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AGREEMENT FOR THE PE
BY AND
CITY OF
A
WESTCOAST ONLINE INF'ORMATION SYSTEMS,INC. DBA NETFILE
This Agreement for the performance of services ("Agreement") is made and entered into on this
15th day of June, 2013 ("Effective Date"), by and between Westcoast Online Information
Systems, Inc. dba NetFile, a California corporation, with its principal place of business located at2707 Aurora Road, Mariposa, California 95338 ("Contractor"), and the City of Fresno, a
Califomia municipal corporation, with its principal place of business located at2600 Fresno St.,
Fresno, CA 9372I ("City"). City and Contractor may be referred to herein individually as a
"Pa-rty" or collectively as the "Parties" or the "parties to this Agreement.,'
whereas: RECTTALS
A' City desires to continue with professional services more fully described in this
Agreement;
B' Contractor represents that it, and its sub-contractors, 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 requirementr;ãd,
C. The Parties have specified in this Agreement the terms and conditions under which such
services will be provided and paid for.
Contractor and City agree as follows:
AGREEMENT PROVISIONS
1. SERVICES TO BE PROVIDED
Contractor shall perform to the satisfaction of City the services ("Services") described in ExhibitA entitled, "SCOPE oF SERVICES" including all work incidental to, or necessary to perform,
such services even though not specifically described in Exhibit A. Contractor shall firrnish all
necessary technical and professional services, including labor, material, equipment,
transportation, supervision and expertise to satisfactorily complete the work required by City at
his/her own risk and expense.
2. TERM OF AGREEMENT
This Agreement shall become effective June 15, 2013 and,terminate at the end of the day June
15, 2018, subject to any earlier termination in accordance with this Agreement. The fee for this
service is listed in the "Compensation and Payment" section below. After June 15, 2018, this
Agreement may be continued by mutual written agreement of both parties.
3. COMPENSATION AND PAYMENT
The City qualifies for a special "Budget Buster" promotion offered at the California City Clerks
Conference for a special discount off regular pricing. The intent of the Budget Buster promotion
is to give the City the option of using the NetFile systems on a demo basis until the City recovers
from its budget crisis. This promotion is good for up to 3 years. After the 3'd year, the City may
continue using the system at the normal contract rate or discontinue service at no cost to the City.
Partial payments to the normal contract rate arc encouraged in this promotion. It will be at the
City's discretion to apply any amount up to the normal contract rate for the first 3 years of
service.
(a) For the time period of June 15, 2013 through June 15, 2014, Contractor will
provide the use of the Campaign Disclosure System and Statement of Economic Interests system
(up to 550 SEI filers) at a normal rate of $28,000. The City will pay a reduced rate for this time
period dependent upon budget approval. The lowest rate the City can pay during this time period
is the demo rate of zero dollars ($0.00¡.
(b) For the time period of June 15, 2014 through June 15, 2015, Contractor will
provide the use of the Campaign Disclosure System and Statement of Economic Interests system
(up to 550 SEI hlers) at a normal rate of $28,000. The City will pay a reduced rate for this time
period dependent upon budget approval. The lowest rate the City can pay during this time period
is the demo rate of zero dollars ($0.00).
(c) For the time period of June 15, 2015 through June 15, 2016, Contractor will
provide the use of the Campaign Disclosure System and Statement of Economic Interests system
(up to 550 SEI frlers) at a normal rate of S28,000. The City will pay a reduced rate for this time
period dependent upon budget approval. The lowest rate the City can pay during this time period
is the demo rate of zerc dollars ($0.001.
(d) For the time period of June 15, 2016 through June 15, 2018, Contractor will
provide the use of the Campaign Disclosure System and Statement of Economic Intercsts system
(up to 550 SEI filers) at a normal annual rate of $28,000.
(e) City has the option of paying or an ongoing quarterly basis for Services provided
by Contractor billed in advance of the quarter instead of one annual payment. No interest or
finance charges will be incurred if the City chooses the quarterly payment option. City will pay
Contractor within thirty (30) days of City's receipt of invoice. If for any reason the contracì is
terminated prior to the paid through date by the City, Contractor will reimburse City any unused
amount within ten (10) working days from the termination date.
(Ð Invoices shall be rendered quarterly for services performed in advance of the
preceding quarter and will be payable in the normal source of City business. The City shall not
be obligated to reimburse any expense for which it has not received a detailed invoice with
applicable copies of representative and identifiable receipts or records substantiating such
expense.
(g) The Parties may modifr this Agreement to increase or decrease the scope of
services or provide for the rendition of services not required by this Agreement, which
modification shall include an adjustment to Contractor's compensation. Any chãnge in the scopeof services must be made by written amendment to the Agreement signed by * authorizèd
representative for each party. Contractor shall not be entitled to any additional compensation if
services are performed prior to a signed written amendment.
