Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
AGENDA REPORT 2020 1021 CCSA REG ITEM 09E
CITY OF MOORPARK, CALIFORNIA City Council Meeting of October 21, 2020 ACTION Provided Direction to Staff on Addition of Custom Questions. (Roll Call Vote: Unanimous). BY B.Garza. E. Recommend Custom Questions for the National Community Survey. Staff Recommendation: Add custom questions for the National Community Survey as recommended by the City Council. (Staff: PJ Gagajena) Item: 9.E. Item: 9.E. MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: PJ Gagajena, Assistant City Manager DATE: 10/21/2020 Regular Meeting SUBJECT: Recommend Custom Questions for the National Community Survey BACKGROUND On September 15, 2020, the City Manager, approved an agreement with Policy Confluence, Inc., also known as the National Research Center Inc. (NRC), in the amount of $40,400 to conduct a community survey on resident satisfaction for this year 2020 and in the year 2022. The NRC is the nation’s leading survey research company for public sector agencies and is a branch of the civic engagement technology company Polco. The NRC produces the National Community Survey (NCS) and has the nation’s largest resident opinion database of more than 30 million Americans. The NCS seeks to measure resident satisfaction with City services and gains their insights into how resident satisfaction compares with survey benchmarks from communities nationwide on community livability and resident satisfaction on services and policies. The NCS is the most trusted survey recognized by the International City/County Management Association, the world’s leading organization for city management professionals. The survey is regarded as the standard in local government and communities that have completed the NCS have improved performance in the delivery of services, strengthened communications with residents and stakeholders, and identified clear priorities used for goal and budget setting. DISCUSSION The development of the NCS for 2020 for Moorpark is currently underway and surveys will be sent to approximately 2,700 households during the second week of November. Residents will have an opportunity to complete a hard copy or online version of the survey. It will be available in both English and Spanish, and the targeted households will represent a cross-section of all neighborhoods in the community to ensure maximum representation and participation. Staff has reviewed the population of targeted households created by NRC’s sampling and geocoding process, and confirmed it will reach nearly all neighborhoods in the City including those that are traditionally 320 Honorable City Council 10/21/2020 Regular Meeting Page 2 hard to reach. Data collection will take place from mid-November to late December, and a final report will be provided to the City by mid-February 2021. The NCS consists of 12 fixed questions for benchmark comparisons in addition to a number of optional custom questions, depending on the length of each question. Some questions in the standard survey that are not relevant to Moorpark such as snow removal will be removed prior to survey administration. In addition, the City Council has the option to include additional custom questions to include in the survey, and staff and the NRC can assist in wording the questions as necessary. Any optional questions the City Council may consider should be closed ended in nature, to allow for easy coding and reporting of data. These questions can be asked of residents to determine their sentiment on any number of local issues. A sampling of custom questions asked by cities that have participated in the NCS is below: • Economic development strategies are implemented to create a strong economic climate. This is often done through policies and programs that support businesses, create/retain jobs, encourage vital commercial areas and invest in a skilled workforce. Please rate the job your local community has done at being proactive about economic development. • What is the single most important type of residential unit needed in your local community? • How much of a priority, if at all, should it be for local government to address racial equity gaps in jobs, health, and housing? • How much of a problem, if at all, have financial issues been for your household as a result of the COVID-19 pandemic? FISCAL IMPACT There is no fiscal impact associated with this action since the NCS is already budgeted for Fiscal Years 2020-21 and 2022-23. COUNCIL GOAL COMPLIANCE This action does not support a current strategic directive. STAFF RECOMMENDATION Add custom questions for the National Community Survey as recommended by the City Council. Attachment 1: National Community Survey Timeline Attachment 2: Agreement with Policy Confluence, Inc. 321 Timeline for The National Community Survey™ Date Preparing for the Survey Sep 18 Sep 18 ➔Oct 2 ➔Oct 2 ➔Oct 16 Oct 23 Feb 7 Oct 30 ➔Oct 30 Conducting the survey Nov 6 to Nov 20 Prenotification postcards sent Nov 6 1st wave of surveys sent Nov 13 2nd wave of surveys sent Nov 20 ➔Dec 11 Nov 13 to Dec 31 ➔Dec 31 Dec 31 to Jan 28 Jan 28 ➔Feb 4 Feb 11 Survey materials are mailed Item The NCS survey process is initiated upon receipt of signed contract NRC emails you information to customize The NCS Due to NRC: Selection of add-on options Due to NRC: Drafts of the optional custom questions to be included in the survey Due to NRC: Zip code information and GIS boundary data NRC finalizes the survey instrument and mailing materials and sends .pdf samples for your records NRC generates the sample of households in your community NRC prints materials and prepares mailings Due to NRC: Selection of custom benchmark profile(s) (if custom benchmark add-on selected) Due to NRC: community feedback on the draft report (most final reports are identical to the draft reports, except being labeled as final instead of draft) NRC emails final report to you Legend Indicates when items from NRC are due to you ➔Indicates when items from you are due to NRC Indicates information items Opt-in web survey link posted on your website (source link provided to you by NRC) Data collection: surveys received and processed for your community Due to NRC: Final count of returned postcards Survey analysis and report writing During this time, NRC will process the surveys, perform the data analysis, and produce a draft report for your community. The report of results will contain a description of the methodology, information on understanding the results, and graphs and tables of your results, as well as a description of NRC's database of normative data from across the U.S. and actual comparisons to your results, where appropriate. NRC emails draft report (in PDF format) to you along with invoice for balance due on The NCS Basic Service and any additional add-on options Finalize survey materials Postcard mails 1st wave mails 2nd wave mails Opt-in survey opens Data collection ends Draft reports received Oct 23 Oct 30 Nov 6 Nov 13 Nov 20 Nov 27 Dec 4 Dec 11 Dec 18 Dec 25 Jan 1 Jan 8 Jan 15 Jan 22 ATTACHMENT 1 322 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MOORPARK AND POLICY CONFLUENCE, INC., FOR COMMUNITY SURVEY SERVICES THIS AGREEMENT, made and effective as of this 16� day of>te.\-ew\v.Jt-Y-, 2020, between the City of Moorpark, a municipal corporation ("City") and POLICY CONFLUENCE, INC., OBA POLCO & NATIONAL RESEARCH CENTER, INC., a corporation ("Consultant"). In consideration of the mutual covenants and conditions set forth herein, the parties agree as follows: WHEREAS, City has the need for community survey services; and WHEREAS, Consultant specializes in providing such services and has the proper work experience, certifications, and background to carry out the duties involved; and WHEREAS, Consultant has submitted to City a Proposal which is attached hereto as Exhibit C. NOW, THEREFORE, in consideration of the mutual covenants, benefits , and premises herein stated, the parties hereto agree as follows: 1.TERM The term of this Agreement shall be from the date of execution to the completion of the work identified in the Scope of Work and in conformance with Exhibit C, unless this Agreement is terminated or suspended pursuant to this Agreement. 