1 OpenGov Services Agreement with City of San Pablo Revised October 11, 2023 OpenGov Services Agreement with City of San Pablo
The parties to this Services Agreement (this “Agreement”) are OpenGov, Inc., a Delaware corporation (“OpenGov”), and the City of San Pablo, a California municipal corporation (“Customer”). This Agreement, effective August 1, 2023 (the “Effective Date”), sets forth the terms under which Customer will be permitted to use OpenGov’s hosted software services and receive professional services, and the respective obligations of OpenGov and Customer related that use.
1. Definitions
1.1. “Customer Data” means data that is provided by Customer to OpenGov pursuant to this Agreement (for example, by email or through Customer’s software systems of record).
Customer Data does not include any confidential personally identifiable information.
1.2. “Documentation” means materials produced by OpenGov that provide information about OpenGov’s software products and systems. Customers may access the most up-to-date Documentation on the Customer Resource Center page at opengov.zendesk.com.
1.3. “Intellectual Property Rights” means all intellectual property rights including all past, present, and future rights associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights, trademark and trade name rights and similar rights, trade secret rights, patent rights, and any other proprietary rights in intellectual property of every kind and nature.
1.4. “Order Form” means the document attached to this Agreement as EXHIBIT A that specifies the Software Services that OpenGov will provide to Customer under this Agreement.
1.5. “Term” refers to the Term defined in Section 6.1.
2. Software Services, Support, and Professional Services
2.1. Software Services. Subject to the terms and conditions of this Agreement, OpenGov will use commercially reasonable efforts to provide the commercial off-the-shelf software solutions identified in the applicable Order Form (“Software Services”).
2.2. Support and Service Levels. Customer support is available by email to [email protected] or by using the chat messaging functionality of the Software Services, both of which are available during OpenGov’s standard business hours. Customer may report issues any time.
However, OpenGov will address issues during business hours. OpenGov will provide support for the Software Services in accordance with the then-current Support and Software Service Levels found at opengov.com/service-sla. Such support in effect as of the effective date of this Agreement is attached hereto as EXHIBIT B, as long as Customer is entitled to receive support under the applicable Order Form and this Agreement.
2.3. Professional Services
2.3.1. If OpenGov or its authorized independent contractors provides professional services to Customer, such as implementation services, then these professional services (“Professional Services”) will be described in an applicable statement of work (“SOW”) attached hereto as EXHIBIT C. Unless otherwise specified in the SOW, any pre-paid Professional
2 OpenGov Services Agreement with City of San Pablo Revised October 11, 2023 Services must be utilized by July 31, 2026.
2.3.2. No travel expenses are anticipated or authorized by this Agreement. Any other travel expenses related to the performance of the Professional Services shall be pre-approved by Customer and authorized in an Amendment to this Agreement.
3. Restrictions and Responsibilities
3.1. Restrictions. Customer may not use the Software Services in any manner or for any purpose other than as expressly permitted by the Agreement and Documentation. In addition, Customer shall not, and shall not permit or enable any third party to: (a) use or access any of the Software Services to build a competitive product or service; (b) modify, disassemble, decompile, reverse engineer or otherwise make any derivative use of the Software Services (except to the extent applicable laws specifically prohibit such restriction); (c) sell, license, rent, lease, assign, distribute, display, host, disclose, outsource, copy or otherwise commercially exploit the Software Services; (d) perform or disclose any benchmarking or performance testing of the Software Services; (e) remove any proprietary notices included with the Software Services; (f) use the Software Services in violation of applicable law; or (g) transfer any confidential personally identifiable information to OpenGov or the Software Services platform.
3.2. Responsibilities. Customer shall be responsible for obtaining and maintaining computers and third party software systems of record (such as Customer’s ERP systems) needed to connect to, access or otherwise use the Software Services. Customer also shall be responsible for: (a) ensuring that such equipment is compatible with the Software Services, (b) maintaining the security of such equipment, user accounts, passwords and files, and (c) all uses of Customer user accounts by any party other than OpenGov.
