CITY OF SIMI VALLEY
MEMORANDUM
June 23, 2025
TO: City Council
Board of Directors, Ventura County Waterworks District No. 8
FROM: Department of Administrative Services
SUBJECT: APPROVAL OF THE FIRST AMENDMENT TO THE CONTRACT WITH INFOSEND, INC. FOR DATA PROCESSING, PRINTING, STUFFING,
AND MAILING SERVICES
STAFF RECOMMENDATION
Staff recommends that the City Council and Board of Directors of Ventura County Waterworks District No. 8 take the following actions:
1. Authorize the City/ District Manager to negotiate a first amendment to the contract with InfoSend, Inc . that extends the term by one year, from June 30, 2025 to June 30, 2026, and increase the contract’s not-to-exceed amount by $112,807.30 for a revised total of $423,917.30; contingent upon the City of Morgan Hill approving a one- year extension to the underlying cooperative purchasing agreement;
2. Authorize the City /District Manager or her designee to execute contract amendments and corresponding budget adjustments, provided that the existing cooperative agreement remains in effect and sufficient funds are available in the approved budget; and
3. If the City of Morgan Hill does not extend its agreement by June 30, 2025, authorize the City /District Manager to negotiate and award a one-year contract with InfoSend, Inc. under Simi Valley Municipal Code (SVMC) §2-9.205 (m), alternative bidding procedures in place of a formal bid, for a n amount not-to-exceed $112,807.30, with a term ending June 30, 2026, to ensure continuity of operations while a competitive solicitation is conducted.
BACKGROUND AND OVERVIEW
On May 16, 2022, the City Council/Board approved a three‑ year agreement with InfoSend, Inc. for data processing, printing, stuffing, and mailing of utility bills, leveraging a competitively bid cooperative contract awarded by the City of Morgan Hill. The current term ends June 30, 2025, and the contract’s not ‑to‑exceed amount is $311,110 (See Attachment A, page 4).
InfoSend, Inc. has consistently delivered reliable, high‑ quality service throughout the contract term. Extending the agreement will ensure continuity of monthly utility billing services, which are configured and integrated with the City’s Enterprise Resource Planning (ERP) system, Tyler Munis, for processing and distribution to service end users.
AGENDA ITEM NO.
Consent (6)
2 The City of Morgan Hill has advised staff that it intends to extend its agreement with InfoSend, Inc. for one ad ditional year, through June 30, 2026. The proposed First Amendment would mirror that extension and increase the spending authority by $112,807.30 to a new total not -to-exceed of $423,917.30, to accommodate projected service volume and increased materials and postage costs.
FINDINGS AND ALTERNATIVES
The original agreement amount of $311,110 covers services only through June 30, 2025.
The proposed increase of $112,807.30 , for a revised total of $423,917.30 , reflects the cost of an additional year of service and rising unit costs of print and mail services, including paper and postage.
The City/District’s actual costs are based on the number of statements mailed to customers, which may fluctuate depending on the number of delinquent notices required, variations in customer counts across different billing cycles, and the number of customers enrolled in electronic billing. Staff continue to encourage customers to enroll in electronic billing and automatic payments to help reduce costs, minimize delinquencies, and prevent lost bills or notices.
If the City of Morgan Hill does not issue an extension letter by June 30, 2025, staff recommends that the City Council authorize the City/District Manager to negotiate and award a one-year contract to InfoSend, Inc. under SVMC §2-9.205(m). This section of the code allows the Purchasing Agent to use alternative bidding procedures , such as direct negotiation for non-public projects, in lieu of a formal competitive bid process, provided all other applicable requirements are met. By executing a negotiated contract with the existing vendor, the City ensures uninterrupted service continuity while maintaining discounted rates currently in place with the vendor. This approach not only maximizes cost-efficiency but also provides staff with the necessary time to conduct a thorough , competitive solicitation. If a transition to a new vendor becomes necessary, this timeline allows for careful planning and implementation, minimizing risk and preserving operational stability. Transitioning to a different vendor will require configuration, testing, and validation within the City’s financial software to avoid billing errors or interruptions.
The following alternatives are available to the City Council/Board of Directors:
1. Authorize the City/District Manager to negotiate a first amendment to the contract with InfoSend, Inc. that extends the term by one year, from June 30, 2025 to June 30, 2026, and increase the contract’s not-to-exceed amount by $112,807.30 for a revised total of $423,917.30; contingent upon the City of Morgan Hill approving a one- year extension to the underlying cooperative purchasing agreement.
2. Authorize the City/ District Manager or her designee to execute contract amendments and corresponding budget adjustments, provided that the existing cooperative agreement remains in effect and sufficient funds are available in the approved budget.
3. If the City of Morgan Hill does not extend its agreement by June 30, 2025, authorize the City/ District Manager to negotiate and award a one -year contract with 3 InfoSend, Inc. under Simi Valley Municipal Code (SVMC) §2-9.205 (m), alternative bidding procedures in place of a formal bid, for an amount not -to-exceed $112,807.30, with a term ending June 30, 2026, to ensure continuity of operations while a competitive solicitation is conducted
4. Do not approve Alternatives 1, 2, or 3, and provide staff with alternative direction.
Staff recommends Alternatives 1, 2, and 3.
SUGGESTED CITY COUNCIL MOTION
I move to Authorize the City/ District Manager to negotiate a first amendment to the contract with InfoSend, Inc. that extends the term by one year, from June 30, 2025 to June 30, 2026, and increase the contract’s not -to-exceed amount by $112,807.30 for a revised total of $423,917.30; contingent upon the City of Morgan Hill approving a one- year extension to the underlying cooperative purchasing agreement; Authorize the City/ District Manager or her designee to execute contract amendments and corresponding budget adjustments, provided that the existing cooperative agreement remains in effect and sufficient funds are available in the approved budget ; and if the City of Morgan Hill does not extend its agreement by June 30, 2025, authorize the City/ District Manager to negotiate and award a one-year contract with InfoSend, Inc. pursuant to Simi Valley Municipal Code (SVMC) §2-9.205 (m), alternative bidding procedures in place of a formal bid, for an amount not -to-exceed $112,807.30, with a term ending June 30, 2026, to ensure continuity of operations while a competitive solicitation is conducted.
SUMMARY
The City/District currently contracts with InfoSend, Inc . for data processing, printing, stuffing, and mailing services for utility bills under an agreement set to expire on June 30, 2025. Staff recommends authorizing the City Manager extending the contract by one year to June 30, 2026 and increasing the not -to-exceed amount by $112,807.30 to $423,917.30, contingent upon the extension of the underlying cooperative agreement by the City of Morgan Hill; or to waive bidding requirements and authorize the City Manager to negotiate and award a contract for these services for one year for the amount of $112,807.30. Either option ensures continuity of services.
____________________________________
Carolyn Johnson
Administrative Services Director
Prepared by: Taylor Dacus, Senior Management Analyst
INDEX Page
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8 EXHIBIT A
COOPERATIVE AGREEMENT
(Agreement Between the City of Morgan Hill and InfoSend Inc.) 6
9 1
Updated January 2021
SERVICE AGREEMENT
INFOSEND, INC.
THIS AGREEMENT is entered into and becomes effective on July 1, 2022 (Effectiv e Date), by and between the CITY OF MORGAN HILL, a municipal corporation, ("CITY"), and InfoSend, Inc a California corporation ("SERVICE PROVIDER") hereinafter referred to collectivelyas “Parties.” In consideration of the promises and the mutual covenants contained in this Agreement, the Parties agree as follows:
1. City Authority. This Agreement is entered into pursuant to the action of the Morgan Hill City Council taken on May 16, 2022.
