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HomeMy WebLinkAboutC-6354 - PSA for Vertex Software Maintenance SupportT ?} PROFESSIONAL SERVICES AGREEMENT i WITH AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. FOR VERTEX SOFTWARE MAINTENANCE SUPPORT THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into as of this 1 st day of May, 2015 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC., a Nevada corporation ("Consultant'), whose address is 9177 Sky Park Court, San Diego, California 92123, 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 Vertex Software Maintenance and Application Hosting Services ("Project'). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2018, 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 and incorporated herein by reference ("Services" or "Work'). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Nine Thousand Dollars and 00/100 ($9,000.00), 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 AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page 2 not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Robert Sauer 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 Public Works Department. City's Public Works Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards' shall mean those standards of practice recognized by one (1) or more first- class firms performing similar work under similar circumstances. AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page 3 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.3 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims'), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page 4 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page 5 be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. ii��l►9�L�:b9:1 lad � �Zdd9 iTJ � � � �? 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. AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page 6 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page 7 borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: David A. Webb, Public Works Director Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Robert Sauer AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. 9177 Sky Park Court San Diego, CA 92123 AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page 8 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. 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. AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page 9 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 28.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 28.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 28.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT RN Y' OFFICE Date: 11 By: Aaron C. Harp GM ouj ims City Attorney ATTEST- Date: TTEST: �,1� Dater^ By: 0 Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: David A. Webb Public Works Director CONSULTANT: AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC., a Nevada corporation Date14 1GS AA By: t*0—z4) Peter J. bell Vice Presl4ont Date: By: f Ltu U Kendall SheUl rS� VP fcup"tf [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page 11 EXHIBIT A SCOPE OF SERVICES VERTEX SOFTWARE MAINTENANCE AND HOSTING SERVICES Consultant shall provide the following services for Vertex Software Maintenance and Hosting Services in accordance with the terms of this agreement and in conjunction with the Consultant's Software Maintenance Support Agreement and the Hosting Services Agreement (Attachment A and Attachment B of this Agreement, respectively). 1. Furnish the personnel, services, equipment, materials and other requirements necessary to provide software maintenance and application hosting services relative to the City's use of Vertex. a. Software Maintenance Consultant shall provide Vertex maintenance services for a three (3) year period. Software maintenance entitles the City to Vertex software product upgrades as they are commercially released. Product upgrades include software corrections and product functional enhancements which may include ease-of-use, functionality and/or technology advancements. The Software Maintenance Support Agreement shall also provide client access to the Help Desk. b. Application Hosting Services i. Consultant shall provide application hostiAg services to the City for a three (3) year period. Services shall support the City's use of Vertex on Consultant's computer hardware and software infrastructure. These services include the use of Consultant's computer hardware and software in a secured facility, internet connectivity, computer hardware maintenance and administration, remote monitoring, and data backup and restore services. ii. City shall retain its right of ownership of all data stored in the Microsoft® SQL Server database supporting its instance of the Vertex application. In the event that the City terminates or elects not to renew its contract for hosting services, and upon the City's written request, Consultant shall export the City's data into the current database file format used to store the data (currently SQL Server) and provide such data on CDs or