4. NO ASSIGNMENT OF'AGREEMENT
City and Contractor bind themselves, their successors and assigns to all covenants of this
Agreement. This Agreement shall not be assigned or transferred without the prior written
approval of City. Contractor agrees not to assign the payment of any monies due to Contractor
from the City under the terms of the Agreement to any other individual(s), corporation(s), orentity(ies). City retains the right to pay any and all monies due to Contracior direcìþ to
Contractor.
5. NO THIRD PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or
parties, and no third parly or parties shall have any claim or right of action under this egrèement.
6, INDEPENDENT CONTRACTOR
(a) In the furnishing of the services provided for herein, Contractor is acting solely as
an independent contractor. Neither Contractor, nor any of its officers, agents or employees shall
be deemed an officer, agent, employee, joint venturer, partner or associate of ðity for anypulpose. City shall have no right to control or supervise or direct the manner or method by
which Contractor shall perform its work and functions. However, City shall retain the right tó
administer this Agreement so as to verify that Contractor is performing its obligations in
accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between
Contractor and City. Contractor shall have no authority to bind City absent City,s express
written consent. Except to the extent otherwise provided in this Agrèement, Contractor shall
bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, Contractor and its offrcers,
agents and employees shall have absolutely no right to employment rights and benefits availableto City employees. Contractor shall be solely liable and responsible for all payroll and tax
withholding and for providing to, or on behalf of, its employees all employee benefits including,
without limitation, health, welfare and retirement benefits. In addition, together with its othðr
obligations under this Agreement, Contractor shall be solely responsible, ináemnify, defend and
save City harmless from all matters relating to employmentãnd ãx withholding foiand payment
of Contractor's employees, including, without limitation, (i) compliance with Social Security and
unemployment insurance withholding, payment of workers' compensation benefits, and all other
laws and regulations governing matters of employee withholding, taxes and payment; and (ii)
any claim of right or interest in City employment benefits, entitlernents, programs and/or funds
offered employees of City whether arising by reason of any common law, àe iacto, leased, or co-
employee rights or other theory. It is acknowledged that during the term of this Agreement,
Contractor may be providing services to others unrelated to City oito this Agreement.
7. SUBCONTRACTING
None of the Services under this Agreement shall be performed by subcontractors unless
Contractor specifically identifies subcontractors in *tìtitrg and City pre-approves such
subcontractors in writing. Contractor shall be fully responsible io City for ihe acts and omissionsof its subcontractors, and of persons either directly or indirectly ðmployed by them, just as
contractor is for the acts and omissions of persons directly employed uv it.-
8. USE OF' CITY NAME OR EMBLEM
Contractor 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, tiade
device, service matk, symbol or any abbreviation, agreement or simulation thereof owned byCity or its affiliates, nor represent, directly or indirectly,thatany product or service provided by
Contractor has been approved or endorsed by City, nor refer to the existence of this Agr."-.nt
in press releases, advertising or materials distributed to prospective customers. Notwithstanding
the foregoing, Contractor may acknowledge, when asked, that the City is a NetFile client.
9. AUDITS
City, through its authorized representatives, has the right during the term of this Agreement, andfor three (3) years from the date of final payment for goods und/or Services provided under this
Agreement, to audit the books and records of Contractor regarding matteìs covered by this
Agreement. Contractor agrees to maintain accurate books and reóords in accordance withgenerally accepted accounting principles. Any expenses not so recorded shall be disallowed by
City. Contractor agrees to help City meet any reporting requirements with respect to Contractor,s
Services if requested by City in writing.
10. QUALIFTCATTONS OF CONTRACTOR
Contractor represents that its personnel and subcontractors, if any, are qualified to furnish
Services of the type and quality which City requires. City expressly relies on Contractor's
representations regarding its skills and knowledge. Contractoi strait promptly perform all
Services requested by City in a safe manner and in accordance with all fêderal, siate, and local
operation and safety regulations. Contractor shall work closely with and be guided by City.
Contractor shall also perform all work in accordance with generally accepted business piacticås
and performance standards of the industry.
12.
11. MONITORING OF SERVICES
City may monitor the Services performed under this Agreement to determine whether
Contractor's operation conforms to City policy and to the terms of this Agreement. City may also
monitor the Services to be performed to determine whether financial operations are conducted in
accord with applicable city, City, state, and federal requirements. If any action of Contractor
constitutes a breach, City may terminate this Agreement pursuant to the provisions described
herein.
