How to participate: The Town of Los Gatos strongly encourages your active participation in the public process, which is the cornerstone of democracy. If you wish to speak to an item on the agenda, please follow the participation instructions on page 2 of this agenda. If you wish to speak to an item NOT on the agenda, you may do so during the “Verbal Communications” period, by following the participation instructions on page 2 of this agenda. The time allocated to speakers may change to better facilitate the Town Council meeting.
Effective Proceedings: The purpose of the Town Council meeting is to conduct the business of the community in an effective and efficient manner. For the benefit of the community, the Town of Los Gatos asks that you follow the Town’s meeting guidelines while attending Town Council meetings and treat everyone with respect and dignity. This is done by following meeting guidelines set forth in State law and in the Town Code. Disruptive conduct is not tolerated, including but not limited to: addressing the Town Council without first being recognized; interrupting speakers, Town Council or Town staff; continuing to speak after the allotted time has expired; failing to relinquish the podium when directed to do so; and repetitiously addressing the same subject.
Deadlines for Public Comment and Presentations are as follows:
Persons wishing to make an audio/visual presentation on any agenda item must submit the presentation electronically, either in person or via email, to the Clerk’s Office no later than 3:00 p.m. on the day of the Council meeting.
Persons wishing to submit written comments to be included in the materials provided to Town Council must provide the comments as follows:
o For inclusion in the regular packet: by 11:00 a.m. the Thursday before the Council meeting
o For inclusion in any Addendum: by 11:00 a.m. the Monday before the Council meeting o For inclusion in any Desk Item: by 11:00 a.m. on the day of the Council Meeting
TOWN OF LOS GATOS
COUNCIL MEETING AGENDA
MAY 17, 2022
TELECONFERENCE
7:00 P.M.
Rob Rennie, Mayor
Maria Ristow, Vice Mayor
Mary Badame, Council Member
Matthew Hudes, Council Member
Marico Sayoc, Council Member
PARTICIPATION IN THE PUBLIC PROCESS
Town Council Meetings Broadcast Live on KCAT, Channel 15 (on Comcast) on the 1st and 3rd Tuesdays at 7:00 p.m.
Rebroadcast of Town Council Meetings on the 2nd and 4th Mondays at 7:00 p.m.
Live & Archived Council Meetings can be viewed by going to:
www.LosGatosCA.gov/TownYouTube
IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT, IF YOU NEED SPECIAL ASSISTANCE TO PARTICIPATE IN THIS MEETING, PLEASE CONTACT THE CLERK DEPARTMENT AT (408) 354-6834. NOTIFICATION 48 HOURS BEFORE THE MEETING WILL ENABLE THE TOWN TO MAKE REASONABLE ARRANGEMENTS TO ENSURE ACCESSIBILITY TO THIS MEETING [28 CFR §35.102-35.104]
TOWN OF LOS GATOS
COUNCIL MEETING AGENDA
MAY 17, 2022
TELECONFERENCE
7:00 PM
IMPORTANT NOTICE
This meeting is being conducted utilizing teleconferencing and electronic means consistent with Government Code Section 54953, as Amended by Assembly Bill 361, in response to the state of emergency relating to COVID-19 and enabling teleconferencing accommodations by suspending or waiving specified provisions in the Ralph M. Brown Act (Government Code § 54950 et seq.). Consistent with AB 361 and Town of Los Gatos Resolution 2021-044, this meeting will not be physically open to the public and the Council will be teleconferencing from remote locations.
Members of the public can only participate in the meeting by joining the Zoom webinar (log in information provided below).
PARTICIPATION
To provide oral comments in real-time during the meeting:
Zoom webinar: Join from a PC, Mac, iPad, iPhone or Android device: Please click this URL to join: https://losgatoscagov.zoom.us/j/81742747099?pwd=MThPb24vUGVTa3RXcnBTandLS1ZTZz09. Passcode:
121089. You can also type in 817 4274 7099 in the “Join a Meeting” page on the Zoom website at https://zoom.us/join.
Join by telephone: Join by Telephone: Dial: USA 877 336 1839 US Toll-free or 636-651- 0008 US Toll. Conference code: 969184
When the Mayor announces the item for which you wish to speak, click the “raise hand” feature in Zoom. If you are participating by phone on the Zoom app, press *9 on your telephone keypad to raise your hand. If you are participating by calling in, press #2 on your telephone keypad to raise your hand.
When called to speak, you will be asked to provide your full name and your town/city of residence. This identifying information is optional and not a requirement for participation. Please limit your comments to three (3) minutes, or such other time as the Mayor may decide, consistent with the time limit for speakers at a Council meeting.
If you wish to speak to an item or items on the Consent Calendar, please state which item number(s) you are commenting on at the beginning of your time.
If you are unable to participate in real-time, you may email to [email protected] the subject line “Public Comment Item #__ ” (insert the item number relevant to your comment) or “Verbal Communications – Non-Agenda Item.” Comments received by 11:00 a.m. the day of the meeting will be reviewed and distributed before the meeting. All comments received will become part of the record.
REMOTE LOCATION PARTICIPANTS The following Council Members are listed to permit them to appear electronically or telephonically at the Town Council meeting: MAYOR ROB RENNIE, VICE
MAYOR MARIA RISTOW, COUNCIL MEMBER MARY BADAME, COUNCIL MEMBER MATTHEW HUDES, and COUNCIL MEMBER MARICO SAYOC. All votes during the teleconferencing session will be conducted by roll call vote.
RULES OF DECORUM AND CIVILITY
To conduct the business of the community in an effective and efficient manner, please follow the meeting guidelines set forth in the Town Code and State law.
The Town does not tolerate disruptive conduct, which includes but is not limited to:
addressing the town Council without first being recognized; interrupting speakers, Town Council, or Town staff;
continuing to speak after the allotted time has expired; failing to relinquish the microphone when directed to do so; repetitiously addressing the same subject.
Town Policy does not allow speakers to cede their commenting time to another speaker.
Disruption of the meeting may result in a violation of Penal Code 403.
MEETING CALL TO ORDER
ROLL CALL
COUNCIL / MANAGER MATTERS
CONSENT ITEMS (Items appearing on the Consent Items are considered routine Town business and may be approved by one motion. Any member of the Council may request to have an item removed from the Consent Items for comment and action. Members of the public may provide input on any or multiple Consent Item(s) when the Mayor asks for public comments on the Consent Items. If you wish to comment, please follow the Participation Instructions contained on
the item will be heard.)
1. Approve the Draft Minutes of the May 3, 2022 Town Council Meeting.
2. Adopt a Resolution Reaffirming Resolution 2021-044 Regarding Brown Act Compliance and Teleconferencing and Making Findings Pursuant to Government Code Section 54953, as Amended by Assembly Bill 361, During the COVID -19 Pandemic.
3. Authorize the Town Manager to Execute a First Amendment to an Agreement for Consultant Services with TruePoint Solutions DigEplan (LCT Software).
4. Authorize the Town Manager to Execute a Second Amendment to a Consultant Agreement for Executive Recruitment Services with Teri Black & Company, LLC. in an Amount Not to Exceed $139,500 and Authorize an Expenditure Budget Adjustment in the Amount of $40,000 from Available General Fund Capital/Special Project Reserve.
5. Authorize the Town Manager to Execute a First Amendment to a Special Services Agreement with Liebert Cassidy Whitmore.
6. Receive the Third Quarter Investment Report (January through March 2022) for Fiscal Year 2021/22.
VERBAL COMMUNICATIONS (Members of the public are welcome to address the Town Council on any matter that is not listed on the agenda. To ensure all agenda items are heard and unless additional time is authorized by the Mayor, this portion of the agenda is limited to 30 minutes and no more than three (3) minutes per speaker. In the event additional speakers were not able to be heard during the initial Verbal Communications portion of the agenda, an additional Verbal Communications will be opened prior to adjournment.)
PUBLIC HEARINGS (Applicants/Appellants and their representatives may be allotted up to a total of five minutes maximum for opening statements. Members of the public may be allotted up to three minutes to comment on any public hearing item. Applicants/Appellants and their representatives may be allotted up to a total of three minutes maximum for closing statements. Items requested/recommended for continuance are subject to Council’s consent at the meeting.)
7. Consider the Recommendations of the Finance Commission and Staff, and Provide Direction on the Town of Los Gatos Proposed Operating and Capital Budget for Fiscal Year (FY) 2022/23 and on the Proposed Capital Improvement Program for FY 2022/23 – FY 2026/27; Including but Not Limited to:
a. Provide direction to Balance the FY 2022/23 Proposed Budget; b. Provide Direction on the Proposed Operating Budget;
c. Provide Direction on the Proposed Capital Budget; and d. Consider the FY 2022/23 List of Potential Donations Consistent with the Town’s Donation Policy
ADJOURNMENT (Council policy is to adjourn no later than midnight unless a majority of Council votes for an extension of time).
Writings related to an item on the Town Council meeting agenda distributed to members of the Council within 72 hours of the meeting are available for public inspection at the front desk of the Los Gatos Town Library, located at 100 Villa Avenue, and are also available for review on the official Town of Los Gatos website.
Note: The Town of Los Gatos has adopted the provisions of Code of Civil Procedure §1094.6; litigation challenging a decision of the Town Council must be brought within 90 days after the decision is announced unless a shorter time is required by State or Federal law.
110 E. Main Street Los Gatos, CA 95030 ● 408-354-6832
www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 05/17/2022
ITEM NO: 1
DRAFT
Minutes of the Town Council Meeting
May 3, 2022
The Town Council of the Town of Los Gatos conducted a regular meeting utilizing teleconference and electronic means consistent with Government Code Section 54953, as Amended by Assembly Bill 361, in response to the state of emergency relating to COVID-19 and enabling teleconferencing accommodations by suspending or waiving specified provisions in the Ralph M. Brown Act (Government Code § 54950 et seq.) and Town of Los Gatos Resolution 2021-044 on Tuesday, May 3, 2022 at 7:00 p.m.
MEETING CALLED TO ORDER AT 7:00 P.M.
ROLL CALL
Present: Mayor Rob Rennie, Vice Mayor Maria Ristow, Council Member Mary Badame, Council Member Matthew Hudes, Council Member Marico Sayoc (all participating remotely).
Absent: None
PRESENTATIONS
Mayor Rennie presented proclamations honoring Building Safety Month, National Public Works Week, and Municipal Clerks Week.
COUNCIL/TOWN MANAGER REPORTS
Council Matters
- Council Member Sayoc stated she attended the Housing Element Advisory Board (HEAB) meeting with Vice Mayor Ristow, and the Santa Clara County Hate Prevention and Inclusion Task Force meeting; and announced May is Mental Health Awareness Month and CalCities Peninsula Division will host an event for local elected officials in San Mateo and Santa Clara Counties on Governor Newsom’s CARE Court on May 18th.
- Council Member Badame stated she attended the HEAB meeting, Finance Commission, and Planning Commission meetings as an observer.
- Council Member Hudes stated he attended the Senior Service Committee Arc Bar Reception, Senior Service Workplan Sub-Committee meeting, and Finance Commission meetings.
- Vice Mayor Ristow stated she attended the Senior Service Committee Arc Bar Reception, Poetry Reading Contest, Spring Into Green event, and filled in for Mayor Rennie for an Arbor Day tree planting at Mulberry School with Parks and Public Works staff; volunteered at the Chamber Wine Walk; and met with members of the Terraces with Mayor Rennie.
PAGE 2 OF 5
SUBJECT: Draft Minutes of the Town Council Meeting of May 3, 2022 DATE: May 3, 2022
Council Matters – continued
- Mayor Rennie stated he attended the Finance Commission meetings, Senior Service Committee Arc Bar Reception, Spring Into Green event, Bay Area Air Quality Management District (BAAQMD) Board meeting, Valley Transportation Authority (VTA) Board meeting, Uplift/Pacific Clinics Luncheon with Vice Mayor Ristow, Silicon Valley Clean Energy Authority Five-Year Celebration, West Valley Mayors and Managers (WVM&M) meeting, Police Foundation event; and met with members of the Terraces with Vice Mayor Ristow.
Manager Matters
- Announced Adult Commissioner recruitment is underway; the application period closes on May 27 at 4:00 p.m. Interviews are scheduled for June 7, 2022. - Announced Youth Commission recruitment is underway; the application period closes on May 6 at 4:00 p.m. Interviews are scheduled for May 16, 2022. - Announced May is Historic Preservation Month and Affordable Housing Month. - Announced National Police Week is May 15 - 21.
CONSENT ITEMS (TO BE ACTED UPON BY A SINGLE MOTION)
1. Approve Draft Minutes of the April 19, 2022 Town Council Meeting.
2. Adopt a Resolution Reaffirming Resolution 2021-044 Regarding Brown Act Compliance and Teleconferencing and Making Findings Pursuant to Government Code Section 54953, as Amended by Assembly Bill 361, During the COVID -19 Pandemic. RESOLUTION 2022-021
3. Appoint Vice Mayor Ristow to the Senior Service Committee to Replace Mayor Rennie.
4. Adopt an Ordinance Amending Chapter 15 (Motor Vehicles and Traffic), Article I and Article IV, Division I of the Town Code Regarding Parking Meter Zones. ORDINANCE 2332
5. Adopt an Ordinance Amending Chapter 18, Article III, Entitled Minors and Related to Social Host Liability for Parties at Which Underage Drinking and Drug Use Occurs. ORDINANCE 2330
6. Adoption of an Ordinance Amending Chapter 29 of the Los Gatos Town Code Regulating Tree Protection. ORDINANCE 2331
7. Authorize the Town Manager to Execute a Second Amendment to an Agreement for Consultant Services with Walter Levison Arborist for Two Months.
8. Authorize the Town Manager to Execute a First Amendment to an Agreement for Consultant Services with Monarch Consulting Arborists LLC for Two Months.
9. Adopt a Resolution to Adopt a List of Projects for Fiscal Year 2022/23 Funded by the State Senate Bill 1, the Road Repair and Accountability Act of 2017. RESOLUTION 2022-022
10. Adopt a Resolution Declaring Hazardous Vegetation (Brush) a Public Nuisance, Ordering Abatement, and Setting June 21, 2022 as a Public Hearing to Consider Objections to the Proposed Removal of Brush. RESOLUTION 2022-023
11. Authorize the Town Manager to Execute a First Amendment to the Agreement with the County of Santa Clara for the Countywide Household Hazardous Waste Collection Program.
PAGE 3 OF 5
SUBJECT: Draft Minutes of the Town Council Meeting of May 3, 2022 DATE: May 3, 2022
Consent Items – continued
12. Authorize the Town Manager to Execute a Third Amendment to the Agreement for Services with Brightview Tree Care Services, Inc. to Increase Compensation for Fiscal Year 2021/22 in an Amount of $25,000 for a Total Annual Amount Not to Exceed $125,000, for a Total Agreement Amount Not to Exceed $966,000.
13. Landscape and Lighting Assessment Districts 1 & 2:
a. Adopt a Resolution (Attachment 1) Approving the Engineer’s Report (Attachment 8) for Fiscal Year 2022/23. RESOLUTION 2022-024
b. Adopt a Resolution (Attachment 2) of Intention to Order the Levy and Collection of Assessments for Landscape and Lighting District No. 1-Blackwell Drive Benefit Zone.
RESOLUTION 2022-025
c. Adopt a Resolution (Attachment 3) of Intention to Order the Levy and Collection of Assessments for Landscape and Lighting District No. 1-Kennedy Meadows Benefit Zone.
RESOLUTION 2022-026
d. Adopt a Resolution (Attachment 4) of Intention to Order the Levy and Collection of Assessments for Landscape and Lighting District No. 1-Santa Rosa Heights Benefit Zone.
RESOLUTION 2022-027
e. Adopt a Resolution (Attachment 5) of Intention to Order the Levy and Collection of Assessments for Landscape and Lighting District No. 1-Vasona Heights Benefit Zone.
RESOLUTION 2022-028
f. Adopt a Resolution (Attachment 6) of Intention to Order the Levy and Collection of Assessments for Landscape and Lighting District No. 1-Hillbrook Drive Benefit Zone.
RESOLUTION 2022-029
g. Adopt a Resolution (Attachment 7) of intention to Intention to Order the Levy and Collection of Assessments for Landscape and Lighting District No. 2-Gemini Court Benefit Zone. RESOLUTION 2022-030
h. Set June 21, 2022 as the Date for the Public Hearing to Consider Protests for the Levy and Collection of Assessments.
14. Authorize the Town Manager to Execute On-Call Traffic Engineering Consultant Services Agreements for Pass-Through Accounts with Advanced Mobility Group, Fehr and Peers, Hexagon Transportation Consultants, Inc., Kimley-Horn Associates, Inc., TJKM Transportation Consultants, and W-Trans.
15. Approve an Amendment to the Classification Plan to Create a Flexibly Staffed Communications Dispatcher Job Series.
Council Member Hudes Pulled Item #15.
Opened public comment.
No one spoke.
PAGE 4 OF 5
SUBJECT: Draft Minutes of the Town Council Meeting of May 3, 2022 DATE: May 3, 2022
Consent Items – continued
Closed public comment.
MOTION: Motion by Council Member Badame to approve consent items item 1-14. Seconded by Council Member Sayoc.
VOTE: Motion passed unanimously.
VERBAL COMMUNICATIONS
Joanne Rodgers
- Commented in opposition of allowing cannabis dispensaries in Town.
Jeffrey Suzuki
- Requested Council consider a land acknowledgement of indigenous populations.
OTHER BUSINESS
16. Receive the Results of the Community Survey and Provide any Direction to Staff.
Arn Andrews, Assistant Town Manager, presented the staff report.
Opened public comment.
Randi Chen, Chamber of Commerce
- Commented on the survey results and requested if an aggregate of the survey results could be provided for better clarity.
Catherine Somers, Chamber of Commerce Executive Director - Commented on communication and economic opportunities and the survey results.
Closed public comment.
Council discussed the item and directed staff to return to Council at as future date with a follow up report on potential action items.
Pulled Consent Item #15
15. Approve an Amendment to the Classification Plan to Create a Flexibly Staffed Communications Dispatcher Job Series.
Laurel Prevetti, Town Manager, and Salina Flores, Human Resources Director, presented the staff report.
PAGE 5 OF 5
SUBJECT: Draft Minutes of the Town Council Meeting of May 3, 2022 DATE: May 3, 2022
Pulled Consent Item #15 – continued
Opened public comment.
No one spoke.
Closed public comment.
Council discussed the item.
MOTION: Motion by Council Member Hudes to approve an amendment to the classification plan to create a flexibly staffed Communications Dispatcher Job Series. Seconded by Vice Mayor Ristow.
VOTE: Motion passed unanimously.
ADJOURNMENT
The meeting adjourned at 8:42 p.m.
Respectfully submitted:
_____________________________________
Jenna De Long, Deputy Clerk
PREPARED BY: Shelley Neis
Town Clerk
Reviewed by: Town Manager, Assistant Town Manager, and Town Attorney 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 05/17/2022
ITEM NO: 2
DATE: May 5, 2022
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Adopt a Resolution Reaffirming Resolution 2021-044 Regarding Brown Act Compliance and Teleconferencing and Making Findings Pursuant to Government Code Section 54953, as Amended by Assembly Bill 361, During the COVID -19 Pandemic
RECOMMENDATION:
Adopt a Resolution reaffirming Resolution 2021-044 and making findings pursuant to Government Code Section 54953, as amended by Assembly Bill 361, and authorizing the continued use of virtual meetings due to health and safety concerns for the public.
BACKGROUND:
On March 17, 2020, Governor Newsom issued Executive Order N-29-20, which allowed for relaxed provisions of the Ralph M. Brown Act (Brown Act) that allowed legislative bodies to conduct meetings through teleconferencing without having to meet the strict compliance of the Brown Act. All provisions of Executive Order N-29-20 concerning the conduct of public meetings expired on September 30, 2021.
DISCUSSION:
AB 361 was signed into law by the Governor on September 16, 2021, and went into effect immediately upon signing. It amends the Brown Act to allow local legislative bodies to continue using teleconferencing and virtual meeting technology after the September 30, 2021, expiration of the current Brown Act exemptions as long as there is a "proclaimed state of emergency" by the Governor. This allowance also depends on State or local officials imposing or recommending measures that promote social distancing or a legislative body finding that meeting in person would present an imminent safety risk to attendees.
PAGE 2 OF 3
SUBJECT: Adopt a Resolution Regarding Brown Act Compliance and Teleconferencing DATE: May 5, 2022
DISCUSSION (Cont):
AB 361 requires Public agencies to make findings by majority vote within 30 days of the first teleconferenced meeting under AB 361 and every 30 days thereafter that a state of emergency still exists and continues to directly impact the ability of the members to meet safely in person, or that officials continue to impose or recommend measures to promote social distancing.
Town Council adopted Resolution 2021-044 on October 5, 2021 regarding Brown Act compliance and teleconferencing pursuant to Government Code Section 54953, as amended by AB 361, and adopted resolutions on the following dates reaffirming Resolution 2021-044:
November 2, 2021 adopted Resolution 2021-046
November 16, 2021 adopted Resolution 2021-048
December 7, 2021 adopted Resolution 2021-054
December 21, 2021 adopted Resolution 2021-059
January 18, 2022 adopted Resolution 2022-001
February 1, 2022 adopted Resolution 2022-003
February 15, 2022 adopted Resolution 2022-004
March 1, 2022 adopted Resolution 2022-006
March 15, 2022 adopted Resolution 2022-009
April 5, 2022 adopted Resolution 2022-013
April 19, 2022 adopted Resolution 2022-017
May 3, 2022 adopted Resolution 2022-021
CONCLUSION:
Adopt a Resolution reaffirming Resolution 2021-044 making findings pursuant to Government Code Section 54953, as amended by Assembly Bill 361, and authorizing the continued use of virtual meetings. If adopted, virtual meetings may continue for all Town Boards, Commissions, and Committees.
COORDINATION:
This report was coordinated with the Town Attorney and Town Manager’s offices.
FISCAL IMPACT:
There will be no fiscal impact to the Town at this time.
PAGE 3 OF 3
SUBJECT: Adopt a Resolution Regarding Brown Act Compliance and Teleconferencing DATE: May 5, 2022
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachment:
1. Draft Resolution
1 of 3
Resolution 2022 - Council Meeting Date
RESOLUTION 2022-
RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS REAFFIRMING RESOLUTION 2021-044 REGARDING BROWN ACT COMPLIANCE AND TELECONFERENCING PURSUANT TO GOVERNMENT CODE SECTION 54953, AS AMENDED BY ASSEMBLY BILL 361, DURING THE COVID-19 PANDEMIC WHEREAS, on March 4, 2020, the Governor of the State of California declared a state of emergency to make additional resources available, formalize emergency actions already underway across multiple state agencies and departments, and help the state prepare for broader spread of COVID-19; and
WHEREAS, on March 12, 2020, the Town Manager of Los Gatos acting in the capacity of Town of Director of Emergency Services, issued a Proclamation of Local Emergency; and WHEREAS, on March 17, 2020, Governor Newsom issued Executive Order N-29-20, which suspended and modified the teleconferencing requirements under the Brown Act (California Government Code Section 54950 et seq.) so that local legislative bodies can hold public meetings via teleconference (with audio or video communications, without a physical meeting location), as long as the meeting agenda identifies the teleconferencing procedures to be used; and
WHEREAS, on March 17, 2020, the Town Council of the Town of Los Gatos ratified the Proclamation of Local Emergency as set forth in Resolution 2020-008 and remains in full force and effect to date; and
WHEREAS, on June 4, 2021, the Governor clarified that the “reopening” of California on June 15, 2021 did not include any change to the proclaimed state of emergency or the powers exercised thereunder; and
WHEREAS, on June 11, 2021, the Governor issued Executive Order N-08-21, which extended the provision of N-29-20 concerning the conduct of public meetings through September 30, 2021, and the Governor subsequently signed legislation revising Brown Act requirements for teleconferenced public meetings (Assembly Bill 361, referred to hereinafter as “AB 361”); and
WHEREAS, on September 16, 2021 Governor Newsom signed AB 361, which added subsection (e) to Government Code section 54953 of the Brown Act, and makes provision for remote teleconferencing participation in meetings by members of a legislative body, without compliance with the requirements of Government Code section 54953(b)(3), subject to the existence of certain conditions; and
ATTACHMENT 1
2 of 3
Resolution 2022 - Council Meeting Date
WHEREAS, the Town Council of the Town of Los Gatos approved Resolution No. 2021- 044 on October 5, 2021 declaring the need for the Town Council, Boards, Commissions, and Committees to continue to meet remotely in order to ensure the health and safety of the public; and
WHEREAS, the Town of Los Gatos remains in a state of emergency due to the continuing spread of COVID-19; and
WHEREAS, the Centers for Disease Control and Prevention recommends physical distancing of at least six (6) feet whenever possible, avoiding crowds, and avoiding spaces that do not offer fresh air from the outdoors, particularly for people who are not fully vaccinated, or are at a higher risk of severe illness due to COVID-19; and WHEREAS, the Town’s public meeting facility is indoor and not designed to ensure circulation of fresh/outdoor air, and not designed to ensure that attendees can remain six (6) feet apart; and
WHEREAS, holding in-person meetings would encourage community members to come to Town facilities to participate in local government, and some of them would be at high risk of severe illness due to COVID-19; and
WHEREAS, technology exists that allows full participation from members of the public without requiring in-person attendance at a Town Council, Board, Commission, or Committee meeting.