4. Intellectual Property Rights; License Grants; Access to Customer Data
4.1. Software Services. OpenGov owns all interests and Intellectual Property Rights in the Software Services. The look and feel of the Software Services, including any custom fonts, graphics and button icons, are the property of OpenGov. Customer may not copy, imitate, or use them, in whole or in part, without OpenGov’s prior written consent. Subject to Customer’s obligations under this Agreement, OpenGov grants Customer a non-exclusive, royalty-free license during the Term to use the Software Services.
4.2. Customer Data. Customer Data and the Intellectual Property Rights therein belong to the Customer. Customer grants OpenGov and its partners (such as hosting providers) a non- exclusive, royalty-free license to use, store, edit, and reformat the Customer Data for the purpose of providing the Software Services. Customer further agrees that OpenGov and its partners may use aggregated, anonymized Customer Data for purposes of sales, marketing, business development, product enhancement, customer service, and data analysis. Insights gleaned from aggregated, anonymized Customer Data will belong to OpenGov.
4.3. Access to Customer Data. Customer may download the Customer Data from the Software Services at any time during the Term, excluding during routine software maintenance periods.
OpenGov has no obligation to return Customer Data to Customer.
4.4. Deletion of Customer Data. Unless otherwise requested pursuant to this Section 4.4, upon the termination of this Agreement, the Customer Data shall be deleted pursuant to OpenGov’s
3 OpenGov Services Agreement with City of San Pablo Revised October 11, 2023 standard data deletion and retention practices. Upon written request, Customer may request deletion of Customer Data prior to the date of termination of this Agreement. Such a request must be addressed to “OpenGov Vice President, Customer Success” at OpenGov’s address for notice in Section 10.2.
4.5. Feedback. “Feedback” means suggestions, comments, improvements, ideas, or other feedback or materials regarding the Software Services provided by Customer to OpenGov, including feedback provided through online developer community forums. Customer grants OpenGov a non-exclusive, royalty-free, irrevocable, perpetual, worldwide license to use and incorporate into the Software Services and Documentation Customer’s Feedback. OpenGov will exclusively own any improvements or modifications to the Software Services and Documentation based on or derived from any of Customer’s Feedback including all Intellectual Property Rights in and to the improvements and modifications.
5. Confidentiality
5.1. “Confidential Information" means all confidential business, technical, and financial information of the disclosing party that is marked as “Confidential” or an equivalent designation or that should reasonably be understood to be confidential given the nature of the information and/or the circumstances surrounding the disclosure. OpenGov’s Confidential Information includes, without limitation, the software underlying the Software Services, and all Documentation.
5.2. Confidential Information does not include: (a) data that the Customer has previously released to the public; (b) data that Customer would be required to release to the public upon request under applicable federal, state, or local public records laws; (c) Customer Data that Customer requests OpenGov make available to the public in conjunction with the Software Services; (d) information that becomes publicly known through no breach by either party; (e) information that was rightfully received by a party from a third party without restriction on use or disclosure; or (f) information independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information.
5.3. Each party agrees to obtain prior written consent before disclosing any of the other party's Confidential Information. Each party further agrees to use the other's Confidential Information only in connection with this Agreement. Each party further agrees to protect the other party's Confidential Information using the measures that it employs with respect to its own Confidential Information of a similar nature, but in no event with less than reasonable care. If a party is required to disclose Confidential Information by law or court order, the party must notify the other party in writing before making the disclosure to give the other party an opportunity to oppose or limit the disclosure.
6. Term and Termination
6.1. Term. This Agreement begins on the Effective Date and ends on the date the subscription ends (“Term”), according to the Order Form, unless sooner terminated pursuant to Section 6.2. If the Term expires later than the end of the City’s fiscal year, the continuation of the Term into the next fiscal year will be contingent upon the City’s lawful encumbrance or appropriation of the new funds for the Agreement, where funds are appropriated through at least June 30, 2024.
To invoke termination under this Section 6.1, the Customer’s staff responsible for the
4 OpenGov Services Agreement with City of San Pablo Revised October 11, 2023 management of this Agreement must use good faith efforts to secure the appropriate funds for the next year’s fees, and provide 60 days' written notice of such termination. Customer may not terminate for non-appropriation if it acquires similar products or services or requests a proposal for similar products or services.