\MARRANTY
Contractor expressly warrants that all materials and services covered by this Agreement shall befit for the purpose intended, shall be free from known defects, in a timely manner, and shall
conform to the specifications, requirements, and instructions upon which this Agreement is
based. Contractor agrees to promptly replace or correct any incomplete, inaccurate, òr defective
Services at no further cost to City when defects are due to the negligence, etïors or omissions of
Contractor.
Contractor 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 to provide all
related materials and services as set forth in Exhibit A, without violating any rights oÌ any 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 Contractor.
Contractor further warrants that NetFile servers have a guarantee uptime of 99Yo (which includes
all scheduled maintenance throughout the year) and for so long as City shall pay the fees
described in this Agreement (a) the System will be materially free of erïors, and (b) Contractor
will provide the Professional Services in a professional and workmanlike m¿mner consistent with
the highest industry standards. Contractor further warrants, during the term of this Agreement,
that (i) the NetFile servers will be free of any Harmful Code (as defined belowf and (iij
Contractor will not interfere with or disrupt City's or the lJser's use of the System. nor purposes
of this Agreement, the term "Harmful Code" means any software code with the aUitìy to
damage, interfere with, or adversely affect computer progi*r, data files, or hardware without
the consent or intent of the computer user. This definition includes, but is not limited to, self-
replacing and selÊpropagating programming instructions commonly called "viruses," "Trojan
horses" and "worms." Contractor agrees to implement reasonable procedures adequate to
prevent any software, link or code provided to City hereunder from being contaminated with
Harmful Code. If Contractor learns of or suspects the existence of any Harmful Code,
Contractor will immediately notify City and make every effort to remove the Harmful Code.
13. NON-DISCRIMINATION
To the extent required by controlling federal, state and local law, Contractor shall not employ
discriminatory practices in the provision of services, employment of personnel, or in any oiher
respect on the basis ofrace, religious creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status
as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the
performance of this Agreement, Contractor agrees as follows:
(a) Contractor will comply with all applicable laws and regulations providing that no
person shall, on the grounds of race, religious creed, color, nationaf origin, ancestry, physical
disability, mental disability, medical condition, marital status, sex, age, sexual oriåntation,
ethnicity, status as a disabled veteran or veteran of the Vietnam Jra be excluded from
participation in, be denied the benefits of, or be subject to discrimination under any program or
activity made possible by or resulting from this Agreement.
(b) Contractor will not discriminate against any employee or applicant for
employment because of race, religious creed, color, national origin, u*.rtry, physical disability,
mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, statué
as a disabled veteran or veteran of the Vietnam era. Contractor shall ensure that applicãnts are
employed, and the employees are treated during employment, without regard tó their race,religious creed, color, national origin, ancestry, physical disability, mental ãisability, medicai
condition, marital status, sex, age, sexual orientation, ethnicity, stâtus as a disabled veteran or
veteran of the Vietnam era. Such requirement shall apply to Contractor's employment practices
including, but not be limited to, the following: emplıyment, upgrading, demoiion or transfer;
recruitment or recruitment advertising; layoff or termination; iaies oùay or other forms of
compensation; and selection for training, including apprenticeship. Contraótor agrees to post in
conspicuous places, available to employees and applicants for employment, noticles setting forth
the provision of this nondiscrimination clause.
(c) Contractor will, in all solicitations or advertisements for employees placed by oron behalf of Contractor in pursuit hereof state that all qualifiea apptcånts will receive
consideration for employment without regard to race, religious creed, lãto., national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
(d) Contractor will send to each labor union or representative of workers with whichit has a collective bargaining agreement or other contract oì understanding, a notice advising
such labor union or workers' representatives of Contractor's commitment under this section anã
shall post copies of the notice in conspicuous places available to employees and applicants for
employment.
(e) If Contractor should subcontract all or any portion of the services to be performed
under this Agreement, Contractor shall cause each subcontractor to also comply with the
requirements of this Section.
14. CONFIDENTIALITY
(a) Confidential Information. During the course of the Parties' relationship , a party
may have access to the other Party's Confidential Information. The Parties agree that the term
"Conf,rdential Information" shall mean any information, technical data, or kno'ir-how, including,
without limitation, that which relates to research, products, services, customers, markets,
inventions, processes, designs, marketing, future business strategies, trade secrets, finances, and
other nonpublic information, including employee information, of the disclosing party, including
the details of this Agreement. The amount and type of Confidential Information to be discloseã
is completely within the sole discretion of each party.
(b) Non-Confidential Information. The Parties agree that Confidential information
does not include a Party's information which the other Party can establish by legally suffrcient
evidence: (i) was in the possession of, or was rightfully known by a Party wiitrout an obligation
to maintain its conhdentiality prior to its receipt from the other Party; (ii) is or becomes ktro*rt
to the public without violation of this Agreement; (iii) is obtained by a Party in good faith from a
third party having the right to disclose it without an obligation of confiáentiality; (iv is
independently developed by a Party without use, directly or indirectly, of Confidential
Information received from the other Party; or (v) is authorized in writing by a Party to be relased
from the confidentiality obligations herein.
