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HomeMy WebLinkAbout2014-163 1 RESOLUTION NO. 2014-163 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN 3 AGREEMENT WITH AND THE ISSUANCE OF A PURCHASE ORDER TO ACCELA, 4 INC.,FOR PERMIT APPLICATION MAINTENANCE SERVICES. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 6 7 SECTION 1. The City Manager is hereby authorized to execute on behalf of said City 8 an Agreement between the City of San Bernardino and Accela, Inc. for maintenance of the 9 Permits Plus System ("Agreement"), a copy of which is attached hereto as Exhibit A and 10 incorporated by this reference as though fully set forth. 11 SECTION 2. The Director of Administrative Services or his/her designee is hereby 12 authorized to issue an annual purchase order to Accela, Inc., (the sole source for maintenance of 13 the City's Permits Plus system) in an amount not to exceed $60,202.31 for FY 2014-15 for 14 15 maintenance of the City's Permits Plus and Wireless Inspection system. The Purchase Order 16 shall reference the number of this resolution and shall read, "Annual Permits Plus Maintenance, 17 FY 2014-15. Not to exceed $60,202.31" and shall incorporate the terms and conditions of this 18 Resolution including the attached Agreement. 19 SECTION 3. This purchase is exempt from the formal contract procedures of Section 20 3.04.010 of the Municipal Code,pursuant to Section 3.04.010(B)(3) of said Code, "Purchases 21 approved by the Mayor and Common Council." 22 SECTION 4. That the authorization to execute the above referenced Agreement and 23 issue the above referenced purchase order is rescinded if the parties to the Agreement fail to 24 execute it or the purchase order is not issued within sixty (60) days of the passage of this 25 Resolution. 2014-163 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN 2 AGREEMENT WITH AND THE ISSUANCE OF A PURCHASE ORDER TO ACCELA, INC.,FOR PERMIT APPLICATION MAINTENANCE SERVICES. 3 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a joint regularmeeting, thereof, held on 6 the 16th day of .Tune , 2014, by the following vote to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 MARQUEZ X 9 BARRIOS x 10 11 VALDIVIA x 12 SHORETT x 13 NICKEL x 14 JOHNSON x 15 MULVIHILL x 16 George. Hanna, ity Clerk 18 19 The foregoing resolution is hereby approved this /7 day of June , 2014. 20 21 aG R. CARE DAVIS, Mayor 22 City of S: Bernardino Approved as to form: 23 GAREY D. SAENZ, City Attorney 24 25 ' By , , 11 2014-163 EXHIBIT A VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC. AND CITY OF SAN BERNARDINO FOR PERMIT APPLICATION MAINTENANCE SERVICES This Vendor Services Agreement is entered into this 16th day of June 2014 by and between Accela,Inc. ("VENDOR") and the City of San Bernardino ("CITY"). WITNESSETH: WHEREAS, the Mayor and Common Council has determined that it is advantageous and in the best interest of the CITY to contract for maintenance of its permitting and inspection applications, Permits+, ("Permit Application Maintenance Services"); and WHEREAS, the CITY did solicit and accept a quote from the only vendor that supports this application. WHEREAS, the City of San Bernardino is a debtor in a pending Chapter 9 bankruptcy case. NOW,THEREFORE,the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, CITY hereby engages the services of VENDOR to provide those products and services as set forth on ATTACHMENT "1," attached hereto and incorporated herein. If a conflict arises between the attached ATTACHMENT "1" and this Vendor Services Agreement (hereinafter"Agreement"), the terms of the Agreement shall govern and supersede ATTACHMENT "1." 2. COMPENSATION AND EXPENSES. For the services delineated above, the CITY, upon presentation of an invoice, shall pay the VENDOR up to the amount of$60,202.31 for Permit Application Maintenance Services for the period of July 1, 2014 to June 30, 2015. VENDOR shall invoice the CITY on a quarterly basis. The sum of each quarterly invoice shall not exceed $15,050.58 per quarter for the period of July 1, 2014 to June 30, 2015. No other expenditures made by VENDOR shall be reimbursed by CITY. 3. TERM; TERMINATION. The term of this Agreement shall be from the date the Agreement is entered into, above, until June 30, 2015. This Agreement may be terminated at any time by thirty (30) days' written notice by either party. The terms of this Agreement shall remain in force unless mutually VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC.AND CITY OF SAN BERNARDINO Page 1 of 9 2014-163 amended. The duration of this Agreement may be extended with the written consent of both parties. 4. INDEMNITY. To the extent of its liability VENDOR agrees to and shall indemnify and hold the CITY, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of VENDOR, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the CITY, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, VENDOR agrees to protect and defend at its own expense, including attorney's fees, the CITY, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. 