HomeMy WebLinkAboutC-4742 - PSA for City of Newport Beach Public Outreach-Online Moduleqvi ,
n PROFESSIONAL SERVICES AGREEMENT WITH
SAGE STEPS, LLC FOR
CITY OF NEWPORT BEACH PUBLIC OUTREACH - ONLINE MODULE
THIS PROFESSIONAL SERVICES AGREEMENT is made and entered into as of this
day of e _o _t: 2010. by and between the CITY OF NEWPORT BEACH,
a Municipal Corporation ( "City ") and Sage Steps, LLC a Colorado Limited Liability
Corporation ( "Consultant"), whose aditress is 3773 Cherry Creek North Drive, Colorado,
64209 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 planning to Inform residential water customers of a unique way to measure
their environmental footprint and their consumption of water vs. their neighbors
while providing useful links to Federal, State and County organizations on water
conservation and local rebate information.
C. City desires to engage Consultant to deliver the services stated in Exhibit R
("Services" or "Project), which is incorporated by reference into this agreement.
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 Richard
Glassman.
F. City has sohcitad and received a propose( from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render the Services under the teens and conditions set forth in
Ws Agreement.
NOW, THEREFORE. it is mutually agreed by anti between the undersigned parties as
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folkawus.
E 4. TERM
The terra of this Agreernaant shall commerce on the above written date, and shall
terminate one year from the effective date stated above unless ternw ated earlier or
extended as set forth herein.
Z. SERVICES TO BE PeRFQRMED
Ce nwltaintt shall diligently perform all the Services described to the Scope of
Services attached hereto, as Exhibit A. Consultant shell dlsptay a City approved
cisctaimer on its wabsite warming users that they are eriiting the City's website and
entering Consultants websit 3.
3. TIME OF PERFORMANCE n
Time is of the essence in the performance of services under this Agreement and
Consultant shall perform the services m accordance with the schedule included in
Exhibit A. The failure by Consultant to adhere to the Services schedule may result
in termination of this Agreement by City
Notwithstanding the foregoing, Consultant shall riot be responsible for delays due to
causes beyond Consultants reasonable control. However, in the case of any such
delay in the Services to be provided for the Project. each party hereby agrees to
provide notice to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for performance in
writing to the Project Administrator not later than ten (10) calendar days after
the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time
extensions for unforeseeable delays that are beyond Consultant's control.
3.2 For all time periods not specifically set forth herein, Consultant shall respond
in the most expedient and appropriate manner under the circumstances, by
either telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services on an annual basis. Consultant's
compensation for all work performed in accordance with this Agreement„ including
ail reimbursable items and subconsuftant fees, shall not exceed One Thousand
Dollars and no/100 ($1000.00) without prior written authorization from City. No
billing rate changes shall be made during the term of this Agreement without the
prior written approvat of City.
4.1 Consultant shall submit an annual invoke to City describing the wett to be
performed. Consu#arat's bills shall include a brief desodptiort of the services
to be performed. City shall pay Consultant no later than thirty (30) days after
approval of the invoice by City staff.
42 City shall reimburse Consultant only for thdse costs or expenses specifically
approved in this Agreement_
A. The actual tests of subconsuttants for performance of airy, of the
services that Consultant agrees to render pursuant to this AgrewnW, 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 ihcurr6d by C&Muttartt in the
Performance of this Agmernent
4.3 General. Upon signing this Agreement City shall be invoiced in accordance
with the provisions stated in Exhibit A. If the Agreement does not
commence on the first day of a given month then the fees associated with
that month will be invoiced on a pro -rata basis
4.4 Late Fees. If any undisputed amount is not paid within thirty (30) days after
it becomes due, City shall also pay Consultant any interest on that amount
for the period from its due date until it is paid ,) full. That interest shall be
calculated at a rate of twelve percent (12 %) per annum (or the maximum rate
permitted by applicable law, if lower), and shall be. payable on demand.