(c) Non-Disclosure. Each Party agrees that it shall not use or permit the use of any
Confidential Information of the other Party except for purposes of this Agreement, nor disciose
or permit to be disclosed the Conhdential information of the other Party to any person or entitity
(other than its own employees, agents, representatives or affiliated entities having a reasonabll
need for such information in order to provide the Services), nor duplicate any Confidential
Information of the other Party which consists of computer software or documentation or other
materials expressly restricted against copying, unless such duplication, use or disclosure is
specifically authorized in writing by the othe party.
(d) Legal Disclosure. If it is reasonably necessary for the receiving Party to disclose
any Confidential Information to (i) enforce this Agreement, (ii) comply with a judicial or
administrative proceeding or similar process, or (iii) comply with a rule of regulatory authority
which has jurisdiction over receiving Party, the receiving Party will, if p.r-ìtt"d, provide th!
disclosing Party with prompt written notice so that the disclosing Party may, at thé disclosing
Party's sole expense, seek a protective order or other appropriate remedy and/or waivã
compliance with the provisions of this Agreement. In the event such protective order or other
remedy is not obtained, the receiving Party will not be in breach of Section 14(c) by furnishing
such Confidential Infomration as legally required and will exercise commercially reasonablã
efforts to obtain assurance that confidential treatment will be accorded the Confidential
information so disclosed, at the disclosing Party's expense.
15. CONTRACTOR TO HOLD CITY HARMLESS
Subject to the limitations set forth in Exhibit A (SCOPE OF SERVICES) Section E(LIMITATION OF LIABILITY). Contractor shall indemnifii, hold harmless and defend City
and each of its ofhcers, offrcials, employees, agents and volunteers from any and all loss,
liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict
liability, including but not limited to personal injury, death at any time and property damage),
and from any and all claims, demands and actions in law or equity (inciuding
-t.urotrubíé
attorney's fees and litigation expenses) that arise out of, pertain to, or relate to thð negligence,
recklessness or willful misconduct of Contractor, its principals, offrcers, employees, agents or
volunteers in the performance of this Agreement.
If Contractor should subcontract all or any portion of the services to be performed underthis Agreement, Contract shall require each subcontractor to indemnifr, hold harmless and
defend City and each of its officers, officials, employees, agents and voiunteers in accordance
with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
16. INSURANCE REQUIREMENTS
(a) During the term of this Agreement, and for any time period set forth in Exhibit B,
Contractor shall purchase and maintain in full force and effect, ãt no cost to City insurancé
policies with respect to employees assigned to the Performance of Services under this Agreementwith coverage amounts, required endorsements, certificates of insurance, and coverage
verif,rcations as defined in Exhibit B attached and incorporated by this reference.
(b) If at any time during the life of the Agreement or any extension, Contractor or any
of its subcontractors fail to maintain any required insurance in fuli force and effect, all services
and work under this Agreement shall be discontinued immediately, and all payments due or that
become due to Contractor shall be withheld until notice is received by Cìty that the required
insurance has been restored to full force and effect and that the premiums therefore have beenpaid for a period satisfactory to City. Any failure to maintain ihe required insurance shall be
sufficient cause for City to terminate this Agreement. No action taken by City pursuant to this
section shall in any way relieve Contractor of its responsibilities under-this Agreement. The
phrase "fail to maintain any required insurance" shall include, without limitatión, notification
received by City that an insurer has conìmenced proceedings, or has had proceedings
cornmenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by Contractor shall not be deemed to release or
diminish the liability of Contractor, including, without limitation, liability under the indemnity
provisions of this Agreement. The duty to indemnifi' City shall apply to âll claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act as alimitation upon the amount of indemnification to be provided by Contractor. Approval or
purchase of any insurance contracts or policies shall in no way relieve from liability nòi ümit theliability of Contractor, its principals, offrcers, agents, employees, persons under the supervisionof Contractor, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or
anyone employed directly or indirectly by any of them.
(d) Upon request of City, Contractor shall immediately furnish City with a complete
copy of any insurance policy required under this Agreement, including all endorsements, ïith
said copy certified by the underwriter to be a true and correct copy of ihe original policy. This
requirement shall survive expiration or termination of this Agreement.
17.
(e) If Contractor should subcontract all or any portion of the services to be performed
under this Agreement, Contractor shall require each subcontractor to provide insurance
protection in favor of City and each of its offrcers, officials, employees, agents and volunteers in
accordance with the terms of this section, except that any required certificates and applicable
endorsements shall be on file with Contractor and City prior to the commencement of any
services by the subcontractor.
