HomeMy WebLinkAboutC-9891-1 - PSA for Fuel Modeling Assessment of Wildfire RiskCS) PROFESSIONAL SERVICES AGREEMENT
WITH XYLO RISK, INC. FOR
FUEL MODELING ASSESSMENT OF WILDFIRE RISK
V
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 14th day of April, 2025 ("Effective Date"), by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
XYLO RISK, INC., a Delaware corporation ("Consultant"), whose address is 855 Marina
Bay Parkway, Suite 150, Richmond, CA 94804, 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 fuel modeling assessment of the
City's wildfire risk. ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has 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, 2026, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A, in accordance with the Master Services Agreement
attached hereto as Attachment 1, both of which are hereby incorporated herein by this
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 Twenty Five Thousand
Dollars and 00/100 ($25,000.00), without prior written authorization from City. No billing
rate changes shall be made during the term of this Agreement without the prior written
approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
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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 Kira Greco 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 Fire Marshal
or designee shall be the Project Administrator and shall have the authority to act for City
under this Agreement. The Project Administrator shall represent City in all matters
pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
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requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to any breach of the terms and conditions of this Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Consultant.
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
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service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
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.
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16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
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.
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19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
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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") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seg., Consultant
shall conform to all requirements therein. 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: Fire Administrative Manager
Fire Department
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Scott Cheeseman
Xylo Risk, Inc.
855 Marina Bay Parkway, Suite 150
Richmond, CA, 94804
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Consultant in writing as unsettled at the time of its final request for payment.
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Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
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.
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28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California mun. orporation
Date: �-f Date: �ipal .2 J—
By: `&jLj By:�
Aaqbn C. Harp �.ti Jeff . Boyles
City Attorney a �`` Fire Chief
ATTEST:
Date:
C
By:
Leilani I. Brown
City Clerk
CONSULTANT: XYLO RISK, INC., a
Delaware corporation
Date:
By: Signed in Counterpart
Scott Cheeseman
Chief Executive Officer
Date:
Signed in Counterpart
By:
Dave Winnacker
Secretary
[END OF SIGNATURES]
Attachments: Attachment 1 — Master Services Agreement
Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
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IN WITNESS WHEREOF, the parties have caused this Agreeme t fn hA JpmV
on the dates written bek.m.
APPROVED AS TO FORM:
CITY ATTORNEYS OFFICE
Date:
By: 4
Wa-rpn C. Harp d
City Attorney
ATTEST;
Date:
M-
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Jeff G. Boyles
Fire Chief
CONSULTANT- XYLO RISK,
Delawar cprporation
Date:By
- - - ------------ -----
.. ........... --- ...................... ...... ... ....... - -----
ScofR;heeseman
Chief Executive Officer
Date:
By:
Dave Winnacker
Secretary
[END OF SIGNATURES]
Attachments: Attachment 1 - Master Services Agreement
Exhibit A - Scope of Services
Exhibit B - &4;iedule of Billing Rates
Exhibit C - Insurance Requirements
Xylo Risk, Inc. Page 11
ATTACHMENT 1
Master Services Agreement
Master Services Agreement
This Master Services Agreement (herein, this "Agreement"), is made by and between Xylo Risk, Inc., a
Delaware corporation ("XyloPlan"), and The City of Newport Beach, with an address of 100 Civic Center Drive,
Newport Beach, CA 92660 (the "Client"), and is effective upon the effective date (herein, the "Effective Date")
of the Professional Services Agreement (the "PSA") between the parties to which this Agreement is attached.
1. Services. Subject to and conditioned upon Client's compliance with the terms and conditions of
this Agreement, XyloPlan shall provide to Client those consulting services and deliverables more specifically
set forth on Exhibit A attached hereto (herein, the "Services"). XyloPlan shall use commercially reasonable
efforts to perform the Services in a timely manner and, except as otherwise mutually agreed upon by the
parties, XyloPlan will have exclusive control over the manner and means of performing the Services, including
the choice of place and time. While on Client's premises, XyloPlan agrees to comply with Client's then -current
access rules and procedures, including those related to safety, security and confidentiality, which Client
provides to XyloPlan in advance and in writing.