DVDs. AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page A-1 Attachment A SOFTWARE MAINTENANCE SUPPORT AGREEMENT This Software Maintenance Support Agreement ("Agreement") is between Amec Foster Wheeler Environment and Infrastructure, Inc., a Nevada corporation, ("Amec Foster Wheeler' with offices at 1075 Big Shanty Road NW, Suite 100, Kennesaw, GA 30144 and the City of Newport Beach, a Califomia municipal corporation and the charter city with offices at 100 Civic Center Dr., Newport Beach, CA 92660 (hereafter "Client") and is effective the 1st day of May, 2015 ("Effective Date"). In consideration of the mutual promises and covenants set forth herein, the parties agree as follows: Background. Amec Foster Wheeler and Client agree that the terms and conditions of this Agreement cover software maintenance support services as set forth below to be provided by Amec Foster Wheeler to Client. Such services shall be provided by Amec Foster Wheeler only with respect to software for which Client has entered into a Software License Agreement (hereinafter referred to as "License Agreement") with Amec Foster Wheeler. Any Software Error Revisions or Software Updates shall be considered "Software" under the License Agreement and thus shall be subject to terms and conditions set forth under the License Agreement. 2. Definitions. A. "Support" means the technical support provided by Amec Foster Wheeler or its third party representative to Client, its agents, or employees (hereinafter collectively referred to as "Client") regarding the use and operation of applications software specifically developed by Amec Foster Wheeler, commonly referred to as Vertex®' and that is subject to a License Agreement (hereinafter referred to as the "Supported Software"), and code revisions to resolve Software Problems identified and made known to Amec Foster Wheeler. Support shall include (i) a direct response to an inquiry from a Support Contact concerning the technical operation of the Supported Software, (ii) a direct response to an inquiry from a Support Contact concerning Software Problems in the Supported Software, (iii) a diagnosis of Software Problems in the Supported Software, and (iv) reasonable commercial efforts to resolve reported and verifiable Software Problems in the Supported Software such that the Supported Software performs the functions described in the associated documentation. B. "Support Contact" means authorized individuals(s), specified on Exhibit 1 of this Agreement with whom Amec Foster Wheeler communicates when providing Support. The Support Contact must be functionally knowledgeable about how the Supported Software is intended to be used. C. "Software Problem" means a defect in the Supported Software code, developed by Amec Foster Wheeler, which (1) prohibits Client from entering, viewing, or printing data in a manner consistent with the design of the software and its associated documentation, or (2) results in a verifiable mathematical calculation error, or (3) results in the display of a program error message. D. "Software Error Revisions" mean revisions to programming code related to the Supported Software only, which are developed by Amec Foster Wheeler and specifically excludes any software revisions or enhancements of operating systems software, or other third party software products, not specifically developed by Amec Foster Wheeler. E. "Software Updates" mean revisions, enhancements, or new releases of software program files or user manuals designed to correct a known error or improve functionality of the Supported Software. Software and specifically excludes any software revisions or enhancements of operating systems software, or other third party software products, not specifically developed by Amec Foster Wheeler. Software Support Services. Under the terms and conditions of this Agreement, Amec Foster Wheeler shall provide to Client the following Support services: A. Telephone Assistance. The Support Contact, using an authorized telephone number to be provided by Amec Foster Wheeler, may contact a representative of Amec Foster Wheeler's Help Desk to ask questions or seek advice relating to technical problems with the use of the Supported Software as Rev.08/2011 SMSA2011 Std described in the associated documentation. Support calls are answered in the order in which they are received. If a technical support representative is not available to accept the call immediately, the call will be returned in as timely a manner as possible. Amec Foster Wheeler's technical support representative will use commercially reasonable efforts to assist the Support Contact in using the Supported Software, and in identifying and providing a workaround, if possible, for Software Problems found in the Supported Software. Telephone assistance shall be available Monday through Friday, from the hours of 8:00 a.m. to 5:00 p.m. Eastern Standard/Daylight Savings Time, as applicable, excluding holidays. Client may also communicate with a technical support representative by written correspondence via an electronic Help Desk Trouble Ticket Form. B. Software Error Revisions. Software Error Revisions will be made available to Client, from time to time, whenever such Software Error Revisions are produced and commercially released by Amec Foster Wheeler to its Software Maintenance Support customers. Amec Foster Wheeler makes no promise as to the scope, contents, or frequency of release of any Software Error Revisions. C. Software Updates. Software Updates will be made available to Client, from time to time, whenever such Software Updates are produced and commercially released by Amec Foster Wheeler to its Software Maintenance Support customers. Amec Foster Wheeler makes no promise as to the scope, contents, or frequency of release of any Software Updates. 