WHEREAS, the Town Council has considered all information related to this matter, including the associated staff report and other information relating to COVID-19 provided at prior public meetings of the Town Council; and
WHEREAS, the Town Council now desires to adopt a Resolution finding that the requisite conditions continue to exist for the legislative bodies of the Town of Los Gatos, as defined in the Brown Act, to conduct remote teleconference meetings without compliance with paragraph (3) of subdivision (b) of Government Code section 54953.
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES HEREBY RESOLVE:
1. The Town Council hereby finds that the fact set forth in the above recitals and as contained in Resolution 2021-044 are true and correct, and establish the factual basis for the adoption of this Resolution;
2. There is an ongoing proclaimed state of emergency relating to the novel coronavirus causing the disease known as COVID-19 and as a result of that emergency, meeting inperson would present imminent risks to the health or safety of attendees of inperson meetings ofthis legislative body and all Town advisory bodies within the meaning of California Government Code section 54953(e)(1).
3 of 3
Resolution 2022 - Council Meeting Date
3. Under the present circumstances, including the risks mentioned in the preceding paragraph, the Town Council determines that authorizing teleconferenced public meetings consistent with Assembly Bill 361 is necessary and appropriate.
4. Staff are directed to take all actions necessary to implement this Resolution for all Town meetings in accordance with the foregoing provisions and the requirements of Government Code section 54953, as amended by Assembly Bill 361, including but not limited to returning for ratification of this Resolution every 30 days after teleconferencing for the first time pursuant to Assembly Bill 361 for so long as either of the following circumstances exists: (a) the state of emergency continues to directly impact the ability of this legislative body to meet in person; and/or (b) state or local officials, including but not limited to the County Health Officer, continue to impose or recommend measures to promote social distancing.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 17th day of May 2022, by the following vote:
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE: ___________________
ATTEST:
TOWN CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
DATE: __________________
PREPARED BY: Tania Maheu
Administrative Analyst
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 05/17/2022
ITEM NO: 3
DATE: May 12, 2022
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Authorize the Town Manager to Execute a First Amendment to an Agreement for Consultant Services with TruePoint Solutions DigEplan (LCT Software).
RECOMMENDATION:
Authorize the Town Manager to execute a First Amendment to an Agreement for consultant services (Attachment 1) with TruePoint Solutions DigEplan (LCT Software).
BACKGROUND:
The Town has been working with TruePoint Solutions since 2011 and TruePoint Solutions DigEplan (LCT Software) since May 1, 2020 to provide electronic plan review services for the Community Development Department. TruePoint is extremely familiar with the details of the Town’s Accela configuration and unique customizations. TruePoint has a history of prompt and knowledgeable responses to inquiries from Town staff and their level of customer service has always met or exceeded staff expectations.
DISCUSSION:
The original 2021 Agreement was for a five-year term at a cost not to exceed $89,474 for 16 licenses. This amendment will increase the number of licenses from 16 to 20. The increase in cost for this amendment is for the prorated first-year cost and subsequent yearly cost over the remainder of the five-year term of the Agreement not to exceed $104,605.
PAGE 2 OF 2
SUBJECT: TruePoint Solutions DigEplan (LCT Software) First Amendment DATE: May 12, 2022
DISCUSSION (continued):
TruePoint Solutions DigEplan (LCT Software) is a sole source vendor. TruePoint is the only company in the US that is certified by LCT Software and the only supplier of the software DigEplan who is authorized to implement, quote, and sell for them.
CONCLUSION:
TruePoint’s consulting services assist the Town in providing electronic plan review services.
Based on TruePoint’s extensive knowledge of the Town’s Accela implementation, excellent support history with the Town, and competitive pricing, staff recommends that the Town Council authorize the Town Manager to Execute a First Amendment to an Agreement for the software licensing and related services not to exceed $104,605 for the remainder of the fiveyear term.
COORDINATION:
The draft First Amendment was prepared in coordination with the Town Attorney.
FISCAL IMPACT:
The funds are available in the Information Technology Budget.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. Draft TruePoint Solutions DigEplan (LCT Software) First Amendment
2. Amended Master Services Agreement
3. Original 2021 Agreement
FIRST AMENDMENT TO AGREEMENT
This FIRST AMENDMENT TO AGREEMENT is dated for identification this 17th day of May, 2022 and amends that certain Agreement for Consultant Services dated July 1, 2021, made by and between the Town of Los Gatos, ("Town,") and TruePoint Solutions DigEplan (LCT Software) .
RECITALS
A. The Town and Consultant entered into an Agreement dated July 1, 2021 to provide services for electronic plan review for the Town of Los Gatos (Attachment 3).
B. The Town desires to Amend the Agreement to include four additional users.
AMENDMENT
1. Scope of Services of the Agreement is hereby amended to provide four additional users.
2. Compensation of the Agreement is here by amended from $89,474 to $104,605 for a fiveyear term.
3. All other terms and conditions of the Agreement dated July 1, 2021, remain in full force and effect.
IN WITNESS WHEREOF, the Town and Consultant have executed this Amendment.
Town of Los Gatos Approved as to Consent:
By: _______________________________ By: ______________________________ Laurel Prevetti, Town Manager Keith Hobday, Partner
Department Approval:
__________________________________ By: ______________________________ Joel Paulson Jason Matthews, CEO
Community Development Director
Approved as to Form: Attest:
__________________________________ ______________________________ Robert Schultz, Town Attorney Shelley Neis, MMC, CPMC
Town Clerk
ATTACHMENT 1
This Page
Intentionally
Left Blank
LCT Software LLC – MSA (v1.0 approved by legal June 2019) Between
TruePoint Solutions, LCT Software LLC
and
Town of Los Gatos, CA
Master Services Agreement
www.digeplan.com
ATTACHMENT 2
LCT Software LLC MSA – v1.0 DigEplan USA 2
Parties
1. This Master Service Agreement (this “Agreement”) is entered into as of the date of last signature (the “Effective Date”) by and between TruePoint Solutions (DigEplan reseller and service provider) located at 3262 Penryn RD suite 100-B, Loomis CA and LCT Software LLC a Florida corporation principally located at 4500, 140th Avenue North Suite, 101 Clearwater, FL 33762 (“LCT Software”), and the Town of Los Gatos, CA, 110 E. Main St., Los Gatos, CA 95030 (the Customer.) Background
a) The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet for the purpose of subscribers b) The customer wishes to use the Supplier's service in its business operations. c) The Supplier has agreed to provide, and the customer has agreed to take and pay for the Supplier's service subject to the terms and conditions of this agreement.
Agreed terms
1.1. Definitions - Unless otherwise defined in this Agreement, terms used herein have the same meanings as set out in the Exhibits to this Agreement (including any supplements or attachments thereto).
1.2. “Optional Services” refers to certain optional add-ons to the Subscription Service as may be offered by LCT Software from time to time.
1.3. “Professional Services” refers to LCT Software’s delivery, training, performance optimization and related services as set out in the Professional Services Terms. The Professional Services described in this Agreement are applicable to Customer if and as ordered.
1.4. “Professional Services Terms” refers to those additional Professional Services Terms and Conditions attached hereto at Exhibit D.
1.5. “Services” refers to the Subscription Service together with any Professional Services and/or Optional Services, as applicable.
1.6. “Subscription Service” refers to DigEplan’s cloud-based service designed to provide government entities with Integrated Electronic Plan Review.
1.7. “Subscription T’s & C’s” refers to the Subscription Terms and Conditions attached hereto at Exhibit C
Customer agrees that its purchase of the Services hereunder is neither contingent on the delivery of nor any oral or written comments about any future functionality or features of the Subscription Service.
2. Procurement of Services
Customer may purchase the Services by submitting orders in a form designated or approved by LCT Software (each, an “Order”) or, in the case of certain Professional Services, by executing Statements of Work designated or approved by LCT Software (each an “SOW”). Upon Order (or SOW) acceptance and subject to Customer’s payment of the corresponding Services Fees, LCT Software will make the Services available to Customer.
LCT Software LLC MSA – v1.0 DigEplan USA 3
2.1. Governing Terms. The Subscription Service will be subject to this Agreement and the Subscription T’s & C’s for the Subscription Period and number of End Users as specified in each Order. Professional Services will be subject to this Agreement and the Professional Services Terms for the designated performance period as specific in the applicable Order or SOW. Any Optional Services will be subject to the Subscription Terms or such other documentation as designated by LCT Software.
2.2. Order Acceptance. No Order for Services will be deemed accepted by LCT Software unless and until LCT Software accepts such Order (or SOW) in writing. Any terms and conditions contained in any quote, invoice, purchase order or Order that are inconsistent with the terms and conditions of this Agreement will be deemed stricken, unless expressly agreed to in writing by LCT Software with explicit reference to the accepted terms and conditions. All Orders and SOWs will reference this Agreement. Upon acceptance of an Order as provided above, it will become part of this Agreement.
2.3. Adding End Users. If Customer desires to increase the number of End Users that are permitted to use the Subscription Service, a new Order must be issued for the additional End Users. LCT Software may, in its discretion, allow or require the initial Subscription Period of newly-purchased subscriptions to be adjusted to expire or renew simultaneously with Customer’s pre-existing subscription(s).
2.4. Optional Services. Purchase of Optional Services from LCT Software will be subject to any price quote LCT Software provides to Customer and the Order procedure described above. As designated by LCT Software at the time of Customer’s purchase, use of the Optional Services may be subject to Exhibit D or additional terms and conditions beyond or in lieu of those in Exhibit C.
3. Fees and Payment for Services
3.1. Fees. Customer will pay all fees for the Services per the prices quoted to Customer by LCT Software and finalized via an Order or SOW. Unless expressly set out in an Order or SOW, price increases will not apply to any Order or SOW that has already been accepted by LCT Software. Except as otherwise agreed by the parties in writing, Services Fees are quoted and payable in United States dollars, and Customer’s payment obligations are non-cancelable, and Fees paid are non-refundable.
3.2. Invoicing and Payment. TruePoint Solutions will invoice Customer in advance for the Services unless otherwise expressly agreed by the parties.
3.3. Subscription Service fees are due upon invoice and payable within forty-five (45) days of the invoice date. Subscription Service fees will be due no later than the first day of each Subscription Period to which the payment relates. If Customer orders additional End User quantities part-way through an existing Subscription Period, and the initial Subscription Period for the additional quantity is adjusted as described in Section 2.3, then the Subscription fee for such additional quantity will be pro-rated accordingly. Optional Services will be due at the same time as payment for the corresponding Subscription Service, or (if applicable) as otherwise specified in the applicable Order or governing terms. Subscription Service fees will be subject to an automatic annual increase by the percentage of the prior year’s Subscription Service fees (the “Uplift”) listed in the Order.
3.4. Professional Services fees and expenses are due upon invoice and payable within thirty (30) days of the invoice date. Professional Services fees and expenses may be subject to additional payment terms if and as designated in the applicable Order or SOW. Generally, Professional Services expenses will be billed as accrued and invoiced to Customer monthly in accordance with LCT Software’s expenses travel policy.
LCT Software LLC MSA – v1.0 DigEplan USA 4
3.5. Billing Info & Overdue Charges. Customer is responsible for keeping LCT Software accurately and fully informed of Customer’s billing and contact information, including providing any purchase order numbers in advance of invoice issuance. If any Fees are not received from Customer by the due date, they will accrue interest at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
3.6. Overdue Payments. If any amount owing by Customer under this Agreement for any of the Services is thirty (30) or more days overdue, LCT Software may, without limiting LCT Software’s other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement (including any Order or SOW) so that all such obligations become immediately due and payable, suspend the Subscription Service and/or stop performance of the Professional Services until such amounts are paid in full.
3.7. Taxes. LCT Software’s Services fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If LCT Software has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides LCT Software with a valid tax exemption certificate authorized by the appropriate taxing authority prior to invoice issuance. For clarity, LCT Software is solely responsible for taxes assessable against it based on LCT Software income, property and employees.
4. Term and Termination
4.1. Term of Agreement. Unless terminated earlier in accordance with Section 4.2, this Agreement commences on the Effective Date and will continue with respect to the Services as enumerated below:
4.1.1. Subscription Service. The Subscription T’s & C’s at Exhibit C will commence on the date listed in the first Order and continue for a period of one (1) year (the “Initial Subscription Period”).
Thereafter, the Subscription Term will automatically renew for additional one-year periods (each a “Renewal Subscription Period”) unless and until either party gives written notice of non-renewal at least thirty (30) days in advance. Customer must send written notice of non-renewal to [email protected] Should Customer not provide written notice of non-renewal at least thirty (30) days in advance, then Customer is obligated to pay for the subsequent renewal in full.
4.1.2. Professional Services. If and as applicable to Customer, the Professional Services Terms at Exhibit D will commence on the date listed in the first Order or SOW and continue for the period designated in such Order or SOW. The effectiveness of the Professional Services Terms will be automatically extended to the last date specified in all SOWs and Professional Services Orders issued by LCT Software. Upon Customer request, LCT Software may, in its sole discretion, reinstate expired Professional Services Terms after a lapse in effectiveness under previously issued SOWs or Professional Services Orders.
4.2. Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach. The Services will be subject to additional termination provisions if and as designated in the respective Exhibits to this Agreement.
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4.3. Effect of Termination. Termination or expiration of this Agreement will not terminate any thencurrent Customer Subscriptions to the Subscription Service (which will continue to be governed by the terms of Exhibit C, including the termination provisions set forth therein); provided, however, that in the case of termination of this Agreement by LCT Software for Customer’s uncured breach of this Agreement, LCT Software may simultaneously terminate any such Subscriptions. Subject to the Professional Services Terms, termination of this Agreement will terminate all on-going and planned Professional Services.
5. Additional customer terms.
Any terms and conditions required by Customer under applicable statute, judicial order or agency policy will be as stated in this Section 5 (the “Additional Customer Terms”). Alternatively, the Parties may set forth Additional Customer Terms at Exhibit C to this Agreement as warranted under the circumstances. Notwithstanding anything to the contrary in Section 6, the Additional Customer Terms will govern over the body of this Agreement in the event of a direct conflict of terms. In the absence of any inclusion of Additional Customer Terms in this Section 5 or at Exhibit C, the parties agree that no additional contractual obligations are intended in respect of the Services provided hereunder.
6. General
6.1 The parties acknowledge that the terms of each of the Exhibits to this Agreement (inclusive of any supplements or attachments thereto), including, but not limited to, the disclaimers, limitations of liability, and other general provisions thereof, are incorporated into and form a part of this Agreement.
6.2 In the event of a direct conflict between the body of this Agreement and the terms of the Exhibits hereto, the terms in the body of this Agreement will govern. Each party specifies its address set forth above for receipt of notices under this Agreement. This Agreement may be signed in one or more identical counterparts, each of which will be an original, but all of which together will constitute one instrument.
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Subscription Fees and Term
1. Subscription Fees (updated for 4 additional licenses) The new yearly Subscription base fee shall amount to a total of $16,859 (first 16) + $3,312 (additional 4) = $20,171. The Town of Los Gatos is now licensed for 20 users.
2. Additional User Subscription Fees
Additional User Subscriptions may be purchased by the Agency in accordance with clause
2.3 at $69.00 per User Subscription per month.
New Subscription Term:
1-year, form July 1st, 2021 to June 30th, 2022 - $16,859 Additional invoice for $828 (prorated 4 users * $69 = $276 mo * 3 for April, May and June). 2-year, form July 1st, 2022 to June 30th, 2023 - $20,776 3-year, form July 1st, 2023 to June 30th, 2024 - $21,399 4-year, form July 1st, 2024 to June 30th, 2025 - $22,041 5-year, form July 1st, 2025 to June 30th, 2026 - $22,702 Exhibits List:
Exhibit A - Standard Support Policy
Exhibit B – Service Level Commitment
Exhibit C – Subscription Terms and Conditions
LCT Software LLC MSA – v1.0 DigEplan USA 7
Signed on behalf of __________________________
Town of Los Gatos Laurel Prevetti, Town Manager
Approved as to Form __________________________
Robert W. Schultz, Town Attorney
Signed on behalf of __________________________
TruePoint Solutions Keith Hobday, Partner
Signed on Behalf of __________________________
LCT Software, LLC Jason Matthews, CEO
LCT Software LLC MSA – v1.0 DigEplan USA 8
Exhibit – A
Standard Support Policy
This LCT Software LLC’s SaaS Support Policy (“Support Policy”) is a policy governing the use of DigEplan’s software-as- service products (the “Service(s)”) under the terms of the services agreement (the “Agreement”) between LCT Software, LLC and its affiliates (“LCT Software”, “us” or “we”) and the purchaser of DigEplan’s Service (“Customer”). This Support Policy may be updated from time to time by LCT Software at its sole discretion.
General Requirements and Hours of Operation
Ticketing Support: LCT Software will provide access to a ticketing system, which will be available twenty-four (24) hours per day, seven (7) days per week. A qualified support specialist shall use commercially reasonably efforts to answer questions and resolve problems regarding the Subscription Service during normal business hours of Monday-Friday, 8:00 A.M. until 5:00 P.M PST.
Telephone and E-mail Support: DigEplan’s Customer Support will be available to Customer from 8:00 A.M. until 5:00 P.M. Pacific Standard Time Monday through Friday, excluding LCT Software LLC’s observed holidays.
Online Support Material: Available twenty-four (24) hours, seven (7) days a week, LCT Software will make available to Customer certain technical information in DigEplan’s online support database.
Updates
Updates may address security fixes, critical patches, general maintenance functionality, and documentation and shall be made available at LCT Software’s discretion. LCT Software is under no obligation to develop any future functionality or enhancements unless otherwise specified in the Agreement. If an update for the Service is made available to Customer pursuant to this Support Policy, it will automatically replace the previous version of the applicable Service.
Where practical, LCT Software willschedule Updates during non-business hours and will provide Customers with advance notice of all Updates.
Upgrade/Downgrade of Severity Level
If, during the Support Request process, the issue either warrants assignment of a higher severity level than currently assigned or no longer warrants the severity level currently assigned based on its current impact on the production operation of the SaaS offering, then the severity level will be upgraded or downgraded accordingly to the severity level that most appropriately reflects its current impact.
Third Party Product Support
If any third-party software is not supplied by LCT Software, LCT Software disclaims all support obligations for such third-party software, unless expressly specified by LCT Software in Customer’s Agreement.
LCT Software LLC MSA – v1.0 DigEplan USA 9
Exclusions
The following Support Exclusions are not covered by this Support Policy: (a) Support required due to Customer’s or any End User’s or third party’s misuse of the Services; (b) Support during times outside of LCT Software regular business hours stated above; (c) Support necessitated by external factors outside of LCT Software’s reasonable control, including any force majeure event or Internet access or related problems beyond the Service demarcation point; (d) Support of or caused by customizations (if outside of LCT Software’s best practice recommendations), configuration changes, scripting, or data loss caused by or on behalf of Customer or any End User; (e) Support of or caused by Customer’s or any End User’s or third party’s equipment, software or other technology (other than third party equipment within LCT Software’s direct control); (f) Supportto resolve or work-around conditions which cannot be reproduced in LCT Software’s support environment and (g) Support of any software add-ons supplied together with the Service (except where specified in the Agreement). Any supportservicesfalling within these Support Exclusions may be provided by LCT Software at its discretion and, if so provided, may be subject to additional pricing and support terms as specified by LCT Software Support Classifications
Error Classification Criteria
Critical Severity Issue (Priority 1) The Service is down or there is a major malfunction (deeming Service nonfunctional or severely affected), resulting in a business revenue loss and impacting the Service functionality for a majority of users. No reasonable workaround exists.
High Severity Issue (Priority 2) High loss of Service functionality or performance, impacting the Service functionality for a high number of users (e.g. Service response is very slow, day to day operations continue, but are impacted by the issue). No reasonable workaround available or the workaround is impractical.
Medium Severity Issue (Priority 3) Moderate loss of Service functionality or performance, impacting multiple users.
A convenient workaround exists (e.g. non-critical feature is unavailable or requires additional user intervention).
Low Severity Issue (Priority 4) Minor loss of Service functionality or feature in question.
Functional Definitions: For the purposes of error classification, essential or major functions include: data capture features, SLA and alarming features, performance management features and application performance problem resolution features.
Response Time: LCT Software shall use commercially reasonable efforts to respond to error reports in accordance with the table set forth below. LCT Software will use reasonable means to repair the error and keep Customer informed of progress. LCT Software makes no representations as to when a full resolution of the error may be made.
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Error Classification Initial Response and
Acknowledgement
Updates Resolution Goal
Critical 1 Business Hour Daily LCT Software will put forth our best effort to provide a workaround, fix, or estimated
completion date within seventy-two (72) hours
after the problem has been diagnosed and/or
replicated.
High 4 Business Hours Weekly LCT Software will put forth our best effort to provide a workaround or fix or estimated
completion date within four (4) business days after
the problem has been diagnosed and/or
replicated.
Medium 8 Business Hours As
available
LCT Software will put forth our best effort to
provide a workaround or fix or estimated
completion date within seven (7) business days
after the problem has been diagnosed and/or
replicated.
Low 24 Business Hours None Resolution for the Issue may be released as a patch set or be incorporated into a future
schedule release of the product.
LCT Software LLC MSA – v1.0 DigEplan USA 11
Exhibit B
SERVICE LEVEL COMMITMENT
This SaaS Service Level Commitment (“SLC”) is a policy governing the use of LCT software-as-service products (individually or collectively, the “Service” or “DigEplan”) under the terms of the LCT Software Master Services Agreement (the “Agreement”) between LCT Software LLC and its affiliates (“LCT Software”, “us” or “we”) and the purchaser of LCT Software’s Subscription Service (“Customer”).
Unless otherwise provided herein, this SLC is subject to the terms of the Agreement and capitalized terms will have the meaning specified in the Agreement. LCT Software reserves the right to change the terms of this SLC in accordance with the Agreement.
Definitions
“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the Service was Unavailable. Measurement of the Monthly Uptime Percentage excludes downtime resulting directly or indirectly from any SLC Exclusion. “Service Credit” is a dollar credit, calculated as set forth below, that LCT Software may credit back to an eligible Customer account.
“Unavailable” means, as applicable: (i) Customer is repeatedly unable to log into the Service; (ii) Customer experiences repeated connection request failures; (iii) Customer experiences lack of connectivity of external, public instances or sites lasting for more than ten (10) minutes; The foregoing events must be verifiable or replicable by LCT Software or its designee. Availability of Accela APIs which are used by DigEplan to connect, is expressly excluded from this SLC.
Service Commitment
LCT Software will use commercially reasonable efforts to make the Service available with a Monthly Uptime Percentage of at least 99.9%, in each calendar month of the Subscription Period (the “Commitment”). In the event the Service does not meet this Commitment, Customer will be eligible to receive a Service Credit as described below.
Scheduled & Emergency Maintenance
LCT Software will maintain certain scheduled maintenance windows during which regular, planned maintenance of the Service may be performed. LCT Software will use commercially reasonable efforts to provide Customer with no less than twenty-four (24) hours’ notice prior to Services unavailability due to planned maintenance. LCT Software’s standard maintenance window will generally fall between the hours of 12:00 AM (00:00) and 5:00 AM [05:00] on a day of our choosing, local time.
In exceptional circumstances where updates may take more time than the weekly time slot, it may be necessary to run updates over w-ends.
LCT Software will endeavour to provide as much notice as is practicable under the circumstances for patches, updates, fixes and other emergency maintenance activities which may be applied on an urgent basis.
LCT Software will provide three (3) business days’ notice prior to any planned network, server hardware, operating environment, or database modifications of a material nature.
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Service Credits Monthly Uptime Percentage Service Credit Percentage Less than 99.9% but equal to or greater than 99.0% 2%
Less than 99.0% 5%
LCT Software will apply any Service Credits only against future Service payments otherwise due from Customer.
Service Credits will not entitle Customer to any refund or other payment from LCT Software.
Service Credits may not be transferred or applied to any other account.
Unless otherwise provided in the Agreement, Customer’s sole and exclusive remedy for any unavailability, nonperformance, or other failure by LCT Software to provide the Service is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLC.
Service Credit Requests
To receive a Service Credit, Customer must submit a claim in writing to [email protected] To be eligible for a Service Credit, the claim must be received by LCT Software in the calendar quarter in which the incident occurred and must include:
- the words “SLC Credit Request” in the subject line;
- the dates and times of each Unavailability incident that Customer is claiming; and - the quantity or scope of affected Users (as indicated by User ID, number of departments or similar metric); - Supporting evidence from the support service desk
If the Monthly Uptime Percentage of such Service Credit request is confirmed by us and is less than the Service Commitment, LCT Software will issue the Service Credit to Customer within one billing cycle following the month in which Customer’s request is confirmed by LCT Software. Customer’s failure to provide the request and other information as required above will disqualify Customer from receiving a Service Credit.
