HomeMy WebLinkAboutC-10065-1 - PSA for Public Records Request Plateform ServicesPROFESSIONAL SERVICES AGREEMENT
WITH CIVICPLUS, LLC FOR
PUBLIC RECORDS REQUEST PLATFORM SERVICES
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 30th day of December, 2025 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and CIVICPLUS, LLC, a Kansas limited liability company ("Consultant"), whose address
is 302 S 4th Street, Suite 500, Manhattan KS 66502, and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to Public Records Request platform services
("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on November 30, 2030, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion. The Services shall be subject to the terms and conditions outlined in the
Master Services Agreement attached hereto as Exhibit B and incorporated herein by
reference.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely
manner may result in termination of this Agreement by City. Notwithstanding the
foregoing, Consultant shall not be liable and termination right shall not apply to any delay
in the performance of the Services due to the action or inaction of the City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on an annual subscription basis,
starting with the first year fees to be invoiced upon signing of this Agreement, as set forth
in Exhibit A. Consultant's compensation for all Work performed in accordance with this
Agreement, including all reimbursable items and subconsultant fees, shall not exceed
Eighty Five Thousand Dollars and 00/100 ($85,000.00), without prior written
authorization from City. No billing rate changes shall be made during the term of this
Agreement without the prior written approval of City.
4.2 Consultant shall submit annual invoices to City at the beginning of each
year in the Term and each renewal term thereafter. City shall pay Consultant no later
than thirty (30) calendar days after approval of the annual invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
approved in writing in advance by City.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work or additional software services that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the Scope of Services
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and which the parties did not reasonably anticipate would be necessary at the execution
of this Agreement. Compensation for any authorized Extra Work agreed upon in writing
by the parties.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant will designated Click here to enter text. the
Project Manager at the time of signing this Agreement. .
5.2 Consultant, at the reasonable discretion of City, shall remove from the
Project any of its personnel assigned to the performance of Services upon written request
of City. Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the City Clerk's Office. City's City Clerk or
designee shall be the Project Administrator and shall have the authority to act for City
under this Agreement. The Project Administrator shall represent City in all matters
pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
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8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties") from and against any
and all third party claims (including, without limitation, claims for bodily injury, death or
damage to property), demands, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
reasonable attorneys' fees, disbursements and court costs) of every kind and nature
whatsoever (individually, a Claim; collectively, "Claims"), which arise from or any material
breach of the terms and conditions of this Agreement by Consultant, or Consultant's
presence or activities conducted on the Project (including the negligent, reckless, and/or
willful acts, errors and/or omissions of Consultant, its principals, officers, agents,
employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or
indirectly by any of them or for whose acts they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorneys' fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
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of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Notwithstanding the
foregoing, Consultant may assign this Agreement with advance notice to the City, upon
the merger or sale of a majority of its assets.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
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provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. CONFIDENTIALITY
All City documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
18. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
19. CONFLICTS OF INTEREST
19.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
19.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
20. NOTICES
20.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
20.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
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Attn: City Clerk
City Clerk's Office
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
20.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Legal Counsel
CivicPlus, LLC
302 S 4th Street, Suite 500
Manhattan KS 66502
21. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
22. TERMINATION
22.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of thirty (30) calendar days, or if more than thirty (30) calendar days are reasonably
required to cure the default and the defaulting party fails to give adequate assurance of
due performance within fifteen (15) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
22.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than sixty (60) calendar days' prior written notice to Consultant.
23. STANDARD PROVISIONS
23.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
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23.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all applicable statutes, ordinances, regulations and requirements of all
governmental entities, including federal, state, county or municipal, whether now in force
or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to
applicable City, county, state and federal laws, rules, regulations and permit
requirements.
23.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
23.4 Integrated Contract. This Agreement, including the attached Scope of
Services and Consultant's Master Services Agreement and applicable services and
solutions terms included therein, represents the full and complete understanding of every
kind or nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal agreement
or implied covenant shall be held to vary the provisions herein.
