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HomeMy WebLinkAboutA9266 - SIMPLIFY COMPLIANCE , LLC55575.18100\40507022.1 Revised 2.9.22 Page 1 of 28 CONTRACT SERVICES AGREEMENT A9266 EHS HERO/TRAINING TODAY Employee Health and Safety Management Compliance Software THIS AGREEMENT FOR CONTRACT SERVICES (“Agreement”) is made and entered into on October 1, 2022, by and between the City of Palm Springs, a California charter city and municipal corporation (“City”), and Business & Learning Resources, a division of Simplify Compliance LLC, a Delaware limited liability company (“Contractor” or “BLR”). City and Contractor are individually referred to as “Party” and are collectively referred to as the “Parties”. RECITALS A. City requires the services of a Simplify Compliance LLC for Employee Health and Safety Management Compliance Software (“Project”). B. Contractor has submitted to City a proposal to provide Employee Health and Safety Management Compliance Software to City under the terms of this Agreement. C. Based on its experience, education, training, and reputation, Contractor is qualified and desires to provide the necessary services to City for the Project. D. City desires to retain the services of Contractor for the Project. NOW, THEREFORE, in consideration of the promises and mutual obligations, covenants, and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: AGREEMENT 1. CONTRACTOR SERVICES 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Contractor shall provide services to City as described in the Scope of Services/Work attached to this Agreement as Exhibit “A” and incorporated herein by reference (the “Services” or “Work”). Exhibit "A" includes the agreed upon schedule of performance and the schedule of fees. Contractor warrants that the Services shall be performed in a competent, professional, and satisfactory manner consistent with the level of care and skill ordinarily exercised by high quality, experienced, and well qualified members of the profession currently practicing under similar conditions. In the event of any inconsistency between the terms contained in the Scope of Services/Work and the terms set forth in this Agreement, the terms set forth in this Agreement shall govern. 1.2 Compliance with Law. Contractor shall comply with all applicable federal, state, and local laws, statutes and ordinances and all lawful orders, rules, and regulations when DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 2 of 28 performing the Services. Contractor shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. 1.3 Licenses and Permits. Contractor shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the Services required by this Agreement. 1.4 Familiarity with Work. By executing this Agreement, Contractor warrants that it has carefully considered how the Work should be performed and fully understands the facilities, difficulties, and restrictions attending performance of the Work under this Agreement. 2. TIME FOR COMPLETION The time for completion of the Services to be performed by Contractor is an essential condition of this Agreement. Contractor shall prosecute regularly and diligently the work of this Agreement according to the agreed upon schedule of performance set forth in Exhibit “A.” Neither Party shall be accountable for delays in performance caused by any condition beyond the reasonable control and without the fault or negligence of the non-performing Party. Delays shall not entitle Contractor to any additional compensation regardless of the Party responsible for the delay. 3. COMPENSATION OF CONTRACTOR 3.1 Compensation of Contractor. Contractor shall be compensated and reimbursed for the services rendered under this Agreement in accordance with the schedule of fees set forth in Exhibit “A”. The total amount of Compensation shall not exceed $60,363.00 3.2 Method of Payment. In any month in which Contractor wishes to receive payment, Contractor shall submit to City an invoice for Services in the form approved by City’s finance director. Payments shall be based on the rates set forth in Exhibit “A” for authorized services initiated. City shall pay Contractor for all expenses stated in the invoice that are approved by City and consistent with this Agreement, within thirty (30) days of receipt of Contractor’s invoice. 3.3 Changes. In the event any change or changes in the Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into: A. To provide for revisions or modifications to documents, work product, or Work, when required by the enactment or revision of any subsequent law; or B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Contractor’s profession. 3.4 Appropriations. This Agreement is subject to, and contingent upon, funds being appropriated by the City Council of City for each fiscal year. If such appropriations are not made, this Agreement shall automatically terminate without penalty to City. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 3 of 28 4. PERFORMANCE SCHEDULE 4.1 Time of Essence. Time is of the essence in the performance of this Agreement. 4.2 Schedule of Performance. All Services rendered under this Agreement shall be performed under the agreed upon schedule of performance set forth in Exhibit “A.” Any time period extension must be approved in writing by the Contract Officer. 4.3 Force Majeure. The time for performance of Services to be rendered under this Agreement may be extended because of any delays due to a Force Majeure Event, if Contractor notifies the Contract Officer within ten (10) days of the commencement of the Force Majeure Event. A Force Majeure Event shall mean an event that materially affects the Contractor’s performance and is one or more of the following: (1) Acts of God or oth er natural disasters occurring at the project site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); and (4) pandemics, epidemics or quarantine restrictions. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority. After Contractor notification, the Contract Officer shall investigate the facts and the extent of any necessary delay and extend the time for performing the Services for the period of the enforced delay when and if, in the Contract Officer’s judgment, such delay is justified. The Contract Officer’s determination shall be final and conclusive upon the Parties to this Agreement. The Contractor will not receive an adjustment to the contract price or any other compensation. Notwithstanding the foregoing, the City may still terminate this Agreement in accordance with the termination provisions of this Agreement. 4.4 Term. Unless earlier terminated in accordance with Section 4.5 of this Agreement, this Agreement shall continue in full force and effect for a period of 36 Months commencing on October 1, 2022, and ending on September 30, 2025, unless extended by mutual written agreement of the Parties. 4.5 Termination Prior to Expiration of Term. City may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Contractor. Where termination is due to the fault of Contractor and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon receipt of the notice of termination, Contractor shall immediately cease all Services except such as may be specifically approved by the Contract Officer. Contractor shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer after such notice. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Contractor shall not be entitled to payment for unperformed Services and shall not be entitled to damages or compensation for termination of Work. If the termination is for cause, the City shall have the right to take whatever steps it deems necessary to correct Contractor's deficiencies and charge the cost thereof to Contractor, who shall be liable for the full cost of the City's corrective action. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 4 of 28 Contractor may not terminate this Agreement except for cause, upon thirty (30) days written notice to City. 5. COORDINATION OF WORK 5.1 Representative of Contractor. The following principal of Contractor is designated as being the principal and representative of Contractor authorized to act and make all decisions in its behalf with respect to the specified Services: Chelsea Brookes, Director, eLearning. It is expressly understood that the experience, knowledge, education, capability, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services under this Agreement. The foregoing principal may not be changed by Contractor without prior written approval of the Contract Officer. 5.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Contractor shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the Services. Contractor shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer. 5.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, education, capability, and reputation of Contractor, its principals, and employees, were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other individual or entity to perform any Services required under this Agreement without the City's express written approval. In addition, neither this Agreement nor any interest may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement including without limitation the insurance and indemnification requirements. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. 5.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Contractor, its agents, or employees, perform the Services required, except as otherwise specified. Contractor shall perform all required Services as an independent contractor of City and shall not be an employee of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role; however, City shall have the right to review Contractor’s work product, result, and advice. Contractor shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Contractor shall pay all wages, salaries, and other amounts due personnel in connection with their performance under this Agreement and as required by law. Contractor shall be responsible for all reports and obligations respecting such personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance. Contractor shall not have any authority to bind City in any manner. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 5 of 28 5.5 Personnel. Contractor agrees to assign the following individuals to perform the services in this Agreement. Contractor shall not alter the assignment of the following personnel without the prior written approval of the Contract Officer. Acting through the City Manager, the City shall have the unrestricted right to order the removal of any personnel assigned by Contractor by providing written notice to Contractor. Name: Title: N/A N/A 5.6 California Labor Code Requirements. A. Contractor is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the Services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Contractor agrees to fully comply with such Prevailing Wage Laws. Contractor shall defend, indemnify, and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). B. If the Services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then p ursuant to Labor Code Sections 1725.5 and 1771.1, the Contractor and all subcontractors performing such Services must be registered with the Department of Industrial Relations. Contractor shall maintain registration for the duration of the Project and require the same of any subcontractors, as applicable. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Contractor’s sole responsibility to comply with all applicable registration and labor compliance requirements. 6. INSURANCE Contractor shall procure and maintain, at its sole cost and expense, policies of insurance as set forth in the attached Exhibit "B", incorporated herein by reference. 7. INDEMNIFICATION. 7.1 Indemnification. To the fullest extent permitted by law, Contractor shall defend (at Contractor’s sole cost and expense), indemnify, protect, and hold harmless City, its DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 6 of 28 elected officials, officers, employees, agents, and volunteers (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (Contractor’s employees included), for damage to property, including property owned by City, for any violation of any federal, state, or local law or ordinance or in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct committed by Contractor, its officers, employees, representatives, and agents, that arise out of or relate to Contractor’s performance of Services or this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the Indemnified Parties. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Contractor’s indemnification obligation or other liability under this Agreement. Contractor’s indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. 7.2 Design Professional Services Indemnification and Reimbursement. If Contractor’s obligation to defend, indemnify, and/or hold harmless arises out of Contractor’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Contractor’s indemnification obligation shall be limited to the extent which the Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Contractor in the performance of the Services or this Agreement, and, upon Contractor obtaining a final adjudication by a court of competent jurisdiction, Contractor’s liability for such claim, including the cost to defend, shall not exceed the Contractor’s proportionate percentage of fault. 8. RECORDS AND REPORTS 8.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer reports concerning the performance of the Services required by this Agreement, or as the Contract Officer shall require. 8.2 Records. Contractor shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Contractor shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 8.3 Ownership of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of this Agreement shall be the property of City. Contractor shall deliver all above-referenced documents to City upon request of the Contract Officer or upon the termination of this Agreement. Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials. Contractor may retain copies DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 7 of 28 of such documents for Contractor's own use. Contractor shall have an unrestricted right to use the concepts embodied in such documents. For the avoidance of doubt, the provisions of this section shall not apply to intellectual property owned, licensed, or developed by the Contractor and contained within the applications or products licensed under this Agreement, and the ownership thereof shall be governed by the Terms of Use included as Schedules 1 and 2 to Exhibit A. 8.