CONSENT TO ASSIGNMENT AGREEMENT
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
ACCELA, INC.
(Formerly known as PublicStuff, Inc.)
PREAMBLE
this consent to assignment agreement ("Consent Agreement") is by and between the City of Santa Clara, California, a chattered California municipal corporation, with its principal place of business located at 1500 Warburton A venue, Santa Clara, California 95050 ("City"), Public Stuff, Inc., a Delaware Corporation, with its principal place of business located at 214 West 29th Street, Suite 205, New York, NY 10001 ("Public Stuff ' or "Assignor") and Accela, Inc., a California Corporation, with its principal place of business located at 2633 Camino Ramon, Suite 500, San Ramon, CA 94583 ("Accela" or "Assignee"), the intended successor in interest to Agreement for Professional Services By and Between the City of Santa Clara, California and PublicStuff , Inc. City, Public Stuff and Accela may be individually referred to in this Consent Agreement as a "Party" or collectively as the "Parties" or the "Patties to this Consent Agreement."
RECITALS
A. City and Public Stuff entered into an agreement entitled, "Agreement by and Between the City of Santa Clara, California and Public Stuff,", dated December 12, 2014 (the "Original Agreement ") in which Public Stuff agreed to the implementation and maintenance of a mobile application for citizen engagement to/with the City;
B. Section 10.7 of the Original Agreement entitled Assignment provides as follows:
"These Terms and Conditions and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other patty's written consent, not to be unreasonably withheld, conditioned or delayed. However, without consent, either party may assign their rights and obligations hereunder to any successor to all or substantially all of its business (whether by sale of assets or equity, merger, consolidation or otherwise). These Terms and Conditions shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto." C. The City has been informed that due to the acquisition of Public Stuff by Accela, that Accela is the surviving entity and as such will continue to provide the services to the City under the Original Agreement. Public Stuff desires to have the City consent to the assignment of all rights, obligation s and interest in the Original Agreement from Public Stuff to Accela.
D. Based on the final approval of the merger/acquisition, it is the desire of City to formally consent to the assignment by Public Stuff of all its rights, obligations and interest in the Original Agreement to Accela.
Consent to Assignment Agreement/ Acee la, Inc.
Rev. 02/01/15; Typed 8/20/15
Page I of3
In consideration of the above referenced recitals and the following mutual covenants , commitments and obligations , the Parties agree, as follows:
CONSENT AGREEMENT PROVISIONS
1. Based on a written request received by the City from Accela, (and contingent upon the finalization of the merger) City hereby consents to the assignment of the Original Agreement and all of the rights, duties, obligations and interest set forth therein from Public Stuff to Accela. This consent is based on representations made by Accela and Public Stuff and all the duties and obligations of Public Stuff to perform specified services included in the Original Agreements shall be performed by Accela after the merger is complete. This Consent is effective as of the completion of the merger. If, for any reason, the pending merger is not completed, this Consent Agreement shall be deemed void and Public Stuff shall continue to be bound to perform the obligations set forth in the Original Agreements.
2. City acknowledges and relies on this acceptance by Accela of all of the rights, obligations an interest in the Original Agreement and the relinquishment of all such the rights, obligations and interest in the Original Agreement by Public Stuff. Accela agrees to undertake any and all action(s) necessary to meet the terms and conditions of the Original Agreement referred to in this Consent Agreement.
3. Upon execution of this Consent Agreement (and the completion of the pending merger) any pending debts or obligations due to City and those which subsequently arise or accrue from the terms and conditions of the Original Agreement shall become payable by Accela to the City or its agents, or assigns .
4. This Consent Agreement embodies the entire agreement between City, Accela and Public Stuff and all of its terms and conditions. No verbal agreements or conversation with any officer, agent or employee of City prior to execution of this Consent Agreement shall affect or modify any of the terms or obligations contained in this Consent Agreement. Any such verbal agreement shall be considered as unofficial information and in no way binding upon City.
5. As a condition of the terms of this Consent Agreement, Accela shall provide the City with the following:
a. Revised Certificate oflnsurance, as well as all policy endorsements to indicate that Accela has purchased, and is maintaining, all of the required insurance policies and has provided the required endorsements which were included in the terms and conditions of the Original Agreement.
b. Prior to the effectiveness of any assignment or transfer under this Consent Agreement, Accela shall execute and deliver a fully executed and notarized Affidavit of Compliance with Ethical Standards, attached here as Exhibit A and B.
6. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument ; and, the Parties agree that signatures on this Agreement, including those transmitted by facsimile, shall be sufficient to bind the Parties.
Consent to Assignment Agreement/ Accela, Inc.
