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HomeMy WebLinkAbout2015-117 1 RESOLUTION NO. 2015-117 2 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE ISSUANCE OF A PURCHASE ORDER AND 4 EXECUTION OF AN AGREEMENT WITH ACCELA, INC., FOR PERMIT 5 APPLICATION MAINTENANCE SERVICES. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF 7 SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. That the City Manager, or his designee, is hereby authorized to execute on 9 behalf of the City of San Bernardino an Agreement between the City of San Bernardino and 10 Accela, Inc. for maintenance of the Permits Plus System ("Agreement"), a copy of which is 11 attached hereto as Exhibit "A" and incorporated by this reference as though fully set forth. 12 13 SECTION 2. That the Director of Finance, or his designee, is hereby authorized to issue 14 an annual purchase order to Accela, Inc., in an amount not to exceed $66,221.64 for FY 2015/16 15 for 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 18 FY 2015/16. Not to exceed $66,221.64" and shall incorporate the terms and conditions of this 19 Resolution including the attached Agreement. 20 SECTION 3. That this purchase is exempt from the formal contract procedures of 21 Section 3.04.010 of the San Bernardino Municipal Code, pursuant to Section 3.04.010(B)(3) of 22 the Code as "Purchases approved by the Mayor and Common Council." 23 24 SECTION 4. That the authorization to execute the above-referenced Agreement and 25 issue the above-referenced purchase order is rescinded if the parties to the Agreement fail to 26 execute it or the purchase order is not issued within sixty (60) days of the passage of this 27 Resolution. 28 1 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE ISSUANCE OF A PURCHASE ORDER AND 2 EXECUTION OF AN AGREEMENT WITH ACCELA, INC., FOR PERMIT 3 APPLICATION MAINTENANCE SERVICES. 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 regular meeting thereof, held on the 6 15th day of June, 2015, by the following vote, to wit: 7 Council Members: AYES NAYS ABSTAIN ABSENT 8 9 MARQUEZ X 10 BARRIOS X_ 11 V ALDIV IA _X 12 SHORETT X 13 14 NICKEL X 15 JOHNSON X 16 MULVIHILL X 17 r, 18 Georgea Hanna, C City Clerk 19 The foregoing Resolution is hereby approved this jf day of June, 20 20 Q 21 R. Carey Da s, Mayor 22 City of San ernardino 23 Approved as to form: Gary D. Saenz, City Attorney 24 25 By: 1 d� 26 27 28 2 2015-117 Exhibit A VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA, INC. FOR APPLICATION MAINTENANCE SERVICES This Vendor Services Agreement (the "Agreement") is entered into thisl5thday of June , 20 15 BY AND BETWEEN: the City of San Bernardino, a Charter City organized under the laws of the State of California, with an address of 300 N. "D" Street, San Bernardino, California (the "CITY"); AND, Accela, Inc. a corporation, incorporated under the laws of the State of California and having its principal place of business at 2633 CAMINO RAMON, SUITE 500, SAN RAMON CA 94583 (the "VENDOR") (individually CITY or VENDOR may be referred to as a "PARTY" and collectively CITY and VENDOR may be referred to as the "PARTIES"). WITNESSETH : WHEREAS, the Mayor and Common Council of CITY have determined that it is advantageous and in the best interest of the CITY to contract for application maintenance services for the Permits Plus System; and, WHEREAS, the VENDOR is the sole source vendor for application maintenance services for the Permits Plus System; and, WHEREAS, CITY and VENDOR desire to contract for application maintenance services and desire to set forth their rights, duties, and liabilities in connection with their performance; and, NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby 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"I," attached hereto and incorporated herein. 2. COMPENSATION AND EXPENSES. 2.1 Compensation. VENDOR shall be paid for the services set forth in Attachment "1" a total annual fixed sum of $66,221.64. No other amounts, except those expressly provided for in this Agreement, shall be paid by CITY. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 1 of 11 2015-117 Exhibit A 2.2 Additional Services. VENDOR shall not receive compensation for any services provided outside the scope of services specified in this Agreement unless the CITY, prior to VENDOR performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 3.3 Method of Billing. VENDOR may submit invoices to CITY for approval at intervals no more often than quarterly, in advance. CITY shall pay VENDOR's invoice within forty-five (45) days from the date CITY receives said invoice. 3.4 Records and Audits. Records of VENDOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY upon reasonable notice. 3. TERM; TERMINATION. The term of this Agreement shall be from July 1, 2015 until June 30, 2016, inclusive. This Agreement may be terminated at any time upon thirty (30) days written notice by either PARTY. The terms of this Agreement shall remain in force unless mutually amended in writing. 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. 