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HomeMy WebLinkAboutEnvision Sustainability Tools Inc dba MetroQuest; 2020-02-27; PSA20-1020CAPSA20-1020CA City Attorney Approved Version 6/12/18 1 AGREEMENT FOR INTERNET APPLICATION SERVICES WITH ENVISION SUSTAINABILITY TOOLS, INC., DBA METROQUEST THIS AGREEMENT is made and entered into as of the ______________ day of _________________________, 2020, by and between the City of Carlsbad, a municipal corporation, ("City"), and Envision Sustainability Tools, Inc., dba Metroquest, a Canada corporation, ("Contractor"). RECITALS A.City requires the professional services of a vendor that is experienced in providing web-based public involvement survey tools. B.Contractor has the necessary experience in providing professional services and advice related to web-based public involvement survey tools. C.Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1.SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", MetroQuest Subscription Software Proposal for City of Carlsbad; and Exhibit “B”, MetroQuest Service Level Agreement (“SLA”), both of which are incorporated by this reference in accordance with this Agreement’s terms and conditions 2.STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in both the Metropolitan Southern California Area and the British Colombia, Canada Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. In the event of a conflict between the United States professional care standards and British Columbia, Canada professional standards, Contractor shall use the United States standards. 3.TERM The term of this Agreement will be effective for a period of one (1) year from the date first above written. The City Manager may amend the Agreement to extend it for two (2) additional one (1) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance, City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4.TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5.COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be twenty-six thousand dollars ($26,000) per agreement year and payable in currency of the United States dollar. Fee shall be invoiced and due in its entirety upon execution of this Agreement. No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed twenty-six thousand dollars ($26,000) per Agreement year. The City reserves the right to DocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 27th February PSA20-1020CA City Attorney Approved Version 6/12/18 2 withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibits "A" and “B.” Incremental payments, if applicable, should be made as outlined in attached Exhibit "A". 6.STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City’s election, City may deduct the indemnification amount from any balance owing to Contractor. 7.SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8.OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9.INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney’s fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City’s self-administered workers’ compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10.INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may DocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 PSA20-1020CA City Attorney Approved Version 6/12/18 3 arise out of or in connection with performance of the services by Contractor or Contractor’s agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an “occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $2,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor’s profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. DocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 PSA20-1020CA City Attorney Approved Version 6/12/18 4 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11.BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12.ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13.OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor’s records. Ownership of data collected for the City is described in the MetroQuest SLA. 14.COPYRIGHTS Deleted. 15.NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For City For Contractor Name Craddock Stropes Name Mike Walsh Title Senior Management Analyst Title President Department Public Works Address 510-1111 Melville St. City of Carlsbad Vancouver, BC, V6J1G7 Address 1635 Faraday Ave. Phone No. 604-225-2013 Carlsbad, CA 92008 Email Mike.walsh@metroquest.com Phone No. 760-602-2726 DocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 PSA20-1020CA City Attorney Approved Version 6/12/18 5 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. 