6.2. Renewal. Unless the parties enter into a new Order Form to renew the Agreement for an additional period of no less than one (1) year (“Renewal Term”), this Agreement shall terminate at the end of the applicable Term or Renewal Term.
6.3. Termination for Cause. If either party breaches any term of this Agreement and fails to cure such breach within 30 days after receiving written notice by the non-breaching party , the non- breaching party may terminate this Agreement for cause. Neither party shall have the right to terminate this Agreement early without a legally valid cause.
6.4. Effect of Termination. Upon termination of this Agreement pursuant to Section 6.1 or 6.2, or
6.3: (a) Customer shall pay in full for all undisputed Software Services and Professional Services performed up to and including the date of termination or expiration; provided however that should the Agreement terminate for cause under section 6.3 due to an uncured breach by OpenGov, Customer shall receive a pro-rata refund for any pre-paid, unused fees, (b) OpenGov shall stop providing Software Services and Professional Services to Customer; and (c) each party shall (at the other party’s option) return or delete any of the other party’s Confidential Information in its possession.
7. Payment of Fees
7.1. Fees; Invoicing; Payment; Expenses.
7.1.1. Fees. Fees for Software Services and for Professional Services are set forth in the applicable Order Form, and OpenGov will invoice Customer accordingly. Customer agrees to pay all undisputed amounts on invoices within 30 days of receipt without setoffs, withholdings or deductions of any kind except as provided in Section 6.3. Invoices are deemed received when OpenGov emails them to Customer’s designated billing contact.
Except as provided in section 6, obligations to pay fees are non-cancelable, and payments are non-refundable.
7.1.2. Annual Software Maintenance Price Adjustment. OpenGov shall increase the fees for the Software Services during any Renewal Term by 5% each year of the Renewal Term..
7.1.3. This section deleted.
7.1.4. Customer Delays; On Hold Fee.
7.1.4.1. On Hold. Excluding delays caused by a force majeure event as described in Section
10.5, if OpenGov determines that Customer’s personnel or contractors are not completing Customer’s responsibilities described in the applicable SOW timely or accurately, OpenGov may place the Professional Services on hold. If OpenGov places a Customer on hold, OpenGov will ensure that Customer is made aware of its obligations necessary for OpenGov to continue performing the Professional Services.
Upon placing a customer on hold, OpenGov may, without penalty, suspend Professional Services to the Customer and reallocate resources until the Customer has fulfilled its obligations. OpenGov shall bear no liability or otherwise be responsible
5 OpenGov Services Agreement with City of San Pablo Revised October 11, 2023 for delays in the provision of the Professional Services occasioned by Customer’s failure to complete Customer’s responsibilities. OpenGov may extend the timeline to complete certain Professional Services depending on the availability of qualified team resources (OpenGov cannot guarantee that these team resources will be the same as those who were working on the project prior to it being placed On Hold).
7.2. Consequences of Non-Payment. Except as provided in section 6, if Customer fails to make any payments required under any Order Form or SOW, then in addition to any other rights OpenGov may have under this Agreement or applicable law, (a) Customer will owe late interest penalty of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower and (b) If Customer’s account remains delinquent (with respect to payment of a valid invoice) for 30 days after receipt of a delinquency notice from OpenGov, which may be provided via email to Customer’s designated billing contact, OpenGov may temporarily suspend Customer’s access to the Software Service for up to 90 days to pursue good faith negotiations before pursuing termination in accordance with Section 6.3. Customer will continue to incur and owe all applicable fees irrespective of any such Service suspension based on such Customer delinquency.
7.3. Taxes. All fees under this Agreement are exclusive of any applicable sales, value-added, use or other taxes (“Sales Taxes”). Customer is solely responsible for any and all Sales Taxes, not including taxes based solely on OpenGov’s net income. If any Sales Taxes related to the fees under this Agreement are found at any time to be payable, the amount may be billed by OpenGov to, and shall be paid by, Customer. If Customer fails to pay any Sales Taxes, then Customer will be liable for any related penalties or interest, and will indemnify OpenGov for any liability or expense incurred in connection with such Sales Taxes. In the event Customer or the transactions contemplated by the Agreement are exempt from Sales Taxes, Customer agrees to provide OpenGov, as evidence of such tax exempt status, proper exemption certificates or other documentation acceptable to OpenGov.