23.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
23.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
23.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
23.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
23.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
23.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
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23.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
23.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 1l /7, 3 /s S
By:
Aa n C. Harp
City Attorney A,
ATTEST:
Date: 4/ /O.�-/;W
By: Z�0—�
Lena Shumway
City Clerk
CITY OF NEWPORT BEACH,
a California nicipal co r oration
Date: l .� Z oZ
By. S.ee ,
Seimone Jurjis
City Manager
CONSULTANT: CivicPlus, LLC, a Kansas
limited liability company
Date: 1/6/2026
By:_-/ 11;Ai.1' ti4L'tl
Amy \/ikander
Senior VP of Customer Success
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Master Services Agreement
Exhibit C — Insurance Requirements
CivicPlus, LLC Page 10
Uivicrius, LLU Page A-1
P
CivicPlus
302 South 4th St. Suite 500
Manhattan, KS 66502
us
Client:
City of Newport Beach, CA
Statement of Work
Quote #: Q-112074-1
Date: 11 /11 /2025 9:26 AM
Expires On: 12/31/2025
Bill To:
NEWPORT BEACH CITY, CALIFORNIA
SALESPERSON Phone EMAIL DELIVERY METHOD PAYMENT METHOD
Kristin Lussier kristin.lussier@civicplus.com Net 30
One-time(s)
QTY
PRODUCT NAME
DESCRIPTION
12 Month
Value
1.00
NextRequest PT Standard
Standard Implementation (Virtual Only): Admin Users: 1
USD 1,500.00
Implementation
Kickoff Call, 1 Admin Training. Staff Users have Access
to a monthly webinar for general training and questions
1.00
NextRequest: Platform IdP
Platform IdP Integration Implementation Fee
USD 1,575.00
Integration Implementation Fee
Recurring Service(s)
QTY
PRODUCT NAME
DESCRIPTION
12 Month
Value
1.00
NextRequest PT Standard Plan
NextRequest Standard Plan for local agencies; Unlimited
USD 12,788.00
Staff Users, Up to 10 Admin-Publisher Users, Up to 2TB
Storage. Core Features: Review & Redaction Features,
Payments, IT & Compliance Features
1.00
NextRequest: Platform IdP
Platform IdP Integration Annual Fee
USD 1,874.00
Integration Annual Fee
Total Investment - Initial Term
USD 17,737.00
Annual Recurring Services (Subject to Uplift)
USD 14,662.00
Page 1 of 2
Initial Term 12 Months Beginning at Signing
Initial Term Invoice Schedule 100% Invoiced upon Signature Date
Renewal Procedure
Automatic 1 year renewal term, for up to 4 renewal
terms, unless 60 days notice provided prior to
renewal date
Annual Uplift
5% to be applied in year 2
Page 2 of 2
EXHIBIT B
MASTER SERVICES AGREEMENT
CivicPlus, LLC Page B-1
CP CIVICPLUS
CivicPlus Master Services Agreement
This Master Services Agreement (this "Agreement") governs all Statements of Work ("SOW") entered into by and
between CivicPlus, LLC ("CivicPlus") and the customer entity identified on the SOW ("Customer"). This Agreement
governs the use and provision of any Services purchased by Customer, as described in any signed SOW, and the effective
date of this Agreement shall commence on the date of signature of the SOW ("Effective Date"). CivicPlus and Customer
referred to herein individually as "Party" and jointly as "Parties".
Recitals
I. WHEREAS, CivicPlus is engaged in the business of developing and providing access to proprietary community
engagement and government content, workflow, and general management software solutions, platforms and associated
services (the "Services"); and
11. WHEREAS, Customer wishes to engage CivicPlus for the procurement of the Services and/or receive a license
subscription for the ongoing use of the Services, as set forth in the SOW;
NOW, THEREFORE, Customer and CivicPlus agree as follows:
Agreement
Term & Termination
1. A delinquent Customer account remaining past due for longer than 90 days is a material breach by Customer and is
grounds for CivicPlus termination. CivicPlus reserves the right to withhold, remove and/or discard Customer Data without
notice for any breach, including, without limitation, Customer's non-payment. Upon termination for Customer's breach,
Customer's right to access or use Customer Data immediately ceases, and CivicPlus shall have no obligation to maintain
or forward any Customer Data.
2. Upon termination of this Agreement or any SOW for any reason, (a) the licenses granted for such relevant SOW by
§ 11 below will terminate and Customer shall cease all use of the CivicPlus Property and Services associated with the
terminated SOW and (b) any amounts owed to CivicPlus for work performed prior to termination shall be invoiced and
paid within thirty (30) days by the Customer. If Customer has paid in advance for the Services, and this Agreement
terminates due to material breach of this Agreement by CivicPlus, CivicPlus shall refund Customer a prorated amount of
any amount already paid. Upon termination by Customer for convenience or due to material breach by Customer, in
addition to any remedy provided in this Agreement or provided in law or equity, CivicPlus shall be entitled to retain any
amounts already paid. Sections 7, 8, 10, 14, 15, 18, 32 -34, 40, and 42 will survive any expiration or termination of this
Agreement.