SLC Exclusions
The Service Commitment does not apply to any unavailability, suspension or termination of the Service or any Service performance issues: (i) caused by factors outside of LCT Software’s reasonable control, including any force majeure event or Internet access or related problems beyond the Service demarcation point; (ii) that result from customizations (if outside of LCT Software’s best practice recommendations), configuration changes by or on behalf of Customer or any End User; (iii) that result from Customer’s or any End User’s or third party’s equipment, software or other technology or integrations (other than third party equipment within LCT Software’s direct control); (iv) that result from any maintenance as provided for pursuant to the above terms; or (vii) arising from our suspension or termination of Customer’s right to use the Service in accordance with the Agreement (collectively, the “SLC Exclusions”). If availability is impacted by factors other than those used in the Monthly Uptime Percentage calculation, LCT Software may issue a Service Credit with consideration to pertinent factors as assessed by LCT Software in its sole discretion.
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EXHIBIT C
Subscription Terms & Conditions
Purchase or use of the Service (defined below) is subject to these Subscription Terms and Conditions (these “Terms”).
1. DEFINITIONS
“Agreement” means these Terms and, if applicable, the written master service agreement or other written agreement between Customer and LCT Software LLC that incorporates these Terms by reference. “Communication Data” means any and all information transmitted, shared, or exchanged between Customer and any End User, or between End User and any third party (including any third-party network or website), using the Service, with respect to any transaction or other communication enabled by the Service, but excluding Security Data.
“Customer” means the entity that purchases a subscription to the Service, directly from LCT Software or through an authorized reseller, distributor, or other channel partner of LCT Software. "End Users" means individuals who are authorized by Customer to use the Service and for whom Customer has purchased a subscription to the Service. End Users may include but are not limited to Customer’s employees, contractors and agents. Each End User will be associated with a single, unique email address for purposes of accessing (and being identified within) the Service.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Optional Services” mean the optional add-ons to the Service that may be available for purchase either directly from LCT Software or through an authorized reseller or partner of LCT Software, as more particularly described or identified in the applicable Order.
“Order” means written orders to purchase subscriptions to use the Service (or, where applicable, to purchase Optional Services).
“Security Data” means any and all information provided by Customer or any End User to establish secure transmissions through use of the Service, including but not limited to personal information, information used to identify account names or numbers, routing information, usernames, passwords, access codes and prompts. “Service” or “Subscription Service” means the cloud-based network security service(s) for which Customer has obtained a subscription either directly from LCT Software or through an authorized reseller or other partner of LCT Software, as more particularly described in the applicable agreement or order under which such subscription was obtained. If and as designated in the Specifications, the Service may be inclusive of application programming interfaces (APIs) developed by LCT Software to enable interaction and integration with the Service. Unless otherwise specified herein or other applicable contractual terms, all references to “Service” will be deemed to include any and all Optional Services.
“Software” means any software (including client software for End Users’ devices) that LCT Software makes available for download or otherwise provides for use with the Service. “Subscription Period(s)” means the duration of Customers and End Users active, paid access to the Service, as designated in the Order(s).
“Supported Modification” means a configuration of or modification to the Service requested by Customer that can be consistently supported by LCT Software via APIs, does not require direct database changes and is capable of being tested and maintained by LCT Software.
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2. AUTHORIZED USERS. Only End Users may access or use the Service under Customer’s account. Each End User may use any reasonable number of compatible devices for purposes of accessing the Service; provided that, LCT Software reserves the right to determine whether a number of devices is reasonable and, in its sole discretion, to place a corresponding cap on the number of devices. Unless expressly authorized by LCT Software, End User subscriptions cannot be shared or used by more than one individual but may be permanently reassigned to new End Users. The number of End User subscriptions purchased may be increased (under a new Order) but cannot be decreased during any Subscription Period.
3. USE OF THE SERVICE
3.1. LCT Software’s Responsibilities. LCT Software will: (i) provide to Customer support related to the Service in accordance with the LCT Software Support Terms.
3.2. Customer’s Responsibilities. Customer will (i) be responsible for meeting LCT Software’s applicable minimum system requirements for use of the Service; (ii) be responsible for End Users’ compliance with these Terms and for any other activity (whether or not authorized by Customer) occurring under Customer’s account, (iii) be solely responsible for the accuracy, quality, integrity and legality of Communication Data, (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Service under its account, and notify LCT Software promptly of any such unauthorized access or use, and (v) use the Service only in accordance with the applicable documentation, laws and government regulations, and any written instructions provided by LCT Software to Customer.
3.3. Prohibitions. Customer will not, and will ensure that its End Users do not, (i) make the Service available to anyone other than End Users; (ii) sell, resell, rent, lease or transfer the Service in whole or in part to any third party (including Customer affiliates) without the express permission of LCT Software and execution of designated transfer documentation; (iii) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights; (iv) use the Service to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein; (vi) attempt to gain unauthorized access to the Service or any related systems or networks; or (vii) obtain intellectual property rights to the use of any component of the Services (inclusive of APIs).
3.4. Software. End Users may need to download and install client Software (as made available by LCT Software or other third party authorized by LCT Software) on each device through which they intend to use the Service.
All use of such Software will be governed by terms of the applicable license agreement or terms of use that accompanies or is made available in connection with the Software. Customer acknowledges that each End User (or authorized Customer representative) must accept such license agreement, and have Service-compatible device(s), to download, install, and/or use the Software. Nothing in these Terms will be deemed to grant to Customer rights of any kind in the Software.
3.5. Security Data and Privacy. Customer understands that failure to protect Security Data may allow an unauthorized person or entity to access the Service. In addition, Customer acknowledges that LCT Software generally does not have access to and cannot retrieve lost Security Data. If Customer loses Security Data, Customer may no longer have access to the Service. Customer agrees that: (i) Customer (or its End User) is solely responsible for collecting, inputting and updating all Security Data; (ii) LCT Software assumes no responsibility for supervision, management or control of Customer’s and End Users’ Security Data; and (iii) LCT Software assumes no responsibility for any fraudulent or unauthorized use of the Software or any portion of the Service. To the extent that LCT Software has access to any personally identifiable information gathered from Customer or from End Users in connection with the Service, such information will be governed by the provisions of the LCT’s Privacy Policy, a copy of which is available on the LCT Software’s website at https://www.digeplan.com/privacy-policy/
(which URL location and content may be updated from time to time by LCT Software).
4. PROPRIETARY RIGHTS
4.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, LCT Software reserves all rights, title and interest in and to the Service and any associated Software and documentation, including all
LCT Software LLC MSA – v1.0 DigEplan USA 15
related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
4.2. Restrictions. In addition to the other prohibitions set forth in these Terms, Customer will not and will ensure that its agents do not (i) create derivate works based on the Service, (ii) copy, frame or mirror any part or content of the Service, other than copying or framing on Customer’s own intranets or otherwise for Customer’s internal business purposes in accordance with LCT Software’s applicable documentation, (iii) reverse engineer the Service, or (iv) access the Service (inclusive of any APIs) in order to build or patent a competitive product or service or to copy any features, functions or graphics of the Service.
4.3. Communication Data Ownership. Customer reserves all its rights, title and interest in and to the Communication Data. No rights are granted to LCT Software hereunder with respect to the Communication Data, except that LCT Software may (i) store, copy, process, and transmit such Communication Data for purposes of providing the Service to Customer and (ii) otherwise utilize Communication Data if and as permitted by the LCT Software’s Privacy Policy.
4.4. Customer Suggestions. Customer grants LCT Software a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service (or LCT’s other software or services) any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or End Users relating to the operation or features of the Service.
5. CONFIDENTIALITY
5.1. Definition. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
5.2. Protection. Except as otherwise permitted in writing by the Disclosing Party and subject to the other terms of this Agreement (including LCT Software’s Privacy Policy), (i) the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, and (ii) the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with these Terms and who are legally bound to protect such Confidential Information consistent with these Terms.
5.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest, limit, or protect the disclosure.
6. WARRANTIES AND DISCLAIMERS
6.1. Specifications. Subject to the limitations set forth below, LCT Software warrants that the Service will operate in all material respects in accordance with the Specifications. As Customer’s sole and exclusive remedy and LCT Software’s entire liability for any breach of the foregoing warranty, LCT Software will use commercially reasonable efforts to modify the Service so that it conforms to foregoing warranty.
6.2. Service Level Commitment. During the Subscription Period, LCT Software further warrants that the Service will meet the performance level specified in the Service Level Commitment, as made available by LCT Software at https://zdrive.eu/gVe (which URL location and content may be updated from time to time by LCT Software).
The Service Level Commitment sets forth Customer’s sole and exclusive remedy for LCT Software’s failure to achieve the stated Service performance level.
LCT Software LLC MSA – v1.0 DigEplan USA 16
6.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, LCT SOFTWARE DOES NOT MAKE ANY WARRANTIES
OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND LCT SOFTWARE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. LCT Software will not be responsible to the extent failure of the Service to operate as warranted is caused by or results from:
(i) any modification to the Service other than a Supported Modification; (ii) combination, operation or use of the Service with Customer’s or a third party's applications, software or systems; (iii) abuse, willful misconduct or negligence by anyone other than LCT Software or LCT Software’s designee; (iv) use of the Service other than in accordance with the terms of this Agreement and/or the applicable Specifications and LCT Software documentation or (v) any of the SLC Exclusions (as defined in the Service Level Commitment).
7. MUTUAL INDEMNIFICATION
7.1. Indemnification by Customer. Customer will defend (or settle), indemnify and hold harmless LCT Software, its officers, directors, employees and subcontractors, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any thirdparty claim that: (i) a third party has suffered injury, damage or loss resulting from Customer’s or any End User’s use of the Service (other than any claim for which LCT Software is responsible under Section 7.2); or (ii) Customer or any End User has used the Service in a manner that violates these Terms or applicable law.
Customer’s obligations under this Section 7.1 are contingent upon: (a) LCT Software providing Customer with prompt written notice of such claim; (b) LCT Software providing reasonable cooperation to Customer, at Customer’s expense, in defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.
7.2. Indemnification by LCT Software. Party will defend (or settle) any suit or action brought against Customer to the extent that it is based upon a claim that the Service, as furnished by LCT Software hereunder, infringes or misappropriates the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer. LCT Software’s obligations under this Section 7.2 are contingent upon:
(a) Customer providing LCT Software with prompt written notice of such claim; (b) Customer providing reasonable cooperation to LCT Software, at LCT Software’s expense, in the defense and settlement of such claim; and (c) LCT Software having sole authority to defend or settle such claim. THIS SECTION 7.2 STATES THE
ENTIRE OBLIGATION OF LCT SOFTWARE AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE. LCT Software will have no liability under this Section 7.2 to the extent that any third-party claims described herein are based on any combination of the Service with products, services, methods, or other elements not furnished by LCT Software, or any use of the Service in a manner that violates this Agreement or the instructions given to Customer by LCT Software.
7.3. Mitigation Measures. In the event that (i) any claim or potential claim covered by Section 7.2 arises or (ii) LCT Software’s right to provide the Service is enjoined or in LCT Software’s reasonable opinion is likely to be enjoined, LCT Software may, in its discretion, seek to mitigate the impact of such claim or injunction by obtaining the right to continue providing the Service, by replacing or modifying the Service to make it noninfringing, and/or by suspending or terminating Customer’s use of the Service with reasonable notice to Customer. In the case of a suspension or termination pursuant to this Section 7.3, LCT Software will refund to Customer a portion of fees prepaid by Customer for the then-current Subscription period, prorated to the portion of that Subscription period that is affected by the suspension or termination).
8. LIMITATIONS OF LIABILITY. EXCEPT THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 7.1 AND 7.2, IN NO EVENT WILL PARTY’S LIABILITY TO OTHER PARTY OR ANY THIRD PARTY ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER IN
CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY
CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE INCIDENT.
LCT Software LLC MSA – v1.0 DigEplan USA 17
8.1. Exclusion of Damages. NEITHER PARTY NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING,
PRODUCING, OR DELIVERING THE SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE
INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR
SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO
USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING EXCLUSIONS APPLY WHETHER OR NOT PARTY HAS
BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. NOTHING IN THESE TERMS EXCLUDES OR RESTRICTS THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE.
8.2. Security and Other Risks. Customer acknowledges that, notwithstanding security features of the Service, no product, hardware, software or service can provide a completely secure mechanism of electronic transmission or communication and that there are persons and entities, including enterprises, governments and quasi-governmental actors, as well as technologies, that may attempt to breach any electronic security measure.
Subject only to its limited warranty obligations set forth in Section 6, LCT Software will have no liability for any security breach caused by any such persons, entities, or technologies. Customer further acknowledges that the Service is not guaranteed to operate without interruptions, failures, or errors. If Customer or End Users use the Service in any application or environment where failure could cause personal injury, loss of life, or other substantial harm, Customer assumes any associated risks and will indemnify LCT Software and hold it harmless against those risks.
8.3. Basis of Bargain. THE LIMITATIONS OF LIABLITY AND EXCLUSIONS OF DAMAGES SET FORTH IN THIS SECTION 8 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LCT SOFTWARE AND CUSTOMER AND WILL APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW.
9. SUBSCRIPTION PERIOD AND TERMINATION
9.1. Term of End User Subscriptions. End User Subscriptions purchased by Customer commence on the start date specified in the applicable Order and, unless terminated earlier in accordance with these Terms, continue for the term specified therein (the “Subscription Period”). A Subscription Period and/or pricing there on may be subject to prorating where LCT Software deems it appropriate to cause newly purchased Subscriptions to expire or renew simultaneously with Customer’s pre-existing Subscription(s). Except as otherwise specified in the applicable Order, all Subscriptions will automatically renew for additional Subscription Periods equal to the expiring Subscription Period or one year (whichever is shorter), unless either party gives the other at least thirty (30) days’ notice of non-renewal before the end of the relevant Subscription Period. The per-unit pricing during any such renewal Subscription Period may be subject to annual pricing increase as designated by LCT Software and notified to Customer. Pricing increases will be effective upon renewal of the Subscription Period and annually thereafter, unless otherwise agreed to by the parties. If either party provides notice of nonrenewal as set forth above, Customer’s right to use the Service will terminate at the end of the relevant Subscription Period.
9.2. Termination or Suspension for Cause. A party may terminate any Subscription for cause upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such thirty (30) day period. In addition, LCT Software may, at is sole option, suspend or terminate Customer’s or any End User’s access to the Service, or any portion thereof, immediately if LCT Software, in its sole discretion: (i) if suspects that any person other than Customer or an End User is using or attempting to use Security Data, (ii) suspects that Customer or an End User is using the Service in a way that violates these Terms and could expose LCT Software or any other entity to harm or legal liability, or (iii) is or reasonably believes it is required to do so by law or court order.
9.3. Effect of Termination. Within thirty (30) calendar days following the end of Customer’s final Subscription Period, Customer may request in writing LCT Software to provide a copy of Customer’s data and associated documents in a database dump file format. LCT Software will comply in a timely manner with such request;
LCT Software LLC MSA – v1.0 DigEplan USA 18
provided that, Customer (a) pays all costs of and associated with such copying, as calculated at LCT Software then-current time-and-materials rates; and (b) pays any and all unpaid amounts due to LCT Software.
9.4. Surviving Provisions. Sections 4 (Proprietary Rights), 5 (Confidentiality), 6.2 (Disclaimer), 7 (Mutual Indemnification), 8 (Limitation of Liability), 9.3 (Effect of Termination), 9.4 (Surviving Provisions) and 10 (General Provisions) will survive any termination or expiration of this Agreement.
10. GENERAL
10.1. Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) sending by confirmed email if sent during the recipient’s normal business hours (or, if not, then on the next business day). Notices will be sent to the address specified by the recipient in writing when entering into this Agreement or establishing Customer’s account for the Service (or such other address as the recipient may thereafter specify by notice given in accordance with this Section 10.1).
10.2. Governing Law and Jurisdiction. This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of law’s provisions. The exclusive jurisdiction and venue of any action related to the Service or this Agreement will be the state and federal courts located in California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
10.3. Compliance with Laws. Each party will comply with all applicable laws and regulations with respect to its activities under this Agreement including, but not limited to, export laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, Customer will not permit End Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction.
10.4. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or similar relationship between the parties.
10.5. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
10.7. Assignment. Customer may not assign or transfer this Agreement, whether by operation of law or otherwise, without the prior written consent of LCT Software. Any attempted assignment or transfer, without such consent, will be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.8. Publicity. Subject to the provisions of Section 5, each party will have the right to publicly announce the existence of the business relationship between parties. In addition, during the Subscription Period of Customer’s Service use, LCT Software may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on LCT Software’s websites and marketing materials to identify Customer as LCT Software’s customer, and for providing the Service to Customer; provided that, LCT Software will use commercially reasonable efforts to adhere to any usage guidelines furnished by Customer with respect to Customer’s Marks.
10.9. Force Majeure. The Parties will not be liable for any delay or failure to perform under this Agreement to the extent such delay or failure results from circumstances or causes beyond the reasonable control of the Party.
10.10. Entire Agreement. These Terms, including any attachments hereto as mutually agreed upon by the Parties, constitute the entire agreement between the parties concerning its subject matter and supersedes all
LCT Software LLC MSA – v1.0 DigEplan USA 19
prior communications, agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by a duly authorized representative of each party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no additional or conflicting terms or conditions stated in Customer’s order documentation will be incorporated into or form any part of these Terms, and all such terms or conditions will be null.
Notwithstanding any language to the contrary therein, no additional or conflicting terms or conditions stated in Customer’s Order, any SOW or other order documentation will be incorporated into or form any part of this PSA, and all such terms or conditions will be null. Under no circumstances will the terms, conditions or provisions of any RFP, purchase order, invoice or other administrative document issued by Customer in connection to this PSA be deemed to modify, alter or expand this PSA, regardless of any failure of LCT Software to object to such terms, provisions, or conditions. No other act, document, usage, custom or waiver will be deemed to amend or modify this PSA unless agreed to in writing signed by a duly authorized representative of both parties. In the event of any inconsistency or conflict between the terms of this PSA, and SOW, the terms of the SOW will control with regards to the project described.
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M E M O R A N D U M
DATE: April 28, 2021
TO: Robert Schultz, Town Attorney
FROM: Joel Paulson, Community Development Director
SUBJECT: Sole Source Approval by the Town Attorney: TruePoint - DigEplan (LCT Software) Online Permitting Services
BACKGROUND:
Please approve this sole source for TruePoint in the amount of $89,474.00 for annual services for the purchase of DigEplan (LCT Software) for electronic plan review services from July 1, 2021 to June 30, 2026 which will have an option of being renewed annually thereafter.
TruePoint is the only company in the US that is certified by LCT Software and the only supplier of the software DigEplan who is authorized to implement, quote, and sell for them.
Staff recommends that TruePoint provide services for the Town.
Recommended/Approved By:
________________________________ ______________
Joel Paulson
Community Development Department Date:
Approved as to Form:
________________________________ _______________
Robert Schultz, Town Attorney Date:
Joel Paulson (Apr 28, 2021 11:35 PDT)
Joel Paulson Apr 28, 2021
Robert Schultz (Apr 28, 2021 13:52 PDT)
Robert Schultz Apr 28, 2021
ATTACHMENT 3
TruePoint Agreement for Consultant Services – DigEplan (LCT Software) 2021 - 2026
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is made and entered into on July 1, 2021 by and between TOWN OF LOS GATOS, a California municipal corporation (“Town”), and TruePoint Solutions (“Consultant”), whose address is 3262 Penryn Road, Suite 100-B, Loomis, CA 95650. This Agreement is made with reference to the following facts.
I. RECITALS
1.1 The Town desires to engage the Consultant to provide DigEplan support services and training for software provided by LCT Software.
1.2 The Consultant represents and affirms that it is willing to perform the desired work pursuant to this Agreement.
1.3 The Consultant warrants it possesses the distinct professional skills, qualifications, experience, and resources necessary to timely perform the services described in this Agreement. The Consultant acknowledges that the Town has relied upon these warranties to retain the Consultant.
II. AGREEMENTS
2.1 Scope of Services. The Consultant shall provide services as described in that certain Master Services Agreement sent to the Town on April 14, 2021, which is hereby incorporated by reference and attached as Exhibits A, B, and C.
2.2 Term and Time of Performance. This contract will remain in effect from July 1, 2021 to June 30, 2026. Consultant shall perform the services described in the Master Services Agreement along with Exhibits A, B, and C.
2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state, and local laws. The Consultant represents and warrants to the Town that it has all licenses, permits, qualifications, and approvals of whatsoever nature which are legally required for the Consultant to practice its profession. The Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos.
2.4 Sole Responsibility. The Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement.
2.5 Information/Report Handling. All documents furnished to the Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of the Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by the Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the
TruePoint Agreement for Consultant Services – DigEplan (LCT Software) 2021 - 2026
Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and the Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at the Town's risk, unless the Consultant expressly consents to such use in writing. The Town further agrees that it will not appropriate any methodology or technique of the Consultant which is and has been confirmed in writing by the Consultant to be a trade secret of Consultant.
2.6 Compensation. Compensation for the Consultant's professional services shall not exceed $89,474.00, inclusive of all costs. Payment shall be based upon Town approval of each task.
2.7 Billing. Billing shall be annually by invoice within thirty (30) days of the rendering of the service and shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents, or other pertinent materials shall be submitted for Town review, even if only in partial or draft form.
Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows:
Invoices:
Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95031-0655
2.8 Availability of Records. The Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. The Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town.
2.9 Assignability and Subcontracting. The services to be performed under this Agreement are unique and personal to the Consultant. No portion of these services shall be assigned or subcontracted without the written consent of the Town.
2.10 Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. The Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. The Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by the Consultant or is based on allegations of the Consultant's negligent performance or wrongdoing.
2.11 Conflict of Interest. The Consultant understands that its professional responsibilities are solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. The Consultant has no business holdings or agreements with any individual
TruePoint Agreement for Consultant Services – DigEplan (LCT Software) 2021 - 2026
member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, The Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. The Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in the performance of this Agreement. If after employment of a person, the Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, the Consultant shall promptly notify the Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship.
2.12 Equal Employment Opportunity. The Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither the Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment and Housing Act.
III. INSURANCE AND INDEMNIFICATION
3.1 Minimum Scope of Insurance:
i. The Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm to an amount not less than: one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage. ii. The Consultant agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage.
iii. The Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. The Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences.
iv. The Consultant agrees to have and maintain, for the duration of the contract, professional liability insurance in amounts not less than one million dollars ($1,000,000) which is sufficient to insure the Consultant for professional errors or omissions in the performance of the particular scope of work under this Agreement.
General Liability:
TruePoint Agreement for Consultant Services – DigEplan (LCT Software) 2021 - 2026
i. The Town, its officers, officials, employees, and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; and premises owned or used by the Consultant. This requirement does not apply to the professional liability insurance required for professional errors and omissions.
ii. The Consultant's insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees, and volunteers. Any insurance or selfinsurances maintained by the Town, its officers, officials, employees, or volunteers shall be in excess of the Consultant's insurance and shall not contribute with it.
iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, officials, employees, or volunteers. iv. The Consultant's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability.
3.2 All Coverages. Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, or reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk.
3.3 Workers’ Compensation. In addition to these policies, the Consultant shall have and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town before beginning services under this Agreement. Further, the Consultant shall ensure that all subcontractors employed by the Consultant provide the required Workers' Compensation insurance for their respective employees.
3.4 Indemnification. The Consultant shall save, keep, hold harmless, and indemnify and defend the Town, its officers, agent, employees, and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant.
IV. GENERAL TERMS
4.1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.
TruePoint Agreement for Consultant Services – DigEplan (LCT Software) 2021 - 2026
4.2 Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara.
4.3 Termination of Agreement. The Town and the Consultant shall have the right to terminate this Agreement with or without cause by giving not less than fifteen days (15) written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, and reports performed to date by the Consultant. In the event of such termination, the Town shall pay the Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination.
4.4 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant.
4.5 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal.
4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to:
Town of Los Gatos
Attn: Town Clerk
110 E. Main Street
Los Gatos, CA 95030
TruePoint Solutions
Attn: Keith Hobday
3262 Penryn Road, Suite 100-B
Loomis, CA 95650
or personally delivered to the Consultant to such address or such other address as the Consultant designates in writing to the Town.
4.7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement in respect of the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings.
4.8 Entire Agreement. This Agreement, including all Exhibits, constitutes the complete and exclusive statement of the Agreement between the Town and the Consultant. No terms, conditions, understandings, or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party.
TruePoint Agreement for Consultant Services – DigEplan (LCT Software) 2021 - 2026
IN WITNESS WHEREOF, the Town and the Consultant have executed this Agreement.