8. Representations and Warranties; Disclaimer
8.1. By OpenGov.
8.1.1. General Warranty. OpenGov represents and warrants that it has all right and authority necessary to enter into and perform this Agreement.
8.1.2. Professional Services Warranty. OpenGov further represents and warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with the related SOW and generally prevailing industry standards. For any breach of the Professional Services warranty, Customer’s exclusive remedy and OpenGov’s entire liability will be the re-performance of the applicable services. If OpenGov is unable to re-perform such work as warranted, Customer will be entitled to recover all fees paid to OpenGov for the deficient work. Customer must give written notice of any claim under this warranty to OpenGov within 90 days of performance of such work to receive such warranty remedies.
8.1.3. Software Services Warranty. OpenGov further represents and warrants that for a period of 90 days after completion of the Professional Services under the SOW, the Software Services will perform in all material respects in accordance with the Documentation. The
6 OpenGov Services Agreement with City of San Pablo Revised October 11, 2023 foregoing warranty does not apply to any Software Services that have been used in a manner other than as set forth in the Documentation and authorized under this Agreement.
OpenGov does not warrant that the Software Services will be uninterrupted or error-free.
Customer must give written notice of any claim under this warranty to OpenGov during the Term. OpenGov’s entire liability for any breach of the foregoing warranty is to repair or replace any nonconforming Software Services so that the affected portion of the Software Services operates as warranted or, if OpenGov is unable to do so, terminate the license for such Software Services and refund the pre-paid, unused portion of the fee for such Software Services.
8.2. By Customer. Customer represents and warrants that (a) it has all right and authority necessary to enter into and perform this Agreement; and (b) OpenGov’s use of the Customer Data pursuant to this Agreement will not infringe, violate or misappropriate the Intellectual Property Rights of any third party.
8.3. Disclaimer. OPENGOV DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY
WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE SERVICES. EXCEPT AS SET FORTH IN THIS SECTION 8, THE SOFTWARE SERVICES ARE PROVIDED “AS IS” AND OPENGOV DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
9. Insurance and Limitation of Liability
9.1. Insurance. During the term of this Agreement, Service Provider shall maintain at its own cost and expense the following insurance coverage against claims for injuries to persons or damages to property that may arise from or in connection the performance of the work under this Agreement and the results of that work by the Service Provider, its agents, representatives, or employees, with insurers with an A.M. Best's rating of no less than A:VII unless otherwise accepted by the City in writing:
9.1.1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 or an equivalent covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and 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. A combination of primary, excess and umbrella limits are acceptable to satisfy the minimum policy limit requirements.
9.1.2. Workers' Compensation Insurance. As required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. For services deemed public works, by signing this agreement, Service Provider is certifying, pursuant to Section 1861 of the California Labor Code, that: "I am aware of the provisions of
7 OpenGov Services Agreement with City of San Pablo Revised October 11, 2023 Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work of this Contract."
9.1.3. Cyber Liability: combined single limit of at least $1,000,000.
9.1.4. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions:
9.1.4.1. Additional Insured Status. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Service Provider including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Service Provider’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 and CG 20 37 if a later edition is used).
9.1.4.2. Primary Coverage. For any claims related to this contract, the Service Provider’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Service Provider’s insurance and shall not contribute with it.
9.1.4.3. Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City.
9.1.4.4. Waiver of Subrogation. Service Provider hereby grants to City a waiver of any right to subrogation which any insurer of said Service Provider may acquire against the City by virtue of the payment of any loss under such insurance. Service Provider agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
9.1.4.5. Deductibles and Self-Insured Retentions. Any deductibles or self- insured retentions must be declared to the City.
9.1.4.6. Certificate of Insurance and Endorsements. Service Provider shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Service Provider’s
8 OpenGov Services Agreement with City of San Pablo Revised October 11, 2023 obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
9.1.4.7. Subcontractors. Service Provider shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated in this Agreement, including but not limited to naming additional insureds.