2. Client Obligations.
2.1 During the term hereof, Client shall (i) cooperate with XyloPlan in all matters relating to the
Services; (ii) respond promptly to any XyloPlan request to provide information, approvals, direction, or
authorization as may be reasonably necessaryfor XyloPlan's performance of the Services; and (iii) provide in a
timely manner such information, data, materials, and content requested by XyloPlan for its performance of the
Services, and ensure that such information, data, materials, and content are complete and accurate in all
material respects. If XyloPlan's performance hereunder is prevented or delayed by any act or omission of
Client, including, without limitation, any breach of the foregoing obligations, XyloPlan shall not be deemed in
breach of this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client
arising directly or indirectly from such prevention or delay.
2.2 Client agrees and acknowledges that XyloPLan's performance of the Services, including,
without limitation, the quality and accuracy of any Deliverables (as defined below), is dependent upon the
quality, completeness and accuracy of the information, data, materials, and content provided by or on behalf
of Client to XyloPlan hereunder (the "Client Materials"). Client shall ensure, and hereby represents and
warrants, that all Client Materials are complete, accurate, up-to-date, that the Client Materials are not
deceptive or misleading, and that Client has all rights, licenses, and permissions necessary to make the Client
Materials available to XyloPlan hereunder and to permit XyloPlan's collection, use, and storage of the same for
purposes of its performance of the Services.
2.3 Client acknowledges that for XyloPlan to perform the Services (including the production and delivery
of the Deliverables) to high levels of quality, XyloPlan requires the freedom to apply its algorithms, know-how
and methodologies. Accordingly, in addition to the other uses of Client Materials permitted under this
Agreement and notwithstanding anything herein to the contrary, XyloPlan shall have the right to collect,
examine, extract, model, manipulate, aggregate, collate, analyze, create analysis using, reproduce and
otherwise use, solely on an aggregated and/or de -identified basis and within the scope of XyloPlan's regular
business operations, any Client Materials or other information learned, acquired or obtained by XyloPlan in
connection with this Agreement, including, without limitation, for purposes of: (i) developing, operating, and
ensuring the integrity of data sets, algorithms or other analytical tools; (ii) testing, implementing,
benchmarking, integrating, developing, optimizing or improving XyloPlan's products and services; and (iii)
otherwise making XyLoPlan's services and deliverables available to its customers. For the
avoidance of doubt, (iv) XyloPlan shall not share Client Materials with any third party, except with the written
permission of Client or to the extent that such Client Materials are aggregated and anonymized such that
neither Client nor any individual can reasonably be identified, and (v) any provision of this Agreement requiring
that XyloPlan return or delete Client Materials obtained through its performance of this Agreement shall be
deemed to apply only to such Client Materials in their raw form as obtained from or through Client, and not to
the product or result of the aggregation, manipulation, or other use of such Client Materials by XyloPlan in
connection with this Section 2.3.
3. Compensation. In consideration for XyloPlan's performance of the Services, Client will pay XyloPlan
the fees as described in, and in the manner set forth in, Exhibit B (herein, the "Service Fees"). Client shall
reimburse XyloPlan for any actual and documented out-of-pocket expenses that it incurs in providing the
Services (including, without limitation, travel expenses) provided that any and all such expenses are approved
of in advance by Client (the "Expenses"). Except as otherwise set forth in Exhibit B, XyloPlan shall invoice
Client for Service Fees and any Expenses on a monthly basis and all Service Fees and Expenses payable to
XyloPlan under this Agreement will be due within thirty (30) days from the date of invoice. Overdue payments
will be subject to interest at the rate of one and one-half percent (1.5%) per month, or the highest interest rate
permitted by applicable law, whichever is less. Client shall, in addition to the other amounts payable under this
Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or
otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by
this Agreement, excluding only taxes based on XyloPlan's net income. Client agrees to indemnify, defend, and
hold XyloPlan, its officers, directors, service providers, employees, successors and assigns harmless from all
claims and liability arising from Client's failure to report or pay any such taxes, duties or assessments.