16.CONFLICT OF INTEREST Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report investments or interests in all categories. Yes No 17.GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18.DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19.DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20.TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. X DocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 PSA20-1020CA City Attorney Approved Version 6/12/18 6 Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21.COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22.CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23.JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24.SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25.ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. DocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 PSA20-1020CA City Attorney Approved Version 6/12/18 7 26.AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR, Envision Sustainability Tools, Inc., dba Metroquest, a Canada corporation CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) Paz Gomez, Deputy City Manager, Public Works, as authorized by the City Manager Michael Walsh / President & CFO (print name/title) By: (sign here) (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups. Group A Group B Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: _____________________________ DocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 Assistant City Attorney PSA20-1020CA City Attorney Approved Version 6/12/18 8 EXHIBIT “A” SCOPE OF SERVICES MetroQuest Subscription Sofware Proposal Introduction MetroQuest is digital engagement software. It provides organizations with a powerful, flexible, cost effective enhancement to their existing public participation capabilities. It does this by complementing traditional techniques with digital engagement software delivered via the internet across multiple channels such as web-connected home computers, smartphones, kiosks and tablet computers to reach a broader, more diverse audience. MetroQuest is provided via the Internet and runs in a browser based on a software-as-a-service (SAAS) model. Setting up MetroQuest to collect stakeholder input for a particular project, accessible via a unique web address (URL) such as http://theproject.metroquest.ca, is referred to as a MetroQuest Site. MetroQuest is developed, owned and sold by Envision Sustainability Tools Inc. (“Envision”). Envision is pleased to provide this proposal for City of Carlsbad (“Client”) to use MetroQuest to enhance community engagement for multiple projects throughout the period of the subscription based contract. MetroQuest Solution In order to meet the engagement objectives, Envision is pleased to offer Metro01Quest, which includes the following: a.Access to and remote training on MetroQuest Site Management System (MetroQuest Studio aka “Studio”), the system that enables Clients to setup a MetroQuest Site; b.Provide remote training for project team personnel on the use of the MetroQuest Data Management System (MetroQuest Insights), allowing access to integrated data from all respondents; c.Provide the capability to use MetroQuest for online, workshop, peer to peer tablet, and smart phone engagement as needed; and d.Adhere to the relevant jurisdiction’s privacy legislation for the collection and storage of private information. DocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 PSA20-1020CA City Attorney Approved Version 6/12/18 9 MetroQuest Set-up and Use Envision (via MetroQuest Support Desk) will train and assist, via web meetings, the client team to help them understand how best to use MetroQuest and what will be required to create a survey, referred to as a MetroQuest Site (“Site”), for each client engagement initiative. This begins during the Subscription Orientation Meeting, delivered over a web meeting, at the commencement of the subscription period and continues through the subscription period as needed via the MetroQuest Support portal. The Orientation Meeting includes Client training on how to access and use MetroQuest Studio (“Studio”), the tool that will be used to setup a MetroQuest site, as well as MetroQuest Data Center that will be used to see the survey results. The Setup of a MetroQuest Site involves 4 steps: 1.Order a.Client uses Studio to order new Site for a particular client initiative; 2.Design a.Client uses Studio to identify which MetroQuest components, or screens will be used; 3.Build a.Client inputs all required content (text and images); b.Client inputs all required screen preferences (e.g. color); 4.Pre-Launch a.Client reviews site, inputting any necessary changes; b.Client notifies Envision Support that Site is ready for testing; c.Envision Support tests and launches and hosts the live Site. NOTE: The process to create and launch a “second language” Site requires the client to first complete the first language Site, then provide