01180.0009/449890.5
MARKETING AGREEMENT
This MARKETING AGREEMENT ("Agreement") is entered into as of April 24, 2018 ("Effective Date"), by and between the City of Rialto/Rialto Utility Authority (“RUA”), and Service Line Warranties of America, Inc. (“Company”), herein collectively referred to singularly as "Party" and collectively as the "Parties".
RECITALS
WHEREAS, sewer and water line laterals between the mainlines and the connection on residential private property are owned by individual residential property owners residing in the City ("Residential Property Owner"); and
WHEREAS, RUA desires to offer Residential Property Owners the opportunity, but not the obligation, to purchase a service line warranty and other similar products set forth in Exhibit A or as otherwise agreed in writing from time-to-time by the Parties (each, a “Product” and collectively, the "Products"); and
WHEREAS, Company is the administrator of the National League of Cities Service Line Warranty Program and has agreed to make the Products available to Residential Property Owners subject to the terms and conditions contained herein; and
NOW, THEREFORE, in consideration of the foregoing recitals, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and with the intent to be legally bound hereby, the Parties agree as follows:
AGREEMENT
1. Purpose. RUA hereby grants to Company the right to offer and market the Products to Residential Property Owners subject to the terms and conditions herein.
2. Grant of License. RUA hereby grants to Company a non-exclusive license ("License") to use the City of Rialto's name and logo on letterhead, advertising, and marketing materials to be sent to Residential Property Owners from time to time, and to be used in advertising (including on the Company’s website), all at Company's sole cost and expense and subject to RUA's prior review and approval, which will not be unreasonably conditioned, delayed, or withheld.
Company shall have no right to use the City of Rialto's name or logo for any other purposes not specifically provided for in this Agreement. RUA agrees that it will not extend a similar license to any competitor of Company during the Term and any Renewal Term of this Agreement.
3. Term. The term of this Agreement ("Term") shall be for three (3) years from the Effective Date. The Agreement will automatically renew for three (3) additional one (1) year terms ("Renewal Term") unless one of the Parties gives the other written notice at least ninety (90) days prior to end of the Term or of a Renewal Term that the Party does not intend to renew this Agreement. In the event that Company is in material breach of this Agreement, RUA may DocuSign Envelope ID: CA37B6AB-2E0E-4C72-91AF-024DFBCCA8E9 01180.0009/449890.5
terminate this Agreement thirty (30) days after giving written notice to Company of such breach, if said breach is not cured during said thirty (30) day period. Company will be permitted to complete any marketing initiative, not constituting or contributing to a breach of this Agreement, that is initiated or planned prior to termination of this Agreement, after which time, neither Party will have any further obligations to the other and this Agreement will terminate.
4. Consideration. As consideration for such license, Company will pay to RUA a License Fee as set forth in Exhibit A ("License Fee") during the term of this Agreement. The first payment shall be due by January 30th of the year following the conclusion of first year of the Term. Succeeding License Fee payments shall be made on an annual basis throughout the Term and any Renewal Term, due and payable on January 30th of the succeeding year. RUA will have the right, at its sole expense, to conduct an audit, upon reasonable notice and during normal business hours, of Company's books and records pertaining to any fees due or any other performance under this Agreement while this Agreement is in effect and for one (1) year after any termination of this Agreement. Company shall provide quarterly reports to RUA detailing the number of enrollments and the number of claims filed by Residential Property Owners.
5. Indemnification. Company hereby agrees to protect, defend, indemnify, and hold RUA, its elected officials, officers, employees and agents (collectively or individually, "Indemnitee") harmless from and against any and all third party claims, damages, losses, expenses, suits, actions, decrees, judgments, awards, reasonable attorneys' fees and court costs (individually or collectively, "Claim"), which an Indemnitee may suffer or which may be sought against or are recovered or obtainable from an Indemnitee, as a result of or arising out of this Agreement with Company, or any negligent or fraudulent act or omission of Company or its officers, employees, contractors, subcontractors, or agents in the performance of services under this Agreement or the Products; provided that the applicable Indemnitee notifies Company of any such Claim within a time that does not prejudice the ability of Company to defend against such Claim. Any Indemnitee hereunder may participate in its, his, or her own defense, but will be responsible for all costs incurred, including reasonable attorneys' fees, in connection with such participation in such defense. Such indemnification shall not cover any Claim due to the sole negligence or willful misconduct of RUA.
