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CITY OF STOCKTON
STANDARD AGREEMENT
1. This Agreement is entered into between the City of Stockton (“City”) and (“Contractor”)to provide
as set forth in Exhibit A to this Agreement.
_____________________________________________________________________________
2. The term of this Agreement is as follows, unless amended as described in Exhibit A and Exhibit C section 8:
Commences on: Terminates on:
_____________________________________________________________________________
3. The maximum not to exceed amount to be paid to Contractor for the term of this Agreement, including if authorized, reimbursement of expenses, is: $
4. The complete Agreement consists of all the following Agreement documents which by reference are incorporated and made a part of this Agreement. The parties agree to comply with the terms and conditions of this Agreement.
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____________________________________________________________________________ IN WITNESS WHEREOF, the authorized parties have executed this Agreement.
CONTRACTOR
______________________________________________________________________________________________ Contractor’sName (if other than an individual, state whether a corporation, partnership, etc.):
______________________________________________________________________________________________ Authorized Signature Date
______________________________________________________________________________________________ Printed Name and Title of Person Signing
______________________________________________________________________________________________ Address
CITY OF STOCKTON
_________________________________________________________BB________________ +DUU\%ODFN City Manager Date
ATTEST:
____________________________________________________________________________ (OL]D5*DU]D&0&, City Clerk
APPROVED AS TO FORM:
/RUL0$VXQFLRQ, $FWLQJCity Attorney
BY:
Agreement Number:
(a) Exhibit A – Statement of Work
(b) Exhibit B – Insurance
(c) Exhibit C – General Terms Conditions
(d) Exhibit D –
H
Exhibit E – Compensation Schedule
(f) Exhibit F – Timeline
Attachment B
Open Counter, Inc. Portal Services and Additional Features August 1, 2022 July 31, 2025
624,438
Professional Services Special Terms & Conditions
ARPA
Open Counter, Inc.
EXHIBIT A
STATEMENT OF WORK
1. Project Objectives
The One Page Strategic Plan (OGSP) Strategies includes reducing barriers to entry as a strategy to the goal of making Stockton the best city in America to live, raise a family, and grow a business. Open Counter, Inc. (Consultant) offers a software solution that offers the following features, which will help City departments contribute substantially to that strategy:
1.1. Location-Specific Permit Scoping – Through a series of questions, the software will provide a comprehensive list of all permits and licenses required, tailored to the customer’s specific location and project details, including information about additional requirements from outside agencies and the City’s available economic incentive programs.
1.2. Intuitive and Dynamic Zoning Map – The software will be linked to the City’s GIS system and provide a simple visual map based on the provided address, indicating if the project is “permitted,” “conditional,” or “prohibited.”
1.3. Intelligent Land Use Search – Customers will be able to search in common language terms and phrases, and the system will match the term to the appropriate land use category from the Stockton Municipal Code.
1.4. Fee Estimate – The project fee estimate will be updated in real time as the applicant enters project details and include a fee estimate from all City of Stockton permit and license requirements.
1.5. Project Summary and Application(s) Handoff – A customer who has finished scoping their project with the software will be directed to the next phase of the permitting process and provide a printed summary of the requirements and the handoff page will contain links to the required application(s).
1.6. Language Translation – The software will be available in both English and Spanish.
1.7. Analytics – The software will provide administrative dashboards and utilization metrics .
These specific features will make doing business or building or improving a structure in the City much more accessible to a wider range of citizens and a lot easier and more transparent for customers seeking a permit in the City, substantially reducing the barrier to entry for many citizens and contributing greatly to the OGSP.
Attachment B
2. Project Scope
2.1. The consultant shall provide the following software services:
2.1.1. ZoningCheck Portal, Business Portal, and Residential Portal software bundle
2.1.2. Esri ARC GIS integration
2.1.3. Spanish Language Translation for all portals.
2.2. The Consultant will work with the City’s Accela technical consultant to implement a “deep integration” between Open Counter and Accela for 15 Accela record types.
2.3. The Consultant shall fully integrate all relevant portions of the Stockton Municipal Code, economic incentive programs through the Economic Development Department, and all prerequisite requirements necessary for permitting and business licensing.
2.4. The consultant shall provide three years of service to all portals and software implemented with the option to renew annually thereafter.
2.5. The consultant shall provide maintenance services for improvements, adjustments, and enhancements to the implementation for the entire contract duration.
3. Specifications
3.1 The back-end processes must be compatible with the City’s current desktop, laptop, or tablet computing environment.
3.1.1. Workstations are current ly running Windows 10 and Office 365. Microsoft Edge, Chrome, or Firefox are the standard Web browser. The city uses SharePoint365 for document
collaboration and sharing.
3.1.2. The new software will be required to integrate with 3rd party applications and to easily receive and transmit data to local, state, and federal agencies. Integration tools must be open and support a Microsoft Windows platform, e.g., .NET,
Service Oriented Architecture, XML, Web Services, APIs, etc.
3.1.3. The City’s preferred integr ation between systems is via web services. Any non-premises solution should be able to
operate in a Virtual Machine environment (VM) using
VMWare’s virtualization platform. The system must provide tight security controls which meet regulatory, compliance and audit standards. Security must be role-based to the menu, screen, and data field level. Microsoft Active
Directory is required for single sign-on and global security administration; LDAP compatibility is sufficient.
