Contract No. 4384
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") entered into on Sept. 1B 2017 ("Effective Date"), by and between Open Counter Enterprises, Inc., a Delaware corporation with principal offices at 25 Taylor Street, San Francisco, CA 94102 ("Vendor" or "OpenCounter"), and City of Santa Monica, a California municipal corporation ("City") is made with reference to the following:
RECITALS:
A City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. OpenCounter has provided numerous public agencies with the software and services designed to enable permit discovery and application processing.
C. Vendor is a Delaware corporation that markets and supports certain software applications licensed hereunder. In response to the City's Request for Information, Open Counter submitted its Proposal to license OpenCounter's Hosted Services (Proposal"), which is attached hereto as Exhibit A and incorporated herein by reference.
D. City desires to contract with OpenCounter due to its unique position in the marketplace, its expertise in providing an innovative online solution tailored to the citizen experience; its approach to small business permit discovery and application processing; and its expertise in integrating with Accela, the City's chosen technology solution and provider that offers an advanced online data management and permit processing system that integrates with OpenCounter's Hosted Services E.. City and Vendor desire to enter into this Agreement upon the terms and conditions - set forth below.
F. OpenCounter is willing to provide to City Hosted Services and related professional services in accordance with the terms and conditions set forth below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as • follows:
TERMS AND CONDITIONS
1. Definitions. The following definitions shall apply to the terms as they appear in this Agreement:
1.1 "Application" means an application for a permit or license submitted by a Permit Applicant through the Hosted Services.
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1.2 "Vendor" or "OpenCounter" means and refers to Open Counter Enterprises Inc.
1.3 "City" means and refers to the City of Santa Monica.
1.4 "City Content" means the content and materials provided by City to OpenCounter, including without limitation regulations, statutes, ordinances and summaries thereof, fee tables and other tables. City Content is and shall remain the sole and exclusive property of the City and all right, title, and interest in the same is reserved by the City. This shall survive termination of the Agreement. OpenCounter may not publish or reproduce any City Content for purposes unrelated to Open Counter's work on behalf of the City, without the prior written consent of the City.
1.5 "Hosted Services" means OpenCounter's hosted platform identified on the Proposal and licensed by City under this Agreement during the Term. "Application Data" means the information, data and files, including any personally identifiable data, inputted, entered into or otherwise transmitted into the Hosted Services by either the City or Permit Applicants, or generated by the Hosted Services, in connection with Applications submitted by Permit Applicants.
1.7 "Authorized Users" means employees, contractors and agents of City who are authorized by City to access and use the Hosted Services on behalf of City under this Agreement. The maximum number of Authorized Users is set forth in the Proposal. City agrees that it will not knowingly grant "Authorized User" access to the Hosted Services to any party who is an employee, contractor or agent of a competitor of Open Counter.
1.8 "Documentation" means the user manuals, knowledge base and other technical information found at the following URLs (or successor URLs):
https://help.ovencounter.com and htps://opencounter.com/docs.
1.9 "Intellectual Property Rights" means all patent rights, copyright rights, utility models rights, trade secret rights, trademark rights (including all goodwill associated therewith), rights of publicity, authors' rights, mask work rights, industrial rights, and all other intellectual property, proprietary or other rights, as may exist now and/or hereafter come into existence, including without limitation, (a) all rights, whether existing now or in the future, whether statutory or common law, whether subject to protection under statute, regulation or common law, in any jurisdiction in the world, together with all national, foreign and all applications therefor and state registrations, applications for registration and all renewals and extensions thereof (including, without limitation, any continuations, continuations in-part, divisionals, reissues, re-examinations, renewals and extensions thereof); (b) all benefits, privileges, causes of action and remedies relating to any of the foregoing, whether before or hereafter accrued 1506582.1
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(including, without limitation, the exclusive rights to apply for and maintain all such registrations, renewals and extensions); and (c) all rights to sue for all past, present and future infringements or other violations of any of the foregoing rights, and the right to settle and retain proceeds from any such actions.
1.10 "Liability" means any and all damages (including punitive damages), losses, expenses (including reasonable attorneys' fees and litigation costs); claims, demands, suits, causes of action, settlements, payments, awards, judgments, liens, fines, fees, penalties, interest and other liability.
1.11 "Term" has the meaning in Section 18.
1.12 "Permit Applicants" means individuals and businesses applying, through the Hosted Services, for one or more permits or licenses issued by City.
1.13 "Territory" means the territory where the City is located.
1.14 "Confidential Information" means any information disclosed by one party to the other, which, if in written, graphic, machine-readable or other tangible form is marked as "Confidential' or "Proprietary", if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and reduced to a writing marked "Confidential" and delivered to the received party within thirty (30) days of such disclosure, or which because of its nature should have reasonably been understood by the receiving party to be confidential even in the absence of actual notification of such status. Confidential information shall include, without limitation, information regarding an applicant's or party's business plans, finances, pricing, products or services, research and development, and City information. Confidential information may also include information disclosed to a disclosing party by third parties. The Hosted Service and all features and functions therein shall be the Confidential Information of OpenCounter.
2. License Grant. Upon completion of the implementation described in Exhibit A, and in consideration of all obligations of the City hereunder, including, without limitation, the payment by City of any applicable fees, OpenCounter hereby grants to the City, during the Term of this Agreement, a non exclusive, non-transferable, right and license to access and use the Hosted Service, and to make a reasonable number of copies of and use the Documentation in connection with such use of the Hosted Service.
3. License Use.
3.1 City shall not copy the Hosted Services or use the Hosted Services or documentation to create a product or service which is similar to or competitive with any portion of the Hosted Services or other offerings of Vendor.
3.2 City shall not (i) reverse engineer any part of the Hosted Services; (ii) distribute, sell or otherwise transfer access to any part of the Hosted Services; and (ili) 1506582.1
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remove the patent, copyright, trade secret or other proprietary protection legends or notices which appear on or in the Hosted Services.
3.3 City shall not create any derivative work or product based on or derived from the Hosted Services or documentation or modify any Hosted Services or documentation without the prior written consent of Vendor. In the event of a breach of this provision (and without limiting Vendor's remedies) said modification, derivative work or product based on the Hosted Services or documentation is hereby deemed assigned to Vendor.