4. Intellectual Property.
4.1 Deliverables. Except as otherwise set forth in Sections 4.2 or 4.4, as between XyloPlan and
Client, Client is and shall be the sole and exclusive owner of all deliverables identified on Exhibit A hereto and
provided to Client by XyloPlan in connection with its performance of the Services (the "Deliverables"). Subject
to Sections 4.2 and 4.4 hereof, XyloPlan hereby irrevocably assigns to Client all of its right, title, and interest
throughout the world in and to the Deliverables, including all intellectual property rights therein. Upon the
request and at the expense of Client, XyloPlan shall take such further actions, including execution and delivery
of appropriate instruments of conveyance, as may be reasonably necessary to assist Client to prosecute,
register, perfect, or record its rights in or to any Deliverables.
4.2 XyloPlan IP. As between XyloPlan and Client, XyloPlan is and shall remain the sole and
exclusive owner of all right, title and interest in and to (i) any technology, platforms, algorithms, materials,
content, processes, software, or other intellectual property, in any form and in any media, created by, owned
or licensed to XyloPlan prior to this Agreement or outside of the scope of its performance of the Services
(collectively, "Background IV), and (ii) any improvements, additions, or modifications to, or derivative of, such
Background IP conceived, originating, or prepared after the Effective Date hereof, whether or not in connection
with XyloPlan's performance of the Services, together with, in each case, all intellectual property rights arising
in or relating to any of the foregoing (collectively, the "XyloPlan IP").
4.3 Client Content. In order to facilitate XyloPlan's performance of the Services and creation of
the Deliverables, Client may be required to provide or make available to XyloPlan certain Client Materials or
other of Client's content, data, technology, and/or other materials (collectively, "Client
Content"). Client hereby grants to XyloPlan a limited, non-exclusive, worldwide, fully paid -up, sublicensable
(to subcontractors only), royalty -free right and license duringthe term to access and use any Client Content to
the extent needed for XyloPlan's performance of the Services and creation of the Deliverables hereunder. Client
represents and warrants to XyloPlan that (i) it has all rights, authorizations, and licenses necessary to make
such Client Content available to XyloPlan and to authorize X&Plan's access and use of the same as
contemplated hereunder, and (ii) the Client Content, and XyloPlan's access and use of the same as
contemplated hereunder, do not and shall not infringe, misappropriate, or violate the intellectual property
rights or rights of privacy or publicity of any third party.
4.4 Generic Elements. Client acknowledges and agrees that, in the course of performing the
Services and providing the Deliverables, XyloPlan may develop certain methodologies, tools, analytical
methods and other knowledge or processes that are generic and that do not relate exclusively to the
Confidential Information (as defined below) of Client ("Generic Elements"). Notwithstanding anything to the
contrary herein, the parties acknowledge and agree that XyloPlan, during and after the term hereof, shall have
the continuing right to use, apply, and otherwise exploit such Generic Elements for any purpose whatsoever,
including, without limitation, in connection with the operation of XyloPlan's business.
5. Confidentiality. Each party shall retain in confidence the non-public information and know-how
disclosed or made available by the other party pursuant to this Agreement and which is (i) designated in writing
as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which
may be via email) as confidential within thirty (30) days of the oral disclosure, or (ii) should reasonably be
understood to be confidential by the recipient ("Confidential Information"). For the avoidance of doubt,
XyloPlan's Confidential Information shall include the XyloPlan IP. Each party agrees to: (a) preserve and protect
the confidentiality of the other party's Confidential Information; (b) refrain from using the other party's
Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to
any third party, except to such employees, consultants, contractors, and representatives of the receiving party
as is reasonably required in connection with the exercise of its rights and obligations under this Agreement
(and only subject to binding use and disclosure restrictions at least as protective as those set forth herein).