6. Insurance. Attached hereto as Exhibit B is a Certificate of Insurance documenting the insurance program for Company. Company agrees that it will cause the City of Rialto/Rialto Utility Authority to be made an additional insured under all applicable insurance policies.
Company further agrees that it will provide RUA with thirty (30) days’ advance written notice of any change to its insurance program that results in a material reduction of coverage.
7. Notice. Any notice required to be given hereunder shall be deemed to have been given when notice is (i) received by the Party to whom it is directed by personal service, (ii) sent by electronic mail (provided confirmation of receipt is provided by the receiving Party), or (iii) deposited as registered or certified mail, return receipt requested, with the United States Postal Service, addressed as follows:
DocuSign Envelope ID: CA37B6AB-2E0E-4C72-91AF-024DFBCCA8E9 01180.0009/449890.5
T o : R UA:
ATTN: Rialto Utility Authority
c/o City of Rialto
150 South Palm Avenue
Rialto, CA 92376-6487
Phone: (909) 820-2525
To: Company:
ATTN: Chief Sales Officer
Utility Service Partners Private Label, Inc.
11 Grandview Circle, Suite 100
Canonsburg, PA 15317
Phone: (866) 974-4801
8. Modifications or Amendments/Entire Agreement. Any and all of the representations and obligations of the Parties are contained herein, and no amendments or other modifications of this Agreement shall be binding unless executed in writing by both Parties hereto, or their respective successors, assigns, or grantees.
9. Assignment. This Agreement and the License granted herein may not be assigned by Company, other than to an affiliate or an acquirer of all or substantially all of its assets with thirty (30) days prior written notice to RUA, without the prior written consent of RUA, such consent not to be unreasonably withheld.
10. Relationship of the Parties. The Parties are, and shall at all times remain as to each other, wholly independent entities. No Party to this Agreement shall have power to incur any debt, obligation, or liability on behalf of any other Party unless expressly provided to the contrary by this Agreement. No employee, agent, or officer of a Party shall be deemed for any purpose whatsoever to be an agent, employee, or officer of another Party.
11. Covenant Against Discrimination. Company covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class in the performance of services related to this Agreement. Company shall take affirmative action to insure that employees and independent contractors are treated without regard to their race, color, creed, religion, sex, gender, sexual orientation, marital status, national origin, ancestry or other protected class.
12. Unauthorized Aliens. Company hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ or independently contract unauthorized aliens as defined therein. Should Company so employ or independently contract such unauthorized aliens for the performance of services related to this Agreement, and should any liability or sanctions be imposed against RUA for such use of unauthorized aliens, DocuSign Envelope ID: CA37B6AB-2E0E-4C72-91AF-024DFBCCA8E9 01180.0009/449890.5
Company hereby agrees to and shall reimburse RUA for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys’ fees, incurred by RUA.
13. Counterparts/Electronic Delivery; No Third Party Beneficiary. This Agreement may be executed in counterparts, all such counterparts will constitute the same contract and the signature of any Party to any counterpart will be deemed a signature to, and may be appended to, any other counterpart. Executed copies hereof may be delivered by facsimile or e-mail and upon receipt will be deemed originals and binding upon the Parties hereto, regardless of whether originals are delivered thereafter. Nothing expressed or implied in this Agreement is intended, or should be construed, to confer upon or give any person or entity not a party to this agreement any third- party beneficiary rights, interests, or remedies under or by reason of any term, provision, condition, undertaking, warranty, representation, or agreement contained in this Agreement.
