SERVICE PROVIDER AGREEMENT
This SERVICE PROVIDER AGREEMENT (“ Agreement”) is entered into this ___ day of _________, 20__ (“Effective Date”), by and between the CITY OF ALAMEDA, a municipal corporation (the “City”), and ACCELA, INC., a (California corporation), whose address is 2633 Camino Ramon, Suite 120, Bishop Ranch 3, San Ramon, CA 94583 (the “Provider”), in reference to the following facts and circumstances:
RECITALS
A. City is a municipal corpora tion duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. The City is in need of the following services: Subscription Services for Permitting software. The Provider was selected on a sole source basis because the City has utilized the services of the Provider since 2001. All permitting and inspection processing, data collection, and report writing are handled by the Provider. Signif icant customization of the day to day work activities of Planning Building, Tr ansportation, Fire Prevention a nd Public Works have been incorporated into the Accela System. Changing to a new Provider would entail significant disruption of daily activities as well as significant cost to migrate data contained in current system to a new system. The Accela System is proprietary and is only available from this provider.
C. Provider possesses the skill, experience, ab ility, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein.
D. City and Provider desire to enter into an agreement for Subscription Services for Permitting software, upon the terms and conditions herein.
AGREEMENT
NOW, THEREFORE, in consideration of the fo rgoing, which are incorporated herein by reference, and for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City and Provider agree as follows:
1. TERM:
The term of this Agreement shall commen ce on the 1st day of April 2021, and shall terminate on the 31st day of March 2023, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Provider agrees to do all necessary work at its own cost and expense, to furnish all labor, tools, equipment, materials, except as otherwis e specified, and to do all necessary work included in Exhibit A as requested. The Provider acknowle dges that the work plan included in Exhibit A is tentative and does not commit the City to request Provider to perform all tasks included therein.
3. COMPENSATION TO PROVIDER:
a. By the 7th day of each month, Provider shall submit to the City an invoice for the total amount of work done the previous month. Pricing and accounting of charges are to be according to the fee schedule as set forth in Exhibit B and incorporated herein by this reference Compensation for this contract shall not exceed $83,064.00 for year one and $85,555.92 for year two for a total two-year Compensation not to exceed $168,619.92.
4. TIME IS OF THE ESSENCE:
Provider and City agree that time is of the essence regarding the performance of this Agreement.
5. STANDARD OF CARE:
Provider agrees to perform all services hereunder in a manner commensurate with the prevailing standards of like professionals or service providers, as applicable, in the San Francisco Bay Area and agrees that all services shall be performed by qualified a nd experienced personnel who are not employed by the City.
6. INDEPENDENT PARTIES:
Provider hereby declares that Provider is engaged as an independent business and Provider agrees to perform the services as an independent contractor. The manner and means of conducting the services and tasks are under the control of Pr ovider, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Provider’s services. None of the benefits provided by City to its employees, including but not limited to unemployment insurance, workers’ compensation plans, vacation and sick leave are available from City to Provider, its employees or agents. Deductions shall not be made for any state or federa l taxes, FICA payments, PERS payments, or other purposes nor mally associated with an employer-employee relationship from any compensation due to Provider. Payments of the above items, if required, are the responsibility of Provider.
7. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Provider assumes any and all responsibility for verifying the identity and employment authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rule s and regulations. Provider sha ll indemnify, defend, and hold City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Provider.
8. NON-DISCRIMINATION:
Consistent with the City’s policy and state and federal law that harassment and discrimination are unacceptable conduct, Provider and its employees, contractors, and agents shall not harass or discriminate against any job applicant, City employee, or any other person on the basis of any kind of any statutorily (federal, state or local) protected class, including but not limited to: race, religious creed, color, national origin, ancestry, physical disability (including HIV and AIDS), mental disability, medical condition (ex. Cancer), genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, pregnancy, political affiliation,
military and veteran status or legitimate Union activities. Provider agrees that any violation of this provision shall constitute a material breach of this Agreement.
9. HOLD HARMLESS:
a. Provider shall indemnify, de fend, and hold harmless the City, its City Council, boards, commissions, officials, employees, and volunteers (“Indemnitees”) from and against any and all loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys’ fees (“ Claims”), arising from Provider’s negligent, reckless or intentional act or omission, whether alleged or actual, regarding performance of services or work conducted or performed pursuant to this Agreement. Provider shall not be obligated to indemnify Indemnitees from Claims arising from the sole negligence or willful misconduct of Indemnitees. b. Indemnification for Claims for Professional Liability Only: As to Claims for professional liability only, Provider’s obligation to defend Inde mnitees (as set forth above) is limited as provided in California Civil Code Section 2782.8. c. Provider’s obligation to indemnify, defend and hold harmless Indemnities shall expressly survive the expiration or early termination of this Agreement.