Attachment B
3.2 The customer-facing components of the portals must be compatible with a wide range of publicly available phone, tablet, and personal computing devices including but not limited to:
3.1.4. Android, iPhone, Apple/Mac, and Windows Operating Systems
3.1.5. All common internet browsers, including Chrome, Safari, and Internet Explorer/Edge
4. Major Deliverables
4.1. A completely functional implementation with all features as described in the project scope, subject to City staff’s review and assessment of the end-product.
5. Tasks That Support the Deliverables
Tasks are organized into four (4) phases, estimated to take a total of fourteen (14) weeks.
5.1 Data Gathering: 2 weeks: Source needed GIS files, planning documentation, application forms, and fee schedules.
5.2 Cartography: 5 weeks: Configure base layers, overlays, and zoning permissions database.
5.3 Permit Configuration: 5 weeks: Configure permits and fees, queue up localization of site and develop front-end content.
5.4 Launch: 2 Weeks: Prepare plan for site integration and marketing of new resource.
6. Criteria of Acceptance for Deliverables
7.1 All elements outlined by the project scope must be fully implemented as described there, integrated with the City’s software, compatible with the City’s hardware, fully incorporating the Development Code, and fully accessible to all widely available computing solutions (Personal Computers, Laptops, Cell Phones, Tablets, etc.) utilized by the public for the entire five-year term of the contract.
7. Notices
Pursuant to Exhibit C – General Terms and Conditions, Paragraph 15 – Notices, the mailing address for all required notices is as follows:
Contractor: Open Counter, Inc. City: City of Stockton 131 Dartmouth St. Attn: Permit Center
3 rd Floor 425 N. El Dorado Street
Boston, MA 02116 Stockton, CA 95202
Attachment B
8. Key Personnel
Robert Liddicoat, Gareth Olson, Heather Mompean
10. Option to Renew.
The original term of the Agreement will be three (3) years. This term may be extended up to two (2) times for one (1) year each by a written amendment executed by both parties. However, the total term of the Agreement including the extended term shall not exceed five (5) years.
Attachment B
Exhibit B:
Insurance Requirements for Agreements Involving Information Technology
Vendor/Consultant shall procure and maintain for the duration of the contract insurance against claims for security breaches, system failures, injuries to persons, damages to software, or damages to property (including computer equipment) which may arise from or in connection with the performance of the work hereunder by the Vendor, its agents, representatives, or employees. Vendor shall procure and maintain for the duration of the contract insurance claims arising out of their services and including, but not limited to loss, damage, theft or other misuse of data, infringement of intellectual property, invasion of privacy and breach of data.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 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 (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and 9 (non- owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
3. 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.
((Not required if consultant provides written verification it has no employees)
4. Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, 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, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses.
Attachment B
Technology Professional Liability Errors & Omissions
Technology Professional Liability Errors and Omissions Insurance appropriate to the Consultant’s profession and work hereunder, with limits not less than $2,000,000 per occurrence. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by the Vendor in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, 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, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses.
a. The Policy shall include, or be endorsed to include, pproperty damage liability
coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information “property” of the Agency in the care, custody, or control of the Vendor. If not covered under the Vendor’s liability policy, such “property” coverage of the Agency may be endorsed onto the Vendor’s Cyber Liability Policy as covered property as follows:
If the Vendor maintains broader coverage and/or higher limits than the minimums shown above, the City of Stockton requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Stockton.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City of Stockton, 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 Vendor 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 Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used). Additional insured Name of Organization shall read “City of Stockton, its officers, officials, employees, and volunteers.” Policy shall cover City of Stockton, its officers, officials, employees, and volunteers for all locations work is done under this contract.
Attachment B
PPrimary Coverage
For any claims related to this contract, the Vendor’s insurance coverage shall be primary and non-contributory. Coverage for commercial liability shall be at least as broad as ISO CG 20 01 04 13 as respects the City of Stockton, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City of Stockton, its officers, officials, employees, or volunteers shall be excess of the Vendor’s insurance and shall not contribute with it. This requirement shall also apply to any Excess policies. The City of Stockton does not accept endorsements limiting the Vendor’s insurance coverage to the sole negligence of the Named Insured.
Umbrella or Excess Policy
The Vendor may use Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Vendor’s primary and excess liability policies are exhausted.
Notice of Cancellation
Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the City of Stockton.
Waiver of Subrogation
Vendor hereby grants to City of Stockton a waiver of any right to subrogation which any insurer of said Vendor may acquire against the City of Stockton by virtue of the payment of any loss under such insurance. Vendor 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 of Stockton has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City of Stockton. The City of Stockton may require the Vendor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City of Stockton. The CGL and any policies, including Excess liability policies, may not be subject to a self-insured retention (SIR) or deductible that exceeds Attachment B
$25,000 unless approved in writing by City of Stockton. Any and all deductibles and SIRs shall be the sole responsibility of Vendor or subcontractor who procured such insurance and shall not apply to the Indemnified Additional Insured Parties. City of Stockton may deduct from any amounts otherwise due Vendor to fund the SIR/deductible. Policies shall NOT contain any self-insured retention (SIR) provision that limits the satisfaction of the SIR to the Named Insured. The policy must also provide that Defense costs, including the Allocated Loss Adjustment Expenses, will satisfy the SIR or deductible. City of Stockton reserves the right to obtain a copy of any policies and endorsements for verification.
AAcceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A-:VII, unless otherwise acceptable to the City of Stockton.
Claims Made Policies
If any of the required policies provide coverage on a claims-made basis:
1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at
least five (5) years after completion of the contract of work.
3. If coverage is canceled or non-renewed, and not
replaced w ith another claims-
made policy form w ith a Retroactive Date prior to the contract effective date, the Vendor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work.
Verification of Coverage
Vendor shall furnish the City of Stockton with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. All certificates and endorsements and copies of the Declarations & Endorsements pages are to be received and approved by the City of Stockton before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Vendor’s obligation to provide them. The City of Stockton reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. City of Stockton reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Attachment B
SSubcontractors
Vendor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Vendor shall ensure that City of Stockton is an additional insured on insurance required from subcontractors.
Special Risks or Circumstances
City of Stockton reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Certificate Holder Address
The address for mailing certificates, endorsements and notices shall be:
City of Stockton
Its Officers, Officials, Employees and Volunteers
400 E Main Street, 3rd Floor – HR
Stockton, CA 95202
Attachment B
EXHIBIT C
GENERAL TERMS AND CONDITIONS
1. Goods, Equipment and Services. Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to City the services described in Exhibit A of the Agreement. Contractor shall provide said services at the time, place and in the manner specified in Exhibit A of the Agreement.
2. City Assistance, Facilities, Equipment and Clerical Support. Except as set forth in Exhibit A, Contractor shall, at its sole cost and expense, furnish and maintain all facilities and equipment that may be required for furnishing services pursuant to this Agreement. If applicable, City shall furnish to Contractor only the facilities and equipment listed in Exhibit A to the Agreement.
3. Compensation . City shall pay Contractor for services rendered pursuant to this Agreement as described more particularly in Exhibit A and Exhibit E to the Agreement.
3.1 Invoices submitted by Contractor to City must contain a brief description of work performed, time spent and City reference number. Within thirty (30) days of receipt of Contractor’s invoice, City will review invoice, and if acceptable make payment on approved invoice.
3.2 Upon completion of work and acceptance by City, Contractor shall have sixty (60) days in which to submit final invoicing for payment. An extension may be granted by City upon receiving a written request thirty (30) days in advance of said time limitation.
The City shall have no obligation or liability to pay any invoice for work performed which the Contractor fails or neglects to submit within sixty (60) days, or any extension thereof granted by the City, after the work is accepted by the City.
4. Sufficiency of Contractor’s Work . All Contractor services, work, and deliverables shall be performed in a good and workmanlike manner with due diligence in accordance with the degree of skill normally exercised by similar contractors supplying services and work of a similar nature, and in conformance with applicable laws, codes and professional standards. Contractor’s work shall be adequate and sufficient to meet the purposes of this Agreement.
Ownership of Work.
SaaS, Software and Hardware. All right, title and interest, including but not limited to all existing or future copyrights, trademarks, service marks, trade secrets, patents, patent applications, know how, moral rights, contract rights, and proprietary rights, Attachment B
and all registrations, applications, renewals, extensions, and combinations of the foregoing (“Intellectual Property Rights”), in and to the following are the exclusive property of Company (or, as the case may be, its licensors and suppliers): (i) SaaS, Software, Leased Hardware, Documentation and all proprietary technology used by Company to perform its obligations under this Agreement; (ii) all software, tools, routines, programs, designs, technology, ideas, know-how, processes, techniques and inventions that Company makes, develops, conceives or reduces to practice, whether alone or jointly with others, in the course of performing the Professional Services; (iii) the fully compiled version of any of Software that can be executed by a computer and used without further compilation (the “Executable Code”); (iv) the human readable version of any of Software that can be compiled into Executable Code (the “Source Code”); (v) all enhancements, modifications, improvements and derivative works of each and any of the foregoing; and (vi) all suggestions, recommendations or comments regarding the Intellectual Property, including without limitation, new features or functionality relating thereto ("Company Intellectual Property”). If any derivative work is created by Customer from the Software, SaaS or Hardware, Company shall own all right, title and interest in and to such derivative work.
Customer Data. Company acknowledges that, as between Company and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to information, data, and other content that is collected, downloaded or otherwise received, directly or indirectly, from Customer or any employees, consultants, contractors, agents or members of the public authorized by Customer to access and use the SaaS, Software or Hardware under the rights granted to Customer pursuant to this Agreement and for whom or which such access and use has been purchased hereunder (“Authorized Users”) by or through the SaaS, Software or Hardware (the ”Customer Data”); provided, however, that (i) Customer hereby grants to Company a non-exclusive, royalty-free, worldwide license to reproduce, distribute and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Company to provide the SaaS, Software and Hardware to Customer; (ii) Customer hereby grants to Company a non- exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify and otherwise use and display information related to Customer’s use of the SaaS, Software or Hardware in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SaaS, Software or Hardware (“Aggregated Statistics”); and (iii) Company may de-identify and use Customer Data for any lawful purpose consistent with all applicable law. Each of the software components that constitute the SaaS, the Software and the Documentation is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the SaaS, the Software and the Documentation as are granted to all other end users.