4. Delivery. Amec Foster Wheeler will use commercially reasonable efforts to schedule delivery of Software Updates in accordance with those dates as provided to Client. Shipping and delivery dates are approximate only. It is agreed that Amec Foster Wheeler will not be liable for any loss or expense of any nature due to a failure to meet a specified delivery schedule. 5. Payment. Client agrees to pay Amec Foster Wheeler the charges for Support and other fees set forth on Exhibit 1 which is attached hereto. Such fees shall be due and payable within thirty (30) calendar days of the approval of the monthly invoice. 6. Limitations on Support Services. A. The following are not supported under this Agreement. 1. Client's improper installation or use of the Supported Software; 2. Misuse, abuse or negligent use, repair, alteration or improper storage or any use which does not conform to the specific or general instructions of Amec Foster Wheeler or to the provisions of the documentation for the Supported Software; 3. Any modification or attempted modification of the Supported Software by Client or any third ply; 4. Client's failure or refusal to maintain the Supported Software at the "minimum release lever, required by Amec Foster Wheeler. B. Amec Foster Wheeler reserves the right to charge for excessive telephone, shipping, handling, media or user manual expenses in connection with Support services provided hereunder. In all cases, Amec Foster Wheeler shall notify Client of these costs in advance. Availability of Support Services. A. Support shall be conducted at the offices of Amec Foster Wheeler, at its address as set forth on this Agreement (or such other address as Amec Foster Wheeler may designate by notice provided herein) or at a third party location as so designated by Amec Foster Wheeler. B. Support shall be conducted generally between the hours of 8:00 AM and 5:00 PM, Eastern Standard/Daylight Savings Time, as applicable, Monday through Friday, holidays excluded. C. Support shall be conducted on a first-come first -serve basis. - 2 - Rev.08/2011 SMSA201 Bid D. The Support Contact shall provide his or her name, and company name when requesting Support under the terms of this Agreement. Disclaimer of Warranties. THE SUPPORT AND OTHER SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED "AS IS", AND AMEC FOSTER WHEELER MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, CONCERNING THE SUPPORTED SOFTWARE, THE SUPPORT SERVICES, THE OPERATION OF THE SUPPORTED SOFTWARE, OR CLIENT'S ABILITY TO UNDERSTAND, COMPREHEND, OR APPLY THE INFORMATION THAT IS PRESENTED TO CLIENT BY AMEC FOSTER WHEELER, NOR DOES AMEC FOSTER WHEELER MAKE ANY WARRANTY THAT THE SUPPORTED SOFTWARE, SOFTWARE ERROR REVISIONS, SOFTWARE UPDATES OR SUPPORT ARE ERROR FREE, AND AMEC FOSTER WHEELER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. 9. Limitation of Liability. IN NO EVENT SHALL AMEC FOSTER WHEELER BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF OR DAMAGE TO REVENUES, PROFITS OR GOODWILL OR OTHER SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND OF EITHER CLIENT OR A THIRD PARTY, RESULTING FROM ITS PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS AGREEMENT OR ANY OF THE EXHIBITS HERETO, OR RESULTING FROM THE FURNISHING, PERFORMANCE, OR USE OR LOSS OF USE OF ANY SUPPORTED SOFTWARE OR SUPPORT SERVICES OR MATERIALS DELIVERED TO CLIENT HEREUNDER, INCLUDING WITHOUT LIMITATION ANY INTERRUPTION OF BUSINESS, WHETHER RESULTING FROM BREACH OF CONTRACT OR BREACH OF WARRANTY OR OTHERWISE, EVEN IF AMEC FOSTER WHEELER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 10. Term and Termination. A. The term of this Agreement shall be for one (1) year, beginning on the Effective Date, and shall automatically renew for two (2) successive one (1) year terms, 11. General. A. Nothing in this Agreement will in anyway be construed as creating a partnership, joint venture, agency, or employer-employee relationship between Client and Amec Foster Wheeler. Client is not authorized to, and will not, undertake or assume any obligation of any kind, express or implied, to conduct any business on behalf of Amec Foster Wheeler. B. If any provision, in whole or in part, of this Agreement is held illegal or invalid by any court or administrative agency of appropriate jurisdiction, such provision or appropriate portion thereof will be deemed severable and the illegality or invalidity of such provision or portion thereof will not