4.6 Suspension of Services. Without limiting Consultant's other rights and
remedies, if any undisputed amount is not paid within sixty (60) days of the
original invoice date Consultant may suspend Services until such fees and
associated late fees are received by Consultant.
S. 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 teim. Consultant has designated Richard Glassman 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 iron -key
personnel.
Consultant, at the sole discretion of City, shalt 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. ADONISTRATION
This Agreement will be administered by the PUBLIC WORKS DEPARTMENT,
SINE BURCKLE Water Conservation Coordinator or his/her designee shall be
the Project Administrator and shalt have the authority to act for CKy unties this
Agreement The Project Administrator or his/her authorized representative shall
ant City in all matters pertaining to the Services to be rendered Pursuant to
Oils Agreement.
7. CfF r$ RESPONSIMLIIVS.
in order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one (t) copy of all
existing relevant Infbrmation on site at City.. City will provide all such
materials in a timely manner so as not to cause delays in Consultants work
schedule.
City snall (a) be responsible for its compliance with this Agreement, and (b)
be solely responsible for data linked and displayed on Consultant's website
( "Site ") or to data that is placed on the Site, if any, (c) allow Consultant to link
to City's web -pages stated in Exhibit A.
C. City shall periodically review the validity of any government or other rebate
information displayed on its web -site.
D. City shall not (a) allow anyone other than a user to access the Services
stated in Exhibit A, (b) place defamatory, indecent, or obscene material on
the Site, (c) rent, sell, re -sell, or lease the services, (d) use the Services to
store or transmit malicious code (i.e., viruses, worms, time bombs, Trojan
horses, or other malicious code). Should Consultant become aware of a
violation of this sub- Section Consultant may take prompt action to remove
such data from the Site.
E. City shall within sixty (60) days after the execution of this Agreement place
Consultant's Site's name on its water invoices and place a "button° on its
web site's home page and /or other relevant pages that link to Consultant's
Site's home page.
City may notify Consultant in writing thirty (30) days before the end of any
term that City wishes to extend the Agreement for a subsequent term of one
(1) year. If no such written notice is received Consultant shall promptly
remove City's data from the Site upon expiration of the then current term.
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, qualification, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession.
0.$ Consultant shalt not be responsible for delay, nor shall Consultant be
Fesponsibfe for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or slits of God, or the failure of City to
furnish timely intonrration or to approve or disapprove Consuftertfs work
promptly, or delay or faulty performance by City, contractors, or
govemn- tental 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).
Notarithstanding 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
claim and liability regardless of whether any Insurance policies are applicable.
Consultant's indemnity obligation under this section shall be limited to the total
V amount of fees paid under this Agreement, or any amendment to this Agreement.
10. INIOM'6NDENT 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 Iltrifted 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 Consutant's employees or agents, to be the agents or empksyees of City.
Consultant shalt 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 shat mean only that Consultant shall follow the desims 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
Adminishator 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
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Consultant shall discuss and review all relevant 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
aufhorized 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. MURANfCE
Vrout limiting Consultant's indemnification of City, and prior to commencement of
,, Consultant shall obtain, provide and maintain at its own expense during the
term of this Agreement, a policy or policies of IlaWlity insurance of the type and
amounts described below and in a form satisfactory to City.
A. g_wLficates 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 tunes
during the term of this Agreement.
®. iraf re. A person authorized by the insurer to bind coverage on its behalf
shall sign certification of all required policies.
G, amble l . AN insurance policies shall be issued by an Insurance
66nVany currently authorized by the tnsu ance Commissioner to ttacnsact
business of insurance In the State of Caftmia, with an .assligned
p0#c:yhok%W Rating of A (or higher) and Finencial Size Category Glass till
ion 1arW) in accordance with the latest edition of Best's Key Rating Guide,
unloss othetwise approved by the City's Risk Manager.