5.1 Minimum Scope and Limits of Insurance. VENDOR shall obtain and maintain during the life of this Agreement all of the following insurance coverage: (a) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined singles limits, per occurrence and aggregate. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 2 of 11 2015-117 Exhibit A (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits,per occurrence and aggregate. (c) Worker's compensation insurance as required by the State of California. 5.2 Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this contract with City." (b) Notice: "City shall receive thirty (30) days written notice of termination or cancellation." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 5.3 Certificates of Insurance. VENDOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 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. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. VENDOR warrants that it possesses or shall obtain prior to execution of this Agreement, and maintain, a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 3 of 11 2015-117 Exhibit A 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 notices, documents, correspondence, or other communication concerning this Agreement or the services provided hereunder may be provided by personal delivery or U.S. Mail. If personally delivered the notice shall be deemed delivered at the time of the personal delivery. If sent by U.S. Mail the notice shall be deemed delivered forty-eight (48) hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. TO THE CITY: TO THE VENDOR: Office of the City Manager Contracts Administration 300 N D ST, 6th Floor 2633 Camino Ramon, Ste 500 San Bernardino, CA 92418 San Ramon, CA 94583 Either PARTY may change the address for delivery of notices by sending notice of the change to the other PARTY in conformity with this Section. 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/her 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 hereunder for purposes of financing or pursuant to corporate transactions involving the sale of all or substantially all or 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 Superior Court of the State of California for the County of VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 4 of 11 2015-117 Exhibit A San Bernardino or the United States 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 and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. 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 delay or failure of either PARTY to require performance or compliance of the other of any of its obligations under this Agreement shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by a duly authorized representative of the PARTY against whom it is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of such right or remedy with respect to any future occurrences or events and shall not be deemed a continuing waiver. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 5 of 11 2015-117 Exhibit A 18. ENTIRE AGREEMENT. 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. 19. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf' format data file, such signature shall create a valid and binding obligation of the PARTY executing (or on whose behalf such signature is execute) with the same force and effect as if such facsimile or".pdf' signature page were an original thereof 20. AMENDMENT. No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 21. CORPORATE AUTHORITY. Each person executing this Agreement on behalf of the PARTIES hereto warrant that they are duly authorized to execute this Agreement on behalf of said PARTIES and that by doing so, the PARTIES hereto are formally bound to the provisions of this Agreement. 22. COMPLIANCE WITH LAW VENDOR agrees to abide by all federal, state, and local laws, ordinances and regulations. 23. FORCE MAJEURE. A PARTY shall not be liable for any failure or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, governmental orders or any other force majeure event. 24. RESPONSIBILITY FOR ERRORS. VENDOR shall be responsible for its work as further described in Attachment"l." 25. ORDER OF PRECEDENCE. In the event of any inconsistency or conflict in this Agreement and any of the attached Exhibits or Attachments, the terms set forth in this Agreement shall prevail. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 6 of 11 2015-117 Exhibit A 26. CONSTRUCTION. The PARTIES have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the PARTIES and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any Party by virtue of authorship of any of the provisions of this Agreement. [Signature Page Follows] VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 7 of 11 2015-117 Exhibit A VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC. FOR APPLICATION MAINTENANCE SERVICES IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: , 2015 VENDOR: Accela, Inc. By: Its: Dated , 2015 CITY OF SAN BERNARDINO By: Allen Parker, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney By: t C�S-- - VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 8 of 11 2015-117 ATTACHMENT 1" 1. No Third Partv 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; 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; Attachment 