5. Timeliness. Time is of the essence in this Agreement. Further, Contractor acknowledges that the failure of Contractor to comply with the time limits described in Exhibit A and Exhibit F may result in economic or other losses to the City.
Attachment B
6. Changes . Both parties to this Agreement understand that it may become desirable or necessary during the term of this Agreement for City to modify the scope of services provided for under this Agreement. Any material extension or change in the scope of work shall be discussed with City and the change and cost shall be memorialized in a written amendment to the original contract prior to the performance of the additional work. Until the amendment is so executed, City will not be responsible to pay any charges Contractor may incur in performing such additional services, and Contractor shall not be required to perform any such additional services.
7. Amendment. No variation of the terms of this Agreement shall be valid unless an amendment is made in writing and signed by both parties.
8. Contractor’s Status .
8.1 In performing the obligations set forth in this Agreement, Contractor shall have the status of an independent contractor and Contractor shall not be considered to be an employee of the City for any purpose. All persons working for or under the direction of Contractor are its agents and employees and are not agents or employees of City.
Contractor by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of City. Except as expressly provided in Exhibit A, Contractor has no authority or responsibility to exercise any rights or power vested in the City. No agent, officer or employee of the City is to be considered an employee of the Contractor. It is understood by both Contractor and City that this Agreement shall not be construed or considered under any circumstances to create an employer-employee relationship or a joint venture.
8.2 Contractor shall determine the method, details and means of performing the work and services to be provided by Contractor under this Agreement. Contractor shall be responsible to City only for the requirements and results specified in this Agreement and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of Contractor in fulfillment of this Agreement. Contractor has control over the manner and means of performing the services under this Agreement. If necessary, Contractor has the responsibility for employing other persons or firms to assist Contractor in fulfilling the terms and obligations under this Agreement.
8.3 If in the performance of this Agreement any third persons are employed by Contractor, such persons shall be entirely and exclusively under the direction, supervision and control of Contractor. All terms of employment including hours, wages, working conditions, discipline, hiring and discharging or any other term of employment or requirements of law shall be determined by the Contractor.
Attachment B
8.4 It is further understood and agreed that Contractor must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of Contractor's assigned personnel under the terms and conditions of this Agreement.
9. Subcontractor.
9.1 Subcontractors shall not be recognized as having any direct or contractual relationship with City. Contractor shall be responsible for the work of subcontractors, which shall be subject to the provisions of this Agreement. Subcontractors will be provided with a copy of the Agreement and be bound by its terms. Contractor is responsible to City for the acts and omissions of its subcontractors and persons directly or indirectly employed by them.
9.2 If in the performance of this Agreement any third persons are employed by Contractor, such persons shall be entirely and exclusively under the direction, supervision and control of Contractor. All terms of employment including hours, wages working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by Contractor.
9.3 It is further understood and agreed that Contractor must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of Contractor’s personnel.
10. Termination.
10.1 Termination for Convenience of City. The City may terminate this Agreement at any time by mailing a notice in writing to Contractor. The Agreement shall then be deemed terminated, and no further work shall be performed by Contractor. If the Agreement is so terminated, the Contractor shall be paid for the work actually completed at the time the notice of termination is received.
10.2 Should either party default in the performance of this Agreement or materially breach any of its provisions, the other party, at that party’s option, may terminate this Agreement by giving written notification to the other party.
10.3 Funding- Non-Appropriation. It is mutually understood between the Parties that payment to the Contractor for performance shall be dependent upon the availability of appropriations by the City Counc il for the purposes of this Agreement. No legal liability on the part of the City for any payment may arise under this Agreement until funds are made available and until the Contractor has received funding availability, which will be confirmed in writing. If funding for any fiscal year is reduced or deleted, or if the City loses funding for any reason, the City, in its sole discretion, shall have the option to either (a) cause this Agreement to be canceled or terminated pursuant to applicable Attachment B
provisions of the Agreement; or (b) offer to amend the Agreement to reflect the reduced funding for this Agreement.
10.4 In addition to any other express termination rights set forth in this Agreement, (i) either party may terminate this Agreement or any Order or SOW if the other party materially defaults in the performance of any of its obligations hereunder and fails to cure such default within 30 days after written notice from the non-defaulting party.
10.5 Upon expiration or earlier termination of this Agreement or any Order or SOW: (i) Customer’s right to access or use the SaaS, Software, Leased Hardware or Documentation, and all licensed rights granted, in this Agreement or such Order or SOW (the “Expired or Terminated Document”) immediately shall terminate; (ii) if the Expired or Terminated Document expires or is terminated by Customer without cause or by Company with cause, then such expiration or termination will not affect Customer’s obligation to pay all Fees that may have become due before such expiration or entitle Customer to any refund; (iii) each party shall promptly return to the other party all copies, whether in written, electronic, or other form or media, of the other party’s Confidential Information received under the Expired or Terminated Document, or destroy all such copies; (iv) if Customer requests in writing within 30 days after the expiration or termination of the Expired or Terminated Document, Company shall, within 30 days after such request, deliver to Customer the most recent version of Customer Data in a commercially reasonable format maintained by Company, provided that Customer has paid all Fees and reimbursable expenses then outstanding and any amounts payable after or as a result of such expiration or termination; and (v) Customer shall erase all copies of Software on Customer’s computers, return at Customer’s expense all Leased Hardware and return at its expense or destroy all copies of the Documentation in Customer’s possession or control provided under such Expired or Terminated Document. Any right or obligation of either party that, by its nature, should survive the termination or expiration of this Agreement will survive any such termination or expiration.