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Contractor in the performance of Services under this Agreement and specifically applicable to the City or its employees shall not be released publicly without the prior written approval of the Contract Officer. 8.5 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, Contractor shall provide City, or o ther agents of City, such access to Contractor’s books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Contractor’s performance under this Agreement. Contractor shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder. 9. ENFORCEMENT OF AGREEMENT 9.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 9.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. 9.3 Waiver. No delay or omission in the exercise of any right or remedy of a non - defaulting Party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of City shall be deemed to waive or render unnecessary City’s consent to or approval of any subsequent act of Contractor. Any waiver by either Party of any default must be in writing. No such waiver shall be a waiver of any other default concerning the same or any other provision of this Agreement. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 8 of 28 9.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative. The exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. 9.5 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment, or any other remedy consistent with the purposes of this Agreement. 9.6 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert contractor fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding. 10. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 10.1 Non-Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Contractor, or any successor-in-interest, in the event of any default or breach by City or for any amount which may become due to the Contractor or its successor, or for breach of any obligation of the terms of this Agreement. 10.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement, nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one (1) year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. 10.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a “prohibited basis”). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City’s lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 9 of 28 Section 7.09.040, including without limitation the provision of benefits, relating to non- discrimination in city contracting. 11. MISCELLANEOUS PROVISIONS 11.1 Notice. Any notice, demand, request, consent, approval, or communication that either Party desires, or is required to give to the other Party or any other person shall be in writing and either served personally or sent by pre-paid, first-class mail to the address set forth below. Notice shall be deemed communicated seventy-two (72) hours from the time of mailing if mailed as provided in this Section. Either Party may change its address by notifying the other Party of the change of address in writing. To City: City of Palm Springs Attention: City Manager/ City Clerk 3200 E. Tahquitz Canyon Way Palm Springs, California 92262 To Contractor: Business & Learning Resources Attn: VP Legal 5511 Virginia Way, Suite 150 Brentwood, TN 37027 11.2 Integrated Agreement. This Agreement constitutes the entire understanding between the Parties and supersedes and cancels all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement. 11.3 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement signed by all Parties. 11.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be int erpreted to carry out the intent of the Parties. 11.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assignees. 11.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third -party beneficiary or otherwise, upon any entity or person not a party to this Agreement. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 10 of 28 11.7 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. 11.8 Authority. The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement on behalf of Parties and that by so executing this Agreement the Parties are formally bound to the provisions of this Agreement. 11.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. [SIGNATURES ON NEXT PAGE] DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 11 of 28 SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND BUSINESS & LEARNING RESOURCES (“BLR”), A DIVISION OF SIMPLIFY COMPLIANCE LLC IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. CONTRACTOR: By: _______________________________________ By: _________________________________________ Signature Signature (2nd signature required for Corporations) Date: Date: CITY OF PALM SPRINGS: APPROVED BY CITY COUNCIL: Date: 9/29/2022 Item No. __1 T.__ APPROVED AS TO FORM: ATTEST: By: ___________________________ By: _______________________________ City Attorney City Clerk APPROVED: By: _______________________________ Date: City Manager – over $50,000 Deputy/Assistant City Manager – up to $50,000 Director – up to $25,000 Manager – up to $5,000 DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 10/27/2022 | 11:28 AM PDT 10/27/2022 | 11:43 AM PDT 10/28/2022 | 1:22 PM PDT 55575.18100\40507022.1 Revised 2.9.22 Page 12 of 28 EXHIBIT “A” Subscribed Digital Products – EHS Hero, TrainingToday Product # of Sites & Learners Included Functionality Components EHS Hero Compliance & Management Suite 1 • Virtual Assistant - Scheduler Tool - Actions Tool - Policies & Procedures Tool - Reports Tool • Incident Reporting Tool • Lock Out / Tag Out Tool • Job Safety Analysis Tool • Equipment Management Tool • SDS Management Tool • Training Management Tool Training Today LMS Platinum 500 Learners • CAL/OSHA Workplace Safety Library Grant of License – EHS Hero BLR hereby grants to Customer a limited, non-exclusive, non-transferable license to access and use the Services during the Term, in accordance with the terms and conditions of this Agreement (the “License”) for its own internal purposes. Except for specific materials that are intended to be shared as described in the Terms and Conditions attached hereto as Schedule 1, none of these materials may be disseminated, posted, or made available on an Intranet or Internet site(s) for direct access by persons outside of Customer’s organization without permission and specific license by BLR. Customer’s use of the Services will be subject to the Terms and Conditions attached hereto as Schedule 1. Grant of License – TrainingToday BLR grants Customer a limited, non-exclusive, non-transferable right to access and use BLR's training programs, content-customization, and training-management tools solely for Customer's own internal employee training purposes and limited to the quantity of users specified in this Agreement, commencing on the Effective Date and for the specified Term. Product Delivery & Support – EHS Hero BLR will provide Client with access to EHS Hero within two (2) business days of receipt of completed agreement and will coordinate all implementation project management activities as directed by Client. BLR will provide client with product and technical support during the agreement term to include: DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 