2. Term of Agreement. This Agreement shall cover services rendered from the Effective Date of this Agreement until June 30, 2025, at which time SERVICE PROVIDER’S services shall be completed. The City Manager is authorized to extend the term of this Agreement for up to two, one-year periods. Any such extension shall be in writing and signed by both Parties to this Agreement.
3. Scope of Service . T h e s e r v i c e s t o b e p e r fo r m e d b y S E R V I C E P R O V I D E R s h a l l b e U t ility Billing Customer Services as further described inExhibit A.
4. Compensation. SERVICE PROVIDER shall be compensated as follows:
4.1. Amount. $199,516.00. Total compensation to SERVICE PROVIDER underthis Agreement during its initial term set forth in Section 2 above shall not exceed One HundredNinety-Nine Thousand, Five Hundred Sixteen and no/100 dollars and shall be billed based on the rate and basis set forth in Exhibit B.If the City Manager extends the term of this Agreement pursuant to the provisions of Section 2 above, the City Manager shall havethe authority to increase the maximum compensation allowed to be paid to SERVICE PROVIDER during that extended term period, so long as City Council has appropriated sufficient funds therefor, the Parties mutually agree to such amount in a writing signed by both Parties to this Agreement and provided further that in no event shall such maximum compensation allowed for the extended term exceed 105% of the maximum compensation allowed to bepaid to SERVICE PROVIDER for one year of service during the initial term of this Agreement.
4.2. Billing . SERVICE PROVIDER shall provide CITY with an invoice containing the dated, detailed, and itemized descriptions of all services performed and expense s incurred (if such expenses are reimbursable pursuant to Exhibit B) by SERVICE PROVIDER on a monthlybasisunless otherwise specified in Exhibit B. All invoices shall be sent to the CITY addressed to the department head or project manager identified below in Section 14 Notices. Payment will be made to SERVICE PROVIDER within thirty (30) days of receipt of invoice by CITY. Any rate charged shall be prorated where services are interrupted or not provided for any rate period (for example, any monthly rate charge should be prorated when s ervices were interrupted or provided for only part of the month). For services billed on an hourly rate, the minimum unit of billed time shall not exceed one tenth of one hour. CITY shall pay for services and expenses (if so provided in Exhibit B) up to the limit of compensation s et forth above, that in the CITY’s judgment were necessary and reasonable. Services for work performed and expenses incurred in excess of the total compensation set forth in parag raph 4.1 above shall be at no cost to CITY.
5. Termination. CITY or SERVICE PROVIDER shall have the right to terminate this Agreement, without cause, by giving thirty (30) days' written notice or less under urgent circumstances. Upon such termination, SERVICE PROVIDER shall submit to CITY an itemized statement of services performed for which 7
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compensation has not been paid. CITY may require SERVICE PROVIDER to complete certain work product or documents and SERVICE PROVIDER shall deliver to CITY all doc uments in its possession without additional compensation to SERVICE PROVIDER. The City Manager of CITY is authorized to terminate this Agreement, in whole or in part, on behalf of CITY.
5.1. Non-Appropriations. Notwithstanding anything contained in this Agreement to the contrary,if insufficient funds are appropriated, or funds are otherwise unavailablein the budget for CITYfor any reason whatsoever in any fiscal year, for payments due under this Agreement, CITY will immediately notify SERVICE PROVIDER of such occurrence, and thi s Agreement shall terminate after the last day during the fiscal year for which a ppropriations shall have been budgeted for CITY or are otherwise available for payments.
6. Performance of Work. SERVICE PROVIDER represents that it is qualified by virtue of experience, training, education, and expertise to accomplish these services . Services shall be performed by SERVICE PROVIDER in accordance with professional practices in a manner consistent with a level of care, competence and skill exercised by qualified members of the SERVICE PROVIDER’S profession. By delivery of completed work, SERVICE PROVIDER certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws. CITY's City Manager i s authorized on behalf of CITY to modify the timeframes set forth on the Schedule of Performance within the term of this Agreement. If SERVICE PROVIDER desires to leave or store any of SERVICE PROVIDER's equipment at a CITY site while SERVICE PROVIDER is performing work or service pursuant to this Agreement, SERVICE PROVIDER will first obtain the consent of CITY's City Manager, or his/her delegate, to do so, and any such storage shall occur only in the manner and location allowed by such CITY official and entirely at SERVICE PROVIDER's sole risk.
7. Hazardous Materials. Without limiting any other requirement or obligation of SERVICE PROVIDER under this Agreement, if SERVICE PROVIDER needs to use any mate rial or chemical considered to be a hazardous material under any federal, state or local law, regul ation or policy, SERVICE PROVIDER agrees to fully and timely abide by and comply with all laws, regulations and policies pertaining to the use, transport, removal, handling, disposal or other activity related to any an d all such materials or chemicals. Prior to commencement of work or services under this Agreement, SERVICE PROVIDER shall provide CITY with a complete list of the hazardous materials SERVICE PROVIDER reasonably anticipates it may need to use to provide the services of SERVICE PROVIDER under this Agreement, together with the reasonably anticipated quantities thereof, if requested by CITY.
8. Insurance Requirements. SERVICE PROVIDER shall procure and provide proof of the insur ance coverage required by this section in the form of certificates and endorsements. The required insurance must cover the activities of SERVICE PROVIDER, including its subcontractors, employees and agents, relating to or arising from the performance of any work or service under th is Agreement, and must remain in full force and effect at all times during the period covered by this Agreement.The coverages may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by excess or “umbrella” policies, provided each such policy complies with the requirements set forth herein. Any deductibles or self-insured retentions must be declared to and approved by City.
SERVICE PROVIDER further understands that the CITY reserves the right to modify the insurance requirements set forth herein, with thirty (30) days’ notice pr ovided to SERVICE PROVIDER, at any time as deemed necessary to protect the interests of the CITY.
8.1. Insurance Types and Amounts.
8.1.1. Commercial General Liability (CGL). SERVICE PROVIDER shall maintain CGL against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) one million dollars ($1,000,000.00) combined single limit 8
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for any one accident or occurrence, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER’s combined insurance policies (including any excess or “umbrella” policies), whichever is greater.
8.1.2. Automobile Liability. SERVICE PROVIDER shall maintain Automobile Liability covering all owned, non-owned and hired automobiles (if SERVICE PROVIDER does not own automobiles, then SERVICE PROVIDER shall maintain Hired/Non-owned Automobile Liability) against claims and liabilities for personal injury, death, or property damage providing protection in the minimum amount of: (i) one million dollars ($1,000,000.00) combined single limit for any one accident or occurrence, or (i i) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER's combined insurance policies (including any excess or “umbrella” policies), whichever is greater.
8.1.3. Workers’ Compensation Insurance and Employer’s Liability. SERVICE PROVIDER shall maintain Workers Compensation coverage, as required by la w, in the minimum amount of: (i) one million dollars ($1,000,000.00) for any one accident or occurrence, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER's combined insurance policies (including any excess or “umbrella” policies), whichever is greater. If SERVICE PROVIDER is self-insured, SERVICE PROVIDER shall provide its Certificate of Permission to Self-Insure, duly authorized by the Department of Industrial Relations.