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I. Workers' Combensiggo Cov ere Corrsuitartt shall ntainta&t
Workers' Compensation. Insurance and EmpkWs Liability lnsVrW=
�. for his or her employees in accordan with the laws of the Sfift bf
�. California In additn, Consultant snail require each subcoftmtor to
similarly maintaCm Workers' Compensation insurance and Employer's
Liability Insurance in accordance vWM the laws of the State of
California for all of the subconttaoWs employees, Any force of
cancellation or ruin - renewal of all ` Compensation policies
must be received by City at Mast y (3% calendar days .(10
catendar days written notice of nortwpayrrtant of premium) prior to such
R+: change. The insurer shaft agree to waive: all ri+ghta of subrogation
against City, tie officers, agents, employees and volunteers for losses
aresing from work performed by Consultant for Cdty.
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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.
E. ggd2mgments. 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 direotty
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 any
and not contributory with the insurance provided hereunder.
4; This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
fespect to the limits of liability of the insuring company.
hr. The insurer waives all rights of subrogation against City, its elected yr
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.
0. The insurance provided by this potrcy shall not be suspended, voided,
canceled, or reduced in coverage or in l mitt by eider party except
lifter thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) w0tten notice has been received by City.
Vol f of Cormitant shall give C%ty,pipmpt and. fimety notice
of ctalm made or suit instituted arising gut of or smutting fro n CorlsuWs
pelfor recce under ihis Agreement.
G. AdOffbiat Insurance. Consultant snail also procstre And maintain,. of its own'
cget and expense, any additional kinds of insurance, which in its awn
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judgment may oe necessary for its proper protection and prosecution of the
work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be provided
under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. City authorizes
Consultant to utilize Rackspace Hosting, Inc as a subcontractor. Any of the
following shall be construed as an assignment: The sale, assignment, transfer or
other disposition of any of the issued and outstanding capital stock of Consultant, or
of the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty percent
(50 %) or more of the voting power, or twenty -five percent (25 %) or more of the
assets of the corporation, partnership or joint - venture.
16. SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Consultant. Assignments of any or all rights, duties or obligations of the Consultant
under this Agreement will be permitted only with the express written consent of City.
Consultant shall not subcontract any portion of the work to be performed under this
Agreement without the prior written authorization of Cfty. City authorizes Consultant
to utilize Rackspace Hosting, Inc as a subcontractor.
17. OWNERS141P OF DOCUMENTS
Each and every report, draft, map, record. plan, document and other writing
produced exclusively for City and paid for solely by City (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 tight 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 liabitity arising out of changes
made to Conisugant's deliverables under this Agreement by City or persons otter
than Consultant is waived against Consultant and City assumes full responsibi'ifty
for such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes,
18. INTENTtOt4ALLY CLOTTED [NO GAOD WGfZK IS BEING PERFORMED]
18. CONFIDENTIALITY
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A. Except as required by law. neither party shall disclose to a third party any
Confidential Information (as defined below) of the other party. the receiving
party shall use the same degree of care as it uses to protect the confidentiality of
its own confidentia! information of like nature; but, no less than a reasonable
degree of care; to maintain in confidence the Confidential Information of the
disclosing party.
B. The foregoing obligations shall not preclude disclosure of any information
that (i) is required to be disclosed by law, subpoena, or other similar process, (ii)
is disclosed by Consultant in connection with the Services, or (iii) is disclosed in
connection with any dispute, claim, or other action between the parties.
"Confidential Information" means information related to the Services and the
business of the disclosing party, which (a) derives economic value, actual or
potential, from not being generally known to or readily ascertainable by other
persons who can obtain economic value from the disclosure or use of the
information, (b) is the subject of efforts by the disclosing party or owner of the
third party Confidential Information that is reasonable under the circumstances
to maintain the secrecy of the information, (c) is identified by either party as
"Confidential" and /or "Proprietary," or (d) which, under all of the circumstances,
should reasonably be treated as confidential and /or proprietary, including the
terms and the existence of this Agreement.