3. At any time during the Term, CivicPlus may, immediately upon notice to Customer, suspend Customer and any of
its Users access to any Service due to a threat to the technical security or technical integrity of the Services. CivicPlus
shall use its commercially reasonable efforts to promptly fix the underlying issues, provide timely updates to Customer
regarding the status of the restoration, and bring the Service back online as quickly as possible.
civicplus.com 1 302 South 4ch Street, Suite 500 1 Manhattan, KS 66502 1 888-228-2233
C;) CIVICPLUS
Invoicing & Payment Terms
4. Customer will pay the amounts owed to CivicPlus for the development and implementation of the Customer's
Services, as defined in the SOW ("Project Development"), subscription and licensing, and annual hosting, support and
maintenance services ("Annual Recurring Services") in accordance with the payment schedule set forth on the applicable
SOW. Invoices shall be sent electronically to the individual/entity designated in the SOW's contact sheet that is required
to be filled out and submitted by Customer (the "Contact Sheet"). Customer shall provide accurate, current and complete
information of Customer's legal business name, address, email address, and phone number in the Contact Sheet upon
submission of a signed SOW. Customer will maintain and promptly update the Contact Sheet information if it should
change. Upon Customer's request, CivicPlus will mail hard -copy invoices for a $5.00 convenience fee to be added to the
mailed invoice.
5. Each SOW will state the amount of days from date of invoice payment is due. If the Customer's account exceeds 60
days past due, support will be discontinued until the Customer's account is made current. If the Customer's account exceeds
90 days past due, CivicPlus may suspend in progress Project Development and Annual Recurring Services will be
discontinued, and the Customer will no longer have access to the Services until the Customer's account is made current.
Customer will be given 15 days' notice prior to discontinuation of Services for non-payment.
6. During the performance of Project Development, if Customer requests a change that requires repeated efforts to
previously approved work product and such change causes CivicPlus to incur additional expenses (i.e. airline change fees,
resource hours, consultant fees, Customer does not show up for scheduled meetings or trainings), Customer agrees to
reimburse CivicPlus for such additional expenses. CivicPlus shall notify Customer prior to incurring such expenses and
shall only incur those expenses which are approved by Customer in writing.
Ownership & Content Responsibility
7. Upon full and complete payment of amounts owed for Project Development under the applicable SOW, Customer
will own any website graphic designs, Services content, module content, importable/exportable data, and archived
information ("Customer Content") created by CivicPlus on behalf of Customer pursuant to this Agreement. "Customer
Content" also includes, without limitation, any elements of text, graphics, images, photos, audio, video, designs, artworks,
logos, trademarks, services marks, and other materials or content which Customer provides to CivicPlus for processing,
transmission, storage, or inputs into any website, software or module in connection with any Services. Customer Content
excludes any content in the public domain and any content owned or licensed by CivicPlus, whether in connection with
providing Services or otherwise.
8. Upon completion of the Project Development, Customer will take over the management and control of the Services
and Customer will assume full responsibility for Customer Content maintenance and administration. Customer, not
CivicPlus, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and
intellectual property ownership or right to use of all Customer Content. Customer hereby grants CivicPlus a worldwide,
non-exclusive right and license to reproduce, distribute and display the Customer Content as necessary to provide the
Services. Customer represents and warrants that Customer owns all Customer Content or that Customer has permission
from the rightful owner to use each of the elements of Customer Content and that Customer has all rights necessary for
CivicPlus to use the Customer Content in connection with providing the Services. Customer agrees that CivicPlus shall
not be responsible or liable for the content of messages created by Customer or by Customer's Users or end -users who
access Service. Notwithstanding the foregoing, CivicPlus retains the right, but not the obligation, to remove any Customer
Content that is libelous, harassing, abusive, fraudulent, defamatory, excessively profane, obscene, abusive, hate related,
violent, harmful to minors, that advocates racial or ethnic intolerance, intended to advocate or advance computer hacking
civicplus.com 1 302 South 4ch Street, Suite 500 1 Manhattan, KS 66502 1 888-228-2233
CP CIVICPWS'
or cracking, or other material, products or services that violate or encourage conduct that would violate any laws or third -
party rights.