8.1.4. Professional Liability.
8 . 1 . 4 . 1 . I f th e p e r fo rma n c e o f S E R V IC E P R OV ID E R ’ s w o rk o r s e rv i ce under this Agreement involves professional and/or technical services (examples include, but are not limited to, architects, engineers, land surveyors, and appraisers),SERVICE PROVIDER shall procure and maintain either a claims made or occurrence Errors and Omission liability insurance in the minimum amount of: (i) one million dollars ($1,000,000.00) each claim, or (ii) the maximum amount of such insurancea v a i l a b l et o SERVICE PROVIDER under SERVICE PROVIDER's combined insurance policies (including any excess or “umbrella” policies), whichever is greater. Further, if SERVICE PROVIDER maintains a claims-made policy, SERVICE PROVIDER shall provide written evidence of such insurance to the CITY for at least fiv e (5) years after the completion of work performed under this Agreement.
8.1.4.2. If the performance of SERVICE PROVIDER’s work or servic e under this Agreement relates to Information Technology or related services (examples include, but are not limited to computer programmers, software designers, hardware engineers, or other systems consultants), SERVICE PROVIDER shall procure an d maintain a claims made Errors and Omission liability insurance, including Cyber Liability and Data Breach, in the minimum amount of: (i) one million dollars ($1,0 00,000.00) each claim, or (ii) the maximum amount of such insurance available to SERVICE PROVIDER under SERVICE PROVIDER's combined insurance policies (including any e xcess or “umbrella” policies), whichever is greater.
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8.1.4.3 Crime/Fidelity Bond: If the performance of SERVICE PROVIDER’s work orservice under this Agreement relates to or involves handling of city monies, SERVICE PROVIDER shall procure and maintain CRIME insurance, in the minimum amount of: (i) three hundred thousand dollars ($300,000.00) per occurrence, covering all Service Providers’ officers and employees, for loss of City monies caused by dishonesty and/or theft
8.2. Endorsements. SERVICE PROVIDER shall provide proof of the following endorsements, listed for each policy for which endorsements are required, as outlined below:
8.2.1. General Liability and pollution liability (when pollution liability applies).
8.2.1.1. The City of Morgan Hill, its elected or appointed officials, boards, agencies, officers, agents, employees, and volunteers are named as additionalinsureds;
8.2.1.2. The insurer waives the right of subrogation against the City of Morgan Hill and the CITY’s elected or appointed officials, boards, agencies , officers, agents, employees, and volunteers; and,
8.2.1.3. Insurance shall be primary non-contributing.
8.2.2. Workers Compensation.
If the performance of SERVICE PROVIDER’S work or service under this Agreement involves access to or activity on any property or premises owne d or occupied by the CITY, including, but not limited to, SERVICE PROVIDER’S presence during site visits and meetings, then insurer waives the right of subrogation agai nst the City of Morgan Hill and the CITY’s elected or appointed officials, boards, age ncies, officers, agents, employees, and volunteers.
8.3. Qualification of Insurers. All insurance required pursuant to this Agreement must be issued by a company licensed and admitted, or otherwise legally authorized tocarry out insurance business in the State of California, and each insurer must have a current A.M. Best's financial strength rating of “A” or better and a financial size rating of “VII” or better.
8.4. Certificates. SERVICE PROVIDER shall furnish CITY of Morgan Hill with copie s of all certificates as outlined herein, whether new or modified, promptly upon receipt. In the event of a claim or legal action, SERVICE PROVIDER shall promptly furnis h CITY of Morgan Hill with copies of all policies outlined herein. No policy subject to the SERVICE PROVIDER’s agreement with the CITY shall be canceled or materially changed except after thirty (30) days' notice by the SERVICE PROVIDER to CITY. A "material change" is a change that results in non-compliance with any insurance requirements in this section 8 . Certificates, including renewal certificates, may be mailed electronically [email protected] or delivered to the Certificate Holder address provided herein.
Certificate Holder address:
City of Morgan Hill
Attn: Risk Management
17575 Peak Avenue
Morgan Hill, CA 95037
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9. Non-Liability of Officials and Employees of the CITY. No official or employee of CITY shall be personally liable for any default or liability under this Agreement.
10. Compliance with Law.
10.1. SERVICE PROVIDER and its officers, employees, agents, and subcontractors shall comply with all applicable laws, ordinances, administrative regulations, and permitting requirements in carrying out their obligations under this Agreement. SERVICE PR OVIDER and its officers, employees, agents, and subcontractors covenant there shall be no discrimination based upon race, color, creed, religion, gender, marital status, age, sexu al orientation, national origin, mental disability, physical disability, medical condition, or ancestry, in any activity pursuant to this Agreement.
10.2. Compliance with Wage and Hour Laws: SERVICE PROVIDER, and a ny subcontractor it employs to complete work under this Agreement, shall comply with all applicable federal, state and local wage and hour laws. Applicable laws may include, but are not limited to, the Federal Fair Labor Standards Act and the California Labor Code.
Final Judgments, Decisions, and Orders: For purposes of this Sec tion, a “final judgment, decision, or order” refers to one for which all appeals have be en exhausted or the time to appeal has expired. Relevant investigatory government agencies include: the federal Department of Labor, the California Division of Labor Standards Enforcement, or any other governmental entity or division tasked with the investigation a nd en fo rce ment o f w age an d hour laws.
Prior Judgments against SERVICE PROVIDER and/or its subcontractors: BY SIGNING THIS
AGREEMENT, SERVICE PROVIDER AFFIRMS THAT IT HAS DISCLOSED ANY F INAL
JUDGMENTS, DECISIONS OR ORDERS FROM A COURT OR INVESTIGATORY GOVERNMENT AGENCY FINDING – IN THE FIVE (5) YEARS PRIOR TO EXECUTING THIS AGREEMENT – THAT SERVICE PROVIDER OR ITS SUBCONTRACTOR(S) HAS VIOLATED ANY APPLICABLE WAGE AND HOUR LAWS. SERVICE PROVIDER FURTHER
AFFIRMS THAT IT OR ITS SUBCONTRACTOR(S) HAS SATISFIED AND COMPLIED WITH – OR HAS REACHED AGREEMENT WITH THE CITY REGARDING THE MANNER I N WHICH IT WILL SATISFY – ANY SUCH JUDGMENTS, DECISIONS OR ORDERS.
Judgments or Decisions During Term of Contract: If at any time d uring the term of this Agreement, a court or investigatory government agency issues a final judgment, decision or order finding that SERVICE PROVIDER or any subcontractor it employs to perform work under this Agreement has violated any applicable wage and hour law, o r SERVICE PROVIDER learns of such a judgment, decision, or order that was not prev iously disclosed, SERVICE PROVIDER shall inform the City Attorney, no more than fifteen ( 15) days after the judgment, decision or order becomes final or of learning of the final judgment, decision or order. SERVICE PROVIDER and its subcontractors shall promptly satisfy and comply with any suchjudgment, decision, or order, and shall provide the City Attorney with do cumentary evidence of compliance with the final judgment, decision or order within five (5) days of satisfying the final judgment, decision or order. CITY reserves the right to require SERVICE PROVIDER toenter into an agreement with CITY regarding the manner in which any such final judgment, decision, or order will be satisfied.
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City’s Right to Withhold Payment: Where SERVICE PROVIDER or any subcontractor it employs to perform work under this Agreement has been found in violation of any applicable wage and hour law by a final judgment, decision or order of a c ourt or government agency, CITY reserves the right to withhold payment to SERVICE PROVIDER until such judgment, decision or order has been satisfied in full.