Town of Los Gatos by:
Laurel Prevetti, Town Manager
Recommended by:
Joel Paulson,
Community Development Director
Consultant, by:
Keith Hobday, Partner
Approved as to Form:
Robert Schultz, Town Attorney
Attest:
Shelley Neis, MMC, CPMC
Town Clerk
Keith Hobday (May 5, 2021 10:20 PDT)
Keith Hobday
LCT Software LLC – MSA (v1.0 approved by legal June 2019) Between
TruePoint Solutions,
LCT Software
LLC
and
Town of Los Gatos, CA
Master Services Agreement
www.digeplan.com
Parties
1. This Master Service Agreement (this “Agreement”) is entered into as of the date of last signature (the “Effective Date”) by and between TruePoint Solutions (DigEplan reseller and service provider) located at 3262 Penryn RD suite 100-B, Loomis CA and LCT Software LLC a Florida corporation principally located at 4500, 140th Avenue North Suite, 101 Clearwater, FL 33762 (“LCT Software”), and the Town of Los Gatos, CA, 110 E. Main St., Los Gatos, CA 95030 (the Customer.) Background
a) The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet for the purpose of subscribers b) The customer wishes to use the Supplier's service in its business operations. c) The Supplier has agreed to provide, and the customer has agreed to take and pay for the Supplier's service subject to the terms and conditions of this agreement.
Agreed terms
1.1. Definitions - Unless otherwise defined in this Agreement, terms used herein have the same meanings as set out in the Exhibits to this Agreement (including any supplements or attachments thereto).
1.2. “Optional Services” refers to certain optional add-ons to the Subscription Service as may be offered by LCT Software from time to time.
1.3. “Professional Services” refers to LCT Software’s delivery, training, performance optimization and related services as set out in the Professional Services Terms. The Professional Services described in this Agreement are applicable to Customer if and as ordered.
1.4. “Professional Services Terms” refers to those additional Professional Services Terms and Conditions attached hereto at Exhibit D.
1.5. “Services” refers to the Subscription Service together with any Professional Services and/or Optional Services, as applicable.
1.6. “Subscription Service” refers to DigEplan’s cloud-based service designed to provide government entities with Integrated Electronic Plan Review.
1.7. “Subscription T’s & C’s” refers to the Subscription Terms and Conditions attached hereto at Exhibit C
Customer agrees that its purchase of the Services hereunder is neither contingent on the delivery of nor any oral or written comments about any future functionality or features of the Subscription Service.
2. Procurement of Services
Customer may purchase the Services by submitting orders in a form designated or approved by LCT Software (each, an “Order”) or, in the case of certain Professional Services, by executing Statements of Work designated or approved by LCT Software (each an “SOW”). Upon Order (or SOW) acceptance and subject to Customer’s payment of the corresponding Services Fees, LCT Software will make the Services available to Customer.
2.1. Governing Terms. The Subscription Service will be subject to this Agreement and the Subscription T’s & C’s for the Subscription Period and number of End Users as specified in each Order. Professional Services will be subject to this Agreement and the Professional Services Terms for the designated performance period as specific in the applicable Order or SOW. Any Optional Services will be subject to the Subscription Terms or such other documentation as designated by LCT Software.
2.2. Order Acceptance. No Order for Services will be deemed accepted by LCT Software unless and until LCT Software accepts such Order (or SOW) in writing. Any terms and conditions contained in any quote, invoice, purchase order or Order that are inconsistent with the terms and conditions of this Agreement will be deemed stricken, unless expressly agreed to in writing by LCT Software with explicit reference to the accepted terms and conditions. All Orders and SOWs will reference this Agreement. Upon acceptance of an Order as provided above, it will become part of this Agreement.
2.3. Adding End Users. If Customer desires to increase the number of End Users that are permitted to use the Subscription Service, a new Order must be issued for the additional End Users. LCT Software may, in its discretion, allow or require the initial Subscription Period of newly-purchased subscriptions to be adjusted to expire or renew simultaneously with Customer’s pre-existing subscription(s).
2.4. Optional Services. Purchase of Optional Services from LCT Software will be subject to any price quote LCT Software provides to Customer and the Order procedure described above. As designated by LCT Software at the time of Customer’s purchase, use of the Optional Services may be subject to Exhibit D or additional terms and conditions beyond or in lieu of those in Exhibit C.
3. Fees and Payment for Services
3.1. Fees. Customer will pay all fees for the Services per the prices quoted to Customer by LCT Software and finalized via an Order or SOW. Unless expressly set out in an Order or SOW, price increases will not apply to any Order or SOW that has already been accepted by LCT Software. Except as otherwise agreed by the parties in writing, Services Fees are quoted and payable in United States dollars, and Customer’s payment obligations are non-cancelable, and Fees paid are non-refundable.
3.2. Invoicing and Payment. TruePoint Solutions will invoice Customer in advance for the Services unless otherwise expressly agreed by the parties.
3.3. Subscription Service fees are due upon invoice and payable within forty-five (45) days of the invoice date. Subscription Service fees will be due no later than the first day of each Subscription Period to which the payment relates. If Customer orders additional End User quantities part-way through an existing Subscription Period, and the initial Subscription Period for the additional quantity is adjusted as described in Section 2.3, then the Subscription fee for such additional quantity will be pro-rated accordingly. Optional Services will be due at the same time as payment for the corresponding Subscription Service, or (if applicable) as otherwise specified in the applicable Order or governing terms. Subscription Service fees will be subject to an automatic annual increase by the percentage of the prior year’s Subscription Service fees (the “Uplift”) listed in the Order.
3.4. Professional Services fees and expenses are due upon invoice and payable within thirty (30) days of the invoice date. Professional Services fees and expenses may be subject to additional payment terms if and as designated in the applicable Order or SOW. Generally, Professional Services expenses will be billed as accrued and invoiced to Customer monthly in accordance with LCT Software’s expenses travel policy.
3.5. Billing Info & Overdue Charges. Customer is responsible for keeping LCT Software accurately and fully informed of Customer’s billing and contact information, including providing any purchase order numbers in advance of invoice issuance. If any Fees are not received from Customer by the due date, they will accrue interest at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
3.6. Overdue Payments. If any amount owing by Customer under this Agreement for any of the Services is thirty (30) or more days overdue, LCT Software may, without limiting LCT Software’s other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement (including any Order or SOW) so that all such obligations become immediately due and payable, suspend the Subscription Service and/or stop performance of the Professional Services until such amounts are paid in full.
3.7. Taxes. LCT Software’s Services fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If LCT Software has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides LCT Software with a valid tax exemption certificate authorized by the appropriate taxing authority prior to invoice issuance. For clarity, LCT Software is solely responsible for taxes assessable against it based on LCT Software income, property and employees.
4. Term and Termination
4.1. Term of Agreement. Unless terminated earlier in accordance with Section 4.2, this Agreement commences on the Effective Date and will continue with respect to the Services as enumerated below:
4.1.1. Subscription Service. The Subscription T’s & C’s at Exhibit C will commence on the date listed in the first Order and continue for a period of one (1) year (the “Initial Subscription Period”).
Thereafter, the Subscription Term will automatically renew for additional one-year periods (each a “Renewal Subscription Period”) unless and until either party gives written notice of non-renewal at least thirty (30) days in advance. Customer must send written notice of non-renewal to [email protected] Should Customer not provide written notice of non-renewal at least thirty (30) days in advance, then Customer is obligated to pay for the subsequent renewal in full.
4.1.2. Professional Services. If and as applicable to Customer, the Professional Services Terms at Exhibit D will commence on the date listed in the first Order or SOW and continue for the period designated in such Order or SOW. The effectiveness of the Professional Services Terms will be automatically extended to the last date specified in all SOWs and Professional Services Orders issued by LCT Software. Upon Customer request, LCT Software may, in its sole discretion, reinstate expired Professional Services Terms after a lapse in effectiveness under previously issued SOWs or Professional Services Orders.
4.2. Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach. The Services will be subject to additional termination provisions if and as designated in the respective Exhibits to this Agreement.
4.3. Effect of Termination. Termination or expiration of this Agreement will not terminate any thencurrent Customer Subscriptions to the Subscription Service (which will continue to be governed by the terms of Exhibit C, including the termination provisions set forth therein); provided, however, that in the case of termination of this Agreement by LCT Software for Customer’s uncured breach of this Agreement, LCT Software may simultaneously terminate any such Subscriptions. Subject to the Professional Services Terms, termination of this Agreement will terminate all on-going and planned Professional Services.
5. Additional customer terms.
Any terms and conditions required by Customer under applicable statute, judicial order or agency policy will be as stated in this Section 5 (the “Additional Customer Terms”). Alternatively, the Parties may set forth Additional Customer Terms at Exhibit C to this Agreement as warranted under the circumstances. Notwithstanding anything to the contrary in Section 6, the Additional Customer Terms will govern over the body of this Agreement in the event of a direct conflict of terms. In the absence of any inclusion of Additional Customer Terms in this Section 5 or at Exhibit C, the parties agree that no additional contractual obligations are intended in respect of the Services provided hereunder.
6. General
6.1 The parties acknowledge that the terms of each of the Exhibits to this Agreement (inclusive of any supplements or attachments thereto), including, but not limited to, the disclaimers, limitations of liability, and other general provisions thereof, are incorporated into and form a part of this Agreement.
6.2 In the event of a direct conflict between the body of this Agreement and the terms of the Exhibits hereto, the terms in the body of this Agreement will govern. Each party specifies its address set forth above for receipt of notices under this Agreement. This Agreement may be signed in one or more identical counterparts, each of which will be an original, but all of which together will constitute one instrument.
Subscription Fees and Term
1. Subscription Fees
2. The yearly Subscription Fees for 2021 shall amount to a total of $16,859. This is based for 16 user subscriptions. Each additional yearly subscription renewal will be subject to a 3% uplift.
3. Additional User Subscription Fees
Additional User Subscriptions may be purchased by the Agency in accordance with clause
2.3 at $89.00 per User Subscription per month for users 1 to 10, $79 per User Subscription per month for users 11 to 20. If more than 20 users’ subscriptions are requested subscriptions for user 21+ can be purchased by the Agency at $69.00 per User Subscription per month.
4. Subscription Term:
1-year, form July 1st, 2021 to June 30th, 2022 - $16,859 2-year, form July 1st, 2022 to June 30th, 2023 - $17,364 3-year, form July 1st, 2023 to June 30th, 2024 - $17,855 4-year, form July 1st, 2024 to June 30th, 2025 - $18,422 5-year, form July 1st, 2025 to June 30th, 2026 - $18,974 Exhibits List:
Exhibit A - Standard Support Policy
Exhibit B – Service Level Commitment
Exhibit C – Subscription Terms and Conditions
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Exhibit – A
Standard Support Policy
This LCT Software LLC’s SaaS Support Policy (“Support Policy”) is a policy governing the use of DigEplan’s software-as- service products (the “Service(s)”) under the terms of the services agreement (the “Agreement”) between LCT Software, LLC and its affiliates (“LCT Software”, “us” or “we”) and the purchaser of DigEplan’s Service (“Customer”). This Support Policy may be updated from time to time by LCT Software at its sole discretion.
General Requirements and Hours of Operation
Ticketing Support: LCT Software will provide access to a ticketing system, which will be available twenty-four (24) hours per day, seven (7) days per week. A qualified support specialist shall use commercially reasonably efforts to answer questions and resolve problems regarding the Subscription Service during normal business hours of Monday-Friday, 8:00 A.M. until 5:00 P.M PST.
Telephone and E-mail Support: DigEplan’s Customer Support will be available to Customer from 8:00 A.M. until 5:00 P.M. Pacific Standard Time Monday through Friday, excluding LCT Software LLC’s observed holidays.
Online Support Material: Available twenty-four (24) hours, seven (7) days a week, LCT Software will make available to Customer certain technical information in DigEplan’s online support database.
Updates
Updates may address security fixes, critical patches, general maintenance functionality, and documentation and shall be made available at LCT Software’s discretion. LCT Software is under no obligation to develop any future functionality or enhancements unless otherwise specified in the Agreement. If an update for the Service is made available to Customer pursuant to this Support Policy, it will automatically replace the previous version of the applicable Service.
Where practical, LCT Software will schedule Updates during non-business hours and will provide Customers with advance notice of all Updates.
Upgrade/Downgrade of Severity Level
If, during the Support Request process, the issue either warrants assignment of a higher severity level than currently assigned or no longer warrants the severity level currently assigned based on its current impact on the production operation of the SaaS offering, then the severity level will be upgraded or downgraded accordingly to the severity level that most appropriately reflects its current impact.
Third Party Product Support
If any third-party software is not supplied by LCT Software, LCT Software disclaims all support obligations for such third-party software, unless expressly specified by LCT Software in Customer’s Agreement.
Exclusions
The following Support Exclusions are not covered by this Support Policy: (a) Support required due to Customer’s or any End User’s or third party’s misuse of the Services; (b) Support during times outside of LCT Software regular business hours stated above; (c) Support necessitated by external factors outside of LCT Software’s reasonable control, including any force majeure event or Internet access or related problems beyond the Service demarcation point; (d) Support of or caused by customizations (if outside of LCT Software’s best practice recommendations), configuration changes, scripting, or data loss caused by or on behalf of Customer or any End User; (e) Support of or caused by Customer’s or any End User’s or third party’s equipment, software or other technology (other than third party equipment within LCT Software’s direct control); (f) Support to resolve or work-around conditions which cannot be reproduced in LCT Software’s support environment and (g) Support of any software add-ons supplied together with the Service (except where specified in the Agreement). Any support services falling within these Support Exclusions may be provided by LCT Software at its discretion and, if so provided, may be subject to additional pricing and support terms as specified by LCT Software Support Classifications
Error Classification Criteria
Critical Severity Issue (Priority 1) The Service is down or there is a major malfunction (deeming Service nonfunctional or severely affected), resulting in a business revenue loss and impacting the Service functionality for a majority of users. No reasonable workaround exists.
High Severity Issue (Priority 2) High loss of Service functionality or performance, impacting the Service functionality for a high number of users (e.g. Service response is very slow, day to day operations continue, but are impacted by the issue). No reasonable workaround available or the workaround is impractical.
Medium Severity Issue (Priority 3) Moderate loss of Service functionality or performance, impacting multiple users.
A convenient workaround exists (e.g. non-critical feature is unavailable or requires additional user intervention).
Low Severity Issue (Priority 4) Minor loss of Service functionality or feature in question.
Functional Definitions: For the purposes of error classification, essential or major functions include: data capture features, SLA and alarming features, performance management features and application performance problem resolution features.
Response Time: LCT Software shall use commercially reasonable efforts to respond to error reports in accordance with the table set forth below. LCT Software will use reasonable means to repair the error and keep Customer informed of progress. LCT Software makes no representations as to when a full resolution of the error may be made.
Error Classification Initial Response and
Acknowledgement
Updates Resolution Goal
Critical 1 Business Hour Daily LCT Software will put forth our best effort to provide a workaround, fix, or estimated
completion date within seventy-two (72) hours
after the problem has been diagnosed and/or
replicated.
High 4 Business Hours Weekly LCT Software will put forth our best effort to provide a workaround or fix or estimated
completion date within four (4) business days after
the problem has been diagnosed and/or
replicated.
Medium 8 Business Hours As
available
LCT Software will put forth our best effort to
provide a workaround or fix or estimated
completion date within seven (7) business days
after the problem has been diagnosed and/or
replicated.
Low 24 Business Hours None Resolution for the Issue may be released as a patch set or be incorporated into a future
schedule release of the product.
Exhibit B
SERVICE LEVEL COMMITMENT
This SaaS Service Level Commitment (“SLC”) is a policy governing the use of LCT software-as-service products (individually or collectively, the “Service” or “DigEplan”) under the terms of the LCT Software Master Services Agreement (the “Agreement”) between LCT Software LLC and its affiliates (“LCT Software”, “us” or “we”) and the purchaser of LCT Software’s Subscription Service (“Customer”).
Unless otherwise provided herein, this SLC is subject to the terms of the Agreement and capitalized terms will have the meaning specified in the Agreement. LCT Software reserves the right to change the terms of this SLC in accordance with the Agreement.
Definitions
“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the Service was Unavailable. Measurement of the Monthly Uptime Percentage excludes downtime resulting directly or indirectly from any SLC Exclusion. “Service Credit” is a dollar credit, calculated as set forth below, that LCT Software may credit back to an eligible Customer account.
“Unavailable” means, as applicable: (i) Customer is repeatedly unable to log into the Service; (ii) Customer experiences repeated connection request failures; (iii) Customer experiences lack of connectivity of external, public instances or sites lasting for more than ten (10) minutes; The foregoing events must be verifiable or replicable by LCT Software or its designee. Availability of Accela APIs which are used by DigEplan to connect, is expressly excluded from this SLC.
Service Commitment
LCT Software will use commercially reasonable efforts to make the Service available with a Monthly Uptime Percentage of at least 99.9%, in each calendar month of the Subscription Period (the “Commitment”). In the event the Service does not meet this Commitment, Customer will be eligible to receive a Service Credit as described below.
Scheduled & Emergency Maintenance
LCT Software will maintain certain scheduled maintenance windows during which regular, planned maintenance of the Service may be performed. LCT Software will use commercially reasonable efforts to provide Customer with no less than twenty-four (24) hours’ notice prior to Services unavailability due to planned maintenance. LCT Software’s standard maintenance window will generally fall between the hours of 12:00 AM (00:00) and 5:00 AM [05:00] on a day of our choosing, local time.
In exceptional circumstances where updates may take more time than the weekly time slot, it may be necessary to run updates over w-ends.
LCT Software will endeavour to provide as much notice as is practicable under the circumstances for patches, updates, fixes and other emergency maintenance activities which may be applied on an urgent basis.
LCT Software will provide three (3) business days’ notice prior to any planned network, server hardware, operating environment, or database modifications of a material nature.
Service Credits Monthly Uptime Percentage Service Credit Percentage Less than 99.9% but equal to or greater than 99.0% 2%
Less than 99.0% 5%
LCT Software will apply any Service Credits only against future Service payments otherwise due from Customer.
Service Credits will not entitle Customer to any refund or other payment from LCT Software.
Service Credits may not be transferred or applied to any other account.
Unless otherwise provided in the Agreement, Customer’s sole and exclusive remedy for any unavailability, nonperformance, or other failure by LCT Software to provide the Service is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLC.
Service Credit Requests
To receive a Service Credit, Customer must submit a claim in writing to [email protected] To be eligible for a Service Credit, the claim must be received by LCT Software in the calendar quarter in which the incident occurred and must include:
- the words “SLC Credit Request” in the subject line;
- the dates and times of each Unavailability incident that Customer is claiming; and - the quantity or scope of affected Users (as indicated by User ID, number of departments or similar metric); - Supporting evidence from the support service desk
If the Monthly Uptime Percentage of such Service Credit request is confirmed by us and is less than the Service Commitment, LCT Software will issue the Service Credit to Customer within one billing cycle following the month in which Customer’s request is confirmed by LCT Software. Customer’s failure to provide the request and other information as required above will disqualify Customer from receiving a Service Credit.
SLC Exclusions
The Service Commitment does not apply to any unavailability, suspension or termination of the Service or any Service performance issues: (i) caused by factors outside of LCT Software’s reasonable control, including any force majeure event or Internet access or related problems beyond the Service demarcation point; (ii) that result from customizations (if outside of LCT Software’s best practice recommendations), configuration changes by or on behalf of Customer or any End User; (iii) that result from Customer’s or any End User’s or third party’s equipment, software or other technology or integrations (other than third party equipment within LCT Software’s direct control); (iv) that result from any maintenance as provided for pursuant to the above terms; or (vii) arising from our suspension or termination of Customer’s right to use the Service in accordance with the Agreement (collectively, the “SLC Exclusions”). If availability is impacted by factors other than those used in the Monthly Uptime Percentage calculation, LCT Software may issue a Service Credit with consideration to pertinent factors as assessed by LCT Software in its sole discretion.
EXHIBIT C
Subscription Terms & Conditions
Purchase or use of the Service (defined below) is subject to these Subscription Terms and Conditions (these “Terms”).
1. DEFINITIONS
“Agreement” means these Terms and, if applicable, the written master service agreement or other written agreement between Customer and LCT Software LLC that incorporates these Terms by reference. “Communication Data” means any and all information transmitted, shared, or exchanged between Customer and any End User, or between End User and any third party (including any third-party network or website), using the Service, with respect to any transaction or other communication enabled by the Service, but excluding Security Data.
“Customer” means the entity that purchases a subscription to the Service, directly from LCT Software or through an authorized reseller, distributor, or other channel partner of LCT Software. "End Users" means individuals who are authorized by Customer to use the Service and for whom Customer has purchased a subscription to the Service. End Users may include but are not limited to Customer’s employees, contractors and agents. Each End User will be associated with a single, unique email address for purposes of accessing (and being identified within) the Service.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Optional Services” mean the optional add-ons to the Service that may be available for purchase either directly from LCT Software or through an authorized reseller or partner of LCT Software, as more particularly described or identified in the applicable Order.
“Order” means written orders to purchase subscriptions to use the Service (or, where applicable, to purchase Optional Services).
“Security Data” means any and all information provided by Customer or any End User to establish secure transmissions through use of the Service, including but not limited to personal information, information used to identify account names or numbers, routing information, usernames, passwords, access codes and prompts. “Service” or “Subscription Service” means the cloud-based network security service(s) for which Customer has obtained a subscription either directly from LCT Software or through an authorized reseller or other partner of LCT Software, as more particularly described in the applicable agreement or order under which such subscription was obtained. If and as designated in the Specifications, the Service may be inclusive of application programming interfaces (APIs) developed by LCT Software to enable interaction and integration with the Service. Unless otherwise specified herein or other applicable contractual terms, all references to “Service” will be deemed to include any and all Optional Services.
“Software” means any software (including client software for End Users’ devices) that LCT Software makes available for download or otherwise provides for use with the Service. “Subscription Period(s)” means the duration of Customers and End Users active, paid access to the Service, as designated in the Order(s).
“Supported Modification” means a configuration of or modification to the Service requested by Customer that can be consistently supported by LCT Software via APIs, does not require direct database changes and is capable of being tested and maintained by LCT Software.
2. AUTHORIZED USERS. Only End Users may access or use the Service under Customer’s account. Each End User may use any reasonable number of compatible devices for purposes of accessing the Service; provided that, LCT Software reserves the right to determine whether a number of devices is reasonable and, in its sole discretion, to place a corresponding cap on the number of devices. Unless expressly authorized by LCT Software, End User subscriptions cannot be shared or used by more than one individual but may be permanently reassigned to new End Users. The number of End User subscriptions purchased may be increased (under a new Order) but cannot be decreased during any Subscription Period.
3. USE OF THE SERVICE 3.1. LCT Software’s Responsibilities. LCT Software will: (i) provide to Customer support related to the Service in accordance with the LCT Software Support Terms accessible at https://zdrive.eu/gVe (which URL location and content may be updated from time to time by LCT Software) and (ii) provide the Service only in accordance with applicable laws and government regulations.
3.2. Customer’s Responsibilities. Customer will (i) be responsible for meeting LCT Software’s applicable minimum system requirements for use of the Service; (ii) be responsible for End Users’ compliance with these Terms and for any other activity (whether or not authorized by Customer) occurring under Customer’s account, (iii) be solely responsible for the accuracy, quality, integrity and legality of Communication Data, (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Service under its account, and notify LCT Software promptly of any such unauthorized access or use, and (v) use the Service only in accordance with the applicable documentation, laws and government regulations, and any written instructions provided by LCT Software to Customer.
3.3. Prohibitions. Customer will not, and will ensure that its End Users do not, (i) make the Service available to anyone other than End Users; (ii) sell, resell, rent, lease or transfer the Service in whole or in part to any third party (including Customer affiliates) without the express permission of LCT Software and execution of designated transfer documentation; (iii) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights; (iv) use the Service to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein; (vi) attempt to gain unauthorized access to the Service or any related systems or networks; or (vii) obtain intellectual property rights to the use of any component of the Services (inclusive of APIs).
3.4. Software. End Users may need to download and install client Software (as made available by LCT Software or other third party authorized by LCT Software) on each device through which they intend to use the Service.
All use of such Software will be governed by terms of the applicable license agreement or terms of use that accompanies or is made available in connection with the Software. Customer acknowledges that each End User (or authorized Customer representative) must accept such license agreement, and have Service-compatible device(s), to download, install, and/or use the Software. Nothing in these Terms will be deemed to grant to Customer rights of any kind in the Software.
3.5. Security Data and Privacy. Customer understands that failure to protect Security Data may allow an unauthorized person or entity to access the Service. In addition, Customer acknowledges that LCT Software generally does not have access to and cannot retrieve lost Security Data. If Customer loses Security Data, Customer may no longer have access to the Service. Customer agrees that: (i) Customer (or its End User) is solely responsible for collecting, inputting and updating all Security Data; (ii) LCT Software assumes no responsibility for supervision, management or control of Customer’s and End Users’ Security Data; and (iii) LCT Software assumes no responsibility for any fraudulent or unauthorized use of the Software or any portion of the Service. To the extent that LCT Software has access to any personally identifiable information gathered from Customer or from End Users in connection with the Service, such information will be governed by the provisions of the LCT’s Privacy Policy, a copy of which is available on the LCT Software’s website at https://www.digeplan.com/privacy-policy/
(which URL location and content may be updated from time to time by LCT Software).