13 of 28  Downloadable user guides and instructional videos  Live phone support  Email support Product Delivery & Support – TrainingToday BLR will provide Customer with the following: a. Content will be updated as necessary to reflect changes in laws and regulations affecting course content. b. Customer shall have access to BLR’s customer support and technical support, either online or by telephone, during its posted customer support hours, subject to the limitations of the Service Level Agreement attached hereto as Schedule 3. Annual Subscription Fees Products Annual Subscription Fees Total Subscription Fees EHS Hero Compliance & Management Suite TrainingToday LMS Platinum $20,131 $60,394 Scope of Implementation Services – EHS Hero BLR will provide all project management services to ensure the timely and successful deployment of subscribed digital products to include two hours of virtual training upon implementation. Data conversion services can be requested by Client. This can be provided and would be documented with a scope of work by BLR during implementation and quoted separately. BLR will provide technical assistance and direction if Client elects to convert historical data in-house. Creation of data integrations by BLR for Client (e.g., data file sent to Client’s worker’s compensation provider) will be individually documented and quoted to reflect a one-time development fee based on the estimated number of hours of professional services required for each integration project and an hourly rate of $150. BLR will provide ongoing professional services for the maintenance of each integration (e.g., updates, revisions, etc.) which will be billed at an annual rate of 20% of the one-time development fee. The annual maintenance fee for each integration will be invoiced to coincide with Client’s annual subscription fees for digital products. Agreement Term DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 14 of 28 Subscription Term: 36 months with no annual increase Invoicing  Year 1 Invoice: $20,131  Year 2 Invoice: $20,131  Year 3 Invoice: $20,131 Applicable sales tax will be added to both Annual Subscription and One-Time Fees upon invoicing. BLR will invoice Client via email for the first year’s subscription fee upon receipt of completed agreement. Invoices for years 2 and 3 will likewise be sent via email to Client in advance of the agreement anniversary date. Client Billing Contact: Laura Michaels Laura.michaels@palmspringsca.gov 760-323-8216 Payment Term: Net 30 days This Exhibit shall include the following attachments: Exhibit A – Schedule 1 – EHS Hero Terms Exhibit A – Schedule 2 – TrainingToday Terms Exhibit A – Schedule 3 – Service Level Agreement DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 15 of 28 Exhibit A – Schedule 1 Terms and Conditions – EHS Hero These Terms and Conditions shall apply to Customer’s use of the BLR Services licensed under this Service Agreement. As used herein, “You” shall refer to Customer or customer’s individual licensed users. “Us” shall refer to BLR, as hereinbefore defined. In the event of conflict between the terms and conditions in Exhibit “A” – Schedule 1 – EHS Hero Services Agreement and the terms and conditions in the Agreement, the Agreement shall govern. 1.1 Service Agreement. You agree to abide by all the provisions in this Service Agreement in order to remain an authorized user of the Services, and your use of the Services constitutes your agreement to abide by these provisions. 1.2 Passwords. Sharing or distributing your username and password to others for access to the Services is prohibited and may result in termination of your account. BLR makes multi-user and site licenses available for subscribers needing broader access. 1.3 Changes. The Terms and Conditions in this document will control over the Terms and Conditions expressed on the site. 1.4 Changes to Services. BLR is constantly changing, updating, and improving its Services. BLR reserves the right, in its sole discretion, to change, limit, or discontinue any aspect, content, tool, or feature that is a part of the Services. 1.5 Restrictions, suspensions. BLR further reserves the right, in its sole discretion, to restrict the use of the Service as well as suspend or revoke your rights to use the Services based on BLR's belief that your use of the Services violates that permitted by this Service Agreement or applicable law. 2. Rights in Service Content and the Service 2.1 Copyright. The Services, together with all content and tools provided by BLR on the Services, are protected by copyright, trademark and/or other applicable intellectual property and proprietary rights laws and are owned, controlled, and/or licensed by BLR. All trademarks appearing on the Services are the property of their respective owners. You agree not to use any trademarks or copyrighted material without express written permission of BLR. You agree that you do not acquire any ownership rights in any downloaded content. 2.2 Personal use. You may search, retrieve, display, download, and print content from the Services solely for your personal research and reference purposes only (either for the benefit of yourself or for the benefit of your employer). You shall make no other use of the content without the express written permission of BLR. If you wish to add users within your organization, multiple-user accounts and site licenses can be obtained by calling 800-727-5257. 2.3 Prohibited uses. You will not modify, publish, distribute, transmit, participate in the transfer or sale, translate, create derivative works, or in any way exploit other than as set forth herein, any of the content, tools, or technology, in whole or in part, found on the Services. Further, you shall not engage in any systematic downloading or other activity directed towards any of the content, in whole or in part, found on the Services that would create any electronic database or archive containing such content. You are also prohibited from using frames or iFrames when accessing the Services as these often cause problems in the authentication process. In searching the Services, you shall not employ any automated search tools, including so called "crawlers," "bots" and "spiders" that programmatically access and extract content in order to repurpose or resell the Services content and tools, nor may you "scrape" and/or reformat any information off the services HTML pages or XML interface, including meta tags, DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 16 of 28 results pages, abstracts, and documents without the express written permission of BLR. Those seeking more information on permission for systematic access (automated queries meta-search, etc.) should go to the FAQ Contact Us area for each Service. 2.4 Policies and Forms. The Services contain sample policies, forms, and checklists that you may adapt to your organization. You are granted a specific license to modify such documents or to incorporate them into your organization's policy handbooks. However, this license does not include the right to resell the documents, to create a product for sale, or to share them outside of your organization. This license is perpetual. 