Material Breach: Failure to comply with any part of this Section constitutes a material breach of this Agreement. Such breach may serve as a basis for immediat e termination of this Agreement and/or any other remedies available under this Agreement and/or law.
Notice to City Related to Wage Theft Prevention: Notice provided to the City Attorney as required under this Section shall be addressed to: City Attorney, City of Morgan Hill, 17575 Peak Avenue, Morgan Hill, CA 95037. The Notice provisions of this Section are separate from any other notice provisions in this Agreement and, accordingly, only notice provided to the above address satisfies the notice requirements in this Section.
11. Independent Contractor. SERVICE PROVIDER is an independent contractor and not an agen t or employee of CITY.
12. Confidentiality. All data, documents, or other information received by SERVICE PROVIDER from CITY or prepared in connection with SERVICE PROVIDER’S services under this Agreement are deemed confidential and shall not be disclosed to any third party by SERVICE PROVIDER without prior written consent by CITY.
13. Conflict of Interest and Reporting. SERVICE PROVIDER shall at all times avoid conflict of interest or appearance of conflict of interest in performance of this Agreement.
14. Notices. All notices shall be personally delivered or mailed, via firs t class mail to the below listed address. These addresses shall be used for delivery of service of process. Notices shall be effective five (5) days after date of mailing, or upon date of personal delivery. ///
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Address of SERVICE PROVIDER is as follows:
Infosend, Inc.
4240 E La Palma Ave
Anaheim, CA 92807-1816
Address of CITY is as follows:
Utility Billing
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
with a copy to:
City Clerk
City of Morgan Hill
17575 Peak Avenue
Morgan Hill, CA 95037
15. Licenses, Permits and Fees . SERVICE PROVIDER shall obtain a City of Morgan Hill Business License, all permits and licenses to the extent required by ordinances, codes, and regulations of the federal, state and local government.
16. Service Provider's Proposal . If applicable, this Agreement shall include SERVICE PROVIDER' S proposal or bid which is incorporated herein. In the event of an y inconsistency between the terms of the proposal and this Agreement, this Agreement shall govern.
17. Maintenance of Records.
17.1. Maintenance. SERVICE PROVIDER shall prepare, maintain, and preserve all reports and records that may be required by federal, state, and CITY rules and ordinances related to services provided under this Agreement. SERVICE PROVIDER shall maintain records for a period of at least 3 years after receipt of final payment under this Agreement. If any litigation, claim, negotiation, audit exception, or other action relating to this Agreement is pending at the end of the 3-year period, then SERVICE PROVIDER shall retain said recordsuntil such action is resolved.
17.2. Access to and Audit of Records. The CITY shall have the ri ght to examine, monitor and audit all records, documents, conditions, and activities of the SERVICE PROVIDER and its subcontractors related to services under this Agreement. Pursuan t to Government Code Section 8546.7, if this Agreement involves the expenditure of public fundsi ne x c e s so f $10,000, the Parties to this Agreement may be subject, at the r equest of the CITY or as part of any audit of the CITY, to the examination and audit of the State Auditor pertaining to matters connected with the performance of this Agreement for a period o f three years after final payment under the Agreement.
17.3. Ownership of Work Product. All documents or other informat ion developed or received by SERVICE PROVIDER for work performed under this Agreement shall be the property of CITY.
SERVICE PROVIDER shall provide CITY with copies of these items upon demand or upon termination of this Agreement.
18. Familiarity with Work. By executing this Agreement, SERVICE PROVIDER represents that: (1) it has investigated the work to be performed; (2) it has investigated the siteof the work and is aware of all 13
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conditions there; and (3) it understands the difficulties and r estrictions of the work under this Agreement.
Should SERVICE PROVIDER discover any conditions materially differing from those inherent in the work or as represented by CITY, it shall immediately inform CITY and sh all not proceed, except at SERVICE PROVIDER'S risk, until written instructions are received from CITY.
19. Time of Essence. Time is of the essence in the performance of this Agreement.
20. Force Majeure. Neither party shall be liable, or deemed to be in default, to the other for any failure or delay in performing an obligation under this Agreement to the e xtent that its performance is delayed, impaired or rendered impossible by an event beyond its control (“Force M ajeure Event”) such as natural disasters, war, terrorist acts, riots, labor strikes, civil disturbances, extra -ordinary losses of utilities (including telecommunications services), computer “hacker” attacks on inte rnet infrastructure, regulatory restrictions, change in law or regulation or other acts of government authori ty, including civil and military authorities and courts, fuel or energy shortages, labor shortages, transportation stoppages or slowdowns, the inability to procure parts or raw materials, and/or acts or omissions of common carr ier. These causes will not excuse CITY from paying previously accrued payables due to SERVICE PROVIDER throu gh any available lawful means acceptable to InfoSend.
21. No Assignment. Neither this Agreement nor any portion shall be assigned by SERVICE PROVIDER, without prior written consent of CITY. Any attempted assignment not firstapproved by CITY shall be void and, at CITY's option, shall terminate this Agreement effective as of the date of such attempted assignment.
22. Attorney Fees. In any legal action, dispute or arbitration arising out of or relating to this Agreement, the prevailing party shall be entitled to an award of its reasonable attorney fees, costs and expenses incurred.
23. Defense and Indemnification.
23.1. Defense and Indemnification. SERVICE PROVIDER shall, to the fullest extent permitted by law, indemnify, defend and hold harmless CITY, its elected or a ppointed officials, boards, agencies, officers, agents, employees, and volunteers (“INDEMNITEES”) fro m and against any and all claims, liabilities, expenses, liens, or damages of any nature, includi ng liability for bodily injury, property damage or personal injury, and including reasonable attorneys' fees and expenses, that arise out of, pertain to, or relate to the performance of this Agreement or the failure tocomply with any obligations contained in this Agreement by SERVICE PROVIDER, and/or its agents, officers, employees, subcontractors, or independent contractors (“CLAIM”).
23.2. Exceptions. SERVICE PROVIDER is not required to indemnify INDEMNITEES against liability for bodily injury, property damage or personal injury, or any o ther loss, damage or expense arising from the sole negligence or willful misconduct of the CITY.
23.3. Not limited by insurance. The indemnity, defense and hold harmless provisions of this Agreement apply to all CLAIMs alleged against an INDEMNITEE, regardless of whether any insurance policies are applicable. Policy limits do not act as a limitation upon the amount of indemnification or defense to be provided by SERVICE PROVIDER.
23.4. Right to Offset. CITY shall have the right to offset again st any compensation due SERVICE PROVIDER under this Agreement any amount due CITY from SERVICE PROVIDER as a result of SERVICE PROVIDER's failure to pay CITY promptly any indemnification arising under this Section (22) and any amount due CITY from SERVICE PROVIDER arising from SERVICE PROVIDER's failure either to (i) pay taxes on amounts received pursuant to this Agreement or (ii) comply with applicable workers' compensation laws.
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23.5. Interpretation. This Section shall constitute an agreement or contract of indemnity, incorporating the interpretations under California Civil Code Section 2778. It is expressly understood and agreed that the obligation of the SERVICE PROVIDER to indemnify the INDEMNITEE shall be as broad and inclusive as permitted by the laws of the State of California and shall survive termination of this Agreement.
23.6. Limitation of Liability. In no event shall either party be liable to the other for indirect, special or consequential damages even if such party has been ad vised of the possibility of such potential claim, loss or damage. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies.
