CITY OF STOCKTON
STANDARD AGREEMENT
1. This Agreement is entered into between the City of Stockton (“City”) and Accela Inc. (“Contractor”) to provide Accela license and subscription services as set forth in Exhibit A to this Agreement.
2. The term of this Agreement is as follows, unless amended as described in 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.
(a) Exhibit A – Order Form
(b) Exhibit B – Insurance
(c) Exhibit C – General Terms & Conditions
(d) Exhibit D – AccelaSubscription Services Agreement
(e) Exhibit E – Accela Standard Support Policy
(f) Exhibit F – Accela Data Storage Policy
(g) Exhibit G – Accela Service Availability and Security (h) Exhibit H – Accela Enhanced Reporting Database Policy (i) Exhibit I – Compensation Schedule
IN WITNESS W
HEREOF, the authorized parties have executed this Agreement.
CONTRACTOR
Contractor’s Name (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
Harry Black, City Manager Date
ATTEST:
Eliza R. Garza CMC, City Clerk
APPROVED AS TO FORM:
Lori M. Asuncion, City Attorney
BY:
$3,151,452.61
Agreement Number:
5/21/2024 5/20/2034
ATTACHMENT A
1 2633 Camino
Ramon, Suite 500
San Ramon, CA, 94583
Proposed by: Brad Jacobs
Contact Phone:
Contact Email: [email protected]
Quote ID: Q-32524
Valid Through: 5/20/2024
Currency: USD
Exhibit A Order Form
Addres
s Information
Bill To: S
hip To:
City of Stockton City of Stockton
425 N. El Dorado Street
Stockton, California 95202-1997
United States
425 N. El Dorado Street
Stockton, California 95202
United States
Bill
ing Name: Christine Fipps
Billing Phone: (209) 937-8082
Billing Email: [email protected]
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 1 5/21/2024 5/20/2025 12 $1,945.00 113 $219,785.00 > Accela Building - SaaS Year 1 5/21/2024 5/20/2025 12 $0.00 113 $0.00 > Accela Planning - SaaS Year 1 5/21/2024 5/20/2025 12 $0.00 113 $0.00 Enhanced Reporting Database
(ERD)
Year 1 5/21/2024 5/20/2025 12 $30,769.90 1 $30,769.90
TOTAL: $250,554.90
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 2 5/21/2025 5/20/2026 12 $2,042.25 113 $230,774.25 > Accela Building - SaaS Year 2 5/21/2025 5/20/2026 12 $0.00 113 $0.00 > Accela Planning - SaaS Year 2 5/21/2025 5/20/2026 12 $0.00 113 $0.00 Enhanced Reporting Database
(ERD)
Year 2 5/21/2025 5/20/2026 12 $32,308.40 1 $32,308.40
TOTAL: $263,082.65
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 3 5/21/2026 5/20/2027 12 $2,144.36 113 $242,312.96 > Accela Building - SaaS Year 3 5/21/2026 5/20/2027 12 $0.00 113 $0.00 > Accela Planning - SaaS Year 3 5/21/2026 5/20/2027 12 $0.00 113 $0.00
ATTACHMENT A
2 Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 4 5/21/2027 5/20/2028 12 $2,251.58 113 $254,428.61 > Accela Building - SaaS Year 4 5/21/2027 5/20/2028 12 $0.00 113 $0.00 > Accela Planning - SaaS Year 4 5/21/2027 5/20/2028 12 $0.00 113 $0.00 Enhanced Reporting Database
(ERD)
Year 4 5/21/2027 5/20/2028 12 $35,620.01 1 $35,620.01
TOTAL: $290,048.62
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 5 5/21/2028 5/20/2029 12 $2,364.16 113 $267,150.04 > Accela Building - SaaS Year 5 5/21/2028 5/20/2029 12 $0.00 113 $0.00 > Accela Planning - SaaS Year 5 5/21/2028 5/20/2029 12 $0.00 113 $0.00 Enhanced Reporting Database
(ERD)
Year 5 5/21/2028 5/20/2029 12 $37,401.01 1 $37,401.01
TOTAL: $304,551.05
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 6 5/21/2029 5/20/2030 12 $2,482.37 113 $280,507.54 > Accela Building - SaaS Year 6 5/21/2029 5/20/2030 12 $0.00 113 $0.00 > Accela Planning - SaaS Year 6 5/21/2029 5/20/2030 12 $0.00 113 $0.00 Enhanced Reporting Database
(ERD)
Year 6 5/21/2029 5/20/2030 12 $39,271.06 1 $39,271.06
TOTAL: $319,778.60
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 7 5/21/2030 5/20/2031 12 $2,606.49 113 $294,532.92 > Accela Building - SaaS Year 7 5/21/2030 5/20/2031 12 $0.00 113 $0.00 > Accela Planning - SaaS Year 7 5/21/2030 5/20/2031 12 $0.00 113 $0.00 Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Enhanced Reporting Database
(ERD)
Year 3 5/21/2026 5/20/2027 12 $33,923.81 1 $33,923.81
TOTAL: $276,236.77
ATTACHMENT A
3 Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 8 5/21/2031 5/20/2032 12 $2,736.81 113 $309,259.57 > Accela Building - SaaS Year 8 5/21/2031 5/20/2032 12 $0.00 113 $0.00 > Accela Planning - SaaS Year 8 5/21/2031 5/20/2032 12 $0.00 113 $0.00 Enhanced Reporting Database
(ERD)
Year 8 5/21/2031 5/20/2032 12 $43,296.34 1 $43,296.34
TOTAL: $352,555.91
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 9 5/21/2032 5/20/2033 12 $2,873.65 113 $324,722.54 > Accela Building - SaaS Year 9 5/21/2032 5/20/2033 12 $0.00 113 $0.00 > Accela Planning - SaaS Year 9 5/21/2032 5/20/2033 12 $0.00 113 $0.00 Enhanced Reporting Database
(ERD)
Year 9 5/21/2032 5/20/2033 12 $45,461.16 1 $45,461.16
TOTAL: $370,183.70
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Multi Solution User Year 10 5/21/2033 5/20/2034 12 $3,017.33 113 $340,958.67 > Accela Building - SaaS Year 10 5/21/2033 5/20/2034 12 $0.00 113 $0.00 > Accela Planning - SaaS Year 10 5/21/2033 5/20/2034 12 $0.00 113 $0.00 Enhanced Reporting Database
(ERD)
Year 10 5/21/2033 5/20/2034 12 $47,734.21 1 $47,734.21
TOTAL: $388,692.88
Pricing Summary
Period Net Total
Year 1 $ 250,554.90
Year 2 $ 263,082.65
Year 3 $ 276,236.77
Year 4 $ 290,048.62
Year 5 $ 304,551.05
Year 6 $ 319,778.60
Year 7 $ 335,767.53
Year 8 $ 352,555.91
Year 9 $ 370,183.70
Year 10 $ 388,692.88
Total $ 3,151,452.61
Services Year Start Date End Date Term
(Months)
Price Qty Net Total
Enhanced Reporting Database
(ERD)
Year 7 5/21/2030 5/20/2031 12 $41,234.61 1 $41,234.61
TOTAL: $335,767.53
ATTACHMENT A
4 Additi
onal Terms:
1. This Order Form, including any OnPrem Licenses, Maintenance and Support, and Subscription Services, Enhanced Reporting Database and Managed Application Services will be governed by the applicable terms and conditions. If those terms and conditions are non-existent, have expired, do not apply or have otherwise been terminated, the following terms at https://www.accela.com/terms/ will govern as applicable, based on the Customer’s purchase.