4. PROPRIETARY RIGHTS
4.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, LCT Software reserves all rights, title and interest in and to the Service and any associated Software and documentation, including all
related Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
4.2. Restrictions. In addition to the other prohibitions set forth in these Terms, Customer will not and will ensure that its agents do not (i) create derivate works based on the Service, (ii) copy, frame or mirror any part or content of the Service, other than copying or framing on Customer’s own intranets or otherwise for Customer’s internal business purposes in accordance with LCT Software’s applicable documentation, (iii) reverse engineer the Service, or (iv) access the Service (inclusive of any APIs) in order to build or patent a competitive product or service or to copy any features, functions or graphics of the Service.
4.3. Communication Data Ownership. Customer reserves all its rights, title and interest in and to the Communication Data. No rights are granted to LCT Software hereunder with respect to the Communication Data, except that LCT Software may (i) store, copy, process, and transmit such Communication Data for purposes of providing the Service to Customer and (ii) otherwise utilize Communication Data if and as permitted by the LCT Software’s Privacy Policy.
4.4. Customer Suggestions. Customer grants LCT Software a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service (or LCT’s other software or services) any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or End Users relating to the operation or features of the Service.
5. CONFIDENTIALITY 5.1. Definition. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
5.2. Protection. Except as otherwise permitted in writing by the Disclosing Party and subject to the other terms of this Agreement (including LCT Software’s Privacy Policy), (i) the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, and (ii) the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with these Terms and who are legally bound to protect such Confidential Information consistent with these Terms.
5.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest, limit, or protect the disclosure.
6. WARRANTIES AND DISCLAIMERS 6.1. Specifications. Subject to the limitations set forth below, LCT Software warrants that the Service will operate in all material respects in accordance with the Specifications. As Customer’s sole and exclusive remedy and LCT Software’s entire liability for any breach of the foregoing warranty, LCT Software will use commercially reasonable efforts to modify the Service so that it conforms to foregoing warranty.
6.2. Service Level Commitment. During the Subscription Period, LCT Software further warrants that the Service will meet the performance level specified in the Service Level Commitment, as made available by LCT Software at https://zdrive.eu/gVe (which URL location and content may be updated from time to time by LCT Software).
The Service Level Commitment sets forth Customer’s sole and exclusive remedy for LCT Software’s failure to achieve the stated Service performance level.
6.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, LCT SOFTWARE DOES NOT MAKE ANY WARRANTIES
OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND LCT SOFTWARE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. LCT Software will not be responsible to the extent failure of the Service to operate as warranted is caused by or results from:
(i) any modification to the Service other than a Supported Modification; (ii) combination, operation or use of the Service with Customer’s or a third party's applications, software or systems; (iii) abuse, willful misconduct or negligence by anyone other than LCT Software or LCT Software’s designee; (iv) use of the Service other than in accordance with the terms of this Agreement and/or the applicable Specifications and LCT Software documentation or (v) any of the SLC Exclusions (as defined in the Service Level Commitment).
7. MUTUAL INDEMNIFICATION 7.1. Indemnification by Customer. Customer will defend (or settle), indemnify and hold harmless LCT Software, its officers, directors, employees and subcontractors, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from Customer’s or any End User’s use of the Service (other than any claim for which LCT Software is responsible under Section 7.2); or (ii) Customer or any End User has used the Service in a manner that violates these Terms or applicable law. Customer’s obligations under this Section 7.1 are contingent upon: (a) LCT Software providing Customer with prompt written notice of such claim; (b) LCT Software providing reasonable cooperation to Customer, at Customer’s expense, in defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.
7.2. Indemnification by LCT Software. Party will defend (or settle) any suit or action brought against Customer to the extent that it is based upon a claim that the Service, as furnished by LCT Software hereunder, infringes or misappropriates the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer. LCT Software’s obligations under this Section 7.2 are contingent upon:
(a) Customer providing LCT Software with prompt written notice of such claim; (b) Customer providing reasonable cooperation to LCT Software, at LCT Software’s expense, in the defense and settlement of such claim; and (c) LCT Software having sole authority to defend or settle such claim. THIS SECTION 7.2 STATES THE
ENTIRE OBLIGATION OF LCT SOFTWARE AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE. LCT Software will have no liability under this Section 7.2 to the extent that any third-party claims described herein are based on any combination of the Service with products, services, methods, or other elements not furnished by LCT Software, or any use of the Service in a manner that violates this Agreement or the instructions given to Customer by LCT Software.
7.3. Mitigation Measures. In the event that (i) any claim or potential claim covered by Section 7.2 arises or (ii) LCT Software’s right to provide the Service is enjoined or in LCT Software’s reasonable opinion is likely to be enjoined, LCT Software may, in its discretion, seek to mitigate the impact of such claim or injunction by obtaining the right to continue providing the Service, by replacing or modifying the Service to make it noninfringing, and/or by suspending or terminating Customer’s use of the Service with reasonable notice to Customer. In the case of a suspension or termination pursuant to this Section 7.3, LCT Software will refund to Customer a portion of fees prepaid by Customer for the then-current Subscription period, prorated to the portion of that Subscription period that is affected by the suspension or termination).
8. LIMITATIONS OF LIABILITY. EXCEPT THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 7.1 AND 7.2, IN NO EVENT WILL PARTY’S LIABILITY TO OTHER PARTY OR ANY THIRD PARTY ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, WHETHER IN
CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY
CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE INCIDENT.
8.1. Exclusion of Damages. NEITHER PARTY NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING,
PRODUCING, OR DELIVERING THE SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE
INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR
SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO
USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING EXCLUSIONS APPLY WHETHER OR NOT PARTY HAS
BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. NOTHING IN THESE TERMS EXCLUDES OR RESTRICTS THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE.
8.2. Security and Other Risks. Customer acknowledges that, notwithstanding security features of the Service, no product, hardware, software or service can provide a completely secure mechanism of electronic transmission or communication and that there are persons and entities, including enterprises, governments and quasi-governmental actors, as well as technologies, that may attempt to breach any electronic security measure.
Subject only to its limited warranty obligations set forth in Section 6, LCT Software will have no liability for any security breach caused by any such persons, entities, or technologies. Customer further acknowledges that the Service is not guaranteed to operate without interruptions, failures, or errors. If Customer or End Users use the Service in any application or environment where failure could cause personal injury, loss of life, or other substantial harm, Customer assumes any associated risks and will indemnify LCT Software and hold it harmless against those risks.
8.3. Basis of Bargain. THE LIMITATIONS OF LIABLITY AND EXCLUSIONS OF DAMAGES SET FORTH IN THIS SECTION 8 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LCT SOFTWARE AND CUSTOMER AND WILL APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW.
9. SUBSCRIPTION PERIOD AND TERMINATION 9.1. Term of End User Subscriptions. End User Subscriptions purchased by Customer commence on the start date specified in the applicable Order and, unless terminated earlier in accordance with these Terms, continue for the term specified therein (the “Subscription Period”). A Subscription Period and/or pricing there on may be subject to prorating where LCT Software deems it appropriate to cause newly purchased Subscriptions to expire or renew simultaneously with Customer’s preexisting Subscription(s). Except as otherwise specified in the applicable Order, all Subscriptions will automatically renew for additional Subscription Periods equal to the expiring Subscription Period or one year (whichever is shorter), unless either party gives the other at least thirty (30) days’ notice of non-renewal before the end of the relevant Subscription Period. The per-unit pricing during any such renewal Subscription Period may be subject to annual pricing increase as designated by LCT Software and notified to Customer. Pricing increases will be effective upon renewal of the Subscription Period and annually thereafter, unless otherwise agreed to by the parties. If either party provides notice of non-renewal as set forth above, Customer’s right to use the Service will terminate at the end of the relevant Subscription Period.
9.2. Termination or Suspension for Cause. A party may terminate any Subscription for cause upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such thirty (30) day period. In addition, LCT Software may, at is sole option, suspend or terminate Customer’s or any End User’s access to the Service, or any portion thereof, immediately if LCT Software, in its sole discretion: (i) if suspects that any person other than Customer or an End User is using or attempting to use Security Data, (ii) suspects that Customer or an End User is using the Service in a way that violates these Terms and could expose LCT Software or any other entity to harm or legal liability, or (iii) is or reasonably believes it is required to do so by law or court order.
9.3. Effect of Termination. Within thirty (30) calendar days following the end of Customer’s final Subscription Period, Customer may request in writing LCT Software to provide a copy of Customer’s data and associated documents in a database dump file format. LCT Software will comply in a timely manner with such request; provided that, Customer (a) pays all costs of and associated with such copying, as calculated at LCT Software then-current time-and-materials rates; and (b) pays any and all unpaid amounts due to LCT Software.
9.4. Surviving Provisions. Sections 4 (Proprietary Rights), 5 (Confidentiality), 6.2 (Disclaimer), 7 (Mutual Indemnification), 8 (Limitation of Liability), 9.3 (Effect of Termination), 9.4 (Surviving Provisions) and 10 (General Provisions) will survive any termination or expiration of this Agreement.
10. GENERAL 10.1. Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) sending by confirmed email if sent during the recipient’s normal business hours (or, if not, then on the next business day). Notices will be sent to the address specified by the recipient in writing when entering into this Agreement or establishing Customer’s account for the Service (or such other address as the recipient may thereafter specify by notice given in accordance with this Section
10.1).
10.2. Governing Law and Jurisdiction. This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of law’s provisions. The exclusive jurisdiction and venue of any action related to the Service or this Agreement will be the state and federal courts located in California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
10.3. Compliance with Laws. Each party will comply with all applicable laws and regulations with respect to its activities under this Agreement including, but not limited to, export laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, Customer will not permit End Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction.
10.4. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or similar relationship between the parties.
10.5. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
10.7. Assignment. Customer may not assign or transfer this Agreement, whether by operation of law or otherwise, without the prior written consent of LCT Software. Any attempted assignment or transfer, without such consent, will be void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.8. Publicity. Subject to the provisions of Section 5, each party will have the right to publicly announce the existence of the business relationship between parties. In addition, during the Subscription Period of Customer’s Service use, LCT Software may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on LCT Software’s websites and marketing materials to identify Customer as LCT Software’s customer, and for providing the Service to Customer; provided that, LCT Software will use commercially reasonable efforts to adhere to any usage guidelines furnished by Customer with respect to Customer’s Marks.
10.9. Force Majeure. The Parties will not be liable for any delay or failure to perform under this Agreement to the extent such delay or failure results from circumstances or causes beyond the reasonable control of the Party.
10.10. Entire Agreement. These Terms, including any attachments hereto as mutually agreed upon by the Parties, constitute the entire agreement between the parties concerning its subject matter and supersedes all prior communications, agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by a duly authorized representative of each party against whom the modification,
amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no additional or conflicting terms or conditions stated in Customer’s order documentation will be incorporated into or form any part of these Terms, and all such terms or conditions will be null.
11.5. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this PSA will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.6. Severability. If any provision of this PSA is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this PSA will remain in effect.
11.7. Assignment. Customer may not assign or transfer this PSA or any SOW or Order hereunder, whether by operation of law or otherwise, without the prior written consent of LCT Software. Any attempted assignment or transfer, without such consent, will be void. Subject to the foregoing, this PSA will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8. Publicity. Subject to the provisions of Section 9, each party will have the right to publicly announce the existence of the business relationship between parties. In addition, during the Subscription Period of Customer’s use of the Service, LCT Software may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on LCT Software’s website and marketing materials to identify Customer as LCT Software’s customer, and for providing the Service to Customer; provided that, LCT Software will use commercially reasonable efforts to adhere to any usage guidelines furnished by Customer with respect to Customer’s Marks.
11.9. Force Majeure. LCT Software will not be liable for any delay or failure to perform under this PSA to the extent such delay or failure results from circumstances or causes beyond the reasonable control of LCT Software.
11.10. Entire Agreement. The parties acknowledge that they have had previous discussions related to the performance by LCT Software of Professional Services for Customer and the possible strategies which may be used by LCT Software to implement the Subscription Service to achieve the requirements identified by Customer. This PSA, together with mutually agreed-upon attachments that are incorporated by reference herein, constitutes the entire agreement between the parties concerning its subject matter and supersedes all prior communications, agreements, proposals or representations, written or oral, concerning its subject matter.
Notwithstanding any language to the contrary therein, no additional or conflicting terms or conditions stated in Customer’s Order, any SOW or other order documentation will be incorporated into or form any part of this PSA, and all such terms or conditions will be null. Under no circumstances will the terms, conditions or provisions of any RFP, purchase order, invoice or other administrative document issued by Customer in connection to this PSA be deemed to modify, alter or expand this PSA, regardless of any failure of LCT Software to object to such terms, provisions, or conditions. No other act, document, usage, custom or waiver will be deemed to amend or modify this PSA unless agreed to in writing signed by a duly authorized representative of both parties. In the event of any inconsistency or conflict between the terms of this PSA, and SOW, the terms of the SOW will control with regards to the project described.
TOWN OF LOS GATOS
PLANNING COMMISSION
REPORT
MEETING DATE: 05/04/2021
ITEM NO: ?
DATE: April 27, 2021
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Authorize the Town Manager to Execute a Five-year Agreement for Consultant Services with TruePoint Solutions DigEplan (LCT Software) for Electronic Plan Review Services in an Amount Not to Exceed $89,474 Over the Life of the Agreement. Amount Annually Will Vary with a 3 percent increase each year with the first year not to exceed $16, 859.
RECOMMENDATION:
Authorize the Town Manager to Execute a Five-year Agreement for Consultant Services with TruePoint Solutions DigEplan (LCT Software) for Electronic Plan Review Services in an Amount Not to Exceed $89,474 Over the Life of the Agreement. Amount Annually Will Vary with a 3 percent increase each year with the first year not to exceed $16, 859.
BACKGROUND:
The Town has been working with TruePoint Solutions since 2011 and TruePoint Solutions DigEplan (LCT Software) since May 1, 2020 to provide electronic plan review services for the Community Development Department during the Covid-19 pandemic.
DISCUSSION:
The original 2020 Agreement was for a 1-year term at $6,480, totaling $6,480. Subsequent amendments increased the number of licenses and the rate to the current annual rate of $16,859. The proposed increase annually is 3 percent from the current contract rate over the five-year term of the agreement.
PAGE 2 OF 2
SUBJECT: TruePoint Solutions DigEplan (LCT Software)
DATE: May 4, 2021
PREPARED BY: JOEL PAULSON,
Director of Community Development
Reviewed by:
Community Development Director, Town Attorney, Assistant Town Manager, Town Manager 110 E. Main Street Los Gatos, CA 95030 භϰϬϲ-354-6832
www.losgatosca.gov
DISCUSSION (continued):
TruePoint Solutions DigEplan (LCT Software) is sole source vendor. TruePoint is the only company in the US that is certified by LCT Software and the only supplier of the software DigEplan who is authorized to implement, quote, and sell for them.
CONCLUSION:
TruePoint’s consulting services assist the Town in serving the land use needs of the community.
Based on TruePoint’s extensive knowledge of the Town’s Accela implementation, excellent support history with the Town, and competitive pricing, staff recommends that the Town Council authorize the Town Manager to enter into an Agreement for the software licensing and related services not to exceed $89,474 for a five-year term.
COORDINATION:
This report was coordinated with the Community Development Department, Information Technology Department, Town Manager’s Office, Finance Department, and Town Attorney.
FISCAL IMPACT:
The funds are available in the Information Technology budget.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
ATTACHMENTS:
1. Sole Source
2. Draft Agreement for Consultant Services
3. Master Services Agreement
ANY PROPRIETOR/PARTNER/EXECUTIVE
OFFICER/MEMBER EXCLUDED?
INSR ADDL SUBR
LTR INSD WVD
PRODUCER CONTACT
NAME:
PHONE FAX (A/C, No, Ext): (A/C, No):
E-MAIL
ADDRESS:
INSURER A :
INSURED INSURER B :
INSURER C :
INSURER D :
INSURER E :
INSURER F :
POLICY NUMBER POLICY EFF POLICY EXP TYPE OF INSURANCE (MM/DD/YYYY) (MM/DD/YYYY) LIMITS
AUTOMOBILE LIABILITY
UMBRELLA LIAB
EXCESS LIAB
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required)
AUTHORIZED REPRESENTATIVE
EACH OCCURRENCE $
DAMAGE TO RENTED CLAIMS-MADE OCCUR PREMISES (Ea occurrence) $ MED EXP (Any one person) $
PERSONAL & ADV INJURY $
GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $
PRO- POLICY LOC JECT PRODUCTS - COMP/OP AGG
OTHER: $
COMBINED SINGLE LIMIT
(Ea accident) $
ANY AUTO BODILY INJURY (Per person) $
OWNED SCHEDULED
AUTOS ONLY AUTOS BODILY INJURY (Per accident) $
HIRED NON-OWNED PROPERTY DAMAGE
AUTOS ONLY AUTOS ONLY (Per accident) $
$
OCCUR EACH OCCURRENCE
CLAIMS-MADE AGGREGATE $
DED RETENTION $
PER OTHSTATUTE ER
E.L. EACH ACCIDENT
E.L. DISEASE - EA EMPLOYEE $
If yes, describe under
DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT INSURER(S) AFFORDING COVERAGE NAIC #
COMMERCIAL GENERAL LIABILITY
Y / N
N / A
(Mandatory in NH)
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS.
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed.
If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
CERTIFICATE HOLDER CANCELLATION
ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved.
CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY)
$
$
$
$
$
The ACORD name and logo are registered marks of ACORD
4/16/2021
(530) 823-3733 (530) 823-3640
11000
True Point Solutions LLC
3262 Penryn Rd Ste 100B
Loomis, CA 95650
A 1,000,000
XX 57-SBA-AX4262 2/1/2021 2/1/2022 1,000,000
Hired & NonOwned Aut 10,000
1,000,000
2,000,000
2,000,000
THIRD PARTY CYB 500,000
A 1,000,000
57-SBA-AX4262 2/1/2021 2/1/2022
A 2,000,000
57-SBA-AX4262 2/1/2021 2/1/2022 2,000,000
10,000
A Claims Made E & O 57-SBA-AX4262 2/1/2021 2/1/2022 Aggregate 2,000,000 RE: Work performed by the named insured on behalf of the certificate holder Town of Los Gatos, its officers, officials, employees, agents and volunteers are included as additional insured in regard to general liability per SS 00 08 04 05, attached with primary wording and waiver of subrogation.
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
TRUEPOI-01 ASPANNINGER
George Petersen Insurance Agency, Inc.
PO Box 6675
Auburn, CA 95604 [email protected]
Sentinel Insurance Company Ltd
X
X
X
X X
XX
X
X
X
,++
Form SS 00 08 04 05
QUICK REFERENCE
BUSINESS LIABILITY COVERAGE FORM
READ YOUR POLICY CAREFULLY
BUSINESS LIABILITY COVERAGE FORM Beginning on Page
A. COVERAGES 1
Business Liability 1
Medical Expenses 2
Coverage Extension - Supplementary Payments 2
B. EXCLUSIONS 3
C. WHO IS AN INSURED 10
D. LIABILITY AND MEDICAL EXPENSES
LIMITS OF INSURANCE 14
E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 15
1. Bankruptcy 15
2. Duties In The Event Of Occurrence, Offense, Claim Or Suit 15
3. Financial Responsibility Laws 16
4. Legal Action Against Us 16
5. Separation Of Insureds 16
6. Representations 16
7. Other Insurance 16
8. Transfer Of Rights Of Recovery Against Others To Us 17 F. OPTIONAL ADDITIONAL INSURED COVERAGES 18
Additional Insureds 18
G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 20
Form SS 00 08 04 05 Page 1 of 24
© 2005, The Hartford
BUSINESS LIABILITY COVERAGE FORM
Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered.
Throughout this policy the words "you" and "your" refer to the Named Insured shown in the Declarations. The words "we", "us" and "our" refer to the stock insurance company member of The Hartford providing this insurance.
The word "insured" means any person or organization qualifying as such under Section C. - Who Is An Insured.
Other words and phrases that appear in quotation marks have special meaning. Refer to Section G. - Liability And Medical Expenses Definitions.
A. COVERAGES
1. BUSINESS LIABILITY COVERAGE (BODILY
INJURY, PROPERTY DAMAGE, PERSONAL
AND ADVERTISING INJURY)
Insuring Agreement
a. We will pay those sums that the insured
becomes legally obligated to pay as
damages because of "bodily injury",
"property damage" or "personal and
advertising injury" to which this insurance
applies. We will have the right and duty to
defend the insured against any "suit"
seeking those damages. However, we will
have no duty to defend the insured against
any "suit" seeking damages for "bodily
injury", "property damage" or "personal and
advertising injury" to which this insurance
does not apply.
We may, at our discretion, investigate any
"occurrence" or offense and settle any claim
or "suit" that may result. But:
(1) The amount we will pay for damages is
limited as described in Section D. -
Liability And Medical Expenses Limits
Of Insurance; and
(2) Our right and duty to defend ends when
we have used up the applicable limit of
insurance in the payment of judgments,
settlements or medical expenses to which
this insurance applies.
No other obligation or liability to pay sums or
perform acts or services is covered unless
explicitly provided for under Coverage
Extension - Supplementary Payments.
b. This insurance applies:
(1) To "bodily injury" and "property
damage" only if:
(a) The "bodily injury" or "property
damage" is caused by an
"occurrence" that takes place in the
"coverage territory";
(b) The "bodily injury" or "property
damage" occurs during the policy
period; and
(c) Prior to the policy period, no insured
listed under Paragraph 1. of Section
C. – Who Is An Insured and no
"employee" authorized by you to give
or receive notice of an "occurrence"
or claim, knew that the "bodily injury"
or "property damage" had occurred,
in whole or in part. If such a listed
insured or authorized "employee"
knew, prior to the policy period, that
the "bodily injury" or "property
damage" occurred, then any
continuation, change or resumption
of such "bodily injury" or "property
damage" during or after the policy
period will be deemed to have been
known prior to the policy period.
(2) To "personal and advertising injury"
caused by an offense arising out of your
business, but only if the offense was
committed in the "coverage territory"
during the policy period.
c. "Bodily injury" or "property damage" will be
deemed to have been known to have
occurred at the earliest time when any
insured listed under Paragraph 1. of Section
C. – Who Is An Insured or any "employee"
authorized by you to give or receive notice
of an "occurrence" or claim:
(1) Reports all, or any part, of the "bodily
injury" or "property damage" to us or
any other insurer;
Policy Number: 57-SBA-AX4262
BUSINESS LIABILITY COVERAGE FORM
(2) Receives a written or verbal demand or
claim for damages because of the "bodily
injury" or "property damage"; or
(3) Becomes aware by any other means that
"bodily injury" or "property damage" has
occurred or has begun to occur.
d. Damages because of "bodily injury" include
damages claimed by any person or
organization for care, loss of services or
death resulting at any time from the "bodily
injury".
e. Incidental Medical Malpractice
(1) "Bodily injury" arising out of the
rendering of or failure to render
professional health care services as a
physician, dentist, nurse, emergency
medical technician or paramedic shall
be deemed to be caused by an
"occurrence", but only if:
(a) The physician, dentist, nurse,
emergency medical technician or
paramedic is employed by you to
provide such services; and
(b) You are not engaged in the
business or occupation of providing
such services.
(2) For the purpose of determining the
limits of insurance for incidental medical
malpractice, any act or omission
together with all related acts or
omissions in the furnishing of these
services to any one person will be
considered one "occurrence".
2. MEDICAL EXPENSES
Insuring Agreement
a. We will pay medical expenses as described
below for "bodily injury" caused by an
accident:
(1) On premises you own or rent;
(2) On ways next to premises you own or
rent; or
(3) Because of your operations;
provided that:
(1) The accident takes place in the
"coverage territory" and during the
policy period;
(2) The expenses are incurred and reported
to us within three years of the date of
the accident; and
(3) The injured person submits to
examination, at our expense, by
physicians of our choice as often as we
reasonably require.
b. We will make these payments regardless of
fault. These payments will not exceed the
applicable limit of insurance. We will pay
reasonable expenses for:
(1) First aid administered at the time of an
accident;
(2) Necessary medical, surgical, x-ray and
dental services, including prosthetic
devices; and
(3) Necessary ambulance, hospital,
professional nursing and funeral
services.
3. COVERAGE EXTENSION -
SUPPLEMENTARY PAYMENTS
a. We will pay, with respect to any claim or
"suit" we investigate or settle, or any "suit"
against an insured we defend:
(1) All expenses we incur.
(2) Up to $1,000 for the cost of bail bonds
required because of accidents or traffic
law violations arising out of the use of
any vehicle to which Business Liability
Coverage for "bodily injury" applies. We
do not have to furnish these bonds.
(3) The cost of appeal bonds or bonds to
release attachments, but only for bond
amounts within the applicable limit of
insurance. We do not have to furnish
these bonds.