3.4 Access by Authorized Users. During the Term of the Agreement, City shall have the right to permit its Authorized Users to access and use the Hosted Services on behalf of City through the administrative portal of the Hosted Services. City agrees (on behalf of itself and its Authorized Users) that: (a) in registering to access the Hosted Services, City and Authorized Users will provide true, accurate and complete information; (b) City and Authorized Users will maintain the confidentiality and security of the login credentials used to access the Hosted Services ("Login Credentials"); (c) City and Authorized Users will not transfer, share, disclose or resell such Login Credentials or otherwise share or transfer access to the Hosted Services to any third party; (d) City and Authorized Users will promptly notify Open Counter of any unauthorized use of such Login Credentials or City's account with OpenCounter; and (e) after accessing the Hosted Services, City and Authorized Users will "log off" and exit from their session at the end of each session. OpenCounter will not be liable for any Liability arising from City's failure to comply with the foregoing, and City is entirely responsible for all activities taking place through City's Login Credentials and actions taken by its Authorized Users.
3.5 Feedback. With respect to comments, suggestions, enhancement requests, recommendations or other feedback relating to the Hosted Services provided by City, its employees, agents, project manager and/or Authorized Users ("Feedback"), Vendor shall have the right to freely use such Feedback for any and all purposes whatsoever, without restriction.
3.6 Limited Use of Application Data and City Content. City hereby grants to Vendor a limited, non-exclusive, royalty-free, fully paid up, non-transferable (except as permitted under Section 16) right and license, during the Term, to use, store, process, modify, reproduce, distribute and display the Application Data and City Content for OpenCounter's internal business purpose. This limited use is for the sole purposes of providing the Hosted Services and related professional services (e.g., implementation) to the City pursuant to this Agreement and for no other purpose whatsoever. For purposes of clarity, Vendor will not transfer or sell the Application Data to any third parties, and will require that any subcontractors who have access to Application Data to agree to the preceding restriction.
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3.7 Publicly Available Data and Documents. The parties acknowledge and agree that Vendor shall have the unrestricted right to freely use any publicly available documents, data, content which is made publicly available by City and that nothing in this Agreement is intended to limit or prohibit such use of public records.
Aggregated Data. City hereby grants to Vendor a limited, non-exclusive, royalty- free, fully paid up, non-transferable (except as permitted under Section 16) right and license, during and after the Term, to use, store, process, modify, reproduce, display, perform, distribute, disclose and otherwise exploit in any manner Aggregated Data for OpenCounter's business purposes, including disclosure within its public statements and marketing materials describing and/or promoting Open Counter and/or the Hosted Service. As used herein, "Aggregated Data" means any data obtained by OpenCounter, including data pertaining to the Hosted Service, OpenCounter's systems and software, and the use of any of the foregoing, and data which may be derived from Application Data, which in all instances does not identify an individual, Applicant or Permit Applicant. Aggregated Data does not include any information that identifies an individual, such as an individual's social security number or other government- issued identification number, date of birth, address, telephone number, biometric data, mother's maiden name, email address, credit card information, or an individual's name in combination with any other of the elements listed above. Aggregated Data includes data that has been combined into databases which include third party data.
3.9 Consents from Permit Applicants. Both parties represent, warrant and agrees that: (a) each will comply with applicable law, including the laws of the territories from which any Application Data is obtained, in transmitting and in soliciting the transmission of, Application Data into the Hosted Services as contemplated under this Agreement; and (b) prior to transmitting (or soliciting the transmission of any Application Data to Vendor through the Hosted Services, the Hosted Services will have a function that obtains each Applicant or Permit Applicant all applicable consents and approvals required for the transmission of such Application Data to Vendor and for the grant of the licenses to Vendor. The Hosted Services shall require that Permit Applicants provide such consent as a condition of accessing the Hosted Services, and upon City's request, Vendor will implement, as part of the Hosted Services, the provision of such consents by Permit Applicants.
4. Prohibited Information. Notwithstanding anything else in this Agreement, the parties acknowledge and agree that (a) Applicants and City have sole control over any and all Application Data that is provided and/or transmitted into the Hosted Services; (b) Open Counter does not require receipt of or access to any specific type or amount of information to be transmitted to OpenCounter.Software Services. 1506582.1
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4.1 Vendor shall provide services as outlined in this Agreement, including the Proposal attached hereto, the Documentation and supplemental modifications attached hereto. Such services include project consulting and implementation, annual support and maintenance, training, and configuration assistance to the extent described in the Proposal. Vendor shall provide support for the Hosted Services as set forth Vendor's support services policy ("Support Policy") found at https://opencounter.com/support (or successor URL). Vendor's Support Policy as of the Effective Date is attached as Exhibit C. Vendor has the right to modify its Support Policy from time to time, effective immediately by posting an updated Support Policy, provided that Vendor will not materially degrade the level of support services during the Term of this Agreement. Vendor will respond to errors and malfunctions of the Hosted Services in accordance with the service level agreement as set forth in the Support Policy.
4.2 Vendor will determine and City shall review qualifications and approve or reasonably disapprove the key personnel to be assigned to perform the services under this Agreement, an engagement letter, scope of work, exhibit or other written amendment. Vendor shall be required to provide functional and technical resources as required to provide the services required hereunder. In the event of any changes to the Vendor's key personnel, Vendor will notify the City immediately in writing. Vendor agrees that any replacement of any listed individuals will be made with individuals of comparable or higher experience, and that the composition of Vendor's employees or subcontractors assigned to this Agreement will be maintained in a manner that provides the same or higher level of services to the City. The City reserves the reasonable right to approve or disapprove any individuals proposed by Vendor to be included as part of Vendor's staff assigned to this Agreement. In the event of any additional staffing or personnel changes by Vendor, Vendor agrees to absorb all expenses and costs associated with such change and shall not charge the City with such expenses or costs under this Agreement.
4.3 Either party may request at any time the removal of any individual performing services if that party: (i) reasonably believes that individual is not qualified to perform the services or does not meet appropriate professional standards; and (ii) previously provided the other party with written notice of the problem and a reasonable opportunity to remedy the situation.
5. Installation. Vendor will initiate access the Hosted Services in accordance to the schedule attached as Exhibit A.
6. License Fees and Support Services Fees. City shall pay to Vendor an amount not to exceed $142,500 as set forth in Exhibit B.