9.1.4.8. 9.2. By Type. NEITHER PARTY, NOR ITS SUPPLIERS, OFFICERS, AFFILIATES,
REPRESENTATIVES, CONTRACTORS OR EMPLOYEES, SHALL BE RESPONSIBLE
OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY:
(A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OF
DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
9.3. By Amount. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE, CUMULATIVE
LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO
THIS AGREEMENT EXCEED TWO TIMES THE TOTAL FEES TO BE PAID BY
CUSTOMER TO OPENGOV FOR THE SOFTWARE AND SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
9.4. Limitation of Liability Exclusions. The limitations of liability set forth in Sections 9.1 and 9.2 above do not apply to, and each party accepts liability to the other for: (a) claims based on the intentional breach by the party accepting liability of its obligations set forth in Section 5 (Confidentiality), and (b) claims arising out of fraud or willful misconduct by the party accepting liability.
10. Miscellaneous
10.1. Notice. Ordinary day-to-day operational communications may be conducted by email, live chat or telephone. However, for notices, including legal notices, required by the Agreement (in sections where the word “notice” appears) the parties must communicate more formally in a writing sent via USPS certified mail and via email. OpenGov’s addresses for notice are:
OpenGov, Inc., 6525 Crown Blvd #41340, San Jose, CA 95160, and [email protected].
The City of San Pablo’s addresses for notice are: City of San Pablo, Attention: Matt Rodriguez, City Manager, 1000 Gateway Avenue, San Pablo, CA 94806, and [email protected]
With a copy to: City of San Pablo, Public Works Maintenance, Attention: Daniel Gomez, 1000 Gateway Avenue, San Pablo, CA 94806, and [email protected] Invoices should be sent to: City of San Pablo, Public Works Maintenance, Attention: Daniel
9 OpenGov Services Agreement with City of San Pablo Revised October 11, 2023 Gomez, 1000 Gateway Avenue, San Pablo, CA 94806, and [email protected]
10.2. Anti-corruption. Neither OpenGov nor any of its employees or agents has offered or provided any illegal or improper payment, gift, or transfer of value in connection with this Agreement.
The parties will promptly notify each other if they become aware of any violation of any applicable anti-corruption laws in connection with this Agreement.
10.3. Injunctive Relief. The parties acknowledge that any breach of the confidentiality provisions or the unauthorized use of a party’s intellectual property may result in serious and irreparable injury to the aggrieved party for which damages may not adequately compensate the aggrieved party. The parties agree, therefore, that, in addition to any other remedy that the aggrieved party may have, it shall be entitled to seek equitable injunctive relief without being required to post a bond or other surety or to prove either actual damages or that damages would be an inadequate remedy.
10.4. Force Majeure. Neither party shall be held responsible or liable for any losses arising out of any delay or failure in performance of any part of this Agreement, other than payment obligations, due to any act of god, act of governmental authority, or due to war, riot, labor difficulty, failure of performance by any third-party service, utilities, or equipment provider, or any other cause beyond the reasonable control of the party delayed or prevented from performing.
10.5. Severability; Waiver. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement.
10.6. Survival. The following sections of this Agreement shall survive termination: Section 5. (Confidentiality), Section 7 (Payment of Fees), Section 4.4 (Deletion of Customer Data), Section 8.3 (Warranty Disclaimer), Section 9 (Limitation of Liability) and Section 10 (Miscellaneous).
10.7. Assignment. There are no third-party beneficiaries to this Agreement. Except as set forth in this Section 10.8, neither party may assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations to a third party without the other party's written consent, which consent may not be unreasonably withheld, conditioned, or delayed. Either party may assign, without such consent but upon written notice, its rights and obligations under this Agreement to its corporate affiliate or to any entity that acquires all or substantially all of its capital stock or its assets related to this Agreement, through purchase, merger, consolidation, or otherwise.
Any other attempted assignment shall be void. This Agreement will benefit and bind permitted assigns and successors.
10.8. Independent Contractors. This Agreement does not create an agency, partnership, joint venture, or employment relationship, and neither party has any authority to bind the other.