affect any of the remaining portions of this Agreement. In such event, this Agreement will be considered as if the illegal or invalid provision or portion thereof had not been contained herein. C. The failure of either party to require the performance of any term, condition or portion of this Agreement or the waiver by either party of any breach of this Agreement will not prevent subsequent enforcement of such term, condition or provision, nor be deemed as a waiver of any subsequent breach. D. Any change in, addition to, or waiver of the terms, conditions, or provisions of this Agreement will be binding upon either of the parties only if approved in writing by its authorized representative. E. Neither party will be liable to the other in any manner for any loss or damage of any nature whatsoever incurred or suffered as a result of any failures or delays in its performance under this Agreement due to any cause or circumstance beyond its control, including, but not limited to, any failure or delays in performance caused by strikes, lockouts, labor disputes, fires, acts of God or the public enemy, riots, incendiaries, interference by civil or military authorities, compliance with the laws, regulations, orders or policies of any governmental authority, delays in transit, delivery or -3 - Rev.08/2011 SMSA201 IStd performance on the part of vendors, transportation companies or communication facilities, or failures of sources of raw materials. F. Client will have the right to assign or otherwise transfer its rights or obligations under this Agreement only with the prior written consent of Amec Foster Wheeler. In the event of any assignment (whether by consent of Amec Foster Wheeler or otherwise), all covenants, stipulations, and promises in this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 4- Rev.08/2011 SMSA2011Std Exhibit 1 Annual Fees The annual fees for the Support provided under the Maintenance Agreement are as follows: $1,180 per year based on a license limitation of 440,765 square feet of the building assets stored in Vertex and will be calculated based on 20% of the total license fee paid for the software. 5- Rev.08/2011 SMSA2011SId Attachment B SOFTWARE HOSTING SERVICES AGREEMENT This Software Hosting Services Agreement ("Agreement") is between Amec Foster Wheeler Environment and Infrastructure, Inc., a Nevada corporation, ("Amec Foster Wheeler") with offices at 1075 Big Shanty Road NW, Suite 100, Kennesaw, GA 30144 and the City of Newport Beach, a California municipal corporation and the charter city with offices at 100 Civic Center Dr., Newport Beach, CA 92660 (hereafter "Client") and is effective the 1st day of May, 2015 (`Effective Date"). 1. Background. Amec Foster Wheeler has granted certain rights to software and other intellectual property (the "Software") to Client pursuant to a separate License Agreement (the "License Agreement"), and Amec Foster Wheeler and Client have entered into a software maintenance support agreement that provides for certain support services as set forth in that agreement (the "Software Maintenance Support Agreement") concerning the Software. Pursuant to this Agreement, Amec Foster Wheeler and Client have agreed that Amec Foster Wheeler, on behalf of Client, will deploy, host and maintain access to the Software by means of a restricted web site in accordance with this Agreement. Capitalized terms in this Agreement have the same meaning as in the Software Maintenance Support Agreement. 2. License Granted and Limitations. Client's license for Software shall be as set forth in the License Agreement, except as expressly provided herein. In addition to the rights granted under the License Agreement, Amec Foster Wheeler hereby grants to Client a personal, non-exclusive, nontransferable, limited license to access the Software by means of a restricted web site that is hosted by Amec Foster Wheeler as set forth herein. Client has only the license rights expressly granted under this Agreement and the License Agreement and whatever rights are not expressly granted in this Agreement or the License Agreement are reserved by Amec Foster Wheeler. The Software may be used to manage data regarding the assets for the facilities and sites owned or managed by Client as set forth in the License Agreement and not to exceed the total of gross square feet of building area set forth in the License Agreement. 3. Included Services. Amec Foster Wheeler agrees to deploy, host and maintain the Software, and provide access to Client by means of a restricted web site, either itself or by means of AT&T's Internet Data Center in Lithia Springs, Georgia ("Site") or by subcontracting to such other entity as agreed upon by Client, which agreement by Client will not be unreasonably withheld. Access to the Software requires that users use Microsoft® Internet Explorer version 6.0 or later. Amec Foster Wheeler will provide administrator rights and access to the Software to a Named User within the Client ("Administrator"). The Administrator will manage the addition and deletion of User IDs and passwords on behalf of the Client. 