6.1 License Fee. City shall pay Vendor a Software License Fee in the amount of $37,500 per annum ($112,500 over three year term) as specified in Exhibit B. 1506582.1
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6.2 Payment Schedule for License Fees. The license fee shall be paid according to the following schedule:
Invoices Date Amount
• Year 1 Effective Date $37,500
Subscription
Configuration / At final acceptance testing $30,000
Translation Costs
Year 2 Anniversary of Effective Date $37,500
Subscription - May
be invoiced on or
prior to the
anniversary of
Effective Date
Year 3 Anniversary of Effective Date $37,500
Subscription - May
be invoiced on or
prior to the
anniversary of
Effective Date
6.3 Services Component. The fees for the services component shall not exceed $30,000 and shall be paid according to Exhibit B. Services beyond those outlined below shall be at an additional cost to City
7. Ownership. As between the parties, City owns and shall retain all right, title and interest (including without limitation all Intellectual Property Rights) in and to the Applications submitted via the Hosted Services, Application Data, City Content, and City's systems and networks. City reserves all rights not expressly granted to Open Counter under this Agreement
8. Limited Warranty.
8.1 Performance. Vendor warrants that, during the Term, the Hosted Services will conform in all material respects to the applicable specifications contained in the Proposal. In the event that the Hosted Services do not meet the foregoing warranty, Vendor's sole obligation and City's exclusive remedy shall be for Vendor to replace the Hosted Services with corrected Hosted Services within thirty (30) days after receipt of notice of such breach(es) from City. For 1506582.1
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purposes of clarity, nothing in the preceding sentence is intended to limit City's right or ability to make a claim against or collect from Vendor's insurance policies to the extent that Vendor's liability to City under this Section is covered and paid for by the insurance policies described in Exhibit D of this Agreement.
8.2 The Hosted Services shall continue to perform in accordance with Vendor's most current Documentation, which may be modified from time to time.
8.3 In the event of a conflict between the terms of this Agreement and Vendor's most current Documentation, the terms of this Agreement shall control. This Agreement may only be amended by consent of both parties, and in writing.
8.4 Any modification or enhancement of the Hosted Services shall satisfy the warranties and conditions set forth in this Section.
8.5 Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES OR
REPRESENTATIONS CONTAINED IN THIS AGREEMENT, EACH
PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY OF TITLE,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-
INFRINGEMENT, SATISFACTORY QUALITY, ACCURACY, AND ANY
WARRANTIES THAT MAY ARISE OUT OF COURSE OF
PERFORMANCE, DEALING, USAGE OR TRADE. VENDOR DOES NOT
WARRANT THAT THE HOSTED SERVICES WILL MEET CITY'S
REQUIREMENTS, WILL BE ERROR-FREE OR SECURE, OR THAT THE HOSTED SERVICES WILL BE UNINTERRUPTED. VENDOR DOES NOT
WARRANT THAT ANY APPLICATION DATA INPUT INTO THE
HOSTED SERVICES WILL BE ACCURATE OR FREE OF ERRORS, THE
OPERATION OF THE HOSTED SERVICES WILL BE COMPLETELY
SECURE, ERROR FREE OR UNINTERRUPTED, OR ALL ERRORS WILL BE CORRECTED. FOR PURPOSES OF CLARITY, NOTHING IN THIS
SECTION 8.5 IS INTENDED TO LIMIT CITY'S RIGHT OR ABILITY TO
MAKE A CLAIM AGAINST OR COLLECT FROM VENDOR'S
INSURANCE POLICIES TO THE EXTENT THAT VENDOR'S LIABILITY
TO CITY UNDER THIS SECTION IS COVERED AND PAID FOR BY THE
INSURANCE POLICIES DESCRIBED IN EXHIBIT D OF THIS
• AGREEMENT.
This section shall survive the termination of this Agreement.
9. Response Time. During the Term, in the event that the City encounters an error and/or malfunction whereby the Hosted Services do not function, Vendor will respond in accordance with Vendor's Support Policy attached hereto as Exhibit C.
10. Contract Documents. The City's request for proposal and Vendor's response are made a part of this Agreement. In the event that any terms or conditions of City's 1506582.1
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request for proposal and/or Vendor's response contradict the terms of this Agreement, the terms of this Agreement will prevail and control.
11. Insurance. Prior to commencing work, Vendor must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by Vendor or Vendor's agents, representatives, employees or subconsultants for the duration of this Agreement. Vendor must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit D, Insurance Requirements and Verifications. In addition, Vendor will provide Cyber Liability Insurance with limits of not less than $1,000,000 for each occurrence and an annual aggregate of $2,000,000 covering claims involving privacy violations, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information, alteration of electronic information, extortion and network security.
12. Indemnification.
12.1 By Vendor. Subject to Section 12.3, Vendor shall defend (and at Vendor's option settle) any claim brought against City by a third party: (i) alleging that City's authorized use and access of the Hosted Services (except for any City Content incorporated therein) under this Agreement infringes or misappropriates such third party's U.S. patents, trade secrets, copyrights or trademarks in the Territory, and/or (ii) arising from Vendor's negligence or willful misconduct in Vendor's performance under this Agreement. Vendor will pay any settlement of such claim consented to by Vendor or any damages finally awarded to such third party by a court of competent jurisdiction as the result of such claim. If a claim described in subsection (i) above ("Infringement Claim") occurs, or in Vendor's opinion is reasonably likely to occur, Vendor may, at its expense and at its sole discretion, in addition to its indemnification obligations under this Section: (a) procure the right to allow City to continue to use the Hosted Services (or infringing portions thereof), or (b) modify or replace the Hosted Services (or infringing portions thereof) to become non-infringing, or (c) if none of the two (2) foregoing options is commercially feasible, terminate City's right to access and use the Hosted Services (or affected portion thereof) and refund, on a pro-rata basis, any unused portion of the subscription fees paid by City for the Hosted Services (or affected portion thereof). Notwithstanding the foregoing, Vendor shall have no obligations under this Section or otherwise with respect to any Infringement Claim to the extent any Infringement Claim is based upon or arises out of: (i) any modification or alteration of the Hosted Services (or portion thereof) not made by Vendor that results in the alleged infringement; (i) any unauthorized access or use of the Hosted Services (or any portion thereof) or any breach of this Agreement by City and/or its Authorized 1506582.1
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Users; (iii) any combination or use of the Hosted Services (or any portion thereof) with other software, products, equipment, methods or services not provided by Vendor that results in such infringement; (iv) City's failure within a reasonable time to use or implement corrected or replacement Hosted Services (or portions thereof) that would have avoided or mitigated the alleged infringement; (v) City's continuance of allegedly infringing activity beyond a reasonable period after being notified thereof; and/or (vi) any specifications or requirements supplied by City or any City Content.