translation. MetroQuest will provide client with a “Translation Table” of all words/phrases for the client to provide the translated terms in the context of survey. MetroQuest Support Desk can then copy the original Site, apply Site Instruction Language Library (eg. Spanish instructions) and upload the translated terms to create an identical Survey. The client has the option of placing buttons on each Site First Screen to allow the participant to quickly navigate the alternative language version. DocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 PSA20-1020CA City Attorney Approved Version 6/12/18 10 Fees Unlimited MetroQuest Subscription Fee & Invoicing Use of MetroQuest for an unlimited number of Standard Sites in up to 2 languages (includes support for an unlimited period of public access for each MetroQuest Site via computer web browser, mobile, peer to peer iPad, and kiosks; hardware not included) $26,000/Year Terms and Conditions Term of the Agreement: Start Date: Expiry Date: Expiry Date is the last date for which a MetroQuest Site can be launched in MetroQuest Studio. Once a MetroQuest Site is launched, it can remain open for public use indefinitely. Although a Site may be launched in Studio, the dates it’s made available for public use are at the discretion of the client. The use of MetroQuest to initiate and launch a MetroQuest Site, and to receive assistance and support from MetroQuest, is limited to the employees of the City of Carlsbad For clarity, the client may have external third parties assist with their use of MetroQuest in a support capacity, but it is the client, as defined above, that will be registered for use in MetroQuest’s internal systems and only the client will have access to the MetroQuest “Studio” to set-up and manage MetroQuest Sites. MetroQuest will not be responsible to train or provide support directly to (internal or external) parties outside the definition of the client. Standard MetroQuest Site package assumes the Site contains 4 or 5 Screens. The Introduction and Exit screens are required. The additional 2 or 3 Screens are from the remaining 11 standard Screens in the MetroQuest Screen Gallery, using only the standard site options. All figures shown are in USA Dollars. Any applicable taxes are not included and will be borne by the Client. MetroQuest software is provided based on the terms and conditions described in the MetroQuest Service Level Agreement (Version 7, USA, 2017). Payment Terms: •Payment is due upon receipt of the invoice and payable by check (no credit cards) DocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 510 – 1111 Melville St., Vancouver, BC, V6E 3V6 p:604.225.2000 MetroQuest.com developers of Exhibit B MetroQuest Service Level Agreement MetroQuest® community engagement software (“Software”) is an internet application that is developed and provided by Envision Sustainability Tools Inc. (“Envision”). The Software is provided through a software-as-a-service (“SaaS”) subscription model. The provision of the SaaS subscription provided by Envision is dictated by the terms in two companion documents: i.A Service Level Agreement that describes what your organization (“Customer”) can expect in terms of service levels and support from Envision (the “Service Level Agreement”); and ii. A proposal that describes the terms under which your organization agrees to pay for and use the Software (the “Proposal”), and together with the Service Level Agreement, the “Agreement”. Definitions Software The Software is an internet application, meaning that it is delivered to the Customer via the internet and utilized via a web browser. The Software is housed on secure web server(s) and made up of two distinct components: i.A public-facing digital engagement platform that can be configured for a particular project and made available to the public and other persons to gather input, the (“Engagement Platform”); and ii.A set of web based administration tools used to setup the Engagement Platform for a particular project (“Site”) and access visitor data, the (“Administration Tools”). SaaS – Customer does not install and run the Software on its own computers, but rather uses the Software via a web browser. The Software is maintained and provided by Envision via secure web servers for use via the internet. Project – The planning project or other undertaking for which the Software will be used to collect input. Site – An instance of the Software setup for a specific Project in a particular language. Visitor – An individual who interacts with the Engagement Platform and provides input via a particular Site. Visitors are not authenticated (required to provide a username and password) by the Software Channel – The different combinations of hardware and software that the