3.1. Client Configuration. Amec Foster Wheeler will complete the initial configuration of the Software at the Site. Initial configuration includes establishing Client as a valid user account, and linking various support tables, asset catalogs, price catalogs, security tables and default analysis settings to the Client account. 3.2. Securi The Software and its associated database will be hosted on one of Amec Foster Wheeler's external domains. Strict controls are in place to ensure that vulnerabilities are minimized and monitored in this network area. Amec Foster Wheeler's Web servers utilize digital certificates for Internet information services ("IIS") from trusted public certificate providers to publish secure sockets layer -encrypted web transmissions. The hosting systems have been "hardened" against commonly known vulnerabilities as identified in Microsoft's security bulletins. Non-essential systems and services have been removed or disabled. 3.3. Hardware and Software. Amec Foster Wheeler will configure the Software and related database software on behalf of Client on one or more non -dedicated servers. At a minimum, servers will include redundant power supply, Quad/1.5GHz central processing units, 4 GB RAM, and RAID 0 (mirrored) operating system, RAID 5 hard drive storage, and tape backup. 1 - SHSA Stmdarad 2012, Rev 9/2012 3.3.1. Data Storage Capacity. Amec Foster Wheeler will provide Client 2GB of data storage capacity as part of its baseline annual hosting fee. This capacity should readily support Client's data storage requirements for the foreseeable future. If Client requires additional data storage capacity, Amec Foster Wheeler will increase Client's storage capacity in 1 GB increments for additional fees at the then current rate per year per GB of storage capacity. 3.3.2. Front End Connectivity. Front-end connectivity will be provided via a burstable, shared Internet access. Network access will be provided by a 1000 megabit per second Ethernet port to the Internet. 3.3.3. Operating System and Database Software. Amec Foster Wheeler will provide Client with licensed use of operating system and database software necessary to support the Software. The decision and timing of upgrades and/or migration to future releases of operating system and database software programs will be at Amec Foster Wheeler's sole discretion. Costs for the application of service packs, hot -fixes, and other operating system and database administration costs are included in the hosting service fee. 3.4. Network Support Services. The Network Support Services ("Services") include network monitoring, hardware backups and data archive administration on a daily basis. Response time to troubleshoot hardware issues typically will begin within one hour of Client's notification to the Amec Foster Wheeler Helpdesk. 3.4.1. Availability. Amec Foster Wheeler shall use commercially reasonable efforts to make the Software generally available on the web site on the hosting services as set forth herein for 24 hours a day, 7 days a week, except for (a) downtime due to scheduled or unscheduled maintenance or (b) downtime caused by circumstances beyond Amec Foster Wheeler's control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, computer or telecommunications failures or delays involving hardware or software not within Amec Foster Wheeler's control, and network intrusions or denial of service attacks. Although the Software will normally be available at all times, the core business hours for this Software are 8:OOam-7:OOpm (Eastern); Monday through Friday, excluding Amec Foster Wheeler holidays ("Core Business Hours"). Availability is defined as time when a User is able to successfully log into the Software's interface and manage data. Partial losses of functionality within the Software do not necessarily constitute total loss of availability. Partial loss of availability is defined as time when a User is able to log into the Software's interface and perform limited management of data. Total loss of availability is defined as time when a User is able to navigate to at least the Software's interface, but is unable to login or perform any management of data. Losses of availability will generally be caused by a Software level problem. Repair of availability problems will be the responsibility of Amec Foster Wheeler. In the case of loss of partial or total availability, Amec Foster Wheeler will be responsible for performing the diagnosis of the problem and notifying Client as to the nature of the problem as soon as it is identified. Once Amec Foster Wheeler has determined the cause of the problem and its resolution, Amec Foster Wheeler will then implement the repair. 