1 Page 1 2015-117 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 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. Attachment 1 Page 2 2015--117 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. �Accela'PERMITS' Plus°Maintenance 30 Concurrent User Licenses $18,869.18 Accela'PERMITS' Plus Client ServerTm Maintenance 30 Concurrent User Licenses $8,282.43 Accela'PERMITS'ConnectTm Maintenance 30 Concurrent User Licenses $2,700.52 Accela'PERMITS'WorkflowTM Maintenance 30 Concurrent User Licenses $$811.22 .21 Accela'PERMITS' Scan-ItTM Maintenance 30 Concurrent User Licenses) $811 Accela'PERMITS'Office Link TM Maintenance 30 Concurrent User Licenses $1,005.00 Accela Wireless Maintenance 20 Concurrent User Licenses $21,976.06 Accela GISTM with Optimized Routing Maintenance 20 named user licenses $5,629.04 GIS Optimized Routing Site Maintenance $3,380.98 Al Maintenance Fees are fixed-price deliverables for which full payment is due upon signing. Maintenance Fees are for the period July 1, 2015 to June 30, 2016. Attachment 1 Page 3 2015-117 Exhibit A VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA, INC. FOR APPLICATION MAINTENANCE SERVICES This Vendor Services Agreement (the "Agreement") is entered into this 15 thday of June , 20_L5 BY AND BETWEEN: the City of San Bernardino, a Charter City organized under the laws of the State of California, with an address of 300 N. "D" Street, San Bernardino, California (the "CITY"); AND, Accela, Inc. a corporation, incorporated under the laws of the State of California and having its principal place of business at 2633 CAMINO RAMON, SUITE 500, SAN RAMON CA 94583 (the "VENDOR") (individually CITY or VENDOR may be referred to as a "PARTY" and collectively CITY and VENDOR may be referred to as the "PARTIES"). WITNESSETH : WHEREAS, the Mayor and Common Council of CITY have determined that it is advantageous and in the best interest of the CITY to contract for application maintenance services for the Permits Plus System; and, WHEREAS, the VENDOR is the sole source vendor for application maintenance services for the Permits Plus System; and, WHEREAS, CITY and VENDOR desire to contract for application maintenance services and desire to set forth their rights, duties, and liabilities in connection with their performance; and, NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the PARTIES hereby 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. 2. COMPENSATION AND EXPENSES. 2.1 Compensation. VENDOR shall be paid for the services set forth in Attachment "1" a total annual fixed sum of $66,221.64. No other amounts, except those expressly provided for in this Agreement, shall be paid by CITY. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 1 of 11 2015-117 Exhibit A 2.2 Additional Services. VENDOR shall not receive compensation for any services provided outside the scope of services specified in this Agreement unless the CITY, prior to VENDOR performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 3.3 Method of Billing. VENDOR may submit invoices to CITY for approval at intervals no more often than quarterly, in advance. CITY shall pay VENDOR's invoice within forty-five (45) days from the date CITY receives said invoice. 3.4 Records and Audits. Records of VENDOR's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to CITY upon reasonable notice. 3. TERM; TERMINATION. The term of this Agreement shall be from July 1, 2015 until June 30, 2016, inclusive. This Agreement may be terminated at any time upon thirty (30) days written notice by either PARTY. The terms of this Agreement shall remain in force unless mutually amended in writing. 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. 5.1 Minimum Scope and Limits of Insurance. VENDOR shall obtain and maintain during the life of this Agreement all of the following insurance coverage: (a) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined singles limits,per occurrence and aggregate. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 2 of 11 2015-117 Exhibit A (b) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Worker's compensation insurance as required by the State of California. 5.2 Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this contract with City." (b) Notice: "City shall receive thirty (30) days written notice of termination or cancellation." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 5.3 Certificates of Insurance. VENDOR shall provide to CITY certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by CITY, prior to performing any services under this Agreement. 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. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. VENDOR warrants that it possesses or shall obtain prior to execution of this Agreement, and maintain, a business registration certificate pursuant to Chapter 5 of the Municipal Code, and any VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 3 of 11 2015-117 Exhibit A 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 notices, documents, correspondence, or other communication concerning this Agreement or the services provided hereunder may be provided by personal delivery or U.S. Mail. If personally delivered the notice shall be deemed delivered at the time of the personal delivery. If sent by U.S. Mail the notice shall be deemed delivered forty-eight (48) hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. TO THE CITY: TO THE VENDOR: Office of the City Manager Contracts Administration 300 N D ST, 6th Floor 2633 Camino Ramon, Ste 500 San Bernardino, CA 92418 San Ramon, CA 94583 Either PARTY may change the address for delivery of notices by sending notice of the change to the other PARTY in conformity with this Section. 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/her 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 hereunder for purposes of financing or pursuant to corporate transactions involving the sale of all or substantially all or 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 Superior Court of the State of California for the County of VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 4 of 11 2015-117 Exhibit A San Bernardino or the United States 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 and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. 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 delay or failure of either PARTY to require performance or compliance of the other of any of its obligations under this Agreement shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by a duly authorized representative of the PARTY against whom it is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of such right or remedy with respect to any future occurrences or events and shall not be deemed a continuing waiver. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 5 of 11 2015-117 Exhibit A 18. ENTIRE AGREEMENT. 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. 19. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf' format data file, such signature shall create a valid and binding obligation of the PARTY executing (or on whose behalf such signature is execute) with the same force and effect as if such facsimile or".pdf' signature page were an original thereof 20. AMENDMENT. No amendment to this Agreement will be effective unless it is in writing and signed by both PARTIES. 21. CORPORATE AUTHORITY. Each person executing this Agreement on behalf of the PARTIES hereto warrant that they are duly authorized to execute this Agreement on behalf of said PARTIES and that by doing so, the PARTIES hereto are formally bound to the provisions of this Agreement. 22. COMPLIANCE WITH LAW VENDOR agrees to abide by all federal, state, and local laws, ordinances and regulations. 23. FORCE MAJEURE. A PARTY shall not be liable for any failure or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, governmental orders or any other force majeure event. 24. RESPONSIBILITY FOR ERRORS. VENDOR shall be responsible for its work as further described in Attachment"l." 25. ORDER OF PRECEDENCE. In the event of any inconsistency or conflict in this Agreement and any of the attached Exhibits or Attachments, the terms set forth in this Agreement shall prevail. VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 6 of 11 2015-117 Exhibit A 26. CONSTRUCTION. The PARTIES have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the PARTIES and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any Party by virtue of authorship of any of the provisions of this Agreement. [Signature Page Follows] VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 7 of 11 2015-117 Exhibit A VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA, INC. FOR APPLICATION MAINTENANCE SERVICES IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. Dated: 2015 VENDOR: ela, Inc. By: Its: &5 Dated .•?3 , 2015 CITY OF SAN BERNARDINO By: Al Parker, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney By 7t Ci C(Lcr- VENDOR SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ACCELA,INC.FOR APPLICATION MAINTENANCE SERVICES Page 8 of 11 2015-117 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 Generallv 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; 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; Attachment 1 Page 1 2015-117 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 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. Attachment 1 Page 2 2015--117 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. Accela'PERMITS' Plus®Maintenance 30 Concurrent User Licenses $18,869.18 Accela'PERMITS' Plus Client Server TM Maintenance 30 Concurrent User Licenses $8,282.43 Accela'PERMITS' ConnectTM Maintenance 30 Concurrent User Licenses $2,700.52 Accela'PERMITS'WorkflowTM Maintenance 30 Concurrent User Licenses $3,567.21 Accela'PERMITS' Scan-ItTM Maintenance 30 Concurrent User Licenses $811.22 Accela'PERMITS'Office Link TM Maintenance 30 Concurrent User Licenses $1,005.00 Accela Wireless Maintenance 20 Concurrent User Licenses $21,976.06 Accela GISTM with Optimized Routing Maintenance 20 named user licenses $5,629.04 GIS Optimized Routing Site Maintenance $3,380.98 Maintenance Fees are fixed-price deliverables for which full payment is due upon signing. Maintenance Fees are for the period July 1, 2015 to June 30, 2016. Attachment I Page 3