10. INSURANCE:
a. On or before the commencement of the terms of this Agreement, Provider shall furnish the City’s Risk Manager with certificat es showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with subsections 10A, B, C and D.
b. It is agreed that Provider shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California.
c. Provider shall deliver updated insurance certificates to the City at the address described in Section 17.f. by no mo re than ten (10) days after the expiration of the existing insurance certificate for the duration of the term of Agreement. Endorsements naming the City, its City Council, boards, commissions, officials, employees, and volunteers as additional insured shall be submitted with the insurance certificates.
_____________
Provider Initials
A. COVERAGE:
Provider shall maintain the following insurance coverage:
(1) Workers’ Compensation:
Statutory coverage as required by the State of California. (2) Liability:
Commercial general liability coverage in the following minimum limits:
Bodily Injury: $1,000,000 each occurrence
$2,000,000 aggregate - all other
Property Damage: $1,000,000 each occurrence
$2,000,000 aggregate
If submitted, combined single limit policy with aggregate limits in the amounts of $2,000,000 will be considered equivalent to the required minimum limits shown above. Additional Insured Endorsement naming the City, its City Council, boards, commissions, officials, employees, and volunteers is required. (3) Automotive:
Comprehensive automobile liability coverage (any auto) in the following minimum limits:
Bodily injury: $1,000,000 each occurrence
Property Damage: $1,000,000 each occurrence
or
Combined Single Limit: $2,000,000 each occurrence
Additional Insured Endorsement naming the City, its City Council, boards, commissions, officials, employees, and volunteers is required.
(4) Professional Liability & Cyber Liability:
Professional liability & Cyber Liability insurance which includes coverage for the professional acts, errors and omissions of Provider. Coverage shall also be sufficiently broad to respond to the duties and obligations as is undertaken by Provider in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations with the following minimum limits:
$1,000,000 each occurrence
$2-$5,000,000 per occurrence or claim; and
$3-$10,000,000 per aggregate.
B. SUBROGATION WAIVER:
Provider agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Provider shall look solely to its insurance for recovery. Provider hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insura nce to either Provider or City with respect to the services of Provider herein, a waiver of any right to subrogation which any such insurer of said Provider may acquire against City by virtue of the payment of any loss under such insurance.
C. FAILURE TO SECURE:
If Provider at any time during the term hereof should fail to secure or maintain the foregoing insurance, City shall be permitted to obtain such insurance in the Provider’s name or as an agent of the Provider and shall be compensate d by the Provider for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid.
D. ADDITIONAL INSURED:
City, its City Council, boards, commissions, o fficials, employees, and volunteers shall be named as an additional insured under all insurance coverages, except workers’ compensation and professional liability insurance. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on th is policy or any extension thereof. Any other insurance held by an additional insured shall no t be required to contri bute anything toward any loss or expense covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by City are not represented as being sufficient to protect Provider. Provider is advised to consult Provider’s insurance broker to determine adequate coverage for Provider.
11. CONFLICT OF INTEREST:
Provider warrants that it is not a conflict of interest for Provider to perform the services required by this Agreement. Provider may be required to fill out a conflict of interest form if the services provided under this Agreement require Provider to make certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations.
12. PROHIBITION AGAINST TRANSFERS:
a. Provider shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or i ndirectly, by operation of law or otherwise, without prior written consent of the City Manager. Provider shall submit a written request for consent to transfer to the City Manager at least thirty (30) days in advance of the desired transfer. The City Manager or his or her designee may consent or reject such reques t in his/her sole and absolute discretion. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money against the City under this Agreement may
be assigned by Provider to a bank, trust company or other financial institution without prior written consent.
b. The sale, assignment, transfer or othe r disposition of any of the issued and outstanding capital stock of Provider, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Provider is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Provide r, shall be construed as an assignment of this Agreement. Control means fi fty percent or more of the voting power of the corporation.
13. APPROVAL OF SUB-PROVIDERS:
a. Only those persons and/or businesses whose names and resumés are attached to this Agreement shall be used in the performance of this Agreement. However, if after the start of this Agreement, Provider wishes to use sub-providers, at no additional costs to the City, then Provider shall submit a written request for consent to add sub-providers including the names of the sub- providers and the reasons for the request to the City Manager at least five (5) days in advance. The City Manager may consent or reject such requests in his/her sole and absolute discretion. b. Each sub-provider shall be required to furnish proof of workers’ compensation insurance and shall also be required to carry general, automobile and professional liability insurance (as applicable) in reas onable conformity to the insuranc e carried by the Provider. In addition, any tasks or services performed by sub-pr oviders shall be subject to each provision of this Agreement.
c. The requirements in this Section 13 sha ll not apply to persons who are merely providing materials, supplies, data or information which the Provider then analyzes and incorporates into its work product.
14. PERMITS AND LICENSES:
Provider, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses, including a City Business License that may be required in connection with the performance of the services and tasks hereunder.
15. REPORTS:
a. Any custom document produced or prepared by Provider pursuant to this Agreement shall be the exclusive property of City.
b. No report, information or other data given to or prepared or assembled by Provider pursuant to this Agreement other than Aggregate Data as defined in E xhibit A shall be made available to any individual or organization by Provider without prior approval of the City Manager or his/her designee.
c. Provider shall, at such time and in such form as City Manager or his/her designee may require, furnish reports concerning the stat us of services and tasks required under this Agreement.