24. Entire Agreement; Modification; Conflicting Provisions . This Agreement constitutes the entire Agreement between the Parties and supersedes any previous agree ments, oral or written. This Agreement may be modified or provisions waived only by a subsequent mutual writtenagreement executed by CITY and SERVICE PROVIDER. If the provisions contained in the main body of this Agreement conflict with anyprovision contained in an exhibit to this Agreement, the provisions ofthe main body of this Agreement shallgovern and control over any provision contained in an exhibit to this Agreement.
25. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of California. This Agreement was entered into and is to be performed in the County of Santa Clara.
Any action or dispute arising out of this Agreement shall only be brought in Santa Clara County.
26. Interpretation. This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation shall apply against any particular Party based on a contention that the Agreement was drafted by one of the Parties including, but not limited to, California Civil Code § 1654, the provisions of which are hereby waived. This Agreement shall be construed and interpreted in a neutral manner.
27. Preservation of Agreement. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
28. Binding Agreement. Notwithstanding the provisions of Section 20 above, this Agreement shall bind any and all successors in interest, legal representatives and/o r other permitted assignees or transferees of SERVICE PROVIDER in the same manner as if those successors in i nterest, legal representatives or other permitted assignees or transferees had entered into this Agreement originally.
29. Authority to Execute . Those individuals who are signing this Agreement on behalf of e n t i t i e s represent and warrant that they are, respectively, duly authorized to sign on behalf of the entities and to bind the entities fully to each and all of the obligations set forth in this Agreement.
30. Piggyback Cooperative. SERVICE PROVIDER and CITY agree that SERVICE PROVIDER may offer the prices and the terms and conditions offered herein to other government agencies that wish to participate in a cooperative purchase program with the CITY. SERVICE PROVIDER will review these requests from other government agencies on a case-by-case basis to decide whether this Agreement can be extended to the new agency. At a minimum, the following requirements mus t be met for the prices in this Agreement be extended to the new agency:
30.1. The new agency must require similar types of service for similar document types (i.e. utility bills and notices).
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30.2. The monthly document volume that SERVICE PROVIDER will produce must be similar, or at a minimum, acceptable.
30.3. The new agency must agree to use SERVICE PROVIDER’S standard envelopes.
30.4. If the above conditions are not met, then SERVICE PROVIDER will provide the new agency with revised pricing that it can elect to accept if it moves forward with the cooperative purchase program.
Other agencies will be responsible for entering into separate agreements with the contract and for all payments thereunder.
IN WITNESS THEREOF, these Parties have executed this Agreement on the day and year shown below.
AS SET FORTH IN CA. CORP. CODE § 313, TWO SIGNATURES ARE REQUIRED FOR CALIFORNIA CORPORATIONS:
(1) CHAIRPERSON OF THE BOARD, PRESIDENT, OR VICE PRESIDENT; AND (2) SECRETARY, ASSISTANT SECRETARY, CHIEF FINANCIAL OFFICER OR ASSISTANT TREASURER.
ATTEST: CITY OF MORGAN HILL
City Clerk/Deputy City Clerk City Manager
Michelle Bigelow Christina J. Turner
Print Name Print Name
Date: Date:
APPROVED AS TO FORM: InfoSend, Inc.
City Attorney By:
Donald A. Larkin
Print Name Print Name and Title of Signer.
If Corporate: Chairman, President or
Vice President
Date: Date:
By:
Print Name and Title of Signer.
If Corporate: Secretary, Assistant
Secretary, Chief Financial Officer or
Assistant Treasurer
Date:
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19 EXHIBIT A
Scope of InfoSend Services
This Exhibit provides the Services which InfoSend shall deliver to City to permit City’s customers (“Users”) to use the produc ts and services to view and pay their bills. These services will include:
5 Data Processing, Printing and Mailing Service (“DPPM Service”): During the term of this Agreement, InfoSend will provide data processing, printing, and mailing services. The Service consists of processing data, printing documents, mail preparation, applying postage (where applicable) and sending via the United States Postal Service. Document types include but are not limited to bills, postcards, and letters. 5 eBusiness Services (the “eBusiness Services”): During the term of this Agreement InfoSend will provide eBusiness Services. These services can include presenting bills online and/or accepting and reporting payment transaction information to facilitate ACH and/or credit card payments via web, Interactive-Voice-Response (IVR), SMS, or Bank Billpay (e-Lockbox).
Section 1. Data Processing, Printing and Mailing (DPPM) Service Description A. Data Transfer and Processing
x Client to transmit data to InfoSend in an agreed upon format. S hould Client make changes to data file format after initial setup is complete, it agrees to pay for the professional servic es required to accommodate the new file format. See Professional Services in this Exhibit A for information on initial setup and ongoing programming changes. x Client will monitor transfer confirmation emails to ensure InfoSend is in receipt of the data. Client acknowledges that InfoSend will not be responsible or liable for any transferred data which does not result in a confirmation receipt to Client. x A File Transfer Report will be emailed to the Client representa tives who have opted-in to this email. A copy of this report is also available to download from the InfoSend website.
x Client will have access to an online Job Tracking application that shows the progress of each file as it is processed and becomes a batch of documents to be printed and mailed. Client can see b oth the original input file name and the InfoSend-assigned “Job Code”.
x InfoSend will process the mailing addresses and perform the following functions:
o Apply CASS-certified address validation
o Comply with USPS requirements to obtain pre-sort automation rates for qualified client mail pieces o Stay current with all USPS regulations required to mail presorted first-class mail x InfoSend will optionally provide proofs of the final print-ready PDF files to Client to be reviewed and approved before printing begins (if requested).
B. Document Printing and Mailing
x Batches are printed by InfoSend using a high-speed production process onto the agreed upon forms. x Printed documents are put through a quality control process and then released to the mailing department to be inserted into outgoing envelope. A return envelope and any applicable inserts are included as defined by client workflow. x After a batch of mail is completed in InfoSend’s system it will be marked as such in the online Job Tracker and a Process Confirmation Report will be emailed to the Client representatives who have opted-in to this email. A copy of this report is also available to download from the InfoSend website.
Section 2. eBusiness Service Description
A. General System Description
x M o b i l e - R e a d y C u s t o m e r E n g a g e m e n t : a l l p r o d u c t s a r e m o b i l e c o m p atible out of the box, with no app store downloads required of customers. Powered by InfoSend’s CCM platform, cust omer specific messaging and payment reminders are delivered electronically.
x Multi-Channel Payment Collection: InfoSend’s payment platform w ill consolidate web, telephone, SMS, CSR, in-person EMV and bank payments into a single lockbox file.
x One-Time and Automatic Payments: allow customers to quickly make a one-time payment, as well as sign up to have their payment account auto debited with each billing cycle.
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20 x Bill Notification and Presentment: notify customers via email w hen a new bill is available, and securely deliver exact replica of printed document to customers inbox or show online via the secure portal. x I n t e r a c t i v e V o i c e R e s p o n s e ( I V R ) : a c c e p t c u s t o m e r p a y m e n t s v i a automated phone service with InfoSend-hosted phone number, enabling client phone systems to redirect customers with ease. x SMS Text-to-Pay: enrolled customers may opt in to receive text notifications of new bills and reply to have the registered payment method drafted for the amount due, speeding up the time to payment. x Bank Payments (MasterCard RPPS): InfoSend can collect payments made via the customer bank and include them within the lockbox file.
x PCI-Compliant Cloud Based Solution: electronic billing and payment related products hosted in the cloud by InfoSend in a secure PCI-Level 1 compliant environment.
