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HomeMy WebLinkAbout2021 CON Netfile - Electronic Filing System - FPPCAGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND NETFILE, INC. THIS AGREEMENT is entered into on this 1 day of )VI UA d2021, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and Netfile, Inc., a California Corporation) (the "CONSULTANT"). RECITALS WHEREAS, the CITY desires to obtain professional services more full described in this Agreement; WHEREAS, in order to procure these professional services CONSULTANT was chosen based on CONSULTANT's unique qualificaitons, including 1) CONSULTANT is the only software company that offers a product approved by the Secretary of State to allow for the online filing of a wide variety of campaign disclosure forms; WHEREAS, the the CONSULTANT represents that it, and its SUBCONSULTANTS, if any, have the professional qualifications, expertise, desire and any license(s) necessary to provide certain goods and/or required services of the quality and type which meet the CITY's requirements; WHEREAS, The Parties have specified in this Agreement the terms and conditions under which such services will be provided and paid for. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONSULTANT. The CITY agrees to engage the CONSULTANT to provide professional services more full described in this Agreement, and the CONSULTANT agrees to perform the services set forth here in accordance with all terms and conditions contained herein. The CONSULTANT represents that all services shall be performed directly by the CONSULTANT or under direct supervision of the CONSULTANT. 2. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective within three (3) days of being fully executed by parties. The duration of this Agreement is for the period of February 16, 2021 through June 30, 2026. This Agreement may be extended by mutual agreement upon the same terms and conditions for an additional three (3) year term. The Parties may exercise up to two (2) three-year extensions. Any extension of this Agreement must be approved in writing by the City Manager. 3. SCOPE OF SERVICES. CITY employs CONSULTANT to perform the services ("Services") more fully described in Exhibit A entitled, "SCOPE OF SERVICES", attached and incorporated by this reference. Except as otherwise specified in this Agreement, CONSULTANT shall furnish all necessary technical and professional services, including labor, material, equipment, transportation, supervision, and expertise to satisfactorily complete the work required by CITY at its own risk and expense. 4. PROJECT COORDINATION AND SUPERVISION. The CITY'S City Clerk or their designee is hereby designated as the Project Coordinator for the CITY and will monitor the progress and execution of this Agreement. The CONSULTANT shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONSULTANT. Tom Diebert thereby is designated as the Project Director for the CONSULTANT. 5. COMPENSATION AND PAYMENT. The compensation for the CONSULTANT shall be based on annual billings covering actual work performed.Billings shall include labor classifications, respective rates, hours worked and also materials, if any. The total cost for all work described in Exhibit A shall not exceed $6,300.00. The compensation for the CONSULTANT'S work shall not exceed the rates set forth in Exhibit A. Annual invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that work is accomplished consistent with Exhibit A, as determined by the CITY. The CONSULTANT shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred, and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY, and for furnishing of copies to the CITY, if requested. 6. ACCEPTABILITY OF WORK. The CITY shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In(the event the CONSULTANT and the CITY cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT in this Agreement, the CITY or the CONSULTANT shall give to the other written notice. Within ten (10) business days, the CONSULTANT and the CITY shall each prepare a report which supports their position and file the same with the other party. The CITY shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT. 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The Memoranda, Reports, Maps, Drawings, Plans, Specifications, and other documents prepared by the CONSULTANT for this project, whether paper or electronic, shall: (1) be free from defects; (2) become the property of the CITY for use with respect to this project; and (3) shall be turned over to the CITY upon completion of the project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONSULTANT hereby assigns to the CITY, and CONSULTANT thereby expressly waives and disclaims any copyright in, and the right to reproduce, all written material, drawings, plans, specifications, or other work prepared under this Agreement, except upon the CITY'S prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONSULTANT shall, Standard Agreement Page 2 of 18 Revised January 2021 Netfile, Inc. City of National City and upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. All data created by CITY OR CITY's filers is the property of the CITY. All applications and their source code are the property of the CONSULTANT. Any modification or reuse by the CITY of documents, drawings, or specifications prepared by the CONSULTANT shall relieve the CONSULTANT from liability under Section 14, but only with respect to the effect of the modification or reuse by the CITY, or for any liability to the CITY should the documents be used by the CITY for some project other than what was expressly agreed upon within the Scope of Services of this project, unless otherwise mutually agreed. 8. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the CONSULTANT nor the CONSULTANT'S employees are employees of the CITY, and are not entitled to any of the rights, benefits, or privileges of the CITY'S employees, including but not limited to retirement, medical, unemploy- ment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONSULTANT and the CONSULTANT'S employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONSULTANT and its employees. Neither this Agreement, nor any interest herein, may be assigned by the CONSULTANT without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONSULTANT from employing or hiring as many employees, or SUBCONSULTANTS, as the CONSULTANT may deem necessary for the proper and efficient performance of this Agreement. All agreements by CONSULTANT with its SUBCONSULTANT(S) shall require the SUBCONSULTANT(S) to adhere to the applicable terms of this Agreement. 9. CONTROL. Neither the CITY, nor its officers, agents, or employees shall have any control over the conduct of the CONSULTANT or any of the CONSULTANT'S employees, except as set forth in this Agreement. The CONSULTANT, or the CONSULTANT'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY. The CONSULTANT and its agents, servants, and employees are wholly independent from the CITY and CONSULTANT'S obligations to the CITY are solely prescribed by this Agreement. 10. COMPLIANCE WITH APPLICABLE LAW. The CONSULTANT, in the performance of the services to be provided herein, shall comply with all applicable state and federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City, whether now in force or subsequently enacted. The CONSULTANT and each of its SUBCONSULTANT(S), shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 11. LICENSES, PERMITS, ETC. The CONSULTANT represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. CONSULTANT must promptly produce a copy of any such license, permit, or approval to CITY upon request. The CONSULTANT represents and covenants that the CONSULTANT shall, at its sole cost and expense, keep in effect at all times during the Standard Agreement Page 3 of 18 Revised January 2021 Netfile, Inc. City of National City and term of this Agreement, any license, permit, or approval which is legally required for the CONSULTANT to practice its profession. 12. USE OF CITY NAME OR EMBLEM. CONSULTANT and its employees, agents and representatives will not, without the prior written consent of CITY in each instance, use in advertising, publicity or otherwise the name of CITY or any affiliate of CITY, or any officer or employee of CITY, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, agreement or simulation thereof owned by CITY or its affiliates, nor represent, directly or indirectly, that any product or service provided by CONSULTANT has been approved or endorsed by CITY, nor refer to the existence of this Agreement in press releases, advertising or materials distributed to prospective customers. Notwithstanding the foregoing, CONSULTANT may acknowledge, when asked, that the CITY is a NetFile client. 13. AUDITS. City, through its authorized representatives, has the right during the term of this Agreement, and for three (3) years from the date of final payment for goods and/or Services provided under this Agreement, to audit the books and records of CONSULTANT regarding matters covered by this Agreement. CONSULTANT agrees to maintain accurate books and records in accordance with generally accepted accounting principles. Any expenses not so recorded shall be disallowed by City. CONSULTANT agrees to help City meet any reporting requirements with respect to CONSULTANT's Services if requested by City in writing. 14. WARRANTY. CONSULTANT expressly warrants that all materials and services covered by this Agreement shall be fit for the purpose intended, shall be free from known defects, shall be provided in a timely manner, and shall conform to the specifications, requirements, and instructions upon which this Agreement is based. CONSULTANT agrees to promptly replace or correct any incomplete, inaccurate, or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of CONSULTANT. CONSULTANT further warrants and represents that it is the owner of or has acquired the rights to use (including derivative rights) the software, technology, or otherwise that is required, in order to provide all related materials and services as set forth in Exhibit A, without violating any rights of a third party, and there is currently no actual or threatened suit by any such third party based on an alleged violation of such third -party rights by CONSULTANT. CONSULTANT further warrants that NetFile servers have a guaranteed uptime of 99% and, for so long as City shall pay the fees described in this Agreement (a) the System will be materially free of errors, and (b) CONSULTANT will provide the Professional Services in a professional and workmanlike manner consistent with the highest industry standards. CONSULTANT further warrants, during the term of this Agreement, that (i) the NetFile servers will be free of any Harmful Code (as defined below), and (ii) CONSULTANT will not interfere with or disrupt City's or the User's use of the System. For purposes of this Agreement, the term "Harmful Code" means any software code with the ability to damage, interfere with, or adversely affect, computer programs, data files, or hardware without the consent or intent