2.5 Training materials. The Services contain training materials that you may download and use for internal training within your organization. You are granted a specific license to modify such materials to fit your organization's policies, procedures, and workplace features. You may display such training materials within your organization. However, they may not be distributed via your organization's intranet or the internet or loaded into a learning management system without specific written permission from BLR. This license shall remain in effect so long as you remain a subscriber of the Services. Certain training materials are available as versions that include audio narration. These materials may be played via the BLR websites for classroom use or for training of individuals. However, they may not be downloaded, stored on your intranet or the internet, or loaded into a learning management system without specific written permission from BLR. 2.6 Internal newsletters. The Services contain tools to create and distribute newsletters for employees or supervisors. You are granted a specific license to distribute such materials within your organization. 2.7 Free Ezines. A subscription to this site also includes a free subscription to our daily Ezine newsletter. If you choose to cancel your trial subscription or not renew your paid subscription, your free Ezine subscription will continue without interruption. To limit spam complaints, our Ezine e-mail lists are "double opt-in". That means you will receive an e-mail confirming your subscription. You must click the link in this e-mail to begin receiving your Ezines. To unsubscribe to the Ezine newsletter, use the link provided at the bottom of each newsletter. 2.8 Third party use. Consultants, Professional Employee Organizations, associations, and similar entities may not distribute any of these materials to their clients or members without an Enhanced Use License or other written permission from BLR. To obtain such permission and information about associated pricing, please call 800-727-5257. 3. User Activities and Privacy of User Information on the Service 3.1 Lawful uses. You will use the Services and any tools, content, material, or information found on the Services solely for lawful purposes. You shall not upload to, distribute to or through, or otherwise disseminate through the Service any material or information of any kind that is libelous, defamatory, obscene, pornographic, abusive, or otherwise violates any law or infringes or violates any privacy or other rights of any other person or entity, or contains a solicitation of funds, advertising, or a solicitation for goods or services. 3.2 Rights in submissions. You warrant that any material or information that you make available through the Services, including, for example, postings to forums and documents you may post to your work area, is solely your original work, or that you have all necessary rights to make the material or information of any other person or entity available on the Services. You will be solely responsible for the content of any material or information that you make available through the Services. You will also be liable for any damage resulting from your making any material or information available through the Services. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 17 of 28 3.3 License. Except as set forth below, by making any material or information available through the Services, for example, in postings to chat areas and forums, you automatically grant to BLR a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, distribute and sublicense any such material or information (in whole or in part) and/or to incorporate it in other works regardless of form, media, or technology. By making any material or information available through the Services, you also grant to users other than yourself the right and license to access, view, store, or reproduce your material and information for that user's personal, internal use. BLR shall acquire no rights to personal documents that you or authorized parties post to your work area. 3.4 Review of submissions. BLR has no obligation to, and does not and cannot, review every item of material or information that you and users other than you make available through the Services, and BLR is not responsible for any content of this material or information. However, BLR reserves the right to delete, move, or edit any material or information that it deems, in its sole discretion, unacceptable, libelous, defamatory, obscene, pornographic, abusive, or otherwise in violation of any law or that infringes or violates any privacy or other rights of any person or entity. Further, BLR reserves the right at all times to disclose any material or information as necessary to satisfy any law, regulation, or governmental request. 3.5 User data. BLR reserves the right to collect and use data about you and your use of the Service for purposes such as, for example, performing statistical analyses to assist us in improving the Service. BLR further reserves the right to distribute such data in forms that do not identify you individually or reveal your identity. All such use and distribution shall be in accordance with BLR's privacy policy, which is incorporated herein by reference. Please familiarize yourself with the privacy policy by clicking on "Privacy Policy" (or another similar link) at the bottom of the Services' home pages. Nothing herein shall prevent BLR and its marketing partners from contacting you by e-mail, phone, or direct mail with offers, information, and other communications and all such contact is expressly approved by you. Nothing herein shall prevent BLR from complying with valid requests by governmental authorities investigating civil or criminal matters. 3.6 Copyright, DMCA, takedown claims. If you believe that content posted on or through the website has been used in a manner that constitutes copyright infringement, please provide BLR's Copyright Agent with a written notice to the email or mailing address indicated below that includes the following information:  an electronic or physical signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;  identification of the copyrighted work claimed to have been infringed;  a description of where the material that you claim is infringing is located on the site;  your address, telephone number, and e-mail address;  a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;  a statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. BLR's Copyright Agent for notice of claims of copyright infringement is: Brad Forrister, VP Legal, by email at bforrister@blr.com or by mail to BLR, 100 Winners Circle, Suite 300, Brentwood, TN 37027 [see for designation of agent: https://www.copyright.gov/dmca-directory] 4. Disclaimer of Warranties & Limitation of Liability 4.1 Reference; legal advice. This site is provided as a research and reference tool. Although we make every reasonable effort to ensure that the content and tools provided at this site are useful, accurate, and current, we cannot guarantee that they will be error-free. This site and the information available DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 18 of 28 through it are not intended to constitute legal or other professional advice. HR, Compensation, Safety and Environmental compliance often involves complex decisions requiring the services of competent, licensed professionals; we urge you to obtain such services before making decisions with legal and other professional implications. By using this site, you assume all responsibility for and risk arising from your use of and reliance upon the contents of this site. 4.2 Infringement. BLR warrants that the Services do not infringe any copyright, trade secret or other proprietary right of any third party. 