Notwithstanding the foregoing, the non-use and non -disclosure provisions of this Section shall not apply to
any Confidential Information which is: (i) already publicly known without breach of this Agreement; (ii)
discovered or created by the receiving party without use of, or reference to, the Confidential Information of the
disclosing party, as shown in records of the receiving party; or (iii) otherwise known to the receiving party
through no wrongful conduct of the receiving party. Notwithstanding the foregoing, a receiving party may
disclose Confidential Information if and only to the extent required by law or court order; provided, however,
that the receiving party shall, to the extent permitted by law, provide prompt notice thereof and reasonable
assistance to the disclosing partyto enable the disclosing party to seek a protective order or otherwise prevent
or restrict such disclosure.
6. Term and Termination. The term of this Agreement begins on the Effective Date set forth above and,
unless earlier terminated as provided for herein or as provided in the PSA, will continue for the period set forth
in the PSA. Either party may terminate this Agreement immediately in the event the other party has materially
breached the Agreement and failed to cure such breach within 15 days after notice by the non -breaching party
is given. In addition, either party can immediately terminate the Agreement upon written notice if the other
becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or administrator of its
undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective
resolution is passed, for its administration, receivership, liquidation, winding -up or
other similar process, or has any distress, execution or other process levied or enforced against the whole or a
substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 30 days), or is
subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any
applicable jurisdiction, or ceases to conduct business or threatens to do so. Upon any termination of this
Agreement, XyloPlan will immediately cease all provision of the Services, and Client will promptly pay to
XyloPlan all Service Fees and Expenses due and owning to XyloPlan as of the date of such termination. The
rights and obligations of the parties in this Agreement, which, by their express terms or nature and context is
intended to survive termination or expiration of this Agreement (including, without limitation, Sections 2
through 14), will survive any such termination or expiration.
7. Limitations on Reliance. Client understands and agrees that the Services and any Deliverables are
provided only as a limited wildfire assessment and modeling tool, and that XyloPlan makes no representations
or warranties, whatsoever, that XyloPlan's provision of the Services or any Deliverables generated in
association therewith will be accurate or error -free. Client expressly acknowledges that the Services and
Deliverables constitute, include, or are based on models or projections of possible wind -driven fire impacts
and potential fuel treatments that may interrupt such impacts, and that the Services and Deliverables are not
designed to be, and should not be relied on as, a comprehensive fire mitigation program. XyloPlan shall have
no obligation or liability to Client or any third party with respect to any matter arising out of or with respect to
Client's or any third party's use of and reliance on the Services and Deliverables, including, without limitation,
any legal, economic, or other consequences arising from any failure of the Services or Deliverables to
accurately predict fire paths and mitigation measures. Client shall be solely responsible for any use of the
Services and Deliverables and for any reliance on the same by it and any third parties. Client hereby agrees to,
and hereby does, release XyloPlan and its successors from any claims, demands, losses, damages, rights, and
actions of any kind, including personal injuries, death, property damage, or economic loss or liability that either
directly or indirectly arise from Client's or any third party's reliance on the Services or Deliverables. If Client is
a California resident, Client hereby waives California Civil Code Section 1542, which states, "A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECTTO EXIST IN HIS OR HER FAVOR ATTHE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY
HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR
RELEASED PARTY."
8. Representations and Warranties. XyloPlan represents and warrants that (a) the Services will be
performed in a professional manner and in accordance with generally accepted industry standards, (b)
XyloPlan has the right and ability to assign the ownership of the Deliverables to Client pursuant to and in
accordance with this Agreement, and (c) to XyloPlan's knowledge, and except to the extent caused by or arising
from any Client Content, neither the Deliverables nor any element thereof will infringe upon or misappropriate
any copyright, trademark, or trade secret of any person. Client represents and warrants that (i) it has full
corporate power and authority to execute and deliver this Agreement and to consummate the transactions
contemplated herein, and (ii) if the Services require access to, or analysis of, any Client Content or other data,
information, technology, computer, computer network or communications network, or other system or
equipment, Client has, or will obtain prior to commencement of such Services, all rights, licenses or consents
required to authorize XyloPlan to perform such Services, including any required licenses or consents from
third -party owners of licensed or shared resources.