16. RECORDS:
a. Provider shall maintain complete and accurate books and records related to sales, costs, expenses, receipts and other such information required by City that relate to the performance of the services and tasks under this Agreement (collectively the “Records”). b. All Records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. The City has the right to examine and audit the Records, and to make copies or transcripts therefrom as necessary. Such Records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained by Provider for a period of three (3) years after receipt of final payment. c. If supplemental examination or audit of th e Records is necessary due to concerns raised by City’s preliminary examination or a udit of records, and the City’s supplemental examination or audit of the record s discloses a failure to adhere to appropriate internal financial controls, or other breach of this Agreement or failure to act in good faith, then Provider shall reimburse the City for all reasonable costs an d expenses associated with the supplemental examination or audit.
17. NOTICES:
a. All notices shall be in writing and delivered: (i) by hand; or (ii) sent by registered, express, or certified mail, with return receipt requested or with deliver y confirmation requested from the U.S. postal service; or (iii) sent by overnight or same day courier service at the party’s respective address listed in this Section.
b. Each notice shall be deemed to have been received on the earlier to occur of: (x) actual delivery or the date on whic h delivery is refused; or (y) three (3) days after notice is deposited in the U.S. mail or with a courier se rvice in the manner described above (Sundays and City holidays excepted).
c. Either party may, at any time, change its notice address (other than to a post office box address) by giving the other party three (3) days prior written notice of the new address. d. All notices, demands, requests, or approvals from Provider to City shall be addressed to City at:
City of Alameda
Information Technology Department
2263 Santa Clara Ave., Room 320
Alameda, CA 94501
ATTENTION: IT Director
Ph: (510) 747-4715
e. All notices, demands, requests, or approvals from City to Provider shall be addressed to Provider at:
Accela, Inc.
2633 Camino Ramon, Ste 120
Bishop Ranch 3
San Ramon, CA 94583
ATTENTION:
Ph: (925) 659-3200 / Fax: (925) 407-2722
f. All updated insurance certificates from Provider to City shall be addressed to City at:
City of Alameda
Information Technology
2263 Santa Clara Ave., Room 320
Alameda, CA 94501
ATTENTION: Jodi Owens / Executive Assistant
Ph: (510) 747-4715 / [email protected]
18. SAFETY:
a. The Provider will be solely and completely responsib le for conditions of all vehicles owned or operated by Provider, includi ng the safety of all pe rsons and property during performance of the services and tasks under this Agreement. This requirement will apply continuously and not be limited to normal working hours. In addition, Provider will comply with all safety provisions in confor mance with U.S. Department of Labor Occupational Safety and Health Act, any equivalent state law, and all other applicable federal, state, county and local laws, ordinances, codes, and any regulations that may be detailed in other parts of the Agreement. Where any of these are in conflict, the more stringent requirements will be followed. The Provider’s failure to thoroughly familiarize itself with the af orementioned safety provisions will not relieve it from compliance with the obligations and penalties set forth herein. b. The Provider will immediately notify the City within 24 hours of any incident of death, serious personal injury or substantial proper ty damage that occurs in connection with the performance of this Agreement. The Provider will promptly submit to the City a written report of all incidents that occur in connection with this Agreement. This report must include the following information: (i) name and address of injured or deceased person(s); (ii) name and address of Provider’s employee(s) involved in the incident; (iii) name and address of Provi der’s liability insurance carrier; (iv) a detailed description of the incident; and (v) a police report.
19. TERMINATION:
a. Reserved.
20. ATTORNEYS’ FEES:
In the event of the bringing of any action or suit by a party hereto against the other party by reason of any breach of any covenants, c onditions, obligation or provision arising out of this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all of its costs and expenses of the action or suit, including reasonable attorneys’ fees, experts’ fees, all court costs and other costs of action incurred by the prevailing party in connection with the prosecution or defense of such action and enforci ng or establishing its rights hereunder (whether or not such action is prosecuted to a judgment). For the purposes of this Agreement, reasonable fees of attorneys of the Alameda City Attorney’s office shall be based on the fees regularly charged
by private attorneys with the equivalent number of years of experience in the subject matter area of the law for which the services were rendered who practice in Alameda County in law firms with approximately the same number of attorneys as employed by the Alameda City Attorney’s Office.
21. COMPLIANCE WITH ALL APPLICABLE LAWS:
During the term of this Agreement, Provider shall keep fully informed of all existing and future state and federal laws and all municipal ordinances and regulations of the City of Alameda which affect the manner in which the services or tasks are to be performed by the Provider, as well as all such orders and decrees of bodies or tri bunals having any jurisdiction or authority over the same. Provider shall comply with all applicable laws, state and federal and all ordinances, rules and regulations enacted or issued by City.
22. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State of California without regard to any c hoice of law rules which may dir ect the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities). Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Alameda, State of California.
23. WAIVER:
A waiver by City of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character.