12.2 By City. City shall hold OpenCounter harmless from any Liability arising from City's breach of Sections 3.23.1, 3.2, 3.3 and/or 3.9.
12.3 Procedure. City will: (a) provide notice of the applicable indemnified claim to Vendor within a reasonable time after becoming aware of such claim; (b) provide reasonable assistance to Vendor in the defense of the indemnified claim; and (c) tender the control of the defense of the indemnified claim to Vendor, who will promptly assume and conduct (at its own expense) the full defense and/or settlement of any indemnified claim. Vendor shall not have the right to settle, without the prior written consent of City, any indemnified claim which contains an admission of liability or wrongdoing on the part of City or imposes a material obligation (including payment obligation) on City that is not wholly discharged by Vendor. City may participate in the defense and settlement of any claim for which it is entitled to indemnification at its sole expense.
12.4 Remedies. The remedies set forth in this Section constitute City's sole and exclusive remedies, and Vendor's entire liability, with respect to infringement, violation or misappropriation of third party Intellectual Property Rights.
13. Notices. All notices, demands, requests or approvals to be given under this Agreement, must be in writing and will be deemed served when delivered personally, by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:
All notices, demands, requests or approvals to the City:
City of Santa Monica
Information Services Department
1685 Main Street, Suite 105
Santa Monica, California 90401
Attention: Oscar Santiago, Principal Administrative Analyst Re: Contract No. 4384
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with a copy to:
Santa Monica City Attorney's Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: City Attorney
Re: Contract No. 4384
All notices, demands, requests or approvals to Vendor:
Open Counter Enterprises Inc.
25 Taylor Street
San Francisco, CA, 94102
Attention: Peter Koht
[email protected]
Re: Contract No. 4384
14. Limited Liability. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND,
INCLUDING DAMAGES FOR LOST PROFITS, REVENUE, BUSINESS,
SAVINGS, DATA OR USE, OR THE COST OF SUBSTITUTE PROCUREMENT,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT,
VENDOR'S AGGREGATE LIABILITY TO CITY UNDER THIS AGREEMENT,
WHETHER BASED ON NEGLIGENCE, CONTRACT, TORT,
INDEMNIFICATION, STRICT LIABILITY OR ANY OTHER THEORY, WILL
NOT EXCEED THE AMOUNTS PAID BY CITY TO VENDOR UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON
WHICH CITY NOTIFIES VENDOR OF THE CLAIM, EXCEPT WITH RESPECT TO VENDOR'S OBLIGATIONS UNDER SECTION 12.1, IN WHICH CASE
VENDOR'S AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNTS PAYABLE DURING THE THIRTY-SIX (36) MONTH PERIOD PRECEDING THE DATE ON WHICH CITY NOTIFIES VENDOR OF THE CLAIM. UNDER NO
CIRCUMSTANCES SHALL VENDOR HAVE ANY LIABILITY OR
RESPONSIBILITY FOR THE ACCURACY OF ANY APPLICATION DATA THAT
IS INPUTTED INTO THE HOSTED SERVICES OR CITY CONTENT
INCORPORATED INTO THE HOSTED SERVICES, INCLUDING, WITHOUT
LIMITATION, INACCURACIES IN CITY CONTENT INTRODUCED DURING
THE INPUT BY VENDOR OF SUCH CITY CONTENT INTO THE HOSTED SERVICE. THE PARTIES ACKNOWLEDGE THAT BUT FOR THE
LIMITATIONS CONTAINED IN THIS AGREEMENT, THEY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. THE LIMITATIONS SET FORTH
ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT
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PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. FOR PURPOSES OF CLARITY, NOTHING IN THIS SECTION 14 IS INTENDED TO LIMIT CITY'S RIGHT OR ABILITY TO
MAKE A CLAIM AGAINST OR COLLECT FROM VENDOR'S INSURANCE
POLICIES TO THE EXTENT THAT VENDOR'S LIABILITY TO CITY UNDER
THIS SECTION IS COVERED AND PAID FOR BY THE INSURANCE POLICIES DESCRIBED IN EXHIBIT C OF THIS AGREEMENT.
15. Dispute Resolution. In the event that any dispute arises between the parties hereto in connection with this Agreement, whether contractual, statutory, common law or otherwise, including without limitation the negotiation, execution, interpretation, construction, coverage, scope, performance, non-performance, breach, termination, validity or enforceability hereof ("Dispute"), the parties hereto shall make bona fide efforts to settle such Dispute amicably by good faith consultation and discussions. If the parties are unable to resolve such Dispute after good faith consultation and discussions for thirty (30) days, then either party may submit the Dispute to arbitration in accordance with the following procedure, by providing fifteen (15) days prior written notice to the other party prior to initiating arbitration proceedings.
Without limiting either party's right to seek appropriate injunctive relief, any Dispute that cannot be settled through negotiation by the parties as described above shall be resolved by arbitration administered by the American Arbitration Association (the "AAA") in accordance with its then-prevailing Commercial Arbitration Rules. The party alleging a material breach (the "Moving Party") may initiate arbitration by providing the other party written notice of its intent to arbitrate. Arbitration shall be conducted by a sole arbitrator in the city of San Francisco, California (if the Moving Party is City) or in the city of Santa Monica, California (if the Moving Party is Vendor). If the parties are unable to agree upon an arbitrator within three (3) business days of the Moving Party's written notice to arbitrate, the Moving Party may request the AAA to appoint an arbitrator. The AAA shall select an arbitrator who can promptly proceed with and strive to conclude the arbitration as specified herein and who by training, education, or experience has have knowledge of the general subject matter of this Agreement. Such arbitration shall be conducted on an expedited basis and in confidence. The arbitrator shall determine all issues regarding such dispute, including without limitation, procedure, discovery, arbitrability and waiver. The arbitrator shall have only the power to award damages, injunctive relief and other remedies to the extent the same would be available in a court of law having jurisdiction of the matter, except that the arbitrator shall not have the power to vary the provisions of this Agreement or the power to award damages in excess of the limitations set forth in this Agreement. The arbitrator shall promptly commence the arbitration proceeding with the intent to conclude the proceedings and issue a written decision stating in reasonable detail the factual and basis for the award, as promptly as the circumstances demand and permit, but generally no later than ten (10) weeks after 1506582,1
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the arbitrator's appointment. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. Each party acknowledges that it is giving up judicial rights to a jury trial, discovery and most grounds for appeal under this Section.