9. At any time during the term of the applicable SOW, Customer will have the ability to download the Customer Content
and export the data that is processed through the Services ("Customer Data"). Customer may request CivicPlus to perform
the export of Customer Data and provide the Customer Data to Customer in a commonly used format, at any time, for a
fee to be quoted at time of request and approved by Customer. Upon termination of the applicable SOW for any reason,
whether or not Customer has retrieved or requested the Customer Data, CivicPlus reserves the right to permanently and
definitively delete the Customer Content and Customer Data held in the Services thirty (30) days following termination of
the applicable SOW. During the thirty (30) day period following termination of the SOW, regardless of the reason for its
termination, Customer will not have access to the Services.
10. Intellectual Property in the software or other original works created by or licensed to CivicPlus, including all software
source code, documents, and materials used in performing the Services ("CivicPlus Property") will remain the property of
CivicPlus. CivicPlus Property specifically excludes Customer Content and Customer Data. Customer shall not (i) license,
sublicense, sell, resell, reproduce, transfer, assign, distribute or otherwise commercially exploit or make available to any
third party any CivicPlus Property in any way, except as specifically provided in the applicable SOW; (ii) adapt, alter,
modify or make derivative works based upon any CivicPlus Property; (iii) create internet "links" to the CivicPlus Property
software or "frame" or "mirror" any CivicPlus Property administrative access on any other server or wireless or internet-
based device that may allow third party entities, other than Customer, to use the Services; (iv) reverse engineer, decompile,
disassemble or otherwise attempt to obtain the software source code to all or any portion of the Services; (v) make any
attempt to gain unauthorized access to the Services and/or any of CivicPlus' systems or networks; or (vi) access any
CivicPlus Property in order to: (a) build a competitive product or service, (b) build a product using similar ideas, features,
functions or graphics of any CivicPlus Property, or (c) copy any ideas, features, functions or graphics of any CivicPlus
Property. The CivicPlus name, the CivicPlus logo, and the product and module names associated with any CivicPlus
Property are trademarks of CivicPlus, and no right or license is granted to use them outside of the licenses set forth in this
Agreement.
11. Provided Customer complies with -the terms and conditions herein, the relevant SOW, and license restrictions set
forth in § 10, CivicPlus hereby grants Customer a limited, nontransferable, nonexclusive, non -assignable license to access
and use the CivicPlus Property associated with any valid and effective SOW, for the term of the respective SOW. The
license set forth herein, shall only apply to the extent that Customer is using the Services for legitimate business use as
intended by the purpose of the Services and not for the purpose of comparing the Services to a competitor or similar
product of CivicPlus. Customer hereby warrants and affirms its purpose in accessing or otherwise using the Services is
for their intended purpose only and understands and agrees that any other use shall be considered fraud.
12. All CivicPlus helpful information and user's guides for the Services ("Documentation") are maintained and updated
electronically by CivicPlus and can be accessed through the CivicPlus "Help Center". CivicPlus does not provide paper
copies of its Documentation. Customer and its Users are granted a limited license to access Documentation as needed.
Customer shall not copy, download, distribute, or make derivatives of the Documentation.
13. Customer acknowledges that CivicPlus may continually develop, alter, deliver, and provide to the Customer ongoing
innovation to the Services, in the form of new features and functionalities. CivicPlus reserves the right to modify the
Services from time to time. Any modifications or improvements to the Services listed on the SOW will be provided to the
Customer at no additional charge. In the event that CivicPlus creates new products or significant enhancements to the
Services ("New Services"), and Customer desires these New Services, then Customer will have to pay CivicPlus the
appropriate fee for the access to and use of the New Services. Prior to CivicPlus providing New Services,
New Services must be approved in advance by the City. Such approved New Services shall be formally incorporated into
this Agreement through a written amendment, fully executed by the Parties. CivicPlus shall use its reasonable best efforts
to provide workarounds in the event any modification to the Services causes Customer to lose substantial functionality of
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the Services.
14. CivicPlus in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by
Customer to Civieplus in connection with its access to and use of the Services (all reports, comments and suggestions
provided by Customer hereunder constitute, collectively, the "Feedback"). Customer hereby grants to CivicPlus a
worldwide, non-exclusive, irrevocable, perpetual, royalty -free right and license to incorporate the Feedback in the
CivicPlus products and services.