2.SCOPE OF SERVICES City does hereby retain Consultant, as an independent contractor, in a contractual capacity to provide community survey services, as set forth in Exhibit C. In the event there is a conflict between the provisions of Exhibit C and this Agreement, the language contained in this Agreement shall take precedence. Consultant shall perform the tasks described and set forth in Exhibit C. Consul tant shall complete the tasks according to the schedule of performance which is also set forth in Exhibit C. Compensation for the services to be performed by Consultant shall be in accordance with Exhibit C. Compensation shall not exceed the rates or total contract value of forty thousand and four hundred dollars ($40,400) as stated in Exhibit C, without a written Amendment to the Agreement executed by both parties. Payment by City to Consultant shall be in accordance with the provisions of this Agreement. ATTACHMENT 2 323 3.PERFORMANCE Consultant shall at all times faithfully, competently and to the best of their ability, experience, standard of care, and talent, perform all tasks described herein. Consultant shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing similar services as are required of Consultant hereunder in meeting its obligations under this Agreement. 4.MANAGEMENT The individual directly responsible for Consultant's overall performance of the Agreement provisions herein above set forth and to serve as principal liaison between City and Consultant shall be Damema Mann, and no other individual may be substituted without the prior written approval of the City Manager. The City's contact person in charge of administration of this Agreement, and to serve as principal liaison between Consultant and City, shall be the City Manager or the City Manager's designee. 5.PAYMENT Taxpayer ID or Social Security numbers must be provided by Consultant on an IRS W-9 form before payments may be made by City to Consultant. The City agrees to pay Consultant, in accordance with the payment rates and terms and the schedule of payment as set forth in Exhibit C. This amount shall not exceed forty thousand and four hundred dollars ($40,400) for the total term of the Agreement unless additional payment is approved as provided in this Agreement. Consultant shall not be compensated for any services rendered in connection with its performance of this Agreement, which are in addition to those set forth herein, unless such additional services and compensation are authorized, in advance, in a written amendment to this Agreement executed by both parties. The City Manager, if authorized by City Council, may approve additional work not to exceed ten percent (10%) of the amount of the Agreement. Consultant shall submit invoices monthly for actual services performed. Invoices shall be submitted on or about the first business day of each month, or as soon thereafter as practical, for services provided in the previous month. Payment shall be made within thirty (30) days of receipt of each invoice as to all non-disputed fees. Any expense or reimbursable cost appearing on any invoice shall be accompanied by a receipt or other documentation subject to approval of the City Manager or the City Manager's designee. If the City disputes any of Consultant's fees or expenses, City shall give written notice to Consultant within thirty (30) days of receipt of any disputed fees set forth on the invoice. Policy Confluence, Inc. Page 2 of 15 324 6.TERMINATION OR SUSPENSION WITHOUT CAUSE The City may at any time, for any reason, with or without cause, suspend, or terminate this Agreement, or any portion hereof, by serving upon the Consultant at least ten (1 O) days prior written notice. Upon receipt of said notice, the Consultant shall immediately cease all work under this Agreement, unless the notice provides otherwise. If the City suspends or terminates a portion of this Agreement, such suspension or termination shall not make void or invalidate the remainder of this Agreement. The Consultant may terminate this Agreement only by providing City with written notice no less than thirty (30) days in advance of such termination. In the event this Agreement is terminated or suspended pursuant to this Section, the City shall pay to Consultant the actual value of the work performed up to the time of termination or suspension, provided that the work performed is of value to the City. Upon termination or suspension of the Agreement pursuant to this Section, the Consultant will submit an invoice to the City pursuant to this Agreement. 7.DEFAULT OF CONSUL TANT The Consultant's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Consultant is in default for cause under the terms of this Agreement, City shall have no obligation or duty to continue compensating Consultant for any work performed after the date of default and can terminate or suspend this Agreement immediately by written notice to the Consultant. If such failure by the Consultant to make progress in the performance of work hereunder arises out of causes beyond the Consultant's control, and without fault or negligence of the Consultant, it shall not be considered a default. If the City Manager or his/her designee determines that the Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall cause to be served upon the Consultant a written notice of the default. The Consultant shall have thirty (30) days after service upon it of said notice in which to cure the default by rendering a satisfactory performance. In the event that the Consultant fails to cure its default within such period of time, the City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity or under this Agreement. 8.LIQUIDATED DAMAGES There are no liquidated damages under this Agreement. 9.OWNERSHIP OF DOCUMENTS Consultant shall maintain complete and accurate records with respect to sales, costs, expenses, receipts, and other such information required by City that relate to the performance of services under this Agreement. Consultant shall maintain adequate Policy Confluence, Inc. Page 3 of 15 325 records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall provide free access to the representatives of City or the City's designees at reasonable times to such books and records; shall give the City the right to examine and audit said books and records; shall permit City to make transcripts therefrom as necessary; and shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement. Notification of audit shall be provided at least thirty (30) days before any such audit is conducted. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. Upon completion of, or in the event of termination or suspension without cause of this Agreement, all original documents, designs, drawings, maps, models, computer files, surveys, notes, and other documents prepared in the course of providing the services to be performed pursuant to this Agreement shall become the sole property of the City and may be used, reused, or otherwise disposed of by the City without the permission of the Consultant. With respect to computer files, Consultant shall make available to the City, at the Consultant's office and upon reasonable written request by the City, the necessary computer software and hardware for purposes of accessing, compiling, transferring, and printing computer files. 