24. INTEGRATED CONTRACT:
This Agreement consists of:
1. This Service Provider Agreement, including all Recitals;
2. Exhibit A, Accela Subscription Services Terms and Conditions; and
3. Exhibit B, Fee Schedule.
The Recitals and Exhibits are a material part of this Agreement and are expressly incorporated herein. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Provider.
25. CAPTIONS:
The captions in this Agreement are for conv enience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement.
26. COUNTERPARTS:
This Agreement may be executed in any numbe r of counterparts (including by fax, PDF, DocuSign, or other electronic means), each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
27. SIGNATORY:
By signing this Agreement, signatory warrants and represents that he/she executed this Agreement in his/her authorized capacity and that by his/her signature on this Agreement, he/she or the entity upon behalf of which he/she acted, executed this Agreement.
28. CONTROLLING AGREEMENT:
In the event of a conflict between the terms and conditions of this Agreement and any other terms and conditions wherever contained, incl uding, without limitation, terms and conditions included within exhibits, the terms and conditions of this Agreement shall control and be primary.
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IN WITNESS WHEREOF, the parties have each caused this Agreement to be duly executed on its behalf as of the Effective Date.
Accela Inc. CITY OF ALAMEDA
a California corporation a municipal corporation
Aaron Haggarty Eric J. Levitt
Chief Legal Officer City Manager
RECOMMENDED FOR APPROVAL
Andrew Thomas
Planning Building Transportation Director
APPROVED AS TO FORM:
City Attorney
Alan Cohen
Assistant City Attorney
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EXHIBIT A
ACCELA SUBSCRIPTION SERVICES AGREEMENT
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ACCELA SUBSCRIPTION SERVICES AGREEMENT
This Accela Subscription Services Agreement (this “Agreement”) is entered into as of the date of the applicable Order, as defined below, that incorporates these terms (the “Effective Date”) by and between Accela, Inc. and the entity identified in such Order (“Customer”).
1. DEFINITIONS.
1.1 "Accela System" means the information technology infrastructure used by or on behalf of Accela in performing the Subscriptions Services, including all computers, software (including but not limited to Accela Software), hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Accela or its third party suppliers.
1.2 "Aggregate Data" means data and information related to Customer's use of the Subscription Services, including anonymized analysis of all data processed in th e Subscription Services, that is used by Accela in an aggregate and anonymized manner, including compiling statistical and performance information related to the provision and operation of the Services.
1.3 "Authorized User" means one named employee, contractor or agent of Customer (each identified by a unique email address) for whom Customer has purchased a subscription to the Subscription Services and who is authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement.
1.4 “Consulting Services” means packaged or time and materials consulting, review, training or other services (but excluding Subscription and Support Services) delivered by Accela to Customer pursuant an Order. The current Consulting Services Policy is available at www.accela.com/terms/.
1.5 “Customer Data” means the content, materials, and data that Customer, Authorized Users, and External Users enter into the Subscription Services. Customer Data does not include any component of the Subscription Services, material provided by or on behalf of Accela, or Aggregate Data.
1.6 “Documentation” means the then-current technical and functional user documentation in any form made generally available by Accela for the Subscription Services.
1.7 “External Users” means third party users of the Subscription Services that access the public-facing interfaces of the Subscription Services to submit queries and requests to facilitate communications between such third party and Customer.
1.8 “Intellectual Property Rights” means any patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, know-how, and any other intellectual property rights, in all cases whether or not registered or registrable and recognized in any country or jurisdiction in the world.
1.9 “Order” means an Accela order form or other mutually acceptable document fully executed between Customer and Accela that incorporates this Agreement.
1.10 “Service Availability Policy” means the Service Availability and Security Policy located at ***.accela.com/terms/.
1.11 “Subscription Services” means the civic administration services, comprised of the Accela System, Software, and Support Services, to which Customer may license access to in accordance with the terms herein.
1.12 “Software” means any licensed software (including client software for Authorized Users’ devices) and Documentation that Accela uses or makes available as part of the Subscription Services.
1.13 “Support Services” means those technical and help services provided by Accela in accordance with the Software Support Services Policies (SaaS) located at www.accela.com/terms/.
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1.14 “Subscription Period” means the duration of Customer’s authorized use of the Subscription Services as designated in the Order.
2. USAGE AND ACCESS RIGHTS.
2.1 Right to Access. Subject to the terms and conditions of this Agreement, Accela hereby grants to Customer a limited, non-exclusive, non-transferable right and license during the Subscription Period, to permit: (i) Authorized Users to access and use the internal and administrative inte rfaces of the Subscription Services in accordance with the Documentation to support Customer’s internal business purposes and (ii) its External Users the ability to access and use the publicly available interfaces to submit requests and information to Customer. Each instance of the Subscription Service shall be provisioned with the amount of storage set forth in the Order and additional storage may be purchased at the then-current rates.