Engagement Platform can be made available to Visitors. Currently the alternatives are Web, Smart Phone (each PSA20-1020CADocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 MetroQuest Service Level Agreement for USA Version 7, 2017 Page 2 utilizing a Visitors device and internet connection) and peer-to-peer. Peer-to-peer is the use of the Engagement Platform in face-to-face situations, such as workshops and town hall type meetings. Supported Browsers The Engagement Platform has been tested and made compatible with the following web browser software: Internet Explorer/Edge 9+, Firefox 3.6+, Chrome 3+, Opera 10+ for Windows and MacOS. Safari 3+ for MacOS. Smart phones supported: iPhone 4 or later running iOS 5 or later; Android devices running OS 4.0 or later; Windows Phone running OS 7.0 or later. The Administration Tools have been tested and made compatible with the following web browser software: Internet Explorer 10+, Chrome 3+ for Windows. Safari 3+ for MacOS. Roles and Responsibilities Three elements are required to enable Visitors to interact with the Engagement Platform setup as a particular Site: i.MetroQuest Engagement Platform setup specifically for a Client’s Project; ii.Specific hardware and software, which varies by Channel: a. for the Web Channel, this would be a Visitor’s device and the web browser on that device; b.for the smart phone Channel, this would be a Visitor’s smart phone and the webbrowser on that smart phone; c.for Peer-to-Peer Channel, this would be the device and the web browser running on that device;iii.A connection to the internet. PSA20-1020CADocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 MetroQuest Service Level Agreement for USA Version 7, 2017 Page 3 The following table explains who is responsible for providing each element. 1.Internet Connection is the sole responsibility of the Visitor or Customer. In the case of the Peer-to-Peer Channel, the Customer will provision an active internet connection that is available as long as the Peer-to-Peer Channel is required. 2.Hardware provider would a third party vendor that rents hardware such as kiosks and/ortablets. MetroQuest Software Availability Envision will ensure the MetroQuest Software is available 99.5% of the time, measured on a twenty four (24) hour clock, monthly. MetroQuest is hosted by Microsoft Windows Azure, a cloud based server technology which delivers a 99.95% monthly service level. (http://www.windowsazure.com/en-us/support/sla/). Microsoft Azure is one of the largest and most reliable cloud platforms in the world. “Downtime” is defined as a system outage or the time(s) when the Software is unavailable as measured from the time a severity level 1, 2 or 3 incident is reported, to the time that incident is resolved. The following table indicates the response and resolution time the Customer can expect, based on the type of incident, defined by “Severity Level” once Envision has been notified of an incident, as well as the remedy that will be provided in the unlikely event that service levels fall below 99.5%. Elements Responsibility by Channel Web Smart Phone Peer-to-Peer Engagement Platform Envision Envision Envision Visitor’s Hardware and Software Visitor Visitor Customer/Hardware provider2 Internet Connection1 Visitor Visitor Customer PSA20-1020CADocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 MetroQuest Service Level Agreement for USA Version 7, 2017 Page 4 Severity Level Software Component Incident Type Response Time Resolution Time Rebate 1 Engagement Platform Full System Outage /or a reproducible error that causes the Engagement Platform to crash for a Visitor 1 hour 1 day 1 day credit for each 1 hour of downtime 1 Administration Tools Full System Outage /or a reproducible error that causes the Administration Tools to crash for a Customer 1 hour 1 day 1 day credit for each 1 hour of downtime 2 Engagement Platform Partial System Outage/ a reproducible error that has a workaround and does not cause the Engagement Platform to crash for a Visitor; or content or other information that are not displaying as agreed upon 4 hours 2 days N/A 2 Administration Tools Partial System Outage/ a reproducible error that has a workaround and does not cause the Administration Tools to crash for a Customer 4 hours 2 days N/A 3 Either Minor Incident / General Support 24 hours 5 days N/A General Support and Maintenance Envision will provide the following Support Services (“Support”) for MetroQuest Software: For Customers: (a)Support will be available to the Customer between the hours of 7:00 am to 5:00 pm Monday to Friday (“Support Days”) Pacific Time, excluding New Years Day, Good Friday, Labor Day, and Christmas Day, via email, not including priority responses for systemoutages. (b)Support email requests from the Customer (“Customer Service Request”) must be sent via email to support@metroquest.com.