10.9. Governing Law and Jurisdiction. California laws govern this Agreement, without regard to conflict of laws principles. Exclusive jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with this Agreement shall be only in the Federal or State court with competent jurisdiction located in Contra Costa County, California, and the parties
10 OpenGov Services Agreement with City of San Pablo Revised October 11, 2023 submit to the personal jurisdiction and venue therein.
10.10. Complete Agreement. OpenGov has made no other promises or representations to Customer other than those contained in this Agreement. Any modification to this Agreement must be in writing and signed by an authorized representative of each party.
Authorized representatives are as follows:
OpenGov: Sam Kramer, VP of Finance
City of San Pablo: City Manager
Signatures
Customer: City of San Pablo
Signature:
Name: Matt Rodriguez
Title: City Manager
Date:
OpenGov, Inc.
Signature:
Name: Sam Kramer
Title: VP of Finance
Date:
APPROVED AS TO FORM
FOR THE CITY OF SAN PABLO:
By _______________________________
Teresa L. Stricker, City Attorney
Date ______________________________
11 OpenGov Services Agreement with City of San Pablo Revised October 11, 2023
Exhibit A
Order Form
OpenGov Inc.
PO Box 41340
San Jose, CA 95160
United States
OG-00CA4969
4/18/2023 Audrey Helle
9/30/2023
8/1/2023 36 Months
7/31/2026
City of San Pablo, CA Allan Panganiban
13831 San Pablo Avenue [email protected]
San Pablo, California 94806
United States
Annually in Advance
Net Thirty (30) Days
Product / Service Start Date End Date Annual Fee
Enterprise Asset Management
8/1/2023 7/31/2024 $45,717.55
Enterprise Asset Management
8/1/2024 7/31/2025 $48,003.42
Enterprise Asset Management
8/1/2025 7/31/2026 $50,403.59
August 1, 2023 $45,717.55
August 1, 2024 $48,003.42
August 1, 2025 $50,403.59
Welcome to OpenGov! This Order Form is entered into between OpenGov, Inc. (“OpenGov”), and you, the entity identified above (“Customer”), effective as of the date of the last signature below. This Order Form incorporates the OpenGov Master Services Agreement ("MSA") available at https://opengov.com/terms-of-service/master-services-agreement/. If professional services are purchased, the applicable Statement of Work ("SOW") is also incorporated. The Order Form, MSA, and, if applicable, the SOW are the full "Agreement". Unless otherwise specified above, fees for the Software Services and Professional Services shall be due and payable, in advance, 30 days from recceipt of the invoice. By signing this Agreement, Customer acknowledges that it has reviewed, and agrees to be legally bound by the Agreement. Each party’s acceptance of this Agreement is conditional upon the other’s acceptance of the Agreement to the exclusion of all other terms.
Signature: Signature:
Name: Name:
Title: Title:
Date: Date:
Quote Number:
Created On: Prepared By:
Order Form Expiration: Email:
Subscription Start Date: Contract Term:
Subscription End Date:
Customer: Contact Name:
Bill To/Ship To: Email:
Billing Frequency:
Payment Terms:
SOFTWARE SERVICES:
Annual Subscription Total:
Billing Table:
Billing Date Amount Due
City of San Pablo, CA OpenGov, Inc.
[email protected]
Customer Information
Order Details
Order Form Legal Terms
OMS Plus, OMS Users (50 Users), Parks and Recreation Domain, Stormwater Domain, Transportation Domain, Walkability Domain, Asset Builder, Integration Toolkit OMS Plus, OMS Users (50 Users), Parks and Recreation Domain, Stormwater Domain, Transportation Domain, Walkability Domain, Asset Builder, Integration Toolkit OMS Plus, OMS Users (50 Users), Parks and Recreation Domain, Stormwater Domain, Transportation Domain, Walkability Domain, Asset Builder, Integration Toolkit
12 OpenGov Services Agreement with City of San Pablo Revised October 11, 2023
Exhibit B
SUPPORT AND SOFTWARE SERVICE LEVELS
Exhibit B
SUPPORT AND SOFTWARE SERVICE LEVELS
This Support and Software Services Levels Exhibit (“Support Exhibit”) is to OpenGov’s Software Services Agreement, as amended (the “Agreement”). Capitalized terms not defined herein have the meaning indicated in the Agreement and its associated Order Form(s).