2.2 Support Services & Service Availability. During the Subscription Period, Accela shall provide to Customer the Support Services specified in the Order and shall make all commercially reasonable efforts to attain the service levels specified in the applicable policies. The remedies set forth in the Support Services and Service Availability Policy are the sole and exclusive remedies for any breach of the service levels. Customer grants Accela a royalty- free, worldwide, transferable, sub- licensable, irrevocable, perpetual license to use or incorporate into its software or services any suggestions or other feedback provided by Customer or Authorized Users relating to the operation or features of the Subscription Services.
2.3 Purchasing Consulting Services. Customer may purchase Consulting Services from Accela by executing an Order for such services. All prices are exclusive of travel and expenses, which will be invoiced at actual cost, without markup, and will comply with the Consulting Services Policy located at www.accela.com/terms/ or as otherwise agreed in the applicable Order. If applicable, one Consulting Services day shall be equal to eight (8) hours.
2.4 Restrictions on Use. Customer shall not, and shall not permit others to: (i) use or access the Subscription Services in any manner except as expressly permitted by the Agreement, including but not limited to, in a manner that circumvents contractual usage restrictions set forth in this Agreement; (ii) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Subscription Services available for access by third parties except as otherwise expressly provided herein; (iii) use the Subscription Service in a way that: (a) violates or infringes upon the rights of a third party; or (b) stores or transmits libelous, tortious, or otherwise unlawful material or malicious code or viruses; (iv) create derivative works, reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about any of the Subscription Services (except to and only to the extent such rights are proscribed by law); (v) interfere with or disrupt the security, integrity, operation, or performance of the Subscription Services; (vi) access, use, or provide access or use to the Subscription Services or Documentation for the purposes of competitive analysis or the development, provision, or use of a competing software, SaaS or product or any other purpose that is to Accela’s detriment or commercial disadvantage; (vii) provide access to the Subscription Services to competitors of Accela; (viii) access or use components of the Subscription Service not licensed by Customer; (ix) use or allow the use of the Subscription Services by anyone located in, under the control of, or that is a national or resident of a U.S. embargoed country or territory or by a prohibited end user under Export Control Laws (as defined in Section
12.3, Compliance with Laws); (x) remove, delete, alter or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Subscription Services; or (xi) access or use the Subscription Services in, or in association with, the design, construction, maintenance, or operation of any hazardo us environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Subscription Services could lead to personal injury or severe physical or property damage.
2.5 Ownership. Accela retains all Intellectual Property Rights, including all rights, title and license to the Subscription Service, Software, Accela System, Support Services, Consulting Services, and Aggregate Data, any related work product of the foregoing and all derivative works thereof by whomever produced; provided however, that to the extent such materials are delivered to Customer as part of the Subscription Services, Consulting
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Services or Support Services then Customer shall receive a limited license consistent with the terms of Section 2 to use such materials during the Subscription Period.
2.6 Customer’s Responsibilities. Customer will: (i) be responsible for meeting Accela’s applicable minimum system requirements for use of the Subscription Services set forth in the Documentation; (ii) be responsible for Authorized Users’ compliance with this Agreement and for any other activity (whether or not authorized by Customer) occurring under Customer’s account; (iii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data; (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services and Customer Data under its account, and notify Accela promptly of any such unauthorized access or use, and; (v) use the Subscription Services only in accordance with the applicable Documentation, laws and government regulations.
3. PAYMENT TERMS.
3.1 Purchases Directly from Accela. Except as otherwise set forth in an Order, Subscription fees shall be invoiced annually in advance and such fees shall be due and payable on the first day of the Subscription and on each anniversary thereafter for each renewal, if any. All other invoices shall be due and payable net thirty (30) from the date of the applicable invoice. All amounts payable to Accela under this Agreement shall be paid by Customer in full without any setoff, deduction, debit, or withholding for any reason. All Subscription Services fees are exclusive of any taxes, levies, duties, withholding or similar governmental assessments of any nature (collectively, "Taxes").
If any such Taxes are owed or payable for such transactions, they shall be paid separately by Customer without set- off to the fees due Accela.
3.2 Purchases from Authorized Resellers. In the event that Customer has purchased any products or services through a reseller, subject to these terms, any separate payment arrangements and terms shall be exclusively through such reseller and Accela is not a party to such transactions. Accela’s sole obligations are set forth herein and Customer acknowledges that its rights hereunder may be terminated for non-payment to such third party.
4. CONFIDENTIALITY. As used herein, "Confidential Information" means all confidential information disclosed by a one party to this Agreement to the other party of this Agreement whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of an y obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure without breach of any obligation owed to the disclosing party; (iii) is received without restriction from a third party without breach of any obligation owed to the disclosing party; or (iv) was independently developed by the receiving party. Each party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information except as permitted herein, and will limit access to Confidential Information to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound to protect such Confidential Information consistent with this Agreement. The receiving party may disclose Confidential Information if it is compelled by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party's request and cost, to contest, limit, or protect the disclosure.