10.INDEMNIFICATION AND HOLD HARMLESS Indemnity for professional liability: When the law establishes a professional standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees, and agents ("Indemnified Parties") from and against any and all losses, liabilities, damages, costs and expenses, including legal counsels' fees and costs to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Consultant, its officers, agents, employees or subconsultants (or any agency or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement. Indemnity for other than professional liability: Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, protect, defend and hold harmless City, and any and all of its officials, employees, and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including legal counsels' fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or agency for which Consultant is legally liable, including but not limited to officers, agents, employees or subcontractors of Consultant. Consultant agrees to obtain executed indemnity agreements with prov1s1ons identical to those set forth here in this Section from each and every subcontractor, or any other person or entity involved by, for, with, or on behalf of Consultant in the Policy Confluence, Inc. Page 4 of 15 326 performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required here, Consultant agrees to be fully responsible according to the terms of this Section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth here is binding on the successors, assigns, or heirs of Consultant and shall survive the termination of this Agreement or this Section. City does not and shall not waive any rights that it may have against Consultant by reason of this Section, because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless and indemnification provisions shall apply regardless of whether or not said insurance policies are determined to be applicable to any losses, liabilities, damages, costs, and expenses described in this Section. 11.INSURANCE Consultant shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Exhibit A attached hereto and incorporated herein by this reference as though set forth in full. 12.INDEPENDENT CONSULTANT Consultant is and shall at all times remain as to the City a wholly independent Contractor. The personnel performing the services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers or employees, or agents of the City except as set forth in this Agreement. Consultant shall not incur or have the power to incur any debt, obligation, or liability against City, or bind City in any manner. No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder. 13.LEGAL RESPONSIBILITIES The Consultant shall keep itself informed of local, state, and federal laws and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Consultant shall at all times observe and comply with all such laws and regulations, including but not limited to the Americans with Disabilities Act and Occupational Safety and Health Administration laws Policy Confluence, Inc. Page 5 of 15 327 and regulations. The Consultant shall comply with and sign Exhibit B, the Scope of Work Requirement for Professional Services Agreements Compliance with California Government Code Section 7550, when applicable. The City, and its officers and employees, shall not be liable at law or in equity occasioned by failure of the Consultant to comply with this Section. 14.ANTI DISCRIMINATION Neither the Consultant, nor any subconsultant under the Consultant, shall discriminate in employment of persons upon the work because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status; or any other basis protected by applicable federal, state, or local law, except as provided in Section 12940 of the Government Code. Consultant shall have responsibility for compliance with this Section. 15.UNDUE INFLUENCE Consultant declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of the City in connection with the award, terms, or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of the City will receive compensation, directly or indirectly from Consultant, or any officer, employee, or agent of Consultant, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement. Violation of this Section shall be a material breach of this Agreement entitling the City to any and all remedies at law or in equity. 16.NO BENEFIT TO ARISE TO LOCAL EMPLOYEES No member, officer, or employee of the City, or their designees or agents, and no public official who exercises authority over or responsibilities with respect to the Services during his/her tenure or for one year thereafter, shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds thereof, for work to be performed in connection with the Services performed under this Agreement. 17.CONFLICT OF INTEREST Consultant covenants that neither they nor any officer or principal of their firm have any interests, nor shall they acquire any interest, directly or indirectly, which will conflict in any manner or degree with the performance of their services hereunder. Consultant further covenants that in the performance of this Agreement, they shall employ no person having such interest as an officer, employee, agent, or subconsultant. Consultant further covenants that Consultant has not contracted with nor is performing any services directly or indirectly, with the developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) and/or public agency(ies) owning property and/or processing an entitlement application for property in the City or its Area of Interest, now or within the past one (1) year, and further covenants and agrees that Consultant and/or Policy Confluence, Inc. Page 6 of 15 328 its subconsultants shall provide no service or enter into any contract with any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) and/or public agency(ies) owning property and/or processing an entitlement application for property in the City or its Area of Interest, while under contract with the City and for a one (1) year time period following termination of this Agreement. 18.NOTICE Any notice to be given pursuant to this Agreement shall be in writing, and all such notices and any other document to be delivered shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the party for whom intended as follows: To: City Manager City of Moorpark 799 Moorpark Ave. Moorpark, CA 93021 To: Policy Confluence, Inc. 8001 Terrace Avenue, #201 Middleton, WI 53562 Attention: Alex Pedersen, Chief Financial Officer Either party may, from time to time, by written notice to the other, designate a different address or contact person, which shall be substituted for the one above specified. Notices, payments and other documents shall be deemed delivered upon receipt by personal service or as of the third (3rd) day after deposit in the United States mail. 19.CHANGE IN NAME Should a change be contemplated in the name or nature of the Consultant's legal entity, the Consultant shall first notify the City in order that proper steps may be taken to have the change reflected in the Agreement documents. 20.ASSIGNMENT Consultant shall not assign this Agreement or any of the rights, duties, or obligations hereunder. It is understood and acknowledged by the parties that Consultant is uniquely qualified to perform the services provided for in this Agreement. 21.LICENSES At all times during the term of this Agreement, Consultant shall have in full force and effect, all licenses required of it by law for the performance of the services in this Agreement. Policy Confluence, Inc. Page 7 of 15 329 22.VENUE AND GOVERNING LAW This Agreement is made, entered into, and executed in Ventura County, California, and any action filed in any court or for arbitration for the interpretation, enforcement or other action of the terms, conditions, or covenants referred to herein shall be filed in the applicable court in Ventura County, California. The City and Consultant understand and agree that the laws of the state of California shall govern the rights, obligations, duties, and liabilities of the parties to this Agreement and also govern the interpretation of this Agreement. 23.COST RECOVERY In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party shall be entitled to recover its costs and expenses, including attorneys' fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof. 24.ENTIRE AGREEMENT This Agreement and the Exhibits attached hereto contain the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 25.CAPTIONS OR HEADINGS The captions and headings of the various Articles, Paragraphs, and Exhibits of this Agreement are for convenience and identification only and shall not be deemed to limit or define the content of the respective Articles, Paragraphs, and Exhibits hereof. 26.AMENDMENTS Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by both parties to this Agreement. 