I. SUPPORT FOR OPENGOV SOFTWARE SERVICES:
A. SUPPORT PLANS
OpenGov offers two types of technical support plans for all support issues relating to the OpenGov Software Services in accordance with Table 1:
TABLE 1 Standard and Premium Support Offerings and Service Level Offering Standard Premium
Unlimited Number of Support Cases per Year* ✔ ✔
Unlimited Access to OpenGov Resource Center ✔ ✔
Unlimited Online access to the Support Request Portal ✔ ✔ Access to Phone/Chat Support 4:00 AM PT to 7:00 PM PT
Monday through Friday, excluding OpenGov holidays ✔ ✔
Designated OpenGov Contact - ✔
Increased Response Times - ✔
SEVERITY LEVEL FIRST RESPONSE TIME
Urgent
One (1)
Business Hour
One (1)
Calendar Hour
High
One (1)
Business Day
Two (2)
Business Hours
Normal
Four (4)
Business Days
Eight (8)
Business Hours
Low
Eight (8)
Business Days
Two (2)
Business Days
* Support Cases are defined as issues related to the OpenGov Software Services.
1. Severity Level Definitions
Severity Level Urgent: Customer experiences complete loss of use of the Software Services, meeting the definition of “Unavailable” in Section V-A-1 below and no procedural workaround exists, thereby blocking a Customer’s business operations.
Severity Level High: Customer experiences a severe defect or configuration issue with the use of the Software Services and no procedural workaround exists, thereby causing a high impact to Customer’s business operations (excluding Software Service failures that qualify as Severity Level Urgent).
Severity Level Normal: Customer experiences a problem where the use of the Software Services are partially reduced, thereby causing a low-to-medium impact to Customer’s business operations. A procedural workaround exists (excluding Software Service issues that qualify as Severity Level Urgent or High).
Severity Level Low: Routine Software Service support requests relating to issues where the use of the Software Service is negligibly reduced thereby causing a no-to-low impact to a Customer’s business operations (excluding Software Service issues that qualify as Severity Level Urgent, High or Normal).
2. Assignment of Severity Levels: OpenGov will determine the Severity Level assigned to each support issue in its reasonable discretion, but taking into consideration the Severity Level input by Customer.
3. First Response Time: OpenGov will use commercially reasonable efforts to respond (via OpenGov’s Normal Support Channels) to each support issue reported by the Customer within the applicable response time in Table 1, depending on the applicable severity level and Support Plan contracted by the Customer. “Business Days” are Monday-Friday, excluding holidays (which said holidays are described in our Resource Center). “Business Hours” are 4:00 AM PT to 7:00 PM PT Business Day.
II. SUPPORT REQUEST PORTAL & RESOURCE CENTER:
A. Customer must opt-in to OpenGov’s support portal (“Support Portal”) to take required actions relating to support and use of the Software Services.
B. Customer must opt-in to the Resource Center to receive certain important information about updates and other changes to the Software Services
III. EXCLUSIONS
This Support Exhibit does not apply to any: (a) features designated Beta or Limited Availability (unless otherwise stated in the associated Documentation), (b) features excluded from the Support Exhibit, (c) responding to problems caused by third party software, (d) configuration changes for third party software, (e) support for issues related to the operation of the Software Services on local personal computers and related printing issues; problems with the browser and loading the required add-on programs; support for using Vision and Intellicus reporting tools, (f) firewall support, (g) responding to problems caused by hardware, (h) issues with ViewPoint ViewPermit Software, (i) on-site support, and (j) errors: (i) caused by factors outside of OpenGov's reasonable control, including misuse, accidents, Customer neglect, or fire; (ii) that resulted from Customer's equipment, software or hardware or third party software or hardware, or both; (iii) that resulted from abuses or other behaviors that violate the Agreement, (iv) that result from Customer’s unauthorized action or lack of action when required, or from Customer’s employees, agents, contractors, or vendors, or anyone gaining access to OpenGov’s network by means of Customer’s passwords or equipment, or otherwise resulting from Customer’s failure to follow appropriate security practices; or (v) that result from Customer’s failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or Customer’s use of the Software Services in a manner inconsistent with the features and functionality of the Software Services (for example, attempts to perform operations that are not supported) or inconsistent with OpenGov’s published guidance.