5. CUSTOMER DATA.
5.1 Ownership. Customer reserves all its rights, title, and interest in and to the Customer Data. No rights are granted to Accela hereunder with respect to the Customer Data, except as otherwise set forth explicitly in Section
5. 5.2 Usage. Customer shall be responsible for Customer Data as entered in to, applied or used in the Subscription Services. Customer acknowledges that Accela generally does not have access to and cannot retrieve lost Customer Data. Customer grants to Accela the non-exclusive right to process Customer Data (including personal data) for the
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sole purpose of and only to the extent necessary for Accela: (i) to provide the Subscription Services; (ii) to verify Customer’s compliance with the restrictions set forth in Section 2.4 (Restrictions on Use) if Accela has a reasonable belief of Customer’s non-compliance; and (iii) as otherwise set forth in this Agreement. Accela may utilize the information concerning Customer’s use of the Subscription Services (excluding any use of Customer’s Confidential Information) to improve Subscription Services, to provide Customer with reports on its use of the Subscription Services, and to compile aggregate statistics and usage patterns by customers using the Subscription Services.
5.3 Use of Aggregate Data. Customer agrees that Accela may collect, use and disclose Aggregate Data derived from the use of the Subscription Services for industry analysis, benchmarking, analytics, marketing and other business purposes. All Aggregate Data collected, used and disclosed will be in aggregate form only and will not identify Customer, its Authorized Users or any third parties utilizing the Subscription Services.
6. WARRANTIES AND DISCLAIMERS.
6.1 Subscription Services Warranty. During the Subscription Period, Accela warrants that Subscription Services shall perform materially in accordance with the applicable Documentation. As Customer’s sole and exclusive remedy and Accela’s entire liability for any breach of the foregoing warranty, Accela will use commercially reasonable efforts to: (a) repair the Subscription Services in question; (b) replace the Subscription Services in question with those of substantially similar functionality; or (c), after making all commercially reasonable attempts to do the foregoing, terminate the applicable Subscription Services and refund all unused, prepaid fees paid by Customer for such non-compliant Subscription Services.
6.2 Reserved.
6.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ACCELA MAKES NO WARRANTY OF ANY KIND,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.4. Cannabis-Related Activities. If Customer purchases any Subscription Services for use with any cannabis-related activities, the following additional disclaimers shall apply: Accela is considered a software service provider to its customers and not a cannabis related business or agent thereof. In addition to the foregoing, Accela only retains Subscription Services fees of this Agreement from its Customer for general software services, a state or local government agency, and does not retain these fees from any type of External Users. It is the sole responsibility of the Customer to offer state law compliant services, which may be coordinated and facilitated through the use of the Subscription Services. Accela makes no representations, promises, or warranties with respect to the legality, suitability, or otherwise regarding any third party provider, including partners, and have no responsibility or liability with respect to services provided to Customer by such third parties.
7. INDEMNIFICATION. Accela will defend (or at Accela’s option, settle) any third party claim, suit or action brought against Customer to the extent that it is based upon a cl aim that the Subscription Services, as furnished by Accela hereunder, infringes or misappropriates the Intellectual Prope rty Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are finally awarded against Customer, provided that Customer provides: (a) Accela notice of such claim as soon practical and in no event later than would reasonably permit Accela to respond to such claim, (b) reasonable cooperation to Accela, at Accela’s expense, in the defense and/or settlement of such claim and (c) Accela the sole and exclusive control of the defense, litigation and settlement of such claim. In the event that Accela reasonably believes, in its sole discretion, that such claim may prevail or that the usage of the Subscription Services may be joined, Accela may seek to: (a) modify the Subscription Services such that it will be non-infringing (provided such modification does not materially reduce the functionality or performance of Customer’s installed instance); (b) replace the Subscription Services with a service that is non-infringing and provides substantially similar functionality and performance; or, if the first two options are not commercially practicable, (c) terminate the remainder of the Subscription Period and refund any, pre-paid, unused fees received by Accela. Accela will have no liability under this Section 7 to the extent any claims arise from
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(i) any combination of the Subscription Services with products, services, methods of a third party; (ii) a modification of the Subscription Services that were either implemented by anyone other than Accela or implemented by Accela in accordance with Customer specifications; (iii) any use of the Subscription Services in a manner that violates this Agreement or the instructions given to Customer by Accela; (iv) a version of the Subscription Services other than the current, fully patched version, provided such updated version would have avoided the infringement; or (v) Customer’s breach of this Agreement. THIS SECTION 7 STATES THE ENTIRE
OBLIGATION OF ACCELA AND ITSLICENSORSWITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS RELATED TO THIS AGREEMENT.
8. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING OUT OF EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY OR CUSTOMER’S BREACH OF SECTION 2, NEITHER PARTY’S AGGREGATE LIABILITY FOR
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO
USE THE SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. EXCEPT FOR LIABILITY ARISING OUT OF CUSTOMER’S BREACH OF SECTION 2 OR EITHER PARTY’S
LIABILITY FOR DEATH OR PERSONAL INJURY, IN NO EVENT SHALL EITHER PARTY OR ANY OTHER PERSON OR ENTITY
INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICE BE LIABLE FOR ANY INCIDENTAL, SPECIAL,
EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL,
SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR
SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO
USE THE SUBSCRIPTION SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING EXCLUSIONS APPLY WHETHER OR NOT A
PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Accela has implemented commercially viable and reasonable information security processes, policies and technology safeguards to protect the confidentiality and integrity of Customer Data, personal data protect against reasonably anticipated threats. Customer acknowledges that, notwithstanding security features of the Subscription Services, no product, hardware, software or service can provide a completely secure mechanism of electronic transmission or communication and that there are persons and entities, including enterprises, governments and quasi- governmental actors, as well as technologies, that may attempt to breach any electronic security measure.