5. INSURANCE. While not restricting or limiting the foregoing, during the term of this Agreement, VENDOR shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of$1,000,000.00 combined single limit, and statutory worker's compensation coverage, and shall file copies of said policies with the CITY's Risk Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an additional named insured in each policy of insurance provided hereunder. The Certificate of Insurance furnished to the CITY shall require the insurer to notify CITY at least 30 days prior to any change in or termination of the policy. 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, VENDOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 7. INDEPENDENT CONTRACTOR. VENDOR shall perform work tasks provided by this Agreement, but for all intents and purposes VENDOR shall be an independent contractor and not an agent or employee of the CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for VENDOR and its officers, agents, and employees, and all business license, if any are required, in connection with the services to be performed hereunder. /// VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC.AND CITY OF SAN BERNARDINO Page 2 of 9 2014-163 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. VENDOR warrants that it possesses or shall obtain, and maintain a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of VENDOR to practice its business or profession. 9. NOTICES. Any notice required or permitted by this Agreement shall be made in writing and shall be deemed to have been sufficiently given for all purposes if sent by certified mail or registered mail, postage and fees prepaid, addressed to the party to whom such notice is to be given at the address set forth on the first page of this Agreement, or at such other address as has been previously furnished in writing to the other party or parties. Such notice shall be deemed given when deposited in the United States mail. TO THE CITY: Allen J. Parker, City Manager 300 North"D" Street San Bernardino, CA 92418 Telephone: (909) 384-5122 TO THE VENDOR: Contracts Administration, Accela, Inc. 2633 Camino Ramon, Suite 500 Bishop Ranch 3 San Ramon, CA 94583 Telephone: (925) 659-3200 10. ATTORNEYS' FEES In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. 11. ASSIGNMENT. VENDOR shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release VENDOR of VENDOR's obligation to perform all other obligations to be performed by VENDOR hereunder for the term of this Agreement. Notwithstanding, VENDOR may assign its rights and obligations VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC.AND CITY OF SAN BERNARDINO Page 3 of 9 2014-163 hereunder for purposes of financing or pursuant to corporate transactions involving the sale of all or substantially all of its stock or assets. 12. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 13. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. 15. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 16. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 17. REMEDIES; WAIVER. All remedies available to either party for one or more breaches by the other party are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. The failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches, unless such waiver shall be in writing and signed by the party against whom enforcement is sought. 18. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement and the understanding between the parties, and supersedes any prior agreements and understandings relating to the subject matter of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC.AND CITY OF SAN BERNARDINO Page 4 of 9 2014-163 19. ASSUMPTION. The execution and performance of Agreement does not constitute and shall not be deemed to constitute an assumption or rejection of any previous agreement by City under 11 U.S.C. 365. 20 REJECTION City may assume or reject any previous agreements at any time prior to or in connection with confirmation of a plan of adjustment in CITY's chapter 9 bankruptcy case. 21. PRE-PETITION OBLIGATIONS No payments made under this Agreement shall constitute, or be applied by Vendor to payment on account of any prepetition obligations of City to Vendor, and payment of any prepetition obligations owing to Vendor by City shall be addressed in connection to an assumption of previous agreements or confirmation of a plan of adjustment. /// /// /// HI HI VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC.AND CITY OF SAN BERNARDINO Page 5 of 9 2014-163 VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC.AND CITY OF SAN BERNARDINO FOR PERMIT APPLICATION MAINTENANCE SERVICES IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: , 2014 VENDOR. By: Its: Dated , 2014 CITY OF SAN BERNARDINO By: Allen J. Parker, City Manager Approved as to Form: GARY D. SAENZ, City Attorney B VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC.AND CITY OF SAN BERNARDINO Page 6 of 9 2014-163 Vendor Service Agreement by and between Accela,Inc. and the City of San Bernardino. ATTACHMENT"1" 1. No Third Party Beneficiaries This Maintenance Agreement ("MA") is intended for the exclusive benefit of the Parties; nothing herein will be construed to create any benefits, rights,or responsibilities in any other parties. 