Except as otherwise set forth in this Agreement, the cost of any arbitration hereunder and all fees involved including reasonable attorneys' fees incurred by the party determined by the arbitrator to be the prevailing party, shall be paid by the party determined by the arbitrator not to be the prevailing party, or otherwise allocated in an equitable manner as determined by the arbitrator. In addition to any rights and remedies otherwise available, either party, before or during arbitration, may apply to a court having jurisdiction for a temporary restraining order, preliminary injunction or other interim or conservatory relief, where such relief is necessary to protect its interests pending completion of the arbitration proceedings without breach of this Section and without any abridgment of the powers of the arbitrator. During dispute resolution proceedings, including arbitration, the parties shall continue to perform their obligations under this Agreement, except for those obligations directly related to the Dispute.
16. Assignment. Neither party shall assign, hypothecate or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of the other party, which may be withheld at the other party's sole discretion. Any attempt to do so without the other party's consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, sublease, hypothecation or transfer. Notwithstanding the foregoing, a party may assign this Agreement without the prior written consent of the other party solely in connection with a merger, consolidation, corporate reorganization, sale of all or substantially all of such party's assets, sale of stock, change of name or like event, provided that the assigning party provides reasonable notice of such assignment to the other party.
17. Applicable Law. This Agreement shall be governed by the laws of the State of California without regard to its conflicts of law principles.
18. Term and Termination; Rights Upon Termination.
The initial term of this Agreement (the "Initial Term") is one year commencing on the Effective Date. Thereafter, the term shall be automatically renewed for additional and successive one year subscription terms (each, a "Renewal Term") unless either party hereto shall have given the other party written notice of its intention to terminate the Agreement upon expiration of the Initial Term or any Renewal Terin at least ninety (90) days prior to such expiration. The Initial Term, plus any Renewal Terms shall be the "Term" of this Agreement.
If either party materially breaches this Agreement, the other party may give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default fails to cure the default within thirty 1506582.1
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(30) days of the notice, the other party may terminate this Agreement. If such default is incapable of cure, the other party may terminate this Agreement immediately upon written notice of its desire to terminate.
Upon termination, (a) the License to use the Hosted Services shall terminate and be immediately revoked, (b) all Hosted Services, related documentation, and supporting materials will be returned by City to Vendor or permanently destroyed and deleted, and (c) Sections 3.5, 3.6, 3.7, 3.8, 6, 8.5, 12, 13, 14, 15, 17 and 18 shall survive.
19. Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modifications of this Agreement will be effective only by written execution signed by both City and Vendor and approved as to form by the City Attorney. This Agreement is the product of negotiation and compromise between the parties. Accordingly, notwithstanding California Civil Code Section 1654, in the event of uncertainty, the language shall not be construed against the party causing the uncertainty.
20. Permits and Licenses. Vendor, at its sole expense, shall obtain and maintain during the term of this Agreement, all required business and professional permits, licenses and certificates.
21. Compliance With Law. Each party shall comply with all federal, state and local laws, including all ordinances, rules and regulations in its performance under this Agreement.
22. Nondiscrimination. In rendering services under this Agreement, Vendor shall not discriminate based upon race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability and shall comply with the requirements of all federal, state and local law.
23. Exhibits. The following exhibits are incorporated by reference into this Agreement as though fully set forth herein.
Exhibit A Proposal of OpenCounter
Exhibit B License Fees and Support Services Fees
Exhibit C Vendor's Support Policy as of the Effective Date.
Exhibit D Insurance Requirements
24. Confidential Information.
24.1. Restrictions on Use and Disclosure of Confidential Information. The parties agree to maintain the confidentiality of each other's Confidential Information and not use such information except in furtherance of this Agreement during the term of this Agreement. 1506582.1
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January 2017
24.2. Exceptions. The parties agree that, unless required by law, they will not make each other's Confidential Information available in any form to any third party or use each other's Confidential Information for any purpose other than the performance of this Agreement. The receiving party shall take the same degree of care that it uses to protect its own confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized dissemination, disclosure or use of Confidential Information of the disclosing party. This provision does not apply to information that: (i) was publicly known, or otherwise known to the receiving party, at the time it was disclosed to the receiving party by the disclosing party; (2) subsequently becomes publicly known through no act or omission of the receiving party; or (3) otherwise becomes known to the receiving party other than through disclosure by the disclosing party. Any information, however, submitted to the City is a public record subject to disclosure unless a specific exemption in the California Public Records Act applies.
In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.
CITY OF SANTA MONICA,
ATTEST:
Denise enduen Wan - Lick Cle
DENISE ANDERSON-WARREN
City Clerk City Manager
APPROVED AS TO FORM:
LANE DILG
City Attorney
OPEN COUNTER ENTERPRISES, INC.
By: _
Name: Peter Kont
Title: Pres +coo
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1506582.1 January 2017
Exhibit A
Proposal
1. Implementation and Development
Open Counter will develop and configure an instance of the OpenCounter Economic Development suite (the "Hosted Services") for the City as described in this Proposal in accordance with the implementation plan described in Tables 1-5 below ("Implementation Plan").
Phase 1: Data Collection and Project Management
The first phase of OpenCounter project is focused on collecting data and setting project expectations around the scope of work. This includes identifying the permits and licenses to be included in the project, as well as securing credentials and API (application program interface) keys for integrated systems as well as determining the points of integration within those systerns and the depth of integration requested by the City.
Table 1
Date Milestone Line Item Description Responsible Party
Sept 2017 Project Send Send configuration documents outlining Open Counter Management Configuration project scope and steps to be taken. Set up Schedule / biweekly project management update
Steps conference calls with key project staff.
Create Deploy Project Management software and Open Counter Basecamp.com invite City staff. Configure admin access to account in-app help resources and configuration
ticket management.
Kickoff Meeting Set up kickoff meeting with relevant staff, OpenCounter & Permitting provide permitting onboarding and data
Onboard request documents to project sponsor.
Document
Data Collection City data City Seal Vector Graphic, application forms City collection (if not already online), fee schedules,
internal documents showing permit routing,
milestones and processes (for background).
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Phase 2: OpenCounter | Zoning
One of the first steps in the business registration process is determining the proper land use for the project, and understanding where this land use is permitted. Open Counter utilizes a custom Zoning API to serve this information. An interactive zoning map is displayed in OpenCounter as part of the business registration process. The tool is also available as a stand-alone zoning viewer to help applicants understand the zoning implications of their projects-even before they begin filing for permits.