Indemnification
15. CivicPlus will defend at its expense or settle any third -party claim against Customer alleging that the Services
provided under this Agreement infringe intellectual property rights. CivicPlus will pay infringement claim defense costs,
CivicPlus—negotiated settlement amounts, and damages finally awarded by a court. CivicPlus has no obligation for any
claim of infringement arising from Customer's use of the Services for purposes not contemplated by this Agreement.
CivicPlus's indemnification obligations under this Section 15 are conditioned upon the Customer (i) promptly notifying
the CivicPlus of any claim in writing; (ii) cooperating with CivicPlus in the defense of the claim; and (iii) granting
CivicPlus sole control of the defense or settlement of the claim. The indemnification obligations of CivicPlus herein shall
not apply to any claims of intellectual property infringement related to Customer Content.
Responsibilities of the Parties
16. CivicPlus will not be liable for any act, omission of act, negligence or defect in the quality of service of any
underlying carrier, licensor or other third -party service provider whose facilities or services are used in famishing any
portion of the Service received by the Customer.
17. CivicPlus will not be liable for any failure of performance that is caused by or the result of any act or omission by
Customer or any entity employed/contracted on the Customer's behalf. During Project Development, Customer will be
responsive and cooperative with CivicPlus to ensure the Project Development is completed in a timely manner.
18. Customer agrees that it is solely responsible for the end -user's personal data that Customer decides to solicit, collect,
store, or otherwise use in connection with any Service provided by CivicPlus. Customer understands and agrees that
CivicPlus provides certain solutions with increased security measures for the solicitation and storage of any sensitive data,
and it is Customer's responsibility to determine whether the data it solicits and collects should be stored in such solutions.
Customer understands and agrees that CivicPlus does not have knowledge or control over what type of data Customer
solicits therefore CivicPlus has no responsibility for the use or storage of end -users' personal data in connection with the
Services or the consequences of the solicitation, collection, storage, or other use by Customer or by any third party of any
personal data. Customer has the sole control and responsibility over the determination of which data and information shall
be included in the content that is to be transmitted and stored by CivicPlus. Customer shall not knowingly provide to
CivicPlus or allow to be provided to CivicPlus any content that (a) infringes or violates any 3rd parry's intellectual property
rights, rights of publicity or rights of privacy, (b) contains any defamatory material, or (c) violates any federal, state, local,
or foreign laws, regulations, or statutes.
19. Customer is responsible for all activity that occurs under Customer's accounts by or on behalf of Customer. Customer
agrees to (a) be solely responsible for all designated and authorized individuals chosen by Customer ("User") activity,
which must be in accordance with this Agreement and the CivicPlus Terms of Use; (b) be solely responsible for Customer
Data; (c) obtain and maintain during the term all necessary consents, agreements and approvals from end -users, individuals
or any other third parties for all actual or intended uses of information, data or other content Customer will use in
connection with the Services; (d) use commercially reasonable efforts to prevent unauthorized access to, or use of, any
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User's log -in information and the Services, and notify CivicPlus promptly of any known unauthorized access or use of the
foregoing; (e) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and CivicPlus
Property and shall promptly notify CivicPlus of any unauthorized access or use of the Services and/or CivicPlus Property
and any loss or theft or unauthorized use of any n User's password or username and/or personal information; and (f) use
the Services only in accordance with applicable laws and regulations.
20. The Parties shall comply with all applicable local, state, and federal laws, treaties, regulations, and conventions in
connection with its use and provision of any of the Services or CivicPlus Property.
21. CivicPlus shall not be responsible for any actor omission of any third -party vendor or service provider that Customer
has selected to integrate any of its Services with.
22. Customer understands that CivicPlus must fastidiously allocate resources across all of its customers and specifically
reserves necessary resources for Customer's Project Development. If any professional services, such as consulting or
training, purchased by Customer are not used during the Project Development phase solely due to the inaction or
unresponsiveness of Customer, then these services shall expire 60 days after completion of Project Development. The
Customer may re -schedule any unused professional services during this 60-day period as mutually agreed upon by the
Parties. Any professional services that have not been used or rescheduled shall be marked as complete and closed upon
the expiration of the 60-day period.
