HomeMy WebLinkAboutC-7317-1 - Employer Pull Notice Service Agreementr
r-- Employer Pull Notice Service Agreement
THIS EMPLOYER PULL NOTICE SERVICE AGREEMENT ("Agreement") is made and entered Into this 12° day of
fcbv w7)2018, by and between A -Check America, Inc. — doing business as A -Check Global — a California corporation
located at 1501 Research Park Drive, Riverside, CA 92507, (hereinafter referred to as "A -Check") and City of Newport
Beach located at 100 Civic Center Drive, Newport Beach, CA 92663 (hereinafter referred to as "City").
RECITALS
City desires to retain A -Check to act on City's behalf as City's Employer Pull Notice ("EPN") Agent as specified in the
California Vehicle Code ("CVC") Section 1808.1.
NOW THEREFORE, in consideration of A -Check's and City's mutual covenants, conditions, and promises contained
herein, the parties agree as follows;
1.0 SCOPE OF SERVICES
City hereby appoints and authorizes A -Check to be its Approved EPN Agent to act on City's behalf to perform specific
tasks associated with the EPN Program as specified in CVC Section 1808.1. A -Check shall be responsible a) for
adding and deleting City's authorized drivers, at Citys direction, b) for receiving, Interpreting, and transmitting the EPN
driver license record(s) in their entirety to City within three (3) days of receipt, and c) to receive billing notices and
submit payment on City's behalf.
2.0 TIME OF PERFORMANCE
This is an exclusive Agreement between A -Check America and City, which shall commence following execution of this
Agreement by all parties and will continue for one (1) year from the date of this Agreement. If City wishes to terminate
Agreement at the end of the year, or at the end of any renewal one-year term ("Renewal Term"), it must provide written
notice no later than thirty (30) days prior to the expiration of this Agreement or any Renewal Term. This agreement
shall not automatically renew beyond five (5) years after it commences.
3.0 COMPENSATION AND METHOD OF PAYMENT
Due to the terms of an agreement with the California State Association of Counties -Excess Insurance Authority
("CSAC-EIA"), City Is not obligated to compensate A -Check for EPN services under this agreement.
4.0 CITY'S ACKNOWLEDGEMENTS AND OBLIGATIONS
(a) City hereby acknowledges that utilizing A -Check as City's EPN Agent does not absolve City of any
responsibility for compliance with the provisions of the CVC. City further acknowledges that DMV records contain
restricted information and that failure to maintain confidentiality Is both civilly and criminally punishable pursuant to
CVC Sections 1808.45 and 1808.46. City shall Indemnify, defend, and hold harmless A -Check, its parent, subsidiary
and related entitles, and agents and employees from and against all liabilities, losses, claims, sults, judgments,
expenses, fines, interest or penalties, including, without limitation, reasonable attorneys' fees and costs, arising from
or related to City's breach of this Agreement the CVC or any other federal, state, or local law, and/or City's grossly
negligent acts or omissions or willful misconduct.
(b) City understands that record Information will be exclusively forwarded to A -Check, and that City cannot
request that record information be sent to City until A -Check's EPN Agent authorization has been rescinded.
(c) City agrees to notify DMV, in writing, at least two (2) weeks prior to terminating A -Check's services as
City's EPN Agent. Upon receipt of notification, all record information will revert back to City's address of record,
(d) City agrees to retain a completed copy of Attachment A, the DMV Employer Pull Notice Program
Agent Authorization (INF 2110), at City's place of business, and make same available upon request to DMV Audit
staff and the California Highway Patrol.
(e) City acknowledges that A -Check's responsibility is limited to accurately and timely transmitting DMV
record information from DMV to City. City shall indemnify, defend, and hold harmless A -Check, its parent subsidiary
and related entities, and agents and employees from and against all liabilities, losses, claims, suits, judgments,
expenses, fines, Interest or penalties, including, without limitation, reasonable attorneys' fees and costs, arising from
A -Check -City of Newport Beach EPN Agreement
Legal — CT 01.16.18 Page 3 A -Check Confidential Information
or relating to DMV record Information that is accurately and timely transmitted to City, including City's use of any DMV
record information for an improper purpose.
(f) City acknowledges the necessity of protecting the privacy of employees, and agrees to the following
security measures:
(1) City agrees to protect Its Consumer Reporting Agency(CRA) log -in ID and password(s) so that
only key personnel know this sensitive Information. City acknowledges that unauthorized persons should never have
knowledge of City's log -in ID and password(s), and City agrees not to post this Information in any manner within City's
facility.
(2) City agrees that systems access software, whether developed by City's organization or purchased
from a third party vendor, must have City's CRA log -In ID and password(s) "hidden" or embedded and known only by
authorized supervisory personnel.