Phase 2 focuses on data collection, the configuration of the OpenCounter Zoning Viewer and verification of land use regulations prior to the launch of the Hosted Services. This includes the collection of the City's land use codes, cartographic zoning data (in the form of shapefile or geojson files), and any use-specific rules (like whether a restaurant serves alcohol) that can impact zoning clearances.
This Phase includes a two-week testing stage to enable staff to validate and sign off on the zoning content.
Table 2
Date Milestone Line Item Description Responsible Party
Sept - Oct Zoning API Collect GIS Collect shape files for zoning districts and Open Counter 2017 Setup data zoning overlays.
Collect use Import Use Tables from Zoning Ordinance Open Counter code data or create use table based on reading of the
code. Surface areas not covered by the base
zoning districts, find documents relating to
those shapes. Read and import that data into
master document.
Set up Open Counter
conditional
zoning logic
set conditional logic questions to serve the
proper clearance in zoning.io Assign common
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Deploy Configure and Create instance of OpenCounter | Zoning Open Counter OpenCounter / deploy for City staff review and testing.
Zoning Portal Open Counter
| Zoning
2 weeks min. OpenCounter: Validation of Validation of zoning returns inside the City Staff Zoning Portal returns in the OpenCounter | Zoning by City staff.
Acceptance Open Counter
Testing | Zoning
Phase 3: OpenCounter | Permit Catalog
The next phase of this project is the creation of a "permit catalog" for the City.
This is a repository of all the permits / licenses that have been identified in Phase 1 along with their associated requirements.
These requirements may be based on project parameters (i.e. construction), location (i.e. zoning process), or persona (i.e. restricted to lessened / bonded contractors). In this phase, OpenCounter staff will work to identify the proper "triggers" for each permit, the data required for an initial application, the fees associated with said permit and the personas that are allowed to submit for the permit.
This phase also includes "field matching," OpenCounter questions to the associated fields in any required integration (i.e. land management software) as well as setting up a "stylized PDF" for the extraction of data on a per permit basis for non-integrated permits or internal use.
Table 3
Date Milestone Line Item Description Responsible Party
Oct / Nov Permit Catalog eate Perm Scan and analyze provided forms to create data Open Counter 2017 Setup v.1 Catalog standard for city. Set data model for the City, provide as . csv for staff verification, create help
text to explain technical questions / remove
jargon / acronyms.
Create Permit Based on forms collected, create permit Open Counter Triggers triggers for each permit as well as their
associated fields, fees and visibility rules.
Match permits to internal land management
software, if applicable.
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Create Fees Create fees model based on unified fee OpenCounter Models schedule
Training Schedule Setup staff training on CMS, dashboard and OpenCounter weekly application handling for City staff and
training Economic Development allies (if necessary)
seminars (pre- while finalizing the permit catalog to facilitate launch) testing of fees inside the applications.
Content Incorporate Based on City feedback refine inputs and fee / OpenCounter Refinements SME feedback. permit content
2 wks. Acceptance Verify proper Work with City staff to confirm accuracy of OpenCounter minimum Testing content imported and configured information of the triggers permit catalog, concurrent with the creation of front end content (Phase 3).
Phase 4: OpenCounter | Business Portal
The next phase of this project is the creation of public facing content for the Business Portal.
This is a data driven exercise that leverages the materials in the OpenCounter Zoning and Permit Catalog database.
Front-end content will be structured in a way that asks the most common permit and license "triggering" questions first to avoid duplicative data entry and help applicants arrive at an estimation of the totality of their project permitting estimation as quickly as possible.
This phase is deeply informed by staff expertise and will conclude with an acceptance testing period.
Table 4
Date Milestone Line Item Description Responsible Party
Nov 2017 Public Content Create Public Based on the collected data imported into the OpenCounter vl Page Content site during the permit catalog and zoning setups process as well as interviews with
permitting staff, create content to guide
applicants through the permitting process, as
identified in Phase 1, including educational
content to guide the applicant through the
process of the proposed project.
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Training Schedule Setup staff training on CMS, dashboard and Open Counter weekly application handling for City staff and
training Economic Development allies (if necessary)
seminars (pre-
launch)
2 wks. Min. Acceptance Testing Confirm public facing content is accurate OpenCounter + Testing and meets staff's expectations City
Pre-launch PR Pre-briefings Work with City staff to give previews of site Open Counter and to a group of alpha and beta testers (brokers, City
chamber, SBDC staff)
Facilitate User Group testing in conjunction
with the City to ensure that the tool is usable
and addressing the concerns of the local
business community.
Marketing Website Provide banners and logos for integration OpenCounter Integration into Chamber and City website(s). Identity
Planning key landing pages for prospective business
owners
Translation Begin Once given sign off on public content send to OpenCounter Database translation service and upload on localized
Content version(s) of site.
Translation
Dec 1, 2017 Launch Public Launch Press Conference, Presentation to business Open Counter and Activities groups and City Council, City
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Phase 5: Accela Construct API Integration
This Phase includes the integration of OpenCounter with the Accela Construct API, which allows OpenCounter to "push" business inquiries into Accela as permit applications.
Open Counter supports the submission of project data into either formal or temporary record types inside the Accela Automation platform. Permit workflows past the point of initial submittal will be managed inside Accela and accessible to applicants in Citizen Access (if enabled) OpenCounter can configure to support either automatically or via staff intervention for formalized submissions. This scope of work does not contemplate support for renewals or payments.
Note: OpenCounter relies on a modern version of the Construct API. The minimum version is the v4 API, which is available in version 7.3.2 (or above) of the Accela Automation System.
Table 5
Date Milestone Line Item Description Responsible Party
Sept 2017 Accela API Read / write and authentication token access to IT& Construct API Connection PROD and TEST environments of Accela. Open Counter Access and
Credentials
Timed to Open Counter server setup milestone
Oct 2017 Accela Record API Data Identify record types for integration and match Open Counter Type Payload fields for submission. Confirm fee estimations Submissions Creation match "to-be" documentation.
Timed to Open Counter Content
Configuration #1 Milestone
Nov 2017 Accela Record API Finalize integration work for Construct API OpenCounter Type Validation record creation for Accela record creation.
