ® Externally hosted server. Web -based connectivity, data backup provided by CUPA ❑ PA hosted Hardware ❑ Pads ❑ Laptops Support ® M -F 9AM — 5 PM Excluding Holidays—Via Phone, Email, Web ❑ 24x7 365 days a year eCompliance, Inc. Page A-2 Support Terms 1. During the duration of these Support Terms, Consultant shall provide to City support and maintenance for the product in accordance with these Support Terms, including without limitation the response time described in Table A-1 attached hereto and incorporated herein by reference. Support includes, without limitation, problem resolution, periodic review of current outstanding questions and usage issues, and the provision of new and upcoming releases of updates, and customizations and enhancements made to the eSubmit software that City is licensed to access and use (the "Software") that are generally made available without additional charge to other users with similar support and maintenance contracts. 2. Hours of Support. Consultant will provide the support services during the hours as described in Table A-1. 3. New Releases. Consultant will from time -to -time issue new releases of the Software and when it does, it will immediately provide City with access to such updated Software as part of the product. Consultant will not make any changes to the Software that affects the functionality of the Software as described in this Agreement or that renders City and its users unable to access and use the product as set forth in this Agreement. In addition, Consultant will provide City a copy of the release documentation and updated user or system documentation. 4. Limitations. Consultant may, in its sole discretion, limit or suspend City's access to support, pursuant to these Support Terms, where City is in material default under the terms of these Support Terms (non-payment is deemed to be a material default). Prior to limiting or suspending support, Consultant will give City forty-five (45) days' written notice of its intention to do so and actively participate with City to remedy any such default or failure. 5. Term. Subject to the termination provisions of this Agreement and this Exhibit A, these Support Terms shall remain in effect for the term of this Agreement. 6. On Site Support. City shall reimburse Consultant at the rate for on-site support set forth in Exhibit B for any On -Site Support incurred at City's direct written request and authorization. This rate shall prevail regardless of the number of Consultant support personnel dispatched to City's site, and shall be paid for each day that Consultant personnel are required to be at City's site. City will not pay for Consultant personnel travel time or travel expenses. In response to written City requests for Consultant to provide on-site routine non -emergency support, Consultant shall produce a written estimate of the time required to provide the requested support and state any requirements, such as the presence of City staff or other resources or materials. Any On -Site Support provided by Consultant shall only be invoiced by Consultant or paid by City if the problem arose due to something other than a defect in the Software or the Hosted Services. 7. City Obligations. City agrees to: eCompliance, Inc. Page A-3 a. Furnish descriptions of problem(s) with the product in the form reasonably requested by Consultant Support Representatives, b. Assist Consultant efforts to troubleshoot the problem; and c. Make available qualified, trained staff on-site to carry out Consultant instructions City shall take appropriate steps to educate its regulated facilities about the need to contact City (rather than Consultant directly) when support is needed. City shall appropriately publicize the name, telephone number, and/or fax number and/or electronic mail address if applicable, of its Support Contact. Consultant is not responsible for supporting regulated facilities. 8. Termination. City may terminate these Support Terms at any time and for any reason upon seven (7) days' prior written notice to Consultant. Table A-1 eCompliance's hours for Support Service are as follows: Incident/Request for Service Priority All support and maintenance incidents/ requests for service will be prioritized on the following basis: Priority Definition A Product is stopped to the point that critical business activities cannot continue, e.g., loss of use of major features, file system corruption, data loss, security issue, system outage. B Issues or features of the product prevent normal operations. C Non-critical features, for which a convenient or reasonable work around exists, or a feature which functions unexpectedly. eCompliance, Inc. Page A-4 REGULAR HOURS OF SERVICE AFTER-HOURS SERVICE PACIFIC TIME PACIFIC TIME Service Hours: 0900 to 1700 Hours, Monday- 1700 to 0900 Hours, Monday - Friday; excluding Holidays Friday; Saturday; Sunday; and observed by the United States Holidays observed by the Federal Government United States Federal Government Correspondence Telephone Calls, a -Mails a -Mails Type Accepted: Correspondence 415-437-3980 (Telephone Calls) info@ecompliance.net (e -Mails) Receiving Party: info ecom liance.net(e-Mails) Incident/Request for Service Priority All support and maintenance incidents/ requests for service will be prioritized on the following basis: Priority Definition A Product is stopped to the point that critical business activities cannot continue, e.g., loss of use of major features, file system corruption, data loss, security issue, system outage. B Issues or features of the product prevent normal operations. C Non-critical features, for which a convenient or reasonable work around exists, or