2. All Software Licenses, Maintenance, and Subscription purchases are non-cancelable and non-refundable.
3. If Customer has a prior agreement with Accela, and this purchase is co-terming with that prior agreement, if the start date on this Order Form is before the actual delivery date of the purchase, Accela may pro-rate this purchase so that it can co-term with the prior agreement.
4. If this Order Form is executed and/or returned to Accela by Customer after the Order Start Date above, Accela may adjust the Order Start Date and Order End Date without increasing the total price based on the date Accela activates the products and provided that the total term length does not change.
5. Pricing is based upon payment by ACH or check. Payment by credit card (including Purchase Cards) for product and services in this Order Form will be subject to a service charge of 3%. There is no service charge for ACH or check payment.
6. Enhanced Reporting Database pricing is based on a percentage of Customers SaaS Annual Contract Value if applicable. As SaaS Annual Contract Value increases/decreases based on seat count changes or annual uplift ERD pricing will be adjusted accordingly at contract renewal.
7. The prepayment amount for years 1 and 2 of the order is $513,637.55. Years 3 through 10 will be billed annually thereafter.
ATTACHMENT A
5 Exhibit B:
Insurance Requirements
(IT Services)
Vendo
r 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 SCO
PE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Comm
ercial 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. Auto
mobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Vendor 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 vendor provides written verification it has no employees)
4. Cyber
/Technology E&O 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 A
6 a. The Policy shall include, or be endorsed to include, property 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 vendor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Stockton.
Other I
nsurance 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 Vendor’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.
Primary 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
ATTACHMENT A
7 REV 2024-03-05
coverages he rei n required, including, but not limited to, primary and non-contributory, a
dditional 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 right to subrogation li mited to CGL, Auto, and Workers Compensation pol icies 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 th e City o f Stockton has received a waiver of subrogation endorsement from the insurer.
Self -Insured Retentions
Self-insured retentions must be declared to the City of Stockton . The Ci ty of Stockton may require the Vendor to provi de proof of abil ity 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. 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 a mounts otherwise due Vendor to fund the SIR/deductible. Policies shall NOT c ontain any self-insured retention (SIR) provision t
hat limits the satisfaction of the SIR to the Named Insured. The policy must also provide t hat 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.
Acceptability of Insurers
Insurance is to b e placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no l ess tha n 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:
ATTACHMENT A
8 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 three (3) years after completion of the contract of work .
3. If coverage is canceled or non-renewed, and not replaced with another claims - made policy form with a Retroactive Date prior to the contract effective date, the Vendor must purchase “extended reporting” coverage for a minimum of three (3) years after completion of contract work.
Verification of Coverage
Vend
or 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. All certificates and 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.
Subcontractors
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.
Certi
ficate 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 A
9 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 and D of the Agreement.
2. City Assistance, Facilities, Equipment and Clerical Support. Except as set forth in Exhibit D, 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 I to the Agreement.
3.1 Invoices submitted by Contractor to City must contain a brief description of wor
k 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 . Al l 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.
5. Ownership of Work.
Contractor retains all Intellectual Property Rights, including all rights, title and license to the Subscription Service, Software, Accela System, Support Services, Consulting Services, and Aggregate Data, any related work product of the foregoing and all derivative works thereof by whomever produced; provided however, that to the extent such materials are delivered to City as part of the Subscription Services, Consulting Services or Support Services then City shall receive a limited license consistent with
ATTACHMENT A
10 the term s of Section 2 of the Accela Subscription Services Agreement, attached hereto, to use such materials during the Subscription Period.
6. 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.
7. 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.
8. Amendment. No variation of the terms of this Agreement shall be valid unless an amendment is made in writing and signed by both parties.
9. 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 and D, 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.
9.2 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.
9.3 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 (Rev.
10.30.18; Mod 03.06.24 MG)
ATTACHMENT A
11 conditions, discipline, hiring and discharging or any other term of employment or requirements of law shall be determined by Contractor. 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.
10. Subcontractor.
10.1 Subcont
ractors 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. Hereinafter, 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.
10.2 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.
10.3 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.
11. Termination.
11.1 Reserved.
11. 2 Shoul
d either party default in the performance of this Agreement or materially breach any of i ts provisions, the other party, at t hat party’s option, m ay terminate this Agreement by giving written notification to the other party.
11.3 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 Council 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 provisions of the Agreement; or (b) offer to amend the Agreement to reflect the reduced funding for this Agreement.
12. Non-Assignability. T he Contractor sh all not as sign, s ublet, or t ransfer t his Agreement or any i nterest or obligation in t he Agreement w ithout t he prior w ritten 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. (Rev. 10.30.18;
Mod 03.06.24 MG)
ATTACHMENT A
12 13. Indemnity, Hold Harmless and Limitation of Liability. To the fullest extent permitted by law, and subject to the limitations in Exhibit D, Section 8. Contractor shall hold harmless, defend and indemnify City of Stockton and its officers, officials, employees and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature
to the extent they arise out of or in connection with Contractor’s performance of work hereunder or its failure to comply with any of its obligations contained in this agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of the City of Stockton, provided that City provides: (a) Contractor notice of such claim as soon practical and in
no event later than would reasonably permit Contractor to respond to such claim, (b) reasonable cooperation to Contractor, at Contractor’s expense, in the defense and/or
settlement of such claim and (c) Contractor the sole and exclusive control of the defense,
litigation and settlement of such claim. This obligation is independent of, and shall not in any way be limited by the minimum insurance obligations contained in this agreement. These obligations shall survive the completion or termination of this agreement.
Limitation
of Liability. EXCEPT FOR LIABILITY ARISING OUT OF EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY OR CITY’S BREACH OF SECTION 2 OF
THE ACCELA SUBSCRIPTION SERVICES AGREEMENT, ATTACHED HERETO, NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICE,
WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL EXCEED THE MINIMUM INSURANCE REQUIREMENTS REQUIRED IN THIS AGREEMENT.
EXCEPT FOR LIABILITY ARISING OUT OF CITY’S BREACH OF SECTION 2 OF THE
ACCELA SUBSCRIPTION SERVICES AGREEMENT, ATTACHED HERETO OR EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY, IN NO EVENT SHALL EITHER
PARTY OR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR
DELIVERING THE SERVICE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF
GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR
THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE
THE SUBSCRIPTION SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE
FOREGOING EXCLUSIONS APPLY WHETHER OR NOT A PARTY HAS BEEN INFORMED
OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
14. 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.
15. 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.