(3) City agrees not to discuss City's CRA log -in ID and password(s) by telephone with any unknown
caller, even if the caller claims to be an employee of A -Check or a Consumer Reporting Agency.
(4) City agrees to a) place all computers or terminal devices used to obtain DMV record Information
in a secure location within City's facility, b) to secure these devices so unauthorized persons cannot easily access
them, c) to log off the system when not in use, d) after normal business hours, to log off the system and properly secure
and power down all devices or systems used to obtain DMV record information, e) to secure hard copies and electronic
files of DMV record information within City's facility so that unauthorized persons cannot easlly access them, f) to shred
or destroy all hard copy DMV record information when no longer required by the City's record retention policy and
procedures, g) to erase or scramble electronic files containing DMV record information when no longer required by the
City's record retention policy and procedures and when allowed by regulation or by law.
(5) City agrees to assign each user of City's system access software a unique log -in ID and password,
to make all employees aware that each log -In ID and password is unique to each user of the system and not
transferable, that log -in IDs and passwords are not to be shared. City acknowledges that individuals who share log -In
IDs or passwords may lose access privileges to A -Check's system and may expose City and A -Check to liability.
5.0 A -CHECK'S ACKNOWLEDGEMENTS AND OBLIGATIONS
(a) A -Check shall be responsible for identifying and taking all steps necessary to comply with the CVC and
all applicable state and federal laws.
(b) Should the DMV cancel, revoke, or terminate A -Check's authority to obtain DMV records, this contract
shall immediately be terminated, and A -Check shall return all DMV records back to City's address of record within
forty-eight (48) hours.
(c) A -Check will submit Attachment A, the Employer Pull Notice Program Agent Authorization (INF
2110), attached hereto and Incorporated herein, to DMV, and give a copy to City.
(d) To the fullest extent permitted by law, A -Check shall Indemnify, defend and hold harmless City, its City
Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or
otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated
by this (collectively, the "City 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 reasonable attorneys' fees,
disbursements and court costs) (individually, a Claim; collectively, "Claims"), and to the extent caused by or arises out
of any breach of the Agreement, or the gross negligence or willful misconduct of A -Check in the performance of this
Agreement.
(e) To the fullest extent permitted by law, City Indemnified Parties shall indemnify, defend and hold harmless
A -Check, Its boards and commissions, officers, agents, volunteers, employees and any person or entity from and
against any and all Claims the extent caused by or arises out of any (i) breach of the Agreement by City Indemnified
Parties, (b) the gross negligence or willful misconduct of City Indemnified Parties; or (c) violation of any applicable law
by City Indemnified Parties, including but not limited to Federal Credit Reporting Act, U.S.C. § 1681 at seq. ("FCRA")
or the CVC.
A-Check-Clty of Newport Beach EPN Agreement
Legal — CT 01.18.18 Page 4 A -Check Confidentlal Informatlon
(f) Notwithstanding the foregoing, nothing herein shall be construed to require A -Check to indemnify the
City Indemnified Parties from any Claim arising from the negligence, active negligence or willful misconduct of the City
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.
6.0 TERMINATION
(a) Termination for Cause: Should A -Check be in default of the terms of this Agreement and fail to remedy
the default within ten (10) business days of receipt of City's notice of default, City may in Its discretion terminate this
Agreement or such portion thereof as City determines is most directly affected by the default. The term "default" for
purposes of this provision includes, but Is not limited to, the performance of work In violation of the terms of this
Agreement; abandonment, assignment or subcontracting of this Agreement without written approval of City; bankruptcy
or appointment of a receiver for A -Check's property; failure of A -Check to perform the services or other required acts
within the time specified for this Agreement or any extension thereof; refusal or failure to provide proper workmanship;
failure to take effective steps to end a prolonged labor dispute; and the performance of this Agreement in bad faith.
(b) Termination for Force Maleure: The performance of work under this Agreement may be terminated by
either Party, for unforeseen causes beyond the control and without the fault or negligence of A -Check, Including acts
of God, acts of the public enemy, governmental acts, fires and epidemics if such causes irrecoverably disrupt or render
Impossible A -Check's performance hereunder. An "Act of God" shall include, but not be limited to earthquake, flood,
cyclone, or other phenomenon of nature.
7.0 NO GUARANTEES OR WARRANTIES
A -Check will use its best efforts to fulfill its obligations under this Agreement. However, A -Check does not guarantee
or warrant and hereby disclaims any guaranty or warranty that the information provided to City is correct, complete,
current, merchantable or fit for a particular purpose. Notwithstanding, A -Check warrants that it will accurately and timely
transmit DMV record information from DMV to City.
6.0 LIMITATION OF LIABILITY
Neither party shall be liable to the other party for punitive, exemplary or consequential damages.