11. Non-Assignability . The Contractor shall not assign, sublet, or transfer this Agreement or any interest or obligation in the Agreement without the prior written consent of the City, and then only upon such terms and conditions as City may set forth in writing. Contractor shall be solely responsible for reimbursing subcontractors.
12. Indemnity and Hold Harmless.
12.1 Company. Company shall indemnify, defend, and hold harmless Customer and its agents, officers, directors and employees (“ Customer Parties”) from and against any and all losses, damages, li abilities, costs, including reasonable attorneys’ fees (”Losses”) incurred by Customer Parties resulting from any third-party claim, suit, action or proceeding (” Third Party Claim ”) that the SaaS, Software or Hardware, or any use of the SaaS, Software or Hardware in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights or Attachment B
for any Third Party Claim based on Company’s gross negligence or willful misconduct. If such a claim for infringement or misappropriation is made or appears possible, Customer agrees to permit Company, at Company’s sole discretion, to (i) modify or replace the SaaS, Software or Hardware, or component or part thereof, with a substantially similar product or service to make it non-infringing or avoid misappropriation or (ii) obtain the right for Customer to continue using it. If Company determines that neither alternative is reasonably available, Company may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 6.1 will not apply to t he extent that the alleged infringement or misappropriation arises from: (a) use of the SaaS, Software or Hardware not in accordance with this Agreement, (b) failure of Customer to implement any replacements, corrections or modifications made available by Company for the Software or Hardware, (c) use of the SaaS, Software or Hardware in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing, (d) modifications to the SaaS, Software or Hardware not made by Company or (e) Customer Data.
12.2 Customer. Customer shall indemnify, defend and hold harmless Company and its agents, officers, directors and employees (“ Company Parties”) from and against any Losses resulting from any Third Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third Party Claims based on Customer’s or any Authorized User’s gross negligence or willful misconduct.
Procedure. The obligations in Section 6.1 and Section 6.2 are conditioned on the party seeking indemnification (the “ Indemnitee”): (a) notifying the other party (the “Indemnitor”) promptly in writing of such claim or action; (b) giving Indemnitor sole control of the defense thereof and any related settlement negotiations; and (c) cooperating with Indemnitor and, at Indemnitor’s request and expense, assisting in such defense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
12.3 Limitations on Liability. NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY OR ITS
AFFILIATES, SUBCONTRACTORS OR SUPPLIERS BE LIABLE UNDER OR IN
CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE
THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES; LOSS OF REVENUES, DATA, BUSINESS OR GOODWILL; OR COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER
SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR COSTS OR THEY WERE OTHERWISE FORESEEABLE; OR (ii) AN AGGREGATE
AMOUNT EXCEEDING THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE Attachment B
TO SUCH LIABILITY. THE REMEDIES IN THIS AGREEMENT ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES.
13. Insurance . During the term of this Agreement, Contractor shall maintain in full force and effect at its own cost and expense the insurance coverage as set forth in the attached Exhibit B to this Agreement and shall otherwise comply with the other provisions of Exhibit B to this Agreement.
14. Notices . All notices herein required shall be in writing and shall be sent by certified or registered mail, postage prepaid, addressed in Exhibit A to this Agreement.
15. Conformance to Applicable Laws . Contractor shall comply with all applicable Federal, State, and Municipal laws, rules, and ordinances. Contractor shall not discriminate in the employment of persons or in the provision of services under this Agreement on the basis of any legally protected classification, including race, color, national origin, ancestry, sex or religion of such person.
16. Licenses, Certifications and Permits . Prior to the City’s execution of this Agreement and prior to the Contractor’s engaging in any operation or activity set forth in this Agreement, Contractor shall obtain a City of Stockton business license, which must be kept in effect during the term of this Agreement. Contractor covenants that it has obtained all certificates, licenses, permits and the like required to perform the services under this Agreement. Such licenses, certificates and permits shall be maintained in full force and effect during the term of this Agreement.
17. Records and Audits . Contractor shall maintain all records regarding this Agreement and the services performed for a period of three (3) years from the date that final payment is made. At any time during normal business hours, the records shall be made available to the City to inspect and audit. To the extent Contractor renders services on a time and materials basis, Contractor shall maintain complete and accurate accounting records, in a form prescribed by City or, if not prescribed by City, in accordance with generally accepted accounting principles, such records to include, but not be limited to, payroll records, attendance cards, time sheets, and job summaries.
18. Confidentiality . Contractor shall exercise reasonable precautions to prevent the unauthorized disclosure and use of City reports, information or conclusions.
19. Conflicts of Interest . Contractor covenants that other than this Agreement, Contractor has no financial interest with any official, employee or other Attachment B
representative of the City. Contractor and its principals do not have any financial interest in real property, sources of income or investment that would be affected in any manner of degree by the performance of Contractor’s services under this Agreement. If such an interest arises, Contractor shall immediately notify the City.
20. Waiver . In the event either City or Contractor at any time waive any breach of this Agreement by the other, such waiver shall not constitute a waiver of any other or succeeding breach of this Agreement, whether of the same or of any other covenant, condition or obligation. No payment, partial payment, acceptance, or partial acceptance by City shall operate as a waiver on the part of City of any of its rights under this Agreement.