14. Choice of Law/Attorney Fees. The governing law shall be the laws of the State of California. In the event that at any time during the Term or any Renewal Term either Party institutes any action or proceeding against the other relating to the provisions of this Agreement or any default hereunder, then the unsuccessful Party shall be responsible for the reasonable expenses of such action including reasonable attorney's fees, incurred therein by the successful Party.
15. Incorporation of Recitals and Exhibits. The above Recitals and Exhibit A attached hereto are incorporated by this reference and expressly made part of this Agreement.
[SIGNATURE PAGE FOLLOWS]
DocuSign Envelope ID: CA37B6AB-2E0E-4C72-91AF-024DFBCCA8E9 01180.0009/449890.5
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year first written above.
RUA:
CITY OF RIALTO/RIALTO UTILITY
AUTHORITY, a municipal corporation
ATTEST:
By:_
Barbara McGee, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
By:_
Fred Galante, City Attorney
By:
Deborah Robertson, Mayor
COMPANY:
UTILITY SERVICE PARTNERS PRIVATE
LABEL, INC.
By:
Michael Backus, Chief Sales Officer
DocuSign Envelope ID: CA37B6AB-2E0E-4C72-91AF-024DFBCCA8E9
01180.0009/449890.5
EXHIBIT A
NLC Service Line Warranty Program
City of Rialto/Rialto Utility Authority
Term Sheet
November 6, 2017
I. Initial Term. Three (3) years
II. License Fee. $0.75 per Product for each month that a Product is in force for a Residential Property Owner (and for which payment is received by Company), aggregated and paid annually, for:
a. License to use the City of Rialto’s name and logo on letterhead, advertising, and marketing materials
III. Products.
a. External sewer/septic line warranty (initially, $9.75 per month; $112.00 annually) b. External water service line warranty (initially, $6.75 per month; $76.00 annually) c. In-home plumbing warranty (initially, $9.99 per month; $114.99 annually)
Company may adjust the foregoing Product fees with notice to the Residential Property Owners that have contracted Company’s services; provided, that any such adjustment shall not exceed $.50 per month in any 12-month period, unless otherwise agreed by the Parties in writing.
IV. Scope of Coverage.
a. External sewer/septic line warranty: Scope is from the main tap until line daylights inside home, which includes the service line under the concrete floor. (Covers septic lines if applicable)
b. External water service line warranty: Scope is from the meter and/or curb box until it daylights inside home, which includes the service line under the concrete floor. (Covers well service lines if applicable)
c. In-home plumbing warranty: Scope covers residential in-home water supply lines and in-home sewer lines and all drain lines connected to the main sewer stack that are broken or leaking inside the home after the point of entry. Coverage includes broken or leaking water, sewer, or drain lines that may be embedded under the slab or basement floor. Coverage also includes repair of clogged toilets.
V. Marketing Campaigns. Company shall have the right to conduct up to three campaigns per year, comprised of up to six mailings per year, and such other channels as may be mutually agreed. Initially, Company anticipates offering the In-home plumbing warranty Product via in-bound channels only.
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EXHIBIT B
Certificate of Insurance
DocuSign Envelope ID: CA37B6AB-2E0E-4C72-91AF-024DFBCCA8E9 Holder Identifier : 7777777707070700077761616045571110766706234026755307661017440635311071461577367303320760417010662111207573732567166674070533764731677720704101646637556007251374232244030076727242035772000777777707000707007 7777777707070700073525677115456000766001502463457507671005560733126074233367060330040743623365317740007122633316122015070222273521621100712223735217211107023337342073001077756163351765540777777707000707007 Certificate No : 570069767468
CERTIFICATE OF LIABILITY INSURANCE
DATE(MM/DD/YYYY )
12/29/2017
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).
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATI ON ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AM END, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE P OLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONST ITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AU THORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
PRODUCER
Aon Risk Services Northeast, Inc.