Data Security
23. CivicPlus shall, at all times, comply with the terms and conditions of its Privacy. CivicPlus will maintain
commercially reasonable administrative, physical, and technical safeguards designed to protect the security and
confidentiality of Customer Data. CivicPlus will not modify Customer Data or disclose Customer Data, except (a) in order
to provide the Services; (b) to prevent or address service or technical problems in connection with support matters; (c) as
specifically directed or expressly permitted in writing by Customer, (d) in compliance with our Privacy Policy; or (f) if
compelled by law. Notwithstanding the foregoing, CivicPlus reserves the right to delete, suspend, or block known
malicious accounts without Customer authorization. Customer understands that CivicPlus has no obligation to provide the
Services or maintain the Customer Data, information or other material if Customer's accounts are past due and unpaid as
set forth in this Agreement.
24. Customer acknowledges and agrees that CivicPlus utilizes third -party service providers to host and provide the
Services and store Customer Data and the protection of such data will be in accordance with such third parry's safeguards
for the protection and the security and confidentiality of Customer's Data. Notwithstanding anything to the contrary,
CivicPlus shall have the right to collect and analyze data and other information relating to the provision, use and
performance of various aspects of the Services and related systems and technologies (including, without limitation,
information concerning Customer Data and data derived therefrom), and CivicPlus will be free (during and after the term
hereof) to use such information and data to improve and enhance the Services and for other development, diagnostic and
corrective purposes in connection with the Services and other CivicPlus offerings.
25. CivicPlus may offer Customer the ability to use third -party applications in combination with the Services. Any such
third -party application will be subject to advance written acceptance by Customer. In connection with any such third -party
application agreed to by Customer, Customer acknowledges and agrees that CivicPlus may allow the third -party providers
access to Customer Data as required for the interoperation of such third -party application with the Services. The use of a
third -party application with the Services may also require Customer to agree to a separate agreement or terms and
conditions with the provider of the third -party application, which will govern Customer's use of such third -party
application.
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26. In the event of a security breach due to the negligence, malicious actions, omissions, or misconduct of CivicPlus,
CivicPlus, as the data custodian, will comply will all remediation efforts as required by applicable federal and state law.
Notwithstanding the foregoing, CivicPlus's liability and remediation obligations under this section shall be limited to its
proportionate share of fault. CivicPlus shall not be responsible for any portion of damages, costs, or remediation efforts to the
extent caused by the negligence, acts, or omissions of the Customer or any third party.
CivicPlus Support
27. CivicPlus will use commercially reasonable efforts to perform the Services in a manner consistent with applicable
industry standards, including maintaining Services availability 24 hours a day, 7 days a week with 99.9% uptime. Customer
will have 24/7 access to the online CivicPlus Help Center (civicplus.help) to review use articles, software best practices,
receive maintenance release notes, as well as submit and monitor omni-channel support tickets and access solution specific
support contact methods (https://www.civicplus.help/hc/en-us/requests/new).
28. CivicPlus provides live support engineers based in the domestic United States to respond to basic questions
concerning use and configuration, to diagnose software code -related errors, and proactively identify potential systems
issues. CivicPlus support engineers serve a preliminary function in the agile development process and escalate defects to
software developers or architects for remediation. For security purposes, CivicPlus support engineers are not permitted to
modify user accounts, and permissions nor distribute access outside of accounts established by means of a support
interaction for testing. Customer delegated Users may receive tutorials and guidance on account modifications but will
perform the action themselves.
29. CivicPlus support hours span between the hours of 7 am to 7 pm CST, but may vary by product. Customer may
access the CivicPlus Help Center (civicplus.help) to obtain each product's support hours. After hours support is available
by toll- free phone call only. Non -emergency support requested outside of support hours will be subject to additional fees,
such fees will be quoted to Customer at the time of the request and will be subject to Customer acceptance and invoiced
the next business day following the non -emergency support. CivicPlus shall have the sole discretion to determine in good
faith whether support requests qualify as an emergency, exceed reasonable use or are outside the scope of services outlined
in any SOW.
30. If a reported problem cannot be solved during the first support interaction, Customer will be provided a ticket number
that will be used as communication method throughout ticket escalation until a solution is provided. Support service does
not include support for errors caused by third party products or applications for which CivicPlus is not responsible.
Marketing
31. Customer hereby authorizes CivicPlus to include CivicPlus's name and logo inconspicuously within the Customer's
instance of the Services. Customer may publicly refer to itself as a customer of the CivicPlus Services, including on
Customer's website and in sales presentations. Notwithstanding the foregoing, each Party hereby grants the other a limited,
worldwide, license to use the other's logo in conformance with such Party's trademark usage guidelines and solely for the
purposes of providing the Services. In no event will either Party issue a press release publicly announcing this relationship
without the written approval of the other Party, such approval not to be unreasonably withheld.