of the computer user. This definition includes, but is not limited to, self -replacing and self -propagating programming instructions commonly called "viruses," "Trojan horses," and "worms." CONSULTANT agrees to implement reasonable procedures to prevent any software, link or code provided to City hereunder from being contaminated with Harmful Code. If CONSULTANT Standard Agreement Page 4 of 18 Revised January 2021 Netfile, Inc. City of National City and learns of or suspects the existence of any Harmful Code, CONSULTANT will immediately notify City and make every effort to remove the Harmful Code. 15. HOSTING SERVICES. a. Availability of Services. Subject to the terms of this Agreement, CONSULTANT shall use its best efforts to provide online access to the City and filers of FPPC Campaign Disclosure forms for twenty-four (24) hours a day, seven (7) days a week upon completion of the parsed database and accepted by the City and thereafter, throughout the term of this Agreement. City agrees that from time to time CONSULTANT's servers may be inaccessible or inoperable for various reasons, including: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which CONSULTANT may undertake from time to time; or (iii) causes beyond the control of CONSULTANT or which were not reasonably foreseeable by CONSULTANT, including interruption or failure of communications or transmission links, hostile network attacks or other failures (collectively "Downtime"). CONSULTANT shall provide forty-eight (48) hour advance notice to City in the event of any scheduled Downtime. CONSULTANT shall use its best efforts to minimize any disruption, inaccessibility and/or inoperability in connection with the Downtime, whether scheduled or not. In the event of any Downtime, City shall be entitled to a pro-rata reduction of any payments due and payable to CONSULTANT for such period. b. Backups CONSULTANT shall maintain backup servers and telecommunications connections and maintain weekly backups of City's database of FPPC Campaign Disclosure Form filings on such backup servers. CONSULTANT's disaster recovery and contingency planning, equipment, software, and telecommunications connections shall enable CONSULTANT to provide City access on and from such backup servers within forty-eight (48) hours of any disruption in service. c. Storage and Security Contactor shall operate and maintain the servers in good working order with access restricted to qualified employees of CONSULTANT and persons specifically designated by City. CONSULTANT shall undertal<e and perform the measures set forth in Exhibit A to ensure the security, confidentiality subject to Section 27 d. below, and integrity of all City content and other proprietary information transmitted through or stored on CONSULTANT's server(s), including, without limitation: (i) firewall protection; (ii) maintenance of independent archival and backup copies of the City's content; and (iii) protection from any network attack and other harmful, malicious, or disabling data, work, code or program. Standard Agreement Page 5 of 18 Revised January 2021 Netfile, Inc. City of National City and d. Non -Disclosure CONSULTANT shall comply with all laws and regulations applicable to the gathering, processing, storing, transmitting and dissemination of personal information. CONSULTANT will not disclose any personal information accepted as required pursuant to the FPPC Campaign Disclosure Forms laws, without City's prior written consent, unless such disclosure is (i) authorized pursuant to the FPPC Disclosure laws; (ii) required by law or regulation, but only to the extent and for the purpose of such law or regulation; (iii) is in response to a valid order of any court of competent jurisdiction or other goverrnnent body, but only to the extent of and for the purpose of such order, and only if CONSULTANT first notifies City of the order and permits City to seek an appropriate protective order; or (iv) with written permission of City in compliance with any terms or conditions set by City regarding such disclosure. 16. LIABILITY FOR CITY SCANNED DOCUMENTS. City accepts any and all liability resulting from the placement of documents scanned by the City that are made available on the Internet for public viewing through the services of the CONSULTANT. In no event does the CONSULTANT accept liability created by any document scanned into the System by the City. 17. STANDARD OF CARE. A. The CONSULTANT, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONSULTANT'S trade or profession currently practicing under similar conditions and in similar locations. The CONSULTANT shall take all special precautions necessary to protect the CONSULTANT'S employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this Agreement, the CONSULTANT warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONSULTANT'S professional performance or the furnishing of materials or services relating thereto. C. The CONSULTANT is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONSULTANT has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONSULTANT has notified the CITY otherwise, the CONSULTANT warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONSULTANT to use due diligence under this sub -section will render the CONSULTANT liable to the CITY for any increased costs that result from the CITY'S later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 18. NON-DISCRIMINATION PROVISIONS. The CONSULTANT shall not discriminate against any employee or applicant for employment because of age, race, color, Standard Agreement Page 6 of 18 Revised January 2021 Netfile, Inc. City of National City and ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONSULTANT will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONSULTANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. 19. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONSULTANT certain confidential information to enable the CONSULTANT to effectively perform the services to be provided herein. The CONSULTANT shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONSULTANT shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 14, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONSULTANT, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONSULTANT without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONSULTANT by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONSULTANT shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONSULTANT shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CONSULTANT shall be liable to CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 20. 20. INDEMNIFICATION AND HOLD HARMLESS. To the maximum extent provided by law, the CONSULTANT agrees to defend, indemnify, and hold harmless the City of National City, its officers, officials, agents, employees, and volunteers against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONSULTANT'S negligence, recklessness, or willful misconduct in the performance of this Agreement. CITY will cooperate reasonably in the defense of any action, and CONSULTANT shall employ competent counsel, reasonably acceptable to the City Attorney. The indemnity, defense and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 21. INDEMNIFICATION AND HOLD HARMLESS. To the maximum extent provided by law, The CONSULTANT agrees to defend, indemnify and hold harmless the City of National City, its officers, officials, agents, employees, and volunteers against and from any and Standard Agreement Page 7 of 18 Revised January 2021 Netfile, Inc. City of National City and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of the CONSULTANT'S performance or other obligations under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the CITY, its agents, officers, employees or volunteers. CITY will cooperate reasonably in the defense of any action, and CONSULTANT shall employ competent counsel, reasonably acceptable to the City Attorney. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. 22. EMPLOYEE PAYMENTS AND INDEMNIFICATION. 22.1 PERS Eligibility Indemnification. If CONSULTANT's employee(s) providing services under this Agreement claims, or is determined by a court of competent jurisdiction or the California Public Employees Retirement System ("PERS") to be eligible for enrollment in PERS of the CITY, CONSULTANT shall indemnify, defend, and hold harmless CITY for the payment of any employer and employee contributions for PERS benefits on behalf of the employee as well as for payment of any penalties and interest on such contributions which would otherwise be the responsibility of the CITY. CONSULTANT 'S employees providing service under this Agreement shall not: (1) qualify for any compensation and benefit under PERS; (2) be entitled to any benefits under PERS; (3) enroll in PERS as an employee of CITY; (4) receive any employer contributions paid by CITY for PERS benefits; or (5) be entitled to any other PERS-related benefit that would accrue to a CITY employee. CONSULTANT 's employees hereby waive any claims to benefits or compensation described in this Section 16. This Section 16 applies to CONSULTANT notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary. 22.2 Limitation of CITY Liability. The payment made to CONSULTANT under this Agreement shall be the full and complete compensation to which CONSULTANT and CONSULTANT's officers, employees, agents, and subCONSULTANTs are entitled for performance of any work under this Agreement. Neither CONSULTANT nor CONSULTANT'S officers, employees, agents, and subCONSULTANTs are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to CITY employees. The CITY will not make any federal or state tax withholdings on behalf of CONSULTANT. The CITY shall not be required to pay any workers' compensation insurance on behalf of CONSULTANT. 22.3 Indemnification for Employee Payments. CONSULTANT agrees to defend and indemnify the CITY for any obligation, claim, suit, or demand for tax, retirement contribution including any contribution to PERS, social security, salary or wages, overtime payment, or workers' compensation payment which the CITY may be required to make on behalf of (1) CONSULTANT, (2) any employee of CONSULTANT, or (3) any employee of CONSULTANT construed to be an employee of the CITY, for work performed under this Agreement. This is a continuing obligation that survives the termination of this Agreement. Standard Agreement Page 8 of 18 Revised January 2021 Netfile, Inc. City of National City and 23. WORKERS' COMPENSATION. The CONSULTANT shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Labor Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, employees, and volunteers from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONSULTANT under this Agreement. 24. INSURANCE. The CONSULTANT, at its sole cost and expense, shall purchase and maintain, and shall require its SUBCONSULTANT(S), when applicable, to purchase and maintain throughout the term of this Agreement, the following insurance policies: A. ❑ If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of either $2,000,000 per occurrence and $4,000,000 aggregate, or $1,000,000 per occurrence and $2,000,000 aggregate with a $2,000,000 umbrella policy, covering all bodily injury and property damage arising out of its operations, work, or performance under this Agreement. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". The "project" or "location" should be noted with specificity on an endorsement that shall be incorporated into the policy. D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of CONSULTANT'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the CITY. Said endorsement shall be provided prior to commencement of work under this Agreement. If CONSULTANT has no employees subject to the California Workers' Compensation and Labor laws, CONSULTANT shall execute a Declaration to that effect. Said Declaration shall be provided to CONSULTANT by CITY. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, officials, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY's Risk Manager, at the address listed in subsection G below, of cancellation or material change. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONSULTANT shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. Standard Agreement Page 9 of 18 Revised January 2021 Netfile, Inc. City of National City and shall be: G. The Certificate Holder for all policies of insurance required by this Section City of National City c/o Risk Manager 1243 National City Boulevard National City, CA 91950-4397 H. Insurance shall be written with only insurers authorized to conduct business in California that hold a current policy holder's alphabetic and financial size category rating of not less than A:VII according to the current Best's Key Rating Guide, or a company of equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non - admitted "surplus lines" carriers, they must be included on the most recent List of Approved Surplus Line Insurers ("LASLI") and otherwise meet rating requirements. I. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If the CONSULTANT does not keep all insurance policies required by this Section 18 in full force and effect at all times during the term of this Agreement, the CITY may treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. CITY reserves the right to modify the insurance requirements of this Section 18, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. K. If the CONSULTANT maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY shall be entitled to the broader coverage or higher limits (or both) 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. 25. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 26. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to the CONSULTANT. During said 60-day period the CONSULTANT shall perform all services in accordance with this Agreement. Standard Agreement Page 10 of 18 City of National City and Revised January 2021 Netfile, Inc. B. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the CONSULTANT in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONSULTANT as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by the CONSULTANT, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONSULTANT'S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 7. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONSULTANT; (2) a reorganization of the CONSULTANT for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONSULTANT. 27. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: Luz Molina City Clerk City Clerk's Office clerk'a nationalcityca.gov City of National City 1243 National City Boulevard National City, CA 91950-4397 To CONSULTANT: Tom Diebert Vice -President & COO diebert@netfile.com 2707-A Aurora Ct. Mariposa CA 95338 Standard Agreement Page 11 of 18 Revised January 2021 Netfile, Inc. City of National City and Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 28. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONSULTANT shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONSULTANT also agrees not to specify any product, treatment, process or material for the project in which the CONSULTANT has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONSULTANT shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONSULTANT shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONSULTANT has a financial interest as defined in Government Code Section 87103. The CONSULTANT represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. n If checked, the CONSULTANT shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONSULTANT shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONSULTANT shall obtain from the City Clerk. The CONSULTANT shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Section 22 by the CONSULTANT. 29. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720, 1720.2, 1720.3, 1720.4, and 1771. Consultant is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 30. ADMINISTRATIVE PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof Standard Agreement Page 12 of 18 Revised January 2021 Netfile, Inc. City of National City and D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. To the extent any exhibits, schedules, or provisions thereof conflict or are inconsistent with the terms and conditions contained in this Agreement, the terms and conditions of this Agreement shall control. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Assignment & Assumption of Rights. CONSULTANT shall not assign this Agreement, in whole or in part, to any other party without first obtaining the written consent of CITY. H. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. I. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The venue for any legal action arising under this Agreement shall be in either state or federal court in the County of San Diego, State of California. J. Audit. If this Agreement exceeds ten -thousand dollars ($10,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. K. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. L. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. M. Subcontractors or Subconsultants. The CITY is engaging the services of the CONSULTANT identified in this Agreement. The CONSULTANT shall not subcontract any portion of the work, unless such subcontracting was part of the original proposal or is allowed by the CITY in writing. In the event any portion of the work under this Agreement is subcontracted, the subconsultant(s) shall be required to comply with and agree to, for the benefit of and in favor of the CITY, both the insurance provisions in Section 18 and the indemnification and hold harmless provision of Section 15 of this Agreement. N. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. Standard Agreement Page 13 of 18 Revised January 2021 Netfile, Inc. City of National City and IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the datc and year first above written. CITY OF NATIONAL CIT NETFILE, INC. (Corporation - signatures of two corporate officers required) (Partnershi or Sole proprietorship - one signature) By: Br u ston, City Manager By. (Name) APPROVED AS TO FORM: By: Charles E. Bell Jr. City Attorney By: Standard Agreement Page 14 of 18 Revised January 2021 Netfile, Inc. David Montgomery (Print) President & CEO (Title) (Name) Tom Diebert (Print) Vice President & CFO (Title) City of National City and AGREEMENT FOR THE PERFORMANCE OF SERVICES BY AND BETWEEN CITY OF NATIONAL CITY, CALIFORNIA AND NETFILE, INC. EXHIBIT A SCOPE OF SERVICES The Services to be performed for the City by the CONSULTANT under this Agreement are described in this Exhibit A. EXHIBIT A - CONTRACT SPECIFICS A. Expected Outcome NetFile will maintain and upgrade a system that permits the City of National City ("City") and users authorized by the City to (1) file FPPC Campaign Disclosure Forms in the CAL electronic format, to be available (in redacted form) for public viewing of documents over the Internet through a link on the City's website; (2) electronically file FPPC Statement of Economic Interest, Form 700 ("SEI") (up to 2,300 filers per calendar year) to be available (in redacted form) for public viewing of documents over the Internet through a link on the City's website; (3) maintain and upgrade a database of the FPPC Campaign Disclosure Forms and SEI forms to track filings and generate filing deadline and amendment letters; (4) allow the City to scan Campaign and SEI reports/forms not submitted electronically; (5) maintain and upgrade a system that permits the electronic filing oflocal lobbyist forms; and (6) maintain and upgrade a system for the purpose of processing and tracking electronic payments for the lobbyist fees. NetFile will not process payments or collect credit card data. NetFile will be responsible for (1) calculation of fees; (2) notification of City's bank of choice regarding fees due by reference number; (3) providing filer with personalized transaction link to bank; (4) upon bank's confirmation of receipt of payment, confirming registration with filer; and (5) liaising with bank to assure proper communication between systems. B. Deliverables NetFile will provide a system that permits (1) electronic filing of FPPC Campaign Disclosure Forms and Statement of Economic Interest, Form 700 (hereinafter collectively referred to as "FPPC Forms"); and (2) availability ofFPPC Forms in an electronic format (in redacted form) for public viewing of documents over the Internet through a link on the City's website. NetFile will also (3) maintain a database of the FPPC Forms to track filings and generate filing deadline and amendment letters; (4) allow the City to scan FPPC forms not submitted electronically; (5) Standard Agreement Page 15 of 18 Revised January 2021 Netfile, Inc. City of National City and maintain and upgrade an elech• onic filing system for local lobbyist forms; and (6) maintain and upgrade an electronic payment system for lobbyist fees. C. Scope of Service 1. For one year from the date of execution of the service agreement, NetFile will maintain and upgrade a system that: (a) For Filers Using the Internet: i. Allows the City to provide to Filers who have their own access to the Internet, a user ID and password which is used to log on to a secure site hosted on NetFile's web server but accessible via the City's web site. ii. Allows Filers who have their own access to the Internet, to log on to, enter data in, and upload to NetFile's secure site electronic formats of FPPC used by the California Secretary of State and by the Fair Political Practice Commission, Statement of Economic Interest Forms, and Local Lobbyist forms. iii. Once the forms have been uploaded, NetFile's secure site validates the submitted filing and notifies the Filer that the filing was accepted or, if declined, explains why the filing was declined. iv. Allows Filers to print a copy, using Adobe Acrobat Reader, of the forms that they upload to NetFile's secure site. v. Allows Filers to access earlier validated electronically filed forms. (b) For Filers Not Using NetFile's Online Campaign Disclosure Forms: i. NetFile will provide to the City information for a Filer to file electronically using the current production version