21. Governing Law . California law shall govern any legal action pursuant to this Agreement with venue for all claims in the Superior Court of the County of San Joaquin, Stockton Branch or, where applicable, in the Federal District Court of California, Eastern District, Sacramento Division.
22. No Personal Liability . No official or employee of City shall be personally liable to Contractor in the event of any default or breach by the City or for any amount due Contractor.
23. Severability. If any portion of this Agreement or application thereof to any person or circumstance shall be declared invalid by a court of competent jurisdiction or if it is found in contravention of any federal, state or city statue, ordinance or regulation the remaining provisions of this Agreement or the application thereof shall not be invalidated thereby and shall remain in full force and effect to the extent that the provisions of this Agreement are severable.
24. Non-Discrimination. During the performance of this Agreement, Contractor and its officers, employees, agents, representatives or subcontractors shall not unlawfully discriminate in violation of any federal, state, or local law, rule or regulation against any employee, applicant for employment or person receiving services under this Agreement because of race, religion, color, national origin, ancestry, physical or mental disability, medical condition (including genetic characteristics), marital status, age, po litical affiliation, gender identity, gender expression, sex or sexual orientation, family and medical care leave, pregnancy leave, or disability leave. Contractor and its officers, employees, agents, representative or subcontractors shall comply with all applicable Federal, State and local laws and regulations related to non-discrimination and equal opportunity, including without limitation the City’s nondiscrimination policy; the Fair Employment and Housing Act (Government Code sections 12990 (et seq.); California Labor Code sections 1101, 1102 and 1102.1; the Federal Civil Rights Attachment B
Act of 1964 (P.L. 88-352), as amended; and all applicable regulations promulgated in the California Code of Regulation or Code of Federal Regulations.
Title VI of the Civil Rights Act of 1964 requires that “no person in the United States shall, on the grounds of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” (42 USC Section 2000d). http://www.dol.gov/oasam/regs/statutes/titlevi.htm. The City requires compliance with the requirements of Title VI in all of its programs and activities regardless of funding source.
25. Force Majeure . Neither party shall be responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, terrorism, fire, flood, strikes, war, epidemics, pandemics, shortage of power or other acts or causes reasonably beyond the control of that party. The party experiencing the force majeure event agrees to give the other party notice promptly following the occurrence of a force majeure event, and to use diligent efforts to re-commence performance as promptly as commercially practicable.
26. Taxes and Charges. Contractor shall be responsible for payment of all taxes, fees, contributions or charges applicable to the conduct of the Contractor’s business.
27. Cumulative Rights. Any specific right or remedy provided in this Agreement will not be exclusive but will be cumulative of all other rights and remedies to which may be legally entitled.
28. Advice of Attorney. Each party warrants and represents that in executing this Agreement, it has received independent legal advice from its attorneys or the opportunity to seek such advice.
29. Heading Not Controlling. Headings used in this Agreement are for reference purposes only and shall not be considered in construing this Agreement.
30. Entire Agreement, Integration, and Modification.
30.1 This Agreement represents the entire integrated agreement between Contractor and the City; supersedes all prior negotiations, representations, or agreements, either written or oral between the parties and may be amended only by a written Amendment signed by the Contractor and City Manager.
Attachment B
30.2 All Exhibits to this Agreement and this Agreement are intended to be construed as a single document.
31. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement.
32. Authority. The individual(s) executing this Agreement represent and warrant that they have the legal capacity and authority to do so on behalf of their respective legal entities.
Attachment B
EXHIBIT D
PROFESSIONAL SERVICES SPECIAL TERMS AND CONDITIONS
1. Definitions. The following words and phrases have the following meanings for purposes of this Agreement:
1.1 "Services" means, collectively, the services, duties and responsibilities described in Exhibit A of this Agreement and any and all work necessary to complete them or carry them out fully and to the standard of performance required in this Agreement.
1.2 “Deliverable” means q uantifiable goods or servic es that will be provided upon completion of a project. A deliverable is any tangible material, work or thing delivered by one party to the other, including associated technical documentation. A deliverable can be tangible or intangible parts of the development process, and often are specified functions or characteristics of the project.
2. General. The following terms and conditions are applicable for the Professional Services only. The special conditions shall be read in conjunction with the Standard Agreement, General Terms and Conditions (“GTC”) Exhibit C, and all other Exhibits identified in the Standard Agreement.
2.1 Where any portion of the GTC is in conflict to or at variance with any provisions of the Special Conditions of the Agreement, then unless a different intention stated, the provision(s) of the Special Conditions of the Agreement shall be deemed to override the provision(s) of GTC only to the extent that such conflict or variations in the Special Conditions of the Agreement are not possible of being reconciled with the provisions of the GTC.
2.2 In the case of modification of a part or provision of the GTC, the unaltered part or provision, or both shall remain in effect. The Special Conditions shall relate to a particular project and be peculiar to that project but shall not weaken the character or intent of the GTC.