2. Term This MA is effective during the period specified hereinbelow. CITY may elect to continue its maintenance coverage for additional annual terms by paying to VENDOR the fees associated with such terms when these are due. Should CITY fail to renew its maintenance coverage or pay the applicable fees, VENDOR reserves the right to withhold all support. If CITY resumes maintenance coverage after one or more periods without such coverage, CITY will pay an amount equivalent to one hundred ten percent (110%) of all maintenance fees attributable to the period(s) without coverage, as such fees are calculated based upon pricing in effect at the time of resumption of maintenance coverage. 3. Scope of Maintenance 3.1. Maintenance Services 3.1.1. Telephone Support VENDOR will provide CITY with a telephone number to contact the Customer Resource Center(CRC), VENDOR's live technical support facility, which is available from 4:00 a.m. until 6:00 p.m. Pacific time Monday through Friday,excluding VENDOR's observed holidays. 3.1.2. E-Mail Support VENDOR will provide CITY with one or more electronic mail addresses to which CITY may submit routine or non-critical support requests, which VENDOR will address during its regular business hours. 3.1.3. Online Support VENDOR will provide CITY with access to archived software updates and other technical information in VENDOR's online support databases,which are continuously available. 3.1.4. Remote Support When required to properly resolve a maintenance request, VENDOR will provide remote assistance to CITY via the WebExTM Meeting CenterTM environment or another mutually- acceptable remote communications method. 3.1.5. On-Site Support If CITY does not wish for VENDOR to resolve its maintenance requests remotely, VENDOR will provide on-site assistance to CITY at VENDOR's then-current time-and-materials rates. In addition to these charges, CITY will compensate VENDOR for associated airfare, lodging, rental transportation, meals, and other incidental expenses as such expenses accrue. 3.1.6. Software Updates VENDOR will provide revisions of and enhancements to maintained software products to CITY as such updates are generally-released by VENDOR. 3.2. Maintenance Limitations 3.2.1. Limitations Generally The following are not covered by this MA, but may be separately available at rates and on terms which may vary from those described herein: a) Services required due to misuse of the VENDOR-maintained software products; Page 7 of 9 2014-163 b) Services required due to software corrections, customizations, or modifications not developed or authorized by VENDOR; c) Services required by CITY to be performed by VENDOR outside of VENDOR's usual working hours; d) Services required due to external factors including, but not necessarily limited to, CITY's use of software or hardware not authorized by VENDOR; e) Services required due to the operation of interfaces between the Accela-maintained software products and other software products or systems, even where such interfaces were provided or implemented by Accela; f) Services required to resolve or work-around conditions which cannot be reproduced in VENDOR's support environment; g) Services which relate to tasks other than maintenance of CITY's existing implementation and configuration of the VENDOR-maintained software products including, but not necessarily limited to, enhancing or adapting such products for specific operating environments; h) Services requested by CITY to implement software updates provided by VENDOR pursuant to this MA; and i) New or additional applications, modules, or functionality released by VENDOR during the term of this MA. 3.2.2. Legacy Releases VENDOR will provide maintenance support for the current release of each of its maintained software applications and for the release immediately preceding such current release. All other releases are deemed to be "Legacy Releases". VENDOR will respond to maintenance requests concerning Legacy Releases only using currently-available information. Services requiring additional research, engineering-level support, or coding or programming by VENDOR will not be provided pursuant to this MA, but may be separately available at rates and on terms which may vary from those described herein. 