C. Confidential information shalt not include any information that (i) is at the time
of disclosure, or thereafter becomes, through a source other than the receiving
party, publicly known. (ii) is subsequently learned from a third party that does not
Impose an obligation of confidentfalffy on the receiving party, (iii) was known to
the receiving party at the time of disclosure, or (iv) is developed independently
by the receiving party.
D. The obligation of confidentiality shall continue for a period of three years from
the date of the last disclosure of Confidential Information. related to the Services.
20. PROPRIETARY RIGHTS
20.1 Subjeet to the limited rights expressly granted hereunder, Consultant reserves
all right, title, and interest in and to the Sarvaces Including; but, not limited to the
statistical data collected on the Site.
20.2 City shaft have a royalty-free, nqn- exclusive, non- transfembile license to access
the aggregated statistical date collected by the Consultant related to the City
during the Term of the ,agreement.
20.9 As between City and Consultant, City exclusively ovals all dghts, title, and
interest to City's data.
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20.4 Consultant shall have a royalty -free, worldwide, transferable, sub - licensable,
Irrevocable, perpetual license to use or to incorporate into the Services any
suggestions, enhancement requests, recommendations, or other feedback
provided to Consultant by City related to the Services.
20.5 This Agreement does not give either party ownership rights or interests in the
other party's trade names, trademarks, or service marks — whether or not
such marks are registered.
21. WARRANTIES
21.1 Consultant makes no claims, promises, representations, warranties, or
guarantees about the security, accuracy, currency, completeness, or
adequacy of the contents on the site.
21.2 G. Ws use of the site is at your own risk. No warranty of any kind, implied,
express or statutory, including; but not limited to the warranties of
merchantability, fitness for a particular purpose, or freedom from computer
viruses is made. All contents of the site are provided on an "as is," "with all
faults," and "as available" basis.
21.3 Consultant shall not be liable for any damages of any kind arising from the
use of the site or from any services included on or otherwise made available
through the site, including; but not limited to direct, indirect, special,
incidental, punitive, exemplary, and consequential damages whether such
damages are based on warranty, contract, tort, statute, or any other legal
theory and even if consultant has been advised, .or should have known, of
Me possiMfity of such damages.
21.4 The Ste may contain links to other completely independent web sites.
Consultant makes no representations or warranty as to the accuracy,
completeness, security, reliability, validity, or a of Information
contained on web sites to which the Sde may lints. Fersom who use the Site
to link to other web sites acknowledge they do so at their own risk.
21.9 Refetances made on the Site 'to any spy commsrciai products,
processes, or services or the use of any trade, &m, or corporate name is for
your Wonrtation and convenience, and does not consfitute endorsement or
reciommendation by Connsultant
22. INTEl.LM -WAL PROPERTY dNpEMNtTY
The Consulterrt shall defend and indemnify City, its gpnts, of oars, representatives
and employees against any and all liability, including costs, for infringement of any
United Slates' letters patent, trademark, or copyright k*iPgernent irtrriuding costs,
coniafned in Consultarnt's drawings and specifications provided under this
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Agreement. Consultant's indemnity obligation under this section shall be limited to
the total amount of fees paid under this Agreement, or any amendment to this
Agreement.
23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shalt not be deemed to
constitute a failure to pay according to the teems of this Agreement. Consultant
shalt 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.
24, 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 prices invotced 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 prepared exclusively for City and paid for solely by City related to the
Agreement for a period of three (3) years from the date of final payment to
Consultant under thb Agreement.
25, INTENTIONALLY OMITTED
2+5. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection wftb the Project.
27. CONFLICTS OF hVMRE.ST
The Consultant or 48 employees may be sulaject to the.provisians of the California
Political Reform Act 4M 1974 (the "Act" J, Which (1) requires sueh persons to disclose
any financial interest that may foreseeably be materially affected by the work
Performed under ails Agreement. and (2) Prohibit such pemnrtsftom making, or
participating in making, decWons that will foreseeabty finanda iy affect such
Interest,
If subject to ft Act', Consultant shall conform to all mcluitesnentS of the Acs:. Fa4ure
to do so constitulas a material breach and Is grounds for imirnedleft termination of
this Agreement by Gly. Consultant shall indemnify and hold Ito . City for any
and all rjaims for damages resulting from Consultant`s violation of this erection.