Rev. 02/01/15 ; Typed 8/20/ 15
The Parties to this Consent Agreement hereby acknowledge and accept the terms and conditions stated herein by the following signatures of their duly authorized representatives. The signature of the duly authorized representative of Accela confirms its acceptance of the terms and conditions of the Original Agreement and the assignment of the Original Agreement from Public Stuff. The Effective Date is the date that the final signatory executes the Agreement. It is the intent of the Parties that this Agreement shall become operative on the Effective Date.
CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
APPROVED AS TO FORM:
{1V ~~JR.
City Attorney
ATIES~
ROD DIRID0,JR.
City Clerk
Public Stuff, Inc.,
a Delaware Corporation I
Dated: AA~~7 ~
By: ~ I _\ ..- - _,, -=-= Title: Secretary
Address: 214 West 29th Street, Suite 205
New York, NY 10001
Telephone: 925-659-3200
Facsimile: 925-659-3201
Email Address: contractsadmin@accela .com
"Assignor"
Consent to Assignment Agreement/ Accela, Inc.
Rev. 02/01/15; Typed 8/20/15
Dated: I-;.,- If,_ ~ I'> ----- - --~--
.rtJLIO J. FUENTES
City Manager
1500 Warburton A venue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: ( 408) 241-6771
"CITY"
Accela, Inc.
a California Corporation
By: ~,~
Title: Assistant Corporate Secretmy
Address: 2633 Camino Ramon, Suite 500
San Ramon, CA 94583
Telephone: 925-659-3200
Facsimile: 925-659-3201
Email Address: [email protected]
"Assignee"
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANT A CLARA, CALIFORNIA
AND
ACCELA, INC.
EXHIBIT A
ETHICAL STANDARDS FOR CONTRACTORS SEEKING TO ENTER INTO
AN AGREEMENT WITH THE CITY OF SANTA CLARA, CALIFORNIA
Termination of Agreement for Certain Acts.
A. The City may, at its sole discretion, terminate this Agreement in the event any one or more of the following occurs:
1. If a Contractor 1 does any of the following:
a. Is convicted2 of operating a business in violation of any Federal, State or local law or regulation;
b. Is convicted of a crime punishable as a felony involving dishonesty3; c. Is convicted of an offense involving dishonesty or is convicted of fraud or a criminal offense in connection with: (1) obtaining; (2) attempting to obtain; or, (3) perfo1ming a public contract or subcontract; d. Is convicted of any offense which indicates a lack of business integrity or business honesty which seriously and directly affects the present responsibility of a City contractor or subcontractor; and/or, e. Made (or makes) any false statement(s) or representation(s) with respect to this Agreement.
For purposes of this Agreement, the word "Consultant" (whether a person or a legal entity) also refers to "Contractor" and means any of the following: an owner or co-owner of a sole proprietorship; a person who controls or who has the power to control a business entity; a general pa11ner of a partnership; a principal in a joint venture; or a primary corporate stockholder [i.e., a person who owns more than ten percent (10%) of the outstanding stock of a corporation] and who is active in the day to day operations of that corporation. 2 For purposes of this Agreement, the words "convicted" or "conviction" mean a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea ofnolo contendere within the past five (5) years. 3 As used herein, "dishonesty" includes, but is not limited to, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, failure to pay tax obligations, receiving stolen property, collusion or conspiracy.
Ethical Standards for Contractors/Exhibit A/Accela, Inc.
Rev. 05/17/12 ; Typed 08/20/15
2. If fraudulent, criminal or other seriously improper conduct of any officer, director, shareholder, partner, employee or other individual associated with the Contractor can be imputed to the Contractor when the conduct occurred in connection with the individual's performance of duties for or on behalf of the Contractor, with the Contractor's knowledge, approval or acquiescence, the Contractor's acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval or acquiescence.
B. The City may also terminate this Agreement in the event any one or more of the following occurs:
1. The City determines that Contractor no longer has the financial capability 4 or
business experience 5 to perform the terms of, or operate under, this Agreement; or,
2. If City determines that the Contractor fails to submit information, or submits false information, which is required to perform or be awarded a contract with City, including, but not limited to, Contractor's failure to maintain a required State issued license, failure to obtain a City business license (if applicable) or failure to provide and maintain bonds and/or insurance policies required under this Agreement.
C. In the event a prospective Contractor (or bidder) is ruled ineligible (debarred) to participate in a contract award process or a contract is terminated pursuant to these provisions, Contractor may appeal the City's action to the City Council by filing a written request with the City Clerk within ten (10) days of the notice given by City to have the matter heard. The matter will be heard within thirty (30) days of the filing of the appeal request with the City Clerk. The Contractor will have the burden of proof on the appeal.