4. Other Terms and Conditions 4.1. CITY Obligations As required, CITY will provide VENDOR with appropriate access to CITY's facilities, data systems, and other resources. If Security restrictions impair such access, CITY acknowledges that some maintenance services hereunder may not be provided to CITY. It is CITY's sole responsibility to maintain current backup copies of its data and of its implementation of VENDOR's software products. If CITY's failure to create proper backups substantially increases the difficulties of any remedial actions by VENDOR hereunder, VENDOR reserves the right to charge CITY for any extra work reasonably- attributable to such increased difficulty,as calculated at VENDOR's then-current time-and-materials rates. 4.2. Proprietary Rights The remedial methods, software updates, and product information provided to CITY pursuant to this MA are protected under the laws of the United States and the individual states and by international treaty provisions. VENDOR retains full ownership in such items and grants to CITY a limited, nonexclusive, nontransferable license to use the items, subject to the terms and conditions of this MA and other agreements between VENDOR and CITY. 4.3. Limitation of Liability VENDOR provides no warranty whatsoever for any third-party hardware or software products. Third-party applications which utilize or rely upon the Application Services may be adversely affected by remedial or other actions performed pursuant to this MA;VENDOR bears no liability for and has no obligation to remedy such effects. Except as set forth herein, VENDOR provides all Maintenance Services "as is" without express or implied warranty of any kind regarding the character, function, capabilities, or appropriateness of such services or deliverables. To the extent not offset by its insurance Page 8 of 9 2014-163 coverage and to the maximum extent permitted by applicable laws, in no event will VENDOR's cumulative liability for any general, incidental, special, compensatory, or punitive damages whatsoever suffered by CITY or any other person or entity exceed the fees paid to VENDOR by CITY during the twelve (12) calendar months immediately preceding the circumstances which give rise to such claim(s)of liability,even if VENDOR or its agents have been advised of the possibility of such damages. 4.4. Force Majeure If either party is delayed in its performance of any obligation under this MA due to causes or effects beyond its control, that party will give timely notice to the other party and will act in good faith to resume performance as soon as practicable. 4.5. Survival The following provisions will survive the termination or expiration of this MA: Section 2, as to CITY's obligation to pay any fees associated with a lapse in maintenance coverage upon resumption of such coverage and Section 4 and all subsections thereof with the exceptions of Subsections 4.1 and 4.4. 4.6. Alternate Terms Disclaimed The parties expressly disclaim any alternate terms and conditions accompanying drafts and/or purchase orders issued by CITY. It r I es 3:E,ij' _Fees Accela'PERMITS' Plus@ Maintenance(30 Concurrent User Licenses) $17,153.20 Accela'PERMITS' Plus Client ServerTM Maintenance(30 Concurrent User Licenses) $7,528.98 Accela'PERMITS' ConnectTM Maintenance(30 Concurrent User Licenses) $2,455.34 Accela'PERMITS'Workflow TM Maintenance(30 Concurrent User Licenses) $3,241.94 Accela'PERMITS'Scan-ItTM Maintenance(30 Concurrent User Licenses) $738.31 Accela'PERMITS'Office LinkTM Maintenance(30 Concurrent User Licenses) $914.42 Accela Wireless Maintenance(20 Concurrent User Licenses) $19,978.82 Accela GISTM with Optimized Routing Maintenance(20 named user licenses) $5,118.21 GIS Optimized Routing (Site) Maintenance $3,073.08 Total of Fees'"' Maintenance Fees are fixed-price deliverables for which full payment is due upon signing. Maintenance Fees are for the period July 1, 2014 to June 30, 2015. END OF DOCUMENT Page 9 of 9 2014-163 • EXHIBIT A VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC. AND CITY OF SAN BERNARDINO FOR PERMIT APPLICATION MAINTENANCE SERVICES This Vendor Services Agreement is entered into this 16th day of June 2014 by and between Accela,Inc. ("VENDOR") and the City of San Bernardino ("CITY"). WITNESSETH: WHEREAS, the Mayor and Common Council has determined that it is advantageous and in the best interest of the CITY to contract for maintenance of its permitting and inspection applications, Permits+, ("Permit Application Maintenance Services"); and WHEREAS, the CITY did solicit and accept a quote from the only vendor that supports this application. WHEREAS, the City of San Bernardino is a debtor in a pending Chapter 9 bankruptcy case. NOW,THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, CITY hereby engages the services of VENDOR to provide those products and services as set forth on ATTACHMENT "1," attached hereto and incorporated herein. If a conflict arises between the attached ATTACHMENT "1" and this Vendor Services Agreement (hereinafter"Agreement"), the terms of the Agreement shall govern and supersede ATTACHMENT"1." 