3.4.2. Downtime. Downtime is defined as the total time that the Software is not available to Users for reasons not attributable to problems caused by Client's computer infrastructure or communications systems. Partial and total downtime will generally be caused by a system or network level problem. Repair of downtime causes will be the responsibility of Amec Foster Wheeler. Maintenance of the system by Amec Foster Wheeler is considered downtime. In the case of downtime, Amec Foster Wheeler will be responsible for diagnosing the problem. Amec Foster Wheeler will contact Client in a timely manner to make Client aware of the situation and progress in resolving the problem. Client will be responsible for notification of its Users regarding the nature of the problem as Client sees fit. Once Amec Foster Wheeler has diagnosed the problem and determined a - 2 - SHSA Standarad 2013, Rev 9/2013 solution, Amec Foster Wheeler will implement the solution. Amec Foster Wheeler will keep Client updated throughout the process. 3.4.3. Issue Response. Since Software downtime cannot be completely avoided due to unforeseen operating system, hardware, and communication failures, Amec Foster Wheeler will prioritize resources to bring the Software back on-line as quickly as possible. As a guideline, a catastrophic recovery should be completed and the Software back on- line the following business day. Minor failures of the system that caused total downtime will be attended to promptly by Amec Foster Wheeler. Amec Foster Wheeler will attempt to bring the Software back on-line during the same business day. 3.5. Maintenance. From time to time, Amec Foster Wheeler will perform maintenance on the operating system, database or application code supporting the Software. Some maintenance will be automated and some will be manual. Microsoft® security patches will be installed automatically as they are released and marked as critical by Microsoft®. The database server undergoes nightly database maintenance. During that nightly maintenance, a database integrity check and minor error repair is performed. More intensive maintenance such as the application of service packs, application changes and application updates will be scheduled in advance to minimize Client downtime. Scheduled maintenance during Core Business Hours is allowed, but must be pre -approved by a representative of the Client. Should maintenance be required during Core Business Hours, Amec Foster Wheeler will notify Client via e-mail of the need for maintenance as soon as the need is identified. No maintenance will be performed until such time that Client has responded to Amec Foster Wheeler that such maintenance is approved. If no approval is provided by Client, maintenance will be deferred until after Core Business Hours. Client will be responsible for notification of its Users in the event of an approved request for scheduled maintenance during Core Business Hours. Unscheduled maintenance is allowed outside of Core Business Hours without Client pre -approval. Amec Foster Wheeler will attempt to minimize the application interface downtime during unscheduled maintenance periods. Amec Foster Wheeler will choose quality maintenance methods that will help minimize downtime. 3.6. Software Backup. The Software application code and Client data will be backed up every business day and every weekend. Amec Foster Wheeler will handle the management of all data backups. Historical backup sets will be kept for a period of five (5) weeks. The full backup sets will be sent offsite on a weekly basis. The application server will be backed -up at the Site, as well as at one of Amec Foster Wheeler's office locations, according to the following schedule: 3.6.1. One (1) weekend night a week a full file system and system state backup will occur. 3.6.2. Five (5) business nights a week an incremental file system and system state backup will occur (this includes the directories that contain the application code and the registry). The back -end database server will be backed -up at the Site, as well as at one of Amec Foster Wheeler's office locations, according the following schedule: 3.6.3. Each business night a SQL maintenance plan performs an online backup of each of the SQL databases on the server. These backup files are created on the server's hard disk. 3.6.4. One (1) weekend night a week a full file system and system state backup will occur (this includes the SQL backup files). 3.6.5. Five (5) business nights a week an incremental file system and system state backup will occur (this includes the SQL backup files). - 3 - SHSA Standarad 2013, Rev 9/2013 To recover from a loss of data, Amec Foster Wheeler will rebuild the system(s) involved in the failure by following written protocols to set up the application Software exactly as it was before the failure. Amec Foster Wheeler will then recover the latest available SQL backup data files and test the application data's integrity through the application. 3.7. Disaster Recovery. In the event that the Site is rendered inoperable, Amec Foster Wheeler will take the following steps to restore the Software: 3.7.1. A copy of the Client's data that has been backed upon hardware at Amec Foster Wheeler's office will be transferred from the Amec Foster Wheeler's backup servers to DVDs. 3.7.2. The latest copy of the application and its installation files, together with the DVD's storing Client's backed up data files, will be delivered to a location designated by the Client for installation by the Client on Client servers. Amec Foster Wheeler will provide assistance to Client to support Client's installation of the application and data files. 