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Limitation of Liability
32. CivicPlus' liability arising out of or related to this Agreement, or any associated SOW, shall be limited to the
maximum amount of the applicable insurance policy limits required pursuant to this agreement..
33. In no event will CivicPlus be liable to Customer for any consequential, indirect, special, incidental, or punitive
damages arising out of or related to this Agreement.
34. The liabilities limited by Section 32 and 33 apply: (a) to liability for negligence; (b) regardless of the form of action,
whether in contract, tort, strict product liability, or otherwise; (c) even if Customer is advised in advance of the possibility
of the damages in question and even if such damages were foreseeable; and (d) even if Customer's remedies fail of their
essential purposes. If applicable law limits the application of the provisions of this Limitation of Liability section,
CivicPlus' liability will be limited to the maximum extent permissible.
Notwithstanding any limitation on liability set forth in Section 34 or elsewhere in this Agreement, CivicPlus shall take
commercially reasonable steps to mitigate any damages resulting from its breach or any foreseeable breach of this
Agreement.
Warranties and Disclaimer
35. Each person signing the SOW, or otherwise agreeing to the terms of this Agreement, represents and warrants that he
or she is duly authorized and has legal capacity to execute and bind the respective Party to the terms and conditions of the
SOW and this Agreement. Each Party represents and warrants to the other that the execution and delivery of the SOW and
the performance of such Party's obligations thereunder have been duly authorized and that this Agreement is a valid and
legal agreement binding on such Party and enforceable in accordance with its terms. Customer represents and warrants
that Customer has not provided any false information to gain access to the Service and that Customer's billing information
provided on the Contact Sheet is correct; and it has all necessary rights in the Customer Content to permit Customer's use
of the Service and to grant the licenses contained in this Agreement without infringing the intellectual property or other
rights of any third parties, violating any applicable laws, or violating the terms of any license or agreement to which it is
bound.
36. CivicPlus warrants that the Services will perform substantially in accordance with documentation and marketing
proposals, and free of any material defect. CivicPlus warrants to the Customer that, upon notice given to CivicPlus of any
defect in design or fault or improper workmanship, CivicPlus will remedy any such defect. CivicPlus makes no warranty
regarding, and will have no responsibility for, any claim arising out of. (i) a modification of the Services made by anyone
other than CivicPlus, even in a situation where CivicPlus approves of such modification in writing; or (ii) use of the
Services in combination with a third -party service, web hosting service, or server not authorized by CivicPlus.
37. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency
maintenance, either by CivicPlus or by third -party providers, or because of other causes beyond CivicPlus's reasonable
control, but CivicPlus shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled
service disruption. HOWEVER, SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT
MAY BE OBTAINED FROM USE OF THE SERVICES.EXCEPT FOR THE EXPRESS WARRANTIES IN THIS
AGREEMENT, THE SERVICES ARE PROVIDED "AS IS AND CIVICPLUS HEREBY DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A
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PRIOR COURSE OF DEALING.
38. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY,
DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS
AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY
CIVICPLUS TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN
THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER
PROVISIONS OF THIS AGREEMENT.
Force Majeure
39. No party shall have any liability to the other hereunder by reason of any delay or failure to perform any obligation
or covenant if the delay or failure to perform is occasioned by force majeure, meaning any act of God, storm, pandemic,
fire, casualty, unanticipated work stoppage, strike, lockout, labor dispute, civil disturbance, riot, war, national emergency,
act of public enemy, internet service provider failure or delay, third party application failure, denial of service attack, or
other cause of similar or dissimilar nature beyond its control.
Taxes
40. The amounts owed for the Services exclude, and Customer will be responsible for, all sales, use, excise, withholding
and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in
connection with the Services (excluding taxes based solely on CivicPlus's income). If the Customer is tax-exempt, the
Customer must provide CivicPlus proof of their tax-exempt status, within fifteen (15) days of contract signing, and the
fees owed by Customer under this Agreement will not be taxed. If such exemption certificate is challenged or held invalid
by a taxing authority then Customer agrees to pay for all resulting fines, penalties and expenses.