a feature which functions unexpectedly. eCompliance, Inc. Page A-4 Response Time The following table outlines the response times for each priority: Priority Response Time During Regular Hours of Response Time Service During After Hours of Service A Within 2 hours of eCompliance receipt of verbal, 6 hours from time of written or electronic notice thereof. notifying the vendor contact(s) through voice Within 1 business day, correct the Priority A mail ore -mail Issue. If the Priority A Issue is not corrected within 1 business day of the original notification, eCompliance will provide the City with reports of its efforts to correct the Priority A Issue as requested by City. B Within 4 hours of eCompliance receipt of verbal, Not available written or electronic notice thereof. Within 2 business days, correct the Priority B Issue. If the Priority B Issue is not corrected within 2 business days of the original notification, eCompliance will provide the City with reports of its efforts to correct the Priority B Issue as requested by City. C As time permits basis or inclusion in the next Not available scheduled update to the Software/Hosted Services. Incident/Request for Service Reporting Procedure All problems, queries or requests for assistance must be made to eCompliance at info@eCompliance.net, or by calling eCompliance's support line at 415-437-3980 during regular business hours of service. City must be prepared to leave a contact name, phone number, screenshots, a description of the problem/service and the impact. eCompliance, Inc. Page A-5 eCompliance will contact the following City contacts when responding to reported problems, in the following order: Primary: Fire Department Disclosure Program Coordinator Secondary: Fire Department IT Manager eCompliance's resources will work with the City to diagnose the problem. After investigating the issue, eCompliance and the City will jointly categorize the problem into: Type of Problem Server Hardware Desktop Hardware Isolated Workstation Issue Database Performance/storage Application or software related Ownership Orange County Healthcare Agency City City eCompliance eCompliance eCompliance will deal with problem/incident according to the priority assigned. If a problem cannot be readily resolved, eCompliance will attempt to identify a work around. As soon as eCompliance corrects a problem, eCompliance shall notify the City that the problem has been corrected by sending an electronic mail with a confirming phone call to the Fire Department Disclosure Program Coordinator eCompliance, Inc. Page A-6 EXHIBIT B SCHEDULE OF BILLING RATES Ongoing annual fee for services: $5,950.00 * *Prices will not increase for the first three years of service, and, thereafter, price increases require thirty (30) days written notice. The total of any price increases for these services for the product during the course of any year shall not exceed 5% of the prior year's price. Hourly rate for authorized Extra Work $150.00 On -Site Support (per support case, if requested by City) $1,500.00** **This price is all-inclusive, encompassing any and all overhead costs associated with providing on-site support, including travel and lodging). E -Compliance, Inc. Page B-1 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its 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, one million dollars ($1,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. 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 eCompliance, Inc. Page C-1 a vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 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. 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 eCompliance, Inc. Page C-2 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 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. 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. eCompliance, Inc. Page C-3 PROFESSIONAL SERVICES AGREEMENT WITH &COMPLIANCE INC. FOR ELECTRONIC COLLECTION OF HAZARDOUS MATERIAL DISCLOSURES v j THIS AGREEMENT is made and entered into as of this 7 day of NDVdIIY K (� 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ("City"), and &-COMPLIANCE a California Corporation whose address is One Otis Street, San Francisco, California 94103 ("Consultant"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is required to collect the annual hazardous materials disclosures and Business Emergency Plans ('BEP") via the internet to comply with new State regulations. C. City desires to engage Consultant to provide access to a web based software product currently hosted by the Orange County Healthcare Agency known as www.esubmit.ocgov.com. This software was developed by eCompliance and is used to manage the creation, completion, management, authentication and submittal of electronic hazardous materials and BEP forms. This software will also allow access to the information by first responders as well as the public in accordance with the "Emergency Planning and Community Right to Know Act" ("Project"). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s] of Consultant for purposes of Project, shall be Bijan Fouladi. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: nNEEFff; 17, The initial term of this Agreement shall commence on the above written date, and shall extend for one (1) year. The term of the Agreement shall automatically extend thereafter for two (2) successive one (1) year terms. This Agreement may be terminated by City at the end of the initial term or any successive term by written notice no later than 30 days prior to the end of the 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. The 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 Consultant shall perform the services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. CKs] i1iI:1 =I_.I,yT. f1[e].rIiZK9].