(c)In the event of a Customer Service Request, Envision will: •acknowledge the Customer Service Request upon receipt, via email; PPSA20-1020CADocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 MetroQuest Service Level Agreement for USA Version 7, 2017 Page 5 •resolve or develop a resolution plan within 4 hours upon receipt of the first CustomerService Request; and •prior to the Customer Service Request being closed, confirm with the Customer that the Service Request has been resolved. For Visitors: (a)Support will be available to the Visitors between the hours of 7:00 am to 5:00 pm Monday to Friday (“Support Days”) Pacific Time, excluding New Years Day, Good Friday, Labor Day, and Christmas Day, not including priority responses for system outages.(b)Support email requests from Visitors (“Visitor Service Request”) must be sent via email to support@metroquest.com. (c)In the event of a Visitor Service Request, Envision will: •acknowledge the Visitor Service Request by the Visitor upon receipt via email; •notify the appropriate Customer of the Visitor Service Request; •work with the Customer to resolve or develop a resolution plan for the Visitor Service Request; and •prior to the Visitor Service Request being closed, confirm with the Customer that the Visitor Service Request has been resolved. Backups and Recovery Envision will use reasonable endeavours to backup all data required to recover from a disaster within 3 business days. As Envision uses Microsoft Azure as its platform provider, this will involve backing up data both within the data center where the data resides (primary data center), as well as one other Azure data center within the United States. The data center to data center backup will occur daily. In the event of a disaster, defined as a Severity Level 1 service outage for more than 12 hours in the primary data center, Envision will undertake a disaster recovery. Software availability will be restored within 3 business days of the start of the disaster recovery commencing. Customer Data The Software utilizes two (2) types of Customer Data: i.Content provided by the Customer, such as text, images, numeric information (“Content Data”); ii.Information collected from Visitors by the Software based on Visitors providing input to questions presented via the Engagement Platform, (“Usage Data”). PSA20-1020CADocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 MetroQuest Service Level Agreement for USA Version 7, 2017 Page 6 Content Data Ownership and Use Envision agrees that the Customer is the owner of any content, including Content Data and Usage Data uploaded to the Engagement Platform. Envision acknowledges that all Content Data is and remains the property of the Customer or the respective owner of the Content Data in the case where the Content Data belongs to another party. The Customer acknowledges that it has the right to use the Content Data that is provided to Envision as part of a public web site or has obtained permission from the respective owner to use the Content Data as part of a public website. Envision shall not be responsible for any copyright infringement claims by third parties relating solely to the use of Content Data provided by the Customer. Usage Data Ownership, Reporting and Delivery Envision acknowledges that all Usage Data is and remains the property of the Customer or their client in the case where the Usage Data is being collected on behalf of the Customer’s client. Envision reserves the right to utilize all non-personal Usage Data collected for the sole purpose of determining trends and patterns in usage. Access to Usage Data is provided via the reporting function that is part of the Administration Tools of the Software. Usage Data is based on Visitor activity and Visitor responses collected during a Visitor Session. A Visitor Session is defined below for each Channel: i. A Web session is defined as all interaction with the Software from within a single browser window; opening a new browser tab and/or browser window and subsequently navigating to the Software in this new window constitutes a new session; ii.A Smart Phone session is defined as all interaction with the Software from within a single browser window; opening a new browser tab and/or browser window andsubsequently navigating to the Software in this new window constitutes a new session; iii.A Peer-to-Peer session is defined as the duration of a single workshop event, from start to finish, from when the facilitator navigates to a workshop specific URL until thebrowser is closed; iv.A Peer-to-Peer session is defined as all interaction with the Software from an individual once the Customer provides access