3. Time for Performance.
3.1 Contractor shall perform the services according to the schedule contained in Exhibit F.
3.2 Timeliness of Performance i) Contractor shall provide the Services, and Deliverables within the term and within the time limits required under this Agreement, pursuant to the provisions of Exhibit A and Exhibit F. ii) Neither Contractor nor Contractor’s agents, employees nor subcontractors are entitled to any damages from the City, nor is any party entitled to be reimbursed by the City, for damages, charges or other Attachment B
losses or expenses incurred by Contractor by reason of delays or hindrances in the performance of the Services, whether or not caused by the City.
4. Standard of Performance
In addition to Exhibit C, Section 4 and 17, Contractor agrees as follows:
4.1 Contractor’s Services shall be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of Contractor’s profession currently practicing under similar conditions. Contractor shall comply with the profession’s standard of performance, applicable laws, regulations, and industry standards. By delivery of completed work, Contractor certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws. If Contractor is retained to perform services requiring a license, certification, registration or other similar requirement under California law, Contractor shall maintain that license, certification, registration or other similar requirement throughout the term of this Agreement.
4.2 Contractor acknowledges that it is entrusted with or has access to valuable and confidential information and records of the City and with respect to that information, Contractor agrees to be held to the standard of care of a fiduciary. Contractor shall assure that all services that require the exerci se of professional skills or judgment are accomplished by professionals qualified and competent in the applicable discipline and appropriately licensed, if required by law. Contractor must provide copies of any such licenses. Contractor remains responsible for the professional and technical accuracy of all Services or Deliverables furnished, whether by Contractor or its subcontractors or others on its behalf. All Deliverables must be prepared in a form and content satisfactory to the Using Agency and delivered in a timely manner consistent with the requirements of this Agreement.
4.3 If Contractor fails to comply with the foregoing standards, Contractor must perform again, at its own expense, all Services required to be re-performed as a direct or indirect result of that failure. Any review, approval, acceptance or payment for any of the Services by the City does not relieve Contract or of its responsibility for the professional skill and care and technical accura cy of its Services and Deliverables. This provision in no way limits the City’s rights against Contractor either under this Agreement, at law or in equity.
5. Compensation
5.1 In addition to Section 3 Compensation in Exhibit C – GTC, the Contractor shall be compensated for the services provided under this Agreement as follows:
5.1.1 Contractor shall be compensated for services rendered and accepted under this Agreement and shall be paid monthly, in arrears on a not to exceed Attachment B
basis, based upon the rates set forth in Exhibit E attached hereto and made a part of this Agreement. Contractor may vary the compensation for each task in Exhibit E provided that the total project compensation listed in Exhibit E and the Standard Agreement is not exceeded.
6. Personnel
6.1 None of the work or services covered by this Agreement shall be subcontracted without the prior written approval of the City. Any work or services subcontracted hereunder shall be specified by written agreement and shall be subject to each provision of this Agreement. Contractor shall provide subcontractor a copy of this fully executed Agreement.
6.2 Contractor agrees to assign only competent personnel according to the reasonable and customary standards of training and experience in the relevant field to perform services under this Agreement. Failure to assign such competent personnel shall constitute grounds for termination of this Agreement. The payment made to Contractor pursuant to this Agreement shall be the full and complete compensation to which Contractor and Contractor’s officers, employees, agents, and subcontractors are entitled for performance of any work under this Agreement. Neither Contractor nor Contractor’s officers or employees are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to employ ees of the City. The City will not make any federal or state tax withholdings on behalf of Contractor. The City shall not be required to pay any workers' compensation insurance on behalf of Contractor. Contractor shall pay, when and as due, any and all taxes incurred as a result of Contractor’s compensation hereunder, including estimated taxes, and shall provide City with proof of such payments upon request.
6.3 Key Personnel: Because of the special skills required to satisfy the requirements of this Agreement, Contractor shall not reassign or replace key personnel without the written consent of the City, which consent the City will not unreasonably withhold. "key personnel" means those job titles and the persons assigned to those positions in accordance with the provisions of this Agreement. The City may at any time in writing notify Contractor that the City will no longer accept performance of Services under this Agreement by one or more Key Personnel listed. Upon that notice Contractor shall immediately suspend the services of the key person or persons and must replace him or them in accordance with the terms of this Agreement. A list of key personnel is found in Exhibit A, Scope of Services.
7. Reports and Information
Contractor shall at such times and in such forms as the City may require furnish the City such periodic reports as it may request pertaining to the work or services undertaken pursuant to this Agreement, the costs and obligations incurred or to be incurred in connection therewith, and any other matters are covered by this Agreement as specified in Exhibit A and Exhibit E.
Attachment B
8. Findings Confidential
All of the reports, information, data, et cetera, prepared or assembled by the Contractor under this Agreement are confidential and the Contractor agrees that they shall not be made available to any individual or organization without the prior written approval of the City. Contractor shall not be required under the provisions of this paragraph to keep confidential any data or information which is or becomes publicly available, is required by applicable law or by proper legal or governmental authority, is already rightfully in the Contractor’s possession without obligation of confidentiality, is independently developed by Contractor outside the scope of this Agreement or is rightfully obtained from third parties. Contractor shall give City prompt notice of any such legal or governmental demand and reasonably cooperate with City in any effort to seek a protective order or otherwise to contest such required disclosure.
9. Copyright
No materials, including but not limited to reports, maps, or documents produced as a result of this Agreement, in whole or in part, shall be available to Contractor for copyright purposes. Any such materials produced as a result of this Agreement that might be subject to copyright shall be the property of the City and all such rights shall belong to the City, and the City shall be sole and exclusive entity who may exercise such rights.