9. Warranty Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICES AND
DELIVERABLES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY
KIND, AND XYLOPLAN HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, AND NON -INFRINGEMENT.
NEITHER XYLOPLAN NOR ANY PERSON ASSOCIATED WITH XYLOPLAN MAKES ANY REPRESENTATION OR
WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR
AVAILABILITY OF THE SERVICES OR DELIVERABLES, NOR DOES XYLOPLAN OR ANYONE ASSOCIATED WITH
XYLOPLAN REPRESENT OR WARRANT THAT THE SERVICES, DELIVERABLES, XYLOPLAN IP, GENERIC
ELEMENTS, OR ANY OUTPUTS OR OTHER RESULTS GENERATED FROM THE USE OF THE SAME, WILL BE
ACCURATE, RELIABLE, ERROR -FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE
SERVICES AND DELIVERABLES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, THAT THE
SERVICES AND DELIVERABLES WILL BE COMPATIBLE WITH CLIENT'S SOFTWARE, SYSTEMS, OR OWN
SERVICES, OR THAT THE SERVICES AND DELIVERABLES WILL OTHERWISE MEET CLIENT'S OR ANY THIRD
PARTY'S NEEDS OR EXPECTATIONS. AS BETWEEN CLIENT AND XYLOPLAN, CLIENT ASSUMES ALL RISK IN
CONNECTION WITH CLIENT'S AND ANY THIRD PARTY'S USE OF AND RELIANCE ON THE SERVICES OR
DELIVERABLES, INCLUDING ALL RESULTS GENERATED THEREBY.
CLIENT FURTHER UNDERSTANDS THAT THE DELIVERABLES AND ANY OTHER OUTPUTS OR RESULTS
GENERATED BY XYLOPLAN'S PERFORMANCE OF THE SERVICES ARE DEPENDENT ON, AND INFLUENCED BY,
CERTAIN INPUTS AND DATA PROVIDED OR INPUTTED BY CLIENT, INCLUDING, WITHOUT LIMITATION, THE
CLIENT CONTENT. CLIENT IS SOLELY RESPONSIBLE FOR ENSURING THATALL CLIENT CONTENT AND OTHER
INPUTS AND DATA ARE CORRECT, COMPLETE, AND ERROR FREE, AND XYLOPLAN SHALL HAVE NO LIABILITY
OR OBLIGATION TO OR WITH RESPECT TO SUCH CLIENT CONTENT OR OTHER INPUTS OR DATA.
WITHOUT LIMITING THE FOREGOING, CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT THE
SERVICES AND DELIVERABLES ARE INTENDED AS A SUPPORTING TOOL IN THE PREDICTION AND
MANAGEMENT OF FIRE, BUT SHOULD NOT BE RELIED ON AS AN EXCLUSIVE MEANS OF FIRE MITIGATION OR
MANAGEMENT. THE SERVICES AND DELIVERABLES ARE NOT INTENDED TO REPLACE, AND SHOULD NOT BE
USED AS A REPLACEMENT FOR, ALL OTHER FIRE MONITORING, PREDICTION, DETECTION OR MANAGEMENT
METHODS. CLIENT SHOULD TAKE ALL REASONABLE STEPS TO PREVENT, DETECT, AND CONTAIN FIRES, AND
XYLOPLAN SHALL HAVE NO OBLIGATION OR LIABILITY ARISING FROM ANY FAILURE BY ANY PERSON OR
ENTITY TO DO SO. XYLOPLAN SHALL NOT BE RESPONSIBLE FOR, AND CLIENT HEREBY AGREES TO, AND
HEREBY DOES, ON ITS OWN BEHALF AND ON BEHALF OF ANY OF ITS CUSTOMERS AND/OR OTHER THIRD
PARTIES ACCESSING OR RELYING ON THE SERVICES OR DELIVERABLES, RELEASE XYLOPLAN AND ITS
SUCCESSORS, ASSIGNS AND LICENSORS FROM ANY CLAIMS, DEMANDS, LOSSES, DAMAGES, RIGHTS, AND