`.6Yl10rad,.r1 City shall pay Consultant for the services on an annual flat rate basis plus a one- time set up fee 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 Forty Five Thousand Dollars and 00/100 ($45,000.00) 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 City shall pay Consultant Fifteen Thousand Dollars and 00/100 ($15,000.00) for one-time setup services and the configuration of one (1) stand-alone emergency response laptop computer. Payments shall be made in installments on the following schedule: Due within 30 days of Effective Date of Contract: $10,000.00 Due upon City acceptance of operational service Availability of City forms on www.eSubmit.ocgov.com $5,000.00 4.2 City shall pay Consultant an annual service fee in the amount of Ten Thousand Dollars and 00/100 ($10,000.00). The first annual service fee shall be due and payable within 30 days of first business plan filing and thereafter on or before February 151 for the term of the Agreement. 4.3 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: 2 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. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 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 BIJAN FOULADI to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Fire Department. Division Chief Steve Bunting shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: C] A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands; obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, 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). El Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work Consultant shall obtain, provide and maintain at its own expense during 61 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 Coverage. 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 (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. 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. C iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile 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. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. 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. vi. 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. 7 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 City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and 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 performed by the subcontractor for purposes of establishing 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. :9:11 AQ 0 IZ6161111!i I mi'. 11161 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. El Wi 0167►I;IU7:1'knl/1InVA All Documents, including drafts, 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 documents or work product 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 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, development 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. 6!7 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 The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 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: Steve Bunting Fire Department City of Newport Beach PO Box 1768 3300 Newport Boulevard Newport Beach, CA 92658 Phone: 949-644-3353 Fax: 949-644-3120 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Bijan Fouladi eCompliance Inc. One Otis Street San Francisco, CA 94103 Phone: 415-437-3979 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 two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving 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. 11 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. 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 LAVH 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. 37. 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. 12 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:- gyWePDA3eau6hamp Assistant City Atk8rney ATTEST: an Leilani I. Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Dq.di6 Kiff City Manager CONSULTANT: eCompliance innancial Officer) n Title: (_ F0 Print Name: ! ( —c Ge Lr f Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rate Exhibit C — Support Terms 13 EXHIBIT "A" SCOPE OF SERVICES eCompliance Inc. has developed a web -based software product that enables users to comply with the internet reporting requirements for hazardous materials disclosure as required by AB2286 (2008). This product is used by the Orange County Healthcare Agency and will permit seamless reporting by the Newport Beach Fire Department to the Orange County Healthcare Agency and the State of California, as required by AB2286. In consideration of the Fees for Services set forth in Exhibit B and payable hereunder, eCompliance agrees to provide technical, operational and training services needed to implement the Product and to integrate the Product with City's existing databases and applications, including but not limited to remote technical assistance and consultation to the City's staff and regulated facilities in City's jurisdiction via telephone or email during the hours of 9:00 a.m. to 5:00 p.m. PST Monday through Friday excluding holidays. eCompliance agrees to provide to the City as part of the technical, operational and training services hereunder all revisions, updates, improvements, modifications and enhancements (the "Updates") to the Product. An Update, once incorporated by the City into the Product, shall be considered part of the Product for all purposes hereunder and shall not cause a loss of existing functionality. All such Updates will be provided free of charge. IMPLEMENTATION OF eCOMPLIANCE To implement the eCompliance system for the City, set up and configuration of the system is required as set forth below. Setup: City Responsibilities: 1. Coordinate with eCompliance to establish a schedule for deployment. 