Subject only to its limited warranty obligations set forth in Section 6 and its insurance obligations under Section
10.A of the Service Provider Agreement, Accela will have no liability for any such security breach. Customer further acknowledges that the Subscription Services is not guaranteed to operate without interruptions, failures, or errors.
If Customer or Authorized Users use the Subscription Services in any application or environment where failure could cause personal injury, loss of life, or other substantial harm, Customer assumes any associated risks and will indemnify Accela and hold it harmless against those risks.
10. THIRD PARTY SERVICES. Customer may choose to obtain a product or service from a third party that is not directly produced by Accela as a component of the Subscription Services (“Third Party Services”) and this may include third party products resold by Accela. Accela assumes no responsibility for, and specifically disclaims any liability, warranty or obligation with respect to, any Third Party Service or the performance of the Subscription Services (including Accela’s service level commitment) when the Subscription Services are used in combination with or integrated with Third Party Services.
11. TERM AND TERMINATION.
11.1 Agreement Term. This Agreement shall become effective on the Effective Date and shall continue in full force and effect until the expiration of any Subscription Periods set forth in an applicable Order governed by the Agreement.
11.2 Subscription Periods & Renewals. Subscription Periods begin as specified in the applicable Order and, unless terminated earlier in accordance with this Agreement, continue for the term specified therein. Orders may only be
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cancelled or terminated early in accordance with Section 11.3. Customer’s right to use the Subscription Services will terminate at the end of the relevant Subscription Period.
11.3 Termination.
11.3.1 Termination or Suspension for Cause. A party may terminate this Agreement and Subscription Services license granted hereunder for cause upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such thirty (30) day period. Either party may terminate immediately if the other party files for bankruptcy or becomes insolvent. Accela may, at its sole option, suspend Customer’s or any Authorized User’s access to the Subscription Services, or any portion thereof, immediately if Accela: (i) suspects that any person other than Customer or an Authorized User is using or attempting to use Customer Data; (ii) suspects that Customer or an Authorized User is using the Subscription Services in a way that violates this Agreement and could expose Accela or any other entity to harm or legal liability; (iii) is or reasonably believes it is required to do so by law or court order or; (iv) Customer’s payment obligations are more than ninety (90) days past due, provided that Accela has provided at least thirty (30) days’ notice of such suspension for delinquent payment.
Should
Customer terminate this Agreement for cause, Accela will refund a pro-rata portion of unused, pre-paid fees.
11.3.2 Termination for Lack of Appropriation. In the event that Customer fails to receive necessary appropriations to continue its obligations under this Agreement beyond its then-current fiscal year, Customer may terminate this Agreement for lack of appropriation. Such termination shall become effective upon the next anniversary of the Effective Date of the Agreement.
11.3.3 Termination for Convenience. Customer shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving sixty (60) days’ prior written notice to Accela. Should Customer terminate this Agreement for convenience pursuant to this Section, Customer will not be entitled to any refund of unused, pre-paid fees.
11.4 Effect of Termination. If this Agreement expires or is terminated for any reason: (i) within thirty (30) calendar days following the end of Customer’s final Subscription Period, upon Customer’s request Accela provided Customer Data and associated documents in a database dump file; provided that Customer pays (a) all costs of and associated with such copying, as calculated at Accela’s then-current time-and-materials rates, and (b) any and all unpaid amounts due to Accela; (ii) licenses and use rights granted to Customer with respect to Subscription Services and intellectual property will immediately terminate; and (iii) Accela’s obligation to provide any further services to Customer under this Agreement will immediately terminate, except as mutually agreed between the parties. If the Subscription Services are nearing expiration date or are otherwise terminated, Accela will initiate its data retention processes, including the deletion of Customer Data from systems directly controlled by Accela.
Accela’s current Data Storage Policy can be accessed www.accela.com/terms/.
11.5 Survival. Sections 2.5 (Ownership and Proprietary Rights), 4 (Confidentiality), 6.3 (Disclaimer), 8 (Limitation of Liability), 11.4 (Effect of Termination), 11.5 (Surviving Provisions), and 12 (General Provisions) will survive any termination or expiration of this Agreement.
12. GENERAL.
12.1 Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (i) personal delivery; (ii) three days after sending registered, return receipt requested, post or; (iii) one day after sending by commercial overnight carrier. Notices will be sent to the address specified by the recipient in writing when entering into this Agreement or establishing Customer’s account for the Subscription Services.