AMENDMENTS
This Agreement may be amended only with the written consent of both Parties.
18. INTEGRATED DOCUMENT
This Agreement represents the entire agreement between City and Contractor. No other
understanding, agreements, conversations, or otherwise, with any representative of City prior to
execution of this Agreement shall affect or modifu any of the terms or obligations of this
Agreement. Any verbal agreement shall be considered unofficial information and is not binding
upon City.
19. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held
invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other
provisions, which shall remain in full force and effect.
20. LAW GOVERNING CONTRACT
This Agreement shall be governed and interpreted using the laws of the State of California.
2I. DISPUTE RESOLUTION
(a) Any controversies or claims between Contractor and City regarding this
Agreement must first be put in writing and delivered to the other Party. The Parties will meet in
good faith to attempt to resolve the issue in question. If the Parties fail to come to an agreement
on the resolution of the issue, all required administrative procedures must be followed. If all
administrative procedures are exhausted and the Parties are unable to resolve the issue, the
matter must be submitted to mediation within thirty (30) calendar days after the written request
for mediation is delivered by one Party.
(b) The Parties may agree on one mediator. If they cannot agree on one mediator, the
Party demanding mediation shall request that the Superior Court of San Joaquin City appoint a
mediator. The mediation meeting shall not exceed one work day [eight (8) hours]. The parties
may agree to extend the time allowed for mediation under this Agreement.
(c) Mediation under this section is a condition precedent to filing an action in any
court. In the event litigation or mediation arises out of any dispute related to this Agreement, the
Parties shall each pay their respective attorneys' fees, expert witness costs and cost of suit,
regardless of the outcome of the litigation.
(d) Only after both the administrative dispute resolution procedure and the mediation
procedure have failed to resolve a dispute between the Parties may one or both of the parties file
suit in the appropriate civil court.
22. VENUE
The venue of any suit filed by either Party shall be vested in the state courts of the County of
Fresno, or if appropriate, in the United States District Court, Southern District of California.
23. ELECTION OF REMEDIES
The pursuit by any Party of any specific remedy shall not exclude any other remedy available to
the Party.
24. CONFLICT OF INTERESTS
This Agreement does not prevent either Party from entering into similar agreements with other
parties.
(a) Prior to City's execution of this Agreement, Contractor shall complete a City of
Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the
term of this Agreement, Contractor shall have the obligation and duty to immediately notify-City
in writing of any change to the information provided by Contractor in such statement.
(b) Contractor shall comply, and require its subcontractors to comply, with all
applicable (i) professional canons and requirements governing avoidance of impermiisible client
conflicts; and (ii) federal, state and local conflict of interest laws and reguiations including,
without limitation, California Government Code Section 1090 et. seq., the California political
Reform Act (California Government Code Section 87100 et. seq.) andìhe regulations of the Fair
Political Practices Commission concerning disclosure and disquãlifrcation 12 California Code of
Regulations Section 18700 et. seq.). At any time, upon written request of òity, Contractor shallprovide a written opinion of its legal counsel and that of any subcontractoi that, after a due
diligent inquiry, Contractor and the respective subcontractor(s) are in full compliance with alllaws and regulations. Contractor shall take, and require its subcontractors to take, reasonable
steps to avoid any appeffance of a conflict of interest. Upon discovery of any facts giving rise to
the appearance of a conflict of interest, Contractor shall immediately notify City of ihese-facts in
writing.
(c) In performing the work or services to be provided hereunder, Contractor shall not
employ or retain the services of any person while such person either is employed by City or is amember of any City council, commission, board, committee, or similar City body. This
requirement may be waived in writing by the City Manager, if no actual or potential conflict is
involved.
(d) Contractor represents and warrants that it has not paid or agreed to pay any
compensation, contingent or otherwise, direct or indirect, to solicit or procure ttris Rgreement ot
any ri ghts/benefits hereunder.
(e) Neither Contractor, nor any of Contractor's subcontractors performing any
services on this Project, shall bid for, assist anyone in the preparation ofa bid for, or perform any
services pursuant to, any other contract in connection with this Project unless fully àisclosed tó
and approved by the City Manager, in advance and in writing. Contractor and any of its
subcontractors shall have no interest, direct or indirect, in any other contract with a third party in
connection with this Project unless such interest is in accordance with all applicable law ãndfully disclosed to and approved by the City Manager, in advance
^and in writing.
Notwithstanding any approval given by the City Manager under this provision, Contractor shall
remain responsible for complying with Section 24(b), above.
(Ð If Contractor should subcontract all or any portion of the work to be performed or
services to be provided under this Agreement, Contractor shall include the proviìions of this
Section 24 in each subcontract and require its subcontractors to comply therewiih.
25. TERMINATION OX'THE AGREEMENT
(a) Termination Without Cause. Either Party may terminate this Agreement without
cause by giving the other Party written notice ("Notice of Termination") which clearly expresses
that Party's intent to terminate the Agreement. Notice of Termination shall become effective no
less than thirty (30) calendar days after aParty receives such notice. After either Party terminatesthe Agreement, Contractor shall discontinue further services as of the effective date of
termination, and City shall pay Contractor for all Services satisfactorily performed up to such
date.
(b) Termination For Cause. For purposes of this Agreement, the term "default,' shall
mean the failure of any Party to perform any material obligation in the time and manner provided
by this Agreement. Either Party may terminate this Agreement in the event of a default by the
other Party by providing a written Notice of Termination to the defaulting Party. Such Notice of
Termination shall become effective no less than ten (10) calendar days after a party receives
such notice. Such Notice of Termination for cause shall include a statement by the términating
Party setting forth grounds for determination of default under the Agreement. In the event this
Agreement is terminated for cause as set forth under this section, City shall pay Contractor for all
Services satisfactorily performed up to the date the Agreement is terminai.á. City may deduct
from such payment the amount of actual damage, if any, sustained by City due to Contractor,s
failure to perform the Services or for breach of this Agreement.
(c) Opportunity to Cure Default. Upon receipt of a Notice of Termination for Causeby aParty arising from its default under this Agreement, the defaulting Party shall have five (5)
days from the receipt of such notice to cure the default by making ,nðh puy-ent or performing
the required obligation. If the default is cured to the mutual satisfaction of the Èarties, thã
Agreement shall remain in effect upon written acceptance of the cure by the Party who issued the
Notice of Termination for Cause.
In addition to, and cumulative to all other remedies in law, at equity and provided under
this Agreement, in the event Contractor is in material default of its duties or obligations under
this Agreement and it fails to cure the default within five (5) days after receipt of written notice
of Termination for Cause from City, City may, without waiving any other rights under this
Agreement, elect to withhold from the payments due to Contractor under this Agreement during
the period beginning with the 6th day after Contractor's receipt of notice of Termination for
Cause, and ending on the date that the default has been cured to the reasonable satisfaction of
City, an amount that is in proportion to the magnitude of the default or the service that
Contractor is not providing. Upon curing of the default by Contractor, City will cause the
withheld payments to be paid to Contractor, without interest.
(d) Termination Due to Unavailability of Funds. When fimds are not appropriated or
otherwise made available by the City to support continuation of performance, the Agreement
shall be cancelled and the Contractor shall be reimbursed for the reasonable value of any
nonrecurring cost incurred but not amortized in the price of the supplies or services delivered
under the Agreement prior to termination.
(e) Data Recovery. If the services are terminated for any reason, the City will receive
a DVD copy of all data created in the system by the City within 10 working days of notification
of termination.
(Ð Deletion of Data. The City has the right at any time during the contract period as
well as upon the termination of the Agreement to instruct the Contractor to delete all City created
data in the system. This request must be in writing and the Contractor has 21 working days to
complete the deletion of the data from the system.
26. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as
follows:
City of Fresno
City Clerk
2600 Fresno St.
Fresno, CA 93721
And to Contractor addressed as follows:
NetFile
2707 Aurora Road
Mariposa, CA 95338
or by facsimile at (209) 391-2200
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I
,,,7 HOSTING SERVICES
(a) Availability of Services. Subject to the terms of this Agreement,
Contractor shall use its best efforts to provide online access to the City and filers of FPPC
forms for twenty-four (24) hours aday, 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 Contractor's servers may be inaccessible
or inoperable for various reasons, including: (i) equipment malfunctions; (ii) periodic
maintenance procedures or repairs which Contractor may undertake from time to time; or
(iii) causes beyond the control of Contractor or which were not reasonably foreseeable by
Contractor, including interruption or failure of communications or transmission links,
hostile network attacks or other failures (collectively "Downtime"). Contractor shall
provide forty-eight (48) hour advance notice to City in the event of any scheduled
Downtime. Contractor 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 Contractor for such period.
(b) Backups. Contractor shall maintain backup servers and
telecommunications connections and maintain weekly backups of City's database of
FPPC Form hlings on such backup servers. Contractor's disaster recovery and
contingency planning, equipment, software, and telecommunications connections shall
enable Contractor 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 Contractor and
persons specifically designated by City. Contractor shall undertake 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 Contractor'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.
(d) Non-Disclosure. Contractor shall comply with all laws and regulations
applicable to the gathering, processing, storing, transmitting and dissemination of
personal information. Contractor will not disclose any personal information accepted as
required pursuant to the FPPC 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
government body, but only to the extent of and for the purpose of such order, and only if
Contractor 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.
28.OWNERSHIP OF DATA
All data created in the system by the City or users authorizedby the City is the property of the
City. All source code created by the Contractor is the property of the Contractor.
29. UPGRADES TO SYSTEM
All upgrades to the system by Contractor will be gratis to the City unless mutually agreed upon
by both parties in writing.
30. 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 Contractoi.
In no event does the Contractor accept liability created by any document scanned into the System
by the City.
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by
the following signatures of their duly and authorized representatives. It is the intent of the paties
that this Agreement shall become operative on the Effective Date.
31. HEADINGS
The section headings in this Agreement are for convenience and reference only and shall not be
construed or held in any way to explain, modify or add to the interpretation or meaning of the
provisions of this Agreement.
32. INTERPRETATION
The parties acknowledge that this Agreement in its final form is the result of the combined
efforts of the parties and that, should any provision of this Agreement be found to be ambiguous
in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or
against either party, but rather by construing the terms in accordance with their generally
accepted meaning.
33. ATTORNEY'S FEES
If either party is required to commence any proceeding or legal action to enforce or interpret any
term, covenant or condition of this Agreement, the prevailing party in such proceeding or action
shall be entitled to recover from the other party its reasonable attorney's feesãnd legal ãxpenses.
34. EXHIBITS
Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into
and made apart of this Agreement.
35. PRECEDENCE OF DOCUMENTS
In the event of any conflict between the body of this Agreement and any Exhibit or Attachment
hereto, the terms and conditions of the body of this Agreement shall control and take precedence
over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, ffiy
terms or conditions contained within any Exhibit or Attachment hereto which purport to modifi
the allocation of risk between the parties, provided for within the body of this agreement, shail
be null and void.
36.EXTENT OF AGREEMENT
Each party acknowledges that they have read and fully understand the contents of this
Agreement. This Agreement represents the entire and integrated agreement between the parties
with respect to the subject matter hereof and supersedes all prior negotiations, representations or
agreements, either written or oral. This Agreement may be modified only by written instrument
duly authorized and executed by both City and Contractor.
CITY OF FRESNO,
a California municipal corporation
Westcoast Online Information Systems, Inc. dba NetFile
TOM DIEBERT
Vice President
Westcoast Online Information Systems, Inc. dba Netfile
2707 Aurora Road
Mariposa, CA 95338
Telephone: (209) 742-4100
ATTE8l:
woNNl SFENCE, CllC
Purchasing Manager
APPR(IVEOASTO T(}RM
By
AGREEMENT FOR THE PERFORMANCE OF'SERVICES
BY AND BET\üEEN
CITY OF F'RESNO
AND
NETFILE
EXHIBIT A
SCOPE OF SERVICES
The Services to be performed for the City by the Contractor under this Agreement are more fully
described in the Contractor's proposal which is added to this Exhibit e an¿ incorporated by this
reference.
EXHIBIT A _ CONTRACT SPECIF'ICS
A. Expected Outcome
NetFile will develop and maintain a system that permits the City of Fresno ("City") and users
authorized by the City to (1) Electronically file FPPC Statements of Economic Intárest, Form
700 ("SEI") and to be available, at the option of the City (in redacted fo.m) for public viewing of
documents over the Internet through a link on the City's website; (2) maintain a databas. of th"
FPPC SEI forms to track filings and generate f,rling deadline and amendment letters and (3)
allow the city to scan SEI reports/forms not submitted electronically.
NetFile will develop and maintain a system that permits the City and all filers who have apolitical disclosure reporting responsibility to the City and authorized by the City to (1) frle anyor all of the FPPC Forms 450, 460, 461, 465, 470, 496, and, 497 in 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) maintain a database of the FPPC Forms to track filings and geierate filing
deadline and amendment letters; and, (3) allow the City to scan reports not submitted
electronically.
B. Deliverables
NetFile will continue to have ready for use a system that permits (1) electronic filing of FppC
Statement of Economic Interest, Form 700 and Campaign Disclosure Forms 450,460:461,465,
470, 496, and 497 (hereinafter collectively referred to as "FPPC Forms"); (2) atthe option of tné
City, availability of FPPC Forms in an electronic format to be availabie iin redacteã form) forpublic viewing of documents over the Internet through a link on the City's website; (3)
maintaining a database of the FPPC Forms to track filings and generate fiiing deadline aná
amendment letters and (4) allow the City to scan FPPC Forms not submitted electronically.
C.Scope of Service
1. From the date of execution of the service agreement,NetFile will develop and
maintain 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 seryer 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 f'ÞpC
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 the City:
i. Allows tracking of Filers and all electronically filed forms in a
database.
ii. 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 of NetFile during the redaction process.
(c) For All FPPC Forms Uploaded to NetFile,s Secure Site:
i. Produces two versions in .pdf format of the Fppc Forms: one
vetsion, not accessible by the public, will include all information as filed (non-
redacted); the other version, at the option of the City, accessible by the public,
will have all street addresses and bank account information, if applicable, bjocked
from view.
(d) For the Public:
i. At the option of the city, 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 Registrar.
2. NetFile's system will, among other things:
o Issue an ID number and password for Filers.o Grant different user access and security levels for City staff.. Store and edit general information about Filers.o Store and edit all filings by individual statement periods where applicable.o Generate notification letters telling the filer of the upcoming filing deadline.o Indicate how hlings were received.o Track deadlines for filings and amendments and generate letters notifying Filers
of delinquencies.
o Track delinquencies and generate letters notifying Filers of fines.o At the option of the City, 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.
o At the option of the City, 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.o Have sufficient back-up hardware andlor software and/or policies and procedures
to ensure that data under the control of NetFile, relative to this Agreemènt, is not
irretrievably lost or destroyed.
3. NetFile will also:
o 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 of
NetFile. If NetFile were to cease operations during the contractual period, NetFilã wóuld
provide to the City all source code relative to the City,s system.
D. Performance Standards
Performance standards are based upon providing deliverables according to the timeline for
performance as determined by Project Manager (City Clerk), and whether the system meets the
expected outcome in terms of timeliness and functionality.
NetFile servers have a guaranteed uptime of 99Yo.
E. 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 limitedto the total
amount of fees received during the last 12 months by NetFile from the City hereunder up to the
time the cause of action giving rise to such liability occurred. In no event shall NetFiÈ 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, howevér, that for any perii
or exposure insured against under the insurance required pursuant to Exhibit B, the limiis of
liability to City by NetFile shall not be less than the amount of applicable, valid, and collectible
insurance set forth in Exhibit B.
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BET\ilEEN
CITY OF FRESNO
AND
NETFILE
EXHIBIT B
INSURANCE REQUIREMENTS
INSURANCE COVERAGE REQUIREMENTS
Without limiting the Contractor's indemnification of the City, and prior to commencing
any of the Services required under this Agreement, the Contractor shall purchase and
maintain in full force and effect, at its sole cost and expense, the following insurance
policies with at least the indicated coverages, provisions and endorsements:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
l.commercial General Liability Insurance policy which provides coverage
that shall in no event be less than, the following:
$1,000,000 each occurrence
$ 1,000,000 general aggregate
$1,000,000 personal injury
Exact structure and layering of the coverage shall be left to the discretion
of contractor; however, aÍry excess or umbrella policies used to meet the
required limits shall be at least as broad as the underlying coverage and
shall otherwise follow form.
B.WORKERS' COMPENSATION
t.'workers' compensation Insurance Policy as required by statute and
employer's liability with the following limits: at least one million dollars
($1,000,000) policy limit Illnessilnjury by disease, and one million dollars
($ 1,000,000) for each Accident/Bodily Injury.
The indemnification and hold harmless obligations of Contractor included
in this Agreement shall not be limited in any way by any limitation on the
amount or type of damage, compensation or benefit payable by or for
contractor or any subcontractor under any 'workers' compensation
Act(s), Disability Benefits Act(s) or other employee benefits act(s).
2.
2.
Exhibit C
DISCLOSI]RE OF' CONFLICT OF' INTEREST
lProject Titlel
PROJECT TITLE
YES*NO
1 Are you currently in litigation with the city of Fresno or any of its agents?tr
2 Do you represent any firm,
with the City of Fresno?
organization or person who is in litigation tr
J Do you currently represent or perform work for any clients who do
business with the City of Fresno?
n tr
4 Are you or any of your principals, managers or professionals, owners or
investors in a business which does business with the city of Fresno, or in
a business which is in litigation with the City of Fresno?n
5 Are you or any of your principals, managers or professionals, related by
blood or marriage to any city of Fresno employee who has any significant
role in the subject matter of this service?tr K
6 Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with this
Project?n K
* If the answer to any question is yes, please explain in full below.
Exolanation:û-^
(Name)
'W gS 1Cù4 ST o^/èr v ç,a/ F'MLn.rfr r.a/
(Company) ùtn ,uer n tcq
2-lo-l rf urlo¡'t-ll /-o
(Address)
/"1roKtPa¡q, Cn 9f3Jt
jYl1(*1t, /^i(.
I Additional page(s) attached.
(City, State, Zip)