2. Provide blank copies of all City forms currently used for the hazardous materials disclosure program. 3. Provide eCompliance with electronic copies of all logos and other required artwork. 4. Load provided web pages onto the City server which links the City server to the Orange County Healthcare Agency and eCompliance servers. 5. Provide timely response to eCompliances questions, which may arise during the set up and customization process. 14 eCompliance Responsibilities: 1. Coordinate with the City to establish a schedule for deployment. 2. Load provided images onto the Orange County Healthcare Agency server and register City within the nnetwork. eCompliance shall not change the provided images without City's written consent. 3. Provide City with any necessary administrator passwords and credentials for the software. 4. Provide sample operational directives and deployment tools. Software Configuration: City's Responsibilities: 1. Coordinate with eCompliance for staff training. 2. Enter all businesses that have current disclosures on file with the City into the eCompliance system. eCompliance Responsibilities: 1. Provide City with training on the use and administration of the program. Support Services: Completion Criteria: The set up and configuration services are considered complete, and the eCompliance system accepted, when the eCompliance software is accessible to regulated facilities within the City's jurisdiction and a successful electronic submission has been made by a regulated facility. 15 IW ;H=3rM:M SCHEDULE OF FEES One time set up fee: $15,000.00 Includes configuration of one (1) stand-alone emergency response laptop. Payment schedule: $10,000.00 due on signing of Agreement. $5,000.00 due upon operational availability of City forms on www.eSubmit.ocgov.com. Ongoing annual fee for services: $10,000.00 * *Prices will not increase for the first three years of service, and, thereafter, price increases require thirty (30) days written notice. The total of any price increases for these services for the Product during the course of any year shall not exceed 5% of the prior year's price. Hourly rate for authorized Extra Work On-site support (if requested by City) (Includes all costs and expenses, including travel time and lodging) 16 $150.00 $1,500.00 SUPPORT TERMS 1. Generally. During the duration of these Support Terms, eCompliance shall provide to City support and maintenance for the product in accordance with these Support Terms, including without limitation the response time described in Exhibit C-1 attached hereto and incorporated herein by reference. Support includes, without limitation, problem resolution, periodic review of current outstanding questions and usage issues, and the provision of new and upcoming releases of updates, and customizations and enhancements made to the eSubmit software that City is licensed to access and use (the "Software") that are generally made available without additional charge to other users with similar support and maintenance contracts. 2. Hours of Support. eCompliance will provide the support services during the hours as described in Exhibit C-1. 3. New Releases. eCompliance will from time -to -time issue new releases of the Software and when it does, it will immediately provide City with access to such updated Software as part of the Product. eCompliance will not make any changes to the Software that affects the functionality of the Software as described in Exhibit A attached to this Agreement or that renders City and its users unable to access and use the Product as set forth in this Agreement. In addition, eCompliance will provide City a copy of the release documentation and updated user or system documentation. 4. Limitations. eCompliance may, in its sole discretion, limit or suspend City's access to support, pursuant to this Support Terms, where City is in material default under the terms of these Support Terms (non-payment is deemed to be a material default). Prior to limiting or suspending support, eCompliance will give City 45 day's written notice of its intention to do so and actively participate with City to remedy any such default or failure. 5. Term. Subject to the termination provisions of this Agreement and this Exhibit C, these Support Terms shall remain in effect for three (3) years. Thereafter, the parties may mutually agree to renew these Support Terms. 6. On Site Support. City shall reimburse eCompliance at the rate for on-site support set forth in Exhibit B attached to this Agreement for any On -Site Support incurred at City's direct written request and authorization. This rate shall prevail regardless of the number of eCompliance support personnel dispatched to City's site, and shall be paid for each day that eCompliance personnel are required to be at City's site. City will not pay for eCompliance personnel travel time or travel expenses. In response to written City requests for eCompliance to provide on-site routine non -emergency support, eCompliance shall produce a written estimate of the time required to provide the requested support and state any requirements, such as the presence of 17 City staff or other resources or materials. Any On -Site Support provided by eCompliance shall only be invoiced by eCompliance or paid by City if the problem arose due to something other than a defect in the Software or the Hosted Services. 