ATTACHMENT A
13 16. 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 s ervices under this Agreement on the basis of any legally protected classification, including race, color, national origin,
ancestry, sex or religion of such person.
17. 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 t
his Agreement. Such licenses, certificates and permits shall be maintained in full force and effect
during the term of this Agreement.
18. Records and Audits. Contractor shall maintain all financial 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 financial records shall be made available to the City t
o 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.
19. Confidentiality. Contractor
shall exercise reasonable precautions to prevent the
unauthorized
disclosure and use of City reports, information or conclusions.
20. Conflicts of Interest. Contractor covenants that other than this Agreement, Contractor has
no financial interest with any official, employee or other 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.
21. Waiver. I
n 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 c ovenant, 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.
22. Governing Law. C
alifornia 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.
23. No Personal
Liability. No official or employee of City shall be personally liable (Rev. 10.30.18; Mod 03.06.24 MG)
ATTACHMENT A
14 to Contractor in the event of any default or breach by the City or for any amount due Contractor.
24. 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.
25. 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, political 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-d iscrimination 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 Act of 1964 (P.L. 88-3 52), as am ended; 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. T
he City requires compliance with
the requirements
of Title VI in all of its programs and activities regardless of funding source.
26. Force Majeure.
Neither par ty 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-c ommence performance as promptly as
commercially practicable.
27. 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.
28. 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.
(Rev. 10.30.18; Mod 03.06.24 MG)
ATTACHMENT A
15 EXHIBIT D ACCELA SUBSCRIPTION SERVICES AGREEMENT
This Accela Subscription Services Agreement (this “Agreement”) is entered into as of the date of the applicable Order, as defined below, that incorporates these terms (the “Effective Date”) by and between Accela, Inc. and the entity identified in such Order (“Customer”).
1. DEFINITIONS.
1.1 " Accela System" means the information technology infrastructure used by or on behalf of Accela in performing the Subscriptions Services, including all computers, software (including but not limited to Accela Software), hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Accela or its third party suppliers.
1.2 " Aggregate Data" means data and information related to Customer's use of the Subscription Services, including anonymized analysis of all data processed in the Subscription Services, that is used by Accela in an aggregate and anonymized manner, including compiling statistical and performance information related to the provision and operation of the Services.
1.3 " Authorized User" means one named employee, contractor or agent of Customer (each identified by a unique email address) for whom Customer has purchased a subscription to the Subscription Services and who is authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement.
1.4 “ Consulting Services” means packaged or time and materials consulting, review, training or other services (but excluding Subscription and Support Services) delivered by Accela to Customer pursuant an Order. The current Consulting Services Policy is available at www.accela.com/terms/.
1.5 “ Customer Data” means the content, materials, and data that Customer, Authorized Users, and External Users enter into the Subscription Services. Customer Data does not include any component of the Subscription Services, material provided by or on behalf of Accela, or Aggregate Data.
1.6 “ Documentation” means the then-c urrent technical and functional user documentation in any form made generally available by Accela for the Subscription Services.
1.7 “ External Users” means third party users of the Subscription Services that access the public-fac ing interfaces of the Subscription Services to submit queries and requests to facilitate communications between such third party and Customer.
1.8 “ Intellectual Property Rights” means any patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, know-how, and any other intellectual property rights, in all cases whether or not registered or registrable and recognized in any country or jurisdiction in the world.
1.9 “ Order” means an Accela order form or other mutually acceptable document fully executed between Customer and Accela that incorporates this Agreement.
ATTACHMENT A
16 1.10 “Service Availability Policy” means the Service Availability and Security Policy located at www.accela.com/terms/.
1.11 “Subscription Services” means the civic administration services, comprised of the Accela System, Software, and Support Services, to which Customer may license access to in accordance with the terms herein.
1.12 “Software” means any licensed software (including client software for Authorized Users’ devices) and Documentation that Accela uses or makes available as part of the Subscription Services.
1.13 “Support Services” means those technical and help services provided by Accela in accordance with the Software Support Services Policies (SaaS) located at www.accela.com/terms/.
1.14 “Subscription Period” means the duration of Customer’s authorized use of the Subscription Services as designated in the Order.
2. USAGE AND ACCESS RIGHTS.
2.1 Right to Access. Su bject to the terms and conditions of this Agreement, Accela hereby grants to Customer a limited, non-exclusive, non-transferable right and license during the Subscription Period, to permit: (i) Authorized Users to access and use the internal and administrative interfaces of the Subscription Services in accordance with the Documentation to support Customer’s internal business purposes and (ii) its External Users the ability to access and use the publicly available interfaces to submit requests and information to Customer. Each instance of the Subscription Service shall be provisioned with the amount of storage set forth in the Order and additional storage may be purchased at the then-current rates.
2.2 Support Services & Service Availability. Durin
g the Subscription Period, Accela shall provide to
Customer the Support Services specified in the Order and shall make all commercially reasonable efforts to attain the service levels specified in the applicable policies. The remedies set forth in the Support Services and Service Availability Policy are the sole and exclusive remedies for any breach of the service levels. Customer grants Accela a royalty-free, worldwide, transferable, sub- licensable, irrevocable, perpetual license to use or incorporate into its software or services any suggestions or other feedback provided by Customer or Authorized Users relating to the operation or features of the Subscription Services.
2.3 Purchasing Consulting Services. Cus
tomer may purchase Consulting Services from Accela by
executing an Order for such services. All prices are exclusive of travel and expenses, which will be invoiced at actual cost, without markup, and will comply with the Consulting Services Policy located at www.accela.com/terms/ or as ot
herwise agreed in the applicable Order. If applicable, one Consulting Services day shall be equal to eight (8) hours.
2.4 Restrictions on Use. Cu stomer shall not, and shall not permit others to: (i) use or access the Subscription Services in any manner except as expressly permitted by the Agreement, including but not limited to, in a manner that circumvents contractual usage restrictions set forth in this Agreement; (ii) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Subscription Services available for access by third parties except as otherwise expressly provided herein; (iii) use the Subscription Service in a way that: (a) violates or infringes upon the rights
ATTACHMENT A
17 of a third party; or (b) stores or transmits libelous, tortious, or otherwise unlawful material or malicious code or viruses; (iv) create derivative works, reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about any of the Subscription Services (except to and only to the extent such rights are proscribed by law); (v) interfere with or disrupt the security, integrity, operation, or performance of the Subscription Services; (vi) access, use, or provide access or use to the Subscription Services or Documentation for the purposes of competitive analysis or the development, provision, or use of a competing software, SaaS or product or any other purpose that is to Accela’s detriment or commercial disadvantage; (vii) provide access to the Subscription Services to competitors of Accela; (viii) access or use components of the Subscription Service not licensed by Customer; (ix) use or allow the use of the Subscription Services by anyone located in, under the control of, or that is a national or resident of a U.S. embargoed country or territory or by a prohibited end user under Export Control Laws (as defined in Section 12.3, Compliance with Laws); (x) remove, delete, alter or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Subscription Services; or (xi) access or use the Subscription Services in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Subscription Services could lead to personal injury or severe physical or property damage.