28. Notices
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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: Shane Burckle
Public UNorks Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone 949 -6+44 -3214
Fax: 949 -848 -5204
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consu6nt at:
Attention: Richard Glassman
Sage Steps, LLC
3773 Cherry Creek North Drive, Suite 575
Denver, CO 80204
Phone: (303) 228 -3701
Fax: (303) 339 -6480
With a copy to:
General Counsel
Sage Steps, LLC
3773 Cherry Creek North Drive, Suite 575
Denver, CO 80204
29, TERMINATION
In the event that "either party faits or refuses to perform any of ibe provisions of this
Agreement at the time and in the manner required, that "party shalt be deemed In
default in the perfotrnapce of this Agreement, if such default is not cured wifhin a
period of ten (11% calendar days, or if more than ten (10) callarWar days are
reasonably required to cure the default and the defaulting party faits to give
adequate assurance of due performance within two (10) calendar dAys after receipt
of written notice of detsult, specifying the Mature of such default and the steps
necessary to me such default, and thereafter diligently tam staps to cure the
default, the non - defaulting party may tetminate the Agreement forthwi. by giving to
the defaulting party written notice thereof.
Notwithsfandir�j. tfie above provisions, City shelf have the eight at its sod discretion
and without causes, of terminating this Agreement at any time by:gMV seven (7)
calendar days pri w written notice to Consultant: In lira event of twirhhatlon under
this 5ectlao a:pro -rani refund based upon the number of unused okays as a percent
of 385 days of service sfcalf be issued to City within thirty (30) days of the date of
termination, 04nsultant shall deliver to City all reports, Documents and other
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information developed exclusively for City and paid for solely by City in the
performance of this Agreement, whether in draft or final form.
30. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expanse 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 that may apply to
Consultant's services, 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.
31. 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, whedw of the same or a
different character.
32. INTEGRATED CONTRACT
This Agreement represents the tug 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 shaft be held to vary the provisions herein.
33. CONFLICTS OR INCO"STENCIES
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.
34. INTERPRETATM
The terms of this A9#99mant shall be constued in accordance with the meaning of
the language used and %!raft not be construed for or against either party by .reason
of the authorship of the Agrearnent or any other rule of construction which might
otherwise apply.
36. AMENDMENTS
Thls Agreement may be moQW or amended, only by a written doeurnent executed
by both Consuttant and City and approved as to form by the City Attorney.
3B. SEVERABILITY
If any term or portion of this Agreement is halt to be invalid, iile at, or otherwise
unenforc eabie by a mood of wrnpetent jurisdiction, the Tema+ning pro rialo is of this
Agreement Khali continue in.full foaco and'effeot:.
E^ t'�
37. 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.
38. 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.
38. NO THIRD PARTY BENEFICIARIES
This Agreement Is entered solely by and between, and may be enforced only by,
City and Consultant. This Agreement shall not be deemed to create any rights in or
obligations to any third parties.
44. PUBLICITY
Consultant may not use City's logo without the City Council's prior written
Permission. Consultant may display City's name In its client list.
[SIGNATURES ON NEXT PAGE)
14
IN WITNESS WHEREOF, the parties haw, caused this Agreement to be executed on the
day and year first written above,
APPR,P*E-Q AS I . P FORM.
OFF OF)THT 1 0 R N JEY�
By. A. me
David R. Hunt, p
City Attorney
ATTEST:
Q,
'Leila-ni Brown,
City Clerk
rks Director
�aAGE STEPS, LLC,,.
A Co1d-r_a_do+iP1ii�ted L"jability Corp.