The Contractor shall have the opportunity to present evidence, both oral and documentary, and argument.
4 Contractor becomes insolvent , transfers assets in fraud of creditors, makes an assignment for the benefit of creditors, files a petition under any section or chapter of the federal Bankruptcy Code (11 U.S.C.), as amended, or under any similar law or statute of the United States or any state thereof, is adjudged bankrupt or insolvent in proceedings under such laws, or a receiver or trustee is appointed for all or substantially all of the assets of Contractor.
5 Loss of personnel deemed essential by the City for the successful performance of the obligations of the Contractor to the City.
Ethical Standards for Contractors/Exhibit NAccela, Inc.
Rev. 05/17/12; Typed 08/20/15
AGREEMENT FOR THE PERFORMANCE OF SERVICES
BY AND BETWEEN THE
CITY OF SANT A CLARA, CALIFORNIA
AND
ACCELA, INC.
EXHIBITB
AFFIDAVIT OF COMPLIANCE WITH ETHICAL ST AND ARDS
I hereby state that I have read and understand the language, entitled "Ethical Standards" set forth in Exhibit D. I have the authority to make these representations on my own behalf or on behalf of the legal entity identified herein. I have examined appropriate business records, and I have made appropriate inquiry of those individuals potentially included within the definition of "Contractor" contained in Ethical Standards at footnote 1.
Based on my review of the appropriate documents and my good-faith review of the necessa1y inquiry responses, I hereby state that neither the business entity nor any individual(s) belonging to said "Contractor" category [i.e., owner or co-owner of a sole proprietorship, general pa1tner, person who controls or has power to control a business entity, etc.] has been convicted of any one or more of the crimes identified in the Ethical Standards within the past five (5) years.
The above assertions are true and correct and are made under penalty of perjury under the laws of the State of California.
ACCELA, INC.
~ / Cal:fi/'omia rCo~
By: ~ ------- - ------- - -----Signature of Authorized Person or Representative Name: Colin Samuels
Title: Assistant Corporate Secretary
NOTARY'S ACKNOWLEDGMENT TO BE ATTACHED
Al J IAH PEARSON
Ctfflmlllloll • 2071450
NallrJ hNe - Cltlfornla
Please execute the affidavit and attach a notary public 's acknowledgment of execution of the affidavit by the signatory. If the affidavit is on behalf of a corporation, partnership, or other legal entity, the entity's complete legal name and the title of the person signing on behalf of the legal entity shall appear above. Written evidence of the authority of the person executing this affidavit on behalf of a corporation, partnership, joint venture, or any other legal entity, other than a sole proprietor ship, shall be attached.
Compliance with Ethical Standards for Contractors/Exhibit Bl Accela, Inc.
Rev. 05/17/12; Typed 08/20/15
Page l of2
CALIFORNIA ALL-PURPOSE ACKNOWLEDGME NT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
) County of DVl'ft- r~~I--
On 1.t Av~v-sr ?,o, ~ before me, _ {.:;_,_,_/._'.d_ ,_~_ VT_--. _ _ ___ _ _ _ _ _ _ __ _ Here Insert Name and Title of the Officer Date
personally appeared __ (=--o/_.k __ _:...$ _""1._ v_d-'-~ - -------- - ------ - - Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
Place Notary Seal Above
I certify under PENAL TY OF PERJURY under the laws
of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and offic ial seal.
Signature ~
gnatureof Notary Public
----- - --- - ---- - OPTIONAL _ _______ _ _____ _
Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document.
Description of Attached Document II f~ :,~,.
Title or Type of Document: !,-..st.J:: fo ft' S~J"1."1(4t .. . <;-t-,J Document Date: J, k")v:>"'"" >ac;- Number of Pages: ___ Signer(s) Other Than Named Above: _ _ ___ ______ _ _ Capacity(ies) Claimed bJ Signer(s)
Signer's Name: ( . /,v.. }a,,,e.,;/J Signer's Name: _ ___ ___ ___ _ _ ,ercorporate Officer - Title(s): _ _ ___ __ □ Corporate Officer - Title(s): _ ___ _ _ _ □ Partner - □ Limited □ General □ Partner - □ Limited □ General □ Individual □ Attorney in Fact □ Individual □ Attorney in Fact □ Trustee □ Guardian or Conservator □ Trustee □ Guardian or Conservator □ Other: ------~~------- □ Other: _ _ _ _ _ ___ _ ___ _ _ Signer Is Representing: A{(J .... , 7:"1.c . Signer Is Representing: _ _ _ _ _ ___ _ ©2014 National Notary Association• www.NationalNotary.org • 1-800-US NOTARY (1 -800-876-6827) Item #5907