2.5 Ownership. Acc
ela retains all Intellectual Property Rights, including all rights, title and license to the Subscription Service, Software, Accela System, Support Services, Consulting Services, and Aggregate Data, any related work product of the foregoing and all derivative works thereof by whomever produced; provided however, that to the extent such materials are delivered to Customer as part of the Subscription Services, Consulting Services or Support Services then Customer shall receive a limited license consistent with the terms of Section 2 to use such materials during the Subscription Period.
2.6 Customer’s Responsibilities. Cus
tomer will: (i) be responsible for meeting Accela’s applicable minimum system requirements for use of the Subscription Services set forth in the Documentation; (ii) be responsible for Authorized Users’ compliance with this Agreement and for any other activity (whether or not authorized by Customer) occurring under Customer’s account; (iii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data; (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services and Customer Data under its account, and notify Accela promptly of any such unauthorized access or use, and; (v) use the Subscription Services only in accordance with the applicable Documentation, laws and government regulations.
3. PAYMENT TE
RMS.
3.1 Purchases Dire ctly from Accela. Except as otherwise set forth in an Order, Subscription fees shall be invoiced annually in advance and such fees shall be due and payable on the first day of the Subscription and on each anniversary thereafter for each renewal, if any. All other invoices shall be due and payable net thirty (30) from the date of the applicable invoice. All amounts payable to Accela under this Agreement shall be paid by Customer in full without any setoff, deduction, debit, or withholding for any reason. All Subscription Services fees are exclusive of any taxes, levies, duties, withholding or similar governmental assessments of any nature (collectively, "Taxes"). If any such Taxes are owed or payable for such transactions, they shall be paid separately by Customer without set-off to the fees due Accela.
3.2 Purchases from Authorized Resellers. In t
he event that Customer has purchased any products or
ATTACHMENT A
18 services through a reseller, subject to these terms, any separate payment arrangements and terms shall be exclusively through such reseller and Accela is not a party to such transactions. Accela’s sole obligations are set forth herein and Customer acknowledges that its rights hereunder may be terminated for non-payment to such third party.
4. CONFIDENTIALITY. As used herein, "Confidential Information" means all confidential information disclosed by one party to this Agreement to the other party of this Agreement whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure without breach of any obligation owed to the disclosing party; (iii) is received without restriction from a third party without breach of any obligation owed to the disclosing party; or (iv) was independently developed by the receiving party. Each party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information except as permitted herein, and will limit access to Confidential Information to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound to protect such Confidential Information consistent with this Agreement. The receiving party may disclose Confidential Information if it is compelled by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party's request and cost, to contest, limit, or protect the disclosure.
5. CUSTOMER DAT
A.
5.1 Ownership. Cu stomer reserves all its rights, title, and interest in and to the Customer Data. No rights are granted to Accela hereunder with respect to the Customer Data, except as otherwise set forth explicitly in Section 5.
5.2 Usage. Cus tomer shall be responsible for Customer Data as entered in to, applied or used in the Subscription Services. Customer acknowledges that Accela generally does not have access to and cannot retrieve lost Customer Data. Customer grants to Accela the non-exclusive right to process Customer Data (including personal data) for the sole purpose of and only to the extent necessary for Accela: (i) to provide the Subscription Services; (ii) to verify Customer’s compliance with the restrictions set forth in Section 2.4 (Restrictions on Use) if Accela has a reasonable belief of Customer’s non-compliance; and (iii) as otherwise set forth in this Agreement. Accela may utilize the information concerning Customer’s use of the Subscription Services (excluding any use of Customer’s Confidential Information) to improve Subscription Services, to provide Customer with reports on its use of the Subscription Services, and to compile aggregate statistics and usage patterns by customers using the Subscription Services.
5.3 Use of Agg
regate Data. Customer agrees that Accela may collect, use and disclose Aggregate Data derived from the use of the Subscription Services for industry analysis, benchmarking, analytics,
ATTACHMENT A
19 marketing and other business purposes. All Aggregate Data collected, used and disclosed will be in aggregate form only and will not identify Customer, its Authorized Users or any third parties utilizing the Subscription Services.
6. WARRANTIES AND DISCLAIMERS.
6.1 Subscription Services Warranty. During the Subscription Period, Accela warrants that Subscription Services shall perform materially in accordance with the applicable Documentation. As Customer’s sole and exclusive remedy and Accela’s entire liability for any breach of the foregoing warranty, Accela will use commercially reasonable efforts to: (a) repair the Subscription Services in question; (b) replace the Subscription Services in question with those of substantially similar functionality; or (c), after making all commercially reasonable attempts to do the foregoing, terminate the applicable Subscription Services and refund all unused, prepaid fees paid by Customer for such non-compliant Subscription Services.
6.2 Consulting Services Warranty. For n
inety (90) days from the applicable delivery, Accela warrants that Consulting Services shall be performed in a professional and workmanlike manner. As Customer’s sole and exclusive remedy and Accela’s entire liability for any breach of the foregoing warranty, Accela will use commercially reasonable efforts to (a) re-perform the Consulting Services in a compliant manner; or, after making all commercially reasonable attempts to do the foregoing, (b) refund the fees paid for the non-compliant Consulting Services.
6.3. Disclaimers. EXC EPT AS EXPRESSLY PROVIDED HEREIN, ACCELA MAKES NO WARRANTY OF ANY
KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, SECURITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.4. Cannabis-Rela ted Activities. If Customer purchases any Subscription Services for use with any cannabis-related activities, the following additional disclaimers shall apply: Accela is considered a software service provider to its customers and not a cannabis related business or agent thereof. In addition to the foregoing, Accela only retains Subscription Services fees of this Agreement from its Customer for general software services, a state or local government agency, and does not retain these fees from any type of External Users. It is the sole responsibility of the Customer to offer state law compliant services, which may be coordinated and facilitated through the use of the Subscription Services. Accela makes no representations, promises, or warranties with respect to the legality, suitability, or otherwise regarding any third party provider, including partners, and have no responsibility or liability with respect to services provided to Customer by such third parties.
7. INDEMNIFICATION. Acc
ela will defend (or at Accela’s option, settle) any third party claim, suit or action brought against Customer to the extent that it is based upon a claim that the Subscription Services, as furnished by Accela hereunder, infringes or misappropriates the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are finally awarded against Customer, provided that Customer provides: (a) Accela notice of such claim as soon practical and in no event later than would reasonably permit Accela to respond to such claim, (b) reasonable cooperation to Accela, at Accela’s expense, in the defense and/or settlement of such claim and (c) Accela the sole and exclusive control of the defense, litigation and settlement of such claim. In the event that Accela reasonably believes, in its sole discretion, that such claim may
ATTACHMENT A
20 prevail or that the usage of the Subscription Services may be joined, Accela may seek to: (a) modify the Subscription Services such that it will be non-infringing (provided such modification does not materially reduce the functionality or performance of Customer’s installed instance); (b) replace the Subscription Services with a service that is non-infringing and provides substantially similar functionality and performance; or, if the first two options are not commercially practicable, (c) terminate the remainder of the Subscription Period and refund any, pre-paid, unused fees received by Accela. Accela will have no liability under this Section 7 to the extent any claims arise from (i) any combination of the Subscription Services with products, services, methods of a third party; (ii) a modification of the Subscription Services that were either implemented by anyone other than Accela or implemented by Accela in accordance with Customer specifications; (iii) any use of the Subscription Services in a manner that violates this Agreement or the instructions given to Customer by Accela; (iv) a version of the Subscription Services other than the current, fully patched version, provided such updated version would have avoided the infringement; or (v) Customer’s breach of this Agreement. THIS SECTION 7
STATES THE ENTIRE OBLIGATION OF ACCELA AND ITSLICENSORSWITH RESPECT TO ANY ALLEGED OR
ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS RELATED TO THIS AGREEMENT.