Stamford CT Office
1600 Summer Street
Stamford CT 06907-4907 USA
PHONE
(A/C. No. Ext):
E-MAIL
ADDRESS :
INSURER(S) AFFORDING COVERAGE NAIC #
(866) 283-7122
INSURED 16624 Allied World Specialty Insurance Company INSURER A :
10690 Allied World National Assurance Company INSURER B :
30830 Arch Indemnity Insurance Company INSURER C :
11150 Arch Insurance Company INSURER D :
INSURER E :
INSURER F :
FAX
(A/C. No .): (800) 363-0105
CONTACT
NAME:
Utility Service Partners, Inc.
11 Grandview CIR Ste 100
Canonsburg PA 15317-6508 USA COVERAGES CERTIFICATE NUMBER :570069767468 REVISION NUMBER :
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 R ESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSUR ANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS S UBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES . LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS . Limits shown are as requested
POLICY EXP
(MM /DD /YYYY )
POLICY EFF
(MM /DD /YYYY )
SUBR
WVD
INSR
LTR
ADDL
INSD POLICY NUMBER TYPE OF INSURANCE LIMITS
COMMERCIAL GENERAL LIABILITY
CLAIMS-MADE OCCUR
POLICY LOC
EACH OCCURRENCE
DAMAGE TO RENTED
PREMISES (Ea occurrence )
MED EXP (Any one person )
PERSONAL & ADV INJURY
GENERAL AGGREGATE
PRODUCTS - COMP /OP AGG
X
X
X
GEN 'L AGGREGATE LIMIT APPLIES PER :
$2,000,000
$100,000
$5,000
$2,000,000
$4,000,000
$4,000,000
B 03/31/2017 03/31/2018 03100758
PRO-
JECT
OTHER :
AUTOMOBILE LIABILITY
ANY AUTO
OWNED
AUTOS ONLY
SCHEDULED
AUTOS
HIRED AUTOS
ONLY
NON-OWNED
AUTOS ONLY
BODILY INJURY ( Per person)
PROPERTY DAMAGE
(Per accident)
X
BODILY INJURY (Per accident)
$1,000,000 A 03/31/2017 03/31/2018
AOS
0310-0759
A 03/31/2017 03/31/2018
MA
COMBINED SINGLE LIMIT
(Ea accident)
6000-0216
EXCESS LIAB
X OCCUR
CLAIMS-MADE AGGREGATE
EACH OCCURRENCE
DED
$5,000,000
$5,000,000
$10,000
03/31/2017 UMBRELLA LIAB B 03/31/2018 03106305
RETENTION X
X
E.L. DISEASE-EA EMPLOYEE
E.L. DISEASE-POLICY LIMIT
E.L. EACH ACCIDENT
$1,000,000
X OTH-
ER
PER
STATUTE
D
12/31/2017 03/31/2018
AOS
14WCI8946101
C 12/31/2017 03/31/2018
$1,000,000
Y / N
(Mandatory in NH)
ANY PROPRIETOR / PARTNER / EXECUTIVE
OFFICER/MEMBER EXCLUDED? N / AN
CA, KY, NY, TX
WORKERS COMPENSATION AND
EMPLOYERS' LIABILITY
If yes, describe under
DESCRIPTION OF OPERATIONS below
$1,000,000
11WCI8946001
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Evidence of Insurance.
CANCELLATION CERTIFICATE HOLDER
AUTHORIZED REPRESENTATIVE
Utility Service Partners, Inc.
11 Grandview Circle, Suite 100
Canonsburg PA 15317-6508 USA
ACORD 25 (2016/03)
©1988-2015 ACORD CORPORATION. All rights reserved.
The ACORD name and logo are registered marks of ACORD
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCE LLED BEFORE THE
EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS .
DocuSign Envelope ID: CA37B6AB-2E0E-4C72-91AF-024DFBCCA8E9