Submission
Acceptance
Testing Timed to coincide with the Permit Catalog
Acceptance Testing milestone (end-to-end
testing).
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2. Acceptance Testing
When an implementation milestone is ready for use and testing, OpenCounter will notify City and City will commence acceptance testing of the implementation milestone, with such reasonable assistance and support as necessary from OpenCounter personnel. The acceptance test ("Acceptance Test") will be conducted solely for the purpose of demonstrating that the deliverable or functionality ("Milestone") performs in accordance with its specifications set forth in the applicable documentation ("Acceptance Criteria"). The Acceptance Test will be in a form mutually agreed upon between the parties, and will be completed within five (5) business days of the date upon which OpenCounter informs City that the Milestone is ready for testing ("Acceptance Period").
If the Milestone passes the Acceptance Test, City will promptly so notify Open Counter in writing ("'Notice of Acceptance"). If the Milestone does not pass the Acceptance Test, City will notify Open Counter, in writing, prior to the expiration of the Acceptance Period, specifying in reasonable detail in what respects the Milestone has failed to meet the Acceptance Criteria ("Notice of Rejection".
Open Counter will promptly correct any deficiencies set forth in the Notice of Rejection, and City will have an additional Acceptance Period to repeat the Acceptance Test for the corrected Milestone. A Milestone will be deemed accepted by City upon the earlier of (i) the issuance by City of a Notice of Acceptance, (ii) the use by City of the Milestone on a production basis, or (ii) the expiration of the applicable Acceptance Period prior to the receipt by OpenCounter of a Notice of Rejection.
3. City Responsibilities and Level of Effort
Commercial Development is a complex project involving multiple departments across the City.
It is critical to this Proposal that City staff are engaged throughout the project in order to ensure successful outcomes. It is also important that stakeholder roles are defined so that decisions can be made effectively and efficiently during the execution of the project.
Information Systems will serve as the project sponsor ("Project Sponsor"). The Project Sponsor will appoint a project owner ("Project Owner") as the key executive for the project, and a project manager ("Project Manager") to facilitate ongoing project administration.
The Project Owner will be responsible for testing and accepting Milestones in accordance with the applicable Acceptance Criteria defined above as well as providing strategic oversight for the development of the Instance.
The Project Manager will provide access to required data and resources, facilitate calls and meetings with City staff, and provide assistance and support during on-site visits and training sessions.
Open Counter will provide bi-weekly updates during the timeframe outlined in the Implementation Plan set forth in Table 1.
The Project Manager will also facilitate calls and meetings with City subject matter experts ("Subject Matter Experts") in specific permitting verticals and provide assistance and support with communications with Subject Matter Experts.
Subject Matter Experts time commitments will be limited to project status calls on an as-needed basis and during the verification of City Content during defined Acceptance Testing periods defined in the Implementation Plan.
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4. Training
The goal of the project is to build a site that will be easy for citizens to use, and for City staff to administer. To that end, Open Counter will offer training sessions to educate Department staff on the tools, technologies, and best practices of the various components of the Hosted Services.
Three (3) training sessions (each 60 minutes) are included within the fees detailed in 6.1 below.
Additional training may be provided, upon request by City, at Open Counter's standard fees for such training. All training will be provided remotely via online video conference at such dates and times mutually agreed by the parties.
The schedule for the training sessions will be determined by OpenCounter and City project staff and defined during the Project Management Phase of the Implementation Plan outlined above.
Open Counter maintains online documentation to explain the functionality of the Hosted Services.
Documentation will be updated to reflect new features. The documentation will be accessible through the following links:
https://help.opencounrei.com
https://opencounrer.com/docs
http://zon11g.io/
5. Publicity and Post-Launch Promotion
OpenCounter will link to the Instance on OpenCounter's website at www.opencounter.com.
Open Counter will also tweet new customer announcements on its Twitter account @opencounter. The City will link to the Instance from its homepage, departmental landing pages and in its outbound marketing and promotional materials in order to ensure that the service is easily accessible to small business owners and entrepreneurs.
Open Counter and the City will collaborate on a launch press release as well as a mid-year press release featuring case studies of end users who utilize the tool. These case studies may be leveraged for existing City marketing / program materials.
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Exhibit B
License Fees and Support Services Fees
Fees and Invoice Schedule. City will pay the fees described below within thirty (30) days after the dare of the applicable invoice therefor. City agrees that, except as set forth in the Agreement, all fees are non-refundable and its obligation to pay fees under this Agreement is an irrevocable and binding obligation of City. Invoices will be addressed to City to the attention of the Project Sponsor.
6.1 Fees by Category
Line Item Amount
Professional Services:
Configuration of Open Counter Hosted Services (Zoning & Business Portals) $13,500 Integration Line Item ($4,500 for system configuration (Accela Construct API $13,500 submissions and $450 per record type (20 permits / records) Localization Line Item (Per Language)
$3,000
Annual Subscription (commencing on the Effective Date) $37,500
6.3 Invoice Schedule
Invoices Date Amount
Year 1 Subscription At contract execution $37,500
Configuration / Translation Costs At final acceptance testing $30,000 Year 2 Subscription - May be invoiced on or Anniversary of Effective Date $37,500 prior on the Effective Date
Year 3 Subscription - May be invoiced on or Anniversary of Effective Date $37,500 prior on the Effective Date
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Exhibit C
Open Counter's Support Policy
Updated as of January 27, 2017
1. General
OpenCounter ("OpenCounter") will provide the technical support and services and maintenance (collectively, "Support Services") for its hosted software solution (the "Hosted Services") to licensees of the Hosted Services (each such licensee, a "Customer") in accordance with the terms of this Support Services Policy. OpenCounter may update this Support Services Policy from time to time and may notify Customers of changes by any reasonable means, including without limitation, by notifying Customers at the email address OpenCounter has for such Customers in its files or by posting the revised version of this this Support Services Policy, which changes will become effective immediately upon the transmission of such email or posting, whichever occurs first. Customers can determine when Support Services Policy was last revised by referring to the "Updated" legend at the top of this Support Services Policy. Please return to this page periodically to ensure familiarity with the most current version of this Support Services Policy.
2. Language and Scope
Open Counter provides Support Services in the English language only and only to the designated support contacts of Customer ("Support Contacts"). Any feature requests or enhancements will not be included within the scope of the Support Services.
3. Technical Support
Open Counter will provide technical support, solely to the Support Contacts, regarding the operation of the features and functionality of the Hosted Services, via • phone during OpenCounter's standard support hours, or via email at [email protected].