9.0 OWNERSHIP OF WORK PRODUCTS
All raw data assembled by A -Check or obtained from others by A -Check in connection with the services under this
Agreement shall be the sole property of A -Check. All reports and any other documents, materials and products
prepared or assembled by A -Check or obtained from others by A -Check in connection with the services under this
Agreement shall be the sole property of A -Check. A -Check shall be responsible for the preservation of any and all
such raw data, documents, materials and products prior to transmittal to (City). Upon transmittal to City, A -Check
acknowledges that all documents and other items in City's possession maybe subject to disclosure under the California
Public Records Act ("CPRA"), lawful subpoena, or other lawful manner. Prior to City's disclosure pursuant to the CPRA,
lawful subpoena, or other lawful request, City may notify A -Check of any such request for disclosure. Upon notice
from City, A -Check will review and, as necessary, may request that City withhold or redact specific records of A -Check
prior to any disclosure by City or take the appropriate legal recourse to prohibit any such disclosure.
10.0 NOTICES
Except for Invoices submitted by A -Check pursuant to Section 3.0, all notices or other communications to either party
by the other shall be deemed given when made In writing and delivered or mailed to such party at their respective
addresses as follows:
To: City of Newport Beach
Address: 100 Civic Center Drive
Newport Beach, CA 92663
Attn: Human Resources Director
To: A -Check America, Inc.
Address: 1501 Research Park Drive
Riverside, CA 92507
Attn: Michael Hoyal, President
11.0 CHOICE OF LAW AND CONSENT TO JURISDICTION
(a) All questions pertaining to the validity and interpretation of this Agreement shall be determined in
accordance with the laws of California applicable to agreements made and to be performed within the State, without
regard to California choice of law rules.
A -Check -City of Newport Beach EPN Agreement
Legal — CT 01.18.18 Page 5
9 A -Check Confdenflal Information
(b) The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall
be tried and litigated exclusively in the State or Federal courts located in the County of Orange, California. The
aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature, thereby
precluding the possibility of litigation between the parties with respect to or arising out of this Agreement in any
jurisdiction other than that specified.
12.0 ENTIRE AGREEMENT
This Agreement is the entire agreement of the parties. Each party represents that in entering into this Agreement, It
has not relied on any previous representations, inducements, or understandings of any kind or nature.
13.0 SEVERABILITY
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provision shall nevertheless continue in full force without being impaired or invalidated in any way.
14.0 BENEFIT OF AGREEMENT
This Agreement shall bind and benefit the parties hereto and their heirs, successors and permitted assigns.
15.0 COMPLIANCE WITH ALL LAWS.
Each party 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. To
the extent allowable under applicable law, in addition, all services prepared by A -Check 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.
16.0 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.
17.0 CONFLICTS OR INCONSISTENCIES.
In the event there are any conflicts or Inconsistencies between this Agreement and any other attachments attached
hereto, the terms of this Agreement shall govern.
18.0 Equal Opportunity Employment.
A -Check 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.
19.0 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above.
FOR CITY
Authorized Repres e t e's Signature
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Print Name
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APPROVED AS TO FORM:
CITY ATT Y'S OFFICE
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A -Check -City of Newport Beach EPN Agreement
Legal — CT 01.18.18
F- HECK
AULhorlzed Representative's Signature
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ATTEST:
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A -Check Confidential Information
System User Access Security Requirement Agreement
To be completed by each Individual system user
We must work together to protect the privacy of all employees. The following requirements are designed to reduce
unauthorized access of California DMV Employer Pull Notice (EPN) Program driver record reports and other private
Information. By signing this document, you agree to follow the measures below.
1. You will protect your EPN Program individual and/or Agency log -In ID and password (s) so that only you
know this sensitive information. Unauthorized persons should never have knowledge of your log -In ID and
password(s). Do not post this Information in any manner within your facility.
2. Systems access software, whether developed by your organization or purchased from a third party vendor,
must have your EPN Program Individual and/or Agency log -in ID and password(s) "hidden" or embedded and be
known only by authorized supervisory personnel.
3. Do not discuss your EPN Program Individual and/or Agency log -in ID and password (s) by telephone with
any unknown caller, even if the caller claims to be an employee of a Consumer Reporting Agency.
4. Restrict the ability to obtain DMV driver record reports with your login ID and password to yourself. \
5. Place all terminal devices used to obtain DMV driver reports and/or other information in a secure location
within your facility. Secure these devices so that unauthorized persons cannot easily access them. Log off the
system when not in use.
e. After normal business hours, log off the system and properly secure and power down all devices or systems
used to obtain consumer reports and/or credit information.
7. Secure hard copies and electronic files of consumer reports within your facility so unauthorized persons
cannot easily access them.