8. LIMITATION OF LIABILITY. EX
CEPT FOR LIABILITY ARISING OUT OF EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY OR CUSTOMER’S BREACH OF SECTION 2, NEITHER PARTY’S AGGREGATE
LIABILITY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE
USE OF OR INABILITY TO USE THE SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER
THEORY OF LIABILITY, SHALL EXCEED THE MINIMUM INSURANCE REQUIREMENTS REQUIRED IN THIS AGREEMENT EXCEPT FOR LIABILITY ARISING OUT OF CUSTOMER’S BREACH OF SECTION 2 OR EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY, IN NO EVENT SHALL EITHER PARTY OR ANY OTHER
PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICE BE LIABLE FOR
ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS,
LOSS OF DATA OR LOSS OF GOODWILL, SERVICEINTERRUPTION, COMPUTER DAMAGE OR SYSTEM
FAILURE OR THE COST OF SUBSTITUTE PRODUCTS ORSERVICES, ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICES,
WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING EXCLUSIONS APPLY WHETHER OR NOT A PARTY HAS BEEN
INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. SECURITY. Acc
ela has implemented commercially viable and reasonable information security processes, policies and technology safeguards to protect the confidentiality and integrity of Customer Data, personal data protect against reasonably anticipated threats. Customer acknowledges that, notwithstanding security features of the Subscription Services, no product, hardware, software or service can provide a completely secure mechanism of electronic transmission or communication and that there are persons and entities, including enterprises, governments and quasi- governmental actors, as well as technologies, that may attempt to breach any electronic security measure. Subject only to its limited warranty obligations set forth in Section 6, Accela will have no liability for any such security breach. Customer further acknowledges that the Subscription Services is not guaranteed to operate without interruptions, failures, or errors. If Customer or Authorized Users use the Subscription Services
ATTACHMENT A
21 in any application or environment where failure could cause personal injury, loss of life, or other substantial harm, Customer assumes any associated risks and will indemnify Accela and hold it harmless against those risks.
Acc
ela’s breach/incident response process is reviewed annually as part of our SSAE 18 SOC 2 Type II, HIPAA HITECH, and CCPA compliance standards. Accela will exhaust every effort to prevent security breaches from occurring in the cloud. In the event of such an occasion, customers will be notified of breaches impacting customer data within 24 hours via customer support channels including email and phone calls as appropriate. Accela will follow a series of standard procedures to detect and solve the problem as follows:
• Verification of Breach
• Information Gathering Phase
• Capture Phase
• Severity Assessment
• Customer/Law Enforcement Notification
• Isolation of Affected Component(s)
Acc
ela SaaS leverages Azure File Storage for Accela Document Service (ADS) to ensure all data is encrypted at rest. An agency's transactional database is segregated and encrypted at rest. PII data such as SSN is masked in the user interface using industry standards. Accela will maintain reasonable security measures to protect PII against risks of unauthorized access, or improper destruction, use, modification, or disclosure. Accela will conduct regular audits to ascertain that PII is used and maintained consistent with this policy.
10. THIRD PARTY SERVICES. Customer may choose to obtain a product or service from a third party that is not directly produced by Accela as a component of the Subscription Services (“Third Party Services”) and this may include third party products resold by Accela. Accela assumes no responsibility for, and specifically disclaims any liability, warranty or obligation with respect to, any Third Party Service or the performance of the Subscription Services (including Accela’s service level commitment) when the Subscription Services are used in combination with or integrated with Third Party Services.
11. TERM AND TE RMINATION.
11.1 Agreement Ter m. This Agreement shall become effective on the Effective Date and shall continue in full force and effect until the expiration of any Subscription Periods set forth in an applicable Order governed by the Agreement.
11.2 Subscription Periods & Renewals. Sub
scription Periods begin as specified in the applicable Order and, unless terminated earlier in accordance with this Agreement, continue for the term specified therein. Except as otherwise specified in the applicable Order, (a) all Subscription Services will automatically renew for additional Subscription Periods equal to the expiring Subscription Period, unless either party gives the other at least sixty (60) days’ notice of non-renewal before the end of the relevant Subscription Period and (b), Orders may only be cancelled or terminated early in accordance with Section 11.3. Subscription Services renewals may be subject to an annual increase, for which Accela shall provide Customer notice prior to the renewal of the Subscription Period. In the event of any non- renewal or other termination, Customer’s right to use the Subscription Services will terminate at the end of the relevant Subscription Period.
ATTACHMENT A
22 11.3 Termination or Suspension. A party may terminate this Agreement and Subscription Services license granted hereunder for thirty (30) days’ written notice to the other party of material breach.
Customer may terminate this Agreement and Subscription Services license granted hereunder due to the Non-Appropriation of Funds by Customer’s governing body. If terminated in this way, Customer shall not be entitled to any refunds of any prepaid fees. If a breach remains uncured at the expiration of such thirty (30) day period. Either party may terminate immediately if the other party files for bankruptcy or becomes insolvent. Accela may, at its sole option, suspend Customer’s or any Authorized User’s access to the Subscription Services, or any portion thereof, immediately if Accela: (i) suspects that any person other than Customer or an Authorized User is using or attempting to use Customer Data; (ii) suspects that Customer or an Authorized User is using the Subscription Services in a way that violates this Agreement and could expose Accela or any other entity to harm or legal liability; (iii) is or reasonably believes it is required to do so by law or court order or; (iv) Customer’s payment obligations are more than ninety (90) days past due, provided that Accela has provided at least thirty (30) days’ notice of such suspension for delinquent payment. Should Customer terminate this Agreement for cause, Accela will refund a pro- rata portion of unused, pre-paid fees.
11.4 Effect of Te
rmination. If this Agreement expires or is terminated for any reason: (i) within thirty (30) calendar days following the end of Customer’s final Subscription Period, upon Customer’s request Accela provided Customer Data and associated documents in a database dump file; provided that Customer pays (a) all costs of and associated with such copying, as calculated at Accela’s then-current time-and-materials rates, and (b) any and all unpaid amounts due to Accela; (ii) licenses and use rights granted to Customer with respect to Subscription Services and intellectual property will immediately terminate; and (iii) Accela’s obligation to provide any further services to Customer under this Agreement will immediately terminate, except as mutually agreed between the parties. If the Subscription Services are nearing expiration date or are otherwise terminated, Accela will initiate its data retention processes, including the deletion of Customer Data from systems directly controlled by Accela. Accela’s current Data Storage Policy can be accessed www.accela.com/terms/.