of the CAL format if they are so inclined instead of using NetFile's online service. System will allow any electronic filing in the current production version of the CAL format to be uploaded into NetFile's system either online or by some form of electronic media filed at the office of the City Clerk. (c) For the City: i. When a Filer does not use NetFile's online system, the City shall be allowed to upload to NetFile's secure site FPPC Campaign Disclosure Forms submitted to the City in the current production version of the CAL format. ii. Allows tracking of Filers and all electronically filed forms in a database. Standard Agreement Page 16 of 18 Revised January 2021 Netfile, Inc. City of National City and iii. Allows City to scan hard copy filings and post to the online searchable database provided a liability waiver is signed by the City absolving NetFile of any liability associated with manually redacted documents not under the control ofNetFile during the redaction process. (d) For All FPPC Forms Uploaded to NetFile's Secure Site: i. Produces two versions in .pdf fonnat of the FPPC Forms: one version, not accessible by the public, will include all information as filed (non -redacted); the other version, accessible by the public, will have all street addresses and bank account information, if applicable, blocked from view. (e) For the Public: i. Allows the public to search and view electronically filed documents (with street addresses and bank account information, if applicable, blocked from view) over the Internet. ii. If a document was not available electronically, NetFile' s secure site will notify the searcher that the document is available for viewing in the office of the City Clerk. 2. NetFile's system will, among other things: Issue an ID number and password for Filers. Grant different user access and security levels for City staff. Store and edit general information about Filers. Store and edit all filings by individual statement periods where applicable. Maintain a calendar of events. Generate notification letters telling the filer of the upcoming filing deadline. Indicate how filings were received. Track deadlines for filings and amendments and generate letters notifying Filers of delinquencies. • Track delinquencies and generate letters notifying Filers of fines. • Merge applicable information from the database into Microsoft Word and print the various letters. • Produce mailing labels from the file database for use by the City staff. • Allow the public to search and view the database and complete list of electronic filings (with addresses and bank account information, if applicable, redacted) via the Internet. • Allow the public to search and view the database and complete electronic filings (without addresses and bank account information redacted) on kiosk provided by the City located in office. Have sufficient back-up hardware and/or software and/or policies and procedures to ensure that data under the control of NetFile, relative to this Agreement, is not irretrievably lost or destroyed. Standard Agreement Page 17 of 18 Revised January 2021 Netfile, Inc. City of National City and 3. NetFile will also: • Provide unlimited support to the City staff by email or phone during NetFile's normal working business hours. 4. All intellectual property, including existing source code or additional source code written for the purpose of developing this system for the City, will be the sole property ofNetFile. If NetFile were to cease operations during the contractual period, NetFile would provide to the City, at no additional charge, all source code relative to the City's system. If the Agreement is terminated or otherwise expires, NetFile will immediately provide the City with electronic copies of any and all data it has collected and recorded. Data format will be agreed upon by both City and NetFile, but at a minimum, data records will be provided in ASCII comma, separated value (CSV) format, with binary images in TIFF, JPG or PDF format. D. Performance Standards Performance standards are based upon providing deliverables according to the timeline for performance as determined by Project Coordinator (City Clerk or their designee), and whether the system meets the expected outcome in terms of timeliness and functionality. NetFile servers have a guaranteed uptime of 99%. F. Additional Terms Submitted by NetFile LIMITATION OF LIABILITY The maximum liability to the City by NetFile and its licensors, if any, under this agreement, or arising out of any claim by the City related to NetFile's services, products, equipment or software for direct damages, whether in contract, tort or otherwise, shall be limited to the total amount of fees received during the last 12 months by NetFile from the City heretmder up to the time the cause of action giving rise to such liability occurred. In no event shall NetFile or its licensors be liable to the City for any indirect, incidental, consequential, or special damages related to the use of NetFile's services, products, equipment or software or NetFile's failure to perform its obligations under this agreement, even if advised of the possibility of such damages, regardless of whether NetFile or its licensors are negligent. Provided, however, that for any peril or exposure insured against under the insurance required, the limits of liability to City by NetFile shall not be less than the amount of applicable, valid, and collectible insurance set forth herein. Standard Agreement Page 18 of 18 Revised January 2021 Netfile, Inc. City of National City and