4.3 Errors. BLR has used diligent efforts to collect and prepare information for inclusion in the Services. In the event of any error contained in the Services, Customer shall call the error to BLR’s attention within thirty (30) days after Customer first becomes aware of the error, and BLR shall make prompt efforts, at its sole discretion, to correct such error. Such correction shall be Customer’s sole and exclusive remedy for any such error. 4.4 Your risk. HOWEVER, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. BLR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THEY WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR AS TO THE ACCURACY, RELIABILITY, COMPLETENESS, OR CONTENTS OF ANY CONTENT, INFORMATION, MATERIAL, POSTINGS, OR POSTING RESPONSES FOUND ON THE SERVICE, ANY MERCHANDISE OR SERVICES PROVIDED THROUGH THE SERVICES, OR ANY LINKS TO OTHER SITES OR SERVICES MADE AVAILABLE ON THE SERVICES. 4.5 As is. THE SERVICES, ALL TOOLS, CONTENT, MATERIAL, INFORMATION, POSTINGS, OR POSTING RESPONSES FOUND ON THE SERVICE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 4.6 Consequential damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL BLR (OR ANY OF ITS PARENTS, SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DISTRIBUTORS, THIRD PARTY PROVIDERS, OR LICENSORS (AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS), BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, ANY CONTENT, INFORMATION, MATERIAL, POSTINGS, OR POSTING RESPONSES ON THE SERVICE, OR THE SERVICE ITSELF. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT BLR (AND ANY OF ITS PARENTS, SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DISTRIBUTORS, THIRD PARTY PROVIDERS, OR (AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS), IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER, INCLUDING YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF BLR (OR ANY OF ITS PARENTS, SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DISTRIBUTORS, THIRD PARTY PROVIDERS, OR LICENSORS (AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS)) TO YOU EXCEED THE AMOUNT PAID BY YOU TO BLR DURING THE TWELVE (12) MONTHS PRIOR TO ANY CLAIM OF INJURY OR DAMAGE. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 19 of 28 Exhibit A – Schedule 2 TrainingToday Terms & Conditions 1. Copyright. The Services are protected by copyright, trademark and/or other applicable intellectual property and proprietary rights laws and are owned, controlled, and/or licensed by BLR. Except as expressly permitted herein, Customer shall not (and shall not allow any third party to): (i) modify, translate or create "Derivative Works" of the programs except for authorized customization by BLR or through its tools; (ii) reproduce, capture or redistribute the programs; (iii) provide access to the programs to persons other than the Customer's employees; (iv) allow the removal, alteration, covering or obscuring of any copyright notice or any other notice or mark that appears on the programs, on any copies, or any media; (v) access the programs by any means other than through the interfaces that are provided by BLR; or (vi) reverse engineer or interfere with the operation of the programs. 2. Password Security. Customer is responsible for maintaining the confidentiality of its passwords and of controlling access to its accounts. Customer is responsible for all activities that occur under its password. 3. Warranty; Disclaimer. (a) Limited Warranty. BLR warrants that (i) it is the owner or licensor of all intellectual property making up the Services, and the Services do not infringe any copyright, trademark, or other proprietary right of any third party; (ii) any services will be rendered in a professional manner by personnel familiar with the training programs and training-management software; and (iii) for the term of this Agreement, the programs (as made available to Customer) will conform to their material specifications. (b) Sole Remedy. BLR's exclusive obligation, and Customer's sole remedy, for breach of these warranties will be (i) to re-perform the services at no additional charge, and (ii) at BLR's option, to repair or replace any such non-conforming program or to refund the fees paid by Customer for such non-conforming program. Any replacement programs will not extend the warranty or the Term. (c) Disclaimer. Except as set forth above, and to the extent permitted by applicable law, BLR disclaims all express and implied warranties, oral or written, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose or non-infringement, and any warranties arising from course of dealing, course of performance or usage of the trade. (d) LIMITATION OF LIABILITY. IN NO EVENT WILL BLR 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: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (iv) COST OF REPLACEMENT GOODS OR SERVICES; (v) LOSS OF GOODWILL OR REPUTATION; OR (vi) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES. (e) CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF BLR ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO BLR UNDER THIS AGREEMENT. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 20 of 28 (f) No legal advice. Customer acknowledges and agrees that the programs are provided for educational purposes only and may not be relied upon as legal advice and that BLR shall have no liability to customer or any other person relating to or resulting from the use of the programs and the information included therein, or any errors in or omissions therefrom. BLR will not be liable in respect of any decisions made by customer as a result of the performance by BLR of its services hereunder or in connection with services offered. (g) Internet Availability. BLR cannot control the flow of data to or from its data center and the Internet. Such flow depends on the performance of Internet services provided or controlled by third parties. At times, Customer's connection to BLR via the Internet may be impaired or disrupted. Although BLR will use commercially reasonable efforts to avoid and address such occurrences, BLR cannot guarantee that they will not occur, and it disclaims any liability resulting from or related to such occurrences. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 21 of 28 Exhibit A – Schedule C TrainingToday Service Level Agreement This Service Level Agreement (“SLA”) details the terms for the Technical Support Services provided by Simplify Compliance LLC (“BLR”) during the Agreement. The SLA specifically addresses service level definitions, measurements, and minimum service standards that will be in effect for the online service or services making up Simplify Training, TrainingToday, Bluepoint Leadership, and HCPro Online Learning sites. In the event of a conflict between the provisions of the Agreement and this Service Level Agreement, the provisions of this Service Level Agreement shall prevail. 