to a Site via the Customer’s device for a Visitor, until the Visitor stops providing input. At the completion of a Project, all Usage Data collected for all Sites used in the Project can be accessed via the Administration Tools. Use of Personal Information For some Projects the Engagement Platform may be setup by the Customer and subsequently used to collect Personal Information such as names and email addresses. The decision to use the Software to collect Personal Information rests entirely with the Customer. In the event that Personal Information is collected, Envision warrants that it will never, under any circumstances, use this information for any purpose without the express written consent of the Customer that is undertaking the Project. This information will only be provided to the Customer. The Customer may request that Envision delete all Personal Information collected for a particular PSA20-1020CADocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 MetroQuest Service Level Agreement for USA Version 7, 2017 Page 7 Project once that Project is completed. Envision agrees to comply with such a request within thirty (30) business days. System Security MetroQuest operated on the Microsoft Windows Azure cloud platform, one of the largest and most secure cloud platforms in the world. Our servers are located at one of Microsoft’s data centers located in the continental United States and utilize security measures for the Hosting Environment, Operations and Personnel Security, Application-level Security, Fault-Tolerance Redundancy, Privacy and Updates. (http://www.microsoft.com/online/legal/?langid=en- us&docid=11) Envision will notify Customer immediately upon discovering any breach or compromise of Envision’s security protocols or measures or any unauthorized access to any personal information, and Envision shall promptly conduct an investigation and submit an oral report of its findings to Customer within forty-eight (48) hours, to be followed by a written report within seven (7) days. Envision will cooperate with Customer in connection with the investigation and incident management of any such event. Envision logs all access to the Administration Tools and Engagement Platform. In addition, is maintains audit logs for all direct database access. Administration Tools Security Envision utilizes Azure Active Directory to provide authentication services for authorized users of the Administration Tools. Warranties Envision does not warrant that: (a)The Software will be uninterrupted or error free; (b)The Services will meet Customer’s requirements, other than as expressly set out in thisagreement; or (c)The Services will be free from external intruders (hackers), virus or worm attack, denial of services attack, or other persons having unauthorized access to the services or systems of the Customer. Nothing in the above warranty exclusions negates any of Envision’s agreements and representations expressly set forth in this Agreement. Publicity, Publication and Usage Statistics In order to improve the Software, Envision computes general usage statistics. As part of promoting its product and services, Envision promotes certain customer Sites as examples of how to use the Software. In order to do so, Envision requests that the Customer grant Envision a non-exclusive, perpetual, worldwide, right to (i) use a non-data collecting copy of the PSA20-1020CADocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 MetroQuest Service Level Agreement for USA Version 7, 2017 Page 8 Customer’s Site(s) for marketing and promotional purposes once the Site(s) has been made available publicly on the internet; (ii) to include the Customer’s Usage data in the determination of general usage statistics and patterns. Software Intellectual Property Rights and Ownership The Customer acknowledges that in the provisioning of the Service, Envision will use the Software to provide the Service and the Customer will use the Software to access Usage Data. The Customer acknowledges and agrees that all intellectual property contained in the Software is and will remain the property of Envision and that no part of this Agreement or any agreement that this Agreement becomes a component of, assigns any right, title or interest in the Software to the Customer. Other General Terms No Waiver A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later. MetroQuest® is a Registered Trademark of Envision Sustainability Tools, Inc. PSA20-1020CADocuSign Envelope ID: D9B97715-E6B1-4992-979A-A4862F1018C4 CERTIFICATE OF INSURANCE ISSUE DATE (MM/DD/YY)CERTIFICATE OF INSURANCE This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend,extend or alter the coverage afforded by the policies below. Company A Company B BROKER Company C Company D INSURED'S FULL