IV . PREMIUM SERVICES
A. Customers who subscribe to Premium Services will be assigned an OpenGov Designated Contact or “Named Contact”. A Named Contact is a designated point of contact who provides coordination and access to consulting, training, and configuration services. In addition, Named Contacts will provide quarterly reviews with the Customer to review outstanding support items, upcoming projects, and technical needs.
B. "Premium Services" are defined as services in addition to the “Standard” support provided with the annual OpenGov Software Services. Premium Services are available at OpenGov’s discretion and will be billed on a time and materials basis at the then current billable rate.. i. OpenGov Consultation and Training. Step by step instruction, and problem solving by a product or subject matter expert to Customer for users of the Software Services. OpenGov will provide web based, one-on-one remote training to any user during normal OpenGov business hours. This does not include training for newly purchased Software Services that are in deployment. Training is only included for Software Services purchased. Customer users must have a working knowledge of their job function, and of the Software Services. ii. OpenGov Software Services Configuration:Configuration of the Software Services, with direction by the Customer. These configuration services are available for currently licensed software and at the sole discretion of OpenGov.
V . OPENGOV SOFTWARE SERVICES:
A. SOFTWARE SERVICE LEVELS
1. Uptime Commitment
The Quarterly Uptime Percentage for the Software Service (excluding the Permitting, Licensing and Code Enforcement / Citizen Services Software Services and any OpenGov software not hosted by OpenGov) will be ninety-nine and nine-tenths percent (99.9%) (the “Uptime Commitment”). The Uptime Commitment for Permitting, Licensing and Code Enforcement / Citizen Services Software Services will be ninety-nine percent (99%). Subject to the exclusions described in Subsection V .A.2 below, “Quarterly Uptime Percentage” is calculated by subtracting from 100% the percentage of 1-minute periods during any quarterly billing cycle (i.e., 3 calendar months) in which the Software Services (are) Unavailable out of the total number of minutes in that quarterly billing cycle. “Unavailable” and “Unavailability” mean that, in any 1-minute period, all connection requests received by the Software Services failed to process (each a “Failed Connection”); provided, however, that no Failed Connection will be counted as a part of more than one such 1-minute period (e.g. a Failed Connection will not be counted for the period 12:00:00-12:00:59 and the period 12:00:30-12:01:29). The Quarterly Uptime Percentage will be measured based on the industry standard monitoring tools OpenGov uses.
2. Exclusions from Quarterly Uptime Percentage
Notwithstanding anything to the contrary in this exhibit, any Software Service Unavailability issues resulting from any of the following will be excluded from calculation of Quarterly Uptime Percentage:
2.1 Regularly scheduled maintenance of the Software Service that is communicated by OpenGov at least twenty-four (24) hours in advance via the Support Portal. (OpenGov typically schedules such regularly scheduled maintenance twice per month);
2.2 any issues with a third-party service to which Customer subscribes (e.g. Budget Book by Workiva);
2.3 any problems not caused by OpenGov that result from (a) computing or networking hardware, (b) other equipment or software under Customer’s control, (c) the Internet, or (d) other issues with electronic communications;
2.4 OpenGov’s suspension or termination of the Software Service in accordance with the Agreement and/or its associated Order Form;
2.5 the Software Service is experiencing an unforeseeable amount of user requests from Customer;
2.6 software that has been subject to unauthorized modification by Customer;
2.7 negligent or intentional misuse of the Software Service by Customer; or
2.8 “Beta” or “limited availability” products, features and functions identified as such by OpenGov.
Customer may elect to use certain billable OpenGov Professional Software Services to resolve issues associated with the excluded areas listed in this Subsection V-A-2. Such Professional Software Services may require Customer to complete a network assessment, and/or give OpenGov access to Customer’s network, in order to diagnose the issue.
3. Process
Customer shall notify OpenGov of any Unavailability via the Support Portal. Customer shall provide such notification within thirty (30) days of the Unavailability event.
13 OpenGov Services Agreement with City of San Pablo Revised October 11, 2023 Exhibit C
Statement of Work