Customer will also have access to the knowledge base for the Hosted Services made available by OpenCounter at https://opencounter.zendesk.com/. 1506582.1
4. Support Hours
OpenCounter's support hours are Monday through Friday, 6:00 AM to 6:00 PM Pacific Time, excluding federal holidays.
5. Reporting of Errors or Malfunctions
Customer's Support Contacts will promptly report any error or malfunction of the Hosted Services to OpenCounter via phone during Support Hours, or via email at [email protected]. Customer will provide materials information pertaining to the reported error or malfunction and will assist and be available to OpenCounter's support personnel to diagnose and resolve the error or malfunction. Customer may be asked to provide the following information regarding a reported error or malfunction:
detailed description of problem and steps to reproduce, media (log files, screenshots, etc.), and impact of issue (technical or business implication). OpenCounter will use commercially reasonable efforts to resolve a Confirmed Error and will respond to Customer's reporting of the error or malfunction, based on the severity level determined by OpenCounter, during its support hours in accordance with Table 1 below. A "Confirmed Error" means a material error or malfunction in the Hosted Services (which , is not caused or attributable to an Exclusion) and which makes the Hosted Services not perform in accordance with the relevant specifications applicable to the Hosted Services (as set forth in the agreement between Customer and OpenCounter). Customer acknowledges that the time required for resolution of an Confirmed Error may vary depending on the specific circumstances thereof, including, without limitation, the nature of the Confirmed Error, the extent and accuracy of information available about the Confirmed Error, and the level of Customer's cooperation and responsiveness in providing materials, information, access and support reasonably required by Open Counter to achieve problem resolution. OpenCounter does not guarantee that it will resolve Confirmed Errors within the response times listed in Table 1 below or that every problem or issue reported by Customer will be resolved. OpenCounter may address correction of Confirmed Errors through a number of mechanisms including workarounds, including workarounds, support releases, patches, or other suitable forms of fixes or workarounds. If a reported error or malfunction is determined by OpenCounter not to be a Confirmed Error, Customer may, at its option, request that OpenCounter spend time to further investigate the unconfirmed error or malfunction at OpenCounter's then-current hourly engineering rates, with a 2-hour minimum charge per occurrence.
Table 1
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Severity Response
Definition
Level Time
Confirmed Error is causing a catastrophic production
Severity problem which severely impacts the Hosted Services, or in 12 Hours
which the Hosted Services are completely down or not
functioning and no procedural work around exists.
Severity Hosted Services are functioning but in a severely reduced 1 Business capacity due to the Confirmed Error. Day
Hosted Services are functioning but experiencing a medium- Severity 3 Business
to-low problem which involves partial non-critical
3 Days
functionality loss, limited loss or no loss of functionality.
6. Exclusions
The Support Services do not include services requested in connection with any Exclusions or otherwise as a result of causes or errors that are not attributable to the Hosted Services. "Exclusions" mean errors or malfunctions (a) attributable to unauthorized access or use the Hosted Services; (b) caused by or attributed to software, hardware, systems or other materials of Customer or third parties; (c) caused by modifications made to the Hosted Services which are not authorized by OpenCounter; and/or (d) misuse of the Hosted Services by end users or Customers.
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Exhibit D
Insurance Requirements
As used herein, "Consultant" shall mean "Vendor."
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or it the Consultant has no owned autos, Code 8 (hired) and Code 9 (non- owned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation: Workers' Compensation insurance as required by the State of California, with Statutory Limits and Employers' Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #1).
4. Professional Liability: Insurance appropriate to the Consultant's profession with a limit of not less than $1,000,000 each claim/$2,000,000 in the annual aggregate (see footnote #2).
If the Consultant maintains higher limits than the minimums shown above, the City of She Consulan: Any salt is trance procedure exces or he specied mun in by. of insurance and coverage shall be available to the City of Santa Monica.
Other Insurance Provisions
1. The policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status (CGL): The City of Santa Monica, its officers, officials, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Consultant including materials, parts or equipment furnished ir onnection with such work or operations. General liability coverage can be provide in the form of an endorsement to the Consultant's insurance at least as broad as Insurance Services Office Form CG 20 10 11 85.
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b. Primary Coverage (CGL, Auto, and Professional Liability): For any claims related to this contract, the Consultant's insurance shall be primary as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self- insurance maintained by the City of Santa Monica, its officers, officials, employees or volunteers shall be in excess of the Consultant's insurance and shall not contribute with it.
c. Notice of Cancellation (all policies): Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been given to the City of Santa Monica.
d. Waiver of Subrogation (all policies): Consultant hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Consultant may acquire against the City of Santa Monica by virtue of payment of any loss.
Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Santa Monica has received a waiver of subrogation endorsement from the insurer.
Deductibles and Self Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require the Consultant to purchase coverage with a lower deductible or retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.
Claims Made Policies
1. If the Professional Liability policy provides "claims made" coverage:
a. The Retroactive Date must be shown, and must be before the date of this Agreement or the start of work.
b. The insurance must be maintained and evidence of insurance must be provided for at least 5 years after completion of work.
C. If the policy is cancelled or not renewed, and not replaced with another "claims made" policy form with a Retroactive Date prior to the effective Agreement date, 1506582.1
the Consultant must purchase "extended reporting" coverage for a minimum of 5 years after completion of work.
Verification of Coverage
Consultant shall furnish the City of Santa Monica with original certificates and amendatory endorsements or copies ot the applicable policy language providing the insurance coverage required herein. All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including the endorsements required herein, at any time.
Failure to Maintain Insurance Coverage
If Consultant, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its sole option, may terminate this Agreement and obtain damages from the Consultant resulting from said breach. Alternatively, the City of Santa Monica may purchase such coverage (but has no special obligation to do so), and without further notice to the Consultant, the City may deduct from sums due to the Consultant any premium costs advanced by the City for such insurance.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.
Footnotes
#1: Workers' Compensation insurance coverage is not required if the Consultant does not have employees. The Consultant must, however, execute the City's Workers' Compensation Coverage Exemption Declaration Form.
#2: Professional Liability insurance is required if the Consultant is providing a professional service regulated by the State (e.g., insurance agents, doctors, lawyers, architects, engineers, certified public accountants, etc.). However, some Consultants, such as software designers, claims administrators, or human resources professionals, should also carry Professional Liability insurance. Contact Risk Management for guidance.
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