27.PRECEDENCE In the event of conflict, the requirements of the City's Request for Proposal, if any, and this Agreement shall take precedence over those contained in the Consultant's Proposal. Policy Confluence, Inc. Page 8 of 15 330 28.INTERPRETATION OF AGREEMENT Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared. 29.WAIVER No waiver of any prov1s1on of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding unless executed in writing by the party making the waiver. 30.AUTHORITY TO EXECUTE The person or persons executing this Agreement on behalf of the Consultant warrants and represents that he/she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of obligations hereunder. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. CITY OF MOORPARK Attest: Policy Confluence, Inc. POLICY CONFLUENCE, INC. Damema Mann, Director of National Engagement Page 9 of 15 331 Exhibit A INSURANCE REQUIREMENTS Prior to the beginning of and throughout the duration of Work, Consultant will maintain insurance in conformance with the requirements set forth below. Consultant will use existing coverage to comply with these requirements. If that existing coverage does not meet requirements set forth here, Consultant agrees to amend, supplement, or endorse the existing coverage to do so. Consultant acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to the City in excess of the limits and coverage required in this Agreement and which is applicable to a given loss, will be available to the City. Consultant shall provide the following types and amounts of insurance: Commercial General Liability Insurance using Insurance Services Office (ISO) "Commercial General Liability" policy form CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits are subject to review but in no event less than $1,000,000 per occurrence for all covered losses and no less than $2,000,000 general aggregate. Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than $1,000,000 per accident. If Consultant owns no vehicles, this requirement may be satisfied by a non-owned auto endorsement to the general liability policy described above. If Consultant or Consultant's employees will use personal autos in any way on this project, Consultant shall provide evidence of personal auto liability for each such person. Workers' Compensation on a state-approved policy form providing statutory benefits as required by law with employer's liability limits no less than $1,000,000 per accident or disease. Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant and "Covered Professional Services" as designated in the policy must specifically include work performed under this Agreement. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must "pay on behalf of' the insured and must include a provision establishing the insurer's duty to defend. The policy retroactive date shall be on or before the effective date of this Agreement. Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements, shall provide coverage at least as broad as specified for the underlying coverages. Coverage shall be provided on a "pay on behalf' basis, with defense costs Policy Confluence, Inc. Page 10 of 15 332 payable in addition to policy limits. Policy shall contain a provision obligating insurer at the time insured's liability is determined, not requiring actual payment by the insured first. There shall be no cross liability exclusion precluding coverage for claims or suits by one insured against another. Coverage shall be applicable to the City for injury to employees of Consultant, subconsultants, or others involved in the Work. The scope of coverage provided is subject to approval by the City following receipt of proof of insurance as required herein. Limits are subject to review but in no event less than $2,000,000 aggregate. Insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the State of California and with an A.M. Bests rating of A-or better and a minimum financial size of VII. General conditions pertaining to provision of insurance coverage by Consultant. Consultant and the City agree to the following with respect to insurance provided by Consultant: 1.Consultant agrees to have its insurer endorse the third party general liability coverage required herein to include as additional insureds the City, its officials, employees, and agents, using standard ISO endorsement CG 2010 and CG 2037 with edition acceptable to the City. Consultant also agrees to require all contractors and subcontractors to do likewise. 2.No liability insurance coverage provided to comply with this Agreement shall prohibit Consultant, or Consultant's employees, or agents, from waiving the right to subrogation prior to a loss. Consultant agrees to waive subrogation rights against the City regardless of the applicability of any insurance proceeds, and to require all contractors and subcontractors to do likewise. 3.All insurance coverage and limits provided by Contractor and available or applicable to this Agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operation limits the application of such insurance coverage. 4.None of the coverages required herein will be in compliance with these requirements if they include limiting endorsement of any kind that has not been first submitted to the City and approved in writing. 5.No liability policy shall contain any provision or definition that would serve to eliminate so-called "third party action over" claims, including any exclusion for bodily injury to an employee of the insured or of any contractor or subcontractor. 6.All coverage types and limits required are subject to approval, modification, and additional requirements by the City, as the need arises. Consultant shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect the City's protection without the City's prior written consent. Policy Confluence, Inc. Page 11 of 15 333 7. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Consultant's general liability policy, shall be delivered to city at or prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled or reduced at any time and no replacement coverage is provided, the City has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests under this or any other Agreement and to pay the premium. Any premium so paid by the City shall be charged to and promptly paid by Consultant or deducted from sums due Consultant, at the City's option. 8.Certificate(s) are to reflect that the insurer will provide thirty (30) day notice to the City of any cancellation or reduction of coverage. Consultant agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation or reduction of coverage imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the certificate. 9.It is acknowledged by the parties of this Agreement that all insurance coverage required to be provided by Consultant or any subcontractor, is intended to apply first and on a primary, non-contributing basis in relation to any other insurance or self-insurance available to the City. 10.Consultant agrees to ensure that subcontractors, and any other party involved with the Work who is brought onto or involved in the Work by Consultant, provide the same minimum insurance required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subcontractors and others engaged in the Work will be submitted to the City for review. 11.Consultant agrees not to self-insure or to use any self-insured retentions or deductibles on any portion of the insurance required herein and further agrees that it will not allow any contractor, subcontractor, Architect, Engineer, or other entity or person in any way involved in the performance of Work contemplated by this Agreement to self-insure its obligations to the City. If Consultant's existing coverage includes a deductible or self-insured retention, the deductible or self insured retention must be declared to the City. At that time, the City shall review options with the Consultant, which may include reduction or elimination of the deductible or self-insured retention, substitution of other coverage, or other solutions. 12.The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City will negotiate additional compensation proportional to the increased benefit to the City. Policy Confluence, Inc. Page 12 of 15 334 13.For purposes of applying insurance coverage only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement. 