2. COMPENSATION AND EXPENSES. For the services delineated above, the CITY, upon presentation of an invoice, shall pay the VENDOR up to the amount of$60,202.31 for Permit Application Maintenance Services for the period of July 1, 2014 to June 30, 2015. VENDOR shall invoice the CITY on a quarterly basis. The sum of each quarterly invoice shall not exceed $15,050.58 per quarter for the period of July 1, 2014 to June 30, 2015. No other expenditures made by VENDOR shall be reimbursed by CITY. 3. TERM; TERMINATION. The term of this Agreement shall be from the date the Agreement is entered into, above, until June 30, 2015. This Agreement may be terminated at any time by thirty (30) days' written notice by either party. The terms of this Agreement shall remain in force unless mutually VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC.AND CITY OF SAN BERNARDINO Page 1 of 9 2014-163 amended. The duration of this Agreement may be extended with the written consent of both parties. 4. INDEMNITY. To the extent of its liability VENDOR agrees to and shall indemnify and hold the CITY, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of VENDOR, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the CITY, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, VENDOR agrees to protect and defend at its own expense, including attorney's fees, the CITY, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. 5. INSURANCE. While not restricting or limiting the foregoing, during the term of this Agreement, VENDOR shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of$1,000,000.00 combined single limit, and statutory worker's compensation coverage, and shall file copies of said policies with the CITY's Risk Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an additional named insured in each policy of insurance provided hereunder. The Certificate of Insurance furnished to the CITY shall require the insurer to notify CITY at least 30 days prior to any change in or termination of the policy. 6. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, VENDOR shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 7. INDEPENDENT CONTRACTOR. VENDOR shall perform work tasks provided by this Agreement, but for all intents and purposes VENDOR shall be an independent contractor and not an agent or employee of the CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for VENDOR and its officers, agents, and employees, and all business license, if any are required, in connection with the services to be performed hereunder. /// VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC.AND CITY OF SAN BERNARDINO Page 2 of 9 2014-163 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. VENDOR warrants that it possesses or shall obtain, and maintain a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any other licenses, permits, qualifications, insurance and approval of whatever nature that are legally required of VENDOR to practice its business or profession. 9. NOTICES. Any notice required or permitted by this Agreement shall be made in writing and shall be deemed to have been sufficiently given for all purposes if sent by certified mail or registered mail, postage and fees prepaid, addressed to the party to whom such notice is to be given at the address set forth on the first page of this Agreement, or at such other address as has been previously furnished in writing to the other party or parties. Such notice shall be deemed given when deposited in the United States mail. TO THE CITY: Allen J. Parker, City Manager 300 North"D" Street San Bernardino, CA 92418 Telephone: (909) 384-5122 TO THE VENDOR: Contracts Administration, Accela, Inc. 2633 Camino Ramon, Suite 500 Bishop Ranch 3 San Ramon, CA 94583 Telephone: (925) 659-3200 10. ATTORNEYS' FEES In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. 11. ASSIGNMENT. VENDOR shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release VENDOR of VENDOR's obligation to perform all other obligations to be performed by VENDOR hereunder for the term of this Agreement. Notwithstanding, VENDOR may assign its rights and obligations VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC.AND CITY OF SAN BERNARDINO Page 3 of 9 2014-163 hereunder for purposes of financing or pursuant to corporate transactions involving the sale of all or substantially all of its stock or assets. 12. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 13. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. 15. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 16. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 17. REMEDIES; WAIVER. All remedies available to either party for one or more breaches by the other party are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. The failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches, unless such waiver shall be in writing and signed by the party against whom enforcement is sought. 18. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement and the understanding between the parties, and supersedes any prior agreements and understandings relating to the subject matter of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC.AND CITY OF SAN BERNARDINO Page 4 of 9 2014-163 19. ASSUMPTION. The execution and performance of Agreement does not constitute and shall not be deemed to constitute an assumption or rejection of any previous agreement by City under 11 U.S.C. 365. 20 REJECTION City may assume or reject any previous agreements at any time prior to or in connection with confirmation of a plan of adjustment in CITY's chapter 9 bankruptcy case. 21. PRE-PETITION OBLIGATIONS No payments made under this Agreement shall constitute, or be applied by Vendor to payment on account of any prepetition obligations of City to Vendor, and payment of any prepetition obligations owing to Vendor by City shall be addressed in connection to an assumption of previous agreements or confirmation of a plan of adjustment. //I //I //I //I //I //I //I //I //I /// VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC.AND CITY OF SAN BERNARDINO Page 5 of 9 2014-163 VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC. AND CITY OF SAN BERNARDINO FOR PERMIT APPLICATION MAINTENANCE SERVICES IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated:Zb It4 ' , 2014 VENDOR. By:B l Y Its: ASS?. Sr-cite-7412%i Dated l/ Z% , 2014 CITY OF SAN BERNARDINO By: Allen J. ''ker, City Manager Approved as to Form: GARY D. SAENZ, City Attorney B I.L.e . IC--e-� VENDOR SERVICES AGREEMENT BETWEEN ACCELA,INC.AND CITY OF SAN BERNARDINO Page 6 of 9 2014-163 Vendor Service Agreement by and between Accela,Inc.and the City of San Bernardino. ATTACHMENT"1" 1. No Third Party Beneficiaries This Maintenance Agreement ("MA") is intended for the exclusive benefit of the Parties; nothing herein will be construed to create any benefits, rights,or responsibilities in any other parties. 2. Term This MA is effective during the period specified hereinbelow. CITY may elect to continue its maintenance coverage for additional annual terms by paying to VENDOR the fees associated with such terms when these are due. Should CITY fail to renew its maintenance coverage or pay the applicable fees, VENDOR reserves the right to withhold all support. If CITY resumes maintenance coverage after one or more periods without such coverage, CITY will pay an amount equivalent to one hundred ten percent (110%) of all maintenance fees attributable to the period(s) without coverage, as such fees are calculated based upon pricing in effect at the time of resumption of maintenance coverage. 3. Scope of Maintenance 3.1. Maintenance Services 3.1.1. Telephone Support VENDOR will provide CITY with a telephone number to contact the Customer Resource Center(CRC), VENDOR's live technical support facility, which is available from 4:00 a.m. until 6:00 p.m. Pacific time Monday through Friday,excluding VENDOR's observed holidays. 3.1.2. E-Mail Support VENDOR will provide CITY with one or more electronic mail addresses to which CITY may submit routine or non-critical support requests, which VENDOR will address during its regular business hours. 3.1.3. Online Support VENDOR will provide CITY with access to archived software updates and other technical information in VENDOR's online support databases,which are continuously available. 3.1.4. Remote Support When required to properly resolve a maintenance request, VENDOR will provide remote assistance to CITY via the WebExTM Meeting CenterTM environment or another mutually- acceptable remote communications method. 3.1.5. On-Site Support If CITY does not wish for VENDOR to resolve its maintenance requests remotely, VENDOR will provide on-site assistance to CITY at VENDOR's then-current time-and-materials rates. In addition to these charges, CITY will compensate VENDOR for associated airfare, lodging, rental transportation, meals, and other incidental expenses as such expenses accrue. 3.1.6. Software Updates VENDOR will provide revisions of and enhancements to maintained software products to CITY as such updates are generally-released by VENDOR. 3.2. Maintenance Limitations 3.2.1. Limitations Generally The following are not covered by this MA, but may be separately available at rates and on terms which may vary from those described herein: a) Services required due to misuse of the VENDOR-maintained software products; Page 7 of 9 2014-163 • b) Services required due to software corrections, customizations, or modifications not developed or authorized by VENDOR; c) Services required by CITY to be performed by VENDOR outside of VENDOR's usual working hours; d) Services required due to external factors including, but not necessarily limited to, CITY's use of software or hardware not authorized by VENDOR; e) Services required due to the operation of interfaces between the Accela-maintained software products and other software products or systems, even where such interfaces were provided or implemented by Accela; f) Services required to resolve or work-around conditions which cannot be reproduced in VENDOR's support environment; g) Services which relate to tasks other than maintenance of