B. Data Transfer and Processing
x Client to transmit data to InfoSend in an agreed upon format, using the Data Transfer and Processing workflow described in Section 1.
x Client acknowledges that InfoSend will not be responsible or li able for any transferred data which does not result in a confirmation receipt to Client.
x If the Client is not using InfoSend’s DPPM Service, USPS address workflow will not be applied. x Data loaded into the eBusiness system is used to facilitate accurate payments via Web, IVR, SMS or Bank BillPay.
C. Customer Enrollment and Bill Notification
x Data loaded into the system will be used to facilitate customer enrollment, using two pieces of information specific to the customer bill.
x For enrolled customers, system will send a notification of the new bill available via email. x For enrolled customers who have opted in, system will send an SMS alert. x For customers using the IVR system, bill information will be dictated by text to voice. x For customers paying via Bank BillPay, the account number can be validated by the system prior to accepting payment. x The system may optionally be configured to display a PDF replica of the bill image.
D. Customer Payment and Reporting
x Customers can make payment via Web, SMS, IVR or Bank BillPay, depending on channels which Client has requested InfoSend setup.
x Payments can be configured to allow Users to pay by bank account and/or credit/debit card. x All payments will be reported in a standard daily “lockbox” file.
Professional Services
InfoSend’s Professional Services Fees which InfoSend shall bill to City in exchange for Professional Services.
Section 1. Price Escalations to InfoSend Professional Services Fees InfoSend Professional Services Fees can be adjusted once every twelve (12) months to account for increases to the cost of prov iding these services. InfoSend reserves the right to increase Professional Services Fees on an annual basis, starting with the first anniversary of the Agreement date, if needed. The City will be notified, in writing, at least thirty (30) days prior to such price increas e. An amendment to the Agreement will not be required if the Professional Services Fees are changed unless the terms or conditions of the Agreement have changed.
Section 2. Definition of Professional Services
InfoSend Professional Services are the technical services that are required to perform the initial setup of the InfoSend Primary Services defined in this Exhibit A and the technical services required t o make changes to these Primary Services after the initial setu p is complete. Once any Primary Service is live and operational Professional Services will not be required unless City requests a change or makes changes to its data file format or business rules which necessitates a change to InfoSend’s system configuration or programming. Examples of InfoSend Professional Services:
x Project requirements gathering and analysis hours
x Project management and/or consulting hours
x Software development and system configuration hours related to the processing of City’s data 18
21 x Software development and system configuration hours related to document design, web portal setup, business rule configuration, or any other applicable technical services x Application testing and deployment hours
Section 3. Professional Services Fee and Process for Approval and Payment of Fee The current Professional Services Fee is $125.00 per hour. In t he event that a project will incur billable Professional Servic es hours, City will be informed before work begins. InfoSend and City will execute a Statement of Work for the project that City wants InfoSend to undertake. The payment terms for the project depend on the s ize and scope of the project. The Statement of Work can include payment terms that are different than the terms listed in this Agreement for InfoSend Fees, otherwise these terms will apply, and the project fees will be invoiced upon project completion. Small projects that incur less than five (5) hours of Professional Services can be initiated without a Statement of Work if City accepts and executes a Programming Quote for this work.
Any project that will take more than five (5) hours of Professional Services work will require both parties to execute a formal Statement of Work. Depending on the nature of the work required, InfoSend will provide one of the following quotation methods:
x Fixed Quote – a fixed project cost will be set. InfoSend may elect to waive this cost in some circumstances. City understands and accepts that it must accept the terms and conditions of the Statement of Work for the project and that changes made to the project requirements, data file structure, etc., after the Statement of Work and any amendments to it have been finalized will require City to pay for these changes on a Time and Materials basis. City will be notified immediately if this scenario arises and will be given an option to keep the original project specifications to keep the fixed quote in place.
x Time and Materials Quote – should it not be possible to provide a fixed quote due to the nature of a City’s requested project, then InfoSend will provide an estimated number of hours to complete the project and bill the hours on a Time and Materials basis. The Statement of Work will include the terms and conditi ons for these project types and City will be invoiced weekly for the hours spent on the project.
Section 4. Initial Setup Cost: InfoSend Primary Services The Initial Setup cost for the InfoSend Primary Services selected in this Exhibit A are listed in Exhibit B. These costs have been provided using a Fixed Quote process, explained in Section 3 above. City understands and agrees to these terms, and to the project-spec ific terms and conditions that will be provided in the Statement of Work that will be created to capture City’s specific requiremen ts and data types.
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22 EXHIBIT B
InfoSend Fees
This Exhibit 2 provides the Fees which InfoSend shall bill to City in exchange for Primary Services.
Section 1. Price Escalations to InfoSend Fees
InfoSend Fees may be adjusted once every twelve (12) months to account for increases in the cost of materials, labor, and other overhead costs. InfoSend reserves the right to increa se InfoSend Fees on a yearly basis (starting with the first anniversary of the Agreement date). The Client will be no tified, in writing, at least thirty (30) days prior to such price increase. An amendment to the Agreement will not be requi red if the Fees are changed unless the terms or conditions of the Agreement have otherwise changed. Postage fees may change at any time per USPS regulations and do not require an amendment to the Agreement.
In addition to this, if Client uses the Printing and Mailing Se rvice, it accepts that InfoSend reserves the right to pass on any extraordinarily high increases to the cost of forms or e nvelopes at any time. The Client will be notified, in writing, at least thirty (30) days prior to such price increase.
InfoSend pricing is predicated on Client representations of Client and Client User transactional usage. Should Client’s actual continuous volume and/or recurring frequency deviate by more than thirty percent (30%) from what Client has represented to InfoSend in Section 2 below, then InfoSend r eserves the right to invalidate the Fees listed in this Agreement. Should this rare situation arise then InfoSend will notify Client immediately and negotiate with Client in good faith to pass on any increased costs to Client, in line wi th actual Client and Client User transactional usage.
Should InfoSend and Client fail to agree upon updated Fees, InfoSend reserves the right to terminate this Agreement with one hundred and eighty (180) days’ notice.
Section 2. City Representations
Client Volume Assumptions
Customers Contacted or Billed Monthly
-Printed – 13,500/mo
-Enrolled users – 1,020
-eBills Loaded – 14,134
-Average credit card payments per month – 4,531
-Average ACH payments per month – 3,465
-Total electronic payments per month - 7006
Section 3. DPPM Fees:
Data Processing
Data Processing Fee (per document) $0.01
Printing and Mailing Service
Statement Print Fee, per page, with up to 4/1 print $0.068 USPS Postage Pass-through
A postage deposit will be required prior to
starting service.