7. City Obligations. City agrees to: (a) furnish descriptions of problem(s) with the Product in the form reasonably requested by eCompliance Support representatives, (b) assist eCompliance's efforts to troubleshoot the problem; and (c) make available qualified, trained staff on-site to carry out eCompliance's instructions City shall take appropriate steps to educate its regulated facilities about the need to contact City (rather than eCompliance directly) when support is needed. City shall appropriately publicize the name, telephone number, and/or fax number and/or electronic mail address if applicable, of its Support Contact. eCompliance is not responsible for supporting regulated facilities. 8. Termination. City may terminate these Support Terms at any time and for any reason upon seven (7) days' prior written notice to eCompliance. IN Exhibit C-1 eCompliance's Hours for Support Service are as follows: Regular Hours of Service (pacific After Hours Service (pacific time) time) 0900 to 1700 hours 1700 hours to 0900 hours Monday to Friday Monday to Friday - excluding Holidays observed by the U.S. Federal Govt. Call received by: eCompliance staff at 415-437-3980 e-mail received by: eCompliance staff at info@ecompliance.net Incident/Request for Service Priority Saturdays & Sundays Holidays e-mail received by: eCompliance staff at info@ecompliance.net All support and maintenance incidents/ requests for service will be prioritized on the following basis: Priority Definition A Product is stopped to the point that critical business activities cannot continue. e.g. Loss of use of major features, file system corruption, data loss, security issue, system outage. B Issues or features of the Product prevent normal operations. C Non-critical features, for which a convenient or reasonable work around exists, or a feature which functions unexpectedly. Response Time The following table outlines the response times for each priority: Priority Response Time During regular hours of service Response Time During After Hours of Service A Within 2 hours of eCompliance receipt of verbal, 6 hours from time of written or electronic notice thereof notifying the vendor Within 1 business day, correct the Priority A Issue. If contact(s) through the Priority A Issue is not corrected within 1 business voice mail or e-mail day of the original notification, eCompliance will rovide the City with reports of its efforts to correct 19 INCIDENT/REQUEST FOR SERVICE REPORTING PROCEDURE All problems, queries or requests for assistance must be made to eCompliance at info@eCompliance.net, or by calling eCompliance's support line at 415-437-3980 during regular business hours of service. City must be prepared to leave a contact name, phone number, screenshots, a description of the problem/service and the impact. eCompliance will contact the following City contacts when responding to reported problems, in the following order: Primary: Fire Department Disclosure Program Coordinator Secondary: Fire Department IT Manager eCompliance's resources will work with the City to diagnose the problem. After investigating the issue, eCompliance and the City will jointly categorize the problem into: Type of Problem Server Hardware Problem Desktop Hardware Problem Isolated Workstation Issue Database Performance/storage Application or software related Ownership Orange County Healthcare Agency City City eCompliance eCompliance eCompliance will deal with problem/incident according to the priority assigned. In the case that a problem cannot be readily resolved, eCompliance will attempt to identify a work around. As soon as eCompliance corrects an Issue, eCompliance shall notify the City that the Issue has been corrected by sending an electronic mail with a confirming phone call to the Fire Department Disclosure Program Coordinator 20 the Priority A Issue as requested by City. B Within 4 hours of eCompliance receipt of verbal, Not available written or electronic notice thereof. Within 2 business days, correct the Priority B Issue. If the Priority B Issue is not corrected within 2 business days of the original notification, eCompliance will provide the City with reports of its efforts to correct the Priority B Issue as requested by city. C As time permits basis or inclusion in the next Not available scheduled update to the Software/Hosted Services. INCIDENT/REQUEST FOR SERVICE REPORTING PROCEDURE All problems, queries or requests for assistance must be made to eCompliance at info@eCompliance.net, or by calling eCompliance's support line at 415-437-3980 during regular business hours of service. City must be prepared to leave a contact name, phone number, screenshots, a description of the problem/service and the impact. eCompliance will contact the following City contacts when responding to reported problems, in the following order: Primary: Fire Department Disclosure Program Coordinator Secondary: Fire Department IT Manager eCompliance's resources will work with the City to diagnose the problem. After investigating the issue, eCompliance and the City will jointly categorize the problem into: Type of Problem Server Hardware Problem Desktop Hardware Problem Isolated Workstation Issue Database Performance/storage Application or software related Ownership Orange County Healthcare Agency City City eCompliance eCompliance eCompliance will deal with problem/incident according to the priority assigned. In the case that a problem cannot be readily resolved, eCompliance will attempt to identify a work around. As soon as eCompliance corrects an Issue, eCompliance shall notify the City that the Issue has been corrected by sending an electronic mail with a confirming phone call to the Fire Department Disclosure Program Coordinator 20