CITY's existing implementation and configuration of the VENDOR-maintained software products including, but not necessarily limited to, enhancing or adapting such products for specific operating environments; h) Services requested by CITY to implement software updates provided by VENDOR pursuant to this MA; and i) New or additional applications, modules, or functionality released by VENDOR during the term of this MA. 3.2.2. Legacy Releases VENDOR will provide maintenance support for the current release of each of its maintained software applications and for the release immediately preceding such current release. All other releases are deemed to be "Legacy Releases". VENDOR will respond to maintenance requests concerning Legacy Releases only using currently-available information. Services requiring additional research, engineering-level support, or coding or programming by VENDOR will not be provided pursuant to this MA, but may be separately available at rates and on terms which may vary from those described herein. 4. Other Terms and Conditions 4.1. CITY Obligations As required, CITY will provide VENDOR with appropriate access to CITY's facilities, data systems, and other resources. If Security restrictions impair such access, CITY acknowledges that some maintenance services hereunder may not be provided to CITY. It is CITY's sole responsibility to maintain current backup copies of its data and of its implementation of VENDOR's software products. If CITY's failure to create proper backups substantially increases the difficulties of any remedial actions by VENDOR hereunder, VENDOR reserves the right to charge CITY for any extra work reasonably- attributable to such increased difficulty,as calculated at VENDOR's then-current time-and-materials rates. 4.2. Proprietary Rights The remedial methods, software updates, and product information provided to CITY pursuant to this MA are protected under the laws of the United States and the individual states and by international treaty provisions. VENDOR retains full ownership in such items and grants to CITY a limited, nonexclusive, nontransferable license to use the items, subject to the terms and conditions of this MA and other agreements between VENDOR and CITY. 4.3. Limitation of Liability VENDOR provides no warranty whatsoever for any third-party hardware or software products. Third-party applications which utilize or rely upon the Application Services may be adversely affected by remedial or other actions performed pursuant to this MA;VENDOR bears no liability for and has no obligation to remedy such effects. Except as set forth herein, VENDOR provides all Maintenance Services "as is" without express or implied warranty of any kind regarding the character, function, capabilities, or appropriateness of such services or deliverables. To the extent not offset by its insurance Page 8 of 9 2014-163 coverage and to the maximum extent permitted by applicable laws, in no event will VENDOR's cumulative liability for any general, incidental, special, compensatory, or punitive damages whatsoever suffered by CITY or any other person or entity exceed the fees paid to VENDOR by CITY during the twelve (12) calendar months immediately preceding the circumstances which give rise to such claim(s)of liability,even if VENDOR or its agents have been advised of the possibility of such damages. 4.4. Force Maieure If either party is delayed in its performance of any obligation under this MA due to causes or effects beyond its control, that party will give timely notice to the other party and will act in good faith to resume performance as soon as practicable. 4.5. Survival The following provisions will survive the termination or expiration of this MA: Section 2, as to CITY's obligation to pay any fees associated with a lapse in maintenance coverage upon resumption of such coverage and Section 4 and all subsections thereof with the exceptions of Subsections 4.1 and 4.4. 4.6. Alternate Terms Disclaimed The parties expressly disclaim any alternate terms and conditions accompanying drafts and/or purchase orders issued by CITY. Accela'PERMITS' Plus®Maintenance(30 Concurrent User Licenses) $17,153.20 Accela'PERMITS' Plus Client ServerTM Maintenance(30 Concurrent User Licenses) $7,528.98 Accela'PERMITS' ConnectTM Maintenance(30 Concurrent User Licenses) $2,455.34 Accela'PERMITS'WorkflowTM Maintenance(30 Concurrent User Licenses) $3,241.94 Accela'PERMITS' Scan-ItTM Maintenance(30 Concurrent User Licenses) $738.31 Accela'PERMITS'Office LinkTM Maintenance(30 Concurrent User Licenses) $914.42 Accela Wireless Maintenance(20 Concurrent User Licenses) $19,978.82 Accela GISTM with Optimized Routing Maintenance(20 named user licenses) $5,118.21 GIS Optimized Routing (Site)Maintenance $3,073.08 Total of Fees a", .146002:31 a Maintenance Fees are fixed-price deliverables for which full payment is due upon signing. Maintenance Fees are for the period July 1, 2014 to June 30, 2015. END OF DOCUMENT Page 9 of 9