Title: CEO
Pr'ntName:
a
Title:" General Counsel Lofficerl
Print Name:
Attachments: Exhibit A — Scope of Services and fees
A10.00377 -Sage Steps PSA
[END OF SIGNATURES]
15
sage steps'
Provider Agreement - Exhibit A
Product
Number
2050 - 851 -A -C
Service
Local Government (City/Town) Annual Subscription (Green Steps)
Description
Water: (1) Environmental footprint score (Sage Score); (2) Customer Provided
08/1512010
Links to Tips, Rebates, and News presented; (3) Content from the Federal, State, and
Local Govemment
County will be presented; (4) When available, content from electric, gas and water
N/A
utilities will be presented; (5) Multiple mondWyears of data stored; (6) Customized
Welcome/Home Page; (7) Aggregated semi - annual statistics on Water Sage Score
(Citytrown) Annual
for Residential and Commercial; (8) Participation in Sage Steps' Electronic Newsletter
on specific news articles on sustainabilily, conservation & recycling.
27p Codes)
92657, 92660 - 92663
Subscrbtion Plan
Start Data
End Data
Subscription Plan
List Price
Discount
Net Price
08/1512010
061412011
Local Govemment
$1,000.00
N/A
$1,000.00
(Citytrown) Annual
Subscription (Green
Steps) Water —
Residential and
Commercial
Neese see nex-f page
Confidential to'CNent and Company — Exhibit A (rev 200101206)
Initial Content (Content can be updated and changed throughout the year).
Description
DescriptionlURL
Zip
Codes
Welcome/
1) Logo and content to be provided by customer.
92657
Home Page
92660
92661
92662
92663
T ps
2) Synthetic Turf - City of Newport Beach
92657
htt : ltwww. newnortheachco .govRndex.asox ?oaae =435
92660
3) Outdoor Water Conservation Ideas - My of Newport Beach
92661
httol/ www. newportbeachca .govrindex.asnx2Dage =444
92662
4) Indoor Water Conservation Suggestions - City of Newport Beach
92663
htto:! /www.newoodbeacbca.aov tindex.asox ?Dane =445
5) Clean Water Newport
htto l lwww .newpoMbeachco.navtndex.aswc ?Dane =228
6) Residential Storm water Pollution Prevention - City of Newport
Beach
http;N". new vpottbeadtce.govtndex.asox?oage =430
7) Hazardous Waste & Oil Recycling - City of Newport Beach
http-1 /wwva r�wpotthead�a govindax .sspxZoape= 433#cgtledtegcs
8) Water Smart Newport
h� ihwnv .newpaifhea�.ggvlmdex.g7rraae =229
Contintii on neM page...
Confidential to Citent and Competty 2
Description
DescriptionlURL
Zip
Codas
Rebates
None at this time.
News
1) 2010 WaterMiser Workshop 6 -8pm -City of Newport Beach
92657
htto:// www. newoQrtheachca .goviindox.asox ?caoe =914
92660
2) Reading your Water Meter -City of Newport Beach
92661
httoalwww .newoortbeachca.gov /index.asox ?pane= 4168
92662
3) Big Canyon Creek Restoration Project - City of Newport Beach
92663
htta :/Iwww.newooM*achca.aovfindex asox ?oaae =100
4) Does Newport Beach Recycle?
htto: /lwww.ngwoortbeachca. aov/ ModulestShowDocumenLaspx ?documa
nfid=26
5) 2010 Water Quality Report -City of Newport Beach
httoJNvww.newQgrWemhca.gov/.Mo4tjlW$bowDocument.asox?domme
n' =8
Confidential to Client and Company
(949) 644 -3131
{949) 644- 3139(Fax)
q
SIJr: �3FPS @A.t7uc.ti •:3 -,56!
CYTY OF NEWPORT BEACH
CERnnCATE OPEREM?MN FROM WORKERS' COMPENSAMN.INSLRANCR
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imn,1 shots nw ghploY -Y potaoo In mry moann':eoas to beCOme wb*l to tha W WkM'
crow flon laws of tte swo of califan te.
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Mimt Could** 's name antrticta7