ACTIONS OF ANY KIND, INCLUDING PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR ECONOMIC LOSS
OR LIABILITY THAT EITHER DIRECTLY OR INDIRECTLY ARISE FROM CLIENT'S OR ANY OTHER THIRD PARTY'S
RELIANCE ON THE SERVICES OR DELIVERABLES OR ANY OUTPUTS OR OTHER RESULTS GENERATED
THEREBY, INCLUDING ANY FAILURE OF THE SERVICES OR DELIVERABLES TO ACCURATELY MODEL OR
PREDICT FIRE PATHS AND APPROPRIATE VEGETATION MANAGEMENTAND OTHER MITIGATION MEASURES. IF
CLIENT IS A CALIFORNIA RESIDENT, CLIENT HEREBY WAIVES CALIFORNIA CIVIL CODE SECTION 1542,
WHICH STATES, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING
PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
10. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BYLAW, BUT EXCEPT WITH RESPECT
TO ANY BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER OR ANY MISUSE OF THE
OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES
ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF
REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF DATA, WHETHER CAUSED BY
TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. IN NO
EVENT WILL XYLOPLAN'S AGGREGATE LIABILITY TO CLIENT OR ANY THIRD PARTY FOR ANY MATTER ARISING
UNDER OR WITH RESPECT TO THIS AGREEMENT EXCEED THE SUM OF ALL SERVICE FEES ACTUALLY PAID TO
XYLOPLAN BY CLIENT UNDER THIS AGREEMENT IN THE 6-MONTH PERIOD IMMEDIATELY PRECEDING THE
EVENT GIVING RISE TO THE CLAIM.
11. Non -solicitation. During the term hereof and for one year thereafter, Client shall not solicit or
attempt to solicit for hire any employee or contractor of XyloPlan or its affiliates without the prior written
consent of XyloPlan. Notwithstanding the foregoing, this provision shall not apply to solicitation through any
advertisement or general solicitation that is not specifically targeted at XyloPlan's employees or contractors.
12. Feedback. To the extent Client provides XyloPlan with any suggestions, feature requests,
evaluation results, feedback, or other input in relation to any aspect of the Services or Deliverables
(collectively, "Feedback"), Client hereby assigns and agrees to assign to XyloPlan all right, title and interest in
and to such Feedback, including any intellectual property rights therein, and agrees that XyloPlan will be free
to use such Feedback in any manner, including by implementing such Feedback in the Services, Deliverables,
and/or Licensor's other technologies, products and services, without compensation or other obligation to
Client.
13. Publicity. XyloPlan may use Client's name as part of a general list of customers and may refer to
Client as a customer and user of XyloPlan's services in its general advertising and marketing materials. All other
public statements shall require the mutual consent of both parties.