NAME AND MAILING ADDRESS Company E COVERAGES This is to certify that the policies of insurance listed below have been issued to the insured named above for the policy period indicated, not withstanding any requirement, term or condition of any contract or other document with respect to which this certificate may be issued or may pertain. The insurance afforded by the policies described herein is subject to all the terms, exclusions and conditions of such policies. Limits shown may have been reduced by paid claims. TYPE OF INSURANCE CO LTR POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YY) POLICY EXPIRATION DATE (MM/DD/YY) LIMITS OF LIABILITY (Canadian dollars unless indicated otherwise) COMMERCIAL GENERAL LIABILITY AUTOMOBILE LIABILITY **ALL AUTOMOBILES LEASED IN EXCESS OF 30 DAYS WHERE THE INSURED IS REQUIRED TO PROVIDE INSURANCE EXCESS LIABILITY OTHER (SPECIFY) DESCRIPTION OF OPERATIONS/LOCATIONS/AUTOMOBILES/SPECIAL ITEMS/ ADDITIONAL INSURED CERTIFICATE HOLDER CANCELLATION AUTHORIZED REPRESENTATIVE Per:_______________________________________ CLAIMS MADE OCCURRENCE PRODUCTS AND/OR COMPLETED OPERATIONS PERSONAL INJURY EMPLOYER'S LIABILITY TENANT'S LEGAL LIABILITY NON-OWNED AUTOMOBILE HIRED AUTOMOBILE DESCRIBED AUTOMOBILES ALL OWNED AUTOMOBILES LEASED AUTOMOBILES ** GARAGE LIABILITY UMBRELLA FORM OTHER THAN UMBRELLA FORM EACH OCCURRENCE $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGGREGATE $ PERSONAL INJURY $ EMPLOYER'S LIABILITY $ TENANT'S LEGAL LIABILITY $ NON-OWNED AUTOMOBILE $ HIRED AUTOMOBILE $ BODILY INJURY PROPERTY DAMAGE COMBINED $ BODILY INJURY (Per person)$ BODILY INJURY (Per accident)$ PROPERTY DAMAGE $ EACH OCCURRENCE AGGREGATE $ $ $ $ $ $ $ 08/22/2018 HUB International Insurance Brokers 400-4350 Still Creek Drive Burnaby, BC V5C 0G5 PHONE: 604-269-1000 Envision Sustainability Tools Inc. dba Metroquest #510 - 1111 Melville Street Vancouver, BC V6E 3V6 The Certificate Holder is added as an Additional Insured on the Commercial General Liability policy but only with respect to the operations of the Named Insured. City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008-1949 USA ENCON Group Inc. Z5SDW5WF A TGL515366 08/31/2018 08/31/2020 5,000,000 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOUR TO MAIL 0 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. 5,000,000 5,000,000 1,000,000 500,000 1,000,000 50,000 X X X X X X X Page 1 of 1 Victor Canada 500-1400 Blair Towers Place Ottawa, Ontario K1J 9B8 Telephone 613-786-2000 Facsimile 613-786-2001 Toll Free 800-267-6684 www.victorinsurance.ca Certificate of Insurance Issued to: City of Carlsbad 1200 Carlsbad Village Dr Carlsbad CA 92008-1949 Commercial General Liability Insurance Policy TGL515366 1. Named Insured: ENVISION SUSTAINABILITY TOOLS INC. DBA METROQUEST 2. Insured's Address: 510-1111 MELVILLE ST VANCOUVER BC V6E 3V6 3. Policy Period: from 31 August 2018 to 31 August 2020 at 00:01 local time at the insured's address shown above without tacit renewal 4. Limits of Insurance: Each Occurrence Limit $5,000,000 Annual Aggregate Limit $5,000,000 Personal and Advertising Injury $5,000,000 Medical Payments - per person $5,000 Medical Payments - per accident $25,000 Tenants' Legal Liability $500,000 Non-owned Automobile $1,000,000 Coverage Includes: (a) Separation of Insureds, Cross Liability (b) Contractual Liability (c) Products-completed Operations (d) Contingent Employer's Liability 5. Deductibles: Property Damage $1,000 Tenants' Legal Liability $1,000 * All amounts shown in CDN dollars 6. Insurers: Aviva Insurance Company of Canada 25.00% Temple Insurance Company 25.00% Everest Insurance Company of Canada 20.00% Arch Insurance Canada Ltd. 15.00% XL Reinsurance America Inc. 15.00% 7. Endorsements: - Additional Insured City of Carlsbad This certificate provides the above Named Insured with coverage under the aforementioned policy on file with the Insurers subject to the terms and conditions thereof and the above limits of insurance and deductible. The Insurers have duly authorized Victor Insurance Managers Inc. to execute and sign this Certificate of Insurance. Dated: 25 February 2020 _____________________________ David G. Cook, President Authorized Representative Endorsement No.: 0005 Standard Form: A-1AGL Attached to and forming part of Policy Number: TGL515366 Additional Insured It is agreed that the following are included in Part II – Who Is an Insured as insured(s) but only with respect to liability arising out of “your work”. Additional Insured: City of Carlsbad 1200 Carlsbad Village Drive Carlsbad CA 92008-1949 USA City of Santa Fe, NM 200-500 Market St Santa Fe NM USA 87504 Except as otherwise provided by this endorsement, all terms, provisions and conditions of this policy shall have full force and effect.