(4) All reasonable expenses incurred by the
insured at our request to assist us in the
investigation or defense of the claim or
"suit", including actual loss of earnings
up to $500 a day because of time off
from work.
(5) All costs taxed against the insured in
the "suit".
(6) Prejudgment interest awarded against
the insured on that part of the judgment
we pay. If we make an offer to pay the
applicable limit of insurance, we will not
pay any prejudgment interest based on
that period of time after the offer.
(7) All interest on the full amount of any
judgment that accrues after entry of the
judgment and before we have paid,
offered to pay, or deposited in court the
part of the judgment that is within the
applicable limit of insurance.
Any amounts paid under (1) through (7)
above will not reduce the limits of insurance.
BUSINESS LIABILITY COVERAGE FORM
Form SS 00 08 04 05 Page 3 of 24
b. If we defend an insured against a "suit"
and an indemnitee of the insured is also
named as a party to the "suit", we will
defend that indemnitee if all of the
following conditions are met:
(1) The "suit" against the indemnitee
seeks damages for which the insured
has assumed the liability of the
indemnitee in a contract or agreement
that is an "insured contract";
(2) This insurance applies to such liability
assumed by the insured;
(3) The obligation to defend, or the cost of
the defense of, that indemnitee, has
also been assumed by the insured in
the same "insured contract";
(4) The allegations in the "suit" and the
information we know about the
"occurrence" are such that no conflict
appears to exist between the interests
of the insured and the interest of the
indemnitee;
(5) The indemnitee and the insured ask
us to conduct and control the defense
of that indemnitee against such "suit"
and agree that we can assign the
same counsel to defend the insured
and the indemnitee; and
(6) The indemnitee:
(a) Agrees in writing to:
(i) Cooperate with us in the
investigation, settlement or
defense of the "suit";
(ii) Immediately send us copies of
any demands, notices,
summonses or legal papers
received in connection with
the "suit";
(iii) Notify any other insurer whose
coverage is available to the
indemnitee; and
(iv) Cooperate with us with
respect to coordinating other
applicable insurance available
to the indemnitee; and
(b) Provides us with written
authorization to:
(i) Obtain records and other
information related to the
"suit"; and
(ii) Conduct and control the
defense of the indemnitee in
such "suit".
So long as the above conditions are met,
attorneys' fees incurred by us in the
defense of that indemnitee, necessary
litigation expenses incurred by us and
necessary litigation expenses incurred
by the indemnitee at our request will be
paid as Supplementary Payments.
Notwithstanding the provisions of
Paragraph 1.b.(b) of Section B. –
Exclusions, such payments will not be
deemed to be damages for "bodily
injury" and "property damage" and will
not reduce the Limits of Insurance.
Our obligation to defend an insured's
indemnitee and to pay for attorneys' fees
and necessary litigation expenses as
Supplementary Payments ends when:
(1) We have used up the applicable limit
of insurance in the payment of
judgments or settlements; or
(2) The conditions set forth above, or the
terms of the agreement described in
Paragraph (6) above, are no longer met.
B. EXCLUSIONS
1. Applicable To Business Liability Coverage
This insurance does not apply to:
a. Expected Or Intended Injury
(1) "Bodily injury" or "property damage"
expected or intended from the
standpoint of the insured. This
exclusion does not apply to "bodily
injury" or "property damage" resulting
from the use of reasonable force to
protect persons or property; or
(2) "Personal and advertising injury" arising
out of an offense committed by, at the
direction of or with the consent or
acquiescence of the insured with the
expectation of inflicting "personal and
advertising injury".
b. Contractual Liability
(1) "Bodily injury" or "property damage"; or
(2) "Personal and advertising injury"
for which the insured is obligated to pay
damages by reason of the assumption of
liability in a contract or agreement.
This exclusion does not apply to liability
for damages because of:
(a) "Bodily injury", "property damage" or
"personal and advertising injury" that
the insured would have in the
absence of the contract or
agreement; or
BUSINESS LIABILITY COVERAGE FORM
(b) "Bodily injury" or "property damage"
assumed in a contract or agreement
that is an "insured contract",
provided the "bodily injury" or
"property damage" occurs
subsequent to the execution of the
contract or agreement. Solely for
the purpose of liability assumed in
an "insured contract", reasonable
attorneys' fees and necessary
litigation expenses incurred by or for
a party other than an insured are
deemed to be damages because of
"bodily injury" or "property damage"
provided:
(i) Liability to such party for, or for
the cost of, that party’s defense
has also been assumed in the
same "insured contract", and
(ii) Such attorneys' fees and
litigation expenses are for
defense of that party against a
civil or alternative dispute
resolution proceeding in which
damages to which this
insurance applies are alleged.
c. Liquor Liability
"Bodily injury" or "property damage" for
which any insured may be held liable by
reason of:
(1) Causing or contributing to the
intoxication of any person;
(2) The furnishing of alcoholic beverages to
a person under the legal drinking age or
under the influence of alcohol; or
(3) Any statute, ordinance or regulation
relating to the sale, gift, distribution or
use of alcoholic beverages.
This exclusion applies only if you are in the
business of manufacturing, distributing,
selling, serving or furnishing alcoholic
beverages.
d. Workers' Compensation And Similar
Laws
Any obligation of the insured under a
workers' compensation, disability benefits
or unemployment compensation law or
any similar law.
e. Employer’s Liability
"Bodily injury" to:
(1) An "employee" of the insured arising
out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the
conduct of the insured’s business, or
(2) The spouse, child, parent, brother or
sister of that "employee" as a
consequence of (1) above.
This exclusion applies:
(1) Whether the insured may be liable as
an employer or in any other capacity;
and
(2) To any obligation to share damages
with or repay someone else who must
pay damages because of the injury.
This exclusion does not apply to liability
assumed by the insured under an "insured
contract".
f. Pollution
(1) "Bodily injury", "property damage" or
"personal and advertising injury"
arising out of the actual, alleged or
threatened discharge, dispersal,
seepage, migration, release or escape
of "pollutants":
(a) At or from any premises, site or
location which is or was at any
time owned or occupied by, or
rented or loaned to any insured.
However, this subparagraph does
not apply to:
(i) "Bodily injury" if sustained within
a building and caused by
smoke, fumes, vapor or soot
produced by or originating from
equipment that is used to heat,
cool or dehumidify the building,
or equipment that is used to
heat water for personal use, by
the building's occupants or their
guests;
(ii) "Bodily injury" or "property
damage" for which you may be
held liable, if you are a
contractor and the owner or
lessee of such premises, site or
location has been added to your
policy as an additional insured
with respect to your ongoing
operations performed for that
additional insured at that
premises, site or location and
such premises, site or location
is not and never was owned or
occupied by, or rented or
loaned to, any insured, other
than that additional insured; or
BUSINESS LIABILITY COVERAGE FORM
Form SS 00 08 04 05 Page 5 of 24
(iii) "Bodily injury" or "property
damage" arising out of heat,
smoke or fumes from a
"hostile fire";
(b) At or from any premises, site or
location which is or was at any
time used by or for any insured or
others for the handling, storage,
disposal, processing or treatment
of waste;
(c) Which are or were at any time
transported, handled, stored,
treated, disposed of, or processed
as waste by or for:
(i) Any insured; or
(ii) Any person or organization for
whom you may be legally
responsible;
(d) At or from any premises, site or
location on which any insured or
any contractors or subcontractors
working directly or indirectly on
any insured's behalf are
performing operations if the
"pollutants" are brought on or to
the premises, site or location in
connection with such operations
by such insured, contractor or
subcontractor. However, this
subparagraph does not apply to:
(i) "Bodily injury" or "property
damage" arising out of the
escape of fuels, lubricants or
other operating fluids which are
needed to perform the normal
electrical, hydraulic or
mechanical functions
necessary for the operation of
"mobile equipment" or its parts,
if such fuels, lubricants or other
operating fluids escape from a
vehicle part designed to hold,
store or receive them. This
exception does not apply if the
"bodily injury" or "property
damage" arises out of the
intentional discharge, dispersal
or release of the fuels,
lubricants or other operating
fluids, or if such fuels,
lubricants or other operating
fluids are brought on or to the
premises, site or location with
the intent that they be
discharged, dispersed or
released as part of the
operations being performed
by such insured, contractor or
subcontractor;
(ii) "Bodily injury" or "property
damage" sustained within a
building and caused by the
release of gases, fumes or
vapors from materials brought
into that building in connection
with operations being performed
by you or on your behalf by a
contractor or subcontractor; or
(iii) "Bodily injury" or "property
damage" arising out of heat,
smoke or fumes from a
"hostile fire"; or
(e) At or from any premises, site or
location on which any insured or any
contractors or subcontractors
working directly or indirectly on any
insured’s behalf are performing
operations if the operations are to
test for, monitor, clean up, remove,
contain, treat, detoxify or neutralize,
or in any way respond to, or assess
the effects of, "pollutants".
(2) Any loss, cost or expense arising out
of any:
(a) Request, demand, order or statutory
or regulatory requirement that any
insured or others test for, monitor,
clean up, remove, contain, treat,
detoxify or neutralize, or in any way
respond to, or assess the effects of,
"pollutants"; or
(b) Claim or suit by or on behalf of a
governmental authority for
damages because of testing for,
monitoring, cleaning up, removing,
containing, treating, detoxifying or
neutralizing, or in any way
responding to, or assessing the
effects of, "pollutants".
However, this paragraph does not
apply to liability for damages because
of "property damage" that the insured
would have in the absence of such
request, demand, order or statutory or
regulatory requirement, or such claim
or "suit" by or on behalf of a
governmental authority.
BUSINESS LIABILITY COVERAGE FORM
g. Aircraft, Auto Or Watercraft
"Bodily injury" or "property damage" arising
out of the ownership, maintenance, use or
entrustment to others of any aircraft, "auto"
or watercraft owned or operated by or rented
or loaned to any insured. Use includes
operation and "loading or unloading".
This exclusion applies even if the claims
against any insured allege negligence or
other wrongdoing in the supervision, hiring,
employment, training or monitoring of others
by that insured, if the "occurrence" which
caused the "bodily injury" or "property
damage" involved the ownership,
maintenance, use or entrustment to others of
any aircraft, "auto" or watercraft that is
owned or operated by or rented or loaned to
any insured.
This exclusion does not apply to:
(1) A watercraft while ashore on premises
you own or rent;
(2) A watercraft you do not own that is:
(a) Less than 51 feet long; and
(b) Not being used to carry persons
for a charge;
(3) Parking an "auto" on, or on the ways
next to, premises you own or rent,
provided the "auto" is not owned by or
rented or loaned to you or the insured;
(4) Liability assumed under any "insured
contract" for the ownership,
maintenance or use of aircraft or
watercraft;
(5) "Bodily injury" or "property damage"
arising out of the operation of any of
the equipment listed in Paragraph f.(2)
or f.(3) of the definition of "mobile
equipment"; or
(6) An aircraft that is not owned by any
insured and is hired, chartered or loaned
with a paid crew. However, this
exception does not apply if the insured
has any other insurance for such "bodily
injury" or "property damage", whether
the other insurance is primary, excess,
contingent or on any other basis.
h. Mobile Equipment
"Bodily injury" or "property damage"
arising out of:
(1) The transportation of "mobile equipment"
by an "auto" owned or operated by or
rented or loaned to any insured; or
(2) The use of "mobile equipment" in, or
while in practice or preparation for, a
prearranged racing, speed or
demolition contest or in any stunting
activity.
i. War
"Bodily injury", "property damage" or
"personal and advertising injury", however
caused, arising, directly or indirectly, out of:
(1) War, including undeclared or civil war;
(2) Warlike action by a military force,
including action in hindering or
defending against an actual or
expected attack, by any government,
sovereign or other authority using
military personnel or other agents; or
(3) Insurrection, rebellion, revolution,
usurped power, or action taken by
governmental authority in hindering or
defending against any of these.
j. Professional Services
"Bodily injury", "property damage" or
"personal and advertising injury" arising
out of the rendering of or failure to render
any professional service. This includes
but is not limited to:
(1) Legal, accounting or advertising
services;
(2) Preparing, approving, or failing to
prepare or approve maps, shop
drawings, opinions, reports, surveys,
field orders, change orders, designs or
drawings and specifications;
(3) Supervisory, inspection, architectural
or engineering activities;
(4) Medical, surgical, dental, x-ray or
nursing services treatment, advice or
instruction;
(5) Any health or therapeutic service
treatment, advice or instruction;
(6) Any service, treatment, advice or
instruction for the purpose of
appearance or skin enhancement, hair
removal or replacement or personal
grooming;
(7) Optical or hearing aid services
including the prescribing, preparation,
fitting, demonstration or distribution of
ophthalmic lenses and similar
products or hearing aid devices;
BUSINESS LIABILITY COVERAGE FORM
Form SS 00 08 04 05 Page 7 of 24
(8) Optometry or optometric services
including but not limited to examination
of the eyes and the prescribing,
preparation, fitting,demonstration or
distribution of ophthalmic lenses and
similar products;
(9) Any:
(a) Body piercing (not including ear
piercing);
(b) Tattooing, including but not limited
to the insertion of pigments into or
under the skin; and
(c) Similar services;
(10) Services in the practice of pharmacy;
and
(11) Computer consulting, design or
programming services, including web
site design.
Paragraphs (4) and (5) of this exclusion do
not apply to the Incidental Medical
Malpractice coverage afforded under
Paragraph 1.e. in Section A. - Coverages.
k. Damage To Property
"Property damage" to:
(1) Property you own, rent or occupy,
including any costs or expenses
incurred by you, or any other person,
organization or entity, for repair,
replacement, enhancement,
restoration or maintenance of such
property for any reason, including
prevention of injury to a person or
damage to another's property;
(2) Premises you sell, give away or
abandon, if the "property damage" arises
out of any part of those premises;
(3) Property loaned to you;
(4) Personal property in the care, custody
or control of the insured;
(5) That particular part of real property on
which you or any contractors or
subcontractors working directly or
indirectly on your behalf are performing
operations, if the "property damage"
arises out of those operations; or
(6) That particular part of any property
that must be restored, repaired or
replaced because "your work" was
incorrectly performed on it.
Paragraphs (1), (3) and (4) of this
exclusion do not apply to "property
damage" (other than damage by fire) to
premises, including the contents of such
premises, rented to you for a period of 7 or
fewer consecutive days. A separate Limit
of Insurance applies to Damage To
Premises Rented To You as described in
Section D. - Limits Of Insurance.
Paragraph (2) of this exclusion does not
apply if the premises are "your work" and
were never occupied, rented or held for
rental by you.
Paragraphs (3) and (4) of this exclusion do
not apply to the use of elevators.
Paragraphs (3), (4), (5) and (6) of this
exclusion do not apply to liability assumed
under a sidetrack agreement.
Paragraphs (3) and (4) of this exclusion do
not apply to "property damage" to
borrowed equipment while not being used
to perform operations at a job site.
Paragraph (6) of this exclusion does not
apply to "property damage" included in the
"products-completed operations hazard".
l. Damage To Your Product
"Property damage" to "your product"
arising out of it or any part of it.
m. Damage To Your Work
"Property damage" to "your work" arising
out of it or any part of it and included in the
"products-completed operations hazard".
This exclusion does not apply if the
damaged work or the work out of which
the damage arises was performed on your
behalf by a subcontractor.
n. Damage To Impaired Property Or
Property Not Physically Injured
"Property damage" to "impaired property"
or property that has not been physically
injured, arising out of:
(1) A defect, deficiency, inadequacy or
dangerous condition in "your product"
or "your work"; or
(2) A delay or failure by you or anyone
acting on your behalf to perform a
contract or agreement in accordance
with its terms.
This exclusion does not apply to the loss
of use of other property arising out of
sudden and accidental physical injury to
"your product" or "your work" after it has
been put to its intended use.
BUSINESS LIABILITY COVERAGE FORM
o. Recall Of Products, Work Or Impaired
Property
Damages claimed for any loss, cost or
expense incurred by you or others for the
loss of use, withdrawal, recall, inspection,
repair, replacement, adjustment, removal
or disposal of:
(1) "Your product";
(2) "Your work"; or
(3) "Impaired property";
if such product, work or property is
withdrawn or recalled from the market or
from use by any person or organization
because of a known or suspected defect,
deficiency, inadequacy or dangerous
condition in it.
p. Personal And Advertising Injury
"Personal and advertising injury":
(1) Arising out of oral, written or electronic
publication of material, if done by or at
the direction of the insured with
knowledge of its falsity;
(2) Arising out of oral, written or electronic
publication of material whose first
publication took place before the
beginning of the policy period;
(3) Arising out of a criminal act committed
by or at the direction of the insured;
(4) Arising out of any breach of contract,
except an implied contract to use
another’s "advertising idea" in your
"advertisement";
(5) Arising out of the failure of goods,
products or services to conform with
any statement of quality or
performance made in your
"advertisement";
(6) Arising out of the wrong description of
the price of goods, products or services;
(7) Arising out of any violation of any
intellectual property rights such as
copyright, patent, trademark, trade
name, trade secret, service mark or
other designation of origin or
authenticity.
However, this exclusion does not
apply to infringement, in your
"advertisement", of
(a) Copyright;
(b) Slogan, unless the slogan is also
a trademark, trade name, service
mark or other designation of origin
or authenticity; or
(c) Title of any literary or artistic work;
(8) Arising out of an offense committed by
an insured whose business is:
(a) Advertising, broadcasting,
publishing or telecasting;
(b) Designing or determining content
of web sites for others; or
(c) An Internet search, access,
content or service provider.
However, this exclusion does not
apply to Paragraphs a., b. and c.
under the definition of "personal and
advertising injury" in Section G. –
Liability And Medical Expenses
Definitions.
For the purposes of this exclusion,
placing an "advertisement" for or
linking to others on your web site, by
itself, is not considered the business
of advertising, broadcasting,
publishing or telecasting;
(9) Arising out of an electronic chat room
or bulletin board the insured hosts,
owns, or over which the insured
exercises control;
(10) Arising out of the unauthorized use of
another's name or product in your e-mail
address, domain name or metatags, or
any other similar tactics to mislead
another's potential customers;
(11) Arising out of the violation of a
person's right of privacy created by
any state or federal act.
However, this exclusion does not
apply to liability for damages that the
insured would have in the absence of
such state or federal act;
(12) Arising out of:
(a) An "advertisement" for others on
your web site;
(b) Placing a link to a web site of
others on your web site;
(c) Content from a web site of others
displayed within a frame or border
on your web site. Content includes
information, code, sounds, text,
graphics or images; or
(d) Computer code, software or
programming used to enable:
(i) Your web site; or
(ii) The presentation or functionality
of an "advertisement" or other
content on your web site;
BUSINESS LIABILITY COVERAGE FORM
Form SS 00 08 04 05 Page 9 of 24
(13) Arising out of a violation of any antitrust law;
(14) Arising out of the fluctuation in price or
value of any stocks, bonds or other
securities; or
(15) Arising out of discrimination or
humiliation committed by or at the
direction of any "executive officer",
director, stockholder, partner or
member of the insured.
q. Electronic Data
Damages arising out of the loss of, loss of
use of, damage to, corruption of, inability
to access, or inability to manipulate
"electronic data".
r. Employment-Related Practices
"Bodily injury" or "personal and advertising
injury" to:
(1) A person arising out of any:
(a) Refusal to employ that person;
(b) Termination of that person's
employment; or
(c) Employment-related practices,
policies, acts or omissions, such as
coercion, demotion, evaluation,
reassignment, discipline,
defamation, harassment, humiliation
or discrimination directed at that
person; or
(2) The spouse, child, parent, brother or
sister of that person as a
consequence of "bodily injury" or
"personal and advertising injury" to the
person at whom any of the
employment-related practices
described in Paragraphs (a), (b), or (c)
above is directed.
This exclusion applies:
(1) Whether the insured may be liable as
an employer or in any other capacity;
and
(2) To any obligation to share damages
with or repay someone else who must
pay damages because of the injury.
s. Asbestos
(1) "Bodily injury", "property damage" or
"personal and advertising injury"
arising out of the "asbestos hazard".
(2) Any damages, judgments, settlements,
loss, costs or expenses that:
(a) May be awarded or incurred by
reason of any claim or suit
alleging actual or threatened injury
or damage of any nature or kind to
persons or property which would
not have occurred in whole or in
part but for the "asbestos hazard";
(b) Arise out of any request, demand,
order or statutory or regulatory
requirement that any insured or
others test for, monitor, clean up,
remove, encapsulate, contain,
treat, detoxify or neutralize or in
any way respond to or assess the
effects of an "asbestos hazard"; or
(c) Arise out of any claim or suit for
damages because of testing for,
monitoring, cleaning up, removing,
encapsulating, containing, treating,
detoxifying or neutralizing or in any
way responding to or assessing the
effects of an "asbestos hazard".
t. Violation Of Statutes That Govern EMails, Fax, Phone Calls Or Other Methods Of Sending Material Or
Information
"Bodily injury", "property damage", or
"personal and advertising injury" arising
directly or indirectly out of any action or
omission that violates or is alleged to
violate:
(1) The Telephone Consumer Protection
Act (TCPA), including any amendment
of or addition to such law;
(2) The CAN-SPAM Act of 2003, including
any amendment of or addition to such
law; or
(3) Any statute, ordinance or regulation,
other than the TCPA or CAN-SPAM Act
of 2003, that prohibits or limits the
sending, transmitting, communicating or
distribution of material or information.
Damage To Premises Rented To You –
Exception For Damage By Fire, Lightning
or Explosion
Exclusions c. through h. and k. through o. do
not apply to damage by fire, lightning or
explosion to premises rented to you or
temporarily occupied by you with permission of
the owner. A separate Limit of Insurance
applies to this coverage as described in
Section D. - Liability And Medical Expenses
Limits Of Insurance.
BUSINESS LIABILITY COVERAGE FORM
2. Applicable To Medical Expenses Coverage
We will not pay expenses for "bodily injury":
a. Any Insured
To any insured, except "volunteer workers".
b. Hired Person
To a person hired to do work for or on behalf
of any insured or a tenant of any insured.
c. Injury On Normally Occupied Premises
To a person injured on that part of
premises you own or rent that the person
normally occupies.
d. Workers' Compensation And Similar
Laws
To a person, whether or not an
"employee" of any insured, if benefits for
the "bodily injury" are payable or must be
provided under a workers' compensation
or disability benefits law or a similar law.
e. Athletics Activities
To a person injured while practicing,
instructing or participating in any physical
exercises or games, sports or athletic
contests.
f. Products-Completed Operations Hazard
Included with the "products-completed
operations hazard".
g. Business Liability Exclusions
Excluded under Business Liability Coverage.
C. WHO IS AN INSURED
1. If you are designated in the Declarations as:
a. An individual, you and your spouse are
insureds, but only with respect to the
conduct of a business of which you are the
sole owner.
b. A partnership or joint venture, you are an
insured. Your members, your partners, and
their spouses are also insureds, but only with
respect to the conduct of your business.
c. A limited liability company, you are an
insured. Your members are also insureds,
but only with respect to the conduct of your
business. Your managers are insureds, but
only with respect to their duties as your
managers.
d. An organization other than a partnership,
joint venture or limited liability company, you
are an insured. Your "executive officers" and
directors are insureds, but only with respect
to their duties as your officers or directors.
Your stockholders are also insureds, but only
with respect to their liability as stockholders.
e. A trust, you are an insured. Your trustees
are also insureds, but only with respect to
their duties as trustees.
2. Each of the following is also an insured:
a. Employees And Volunteer Workers
Your "volunteer workers" only while
performing duties related to the conduct of
your business, or your "employees", other
than either your "executive officers" (if you
are an organization other than a
partnership, joint venture or limited liability
company) or your managers (if you are a
limited liability company), but only for acts
within the scope of their employment by
you or while performing duties related to
the conduct of your business.
However, none of these "employees" or
"volunteer workers" are insureds for:
(1) "Bodily injury" or "personal and
advertising injury":
(a) To you, to your partners or
members (if you are a partnership
or joint venture), to your members
(if you are a limited liability
company), or to a co-"employee"
while in the course of his or her
employment or performing duties
related to the conduct of your
business, or to your other
"volunteer workers" while
performing duties related to the
conduct of your business;
(b) To the spouse, child, parent,
brother or sister of that co-
"employee" or that "volunteer
worker" as a consequence of
Paragraph (1)(a) above;
(c) For which there is any obligation
to share damages with or repay
someone else who must pay
damages because of the injury
described in Paragraphs (1)(a) or
(b) above; or
(d) Arising out of his or her providing
or failing to provide professional
health care services.
If you are not in the business of
providing professional health care
services, Paragraph (d) does not apply
to any nurse, emergency medical
technician or paramedic employed by
you to provide such services.