11.5 Survival. Sections 2.5 (Ownership and Proprietary Rights), 4 (Confidentiality), 6.3 (Disclaimer), 8 (Limitation of Liability), 11.4 (Effect of Termination), 11.5 (Surviving Provisions), and 12 (General Provisions) will survive any termination or expiration of this Agreement.
12. Data Recovery. Acc ela’s backup strategies and disaster recovery sites ensure that a complete system rebuild of data will not be necessary. At a minimum, Accela keeps 15 days worth of backups available. Database backups occur nightly and data replication occurring near-real-time across geographically distinct locations. The SaaS solution provides data replication intra- and inter- regionally with Daily Backups retained for six weeks with an RPO (Recovery Point Objective) of 1 hour.
• A weekly fu ll backup is stored for three months.
• A monthly fill backup for 12 months
• A yearly full backup exists for 10 years.
Disaster recovery is an integral part of maintaining business continuity should a catastrophic outage occur. Accela is committed to giving our cloud customers access to their respective data and sites in a timely fashion should such an unlikely outage occur. Accela maintains a third-party audited Business Continuity (BR) and Disaster Recovery (DR) policy which is certified as documented and tested at least annually as part of SOC 2 certification.
The SaaS production database is replicated locally and mirrored to a geographically distinct failover
ATTACHMENT A
23 site. Great care, planning, and expense has been taken to ensure that no single points of failure occur within the cloud environment itself. All network and I/O paths are redundant, and all services are available via load-balanced environments. Accela employs virtualization that allows for the dynamic migration of any failed virtual guests to another live host the moment an outage is detected. This ensures the continuity of business services should a single server go offline.
A two-node database cluster provides high availability for the key production databases. This cluster allows for both dynamic and manual relocation of key services insomuch that the associated web and business services can always connect to a live node.
Database backups follow a standard weekly full/nightly incremental schedule. Accela SaaS offers a committed 1-hour Recovery Point Objective (RPO) and a 4-hour Recovery Time Objective (RTO).
In any scenario involving data loss, multiple opportunities are available to recover the data. If a site-wide outage occurs that is projected to be sustained and lasting but the data itself within the data center is retrievable, Accela employees will transfer any outstanding archive logs to the standby site and activate the standby site as the primary cloud facility. External DNS entries will then be updated to reflect the failover site.
13. GENERAL.
13.1 Notice. Ex
cept as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (i) personal delivery; (ii) three days after sending registered, return receipt requested, post or; (iii) one day after sending by commercial overnight carrier. Notices will be sent to the address specified by the recipient in writing when entering into this Agreement or establishing Customer’s account for the Subscription Services.
13.2 Governing Law an
d Jurisdiction. This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action related to the subject matter of this Agreement will be the state and federal courts located in the Eastern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
13.3 Compliance with L aws. Each party will comply with all applicable laws and regulations with respect to its activities under this Agreement including, but not limited to, export laws and regulations of the United States and other applicable jurisdictions. Further, in connection with the services performed under this Agreement and Customer’s use of the Subscription Services, the parties agree to comply with all applicable anti-corruption and anti-bribery laws, statutes and regulations.
13.4 Assignment. Cus
tomer may not assign or transfer this Agreement, whether by operation of law or otherwise, without the prior written consent of Accela, which shall not be unreasonably withheld.
Any attempted assignment or transfer, without such consent, will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.5 Publicity. Not
withstanding anything to the contrary, each party will have the right to publicly announce the existence of the business relationship between parties.
13.6 Miscellaneous. No failure o r delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any
ATTACHMENT A
24 provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect. Accela will not be liable for any delay or failure to perform under this Agreement to the extent such delay or failure results from circumstances or causes beyond the reasonable control of Accela. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or similar relationship between the parties. This Agreement, including any attachments hereto as mutually agreed upon by the parties, constitute the entire agreement between the parties concerning its subject matter and it supersedes all prior communications, agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by a duly authorized representative of each party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary, no additional or conflicting terms or conditions stated in any of Customer’s purchase order documentation or otherwise will be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
ATTACHMENT A
25 Policy 1
Accela, Inc.
Standard SaaS Support Services Policy
Dated: April 21, 2021
This Accela Standard SaaS Support Services Policy (“Support Policy”) governs the terms under which Accela provides Support Services and is subject to the SaaS services agreement (“Agreement”) entered into between Accela and the recipient of such services (“Customer”).
This Support Policy may be updated from time to time by Accela in its sole discretion.
General Requirements and Hours of Operation
a. Ticketing Support: Accela will provide access to a ticketing system, which will be available twenty‐four (24) hours per day, seven (7) days per week. A qualified support specialist shall use commercially reasonably efforts to answer questions and resolve problems regarding the Subscription Service from 4 :00 A.M. until 6:00 P.M. Pacific Standard Time Monday through Friday, excluding Accela’s observed holidays. b. Telephone Support: Accela’s Customer Support Department, a live technical support facility, will be available to Customer from 4:00 A.M. until 6:00 P.M. Pacific Standard Time Monday through Friday, excluding Accela’s observed holidays. c. Online Support Material: Available twenty‐four (24) hours, seven (7) days a week, Accela will make available to Customer certain archived software updates and other technical information in Accela’s online support databases.
(1) Agency Contacts: “Agency Contacts” are the individuals who will be the primary users of the Support Plan. You may designate up to two (2) Agency Contacts and agree to let Accela know if they change.
Your Agency Contacts will be responsible for:
Overseeing your Agency’s support case activity, developing and d eploying troubleshooting processes within your Agency’s organization.
Agency will ensure Agency Contacts:
Have completed the Administrator Training offered as part of Accela’s implementation and adoption programs. Are knowledgeable about the Agency’s conf igured solution in order to assist Accela in analyzing and resolving technical issues. Have a basic understanding of any problem that is the subject of a case, and the ability to reproduce the problem in order to assist Accela in diagnosing and triaging the problem.
(2) Submitting a Case
Agency Contacts may submit cases via:
a. the online support portal by logging into the Accela Success Community at Exhibit E
ATTACHMENT A
26 https://success.accela.com and selecting Get Support > Submit a case or b. a telephone call to Customer Support as described below ( For Severity Level 1 and Severity Level 2 issues, Agency must call Customer Support) (3) Updates
Updates may address security fixes, critical patches, gener al maintenance functionality, and documentation and shall be made available at Accela’s discretion. Accela is under no obligation to develop any future functionality or enhancements unless otherwise specified in the Agreement. If an update for the Service is made available to Customer pursuant to this Support Policy, it will automatically replace the previous version of the applicable Service.
Where practical, Accela will schedule Updates during non‐business hours and will provide Customers with advance notice of all Updates.
(4) Upgrade/Downgrade of Severity Level
If, during the Support Request process, the issue either warrants assignment of a higher severity level than currently assigned or no longer warrants the severity level currently assigned based on its current impact on the production operation of the SaaS offering, then the severity level will be upgraded or downgraded accordingly to the severity level that most appropriately reflects its current impact.