10. Deliverables
Contractor shall prepare or provide to the City various Deliverables. "Deliverables" include work product, such as written reviews, recommendations, reports and analyses, produced by Contractor for the City. The City may reject Deliverables that do not include relevant information or data, or do not include all documents or other materials specified in this Agreement or reasonably necessary for the purpose for which the City made this Agreement or for which the City intends to use the Deliverables. If the City determines that Contractor has failed to comply with the foregoing standards, it has 30 days from the discovery to notify Contractor of its failure. If Contractor does not correct the failure, or if it is possible to do so, within 30 days after receipt of notice from the City specifying the failure, then the City, by written notice, may treat the failure as a default of this Agreement.
Partial or incomplete Deliverables may be accepted for review only when required for a specific and well-defined purpose and when consented to in advance by the City. Such Deliverables will not be considered as satisfying the requirements of this Agreement and partial or incomplete Deliverables in no way relieve Contractor of its commitments under this Agreement.
Attachment B
EXHIBIT E
COMPENSATION SCHEDULE
The Contractor shall be compensated for the services identified in Exhibit A, Exhibit C, and Exhibit D to this Agreement as follows:
1. Project Price
1.1 The maximum the Contractor shall be paid on this Agreement is $624,438 (hereafter the “not to exceed” amount). The “not to exceed” amount includes all payments to be made pursuant to this Agreement, including City approved reimbursable expenses, if any. Nothing in this Agreement requires the City to pay for work that does not meet the Standard of Performance identified in Exhibit D section 4 or other requirements of this Agreement.
1.2 Standard Reimbursable Items: Only the reimbursable items identified in Exhibit A, C, and D (Compensation), shall be compensated to the Contractor.
Reimbursable expenses will be reimbursed without markup. Fees plus reimbursable expenses shall not exceed the amount set forth in section 1.1 of this Exhibit and a copy of the original invoice for the items listed in i, ii or iii below shall be attached to the invoice submitted to the City for reimbursement. Payments shall be based upon work documents submitted by the Contractor to the City and accepted by the City as being satisfactory to City’s needs. The City shall not pay a markup on any of the items listed in i, ii or iii.
Additionally, items such a telephone, fax, postage or freight are already included in the billable hourly rate. Contractor shall be reimbursed the direct expenses, which are the actual cost of the following items that are reasonable, necessary and actually incurred, by the Contractor in connection with the services:
i. Expenses, fees or charges for printing, reproduction or binding of documents at actual costs with no markup added to the actual cost.
ii. Any filing fees, permit fees, or other fees paid or advanced by the Contractor at actual costs with no markup added to the actual cost.
iii. Travel expenses shall be reimbu rsed in accordance with the City’s travel policy, which is incorporated herein by reference.
Reimbursement shall be made at actual costs with no markup added to the actual cost.
1.3 The Contractor shall be entitled to receive payments for its work performed pursuant to the Agreement. The City will pay Contractor based on invoices for acceptable work performed and approved until the “not to exceed” amount is reached.
Thereafter, Contractor must complete services based on the Agreement without additional compensation unless there is a material change to the Statement of Work and Scope by a written Amendment.
Attachment B
1.4 If work is completed before the “not to exceed” amount is reached, the Contractor’s compensation will be based on the Contractor’s invoices previously submitted for acceptable work performed and approved.
2. Task Price . Below is the price for the services and reimbursable expenses as described in Exhibit A of this Agreement.
Task Description Task Price
1 Open Counter Implementation $ 34,313
2 Business, Residential, and Zoning Check
Portals $ 467,875
3 Spanish Lan guage Translation $ 22,250
4 Inte gration to ArcGIS Local GeoCoder $ 12,500 5 Integration to Accela Citizen Access (15
permit types) $ 87,500
TOTAL PRICE $ 624,438
5. Invoice to Address. Each invoice submitted shall identify the specific task(s) listed in Exhibit A and this Exhibit, and the completed work product/deliverable for the agreed upon price listed in this Exhibit. Invoices shall be submitted to the below address:
City of Stockton Community Development Department
Attention: Permit Center
425 N. El Dorado Street
Stockton, CA 95202
Attachment B
EXHIBIT F
TIMELINE
1. Consultant shall complete the requested services identified in Exhibit A as follows:
1.1. TIMELINE FOR COMPLETION OF SERVICE IMPLEMENTATION
1.1.1. Data Gathering Two (2) weeks
1.1.2. Cartography Five (5) weeks
1.1.3. Permit Configuration Five (5) weeks
1.1.4. Launch Two (2) weeks
1.2. FULLY IMPLEMENTED SERVICES
1.2.1. Business, Residential, and Zoning Check Portals will be available from the completion of the implementation until the end of the contract duration.
1.2.2. Spanish Language Translation will be available from the completion of the implementation until the end of the contract duration.
1.2.3. Integration to ArcGIS Local GeoCoder will be available from the completion of the implementation until the end of the contract duration.
1.2.4. Integration to Accela Citizen Access (15 permit types) will be available from the completion of the implementation until the end of the contract duration.
1.2.5. Implementation maintenance and minor optimizations will be available from the completion of the implementation until the end of the contract duration.
Attachment B