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23 Print Color Options (colors per side) $0.073 for 4/4 printing Excess Pages Handwork Surcharge (per mail piece) $0.35
Address Updates $0.35 ACS
Materials
Standard Paper Stock (per sheet) $0.015
Standard Outgoing #10 Envelope $0.02
Standard Return #9 Envelope $0.017
Outgoing Flat Envelope – used for mail pieces with excess pages $ 0 . 1 7
Insert Services
InfoSend Produced Quoted based on specification
Envelope Messaging (Snipes) Quoted based on specification Electronic Inserts $0.01 per insert
Inserting Fee $0.01 per insert
Optional Document Services
Print Image Archiving (Per Document Image), with included USPS mail tracking
$0.00 – 24-month archive included
with EBPP
Professional Services Rate (per hour) $125.00
Returned Mail Handling $0.35 per reported returned mail piece Remit Tracking $100 monthly support fee
Section 3.1. Custom Forms/Envelopes
If Client has selected the Printing and Mailing Service and at any time requests that InfoSend Fees include the cost of custom Client-specific materials (either in this Agreement o r since its execution), then Client understands and accepts that these materials will be purchased in bulk to achie ve the lowest possible per-unit cost. Client agrees to purchase any remaining supplies of requested custom materials ( normally forms or envelopes) if Client stops using InfoSend’s Service for any reason. Client agrees to purchase the remaining supply of custom forms/envelopes upon Client’s request to change the custom forms/envelopes before the supply has been depleted.
Section 3.2. USPS Postage Rates
Postage rates are determined by the United States Postal Servic e. All postage rate changes are determined directly by USPS and are independent of any InfoSend service or material s fees. In no event shall any change in the postage rates affect the InfoSend service or materials fees. The Client will be invoiced the amount of excess for overweight and foreign mail.
Section 3.3. Postage Deposit
This section is waived.
Section 4. eBusiness Service Fees:
Multi-Channel Payments
Bank Account (ACH) $0.34 per payment
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24 Credit Card (CC)
Interchange: Pass-through
$0.34 per payment
Above fees cover payment initiation through all channels hosted by InfoSend. All Payment Processing fees will be assessed by Global Payments and included in a merchant statement. Interchange rates are determined by the Merchants and is passed through to Client. All pricing is based on “Client Volume Assumptions” listed and excludes applicable sales tax.
Online BillPay Platform
Online BillPay Setup Fee, including SSO connection to Water Smart $0.00 – Waived ($4995 value) Monthly Maintenance $199.00
Per eBill Loaded $0.03
Per Enrolled Customer Fee $0.00 - Waived
IVR Platform (Optional)
IVR Setup Fee $0.00 – Waived ($2995 value)
Second Language Recording Setup Fee (Optional) $550.00
Monthly Maintenance $149.00
IVR Per Call Fee $0.23
SMS Platform (Optional)
SMS Setup Fee $0.00 - Waived
Monthly Maintenance $0.00 - Waived
SMS Per Text Fee $0.03
Misc. Payment Fees
Monthly Outbound Voice and SMS Messaging Two buckets offered:
$350.00 – 0 to 5,000 messages
$500.00 – 5,001-10,000 messages
$0.10 per message thereafter
ACH Return Fee $3.50
Chargeback Fee $20.00
In-Person Virtual Terminal Payments Included
(Must purchase device separately)
Online Banking Payment Consolidation (Optional)
Setup Fee $995.00
Per Bank Payment Fee $0.13
Per Reversal (Optional) $3.50
Outbound Notifications (Optional)
Setup Fee $0.00 – Waived ($995 value)
Monthly Minimum (for up to 3000 IVR Minutes and/or SMS
Messages)
$95.00
Per IVR Minute after Minimum $0.10
Per SMS after Minimum $0.10
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25 Section 5. Client Go-Live and Fees
InfoSend will provide Client with a Demo instance of the System to approve configuration and simulation of Services.
Upon Client approval of the Demo instance of the System and sam ple outputs from Services, InfoSend will create a copy of Demo System in Production for completion of final User Acceptance Testing (UAT). Client will be given the UAT Period to complete internal testing prior to initiating Go-Live. All Setup and recurring Monthly Fees will become due upon the sooner of (a) Client Go-Live with the application or (b) 60 days from InfoSend delivery of Production System for UAT.
Section 6. Implementation Project Cost Subsidization:
InfoSend’s internal costs to complete the project is higher tha n the Setup fees given. InfoSend has subsidized these fees by factoring in years of service given the term of the Agr eement. Should Client cancel the project or terminate the Agreement at its convenience less than one (1) year from th e Effective Date then it must pay according to the below:
x EBPP Setup Fee: 100% of Setup fees quoted or listed as “Waived” in the pricing exhibit.
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26 EXHIBIT C
Additional Terms & Conditions
This Exhibit C contains terms and conditions which shall supplement the terms and conditions contained in the Service Agreement.
Definitions
The following terms and words shall have the meaning ascribed to them, unless the context clearly indicates otherwise.
“User(s)” shall mean a customer or employee of Client accessing InfoSend hosted applications via the Internet. Users of the System will agree to accept all the terms and conditions herein, and may be issued a unique User ID and/or password by InfoSend or Client.
“Services” shall include the performance of the Services detailed in Exhi bit A of this Agreement.
“System” shall include all InfoSend hosted data and software applicatio ns.
License Grant and Restrictions
Grant of License
InfoSend agrees to provide to Users the right to use software and the provision of Services, but in all cases only in full and complete compliance with all of the terms and conditions of this Agreement. Subject to the terms of this Agreement, InfoSend hereby grants, and Client hereby accepts, for the Term (as defined herein) of this Agreement, a non-exclusive, non- transferable license to access and use and to permit its Users to access and use the System via the Internet (the “License”).
License Restrictions
Client hereby agrees not to: (i) reproduce, download, modify, create derivative works from, distribute, or attempt to reverse engineer, decompile, disassemble, or access the source or object code for, the System; (ii) use the System, or any component thereof, in any manner contrary to applicable laws or government regulations; or (iii) otherwise affect or attempt to enable the unauthorized use (with or without User ID and/or password) of the System.
Confidentiality & Intellectual Property
Confidentiality
All information and data relating to Client’s business, as well as all User information, submitted by Client to InfoSend under this Agreement shall be treated as confidential by InfoSend and shall not, except as required to perform the Services under this Agreement or otherwise required by law, be disclosed to any third party by InfoSend without Client’s written consent.
InfoSend shall promptly notify Client should InfoSend be served with a summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admission, or other discovery request or court order (a “Request to Disclose”) from any third party regarding this Agreement, the Services performed under this Agreement, and/or seeking such information or data. Client shall be responsible to timely make appropriate objections to any Request to Disclose.
Client will not disclose to any third party or use for any purpose inconsistent with this Agreement any confidential or proprietary non-public information it obtains during the term of this Agreement about InfoSend’s business (the “Confidential Information”), which Confidential Information shall include Inf oSend’s operations, financial condition, technology, systems, suppliers, clients or prospective clients, marketing data, plan s, pricing, and models, or personnel, unless required by applicable law. Client will ensure that its employees and agents similarly abide by the requirements hereof. Client will promptly notify InfoSend of its receipt of a Request to Disclose and Confidential Information, and InfoSend shall be responsible to timely make appropriate objections thereto.
Intellectual Property
InfoSend, and its licensors, where applicable, owns all rights, title and interest, including all related Intellectual Property Rights, in and to InfoSend technology, the content and the Services. The InfoSend name, the InfoSend logo, and the product names associated with the Service are trademarks of InfoSend or third parties, and no right or license is granted to use them.
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27 Representations & Warranties
InfoSend Representations and Warranties
InfoSend represents and warrants that it has the legal power and authority to enter into this Agreement and that Services will be provided in a professional and workmanlike manner.