3.7.3. The application will reside on the Client's servers until such time that the Site is restored to a condition equal to its condition prior to the event that rendered it inoperable, or an alternative data center site is identified by the Amec Foster Wheeler and made available for use by the Client. 3.7.4. Amec Foster Wheeler will provide the Client with specifications for the Client servers necessary to support the operation of the Software during the interim period required to restore the Site, or make available an alternative data center for use by the Client. 4. Client's Data. As between Amec Foster Wheeler and Client, Client shall own all Client data. Client hereby grants Amec Foster Wheeler an irrevocable, non -transferable, royalty free, worldwide license to all current and future Client data; provided, however, that Amec Foster Wheeler shall not have the right to share any of such Client data with third parties and Amec Foster Wheeler shall not collect or use such Client data except as necessary to perform its obligations under this Agreement or for any other purpose other than for its own internal purposes. Client shall have all responsibility for all content provided by Client, and Client agrees to defend, hold harmless and indemnify Amec Foster Wheeler and its parent, subsidiaries and affiliates, including their respective officers, directors and employees, from and against all claims, settlements, costs, expenses, liabilities and damages, including reasonable attorneys' fees, (collectively, "liabilities"), to the extent arising out Client's data, except to the extent that the liabilities are determined to have been caused by Amec Foster Wheeler. 5. Third Party Software and the Hosting Services. Client is strictly prohibited from installing any third parry software on the hosting services servers without the express written consent of Amec Foster Wheeler. 6. Payments. All amounts due hereunder shall be due and payable within thirty (30) days of City approval of the invoice. All amounts are due in U.S. Dollars. 7. Hosting Fees. During the first year from the Effective Date, the Client shall pay Amec Foster Wheeler, for the services provided and rights granted by this Agreement, a fee as set forth in a valid Amec Foster Wheeler proposal opt quote for Amec Foster Wheeler's hosting, operating and maintaining the web services. Amec Foster Wheeler may raise the annual fee for each succeeding year, provide that Amec Foster Wheeler notifies Client of such increase at least forty (45) days prior to the end of each one (1) year term. S. Warranty Disclaimer. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED "AS IS" AND Amec Foster Wheeler MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE, THE SERVICES, INCLUDING THE HOSTING SERVICES, THE OPERATION OF THE SOFTWARE, OR CLIENT'S ABILITY TO UNDERSTAND, COMPREHEND, OR APPLY THE INFORMATION THAT IS PRESENTED TO CLIENT BY Amec Foster Wheeler, NOR DOES Amec Foster Wheeler MAKE ANY WARRANTY THAT THE - 4 - SHSA Standarad 2013, Rev 9/2013 SOFTWARE, SOFTWARE ERROR REVISIONS, SOFTWARE ENHANCEMENTS OR SUPPORT ARE ERROR FREE, AND Amec Foster Wheeler SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. 9. Term and Termination. 9.1. The term of this Agreement shall be for one (1) year beginning on the Effective Date and shall automatically renew for two (2) successive one (1) year terms provided that either party may terminate this Agreement by providing written notice of its intent not to renew at least thirty (30) days prior to the end of each one (1) year term. 9.2. Either party may terminate this Agreement in the event of a default by the other patty to this Agreement; provided however, no such termination shall occur until the non -defaulting party shall have given written notice of the default to the defaulting party and such default shall not have been cured within five (5) days in the event of a monetary breach and thirty (30) days in the event of a non -monetary breach. 9.3. In the event this Agreement is terminated or not renewed, upon written request of Client, Amec Foster Wheeler will export Client's data into the then current database file format used to store Client's data and provide such data on media mutually agreeable to both parties. All out of pocket cost incurred in the exporting or providing such data will be borne by Client. 10. General. 10.1. Nothing in this Agreement will in anyway be construed as creating a partnership, joint venture, agency, or employer-employee relationship between Client and Amec Foster Wheeler. Client is not authorized to, and will not, undertake or assume any obligation of any kind, express or implied, to conduct any business on behalf of Amec Foster Wheeler. 102. If any provision, in whole or in part, of this Agreement is held illegal or invalid by any court or administrative agency of appropriate jurisdiction, such provision or appropriate portion thereof will be deemed severable and the illegality or invalidity of such provision or portion thereof will not affect any of the remaining portions of this Agreement. In such event, this Agreement will be considered as if the illegal or invalid provision or portion thereof had not been contained herein. 