14.Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with an insurance requirement in no way imposes any additional obligations to the City nor does it waive any rights hereunder in this or any other regard. 15.Consultant will renew the required coverage annually as long as the City, or its employees or agents face an exposure from operations of any type pursuant to this Agreement. This obligation applies whether or not the Agreement is cancel ed or terminated for any reason. Termination of this obligation is not effective until the City executes a written statement to that effect. 16.Consultant shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Consultant's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to the City within five days of the expiration of coverage. 17.The provisions of any Workers' Compensation or similar act will not limit the obligations of Consultant under this Agreement. Consultant expressly agrees not to use any statutory immunity defenses under such laws with respect to the City, its employees, officials and agents. 18.Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all inclusive. 19.These insurance requirements are intended to be separate and distinct from any other provision in this Agreement and are intended by the parties here to be interpreted as such. 20.The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts or impairs the provisions of this section. 21.Consultant agrees to be responsible for ensuring that no contract used by any party involved in any way with the Work reserves the right to charge the City or Consultant for the cost of additional insurance coverage required by this Policy Confluence, Inc. Page 13 of 15 335 Agreement. Any such provisions are to be deleted with reference to the City. It is not the intent of the City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against the City for payment of premiums or other amounts with respect thereto. 22.Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the work performed under this Agreement. The City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve the City. Policy Confluence, Inc. Page 14 of 15 336 Exhibit B CITY OF MOORPARK Scope of Work Requirement for Professional Services Agreements Compliance with California Government Code Section 7550 Consultant shall sign and include this page in any document or written reports prepared by Consultant for the City of Moorpark (City) to which California Government Code Section 7550 Government Code§ 7550) applies. Government Code §7550 reads: a)Any document or written report prepared for or under the direction of a state or local agency, that is prepared in whole or in part by nonemployees of the agency, shall contain the numbers and dollar amounts of all con`racl::_ subcontracts relating to the preparation of the document or written report; if the total cost for the work performed by nonemployees of the agency exceeds five thousand dollars ($5,000). The contract and subcontract numbers and dollar amounts shall be contained in a separate section of the document or written report. b) When multiple documents or written reports are the subject or product of the contract, the disclosure section may also contain a statement indicating that the total contract amount represents compensation for multiple documents or written reports." For all Professional Services Agreement with a total dollar value in excess of $5,000, a signed and completed copy of this form must be attached to all documents or completed reports submitted to the City pursuant to the Scope of Work. Does the dollar value of this Professional Services Agreement exceed $5,000? Yes 0 No If yes, then the following information must be provided in compliance with Government Code§7550: 1. Dollar amount of Agreement/Contract: $ W01 I1D 23 2. Dollar amount of Subcontract: 3. Does the total contract amount re resent compensation for mini vo documents or written reports?>OB Yes 0 No I have read the foregoing Code section and will comply with Government Code §7550. 9(15/0\--o(3- Date Policy Confluence, Inc.Page 15 of 15 337 Polco NRC Policy Confluence, Inc. (dba Polco & National Research Center, Inc.) ENTERPRISE SERVICES AGREEMENT Exhibit C THIS ENTERPRISE SERVICES AGREEMENT (this "Agreement") is effective as of _____ , 20_ between Policy Confluence, Inc., a Delaware corporation ("Polco" or "Company"), and . a [legal entity/description of municipality] ("Customer"). This Agreement includes and incorporates the Company's Website :rerms of Use (the "Terms of Use" found at https//info.polco.us/eula) and Survey Product Terms of Use (the 'Terms of Use" found at�=�="'-'� r-c com/terms-of-use/) and the Company's privacy policy (the "Privacy Policy" found at bttps//info.polco.us/privacy and), which contain, among other things, warranty disclaimers, liability limitations, and use limitations. WHEREAS, Customer desires to engage Polco to conduct The National Community Survey ™ (The NCS); WHEREAS, Customer wishes to procure from Polco the services described herein, and Polco wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1.Definitions. "Authorized User" means each of the individuals authorized to use the Services (defined below in Section 2.1) or Polco Materials pursuant to the terms and conditions of this Agreement, or any additional individuals or Persons authorized to use the Services or Polco Materials as approved solely by Polco, as set forth in Schedule A. "Customer Data" means, information, data and other content, other than Resultant Data in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data or content by or through the Services. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity. "Polco Materials" means any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Polco in connection with the Services or otherwise comprise or relate to the Services. For the avoidance of doubt, Polco Materials include Resultant Data and any information, data or other content derived from Polco's monitoring of Customer's access to or use of the Services, but do not include Customer Data. "Process" means to take any action or perform any operation or set of operations that the Services 1 338 Polco NRC are capable of taking or performing on any data, information or other content. "Processing" and "Processed" have correlative meanings. "Representatives" means, with respect to a party, that party's and its affiliates' employees, officers, directors, consul tants, agents, independent contractors, service providers, and legal advisors. "Resultant Data" means information, data and other content that is derived by or through the Services from Processing Customer Data, including, without limitation, statistics and Services analytics, and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content. 2.Services. 2.1. Services. The Company offers a variety of and products and services accessible through the Company's website https://polco.us (the "Website") free of charge including promoting civic engagement by providing tutorials, example questions, sample result dashboards, and a library of best civic engagement practices and other such functionality as may be provided from time to time (collectively, the "Free Content and Services"). During the Term (defined below in Section 7.1) and subject to the and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, Polco shall use commercially reasonable efforts to provide to Customer and its Authorized Users (a) the Free Content and Services, and (b) any custom survey services as described in the attached Schedule A and this Agreement (the "Custom Services," together with Free Content and Services, the "Services"). Palco will use commercially reasonable efforts to make the Services available to the Customer twenty-four (24) hours per day, seven (7) days per week every day of the year, except for: (i) Service downtime or degradation due to a Force Majeure Event (defined below in Section 12); (ii) any other circumstances beyond Polco's reasonable control, including Customer's or any Authorized User's use of third party materials or use of the Services other than in compliance with the express terms of this Agreement or the Terms of Use; and (iii) any suspension or termination of Customer's or any Authorized Users' access to or use of the Services as permitted by this Agreement or the Terms of Use. 2.2. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties: (a) Company has and will retain sole control over the operation, provision, maintenance, and management of the Services; and (b) Customer has the responsibility for making all arrangements necessary for Customer to have access to the Website and ensuring that all persons who access the Website through Customer's internet connection are aware of this Agreement, the Terms of Use, and the Privacy Policy, and comply therewith. 2.3. Changes. Polco reserves the right, in its sole discretion, to make any changes to the Services or Polco Materials that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of Polco's services to its customers, or (b) to comply with applicable law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services or Polco Materials. The parties shall evaluate and, if agreed, implement all such requested changes. No requested changes will be effective unless and until memorialized in a written change order signed by both parties. 2.4. Suspension or Termination of Services. Polco may suspend, terminate or otherwise deny Customer's or any Authorized User's access to or use of all or any part of the Services or Polco Materials if: (a) Polco believes, in its sole discretion, that Customer or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Services or Polco Materials beyond the scope of the rights granted or for a purpose not authorized under this Agreement; or (b) this Agreement expires or is terminated. This Section 2.4 does not limit any of Polco's other rights or remedies, whether at law, in equity or under this Agreement. 2.5. Applicability of Additional Agreements. As a user of Company's Website, Customer is subject to the Terms of Use and the Privacy Policy as are in effect from time to time. In the event of any conflict 2 339 Polco NRC between this Agreement, the Terms of Use and Privacy Policy, this Agreement shall first govern, followed by the Terms of Use and the Privacy Policy. 3.Authorization and Customer Restrictions. 3.1. Authorization. Subject to and conditioned on Customer's payment of the fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Polco hereby authorizes Customer to access and use, solely during the Term, the Services and Polco Materials as Polco may supply or make available to Customer. This authorization is non-exclusive and, other than as may be expressly set forth in Section 13.6, non-transferable. Notwithstanding the foregoing, Polco hereby grants to Customer a perpetual, royalty-free, non-transferable license to use any tangible Polco Materials provided to Customer by or through the Services during the Term, which license shall survive the termination of this Agreement. 3.2. Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Palco Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits: (a)copy, modify or create derivative works or improvements of the Services or Polco Materials; (b)rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Palco Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c)reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; (d)bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid access credentials; (e)damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or Polco's provision of services to any third party, in whole or in part; (f)access or use the Services or Palco Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Polco customer), or that violates any applicable law; (g)access or use the Services or Palco Materials for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to Polco's detriment or commercial disadvantage; or (h)otherwise access or use the Services or Palco Materials beyond the scope of the authorization granted under Section 3.1. 3.3. Customer Responsibilities. Except as otherwise determined by Palco, Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). In the event Palco obtains or provides any such Equipment, Palco shall only be responsible for maintaining such Equipment. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, 3 340 POICO NRC passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent. 4.Fees; Payment Terms. 4.1. Fees. Customer shall pay Polco the fees ("Fees") for the Services on or prior to the date due set forth on Schedule A, which shall be payable to Polco in US dollars in the amounts and pursuant to the payment schedules set forth on Schedule A. To the extent Fees are not set forth on Schedule A, Polco may, in its sole discretion, modify and increase Fees upon providing written notice to Customer at least sixty (60) calendar days prior to the commencement of any Renewal Term, and the applicable Schedule A will be deemed amended accordingly. 4.2. Taxes. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Polco's income. 4.3. Late Payment. If Customer fails to make any payment when due, then a 1.5% charge per month (or the applicable amount allowed by law, whichever is less) shall be assessed on any amount past due. Furthermore, should Customer fail to settle amounts past due within thirty (30) days of Customer's invoice receipt, Polco may, without notice, (i) suspend performance of the Services until all past due amounts and interest thereon have been paid, or (ii) terminate this Agreement. Customer shall reimburse Polco for all costs in collecting any late payments or interest, including actual attorneys' fees, court costs and collection agency fees. 4.4. No Deductions or Setoffs. All amounts payable to Polco under this Agreement shall be paid by Customer to Polco in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law). 5.Intellectual Property Rights. 5.1. Ownership of Services and Polco Materials. All right, title and interest in and to the Services, Polco Materials and the Resultant Data, including all Intellectual Property Rights therein, are and will remain with Polco. Customer has no right, license or authorization with respect to any of the Services or Polco Materials except as expressly set forth in Section 3.1. All other rights in and to the Services and Polco Materials are expressly reserved by Polco and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Polco an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto. 6.Confidentiality. 6.1. Confidential Information. In connection with this Agreement, each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including, but not limited to, information relating to the Disclosing Party's technology, software, code, trade secrets, know how, business operations, plans, strategies, customers, and pricing, in each case whether or not marked, designated or otherwise identified as "Confidential". Without limiting the foregoing, all Polco Materials are the Confidential Information of Polco and the financial terms of this Agreement are the Confidential Information of Polco. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party withouf restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public 4 341 Polco NRC other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information. 6.2. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for three (3) years after the Term: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of performing obligations under and in accordance with this Agreement; (ii) are informed of the confidential nature of the Confidential Information and bound by written confidentiality and restricted use obligations at least as protective as the terms set forth in this Section 6.2; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and (d) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 6. 6.3. Residual Works. In addition to other rights and provisions in this Agreement, Palco shall be free to use for any purpose the Resultant Data resulting from access to or work with the Confidential Information or any information or ideas provided by Customer with respect to the Services. 6.4. Feedback. The Customer may from time to time provide suggestions, comments or other feedback ("Feedback") to Palco with respect to the Services. Both parties agree that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by Customer, shall not, absent a separate written agreement, create any confidentiality obligation for Palco. Furthermore, except as otherwise provided herein or in a separate subsequent written agreement between the parties, Palco will own the Feedback and shall be free to use, disclose, protect (e.g., patent, copyright, trademark, trade secret, etc.), reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise. 6.5. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.5, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose. 7.Term and Termination. 7.1. Term. The initial term of this Agreement shall be for a period of twelve (12) months from the Effective Date ("Initial Term"). The Initial Term shall automatically renew for additional successive twelve (12)month periods (each, a "Renewal Term", and together with the Initial Term, the "Term"), unless earlier terminated pursuant to this Agreement or either party gives the other party written notice of non renewal at least thirty (30) days prior to the expiration of the then-current Term. 7.2. Termination. In addition to any other express termination right set forth elsewhere in this Agreement: (a)Palco may terminate this Agreement, effective immediately upon written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues 5 342 Polco NRC more than thirty (30) days after the date such amounts are due; or (ii) breaches any of its obligations under Section 3.2 (Limitations and Restrictions) or Section 6 (Confidentiality); (b)either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; or (c)either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 7.3. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (a)all rights, licenses, consents and authorizations (including, without limitation, access to the Services) granted by either party to the other hereunder will immediately terminate; (b)Customer shall immediately cease all use of any Services and Polco Materials and (i) promptly return to Polco, or at Polco's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Polco's Confidential Information; and (ii) permanently erase Polco's Confidential Information from all systems Customer directly or indirectly controls; except to the extend and for so long as required by applicable law and all such information and materials will remain subject to all confidentiality requirements of this Agreement; (c)Polco may disable all Customer and Authorized User access to the Services; and (d)if Polco terminates this Agreement pursuant to Section 7.2, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable. 7.4. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.2, Section 5, Section 6, Section 7.3, this Section 7.4, Section 8, Section 9, Section 10, Section 11, and Section 13. 8.Representations and Warranties. 8.1. Representations and Warranties. Customer represents and warrants to Polco that it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; and Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Polco and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law. Additionally, Customer represents and warrants that Customer will use (and will cause any Authorized Users to use) the Services and Polco Materials only in compliance this Agreement, and all applicable laws and regulations. 6 343 Polco NRC 8.2. DISCLAIMER OF WARRANTIES. ALL SERVICES ARE PROVIDED "AS IS" AND POLCO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND POLCO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, POLCO MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ANY THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. 9.Indemnification. 9.1. Indemnification. Customer shall indemnify, hold harmless and defend Polco and its affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all losses, liability, claims, damages, actions, penalties, costs, or expenses of whatever kind, including actual attorneys' fees and the costs of enforcing any right to indemnification under this Agreement, arising out of or relating to (a) any actual or alleged infringement of a third party's Intellectual Property Rights from use of Customer Data; (b) any act or omission by Customer or any Authorized Users in connection with use of the Services; c) Customer's or any Authorized User's use of the Services or Polco Materials other than as expressly allowed by this Agreement; (d) Customer's or any Authorized User's breach of this Agreement; or (e) any actual or alleged infringement of a third party's Intellectual Property Rights resulting from Customer's or any Authorized User's modifications and/or combinations of the Services or Polco Materials. Customer shall inform Polco as soon as practicable of any claim or action alleging such infringement or unauthorized disclosure, and shall not settle any claim or action unless Polco consents to such settlement in writing. 10.Mitigation. 10.1. Mitigation. If any of the Services or Polco Materials are, or in Polco's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Services or Polco Materials is enjoined or threatened to be enjoined, Polco may, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use the Services and Polco Materials materially as contemplated by this Agreement; (b) modify or replace the Services and Polco Materials, in whole or in part, to make the Services and Polco Materials non-infringing, or (c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Polco Materials, and require Customer to immediately cease any use of the Services and Polco Materials or any specified part or feature thereof. THIS SECTION 10.1 SETS FORTH CUSTOMER'S SOLE REMEDIES AND POLCO'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND POLCO MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. 11.Limitations of Liability. 11.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL POLCO OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY 7 344 Polco NRC OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 11.2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF POLCO AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID BY THE CUSTOMER TO POLCO WITHIN THE IMMEDIATELY PRECEDING 12 MONTHS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 12.Force Majeure. In no event will Palco be liable or responsible to Customer, or be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Polco's reasonable control (a "Force Majeure Event"), including, but not limited to, failures or interruptions of communications facilities or equipment of third parties, labor strikes or slowdowns, shortages of resources or materials, acts of God, natural disasters, fire, world events, delay or disruption of shipment or delivery, trespass or interference of third parties, or similar events or circumstances outside Polco's reasonable control, whether or not otherwise enumerated. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more. 13.General Provisions. 13.1. Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement. 13.2. No Agency. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. 13.3. Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing by electronic mail or other electronic means to the address of the party specified by the parties from time to time. 13.4. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. 13.5. Entire Agreement. This Agreement, including all Schedules attached hereto, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. 13.6. Assignment. Customer shall not assign or otherwise transfer any of its rights or obligations under this Agreement without Polco's prior written consent, which consent Palco may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer will be deemed to be a transfer of rights or obligations under this Agreement for which Polco's prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 13.6 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. 8 345 Polco NRC 13.7. Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 13.2): If to Palco: E-mail: Attention: Policy Confluence, Inc. 8001 Terrace Avenue, #201 Middleton, WI 53562 alex@polco.us Alex Pedersen, Chief Financial Officer If to Customer: [ADDRESS] E-mail: [NOTICES CONTACT'S E-MAIL ADDRESS] Attention: [NAME AND TITLE OF OFFICER TO RECEIVE NOTICES 13.8. Notices sent in accordance with this Section 13.7 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email, (with confirmation of transmission}, if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the fifth day after the date mailed by certified or registered mail, return receipt requested, postage prepaid. 13.9. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. 13.10. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. 13.11. Governing Law; Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California. The parties submit all of their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the state and/or federal courts located in Ventura County, the State of California. 13.12. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. 13.13. Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 3.2 or Section 6 would cause Palco irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Palco will be entitled to equitable relief, without any requirement to post a bond. Such remedies are in addition to all other remedies that may be available at law, in equity or otherwise. 13.14. Counterparts. This Agreement may be executed in counterparts, including by facsimile or pdf, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. 14.Insurance Requirements 9 346 Polco NRC 14.1 Comprehensive General Liability, The Consultant shall procure and keep in force during the duration of this contract a policy of Comprehensive General Liability insurance insuring the Consultant against any liability for personal injury, bodily injury, or death arising out of the performance of services hereunder and against liability for property damage with a combined single limit of at least $1,000,000 each occurrence and $2,000,000 aggregate Policies described above shall be for the mutual and joint benefit and protection of the Consultant and the Client. 14.1.1 14.1.2 Other Insurance, The Consultant shall procure and keep in force during the term of the Agreement Worker's Compensation and such other insurance as may be required by any law, ordinance or governmental regulation. Prior to commencement of work, the Consultant shall furnish to the Client certificates of insurance policies evidencing the required coverages if the Client so desires. [Signature Page Follows] 10 347 Polco NRC IN WITNESS WHEREOF, the parties hereto have executed this Enterprise Services Agreement as of the date first above written. POLICY CONFLUENCE, INC. CUSTOMER: By: ____________ _ Name: ____________ _ Title: _____________ _ [Signature Page to Enterprise Services Agreement] 348 Feature or Service The National Community Survey* ( See schedule B, Scope of Work for pricing details) Full value for two iterations of The NCS Polee NRC SCHEDULE A SERVICES AND FEES Cost Frequency $20,200 for Bi-annually (data each survey collection in November project of even years) $40,400 *Reflects 10% discount for ICMA members, NLC members, and repeat clients Example Payment Schedules {pending renewal) Term Payment Due Date Payment for 2020 survey $20,200 December 1, 2020 Payment for 2022 survey $20,200 December 1, 2022 [A-1) 349 Polco NRC SCHEDULE B SCOPE OF WORK The National Community Survey ™ (The NCS) is the premier citizen survey service from ICMA, National Research Center, Inc. (NRC) and Polco. It is turned to by more jurisdictions than any other service. The NCS ™ basic service includes all aspects of conducting the survey; all printing and mailing costs, ongoing consultation with staff about the survey process, sample selection, preparation, mailing and programming (with a confidence interval of 95% and an approximate margin of error of plus or minus 5%), programming and hosting the web version of the survey, data entry and analysis. NRC uses all best practice methods in survey research, including over sampling multi-family units to decrease non-response bias, using a multi-contact method to improve response rates, and statistical weighting of the survey data. The NCS ™ Basic Service Instrument development; assistance with crafting custom questions; multi-part mailings, data entry and analysis of returned surveys; draft reports for review; final reports that include national benchmark comparisons, analysis and detailed methods; technical assistance in understanding survey results via phone and email with key staff for The NCS ......................................................................................................................... $16,000 Online Opt-in Survey on Polco A web-only survey will be available to all Moorpark residents, you promote participation (non-scientific) ............................................................................................................. FREE Spanish translation of survey The postcards and cover letters will include a Spanish language paragraph, giving instructions in Spanish on how to complete the survey online in Spanish. (NRG will include any Spanish language responses in the reports. Hard copies of the Spanish survey would result in additional fees.) ............................................................................................ $945 PowerPoint Presentation Materials NRG staff will create a PowerPoint summary of the results for City staff to use ........................... $1,190 Custom benchmark comparisons In addition to the national benchmarks (included with The NCS Basic Service), NRG will provide a custom set of benchmark comparisons, these can be based on region and/or population size or other criteria as requested by Moorpark ............................................... $1, 120 Demographic subgroup comparisons Crosstabs will be provided in a separate report for four demographic questions by the evaluative questions on the survey. ................................................................................................. $945 [A-1] 350 Finalize survey materials Timeline for The National Community Survey™ 2nd wave mails 1st wave mails Data collection ends Postcard mails Opt-in survey opens Draft reports received Oct 23 Oct 30 Nov 6 Nov 13 Nov 20 Nov 27 Dec 4 Dec 11 Dec 18 Dec 25 Jan 1 Jan 8 Jan 15 Jan 22 Item Preparing for the Survey 0 The NCS survey process is initiated upon receipt of signed contract +NRC emails you information to customize The NCS-+ Due to NRC: Selection of add-on options -+ Due to NRC: Drafts of the optional custom questions to be included in the survey -+ Due to NRC: Zip code information and GIS boundary data 0 NRC finalizes the survey instrument and mailing materials and sends .pdf samples for your records 0 NRC generates the sample of households in your community 0 NRC prints materials and prepares mailings -+ Due to NRC: Selection of custom benchmark profile(s) (if custom benchmark add-on selected) Conducting the survey 0 Survey materials are mailed 0 Prenotification postcards sent 0 1st wave of surveys sent 0 2nd wave of surveys sent -+ Opt-in web survey link posted on your website (source link provided to you by NRC) 0 Data collection: surveys received and processed for your community -+ Due to NRC: Final count of returned postcards Date Sep 18 Sep 18 Oct 2 Oct 2 Oct 16 Oct 23 Feb 7 Oct 30 Oct 30 Nov 6 to Nov 20 Nov 6 Nov 13 Nov 20 Dec 11 Nov 13 to Dec 31 Dec 31 0 Survey analysis and report writing Dec 31 to Jan 28 During this time, NRC will process the surveys, perform the data analysis, and produce a draft report for your community. The 0 report of results will contain a description of the methodology, information on understanding the results, and graphs and tables of your results, as well as a description of NRC's database of normative data from across the U.S. and actual comparisons to your results, where appropriate. + NRC emails draft report (in PDF format) to you along with invoice for balance due on The NCS Basic Service and any additional add-on options -+ Due to NRC: community feedback on the draft report (most final reports are identical to the draft reports, except being labeled as final instead of draft) +NRC emails final report to you Legend Jan 28 Feb 4 Feb 11 +-Indicates when items from NRC are due to you -+Indicates when items from you are due to NRC ©Indicates information items 351