Other Documents
41. Omitted..
Interlocal Purchasing Consent/ Cooperative Purchasing
42. Omitted.
43. Omitted.
Miscellaneous Provisions
44. The invalidity or unenforceability, in whole or in part, of any provision of this Agreement shall not void, affect the
validity or enforceability of any other provision of this Agreement.
45. The Parties negotiated this Agreement with the opportunity to receive the aid of counsel and, accordingly, intend
this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against
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the drafting Party. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting
this Agreement. As used in this Agreement, the word "including" means "including but not limited to."
46. The Parties will use reasonable, good faith efforts to resolve any dispute between them in good faith prior to initiating
legal action.
47. This Agreement and any SOW, to the extent signed and delivered by means of a facsimile machine or electronic mail,
shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same
binding legal effect as if it were the original signed version thereof delivered in person. The Parties agree that an electronic
signature is the legal equivalent of its manual signature on this Agreement and any SOW. The Parties agree that no
certification authority or other third party verification is necessary to validate its electronic signature and that the lack of
such certification of third party verification will not in any way affect the enforceability of the Parties' electronic signature
or any resulting agreement between CivicPlus and Customer.
48. Omitted.
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EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City of Newport Beach, its
City Council, boards and commissions, officers, agents, volunteers and
employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary excess/umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence and two million dollars ($2,000,000) general aggregate. The
policy shall cover liability arising from bodily injury, property damage,
personal and advertising injury, and liability assumed under an insured
contract (including the tort liability of another assumed in a business
contract).
Consultant shall submit to City, along with a certificate of insurance,
additional coverage as stated in Section 4. Other Insurance Requirements.
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
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arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
Consultant shall submit to City, along with a certificate of insurance,
additional coverage as stated in Section 4. Other Insurance Requirements.
D. Cyber Liability Insurance in an amount not less than two million dollars
($2,000,000) per occurrence and four million dollars ($4,000,000) annual
aggregate covering (1) all acts, errors, omissions, negligence, infringement
of intellectual property; (2) network security and privacy risks, including but
not limited to unauthorized access, failure of security, breach of privacy
perils, wrongful disclosure, collection, or negligence in the handling of
confidential information, privacy perils, including coverage for related
regulatory defense and penalties; (3) data breach expenses payable
whether incurred by City or Consultant, including but not limited to consumer
notification, whether or not required by law, computer forensic
investigations, public relations and crisis management firm fees, credit file
or identity monitoring or remediation services in the performance of services
for City or on behalf of City hereunder. If a sub -limit applies to any elements
of coverage, the certificate of insurance evidencing the coverage above
must specify the coverage section and the amount of the sub -limit.
E. Excess/Umbrella Liability Insurance. If any Excess or Umbrella Liability
policies are used to meet the limits of liability required by this contract, then
said policies shall be "following form" of the underlying policy coverage,
terms, conditions, and provisions and shall meet all of the insurance
requirements stated in this contract, including, but not limited to, the
additional insured and primary & non-contributory insurance requirements
stated herein. No insurance policies maintained by the City, whether primary
or excess, and which also apply to a loss covered hereunder, shall be called
upon to contribute to a loss until the Contractor's primary and
excess/umbrella liability policies are exhausted.
Consultant shall submit to City, along with a certificate of insurance,
additional coverage as stated in Section 4. Other Insurance Requirements.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City of Newport Beach, its City Council, boards and commissions, officers,
agents, volunteers, employees or shall specifically allow Consultant or
others providing insurance evidence in compliance with these requirements
to waive their right of recovery prior to a loss. Consultant hereby waives its
own right of recovery against City, and shall require similar written express
waivers from each of its subconsultants.
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B. Additional Insured Status. All liability policies including general liability,
excess/umbrella liability, cyber liability, and automobile liability, if required,
but not including professional liability, shall provide or be endorsed to
provide that City, its City Council, boards and commissions, officers, agents,
volunteers and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar
days' notice of cancellation (except for nonpayment for which ten (10)
calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsements must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days -within the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial additional
cost to Consultant, City and Consultant may renegotiate Consultant's
compensation.
C. _Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Consultant shall require and verify that all
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subcontractors maintain insurance meeting all the requirements stated
herein, and Consultant shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage, subcontractors
shall provide coverage with a format at least as broad as CG 20 38 04 13.
D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. Self -insured Retentions. Any self -insured retentions must be declared to
and approved by City. City reserves the right to require that self -insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
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