InfoSend warrants that the Services will materially perform the functions that the Client has selected under normal use and circumstances and that InfoSend shall use commercially reasonab le measures to protect Client Data to the extent that it retains such data in the operation of the Services. Provided that Client gives InfoSend written notice of failure to meet the foregoing warranty within sixty (60) days following delivery of any Services, or as otherwise specified in a Statement of Work (“SOW”), InfoSend warrants that it will use commercially reasonable efforts to correct any Services that fail to comply with the foregoing warranty. If there is no notice by Client within sixty (60) days following delivery of any Services, or as otherwise specified in a Statement of Work (“SOW”), it shall be deemed Client has accepted the Services and waived any claims to the otherwise.
Client Representations and Warranties
Client represents and warrants that it has the legal power and authority to enter into this Agreement and provide to InfoSend all information and data necessary for InfoSend to perform the Services. Client further warrants that it will comply with all laws, regulations, and compliance requirements applicable to Client’s and User’s activities covered by this Agreement.
Warranty Disclaimer
Except as expressly set forth above, InfoSend disclaims all other representations or warranties, express or implied, made to Client or any other party, including without limitation, any wa rranties regarding quality, suitability, merchantability, fitness, for a particular purpose or otherwise of any services or any good provided incidental to the Services provided under this Agreement, to the extent permitted by applicable law.
InfoSend and its licensors and payment processors do not represent or warrant that (i) the use of the Services will be uninterrupted or error-free, or operate in combination with any other hardware, software, system or data; or (ii) the Services will not delay in processing or paying to the extent such delay is caused by things outside the control of InfoSend. Services may be subject to the limitations, delays, and other problems inherent in the use of the Internet and electronic communications.
InfoSend is not responsible for any delays, delivery failures, or other damage resulting from such problems.
In performing the Services, InfoSend is responsible for producing for print or online display the content that Client provides to InfoSend. InfoSend is not responsible for reviewing the content for spelling or typos, nor is InfoSend responsible for verifying the accuracy or legality of the content. It is Client’s sole responsibility to verify that the content that InfoSend’s applica tions will produce on Client’s behalf is appropriate for distribution.
Inbound Communication Services Disclaimer
InfoSend Inbound Communication services are intended to receive communications and data from clients to facilitate the performance of InfoSend Services. While the inbound services ha ve been created with the best available tools and practices, they are dependent on infrastructure that is inherently not fail-proof, including but not limited to infrastructure such as United States Postal Service (“USPS”) delivery standards, software, computer hardware, network services, telephone and SMS services, and email. Examples of situations that could cause failure include but are not limited to: USPS failure to deliver, down phone lines, all lines busy, equipment failure, email addr ess changes, and Internet service disruptions. Client acknowledges that it is aware of the potential hazards associated with using such infrastructure and will be responsible for ensuring InfoSend is in receipt of any communication or data destined for InfoSend. Client releases InfoSend from any and all liability that results from an unsuccessful communication or data transfer to InfoSend, one which does not produce a confirmation receipt from InfoSend.
Outbound Services Disclaimer
InfoSend Outbound Communication services are intended to create additional methods of communication for clients in support of existing processes. These services are not intended to replace all interaction with Client’s end users or employees. While the outbound services have been created with t he best available tools and practices, they are dependent on infrastructure that is inherently not fail-proof, including but not limited to infrastructure such as United States Postal Service (“USPS”) delivery standards, software, computer hardware, network services, telephone and SMS services, and email. Examples of situations that could caus
e failure include but are not limited to: USPS failure to deliver, down phone lines, all lines busy, equipment failure, email address changes, and Internet service disruptions. For this reason, while outbound 25
28 services are valuable in providing enhanced communication, they are specifically not designed to be used as the sole method to deliver critical messages. Client acknowledges that Client is aware of the potential hazards associated with relying on an automated outbound service feature when using InfoSend services. Client agrees that it is giving up in advance any right to make any claim against InfoSend, and that Client forever releases InfoSend from any and all liability caused by (a) any failed USPS delivery; (b) any failed email delivery; (c) any failed SMS or call attempts (including excess of calls over and a bove network or system capacity), incomplete calls, or any busy-outs; or (d) any failure to transmit, obtain or collect data from callers or for human and machine errors, faulty or erroneous input, inarticulate caller communication, caller delays or call lengths exceeding estimated call lengths or omissions, delays and losses in connection with the Services provided hereunder.
Such release shall include instances where Client, Client’s employees, or Client’s end user suffer injury or damage due to the failure of outbound services to operate, even though InfoSend m ay know or suspect what or how extensive those injuries or damages might be, unless such losses were directly attributable to InfoSend’s gross negligence or willful misconduct.
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29 EXHIBIT B
RATES AND COMPENSATION
Data Processing $0.01 each
Duplex Print and mailing $0.068 each
8.5x11 standard form $0.015 each
#10 double window envelope $0.02 each
#9 single window envelope $0.017 each
Outgoing large flat envelope $0.17 each
Address Change Service $0.35 each
Excess Pages Handwork $0.35 each
This agreement has a not to exceed amount of $311,110.00. 27
30 EXHIBIT C
CITY OF SIMI VALLEY INSURANCE REQUIREMENTS
Contractor shall procure and maintain for the duration of the c ontract insurance against claims for injuries to persons or damages to property which may a r i s e f r o m o r i n connection with the performance of the work hereunder by the Co ntractor, its agents, representatives, or employees.
Minimum Scope and Limit of Insurance
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 & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit ap plies, either the general aggregate limit shall apply separately to this project/ location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Contractor has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of C alifornia, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. Contractor hereby certifies that it is aware of the provisions of Section 3700 et seq., of the Labo r Code which require every employer to be insured against liability for Workers' Compensation.
4. Professional Liability (Errors and Omissions) Insurance appropriate to the Contractor’s profession, with limits no less than $2,000,000 pe r occurrence or claim, and $2,000,000 policy aggregate.
If the Contractor maintains broader coverage and/or higher limi ts than the minimums shown above, the City requires and shall be entitled to the bro ader coverage and/or the higher limits maintained by the Contractor. Any available insur ance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Other Insurance Provisions - The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its Boards, Officers, Agents, Officials, employees, a nd volunteers are to be covered as additional insureds on the CGL policy with respect t o liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operatio ns. General liability coverage can be provided in the form of an endorsement to the C ontractor’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this project/contract, the Contractor’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its Boards, Officers, Agents, Officials, employees, and volunteers. Any insurance or 28
31 self-insurance maintained by the City, its Boards, Officers, Agents, Officials, employees, and volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the City.
Waiver of Subrogation
Contractor hereby grants to City a waiver of any right to subrogation which any insurer of said Contractor may acquire against City by virtue of the payment of any loss under such insurance. Contractor 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 has received a waiver of subrogation endorsement from the insur er. The Workers’ Compensation policy shall be endorsed with a waiver of subrogat ion in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City. The City may require the Contractor to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
Claims Made Policies
If any of the required policies provide coverage on a claims-made basis:
1. The Retroactive Date must be shown, and this date must be before the execution date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective, or start of work date, the Contractor must purchase extended reporting period coverage for a minimum of five (5) years after completion of contract work.
4. A copy of the claims reporting requirements must be submitted to the City for review.
Verification of Coverage
Contractor shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City befor e work begins. However, failure to obtain the required documents prior to the work begi nning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Subcontractors
Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that the City is an additional 29
32 insured on insurance required from subcontractors. For CGL cove rage, subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances Cyber Liability Insurance
Limits not less than $2,000,000 per occurrence or claim, $2,000 ,000 aggregate.
Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but n ot be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violatio ns, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network sec urity. The policy shall provide coverage for breach response costs as well as regulator y fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. 30
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