8. Disposal of printed reports: Shred or destroy all hard copy consumer reports when no longer needed.
9. Erase or scramble electronic files containing driving record Information when no longer needed and when
applicable regulation(s) permit destruction.
10. You can access DMV EPN or driver record reports or information only for the permissible purposes listed
In CVC Section 1801.1, and California Department of Motor Vehicles policies and rules. You may not access or
process reports from your driving record information or the driver's report of any family member or friend if you do
not -have a legitimate business need.
11. Each log -in ID and password is unique to each user of the system and not transferable. Log -in IDs and
passwords are not to be shared. Individuals who share log -in IDs / passwords may lose access privileges to the
system, and expose your organization and ours to potential liability.
Record Retention: A Hard copy of a driver's most recent driving report should be retained for a minimum of 3 years.
Previous reports should be securely discarded when a new report is received. Driver's must be immediately
removed (deleted) from the EPN Program upon termination, or when the employee no longer meets the
requirements for enrollment.
I, the undersigned, understand that any violation of this agreement may cause me to be subject to civil
and/or criminal prosecution under CPC 118, CVC 1808.45, or Section 621 (a)(2)(A) of the FCRA, punishable
by both fine and imprisonment.
Print Name Title
Signature Date Em
A -Check -City of Newport Beach EPN Agreement
Legal — CT 01.16.18 Page 7 A -Check Confidential Information
Sample Termination Letter
<Date>
<EPN Agent's Name>
Attn: <Agent Contact Name>
<Address>
<City>, <State> <Zip>
<Agent/Contact>:
This letter is to notify you that we have made the decision to terminate our current EPN agency Agreement between
<City> and <Agent>. This notification Is effective thirty (30) days from the date of this letter.
Sincerely,
<Name>
<Company>
<Address>
<City>, <State><Zip>
A -Check -City of Newport Beach EPN Agreement
Legal — CT 01.18.18 Page 8
9 A -Check Confidential Information
Employer Pull Notice (EPN) Program Implementation
Contained within this packet are the necessary forms and Information for designating A -Check Global as your
EPN Agent. Please follow the below instructions carefully and complete the forms as required. Any errors or
omissions may delay the set-up of your account.
If you should have any questions while completing these forms, please contact A -Check Global at (877) 345-2021
option 8, epnt7p acheckolobal com
Step One
All information provided on EPN forms must match the filing information with the DMV. It Is recommended you
contact the DMV to ensure the Information is accurate (916) 657-6346. (You may also verify this information from
a current pull notice, current billing statement, or your contract agreement with the State.) . Any errors or
omissions may delay the set-up of your account as the paperwork must be original so it will have to be resent.
Step Two
Complete Form INF 2110
Instructions: Complete section 1 with current filing information. Sign the bottom of the form. A -Check Global will
complete section 2.
Step Three
Complete A -Check Service Agreement
Step Four
Complete a User Agreement for each user who will need access
Step Five
If you do not currently have an EPN agent, skip step 5. Complete an "EPN Termination Letter" (Sample letter
attached). Please make sure this letter is dated, signed and contains the information that is shown on the sample.
Print the letter on company letterhead and mail to your current agent. This may also be emailed to ensure receipt.
Step Six
Make a copy for your records. Mall 2 copies of all original forms to A -Check Global. The DMV is not accepting
emails or copies of any kind so we are required to submit all originals to them. When mailing paperwork to A -
Check we recommend sending it via FedEx or Certified mall. Any method that will allow tracking is preferred but
not required
Att: EPN Department A -Check Global
1501 Research Park Drive Riverside, CA 92507
Document Checklist:
❑ INF2110 — 2 Original Copies
❑ A -Check Global Service Agreement - 1 copy (original not required)
❑ A -Check Global User Agreement 1 copy per user (original not required)
13 EPN Termination Letter— 1 Original copy
What to Expect
✓ Once your paperwork is received by A -Check, please allow 24-48 hours for review and the paperwork will
be submitted to the DMV.
✓ Once received by the DMV, the EPN processing unit will take approximately 4-6 weeks to assign A -Check
as your agent. Any inaccurate information will cause the forms to be rejected and will cause delays to your setup.
✓ A -Check Global will monitor your setup and update you regularly on the progress of your account.
✓ When your account has been approved, A -Check will receive an electronic list of drivers from the DMV.
This process will take 24-72 hours for the abstracts to be available.
✓ A -Check will contact you to schedule a date and time for online training that is convenient for you.
✓ Note: Please Do Not Mail any forms to the Department of Motor Vehicles directly, it could delay your set
up and the average setup time Is 4-6 weeks.
If you should have any questions while completing these forms, please contact A -Check Global at (877) 345-2021
option 8, eon anacheckclobal com