12.2 Governing Law and Jurisdiction. This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of
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any action related to the subject matter of this Agreement will be the state and federal courts in and for the County of Alameda, California Northern District of Californi a and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
12.3 Compliance with Laws. Each party will comply with all applicable laws and regulations with respect to its activities under this Agreement including, but not limited to, export laws and regulations of the United States and other applicable jurisdictions. Further, in connection with the services performed under this Agreement and Customer’s use of the Subscription Services, the parties agree to comply with all applicable anti-corruption and anti-bribery laws, statutes and regulations.
12.4 Assignment. Customer may not assign or transfer this Agreement, whether by operation of law or otherwise, without the prior written consent of Accela, which shall not be unreasonably withheld. Any attempted assignment or transfer, without such consent, will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.5 Publicity. Notwithstanding anything to the contrary, each party will have the right to publicly announce the existence of the business relationship between parties without disclosing the specific terms of the Agreement.
12.6 Miscellaneous. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect. Accela will not be liable for any delay or failure to perform under this Agreement to the extent such delay or failure results from circumstances or causes beyond the reasonable control of Accela. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or similar relationship between the parties. This Agreement, including any attachments hereto as mutually agreed upon by the parties, constitute the entire agreement between the parties concerning its subject matter and it supersedes all prior communications, agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by a duly authorized representative of each party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary, no additional or conflicting terms or conditions stated in any of Customer’s purchase order documentation or otherwise will be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
In WITNESS WHERE OF, the parties have indicated their acceptance of the terms of this Agreement by their signatures below
ACCELA, INC. CUSTOMER: ________________________
Signature: ______________________________ Signature: __________________________
Name: ______________________________ Name: ____________________________
Title: ______________________________ Title: ____________________________
Date: ______________________________ Date: ____________________________
_
____________________________________________________
__________________________________________________________ ________________________________________________________ ___________________________________________________
______________________________________________________________ _______________________________________
_______________________________
__
__
_
Aaron Haggarty
Chief Legal Officer
4/29/2021
ALAMEDA, CA
EXHIBIT B
FEE SCHEDULE / ORDER FORM
2633 Camino Ramon, Suite 500
San Ramon, CA, 94583
Proposed by: JR McKee
Contact Phone: 8014009090
Contact Email: [email protected]
Quote ID: Q-22085
Valid Through: 12/23/2020
Currency: USD
_______________________________________________________________________________________
Order Form
Address Information
Bill To: Ship To:
City of Alameda, CA City of Alameda, CA
2263 Santa Clara Avenue
Alameda, California 94501
United States
2263 Santa Clara Avenue
Alameda, California 94501
United States
Billing Name: Erin Garcia
Billing Phone: 510-747-6816
Billing Email: [email protected]
_______________________________________________________________________________________ Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi User Year 1 4/1/2021 3/31/2022 12 $1,821.60 40 $72,864.00 > Accela Building - SaaS Year 1 4/1/2021 3/31/2022 12 $0.00 40 $0.00 > Accela Planning - SaaS Year 1 4/1/2021 3/31/2022 12 $0.00 40 $0.00 Enhanced Reporting Database
(with SaaS quote)
Year 1 4/1/2021 3/31/2022 12 $10,200.00 1 $10,200.00
TOTAL: $83,064.00
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi User Year 2 4/1/2022 3/31/2023 12 $1,876.25 40 $75,049.92 > Accela Building - SaaS Year 2 4/1/2022 3/31/2023 12 $0.00 40 $0.00 > Accela Planning - SaaS Year 2 4/1/2022 3/31/2023 12 $0.00 40 $0.00 Enhanced Reporting Database
(with SaaS quote)
Year 2 4/1/2022 3/31/2023 12 $10,506.00 1 $10,506.00
TOTAL: $85,555.92
Quote Number:Q-22085-3 Print Date:4/29/2021
Pricing Summary
Period Net Total
Year 1 $ 83,064.00
Year 2 $ 85,555.92
Total $ 168,619.92
Additional Terms:
1. No additional or conflicting terms or conditions stated in Customer’s order documentation, including purchase orders, will be incorporated into or form any part of this Order Form or the governing agreement, and all such terms or conditions will be null.
2. This Order Form will be governed by the applicable terms and conditions. If those terms and conditions are non- existent, have expired or have otherwise been terminated, the following terms at https://www.accela.com/terms/ will
govern as applicable, based on the Customer’s purchase.
3. All Software Licenses, Maintenance, and Subscription purchases are non-cancelable and non-refundable.
4.If Customer has a prior agreement with Accela, and this purchase is co-terming with that prior agreement, if the start date on this Order Form is before the actual delivery date of the purchase, Accela may pro-rate this purchase so that it can co-term with the prior agreement.
5. If this Order Form is executed and/or returned to Accela by Customer after the Order State Date above, Accela may adjust the Order Start Date and Order End Date without increasing the total price based on the date Accela activates the products and provided that the total term length does not change.
Signatures
Accela, Inc. Customer
Signature: Signature:
Print Name: Print Name:
Title: Title:
Date: Date:
Quote Number:Q-22085-3 Print Date:4/29/2021
Chief Legal Officer
Aaron Haggarty
4/29/2021