(5) Customer Cooperation
Accela must be able to reproduce errors in order to resolve them. Agency agrees to cooperate and work closely with Accela to reproduce errors, including, without limitation, conducting diagnostic or troubleshooting activities, implementation of fixes or updates previously provided by Accela, or providing information as reasonably requested and appropriate. Also, Accela may access Agency Contacts account and/or an admin account and/or Agency’s personnel may be asked to provide remote access to their internal system for, w ithout limitation, conducting diagnostic or troubleshooting activities, or implementation of fixes or updates previously provided by Accela.
(6) Third Party Product Support
If any third‐party software is supplied by Accela, Accela disclaims all support obligations for such third‐party software, unless expressly specified by Accela in Customer’s Agreement. (7) Exclusions
The following Support Exclusions are not covered by this Support Policy:
a. Support required due to Customer’s or any End User’s or third party’s misuse of the Services;
b. Support during times outside of Accela’s regular business hours stated above; c. Support necessitated by external factors outside of Accela’s reasonable control, including any force majeure event or Internet access or related problems beyond the Ser vice demarcation point;
ATTACHMENT A
27 d. Support of or caused by customizations (if outside of Accela’s best practice recommendations), configuration changes, scripting, or data loss caused by or on behalf of Customer or any End User;
e. Support of or caused by Customer’s or any End User’s or third party’s equipment, software or other technology (other than third party equipment within Accela’s direct control); f. Support to resolve or work‐around conditions which cannot be reproduced in Accela’s support environment and
g. Support of any software add‐ons supplied together with the Service (except where specified in the customer’s Agreement).
Any support services falling within these Support Exclusions may be provided by Accela at its discretion and, if so provided, may be subject to additional pricing and support terms as specified by Accela. (8) Error Classification
Functional Definitions: For the purposes of error classification, essential or major functions include: data capture features, SLA and alarming features, performance management features and application performance problem resolution features.
Severity Definition
Level 1 Supported Product is non‐functional or seriously affected and there is no reasonable workaround available (e.g. business is halted).
Level 2 Supported Product is affected and there is no workaround available or the workaround is impractical (e.g. Supported Product response is very slow, day to day operations continue but are impacted by the work around).
Level 3 Supported Product is non‐functional however a convenient workaround exists
(e.g. non‐critical feature is unavailable or requires additional user intervention).
Level 4 Supported Product works, but there is a minor problem (e.g. incorrect label, or
cosmetic defect).
ATTACHMENT A
28 (9) Target Initial Response Time
Accela will use commercially reasonable efforts to respond to each case within the applicable response time described in the table below:
Target Initial Response Time by Case Severity
Severity Level Target Initial Response Time
1 1 daya
2 3 daysa
3 5 daysa
4 7 daysa
a Initial response times are including M‐F, 4 am to 6 pm PT, excluding weekends and holidays. Severity Level 1 and 2 cases must be submitted via telephone as described above. Severity Level 1 and 2 target initial response times do not apply to cases submitted via email or electronically via the Accela Success Community.
ATTACHMENT A
29 ACCELA, INC.
DATA STORAGE POLICY
The Licensee’s subscription comes with a limit of 2.5TB data storage for all cloud environments. Data storage includes:
• Transaction data;
• Reference data;
• Configuration data;
• Documents and Report Files;
• Backup copies; and
• Other data stored by Accela on behalf of the customer.
Add
itional storage can be purchased from Accela in blocks of 500GB, with a price of one thousand dollars ($1,000) per year. When Licensee approaches the 2.5TB limit, it will begin receiving monthly notifications highlighting data usage levels across its environment. Once the 2.5TB limit is reached, a charge of one thousand dollars ($1,000) for an additional 500GB will be automatically added to the Licensee’s subscription renewal.
Dat
a Retention
If the Licensee’s Software as a Service (“SaaS”) subscription expires or is otherwise terminated, Contractor will initiate its data retention processes, including the deletion of licensee data from systems directly controlled by Contractor.
• If a Licensee’s SaaS subscription expires or is otherwise terminated, Contractor will store its customer data, as defined in the master agreement between Licensee and Contractor, for ninety (90) days (the “Retention Period”). During the Retention Period, provide Licensee with a notice indicating its intention to delete its Customer Data. • After the Retention Period, Contractor will, within a commercially reasonable amount of time, disable the account and delete the customer data, including any cached or backup copies.
Hist
ory and log data will be available to customers in real-time for up to 2 years in production and 1 year in non-production, unless otherwise specified. After 2 years, the history data will be archived and retained for up to 7 years. This data will be provided to the customer upon request.
Fre
quently Asked Questions
Can Licensee track its storage usage on the Accela Cloud? It's not currently possible to track storage usage in the Civic Platform application. However, Licensee will receive a report detailing its data usage annually, at the time of renewal. Licensee can request this information at any time outside of the renewal period by submitting a support case through Accela Customer Support. When Licensee approaches the storage limit, it will receive monthly notifications particularizing its storage usage.
What w
ill happen if Licensee exceeds its storage limit?
If Licensee’s Accela Cloud instance exceeds the storage limit, it will receive notification and a charge of one thousand ($1,000) per 500GB of usage will be billed at the time of subscription Exhibit F
ATTACHMENT A
30 renewal.
Can I increase my storage limit?
Yes. Storage limits can be increased by purchasing additional storage in blocks of 500GB at one thousand dollars ($1,000) per year.
ATTACHMENT A
31 Accela Availability and Security Policy
Service Availability:
Accela will use commercially reasonable efforts to (a) provide bandwidth suffi cient for Customer’s use of the Subscription Services provided hereunder and in an applicable Order Form and (b) operate and manage the Subscription Services with a ninety -nine and nine percent (99. 9%) uptime goal (the “Availability SLA”), excluding situations identified as “Excluded” below.
“Excluded" means any outage that results from any of the following:
a. Any maintenance performed by Accela during Accela’s standard maintenance windows. Accela will notify Customer within forty -eight (48) hours of any standard maintenance and within twenty -four (24) hours for other non -standard emergency maintenance (collectively referred to herein as “Scheduled Maintenance”). Scheduled maintenance includes off -business-hours (agency time) deployments of major releases & service packs. Major releases are deployed into an agency's non -production environments well in advance, typically 4 weeks ahead of production, to allow for adequate user acceptance testing. b. Customer’s information content or application programming, or the acts or omissions of Customer or its agents, including, without limitation, the following:
1. Any mis-configuration by Customer (as determined in Accela’s sole discretion), including, without limitation, configuration errors and bad or unintended usage of the Subscription Services.
2. Force majeure or other circumstances beyond Accela’s reasonable control that could not be avoided by its exercise of due care.
c. Failures of the carrier networks itself and the network by which Customer connects to the carrier networks any other network unavailability.
d. Any window of time when Customer agrees that Subscription Services availability/unavailability will not be monitored or counted.
e. Interruptions or delays in providing the Subscription Services resulting from telecommunication or Internet service provider failures.
f. Customer’s or any third party’s use of the Subscription Services in an unauthorized or unlawful manner.