10.3. The failure of either party to require the performance of any term, condition or portion of this Agreement or the waiver by either party of any breach of this Agreement will not prevent subsequent enforcement of such term, condition or provision, nor be deemed as a waiver of any subsequent breach. 10.4. Any change in, addition to, or waiver of the terms, conditions, or provisions of this Agreement will be binding upon either of the parties only if approved in writing by its authorized representative. 10.5. Neither party will be liable to the other in any manner for any loss or damage of any nature whatsoever incurred or suffered as a result of any failures or delays in its performance under this Agreement due to any cause or circumstance beyond its control, including, but not limited to, any failure or delays in performance caused by strikes, lockouts, labor disputes, fires, acts of God or the public enemy, riots, incendiaries, interference by civil or military authorities, compliance with the laws, regulations, orders or policies of any governmental authority, delays in transit, delivery or performance on the part of vendors, transportation companies or communication facilities, or failures of sources of raw materials. 10.6. Client will have the right to assign or otherwise transfer its rights or obligations under this Agreement only with the prior written consent of Amec Foster Wheeler. In the event of any assignment (whether by consent of Amec Foster Wheeler or otherwise), all covenants, stipulations, and promises in this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. -5 - SHSA Standarad 2013, Rev 9/2013 EXHIBIT B SCHEDULE OF BILLING RATES VERTEX SOFTWARE MAINTENANCE SUPPORT & HOSTING SERVICES Description of Service Software Maintenance Support (3 Years): Hosting Services (3 Years) Annual Cost Total Amount $1,000.00 $3,000.00 $2,000.00 $6,000.00 GRAND TOTAL: $9,000.00 AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page B-1 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page C-1 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page C-2 B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page C-3 judgment may be necessary for its proper protection and prosecution of the Work. AMEC FOSTER WHEELER ENVIRONMENT & INFRASTRUCTURE, INC. Page C-4 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 3/3/16 Dept./Contact Received From: Raymund Date Completed: 3/3/16 Sent to: Raymund By: Chris/Alicia Company/Person required to have certificate: AMEC Foster Wheeler Environment & Infrastructure, Inc. Type of contract: Public Works GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 5/1/15-5/1/16 A. INSURANCE COMPANY: ACE American Insurance Company B. AM BEST RATING (A-: VII or greater): A++:XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1M or greater): What is limit provided? 2,000,000/4,000,000 E. ADDITIONAL INSURED ENDORSEMENT— please attach N Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does INSURANCE COMPANY: Zurich American Insurance Company not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND COMPLETED OPERATIONS ENDORSEMENT (completed ADMITTED COMPANY (Must be California Admitted): Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City N Yes ❑ No its officers, officials, employees and volunteers): Is it LIMITS - If Employees (Must be $1M min. BI & PD and $500,000 included? ® Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be 1,000,000 included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured (What is limits provided?) is not limited solely by their negligence) Does endorsement F. include"solely by negligence" wording? ❑ Yes N No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): N N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A N Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 5/1/15-5/1/16 A. INSURANCE COMPANY: Zurich American Insurance Company B. AM BEST RATING (A-: VII or greater) A+:XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? N Yes ❑ No D. LIMITS - If Employees (Must be $1M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? 1,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): N NIA ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: N N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A N Yes ❑ No M. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 5/1/15-5/1/16 A. INSURANCE COMPANY: American Zurich Insurance Company B. AM BEST RATING (A-: VII or greater): A+:XV C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M orgreater) 1,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY V BUILDERS RISK Approved: Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 3/3/16 Date ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® Yes ❑ No RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _; Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval/exception/waiver: Approved: Risk Management Date * Subject to the terms of the contract.