(2) "Property damage" to property:
(a) Owned, occupied or used by,
BUSINESS LIABILITY COVERAGE FORM
Form SS 00 08 04 05 Page 11 of 24
(b) Rented to, in the care, custody or
control of, or over which physical
control is being exercised for any
purpose by you, any of your
"employees", "volunteer workers",
any partner or member (if you are
a partnership or joint venture), or
any member (if you are a limited
liability company).
b. Real Estate Manager
Any person (other than your "employee" or
"volunteer worker"), or any organization
while acting as your real estate manager.
c. Temporary Custodians Of Your
Property
Any person or organization having proper
temporary custody of your property if you
die, but only:
(1) With respect to liability arising out of the
maintenance or use of that property; and
(2) Until your legal representative has
been appointed.
d. Legal Representative If You Die
Your legal representative if you die, but
only with respect to duties as such. That
representative will have all your rights and
duties under this insurance.
e. Unnamed Subsidiary
Any subsidiary and subsidiary thereof, of
yours which is a legally incorporated entity
of which you own a financial interest of
more than 50% of the voting stock on the
effective date of this Coverage Part.
The insurance afforded herein for any
subsidiary not shown in the Declarations
as a named insured does not apply to
injury or damage with respect to which an
insured under this insurance is also an
insured under another policy or would be
an insured under such policy but for its
termination or upon the exhaustion of its
limits of insurance.
3. Newly Acquired Or Formed Organization
Any organization you newly acquire or form,
other than a partnership, joint venture or
limited liability company, and over which you
maintain financial interest of more than 50% of
the voting stock, will qualify as a Named
Insured if there is no other similar insurance
available to that organization. However:
a. Coverage under this provision is afforded
only until the 180th day after you acquire
or form the organization or the end of the
policy period, whichever is earlier; and
b. Coverage under this provision does not
apply to:
(1) "Bodily injury" or "property damage"
that occurred; or
(2) "Personal and advertising injury"
arising out of an offense committed
before you acquired or formed the
organization.
4. Operator Of Mobile Equipment
With respect to "mobile equipment" registered in
your name under any motor vehicle registration
law, any person is an insured while driving such
equipment along a public highway with your
permission. Any other person or organization
responsible for the conduct of such person is
also an insured, but only with respect to liability
arising out of the operation of the equipment, and
only if no other insurance of any kind is available
to that person or organization for this liability.
However, no person or organization is an insured
with respect to:
a. "Bodily injury" to a co-"employee" of the
person driving the equipment; or
b. "Property damage" to property owned by,
rented to, in the charge of or occupied by
you or the employer of any person who is
an insured under this provision.
5. Operator of Nonowned Watercraft
With respect to watercraft you do not own that
is less than 51 feet long and is not being used
to carry persons for a charge, any person is an
insured while operating such watercraft with
your permission. Any other person or
organization responsible for the conduct of
such person is also an insured, but only with
respect to liability arising out of the operation
of the watercraft, and only if no other
insurance of any kind is available to that
person or organization for this liability.
However, no person or organization is an
insured with respect to:
a. "Bodily injury" to a co-"employee" of the
person operating the watercraft; or
b. "Property damage" to property owned by,
rented to, in the charge of or occupied by
you or the employer of any person who is
an insured under this provision.
6. Additional Insureds When Required By
Written Contract, Written Agreement Or
Permit
The person(s) or organization(s) identified in
Paragraphs a. through f. below are additional
insureds when you have agreed, in a written
BUSINESS LIABILITY COVERAGE FORM
contract, written agreement or because of a
permit issued by a state or political
subdivision, that such person or organization
be added as an additional insured on your
policy, provided the injury or damage occurs
subsequent to the execution of the contract or
agreement, or the issuance of the permit.
A person or organization is an additional
insured under this provision only for that
period of time required by the contract,
agreement or permit.
However, no such person or organization is an
additional insured under this provision if such
person or organization is included as an
additional insured by an endorsement issued
by us and made a part of this Coverage Part,
including all persons or organizations added
as additional insureds under the specific
additional insured coverage grants in Section
F. – Optional Additional Insured Coverages.
a. Vendors
Any person(s) or organization(s) (referred to
below as vendor), but only with respect to
"bodily injury" or "property damage" arising
out of "your products" which are distributed
or sold in the regular course of the vendor's
business and only if this Coverage Part
provides coverage for "bodily injury" or
"property damage" included within the
"products-completed operations hazard".
(1) The insurance afforded to the vendor
is subject to the following additional
exclusions:
This insurance does not apply to:
(a) "Bodily injury" or "property
damage" for which the vendor is
obligated to pay damages by
reason of the assumption of
liability in a contract or agreement.
This exclusion does not apply to
liability for damages that the
vendor would have in the absence
of the contract or agreement;
(b) Any express warranty
unauthorized by you;
(c) Any physical or chemical change
in the product made intentionally
by the vendor;
(d) Repackaging, except when
unpacked solely for the purpose of
inspection, demonstration, testing,
or the substitution of parts under
instructions from the manufacturer,
and then repackaged in the
original container;
(e) Any failure to make such
inspections, adjustments, tests or
servicing as the vendor has
agreed to make or normally
undertakes to make in the usual
course of business, in connection
with the distribution or sale of the
products;
(f) Demonstration, installation,
servicing or repair operations,
except such operations performed
at the vendor's premises in
connection with the sale of the
product;
(g) Products which, after distribution
or sale by you, have been labeled
or relabeled or used as a
container, part or ingredient of any
other thing or substance by or for
the vendor; or
(h) "Bodily injury" or "property
damage" arising out of the sole
negligence of the vendor for its
own acts or omissions or those of
its employees or anyone else
acting on its behalf. However, this
exclusion does not apply to:
(i) The exceptions contained in
Subparagraphs (d) or (f); or
(ii) Such inspections, adjustments,
tests or servicing as the vendor
has agreed to make or normally
undertakes to make in the usual
course of business, in
connection with the distribution
or sale of the products.
(2) This insurance does not apply to any
insured person or organization from
whom you have acquired such products,
or any ingredient, part or container,
entering into, accompanying or
containing such products.
b. Lessors Of Equipment
(1) Any person or organization from
whom you lease equipment; but only
with respect to their liability for "bodily
injury", "property damage" or
"personal and advertising injury"
caused, in whole or in part, by your
maintenance, operation or use of
equipment leased to you by such
person or organization.
BUSINESS LIABILITY COVERAGE FORM
Form SS 00 08 04 05 Page 13 of 24
(2) With respect to the insurance afforded
to these additional insureds, this
insurance does not apply to any
"occurrence" which takes place after
you cease to lease that equipment.
c. Lessors Of Land Or Premises
(1) Any person or organization from
whom you lease land or premises, but
only with respect to liability arising out
of the ownership, maintenance or use
of that part of the land or premises
leased to you.
(2) With respect to the insurance afforded
to these additional insureds, this
insurance does not apply to:
(a) Any "occurrence" which takes
place after you cease to lease that
land or be a tenant in that
premises; or
(b) Structural alterations, new
construction or demolition
operations performed by or on
behalf of such person or
organization.
d. Architects, Engineers Or Surveyors
(1) Any architect, engineer, or surveyor, but
only with respect to liability for "bodily
injury", "property damage" or "personal
and advertising injury" caused, in whole
or in part, by your acts or omissions or
the acts or omissions of those acting on
your behalf:
(a) In connection with your premises;
or
(b) In the performance of your
ongoing operations performed by
you or on your behalf.
(2) With respect to the insurance afforded
to these additional insureds, the
following additional exclusion applies:
This insurance does not apply to
"bodily injury", "property damage" or
"personal and advertising injury"
arising out of the rendering of or the
failure to render any professional
services by or for you, including:
(a) The preparing, approving, or
failure to prepare or approve,
maps, shop drawings, opinions,
reports, surveys, field orders,
change orders, designs or
drawings and specifications; or
(b) Supervisory, inspection,
architectural or engineering
activities.
e. Permits Issued By State Or Political
Subdivisions
(1) Any state or political subdivision, but
only with respect to operations
performed by you or on your behalf for
which the state or political subdivision
has issued a permit.
(2) With respect to the insurance afforded
to these additional insureds, this
insurance does not apply to:
(a) "Bodily injury", "property damage"
or "personal and advertising
injury" arising out of operations
performed for the state or
municipality; or
(b) "Bodily injury" or "property damage"
included within the "productscompleted operations hazard". f. Any Other Party
(1) Any other person or organization who
is not an insured under Paragraphs a.
through e. above, but only with
respect to liability for "bodily injury",
"property damage" or "personal and
advertising injury" caused, in whole or
in part, by your acts or omissions or
the acts or omissions of those acting
on your behalf:
(a) In the performance of your
ongoing operations;
(b) In connection with your premises
owned by or rented to you; or
(c) In connection with "your work" and
included within the "productscompleted operations hazard", but only if
(i) The written contract or written
agreement requires you to
provide such coverage to
such additional insured; and
(ii) This Coverage Part provides
coverage for "bodily injury" or
"property damage" included
within the "productscompleted operations hazard".
(2) With respect to the insurance afforded
to these additional insureds, this
insurance does not apply to:
"Bodily injury", "property damage" or
"personal and advertising injury"
arising out of the rendering of, or the
failure to render, any professional
architectural, engineering or surveying
services, including:
BUSINESS LIABILITY COVERAGE FORM
(a) The preparing, approving, or
failure to prepare or approve,
maps, shop drawings, opinions,
reports, surveys, field orders,
change orders, designs or
drawings and specifications; or
(b) Supervisory, inspection,
architectural or engineering
activities.
The limits of insurance that apply to additional
insureds are described in Section D. – Limits
Of Insurance.
How this insurance applies when other
insurance is available to an additional insured
is described in the Other Insurance Condition
in Section E. – Liability And Medical Expenses
General Conditions.
No person or organization is an insured with
respect to the conduct of any current or past
partnership, joint venture or limited liability
company that is not shown as a Named Insured in
the Declarations.
D. LIABILITY AND MEDICAL EXPENSES
LIMITS OF INSURANCE
1. The Most We Will Pay
The Limits of Insurance shown in the
Declarations and the rules below fix the most
we will pay regardless of the number of:
a. Insureds;
b. Claims made or "suits" brought; or
c. Persons or organizations making claims or
bringing "suits".
2. Aggregate Limits
The most we will pay for:
a. Damages because of "bodily injury" and
"property damage" included in the
"products-completed operations hazard" is
the Products-Completed Operations
Aggregate Limit shown in the
Declarations.
b. Damages because of all other "bodily
injury", "property damage" or "personal
and advertising injury", including medical
expenses, is the General Aggregate Limit
shown in the Declarations.
This General Aggregate Limit applies
separately to each of your "locations"
owned by or rented to you.
"Location" means premises involving the
same or connecting lots, or premises
whose connection is interrupted only by a
street, roadway or right-of-way of a
railroad.
This General Aggregate limit does not
apply to "property damage" to premises
while rented to you or temporarily
occupied by you with permission of the
owner, arising out of fire, lightning or
explosion.
3. Each Occurrence Limit
Subject to 2.a. or 2.b above, whichever
applies, the most we will pay for the sum of all
damages because of all "bodily injury",
"property damage" and medical expenses
arising out of any one "occurrence" is the
Liability and Medical Expenses Limit shown in
the Declarations.
The most we will pay for all medical expenses
because of "bodily injury" sustained by any
one person is the Medical Expenses Limit
shown in the Declarations.
4. Personal And Advertising Injury Limit
Subject to 2.b. above, the most we will pay for
the sum of all damages because of all
"personal and advertising injury" sustained by
any one person or organization is the Personal
and Advertising Injury Limit shown in the
Declarations.
5. Damage To Premises Rented To You Limit
The Damage To Premises Rented To You
Limit is the most we will pay under Business
Liability Coverage for damages because of
"property damage" to any one premises, while
rented to you, or in the case of damage by fire,
lightning or explosion, while rented to you or
temporarily occupied by you with permission of
the owner.
In the case of damage by fire, lightning or
explosion, the Damage to Premises Rented To
You Limit applies to all damage proximately
caused by the same event, whether such
damage results from fire, lightning or explosion
or any combination of these.
6. How Limits Apply To Additional Insureds
The most we will pay on behalf of a person or
organization who is an additional insured
under this Coverage Part is the lesser of:
a. The limits of insurance specified in a
written contract, written agreement or
permit issued by a state or political
subdivision; or
b. The Limits of Insurance shown in the
Declarations.
Such amount shall be a part of and not in
addition to the Limits of Insurance shown in
the Declarations and described in this Section.
BUSINESS LIABILITY COVERAGE FORM
Form SS 00 08 04 05 Page 15 of 24
If more than one limit of insurance under this
policy and any endorsements attached thereto
applies to any claim or "suit", the most we will pay
under this policy and the endorsements is the
single highest limit of liability of all coverages
applicable to such claim or "suit". However, this
paragraph does not apply to the Medical Expenses
limit set forth in Paragraph 3. above.
The Limits of Insurance of this Coverage Part apply
separately to each consecutive annual period and to
any remaining period of less than 12 months, starting
with the beginning of the policy period shown in the
Declarations, unless the policy period is extended
after issuance for an additional period of less than 12 months. In that case, the additional period will be
deemed part of the last preceding period for purposes
of determining the Limits of Insurance.
E. LIABILITY AND MEDICAL EXPENSES
GENERAL CONDITIONS
1. Bankruptcy
Bankruptcy or insolvency of the insured or of
the insured's estate will not relieve us of our
obligations under this Coverage Part.
2. Duties In The Event Of Occurrence,
Offense, Claim Or Suit
a. Notice Of Occurrence Or Offense
You or any additional insured must see to
it that we are notified as soon as
practicable of an "occurrence" or an
offense which may result in a claim. To
the extent possible, notice should include:
(1) How, when and where the "occurrence"
or offense took place;
(2) The names and addresses of any
injured persons and witnesses; and
(3) The nature and location of any injury
or damage arising out of the
"occurrence" or offense.
b. Notice Of Claim
If a claim is made or "suit" is brought
against any insured, you or any additional
insured must:
(1) Immediately record the specifics of the
claim or "suit" and the date received;
and
(2) Notify us as soon as practicable.
You or any additional insured must see to
it that we receive a written notice of the
claim or "suit" as soon as practicable.
c. Assistance And Cooperation Of The
Insured
You and any other involved insured must:
(1) Immediately send us copies of any
demands, notices, summonses or
legal papers received in connection
with the claim or "suit";
(2) Authorize us to obtain records and
other information;
(3) Cooperate with us in the investigation,
settlement of the claim or defense
against the "suit"; and
(4) Assist us, upon our request, in the
enforcement of any right against any
person or organization that may be
liable to the insured because of injury
or damage to which this insurance
may also apply.
d. Obligations At The Insured's Own Cost
No insured will, except at that insured's own
cost, voluntarily make a payment, assume
any obligation, or incur any expense, other
than for first aid, without our consent.
e. Additional Insured's Other Insurance
If we cover a claim or "suit" under this
Coverage Part that may also be covered
by other insurance available to an
additional insured, such additional insured
must submit such claim or "suit" to the
other insurer for defense and indemnity.
However, this provision does not apply to
the extent that you have agreed in a
written contract, written agreement or
permit that this insurance is primary and
non-contributory with the additional
insured's own insurance.
f. Knowledge Of An Occurrence, Offense,
Claim Or Suit
Paragraphs a. and b. apply to you or to
any additional insured only when such
"occurrence", offense, claim or "suit" is
known to:
(1) You or any additional insured that is
an individual;
(2) Any partner, if you or an additional
insured is a partnership;
(3) Any manager, if you or an additional
insured is a limited liability company;
(4) Any "executive officer" or insurance
manager, if you or an additional
insured is a corporation;
(5) Any trustee, if you or an additional
insured is a trust; or
(6) Any elected or appointed official, if you
or an additional insured is a political
subdivision or public entity.
BUSINESS LIABILITY COVERAGE FORM
This Paragraph f. applies separately to
you and any additional insured.
3. Financial Responsibility Laws
a. When this policy is certified as proof of
financial responsibility for the future under
the provisions of any motor vehicle
financial responsibility law, the insurance
provided by the policy for "bodily injury"
liability and "property damage" liability will
comply with the provisions of the law to
the extent of the coverage and limits of
insurance required by that law.
b. With respect to "mobile equipment" to
which this insurance applies, we will
provide any liability, uninsured motorists,
underinsured motorists, no-fault or other
coverage required by any motor vehicle
law. We will provide the required limits for
those coverages.
4. Legal Action Against Us
No person or organization has a right under
this Coverage Form:
a. To join us as a party or otherwise bring us
into a "suit" asking for damages from an
insured; or
b. To sue us on this Coverage Form unless
all of its terms have been fully complied
with.
A person or organization may sue us to recover
on an agreed settlement or on a final judgment
against an insured; but we will not be liable for
damages that are not payable under the terms of
this insurance or that are in excess of the
applicable limit of insurance. An agreed
settlement means a settlement and release of
liability signed by us, the insured and the
claimant or the claimant's legal representative.
5. Separation Of Insureds
Except with respect to the Limits of Insurance,
and any rights or duties specifically assigned
in this policy to the first Named Insured, this
insurance applies:
a. As if each Named Insured were the only
Named Insured; and
b. Separately to each insured against whom
a claim is made or "suit" is brought.
6. Representations
a. When You Accept This Policy
By accepting this policy, you agree:
(1) The statements in the Declarations
are accurate and complete;
(2) Those statements are based upon
representations you made to us; and
(3) We have issued this policy in reliance
upon your representations.
b. Unintentional Failure To Disclose
Hazards
If unintentionally you should fail to disclose
all hazards relating to the conduct of your
business at the inception date of this
Coverage Part, we shall not deny any
coverage under this Coverage Part
because of such failure.
7. Other Insurance
If other valid and collectible insurance is
available for a loss we cover under this
Coverage Part, our obligations are limited as
follows:
a. Primary Insurance
This insurance is primary except when b.
below applies. If other insurance is also
primary, we will share with all that other
insurance by the method described in c.
below.
b. Excess Insurance
This insurance is excess over any of the
other insurance, whether primary, excess,
contingent or on any other basis:
(1) Your Work
That is Fire, Extended Coverage,
Builder's Risk, Installation Risk or
similar coverage for "your work";
(2) Premises Rented To You
That is fire, lightning or explosion
insurance for premises rented to you
or temporarily occupied by you with
permission of the owner;
(3) Tenant Liability
That is insurance purchased by you to
cover your liability as a tenant for
"property damage" to premises rented
to you or temporarily occupied by you
with permission of the owner;
(4) Aircraft, Auto Or Watercraft
If the loss arises out of the maintenance
or use of aircraft, "autos" or watercraft to
the extent not subject to Exclusion g. of
Section A. – Coverages.
(5) Property Damage To Borrowed
Equipment Or Use Of Elevators
If the loss arises out of "property
damage" to borrowed equipment or
the use of elevators to the extent not
subject to Exclusion k. of Section A. –
Coverages.
BUSINESS LIABILITY COVERAGE FORM
Form SS 00 08 04 05 Page 17 of 24
(6) When You Are Added As An
Additional Insured To Other
Insurance
That is other insurance available to
you covering liability for damages
arising out of the premises or
operations, or products and completed
operations, for which you have been
added as an additional insured by that
insurance; or
(7) When You Add Others As An
Additional Insured To This
Insurance
That is other insurance available to an
additional insured.
However, the following provisions
apply to other insurance available to
any person or organization who is an
additional insured under this Coverage
Part:
(a) Primary Insurance When
Required By Contract
This insurance is primary if you
have agreed in a written contract,
written agreement or permit that
this insurance be primary. If other
insurance is also primary, we will
share with all that other insurance
by the method described in c.
below.
(b) Primary And Non-Contributory
To Other Insurance When
Required By Contract
If you have agreed in a written
contract, written agreement or
permit that this insurance is
primary and non-contributory with
the additional insured's own
insurance, this insurance is
primary and we will not seek
contribution from that other
insurance.
Paragraphs (a) and (b) do not apply to
other insurance to which the additional
insured has been added as an
additional insured.
When this insurance is excess, we will
have no duty under this Coverage Part to
defend the insured against any "suit" if any
other insurer has a duty to defend the
insured against that "suit". If no other
insurer defends, we will undertake to do
so, but we will be entitled to the insured's
rights against all those other insurers.
When this insurance is excess over other
insurance, we will pay only our share of
the amount of the loss, if any, that
exceeds the sum of:
(1) The total amount that all such other
insurance would pay for the loss in the
absence of this insurance; and
(2) The total of all deductible and selfinsured amounts under all that other insurance.
We will share the remaining loss, if any, with
any other insurance that is not described in
this Excess Insurance provision and was not
bought specifically to apply in excess of the
Limits of Insurance shown in the
Declarations of this Coverage Part.
c. Method Of Sharing
If all the other insurance permits
contribution by equal shares, we will follow
this method also. Under this approach,
each insurer contributes equal amounts
until it has paid its applicable limit of
insurance or none of the loss remains,
whichever comes first.
If any of the other insurance does not permit
contribution by equal shares, we will
contribute by limits. Under this method, each
insurer’s share is based on the ratio of its
applicable limit of insurance to the total
applicable limits of insurance of all insurers.
8. Transfer Of Rights Of Recovery Against
Others To Us
a. Transfer Of Rights Of Recovery
If the insured has rights to recover all or
part of any payment, including
Supplementary Payments, we have made
under this Coverage Part, those rights are
transferred to us. The insured must do
nothing after loss to impair them. At our
request, the insured will bring "suit" or
transfer those rights to us and help us
enforce them. This condition does not
apply to Medical Expenses Coverage.
b. Waiver Of Rights Of Recovery (Waiver
Of Subrogation)
If the insured has waived any rights of
recovery against any person or
organization for all or part of any payment,
including Supplementary Payments, we
have made under this Coverage Part, we
also waive that right, provided the insured
waived their rights of recovery against
such person or organization in a contract,
agreement or permit that was executed
prior to the injury or damage.
BUSINESS LIABILITY COVERAGE FORM
F. OPTIONAL ADDITIONAL INSURED
COVERAGES
If listed or shown as applicable in the Declarations,
one or more of the following Optional Additional
Insured Coverages also apply. When any of these
Optional Additional Insured Coverages apply,
Paragraph 6. (Additional Insureds When Required
by Written Contract, Written Agreement or Permit)
of Section C., Who Is An Insured, does not apply
to the person or organization shown in the
Declarations. These coverages are subject to the
terms and conditions applicable to Business
Liability Coverage in this policy, except as
provided below:
1. Additional Insured - Designated Person Or
Organization
WHO IS AN INSURED under Section C. is
amended to include as an additional insured
the person(s) or organization(s) shown in the
Declarations, but only with respect to liability
for "bodily injury", "property damage" or
"personal and advertising injury" caused, in
whole or in part, by your acts or omissions or
the acts or omissions of those acting on your
behalf:
a. In the performance of your ongoing
operations; or
b. In connection with your premises owned
by or rented to you.
2. Additional Insured - Managers Or Lessors
Of Premises
a. WHO IS AN INSURED under Section C. is
amended to include as an additional insured
the person(s) or organization(s) shown in the
Declarations as an Additional Insured -
Designated Person Or Organization; but only
with respect to liability arising out of the
ownership, maintenance or use of that part of
the premises leased to you and shown in the
Declarations.
b. With respect to the insurance afforded to
these additional insureds, the following
additional exclusions apply:
This insurance does not apply to:
(1) Any "occurrence" which takes place
after you cease to be a tenant in that
premises; or
(2) Structural alterations, new
construction or demolition operations
performed by or on behalf of such
person or organization.
3. Additional Insured - Grantor Of Franchise
WHO IS AN INSURED under Section C. is
amended to include as an additional insured
the person(s) or organization(s) shown in the
Declarations as an Additional Insured -
Grantor Of Franchise, but only with respect to
their liability as grantor of franchise to you.
4. Additional Insured - Lessor Of Leased
Equipment
a. WHO IS AN INSURED under Section C. is
amended to include as an additional
insured the person(s) or organization(s)
shown in the Declarations as an Additional
Insured – Lessor of Leased Equipment,
but only with respect to liability for "bodily
injury", "property damage" or "personal
and advertising injury" caused, in whole or
in part, by your maintenance, operation or
use of equipment leased to you by such
person(s) or organization(s).
b. With respect to the insurance afforded to
these additional insureds, this insurance
does not apply to any "occurrence" which
takes place after you cease to lease that
equipment.
5. Additional Insured - Owners Or Other
Interests From Whom Land Has Been
Leased
a. WHO IS AN INSURED under Section C. is
amended to include as an additional
insured the person(s) or organization(s)
shown in the Declarations as an Additional
Insured – Owners Or Other Interests From
Whom Land Has Been Leased, but only
with respect to liability arising out of the
ownership, maintenance or use of that part
of the land leased to you and shown in the
Declarations.
b. With respect to the insurance afforded to
these additional insureds, the following
additional exclusions apply:
This insurance does not apply to:
(1) Any "occurrence" that takes place
after you cease to lease that land; or
(2) Structural alterations, new
construction or demolition operations
performed by or on behalf of such
person or organization.