Remedies for Excessive Downtime:
In the event the Availability of the Subscri ption Services falls below the Availability SLA in a given calendar month, Accela will pay Customer a service credit (“Service Credit”) equal to the percentage of the fees set forth in the table below corresponding to the actual Availability of the Subscription Services during the applicable calendar month. Such Service Credit will be issued as a credit against any fees owed by Customer for the next calendar month of the Subscription Period or, if Customer does not owe any additional fees, then Accel a will pay Customer the amount of the applicable Service Credit within thirty (30) days after the end of the calendar month in which such credit accrued. Such Service Credit will be in addition to any other remedies available to Customer at law, in equity or under this Agreement.
System availability is measured by the following formula: x = (n - y) *100 / n Exhibit G
ATTACHMENT A
32 Notes:
(1) "x" is the uptime percentage; "n" is the total number of hours in the given calendar month minus scheduled downtime; and "y" is the total number of downtime hours in the given calendar month. (2) Specifically excluded from "n and "y" in this calculation are the exception times on scheduled upgrade and maintenance windows.
Service Availability Percentage of Monthly Service
Fees Credited
>99.9% 0%
95.0% ‐ < 99.9% 5% (max of $280)
90.0% ‐ < 95.0% 10% (max of $560)
80.0% ‐ < 90.0% 20% (max $840)
70.0% ‐ < 80.0% 30% (max of $1,120)
60.0% ‐ < 70.0% 40% (max of $1,400)
< < 60% 50% (max of $2,800)
Customer Account Login:
For Accela user interface access, Accela uses TLS 1.2 with AES 256 bit or similar encryption for protection of data in transit, which is supported by most modern browsers. Accela will also restrict applicable administrative user interface access to Customer corporate networks for additional security on written request by Customer.
Accela SaaS Service Delivery:
Accela manages its apps and infrastructures within the industry -leading Microsoft Azure hosting environment, specifically designed and constructed to deliver world - class physical security, power availability, infrastructure flexibility and growth capacity. Accela’s audit and compliance foundation includes SSAE 18 SOC 2 Type II, HIPAA, California Consumer Privacy Act (CCPA), and PCI -DSS (payment adapters). Accela’s partnership with Microsoft delivers multi -layered security in physical datacenters, infrastructure and operations, with adherence to its numerous security certifications. More infor mation can be found at https://azure.microsoft.com/en - us/overview/security/.
ATTACHMENT A
33 Enhanced Repor-ng
Database Policy
This Accela Enhanced Repor2ng Database (“ERD”) policy (“Policy”) is an agreement between Accela, Inc. (“Accela”) and the agency receiving Accela subscrip2on services and iden2fied in an applicable Order (“Customer”). The ERD subscrip2on license gives the Customer direct, read-only access to a database that is a replicated copy of Customer’s Accela Civic PlaJorm Tenant Transac2on Database (“Transac2on Database”). In addi2on to the terms and condi2ons of the applicable subscrip2on agreement, Customer’s use of ERD is governed by the terms and condi2ons as set forth below. In case of a conflict between this Policy and the subscrip2on agreement, this Policy shall take precedence. Notwithstanding anything to the contrary, Accela reserves the right to revoke Customer’s license should Customer fail to comply, in whole or part, with any of these terms.
1. ERD is SQL Server-based and is a real-2me replica of the en2re Transac2on Database for use via service accounts. ERD is intended to be used by Customers as a source database from which to replicate certain Customer content.
2. Accel
a will use commercially reasonable efforts to provide a near real -2me sync between ERD and the Transac2on database instances (Accela es2mates the databases will be synced within seconds); however, in some circumstances, this may take several minutes.
3. ERD
may only be accessed by using authen2ca2on creden2als provided to Customer by Accela over an encrypted connec2on and from an IP address that is on Custom er’s allow-list. More informa2on about encrypted connec2ons can be found in the end/external user documenta2on (see #12, below).
4. Accela provides ONE (1) set of creden2als for each ERD tenant instance. A Customer may request up t
o FOUR (4) addi2onal creden2al sets for system integra2ons needing an ERD connec2on via the Support channel. Requests exceeding FOUR (4) accounts will be appr oved or disapproved in Accela’s sole discre2on.
5. ERD func2onality is subject to applicable regulatory and compliance requirements. Creden2al passw
ords expire every 90 days, and passwords resets are the Customer’s sole responsibility.
6. Customer must provide sta2c, agency owned/reserved IP addresses to Accela. Each approved IP address becomes part of the Customer allow-list. If Customer acempts to access ERD from an IP address not on the allow-list, Customer’s access will be denied. IP addresses can be added to or removed from the allow-list by contac2ng Accela Support. Customer-owned IP ranges in excess of 5 IP addresses will be approved or disapproved in Accela’s sole discre2on.
7. ERD is read -only and does not support updates, na2ve system -level data synchroniza2on, mirroring capabili2es or log shipping.
8. ERD is only supported in Accela’s subscrip2on service solu2on hosted in Accela’s Azure environment.
9. Notwithstanding anything to the contrary, (1) ERD will be supported as per Accela’s Standard SaaS Support Service Policy in the Accela Sogware Support Services Policies (SaaS) document (“SLA”) at hcps://www.accela.com/terms/ and ( 2) Accela is not responsible for maintenance, availability or up2me of any external services or databases that reside outside of Accela’s subscrip2on service environment (even if they are interfacing with ERD).
Exhibit H
ATTACHMENT A
34 10. Custom
er agrees to work in good faith with Accela to mi2gate any performance issues that might arise from, for example, overuse or abuse of ERD.
11. Notwithstanding anything to the contrary, Accela reserves the right to interrupt any session that is running against ERD if, in Accela’s sole discre2on, the session is deemed to impact the availability or stability of the system as a result of, for example, long remote queue length, long open transac2ons, or replica2on latency to ERD.
12. End/external user documenta2on regarding Customer access is available here hcps://success.accela.com/s/documents-and-release-notes.
ATTACHMENT A
35 Exhibit I
Compensation
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 $ 3,151,452.61 (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 C and D 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 fil
ing 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 ex
penses shall be reimbursed 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 Contr
actor 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 A
36 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.
1.5 Subcontractor Costs: Compensation for subcontractors shall be limited to the same restrictions imposed on the Contractor. Maximum markup Contractor may apply to subcontractor fees, minus reimbursable expenses, shall not exceed 5%.
2. Task Price . Below is the price for the services and reimbursable expenses as described in Exhibit A of this Agreement.
Period Net Total
Year 1 $ 250,554.90
Year 2 $ 263,082.65
Year 3 $ 276,236.77
Year 4 $ 290,048.62
Year 5 $ 304,551.05
Year 6 $ 319,778.60
Year 7 $ 335,767.53
Year 8 $ 352,555.91
Year 9 $ 370,183.70
Year 10 $ 388,692.88
Total $ 3,151,452.61
3. Hourly Rates. N/A
4. Additional Fees.:N/A
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 A
37