14. Miscellaneous. Neither party may assign this Agreement (in whole or in part) without the other
party's prior written consent; provided, that either party may assign this Agreement upon the written consent
of the other party, which consent shall not be unreasonably withheld, to an affiliate or in connection with an
acquisition, including in connection with a merger or assignment of all or substantially all of the business or
assets of such party related to this Agreement. Any attempted assignment in violation of the foregoing shall be
void and of no effect. Subject to the foregoing, this Agreement will be for the benefit of, and shall be binding on,
the parties' successors and assigns. XyloPlan's relationship with Client is that of an independent contractor,
and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint
venture or employment relationship between Client and any of XyloPlan's employees or agents. Except where
otherwise expressly authorized in writing by Client, XyloPlan is not authorized to make any representation,
contract or commitment on behalf of Client. This Agreement will be governed in all respects by the laws of the
United States of America and by the laws of the State of California, without giving effect to any conflicts of laws
principles that require the application of the law of a different jurisdiction, and any legal action or proceeding
arising under this Agreement will be brought exclusively in the federal or state courts located in Alameda
County, California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the
legality, validity and enforceability of the remaining provisions of this Agreement will not be affected or impaired
thereby. This Agreement constitutes the entire agreement between the parties relating to this subject matter
and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. This
Agreement may only be changed or amended by mutual agreement of authorized representatives of the parties
in writing. The Agreement may be executed in one or more counterparts, each of which will be deemed an
original and all of which will be taken together and deemed to be one instrument. Counterparts may be
delivered via facsimile, electronic mail or other transmission method and any counterpart so delivered will be
deemed to have been duly and validly delivered and be valid and effective for all purposes. In the event that
either party is prevented from performing or is unable to perform any of its obligations under this Agreement
(other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout,
epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause
beyond the reasonable control of the party invoking this Section, and if such party shall have used its
commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other
party, and the time for the performance shall be extended for the period of delay or inability to perform due to
such occurrences.
[SIGNATURE PAGEIS ON THE PROFESSIONAL SERVICES AGREEMENT]
EXHIBIT A
SCOPE OF SERVICES
Xylo Risk, Inc. Page A-1
EXHIBIT A
SCOPE OF SERVICES
Services
Conduct an assessment of the wildfire riskforthe Newport Beach, using speed -based Fire Pathways to identify
areas of the community at risk for catastrophic fire. Fire weather, topography, and vegetative fuel load will be
considered to derive maps of areas likely to undergo rapid fire spread during a fast-moving, wind -driven fire
event.
Identify areas where Fire Pathways intersect values at risk that should be prioritized for home hardening and
defensible space projects.
Identifyareas nearvalues at risk for treatment suitability, identifyingthe areasthat are accessible for treatment
and would most effectively interrupt Fire Pathways.
Deliverables
1. A comprehensive presentation detailing the wildfire risk evaluation process, findings, and mitigation
recommendations.
2. Maps, graphics, and visualizations highlighting Fire Pathways, areas of relative risk in the built environment,
and areas suitable for vegetation treatment.
3. GIS datasets in standard formats indicating mitigation opportunities that can be incorporated in other
phases of project planning.
EXHIBIT B
SCHEDULE OF BILLING RATES
Xylo Risk, Inc. Page B-1
EXHIBIT B
SCHEDULE OF BILLING RATES
Service Fees
Upon execution of this Agreement, the Client shall remit full payment of $25,000.00 to XyloPlan.
Payment is due immediately upon signing and is a condition precedent to the commencement of any services
under this Agreement. Failure to make payment in full may result in a delay or termination of services at the
sole discretion of XyloPlan. Payments shall be made via wire transfer, check, ACH, or credit card to the account
details provided by XyloPlan.
Expenses
None
Start Date
This Master Services Agreement and all associated services shall commence as of the Effective Date of this
Agreement.
Term
The term of this Agreement is set forth in the PSA.
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than two million dollars ($2,000,000) per
occurrence, four million dollars ($4,000,000) 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.
Xylo Risk, 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
two million dollars ($2,000,000) per claim and four million dollars
($4,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar
days' notice of cancellation (except for nonpayment for which ten (10)
calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
Xylo Risk, Inc. Page C-2
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. 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. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Consultant shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Consultant shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage, subcontractors
shall provide coverage with a format at least as broad as CG 20 38 04 13.
D. 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.
E. 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.
F. 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.
Xylo Risk, Inc. Page C-3
G. 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.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, 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.
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.
Xylo Risk, Inc. Page C-4
Account Information
Account Number:
j Risk Type:
Oa Not Call
Address Information
Mailing Address
jInsured.
i
Address f
Address 2:
City.
State:
Zip:
Country:
Contract Information
FV00001340
Professional Services Agreement
Address Updated.
Xylo R4sk, Inc
065 Marina Bay Parkway, Suite 150
FticFRorroerd
CA
Physical Address