6. Additional Insured - State Or Political
Subdivision – Permits
a. WHO IS AN INSURED under Section C. is
amended to include as an additional
insured the state or political subdivision
shown in the Declarations as an Additional
BUSINESS LIABILITY COVERAGE FORM
Form SS 00 08 04 05 Page 19 of 24
Insured – State Or Political Subdivision -
Permits, but only with respect to
operations performed by you or on your
behalf for which the state or political
subdivision has issued a permit.
b. With respect to the insurance afforded to
these additional insureds, the following
additional exclusions apply:
This insurance does not apply to:
(1) "Bodily injury", "property damage" or
"personal and advertising injury"
arising out of operations performed for
the state or municipality; or
(2) "Bodily injury" or "property damage"
included in the "product-completed
operations" hazard.
7. Additional Insured – Vendors
a. WHO IS AN INSURED under Section C. is
amended to include as an additional
insured the person(s) or organization(s)
(referred to below as vendor) shown in the
Declarations as an Additional Insured -
Vendor, but only with respect to "bodily
injury" or "property damage" arising out of
"your products" which are distributed or
sold in the regular course of the vendor's
business and only if this Coverage Part
provides coverage for "bodily injury" or
"property damage" included within the
"products-completed operations hazard".
b. The insurance afforded to the vendor is
subject to the following additional exclusions:
(1) This insurance does not apply to:
(a) "Bodily injury" or "property
damage" for which the vendor is
obligated to pay damages by
reason of the assumption of
liability in a contract or agreement.
This exclusion does not apply to
liability for damages that the
vendor would have in the absence
of the contract or agreement;
(b) Any express warranty
unauthorized by you;
(c) Any physical or chemical change
in the product made intentionally
by the vendor;
(d) Repackaging, unless unpacked
solely for the purpose of inspection,
demonstration, testing, or the
substitution of parts under
instructions from the manufacturer,
and then repackaged in the original
container;
(e) Any failure to make such
inspections, adjustments, tests or
servicing as the vendor has agreed
to make or normally undertakes to
make in the usual course of
business, in connection with the
distribution or sale of the products;
(f) Demonstration, installation,
servicing or repair operations,
except such operations performed
at the vendor's premises in
connection with the sale of the
product;
(g) Products which, after distribution
or sale by you, have been labeled
or relabeled or used as a
container, part or ingredient of any
other thing or substance by or for
the vendor; or
(h) "Bodily injury" or "property
damage" arising out of the sole
negligence of the vendor for its
own acts or omissions or those of
its employees or anyone else
acting on its behalf. However, this
exclusion does not apply to:
(i) The exceptions contained in
Subparagraphs (d) or (f); or
(ii) Such inspections,
adjustments, tests or servicing
as the vendor has agreed to
make or normally undertakes
to make in the usual course of
business, in connection with
the distribution or sale of the
products.
(2) This insurance does not apply to any
insured person or organization from
whom you have acquired such
products, or any ingredient, part or
container, entering into,
accompanying or containing such
products.
8. Additional Insured – Controlling Interest
WHO IS AN INSURED under Section C. is
amended to include as an additional insured
the person(s) or organization(s) shown in the
Declarations as an Additional Insured –
Controlling Interest, but only with respect to
their liability arising out of:
a. Their financial control of you; or
b. Premises they own, maintain or control
while you lease or occupy these premises.
BUSINESS LIABILITY COVERAGE FORM
This insurance does not apply to structural
alterations, new construction and demolition
operations performed by or for that person or
organization.
9. Additional Insured – Owners, Lessees Or
Contractors – Scheduled Person Or
Organization
a. WHO IS AN INSURED under Section C. is
amended to include as an additional
insured the person(s) or organization(s)
shown in the Declarations as an Additional
Insured – Owner, Lessees Or Contractors,
but only with respect to liability for "bodily
injury", "property damage" or "personal
and advertising injury" caused, in whole or
in part, by your acts or omissions or the
acts or omissions of those acting on your
behalf:
(1) In the performance of your ongoing
operations for the additional
insured(s); or
(2) In connection with "your work"
performed for that additional insured
and included within the "productscompleted operations hazard", but only if this Coverage Part provides
coverage for "bodily injury" or
"property damage" included within the
"products-completed operations
hazard".
b. With respect to the insurance afforded to
these additional insureds, this insurance
does not apply to "bodily injury", "property
damage" or "personal an advertising
injury" arising out of the rendering of, or
the failure to render, any professional
architectural, engineering or surveying
services, including:
(1) The preparing, approving, or failure to
prepare or approve, maps, shop
drawings, opinions, reports, surveys,
field orders, change orders, designs or
drawings and specifications; or
(2) Supervisory, inspection, architectural
or engineering activities.
10. Additional Insured – Co-Owner Of Insured
Premises
WHO IS AN INSURED under Section C. is
amended to include as an additional insured
the person(s) or Organization(s) shown in the
Declarations as an Additional Insured – CoOwner Of Insured Premises, but only with respect to their liability as co-owner of the
premises shown in the Declarations.
The limits of insurance that apply to additional
insureds are described in Section D. – Limits Of
Insurance.
How this insurance applies when other insurance
is available to an additional insured is described in
the Other Insurance Condition in Section E. –
Liability And Medical Expenses General
Conditions.
G. LIABILITY AND MEDICAL EXPENSES
DEFINITIONS
1. "Advertisement" means the widespread public
dissemination of information or images that
has the purpose of inducing the sale of goods,
products or services through:
a. (1) Radio;
(2) Television;
(3) Billboard;
(4) Magazine;
(5) Newspaper;
b. The Internet, but only that part of a web
site that is about goods, products or
services for the purposes of inducing the
sale of goods, products or services; or
c. Any other publication that is given
widespread public distribution.
However, "advertisement" does not include:
a. The design, printed material, information
or images contained in, on or upon the
packaging or labeling of any goods or
products; or
b. An interactive conversation between or
among persons through a computer network.
2. "Advertising idea" means any idea for an
"advertisement".
3. "Asbestos hazard" means an exposure or
threat of exposure to the actual or alleged
properties of asbestos and includes the mere
presence of asbestos in any form.
4. "Auto" means a land motor vehicle, trailer or
semi-trailer designed for travel on public
roads, including any attached machinery or
equipment. But "auto" does not include
"mobile equipment".
5. "Bodily injury" means physical:
a. Injury;
b. Sickness; or
c. Disease
sustained by a person and, if arising out of the
above, mental anguish or death at any time.
6. "Coverage territory" means:
BUSINESS LIABILITY COVERAGE FORM
Form SS 00 08 04 05 Page 21 of 24
a. The United States of America (including its
territories and possessions), Puerto Rico
and Canada;
b. International waters or airspace, but only if
the injury or damage occurs in the course
of travel or transportation between any
places included in a. above;
c. All other parts of the world if the injury or
damage arises out of:
(1) Goods or products made or sold by you
in the territory described in a. above;
(2) The activities of a person whose home
is in the territory described in a.
above, but is away for a short time on
your business; or
(3) "Personal and advertising injury"
offenses that take place through the
Internet or similar electronic means of
communication
provided the insured's responsibility to pay
damages is determined in the United States of
America (including its territories and
possessions), Puerto Rico or Canada, in a
"suit" on the merits according to the
substantive law in such territory, or in a
settlement we agree to.
7. "Electronic data" means information, facts or
programs:
a. Stored as or on;
b. Created or used on; or
c. Transmitted to or from
computer software, including systems and
applications software, hard or floppy disks,
CD-ROMS, tapes, drives, cells, data
processing devices or any other media which
are used with electronically controlled
equipment.
8. "Employee" includes a "leased worker".
"Employee" does not include a "temporary
worker".
9. "Executive officer" means a person holding
any of the officer positions created by your
charter, constitution, by-laws or any other
similar governing document.
10. "Hostile fire" means one which becomes
uncontrollable or breaks out from where it was
intended to be.
11. "Impaired property" means tangible property,
other than "your product" or "your work", that
cannot be used or is less useful because:
a. It incorporates "your product" or "your work"
that is known or thought to be defective,
deficient, inadequate or dangerous; or
b. You have failed to fulfill the terms of a
contract or agreement;
if such property can be restored to use by:
a. The repair, replacement, adjustment or
removal of "your product" or "your work";
or
b. Your fulfilling the terms of the contract or
agreement.
12. "Insured contract" means:
a. A contract for a lease of premises.
However, that portion of the contract for a
lease of premises that indemnifies any
person or organization for damage by fire,
lightning or explosion to premises while
rented to you or temporarily occupied by
you with permission of the owner is
subject to the Damage To Premises
Rented To You limit described in Section
D. – Liability and Medical Expenses Limits
of Insurance.
b. A sidetrack agreement;
c. Any easement or license agreement,
including an easement or license
agreement in connection with construction
or demolition operations on or within 50
feet of a railroad;
d. Any obligation, as required by ordinance,
to indemnify a municipality, except in
connection with work for a municipality;
e. An elevator maintenance agreement; or
f. That part of any other contract or
agreement pertaining to your business
(including an indemnification of a
municipality in connection with work
performed for a municipality) under which
you assume the tort liability of another
party to pay for "bodily injury" or "property
damage" to a third person or organization,
provided the "bodily injury" or "property
damage" is caused, in whole or in part, by
you or by those acting on your behalf.
Tort liability means a liability that would be
imposed by law in the absence of any
contract or agreement.
Paragraph f. includes that part of any
contract or agreement that indemnifies a
railroad for "bodily injury" or "property
damage" arising out of construction or
demolition operations within 50 feet of any
railroad property and affecting any railroad
bridge or trestle, tracks, road-beds, tunnel,
underpass or crossing.
However, Paragraph f. does not include
that part of any contract or agreement:
BUSINESS LIABILITY COVERAGE FORM
(1) That indemnifies an architect,
engineer or surveyor for injury or
damage arising out of:
(a) Preparing, approving or failing to
prepare or approve maps, shop
drawings, opinions, reports,
surveys, field orders, change
orders, designs or drawings and
specifications; or
(b) Giving directions or instructions,
or failing to give them, if that is the
primary cause of the injury or
damage; or
(2) Under which the insured, if an
architect, engineer or surveyor,
assumes liability for an injury or
damage arising out of the insured's
rendering or failure to render
professional services, including those
listed in (1) above and supervisory,
inspection, architectural or
engineering activities.
13. "Leased worker" means a person leased to
you by a labor leasing firm under an
agreement between you and the labor leasing
firm, to perform duties related to the conduct of
your business. "Leased worker" does not
include a "temporary worker".
14. "Loading or unloading" means the handling of
property:
a. After it is moved from the place where it is
accepted for movement into or onto an
aircraft, watercraft or "auto";
b. While it is in or on an aircraft, watercraft or
"auto"; or
c. While it is being moved from an aircraft,
watercraft or "auto" to the place where it is
finally delivered;
but "loading or unloading" does not include the
movement of property by means of a mechanical
device, other than a hand truck, that is not
attached to the aircraft, watercraft or "auto".
15. "Mobile equipment" means any of the following
types of land vehicles, including any attached
machinery or equipment:
a. Bulldozers, farm machinery, forklifts and
other vehicles designed for use principally
off public roads;
b. Vehicles maintained for use solely on or
next to premises you own or rent;
c. Vehicles that travel on crawler treads;
d. Vehicles, whether self-propelled or not, on
which are permanently mounted:
(1) Power cranes, shovels, loaders,
diggers or drills; or
(2) Road construction or resurfacing
equipment such as graders, scrapers
or rollers;
e. Vehicles not described in a., b., c., or d.
above that are not self-propelled and are
maintained primarily to provide mobility to
permanently attached equipment of the
following types:
(1) Air compressors, pumps and
generators, including spraying,
welding, building cleaning,
geophysical exploration, lighting and
well servicing equipment; or
(2) Cherry pickers and similar devices
used to raise or lower workers;
f. Vehicles not described in a., b., c., or d.
above maintained primarily for purposes
other than the transportation of persons or
cargo.
However, self-propelled vehicles with the
following types of permanently attached
equipment are not "mobile equipment" but
will be considered "autos":
(1) Equipment, of at least 1,000 pounds
gross vehicle weight, designed
primarily for:
(a) Snow removal;
(b) Road maintenance, but not
construction or resurfacing; or
(c) Street cleaning;
(2) Cherry pickers and similar devices
mounted on automobile or truck
chassis and used to raise or lower
workers; and
(3) Air compressors, pumps and
generators, including spraying,
welding, building cleaning,
geophysical exploration, lighting and
well servicing equipment.
16. "Occurrence" means an accident, including
continuous or repeated exposure to substantially
the same general harmful conditions.
17. "Personal and advertising injury" means injury,
including consequential "bodily injury", arising
out of one or more of the following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
BUSINESS LIABILITY COVERAGE FORM
Form SS 00 08 04 05 Page 23 of 24
c. The wrongful eviction from, wrongful entry
into, or invasion of the right of private
occupancy of a room, dwelling or
premises that the person occupies,
committed by or on behalf of its owner,
landlord or lessor;
d. Oral, written or electronic publication of
material that slanders or libels a person or
organization or disparages a person's or
organization's goods, products or services;
e. Oral, written or electronic publication of
material that violates a person's right of
privacy;
f. Copying, in your "advertisement", a
person’s or organization’s "advertising
idea" or style of "advertisement";
g. Infringement of copyright, slogan, or title of
any literary or artistic work, in your
"advertisement"; or
h. Discrimination or humiliation that results in
injury to the feelings or reputation of a
natural person.
18. "Pollutants" means any solid, liquid, gaseous or
thermal irritant or contaminant, including smoke,
vapor, soot, fumes, acids, alkalis, chemicals and
waste. Waste includes materials to be recycled,
reconditioned or reclaimed.
19. "Products-completed operations hazard";
a. Includes all "bodily injury" and "property
damage" occurring away from premises
you own or rent and arising out of "your
product" or "your work" except:
(1) Products that are still in your physical
possession; or
(2) Work that has not yet been completed
or abandoned. However, "your work"
will be deemed to be completed at the
earliest of the following times:
(a) When all of the work called for in
your contract has been completed.
(b) When all of the work to be done at
the job site has been completed if
your contract calls for work at
more than one job site.
(c) When that part of the work done at
a job site has been put to its
intended use by any person or
organization other than another
contractor or subcontractor
working on the same project.
Work that may need service, maintenance,
correction, repair or replacement, but
which is otherwise complete, will be
treated as completed.
The "bodily injury" or "property damage"
must occur away from premises you own
or rent, unless your business includes the
selling, handling or distribution of "your
product" for consumption on premises you
own or rent.
b. Does not include "bodily injury" or
"property damage" arising out of:
(1) The transportation of property, unless
the injury or damage arises out of a
condition in or on a vehicle not owned
or operated by you, and that condition
was created by the "loading or
unloading" of that vehicle by any
insured; or
(2) The existence of tools, uninstalled
equipment or abandoned or unused
materials.
20. "Property damage" means:
a. Physical injury to tangible property,
including all resulting loss of use of that
property. All such loss of use shall be
deemed to occur at the time of the
physical injury that caused it; or
b. Loss of use of tangible property that is not
physically injured. All such loss of use
shall be deemed to occur at the time of
"occurrence" that caused it.
As used in this definition, "electronic data" is
not tangible property.
21. "Suit" means a civil proceeding in which
damages because of "bodily injury", "property
damage" or "personal and advertising injury"
to which this insurance applies are alleged.
"Suit" includes:
a. An arbitration proceeding in which such
damages are claimed and to which the
insured must submit or does submit with
our consent; or
b. Any other alternative dispute resolution
proceeding in which such damages are
claimed and to which the insured submits
with our consent.
22. "Temporary worker" means a person who is
furnished to you to substitute for a permanent
"employee" on leave or to meet seasonal or
short-term workload conditions.
23. "Volunteer worker" means a person who:
a. Is not your "employee";
BUSINESS LIABILITY COVERAGE FORM
b. Donates his or her work;
c. Acts at the direction of and within the
scope of duties determined by you; and
d. Is not paid a fee, salary or other
compensation by you or anyone else for
their work performed for you.
24. "Your product":
a. Means:
(1) Any goods or products, other than real
property, manufactured, sold, handled,
distributed or disposed of by:
(a) You;
(b) Others trading under your name;
or
(c) A person or organization whose
business or assets you have
acquired; and
(2) Containers (other than vehicles),
materials, parts or equipment
furnished in connection with such
goods or products.
b. Includes:
(1) Warranties or representations made at
any time with respect to the fitness,
quality, durability, performance or use
of "your product"; and
(2) The providing of or failure to provide
warnings or instructions.
c. Does not include vending machines or
other property rented to or located for the
use of others but not sold.
25. "Your work":
a. Means:
(1) Work or operations performed by you
or on your behalf; and
(2) Materials, parts or equipment
furnished in connection with such work
or operations.
b. Includes:
(1) Warranties or representations made at
any time with respect to the fitness,
quality, durability, performance or use
of "your work"; and
(2) The providing of or failure to provide
warnings or instructions.
PREPARED BY: Salina Flores
Human Resources Director
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov
TOWN OF LOS GATOS
COUNCIL AGENDA REPORT
MEETING DATE: 05/17/2022
ITEM NO: 4
DATE: May 11, 2022
TO: Mayor and Town Council
FROM: Laurel Prevetti, Town Manager
SUBJECT: Authorize the Town Manager to Execute a Second Amendment to a Consultant Agreement for Executive Recruitment Services with Teri Black & Company, LLC. in an Amount Not to Exceed $139,500 and Authorize an Expenditure Budget Adjustment in the Amount of $40,000 from Available General Fund Capital/Special Project Reserve.
RECOMMENDATION:
Authorize the Town Manager to execute a Second Amendment (Attachment 1) to a Consultant Agreement for executive recruitment services with Teri Black & Company, LLC. (TB&Co.) in an amount not to exceed $139,500 and authorize an expenditure budget adjustment in the amount of $40,000 from available General Fund Capital/Special Project Reserve.
BACKGROUND:
In anticipation of executive retirements, the Town Council authorized the Town Manager to execute an agreement with TB&Co. on October 19, 2021 (Attachment 3). During the November 16, 2021, Council meeting, the Town Manager received additional authorization to execute a first amendment with TB&Co. for the purpose of facilitating up to three Director level recruitments (Attachment 2). Since then, the Parks and Public Works Director and Town Clerk have also submitted their resignations. Based on TB&Co.’s recent successful recruitment processes for the Town, the company was selected to conduct the Parks and Public Works Director and Town Clerk recruitments.
DISCUSSION:
The candidate pool for executive level positions is typically smaller, so it is not unusual for public sector agencies to outsource these recruitment processes to executive recruitment
PAGE 2 OF 2
SUBJECT: Authorize the Town Manager to Execute a Second Amendment to an Agreement for Consultant Services with Teri Black & Company, LLC.
DATE: May 11, 2022
DISCUSSION (continued):
search firms. Because executive search firms focus solely on recruitments, they have a vast number of contacts. They also have the resources and relationships to proactively contact candidates directly that may not be actively searching for a new opportunity and encourage those candidates to compete in a specific recruitment.
CONCLUSION:
Based on TB&Co.’s expertise related to successfully completing director level recruitments, staff is requesting authorization for the Town Manager to execute an amendment to the current agreement for services to increase the not to exceed amount to $139,500. A budget adjustment is also needed as described under the Fiscal Impact section below.
FISCAL IMPACT:
The additional cost of $56,000 brings the total not to exceed amount to $139,500. The Human Resources Department can absorb $16,000 of the $56,000 based on the Adopted FY 2021/22 Operating Budget and remaining $40,000 is needed from the available balance in the Town’s Capital/Special Projects Reserve.
ENVIRONMENTAL ASSESSMENT:
This is not a project defined under CEQA, and no further action is required.
Attachments:
1. Second Amendment - TB&Co.
2. First Amendment – TB&Co.
3. Agreement for Consultant Services – TB&Co.
SECOND AMENDMENT TO AGREEMENT FOR CONSULTANT SERVICES
THIS SECOND AMENDMENT TO AGREEMENT is entered into this 17th day of May, 2022, by and between the Town of Los Gatos, State of California, herein called the “Town,” and Teri Black & Company, LLC (“Consultant”), herein called the “Consultant.”
RECITALS
Town and Consultant entered into a Consultant Services Agreement on October 20, 2021, (“Agreement”), a copy of which is attached hereto and incorporated by reference as Attachment 3 to this Amendment.
AMENDMENT
1. Scope of Services of the Agreement is hereby amended to provide executive recruitment services for two additional recruitments: Parks and Public Works Director and Town Clerk.
2. Compensation by the Town for the Consultant’s services shall increase by an additional $56,000. The new not-to-exceed total amount for the agreement is $139,500. The Agreement is here by amended from $83,500 to $139,500.
3. All other terms and conditions of the Agreement dated October 20, 2021, remain in full force and effect.
IN WITNESS WHEREOF, the Town and Consultant have executed the Second Amendment to Agreement as of the date indicated on page one (1).
Town of Los Gatos: Consultant:
By: ______________________________ By: ______________________________ Laurel Prevetti Teri Black, President
Town Manager Teri Black & Company, LLC
Department Approval:
__________________________
Salina Flores
Human Resources Director
Approved as to Form: Approved as to Form:
_____________________________________ _____________________________________ Robert Schultz Shelley Neis, MMC, CPMC
Town Attorney Town Clerk
ATTACHMENT 1
This Page
Intentionally
Left Blank
TERI BLACK & COMPANY, LLC – EXECUTIVE RECRUITMENT SERVICES FIRST AMENDMENT – NOVEMBER 2021
ATTACHMENT 2
FIRST AMENDMENT TO AGREEMENT
This AMENDMENT TO AGREEMENT is dated for identification this 17th day of November, 2021 and amends that certain agreement for executive recruitment services dated October 20, 2021, made by and between the Town of Los Gatos, ("Town") and Teri Black & Company, LLC (“Consultant”).
RECITALS
A. Town and Consultant entered into a Consultant Services Agreement on October 20, 2021, (“Agreement”), a copy of which is attached hereto and incorporated by reference as Attachment 1 to this Amendment.
AMENDMENT
1. Section 2.6 “Compensation” is amended to read as follows:
Compensation by the Town for the Consultant’s services shall increase by an additional $21,000 plus expenses not-to-exceed $8,500 for the Council Appointed Town Attorney recruitment. The new not-to-exceed total amount for the agreement is $83,500.
2. All other terms and conditions of the Agreement remain in full force and effect.
IN WITNESS WHEREOF, the Town and Consultant have executed this Amendment.
Town of Los Gatos Approved as to Consent:
By: _______________________________ By: ______________________________ Laurel Prevetti, Town Manager Teri Black, President
Teri Black & Company, LLC
Department Approval:
_______________________________________
Lisa Velasco, Human Resources Director
Approved as to Form: Attest:
______________________________ ______________________________ Robert Schultz, Town Attorney Shelley Neis, MMC, CPMC
Town Clerk
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TERI BLACK & COMPANY, LLC – EXECUTIVE RECRUITMENT SERVICES TOWN OF LOS GATOS - 2021 Page 1 of 6
AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is made and entered into on October 20, 2021 by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and Teri Black & Company, LLC (“Consultant”), whose address is 25500 Hawthorne Blvd., Suite 1158, Torrance, CA 90505. This Agreement is made with reference to the following facts.
I. RECITALS
1.1 The Town desires to engage Consultant to provide executive recruitment services for the position of two director-level recruitments.
1.2 The Consultant represents and affirms that it is willing to perform the desired work pursuant to this Agreement.
1.3 Consultant warrants it possesses the distinct professional skills, qualifications, experience, and resources necessary to timely perform the services described in this Agreement.
Consultant acknowledges Town has relied upon these warranties to retain Consultant.
II. AGREEMENTS
2.1 Scope of Services. Consultant shall provide services as described in that certain proposal sent to the Town on September 15, 2021, which is hereby incorporated by reference and attached as Exhibit A.
2.2 Term and Time of Performance. This contract will remain in effect from October 20, 2021 to October 31, 2023. Consultant shall perform the services described in the proposal labeled Exhibit A.
2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos.
2.4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement.
2.5 Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services
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pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant.
2.6 Compensation. Compensation for Consultant's professional services shall not exceed $54,000, inclusive of all costs. The fee for each of the executive recruitment searches is $18,500, plus an additional $8,500 is allocated for reimbursable expenses. Payment shall be based upon Town approval of each task.
2.7 Billing. Billing shall be monthly by invoice within thirty (30) days of the rendering of the service and shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form.
Payment shall be net thirty (30) days. All invoices and statements to the Town shall be emailed to [email protected].
2.8 Availability of Records. Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town.
2.9 Assignability and Subcontracting. The services to be performed under this Agreement are unique and personal to the Consultant. No portion of these services shall be assigned or subcontracted without the written consent of the Town.
2.10 Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of
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compensation, unless such litigation is brought by Consultant or is based on allegations of Consultant's negligent performance or wrongdoing.
2.11 Conflict of Interest. Consultant understands that its professional responsibilities are solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship.
2.12 Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act.
III. INSURANCE AND INDEMNIFICATION
3.1 Minimum Scope of Insurance:
i. Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm to an amount not less than: one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. ii. Consultant agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences.