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HomeMy WebLinkAboutCAG2023-051 - Original - NPDESPRO, LLC - Stormwater MS4 Management Software as a Service Subscription - 01/30/2023Daniel Blincoe IT 01/26/2023 02/09/2023 N/A 2507325 N/A NPDESPro, LLC Contract 2507325 Original NPDESPro Agreement for Software as a Service Original Agreement for Software as a Service for a NPDESPro subscription, which manages stormwater MS4 management. All modules align with the EPA's minimum control measures/MCMs and works in tandem with SwiftComply. $30,621.00 Direct Negotiation 1/26/23 LS/SP MC CAG2023-051 1/26/23 1/30/23 AGREEMENT FOR SOFTWARE AS A SERVICE between City of Kent and NPDESPro, LLC Page 1 AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPRO This Software as a Service (SAAS) Agreement (Agreement) is between the CITY OF KENT (City or Customer), a Washington Municipal Corporation located at 220 Fourth Avenue South, Kent, WA 98032 and NPDESPRO, LLC (Vendor), an INDIVIDUAL PROPRIETOR OR SINGLE-MEMBER LIMITED LIABILITY CORPORATION, with its principal place of business at 535 DOCK STREET, SUITE 111, TACOMA, WA 98402, effective on the last date signed below. This Agreement is to a copy of which is attached and incorporated as Exhibit A. 1. Grant of License to Access and Use Service. For the term of this Agreement including any renewals, Vendor hereby grants to City, including to all its Authorized Users, a non-exclusive, non-sublicensable, non-assignable, royalty-free, and worldwide license to access and use the products and services Vendor makes available to the City through this Agreement, which may include products and services accessible for use by the City on a subscription basis, Vendor professional services, content from any professional services, or other required equipment components or other required hardware as specified in Exhibit A (the "Service") for - commercial government operations. City shall refrain from taking any steps such as reverse assembly or reverse compilation, to derive a source code equivalent to the Service as further described in Section 9.3. 2. Term. The initial term of this Agreement shall be 1 year (Initial Term), commencing on the effective date of this Agreement and terminating 1 calendar year from the effective date, with the option for the City to renew annually thereafter. This Agreement shall automatically renew unless City gives written notice of cancellation at least 30 days prior to the expiration of the Initial Term or any Renewal Term. calendar days unless a different meaning is expressly stated. 3. Subscription Fees/Taxes. 3.1 Subscription Fee. Subscription fees and payment terms for the Service are set forth in the attached and incorporated Exhibit A. Renewal terms will include original licensing fee for those modules originally purchased (consisting of all available Modules as defined in , including Post Construction, Good Housekeeping, IDDE/Outfalls, Construction, Public Outreach, MS4 Metrics, and Onboarding) plus up to a 5% annual escalation. Any additional modules purchased will also be added to the licensing fee. Licensee agrees to pay the total initial subscription fee included in the quote, which is not to exceed 28,500.00 paid within 30 business days of appropriate receipt of the applicable invoice, plus applicable WSST. The initial annual subscription fee consists of the one- time standard onboarding fee ($7,500.00 - including up to 8 hours of time to configure data and complete the import, setup of user accounts, a minimum of 4 hours of one-on- one Licensee training), the Post-Construction and Good Housekeeping Core Modules ($10,000.00), and Add-Ons ($11,000.00 - consisting of IDDE/Outfalls, Construction, Public Outreach, and MS4 Metrics). 3.2 Undisputed Fees. Undisputed invoices shall be due and payable within 30 days of invoice receipt. City shall notify Vendor in writing of any disputed amount within 15 business days of appropriate receipt of the applicable invoice. Portions of invoices that are subject to a good faith billing dispute shall not be considered delinquent for purposes of this Agreement. Disputed billings are subject to Section 16, Dispute Resolution. AGREEMENT FOR SOFTWARE AS A SERVICE between City of Kent and NPDESPro, LLC Page 2 3.3 Taxes. All contract amounts shall be inclusive of sales or other applicable taxes, and invoices shall include all tax obligations stated separately from the contract amounts. City shall pay all applicable sales, use, value added or similar taxes to Vendor and Vendor shall remit all such taxes, if imposed by local and/or state authorities on all software, and other taxable goods and services procured by the City under this Agreement. City recognizes that prices previously quoted were exclusive of sales tax and that sales tax will be added to quoted fees and to invoices. 3.4 Card Payment Program. The Vendor may elect to participate in automated credit card payments provided for by the City and its financial institution. This Program is provided as an alternative to payment by check and is available for the convenience of the Vendor. If the Vendor voluntarily participates in this Program, the Vendor will be solely responsible for any fees imposed by financial institutions or credit card companies. The Vendor shall not charge those fees back to the City. 4. System Availability and Support Services. The Service shall be available to City along with support services as described in the attached and incorporated Exhibit B. 5. Representation and Warranties. 5.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, and shall have obtained and maintain all licenses, permits and certifications required for such Party in connection with the performance of such Service; (b) the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties. 5.2 Vendor Warranties and Representations. Vendor represents and warrants that the Service will be performed in a professional and workmanlike manner, consistent with applicable industry standards and the corresponding specifications set forth in the applicable Statement of Work and Service Level commitments. a. Deliverables. Vendor represents and warrants that each deliverable shall meet and conform to its applicable specifications as provided herein following its acceptance and during the Term. Vendor also represents and warrants that the Service, in whole and in part, shall operate in accordance with the applicable approved configuration documentation, and this Agreement. b. Services. Vendor represents and warrants that (a) it shall perform the Service required pursuant to this Agreement in a professional manner, with high quality, (b) it shall give due priority to the performance of the Service, and (c) time shall be of the essence in connection with performance of the Service. c. Title Warranty and Warranty against Infringement. Vendor hereby warrants and represents that Vendor is the owner of the Service licensed hereunder or otherwise has the violating any rights of any third party worldwide. Vendor represents and warrants that (i) Vendor is not aware of any claim, investigation, litigation, action, suit or administrative or judicial vice infringes or misappropriates any patents, copyrights, trade secrets or other intellectual property rights of any es not knowingly infringe upon or misappropriate any patents, copyrights, trade secrets or any other intellectual property rights of any third party. d. Maintenance Services Warranty. Vendor warrants that, in performing the AGREEMENT FOR SOFTWARE AS A SERVICE between City of Kent and NPDESPro, LLC Page 3 Service under the Agreement, Vendor shall substantially and materially comply with the descriptions and representations as to the services, including performing capabilities, accuracy, completeness, characteristics, Statement of Work, configurations, standards, function and requirements, which appear in this Agreement. Errors or omissions committed by Vendor in the course of providing the Service shall be remedied as set forth herein. e. Warranty of Compliance with Applicable Law. Vendor warrants the Service shall comply with all applicable federal, state and local laws, regulations, codes and ordinances to which it is subject. Vendor warrants that, throughout the Term of this Agreement, including any renewals, the Service shall comply with changes to and new applicable federal, state, and local laws, regulations, codes, and ordinances to which it is subject. Vendor represents and warrants that it shall comply with all applicable local, state, and federal licensing, accreditation, and registration requirements and standards necessary in the performance of the Service. f. Warranty of Service. General Responsibilities. Vendor warrants the Service for the term of this Agreement. Vendor shall provide Warranty Services as described in this Agreement at no additional cost to correct deficiencies in the Service and to repair and maintain the Service in accordance with the specifications, subject to the Service Level Agreement. Warranty Service responsibilities shall include, but not be limited to the following: i Vendor shall promptly and diligently perform and reperform the Service which is not in compliance with documentation/specifications, representations and warranties at no additional cost to the City; ii Maintain the Service in accordance with the Specifications terms of this Agreement and meet all availability and system performance service levels as specified in the Statement of Work and/or Service Level Agreement (SLA). In the event the Service requires failover activities, then Vendor shall be responsible for continuance of the Service and the City shall not be subject to additional costs unless otherwise specified in this Agreement. iii Promptly coordinate with the City all tasks related to correcting problems and deficiencies connected with the Service. iv Not disable any City software. v If Vendor and/or City reasonably determines that Vendor is unable to remedy such deficiencies, Vendor or City may terminate the Agreement and Vendor shall refund to City the Fees previously paid by City to Vendor for the unused term of this Agreement and Fees for the time for which said deficiency(ies) existed. 6. City Data/Vendor Obligations. 6.1. Ownership. City owns all of the information and materials that it submits, uploads or transfers, or causes to be submitted, uploaded, or transferred to the Service . 6.2. Data Protection. reasonable physical, electronic, and procedural safeguards to protect and preserve the confidentiality protection legislative requirements and as the highest industry standards for privacy and security, which applicable policies are incorporated herein by reference. AGREEMENT FOR SOFTWARE AS A SERVICE between City of Kent and NPDESPro, LLC Page 4 6.3. Data Restrictions. Vendor shall restrict access to City Data to Vendor employees, affiliates' employees, or others who need to know that information to provide services to City. City Data shall be stored and hosted within the United States of America. Vendor will use City Data for the purposes described in this Agreement. Vendor will not sell, license, transmit or disclose this information outside of unless: (1) City expressly authorizes Vendor to do so; (2) it is necessary to allow Vendor r to provide products or services to City; (4) otherwise as Vendor is required by law after written notice to City of such requirement. Notwithstanding the foregoing, Vendor is responsible for any disclosures of City Data by Vendor made contrary to the terms of this Agreement. 6.4 Data Backup. data by having a backup system that includes archive, and failover capabilities. Disaster recovery plan shall include: (1) Data backup procedures - level backup strategy that includes disk-to-disk-to-tape data backup in which tape backups serve as a secondary level of backup, not as the primary disaster-recovery data source; or other data backup t of a potential data loss. 7. Intellectual Property Ownership. Vendor (and its Licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Service, the content, the software, and in its technology. This Agreement does not convey to City any rights of technology, software, or its intellectual property rights owned by Vendor and its Licensors, where applicable. This Agreement does not contemplate custom development on behalf of the City of Kent of software or technology. 8. Non-Disclosure of Confidential Information. - disclosure of Confidential Information is contained in the attached and incorporated Exhibit C. All Confidential Information is and shall remain the property of its owner to the extent consistent with applicable law. The disclosure of Confidential Information to the other party does not grant to it any express or implied right to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. 9. City Obligations. 9.1 Hardware Obligations. City shall be responsible for (a) obtaining and maintaining all computer hardware, software, and communications equipment needed to internally access the Service, and (b) paying all third-party access charges incurred while using the Service. 9.2 Anti-Virus Obligations. City will use commercially reasonable efforts to safeguard against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties (collectively "Viruses") Service. 9.3 Restricted Uses. City will not: a. knowingly upload or distribute any files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Service, b. modify, disassemble, decompile or reverse engineer the Service or pre-release hardware devises or software disclosed, AGREEMENT FOR SOFTWARE AS A SERVICE between City of Kent and NPDESPro, LLC Page 5 c. probe, scan, test the vulnerability of, or circumvent any security mechanisms used by, the sites, servers, or networks connected to the Service, d. copy, reproduce, resell or commercially exploit the Service, e. without authority, access or use any other clients' or their users' data through the Service, f. maliciously reduce or impair the accessibility of the Service, g. reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed. 10. Indemnification Obligations. 10.1 City Indemnification Obligations. Subject to Section 10.3 below, City shall defend, indemnify, and hold Vendor and its parent organizations, subsidiaries, Affiliates, officers, directors and employees harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (i) a third party claim alleging that the use of City Data infringes the rights of, or has caused harm to, a or (iii) a third party claim alleging Cit intellectual property rights of Vendor or its Licensors is in violation of this Agreement; (iv) third party claim of injury or death . 10.2. Vendor Indemnification Obligations. Subject to Section 10.3 below, Vendor shall defend, indemnify, and hold City and its elected officials, officers, employees, agents and attorneys harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with: (i) a third party claim alleging that the Vendor Service, content, software, or technology infringes or misappropriates the rights of, or has caused harm to, a third party; (ii) a third-party claim alleging a breach of any Vendor representations and warranties in this Agreement; (iii) a third-party claim alleging use of City Data is in violation of this Agreement; (iv) a third-party claim alleging a breach of confidentiality or data security obligations, that infringes the rights of, or has caused harm to, a third party; or (v) a third-party claim of injury or death to person or damage to property arising from . 10.3 As an express condition of the foregoing indemnification obligations, the parties hereby agree that: a. the indemnified party shall promptly notify the indemnifying party in writing for any claim for which indemnification is sought; b. the indemnified party shall cooperate with all reasonable requests of the c. the indemnifying party shall be allowed to control the defense and settlement of such claim; d. the indemnifying party may not settle any claim that includes an admission of liability, fault, negligence or wrongdoing on the part of the indemnified party unless the indemnified party provides prior written consent, AGREEMENT FOR SOFTWARE AS A SERVICE between City of Kent and NPDESPro, LLC Page 6 e. the indemnified party shall have the right, at its option and expense, to participate in the defense of any action, suit or proceeding relating to such a claim through counsel of its own choosing; f. each indemnified party will undertake commercially reasonable efforts to mitigate any loss or liability resulting from an indemnification claim related to or arising out of this Agreement. 11. Limitation of Liability 11.1. OBLIGATIONS, CONFIDENTIALITY AND SECURITY OBLIGATIONS, REPRESENTATIONS AND WARRANTIES, AND INTELLECTUAL PROPERTY INFRINGEMENT OBLIGATIONS, IN NO EVENT SHALL TH RESPECT TO ANY CLAIM ARISING OUT OF THIS AGREEMENT EXCEED S STATED INSURANCE LIABILITY CAP. 11.2. NEITHER PARTY WILL BE LIABLE FOR BREACH-OF-CONTRACT DAMAGES SUFFERED BY THE OTHER PARTY THAT ARE REMOTE OR SPECULATIVE, OR THAT COULD NOT HAVE REASONABLY BEEN FORESEEN ON ENTRY INTO THIS AGREEMENT. 11.3. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. 12. Insurance. Vendor shall maintain insurance that is sufficient to protect its business against all applicable risks, at a minimum as set forth in the attached and incorporated Exhibit D, "Insurance Requirements." Vendor shall promptly provide City with certificates of insurance to evidence Vendor's continued compliance with Exhibit D. 13. Termination of Agreement. 13.1 Termination for Convenience. Either party may terminate this Agreement without cause. In the event of such desire, the City may terminate upon giving the Vendor 30 days advance written notice of termination, and the Vendor upon giving the City 30 days advance written notice of termination. 13.2 Termination by City for Cause. In addition to any other rights granted to City in this Agreement or under law, City has the right to terminate this Agreement upon written notice due to: a. a material breach of a term, representation, or warranty under this Agreement (including a material breach under an Attachment, Addendum and/or Exhibit to this Agreement) by Vendor of any of its subcontractors or licensors of services if such material breach is not remedied within 30 days following receipt of written notice from City; or b.content, data infrastructure, professional services, technology, software, or any other services and products provided by Vendor or its subcontractors or Licensors or other third parties and the intellectual property rights associated intellectual property rights. c. City Council fails to appropriate funds for contract payments. d. Vendor files for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, AGREEMENT FOR SOFTWARE AS A SERVICE between City of Kent and NPDESPro, LLC Page 7 files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within 60 days of the filing thereof.. 13.3 Termination By Vendor for Cause. In addition to any other rights granted to Vendor in this Agreement or under law, Vendor reserves the right, upon written notice to City, to terminate this Agreement due to: a. any undisputed amounts City owes that are delinquent greater than 30 days; or b. a material breach of the terms of this Agreement, other than a payment obligation, by City or its users if such breach is not remedied within 30 days following receipt of written notice of such breach from Vendor to City; or c.intellectual property infringes upon 13.4 No Suspension of Service. Provided City continues to timely make all undisputed payments, Vendor warrants that during the term of this Agreement, Vendor will not withhold Service provided herein, for any reason, including but not limited to a dispute between the parties arising under this Agreement, except as may be specifically authorized herein. 13.5 Effect of Termination. a. If City terminates for cause or Vendor terminates without cause, City will only be obligated to pay the amounts then due commitments as calculated up to the date of termination and, if applicable, City will be reimbursed a prorated amount of unused, prepaid fees. b. If Vendor terminates for cause that City does not dispute or if City terminates Vendor may bill City for such unpaid fees due up to the date of termination. c. In the event this Agreement terminates for any reason, Vendor shall provide the acceptable (and at no cost) to City within 30 days of the effective date of termination. City shall have 60 days following termination to notify Vendor if litigation, laws, regulations, or Service beyond the termination of this Agreement. City will thereafter promptly notify Vendor when such litigation, laws, regulations, or other data on its Service. 61 days after termination, if City provides no notice otherwise; or after City notifies Vendor there are no laws, regulations, litigation, etc. requiring further retention. Retained data is subject to the confidentiality provisions of the Agreement. 14. Remedies. Termination of this Agreement shall not affect any right of action of either party prior to the termination being affected. All remedies shall be cumulative and may be exercised concurrently, or separately, which shall not be deemed to constitute an election of any one remedy to the exclusion of any other. In addition to any other remedy provided for herein, or at law or equity, City shall have the right to recover from Vendor all damages reasonably caused by default of any representation or warranty. This available to it in law, at equity or pursuant to this Agreement. 15. Non-Discrimination. In the hiring of employees for the performance of work under this Agreement or any subcontract, the Vendor, its subcontractors, or any person acting on behalf of the AGREEMENT FOR SOFTWARE AS A SERVICE between City of Kent and NPDESPro, LLC Page 8 Consultant or subcontractor shall not, by reason of race, religion, color, sex, age, sexual orientation, national origin, or the presence of any sensory, mental, or physical disability, discriminate against any person who is qualified and available to perform the work to which the employment relates. The Consultant shall execute the City of Kent Equal Employment Opportunity Policy Declaration, Comply with City Administrative Policy 1.2, and upon completion of the contract work, file the Compliance Statement, all attached and incorporated as Exhibit E. 16. General Provisions 16.1 Governing Law and Venue. The Agreement will be governed by the laws of Washington and its choice of law rules. Vendor irrevocably consents to the exclusive personal jurisdiction and venue of the federal and state courts located in King County, Washington, with respect to any dispute arising out of or in connection with the Agreement and agrees not to commence or prosecute any action or proceeding arising out of or in connection with the Agreement other than in the aforementioned courts. 16.2. Dispute Resolution. The City and Vendor desire, if possible, to resolve disputes, controversies and claims (Disputes) arising out of this Agreement without litigation. To that end, upon written notification of dispute by a party to the other, each party shall appoint a knowledgeable, responsible management representative to meet and negotiate in good faith to resolve any Dispute arising under this Agreement. If the parties are unable to settle any Dispute, the exclusive means of resolving that Dispute shall only be by filing suit as provided for under Section 16.1, unless the parties agree in writing to an alternative dispute resolution process. 16.3 Severability. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provision will continue in full force without being impaired or invalidated in any way. The City and Vendor agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. 16.4 Nonwaiver. Any failure by either party to enforce strict performance of any provision of the Agreement will not constitute a waiver of the its right to subsequently enforce such provision or any other provision of the Agreement. 16.5 No Assignment. Either party may assign this Agreement and all of its rights and obligations hereunder as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets so long as said assignee accepts all of the respective Agreements rights and obligations of its predecessor as provided in this Agreement without limitation. Except as expressly stated in this Agreement, neither party may otherwise assign its rights or obligations under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void. 16.6 Notices. All communications regarding this Agreement shall be sent to the parties at the addresses listed on the signature page of the Agreement, unless notified to the contrary. Any written notice hereunder shall become effective three (3) business days after the date of mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the addressee at the address stated in this Agreement or such other address as may be hereafter specified in writing. Either party may change its address by giving written notice of such change to the other party. 16.7 Legal Fees. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit either AGREEMENT FOR SOFTWARE AS A SERVICE between City of Kent and NPDESPro, LLC Page 9 16.8 Force Majeure. Neither party shall be liable to the other for breach due to delay or failure in performance resulting from acts of God, acts of war or of the public enemy, riots, pandemic, is prevented or delayed due to a force majeure event shall not result in liability to the delayed party. Both parties represent to the other that at the time of signing this Agreement, they are able to perform as required and their performance will not be prevented, hindered, or delayed by the current COVID-19 pandemic, any existing state or national declarations of emergency, or any current social distancing restrictions or personal protective equipment requirements that may be required under federal, state, or local law in response to the current pandemic. If any future performance is prevented or delayed by a force majeure event, the party whose performance is prevented or delayed shall promptly notify the other party of the existence and nature of the force majeure event causing the prevention or delay in performance. Any excuse from liability shall be effective only to the extent and duration of the force majeure event causing the prevention or delay in performance and, provided, that the party prevented or delayed has not caused such event to occur and continues to use diligent, good faith efforts to avoid the effects of such event and to perform the obligation. Notwithstanding other provisions of this section, the Vendor shall not be entitled to, and the City shall not be liable for, the payment of any part of the contract price during a force majeure event, or any costs, losses, expenses, damages, or delay costs incurred by the Vendor due to a force majeure event. Performance that is more costly due to a force majeure event is not included within the scope of this Force Majeure provision. If a force majeure event occurs, the City may direct the Vendor to restart any work or performance that may have ceased, to change the work, or to take other action to secure the work or the project site during the force majeure event. The cost to restart, change, or secure the work or project site arising from a direction by the City under this clause will be dealt with as a change order, except to the extent that the loss or damage has been caused or exacerbated by the failure of the Vendor to fulfill its obligations under this Agreement. Except as expressly contemplated by this section, all other costs will be borne by the Vendor. 16.9 Independent Contractor. City and Vendor intend that an independent Contractor relationship be created with this Agreement. Vendor shall not be considered an agent or employee of City for any purpose and the employees of Vendor are not entitled to any of the benefits that City provides for its employees. Nor shall this Agreement be evidence of a joint venture between Vendor and City. 16.10 Problem Notification. Each party will promptly notify the other in writing of any events or circumstances that will affect the performance of its obligations under this Agreement including the delivery of any deliverable or delay in completion of any of its obligations. Vendor shall notify City in writing of all material defects in the Service, whether discovered by other parties or by Vendor within five (5) business days of their discovery and fix or replace the effected software within a commercially reasonable time. A defect is considered material if it has the potential to delay or inhibit the primary functionality of the Service or if said defect has the potential to corrupt City data. 16.11 Entire Agreement/Modification. This Agreement, together with all exhibits comprise the entire agreement between the parties and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding the subject matter contained herein. This Agreement may be amended, modified, or added to only by written instrument properly signed by both parties hereto. 16.12 Public Records Act. The Vendor acknowledges that the City is a public agency subject to the Public Records Act codified in Chapter 42.56 of the Revised Code of Washington and AGREEMENT FOR SOFTWARE AS A SERVICE between City of Kent and NPDESPro, LLC Page 10 documents, notes, emails, and other records prepared or gathered by the Vendor in its performance of this Agreement may be subject to public review and disclosure, even if those records are not produced to or possessed by the City of Kent. As such, the Vendor agrees to cooperate fully with the City 16.13 City Business License Required. Prior to commencing the Service provided for under this Agreement, Vendor agrees to provide proof of a current city of Kent business license pursuant to Chapter 5.01 of the Kent City Code. 16.14 Counterparts and Signatures by Fax or Email. This Agreement may be executed in any number of counterparts, each of which shall constitute an original, and all of which will together constitute this one Agreement. Further, upon executing this Agreement, either party may deliver the signature page to the other by fax or email and that signature shall have the same force and effect as if the Agreement bearing the original signature was received in person. IN WITNESS, the parties below execute this Agreement, which shall become effective on the last date entered below. All acts consistent with the authority of this Agreement and prior to its effective date are ratified and affirmed, and the terms of the Agreement shall be deemed to have applied. Exhibit A Vendor Proposal AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT A VENDOR PROPOSAL (valid through February 24th, 2023) 1st year Annual Subscription Fee NOT TO EXCEED: $28,500.00 plus applicable WSST. Exhibit B Service Level Agreement and Support Services AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT B SERVICE LEVEL AGREEMENT AND SUPPORT SERVICES 1. Description of Services A. SERVICE LEVEL AGREEMENT 1. Applicable Levels. Vendor shall provide the Service to the City with a System Availability of at least 99.5% during each calendar month of the Agreement following initial implementation completion. During NPDESPro work hours as identified in the NPDESPro Service Level Agreement document per page 6 of NPDESPro Proposal: NPDESPro provides phone and email support between the hours of 8:00am-5:00pm, Monday-Friday. 2. Scheduled System Maintenance. Vendor may take the Service offline for scheduled maintenances of which City has received prior written notice of the planned maintenance schedule. 3. System Availability Definition. 3.1. means the percentage of minutes in a month that the key components of the Service are operational 3.2. a. scheduled maintenance; b. events of force majeure; or c. technology/devices. 4. Remedies. Should Vendor not achieve System Availability for 2 months or more in any six month period, the City shall be entitled to the following credit against fees due: 4.1 Two-months 25% 4.2 Three months 35% 4.3 Four or more months 50% The credit remedy provided herein is not exclusive and City shall be entitled to all other to meet System Availability requirements. B. SUPPORT SERVICES 1. Services Support entitles the City to the following: 1.1 Telephone or electronic support to help the City locate and correct problems with the Service. 1.2 Bug fixes and code corrections to correct Service malfunctions to bring the Service into substantial conformity with the operating specifications. Exhibit B Service Level Agreement and Support Services AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT B SERVICE LEVEL AGREEMENT AND SUPPORT SERVICES (Continued) 1.3 All extensions, enhancements and other changes that Vendor makes or adds to the Service and which the Vendor offers, without charge, to all other Subscribers of the Service. 1.4 Up to UNLIMITED dedicated contacts designated by the City in writing that will have access to support services. 2. Response and Resolution Goals 2.1 Severity 1: The Production system/application is down, seriously impacted and there is no reasonable work around currently available. Once Vendor receives notice, the Vendor will begin continuous work on the issue, and a customer resource must be available at any time to assist with problem determination. Once the issue is reproducible or once vendor has identified the Service defect, Vendor will provide reasonable efforts for workaround or solution within 24 hours. 2.2 Severity 2: The system or application is seriously affected. The issue is not critical and does not comply with the Severity 1 conditions. There is no workaround currently available or the workaround is cumbersome to use. The Vendor will work during normal business hours to provide reasonable effort for workaround or solution within 3 days, once the issue is reproducible. 2.3 Severity 3: The system or application is moderately affected. The issue is not critical and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround. The Company will work during normal business hours to provide reasonable effort for workaround or solution within 5 business days, once the issue is reproducible. 2.4 Severity 4: Non-critical issues. The Company will seek during normal business hours to provide a solution in future releases of the Service. Exhibit C Nondisclosure Agreement AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT C NON-DISCLOSURE OF CONFIDENTIAL INFORMATION 1. Scope of Confidentiality Obligation in a SAAS Agreement. 1.1 Limitations. The Parties recognize that in a SAAS Agreement, the City is placing its information, including Confidential Information, In providing this hosted service, the Vendor is not disclosing or providing City with its confidential information such as its source code or other proprietary or intellectual property technology. City therefore cannot modify, reverse engineer or otherwise committed to not doing so in this Agreement. Thus, with respect to 2. Definition of Confidential Information and Exclusions. 2.1 "Confidential Information" means non-public information that City designates as being confidential or which, under the circumstances surrounding disclosure, Vendor ought to treat as confidential, including but not limited to information in tangible or intangible form relating to and/or including City data, computer programs, code, algorithms, formulas, processes, inventions, schematics and other technical, business , financial and product development plans, forecasts, strategies and proprietary or intellectual property whether or not it is owned by City and information received from others that City is obligated to treat as confidential. Except as otherwise Vendor also includes all its Affiliates. any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, controls, are controlled by, or are under common control with a party. 2.2 Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available without breach of any obligation owed City; (ii) became known to disclosure of such information to Vendor pursuant to the terms of this Agreement; (iii) became known to Vendor from a source other than City other than by the breach of an obligation of confidentiality owed to City; (iv) is independently developed by Vendor; or (v) is not confidential as a matter of law. 3. Obligations Regarding Confidential Information. 3.1 Except as otherwise provided herein, Vendor shall: a. Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than prevailing standard of reasonable care in the industry, to keep confidential the Confidential Information of the City; b. Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information except in pursuance of business relationship with City, or only as otherwise provided hereunder; and c. Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by City to Vendor under the terms of this Agreement. 3.2 Notwithstanding anything to the contrary herein, City and Vendor will disclose Confidential Information in accordance with judicial action, federal or state public disclosure Exhibit C Nondisclosure Agreement AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT C NON-DISCLOSURE OF CONFIDENTIAL INFORMATION INFORMATION (Continued) requirements, state or federal regulations, or other governmental order or requirement of law. In the context of public records requests, City will give the Vendor reasonable notice prior to consistent with City s rules to allow Vendor a reasonable opportunity to seek injunctive or other applicable judicial relief preventing such disclosure. 3.3 The Vendor may disclose Confidential Information only to employees and consultants on a need-to-know basis. The Vendor will have executed or shall execute appropriate written agreements with third parties sufficient to enable Vendor to enforce all the provisions of this Agreement. 3.4 Vendor shall notify the City promptly and without undue delay upon discovery of any unauthorized use or disclosure of Confidential Information as defined by this Agreement. Vendor will cooperate with City in helping City regain possession of its Confidential Information and prevent its further unauthorized use or disclosure. Exhibit D Insurance Requirements AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT D INSURANCE REQUIREMENTS FOR CONSULTANT SERVICES AGREEMENTS Insurance The Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by the Contractor, their agents, representatives, employees or subcontractors. A. Minimum Scope of Insurance Contractor shall obtain insurance of the types described below: 1. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. The Commercial General Liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 11 85. The General Liability insurance policy with respect to the work performed for the City using ISO additional insured endorsement CG 20 10 11 85 or a substitute endorsement providing equivalent coverage. 2. Cyber Liability insurance naming the City as an Additional Insured. B. Minimum Amounts of Insurance Contractor shall maintain the following insurance limits: 1. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. 2. Cyber Liability insurance shall be written with limits no less than $1,000,000 per occurrence and $2,000,000 aggregate. Exhibit D Insurance Requirements AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT D (Continued) C. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability and Commercial General Liability insurance: insurance coverage shall be primary insurance as respect the City. Any Insurance, self-insurance, or insurance pool coverage maintained by the City shall 2. The cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 3. The City of Kent shall be named as an additional insured on all policies (except Professional Liability) as respects work performed by or on behalf of the contractor and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of insurance shall also contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. E. Verification of Coverage Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Contractor before commencement of the work. NPDESPro has provided the following as evidence certifying their insurance coverages (see next page): Exhibit D Insurance Requirements AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT D (Continued) Exhibit D Insurance Requirements AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT D (Continued) Exhibit D Insurance Requirements AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT D (Continued) Exhibit D Insurance Requirements AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT D (Continued) Exhibit D Insurance Requirements AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT D (Continued) Exhibit D Insurance Requirements AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT D (Continued) Exhibit D Insurance Requirements AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT D (Continued) Exhibit D Insurance Requirements AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT D (Continued) Exhibit D Insurance Requirements AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT D (Continued) Exhibit D Insurance Requirements AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT D (Continued) Exhibit D Insurance Requirements AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT D (Continued) F. Subcontractors Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the same insurance requirements as stated herein for the Contractor. Exhibit E EEO COMPLIANCE DOCUMENTS and Non-Discrimination Policy AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT E DECLARATION CITY OF KENT EQUAL EMPLOYMENT OPPORTUNITY POLICY The City of Kent is committed to conform to Federal and State laws regarding equal opportunity. As such all contractors, subcontractors and suppliers who perform work with employment opportunity policies. The City of Kent and its contractors are subject to and will comply with the following: Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); 49 C.F.R. Part 21 (entitled Non-discrimination In Federally-Assisted Programs Of The Department Of Transportation-Effectuation Of Title VI Of The Civil Rights Act Of 1964); 28 C.F.R. section 50.3 (U.S. Department of Justice Guidelines for Enforcement of Title VI of the Civil Rights Act of 1964). Ch. 49.60 RCW (Washington Law Against Discrimination) The preceding statutory and regulatory cites The following questions specifically identify the requirements the City deems necessary for any contractor, subcontractor, or supplier on this specific Agreement to adhere to. An affirmative of all of the following is required for this Agreement to be valid and binding. If any contractor, subcontractor or supplier willfully misrepresents themselves with regard to the directives outlined below, it will be considered a breach of contract and it will be at the r termination for all or part of the Agreement. The statements are as follows: 1. I have read the attached City of Kent administrative policy number 1.2. 2. During the time of this Agreement I will not discriminate in employment on the basis of sex, race, color, national origin, age, or the presence of all sensory, mental or physical disability. 3. During the time of this Agreement the prime contractor will provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 4. During the time of the Agreement I, the prime contractor, will actively consider hiring and promotion of women and minorities. Exhibit E EEO COMPLIANCE DOCUMENTS and Non-Discrimination Policy AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT E (continued) 5. During the performance of this contract, the contractor, for itself, its assignees, and A. Compliance with Regulations: The contractor, subcontractor, consultant, Regulations relative to non-discrimination, including those applicable to Federally- assisted programs of the U.S. Department of Transportation, State-assisted programs through the Washington State Department of Transportation, and generally under Washingt may be amended from time to time, which are herein incorporated by reference and made a part of this contract. B. Non-discrimination: The contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations, including employment practices when the contract covers any activity, project, or program set forth in Appendix B of 49 CFR Part 21. C. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the contractor of the contractor's obligations under this contract and the Acts and the Regulations relative to non-discrimination on the grounds of race, color, or national origin. D. Information and Reports: The contractor will provide all information and reports required by the Acts and Regulations and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facil Washington State Department of Transportation to be pertinent to ascertain compliance with such Acts and Regulations and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the contractor will so certify to the City or the Washington State Department of Transportation, as appropriate, and will set forth what efforts it has made to obtain the information. E. Sanctions for Noncompliance: In the event of a contractor's noncompliance with the non-discrimination provisions of this contract, the City will impose such contract sanctions as it or the Washington State Department of Transportation may determine to be appropriate, including, but not limited to: Exhibit E EEO COMPLIANCE DOCUMENTS and Non-Discrimination Policy AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT E (continued) a. withholding payments to the contractor under the contract until the contractor complies; and/or b. cancelling, terminating, or suspending a contract, in whole or in part. F. Incorporation of Provisions: The contractor will include the provisions of paragraphs (A) through (F) above in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts and Regulations and directives issued pursuant thereto. The contractor will take action with respect to any subcontract or procurement as the City or the Washington State Department of Transportation may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the contractor may request the City to enter into any litigation to protect the interests of the City. In addition, the contractor may request the United States to enter into the litigation to protect the interests of the United States. 6. During the performance of this contract, the contractor, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to: Pertinent Non-Discrimination Authorities: i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. ii. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects); iii. Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); iv. Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CFR Part 27; v. The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); vi. Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); Exhibit E EEO COMPLIANCE DOCUMENTS and Non-Discrimination Policy AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC EXHIBIT E (continued) vii. The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not); viii. Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.F.R. parts 37 and 38; ix. The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); x. Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, which ensures Non- discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; xi. Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); xii. Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). xiii. Washington Law Against Discrimination (Ch. 49.60 RCW) 7. The submission of the final invoice for this contract will constitute a reaffirmation that the preceding statements were complied with during the course of the By signing below, I agree to fulfill the five requirements referenced above. By: For: NPDESPro, LLC Title: President Date: 1/23/2023 Exhibit E EEO COMPLIANCE DOCUMENTS and Non-Discrimination Policy AGREEMENT FOR SOFTWARE AS A SERVICE Between City of Kent and NPDESPro, LLC CITY OF KENT ADMINISTRATIVE POLICY NUMBER: 1.2 EFFECTIVE DATE: October 20, 2022 SUBJECT: INCLUSIVE CONTRACTING SUPERSEDES: January 1, 1998 APPROVED BY Dana Ralph, Mayor POLICY: Equal employment opportunity and non-discrimination in contracting requirements for the City of Kent will conform to federal and state laws. All contractors, subcontractors, consultants, and suppliers of the City must guarantee equal employment opportunity within their organization and, if holding Agreements with the City amounting to $10,000 or more within any given year, must take the following affirmative steps: 1. Provide a written statement to all new employees and subcontractors indicating commitment as an equal opportunity employer. 2. Actively consider for promotion and advancement available minorities and women. Further, all contractors, subcontractors, consultants, suppliers or subgrantees of the City, regardless of the value of the Agreement, are required to -Discrimination Policy Declaration, prior to commencing performance. Any contractor, subcontractor, consultant or supplier nondiscrimination and equal opportunity requirements shall be considered in breach of contract and subject to suspension or termination for all or part of the Agreement. Contract Compliance Officers will be appointed by the Directors of Planning, Parks, and Public Works Departments to the following duties for their respective departments. 1. Ensuring that contractors, subcontractors, consultants, and suppliers subject to these opportunity policy. 2. Monitoring to assure adherence to federal, state, and local laws, policies, and guidelines.