1. Services Uptime. BLR shall use industry standard efforts to provide performance analysis and tuning services, hardware preventive maintenance, and regular back-up services. Customer will have 99.5% Service Availability, except for: (a) regular weekly maintenance, which will be performed when necessary on Friday between 7 pm Central – 9 p.m. Central, and on the third Saturday from 3 am Central to 7 am Central; (b) time sensitive maintenance, for which BLR shall give at least 8 hours’ notice via email or phone; (c) major architecture maintenance (“Scheduled Downtime”), which, to the extent reasonably practicable, will be scheduled during the weekend hours from 7 pm Central Friday to 11 pm Central Friday, but BLR reserves the right to change the Scheduled Downtime with reasonable prior notice; or (d) any unavailability caused by circumstances beyond BLR’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving BLR employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, Application or power systems not within BLR’s possession or reasonable control, and network intrusions or denial of service attacks. In the event BLR’s failure to meet the standards defined in this Section results in 48 hours of unscheduled downtime in any 30-day consecutive period, Customer will promptly notify BLR in writing and BLR shall make commercially reasonable efforts to remedy such performance problem. 1.1. Service Availability Calculation. Service Availability for a given month is calculated as a percentage equal to the minutes the Service is available in the month, divided by the total minutes in the month, less the minutes of scheduled downtime during the month. Any outages planned outside of this window, will be communicated in advance to the Customer. Notification of scheduled down times will be made using e-mail. If a longer downtime window is required, the Customer will be notified in advance using the same mechanism. 1.2. System Security. In the event of a denial of service attack or a security breach of the Services, BLR has the right to halt operations immediately to protect the integrity and security of the system. Upon discovery of such an event, BLR will notify affected clients within two (2) hours. 1.3. Network Response Time. BLR does not control the flow of data to or from the Internet nor Customer’s internal network. Such flow depends in large part on the performance of Internet service provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt BLR or Customer connections to the Internet. 1.4. Service Interruption. BLR will use commercially reasonable efforts to keep affected clients informed of the status of unexpected Service interruptions. In the event of an unexpected Service interruption, BLR’s first priority is to resolve the interruption followed by an internal investigation as to the cause. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 22 of 28 2. Communication Methods. Customer may communicate with BLR support team in any or all of the following ways noted below. By email: help@blr.com By telephone: 800-727-5257 ext. 1565 3. Technical Support and Support Levels. BLR shall provide telephone and online standard support to Customer, provided Customer’s account is in a current status with all payments. Support described below shall serve as a recommended process that may be subject to change at BLR’s reasonable discretion; provided, however, that in no event shall any such change result in a material degradation of BLR’s support obligation. Technical Support should not be confused with onboarding, initial setup, and systems or training administration support. If systems and training administration support or training are needed, then these will need to be scheduled and BLR’s standard fees will apply. (See Section 5 for additional services and fees.) 3.1. Help Desk Support. Standard Help Desk Support is designed to provide basic product help and configuration assistance to the Primary Customer Contacts. Standard Help Desk Support will perform initial investigation of all issues raised with its Help Desk. If the Help Desk Analyst can reproduce the issue and believes a problem exists with a BLR Application, the issue will be escalated to the Technical Support team. 3.2. Technical Support. Standard Technical Support, as it relates to the Service, shall be provided by BLR and is called upon by a Customer when they are unable to fully respond to an inquiry for product or technical assistance within their organization or when the Customer and BLR believe that a problem is related to BLR’s applications, and the problem is reproducible in BLR’s environment. 3.3. Help Desk & General Support Hours. Support Platinum Phone Support (M-F) 8:00 - 5:00 PM CST X Online Support and Knowledge-Base Access X Service Levels of 1 business day through e-mail X * Help Desk Support will not be offered on BLR recognized holidays as listed on http://blr.com/About/Contact 4. Onboarding Support & Client Success Client Success Platinum 3 Implementation calls per year X Dedicated Client Success Representative X Dedicated company support e-mail for faster SLA X Project Manager assisting with implementation X DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 23 of 28 Platinum Level Implementation (23 Hours)  Kickoff Call – 2 hours (2 - 1/hour calls)  Implementation call – 3 Hours (3 - 1/hour calls)  SSO Discussion – 1 Hour  Creating Hierarchy – 3 hours  Importing Learners -2 hours  Mid-Point Check-in – 1 Hour  Custom Reports – 2 Hours  Launch Prep – 1 hour  Additional Support – 8 Hours 5. Other services provided for additional Cost Additional Service Fees Per Hour costs Estimated hours to complete (min 2 hours) Additional Implementation calls $150/hr 2 Creating custom Learning Paths or Courses $150/hr 2 Creating custom Reports $150/hr 2-10 Catalog of courses $150/hr 2 Self-Registration $150/hr 2 Admin Support Services $150/hr 2 Instructor-Led training $150/hr Custom Pricing Create Learning Path with your purchased courses $150/hr Custom Pricing Integrations $150/hr Custom Pricing Multi Language $150/hr 2 Video Assessments $150/hr 2 Add Content (as is) $75 per course Per Course E-signature $75 per course Per Course 24/7 Support Services TBD Custom Pricing 6. Customer Responsibilities. Customer shall be responsible for: 6.1. Providing to BLR all applicable information regarding any application issues and enabling BLR to duplicate the circumstances indicating a reported Product defect or error. 6.2. Using reasonable efforts to cooperate with BLR with respect to testing, isolating, identifying, documenting, and any other actions necessary, to resolve any Service issues and errors. 6.3. BLR shall have no responsibility for correcting any problems arising from configuration of Customer’s hardware, software, and network connections, or in other manufacturers’ hardware and/or software which includes, servers, network equipment, load-balancers, firewalls, browsers (Microsoft supported versions of Internet Explorer, Mozilla’s Firefox and Google Chrome are supported), operating systems, or database systems. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 24 of 28 6.4. Customer Network Requirements. To ensure the highest network response over the Internet, BLR requires Customer to allow all traffic to and from BLR’s servers. Depending on Customer network security, this may involve “whitelisting” the URL and/or IP Addresses for the environments in both client hardware and software. 6.5. Customer is responsible for all activities that occur under Customer’s User accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service or its related Systems and Networks, and notify BLR promptly of any such unauthorized use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Service; (iv) not send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (v) not send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vi) not interfere with or disrupt the integrity or performance of the Services or the data contained therein; and (vii) not attempt to probe, scan, penetrate or test the vulnerability of a BLR system or network or to breach BLR’s security or authentication measures, whether by passive or intrusive techniques, without BLR’s express written consent. 7. Service Credits. If BLR fails to meet the Service Availability set forth herein, Customer shall be eligible to receive the service credits described below. This SLA states Customer’s sole and exclusive remedy for any failure by BLR to meet this SLA. Monthly Uptime Percentage Days of Service added to end of Term < 99.7% - >= 99.0% 3 < 99.0% - >= 95.0% 7 < 95.0% 15 In order to receive any of the Service Credits described above, Customer must notify us within thirty days from the time it becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit any right to receive a Service Credit. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 25 of 28 EXHIBIT “B” INSURANCE PROVISIONS Including Verification of Coverage, Sufficiency of Insurers, Errors and Omissions Coverage, Minimum Scope of Insurance, Deductibles and Self-Insured Retentions, and Severability of Interests (Separation of Insureds) DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 26 of 28 INSURANCE 1. Procurement and Maintenance of Insurance. Contractor shall procure and maintain public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Contractor’s performance under this Agreement. Contractor shall procure and maintain all insurance at its sole cost and expense, in a form and content satisfactory to the City, and submit concurrently with its execution of this Agreement. Contractor shall also carry workers’ compensation insurance in accordance with California workers’ compensation laws. Such insurance shall be kept in full force and effect during the term of this Agreement, including any extensions. Such insurance shall not be cancelable without thirty (30) days advance written notice to City of any proposed cancellation. Certificates of insurance evidencing the foregoing and designating the City, its elected officials, officers, employees, agents, and volunteers as additional named insureds by original endorsement shall be delivered to and approved by City prior to commencement of services. The procuring of such insurance and the delivery of policies, certificates, and endorsements evidencing the same shall not be construed as a limitation of Contractor’s obligation to indemnify City, its elected officials, officers, agents, employees, and volunteers. 2. Minimum Scope of Insurance. The minimum amount of insurance required under this Agreement shall be as follows: 1. Comprehensive general liability and personal injury with limits of at least one million dollars ($1,000,000.00) combined single limit coverage per occurrence and two million dollars ($2,000,000) general aggregate. 2. Automobile liability insurance with limits of at least one million dollars ($1,000,000.00) per occurrence. 3. Professional liability (errors and omissions) insurance with limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) annual aggregate is: _________ required __X_______ is not required. 4. Workers’ Compensation insurance in the statutory amount as required by the State of California and Employer’s Liability Insurance with limits of at least one million dollars $1 million per occurrence. If Contractor has no employees, Contractor shall complete the City’s Request for Waiver of Workers’ Compensation Insurance Requirement form. 3. Primary Insurance. For any claims related to this Agreement, Contractor’s insurance coverage shall be primary with respect to the City and its respective elected officials, officers, employees, agents, and volunteers. Any insurance or self-insurance maintained by City and its respective elected officials, officers, employees, agents, and volunteers shall be in excess of Contractor’s insurance and shall not contribute with it. For Workers’ Compensation and Employer’s Liability Insurance only, the insurer shall waive all rights of subrogation and DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 27 of 28 contribution it may have against City, its elected officials, officers, employees, agents, and volunteers. 4. Errors and Omissions Coverage. If Errors & Omissions Insurance is required, and if Contractor provides claims made professional liability insurance, Contractor shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement to cover claims made within three years of the completion of Contractor’s services under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least three years after completion of Contractor’s services under this Agreement. Contractor shall also be required to provide evidence to City of the purchase of the required tail insurance or continuation of the professional liability policy. 5. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of B++, Class VII, or better, unless otherwise acceptable to the City. 6. Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Contractor’s insurers to provide complete, certified copies of all required insurance pol icies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: A. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured…” ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). B. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No.___" or "for any and all work performed with the City" may be included in this statement). C. "Should any of the above-described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, “endeavor to” mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D 55575.18100\40507022.1 Revised 2.9.22 Page 28 of 28 D. Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive th e Contractor’s obligation to provide them. 7. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City prior to commencing any work or services under this Agreement. At the option of the City, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its elected officials, officers, employees, agents, and volunteers; or (2) Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses. Certificates of Insurance must include evidence of the amount of any deductible or self-insured retention under the policy. Contractor guarantees payment of all deductibles and self-insured retentions. 8. Severability of Interests (Separation of Insureds). This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer’s liability. DocuSign Envelope ID: 4A94781C-C253-4ACA-94F6-84E8D051BB5D