HomeMy WebLinkAboutAgenda Report - April 4, 2018 C-09TM
AGENDA ITEM
CITY OF LODI
COUNCIL COMMUNICATION
cq
AGENDA TITLE: Adopt Resolution Authorizing City Manager to Execute a Five -Year
Agreement for Land Management Permit Software and Software
Maintenance Services with Accela, Inc. of Reston, Virginia, in an Amount
Not to Exceed $530,000
MEETING DATE: April 4, 2018
PREPARED BY: Community Development Director
RECOMMENDED ACTION:
BACKGROUND INFORMATION
Adopt resolution authorizing City Manager to execute a five-
year agreement for Land Management Permit Software and
software maintenance services with Accela, Inc. of Reston,
Virginia, in an amount not to exceed $530,000.
In November 2017, staff issued a Request for Proposal for
new Land Management Software and received five responses
from three separate venders.
Accela Land Management managed the original access based permit software that the department
used from 2000 through June 2013 and staff was pleased with the product. When it was time to
upgrade the system the product offered by Accela was not financially feasible. Community
Development along with Public Works, Electric Utility, Fire and Code Enforcement currently utilizes
permitting software provided by iWorq. The system has been used since July 2013 and was
purchased during the down economy and suited the financial needs of the time.
The five quotes that were received are as follows:
Vender
Software
License
Cost
Implementation
Cost
Other Costs
_
Total Startup
Cost
Annual
Maintenance
Cost
Accela, Inc.
$ 61,070
$ 157,760
-0-
$218,830
$ 61,070
MaintStar
$ 80,000
$105,000
-0-
$185,000
$382,000
Superion (1)
$ 153,600
$266,197
City Hosted
$446,770
$165,279
Superion (2)
$ 153,600
$266,197
$41,700
(hosting)
$488,470
$345,241
Superion (3)
$100,258
$266,170
Cloud
Subscription
$366,428
$315,758
The Other Costs for Superion quote (1) is for a City -hosted system and the cost of possible
infrastructure needs are unknown at this time.
Staff recommends Council adopt a resolution authorizing the City Manager to execute a five-year
agreement for land management permit software and software maintenance services with Accela,
Inc. of Reston, Virginia, in an amount not to exceed $530,000.
APPROVED:
shwa: = ueManager
J:\Community Development\Council Communications\2018\04-04_PSA_Purchase_Accela__PermitSoftware_and„Maintenance.doc 3/26/2018
Adopt Reso for land management software
April 4, 2018
Page 2 of 2
FISCAL IMPACT: Start-up costs will be absorbed in the Community Development
Special Revenue Fund.
FUNDING AVAILABLE:
SS/DC/kjc
Funding for first year start-up cost is budgeted in account:
27081000.72313 $235,000
Annual Maintenance funding will be budgeted out of the five
department budgets that will be utilizing the system
Andrew Keys
Deputy City Manager/Internal Services Director
rik A. ■
Am
Steve aba
Community Development Director
ACCELA MASTER SUBSCRIPTION AGREEMENT
This Accela Master Subscription Agreement (this "Agreement") is entered into as of the date of last signature (the
"Effective Date') by and between Accela, Inc., a California corporation principally located at 2633 Camino Ramon,
Suite 500, Bishop Ranch 3, San Ramon, California 94583 ("Accela"), and City of Lodi with a principal place of business
at Lodi, California ("Customer).
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON CUSTOMER AND GOVERNS CUSTOMER'S USE
OF AND ACCESS TO THE SERVICES BY CUSTOMER OR ITS AGENTS.
Purchase or use of the Subscription Service (defined below) is subject to this Agreement and Subscription Terms and
Conditions ("Terms'). If Customer is entering into this Agreement on behalf of a company, organization or
another legal entity (an "Entity"), Customer is agreeing to this Agreement for that Entity and representing to
Accela that it has the authority to bind such Entity to this Agreement
1. DEFINITIONS
1.1 "Communication Data" means any and all information transmitted, shared, or exchanged between Customer and
any Authorized User, or between Authorized User and any third party (including any third -party network or website),
using the Subscription Service, with respect to any transaction or other communication enabled by the Subscription
Service, but excluding Security Data.
1,2 "Customer" means the entity that purchases a subscription to the Subscription Service, directly from Accela or
through an authorized reseller, distributor, or other channel partner of Accela.
1.3 'Authorized User" means individuals who are authorized by Customer to use the Subscription Service and for
whom Customer has purchased a subscription to the Subscription Service. Authorized Users may include but are not
limited to Customer's employees, contractors and agents. Each Authorized User will be associated with a single, unique
email address for purposes of accessing (and being identified within) the Subscription Service.
1.4 "Intellectual Property Rights' means patent rights (including, without limitation, patent applications and
disclosures), copyrights, trade secrets, know-how, and any other intellectual property rights recognized in any country
or jurisdiction in the world.
1.5 "Optional Subscription Services'. mean the optional add-ons to the Subscription Service that may be available
for purchase either directly from Accela or through an authorized reseller or partner of Acceia, as more particularly
described or identified in the applicable Order.
1.6 "Order" means written orders to purchase subscriptions to use the Subscription Service, attached hereto as Exhibit
A (or, where applicable, to purchase Optional Subscription Services).
1.7 "Security Data" means any and all information provided by Customer or any Authorized User to establish secure
transmissions through use of the Subscription Service, including but not limited to personal information, information
used to identify account names or numbers, routing information, usernames, passwords, access codes and prompts.
1.8 "Subscription Service" means the cloud -based network security service(s) for which Customer has obtained a
subscription either directly from Accela or through an authorized reseller or other partner of Accela, as more particularly
described in the applicable agreement or order under which such subscription was obtained. If and as designated in
the Specifications, the Subscription Service may be inclusive of application programming interfaces (APIs) developed
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by Accela to enable interaction and integration with the Subscription Service. Unless otherwise specified herein or
other applicable contractual terms, all references to "Subscription Service" will be deemed to include any and all
Optional Subscription Services.
1.9 "Software' means any software (including client software for Authorized Users' devices) that Accela makes
available for download or otherwise provides for use with the Subscription Service.
1.10 "Specifications" means the online specifications for the Subscription Service, as made available by Accela at
https:flaccela.box.com/SoftwareSpecs (which URL location and content may be updated from time to time by Accela).
1.11 "Subscription Period(s)" means the duration of Customers and Authorized User's active, paid access to the
Subscription Service, as designated in the Order(s).
1.12 "Supported Modification" means a configuration of or modification to the Subscription Service requested by
Customer that can be consistently supported by Accela via APIs, does not require direct database changes and is
capable of being tested and maintained by Accela.
1.1. PROCUREMENT OF SERVICES. Customer may purchase the Services by submitting Orders. Upon Order
acceptance and subject to Customer's payment of the corresponding Services fees, Accela will make the Services
available to Customer. No Order will be deemed accepted by Accela unless and until Accela accepts such Order in
writing. Any terms and conditions contained in any quote, invoice, purchase order or Order that are inconsistent with
the terms and conditions of this Agreement will be deemed stricken, unless expressly agreed to in writing by Accela
with explicit reference to the accepted terms and conditions. Upon acceptance of an Order, it will become part of this
Agreement.
2, AUTHORIZED USERS. Only Authorized Users may access or use the Subscription Service under Customer's
account. Each Authorized User may use any reasonable number of compatible devices for purposes of accessing the
Subscription Service; provided that, Accela reserves the right to determine whether a number of devices is reasonable
and, in its sole discretion, to place a corresponding cap on the number of devices. Unless expressly authorized by
Accela, Authorized User subscriptions cannot be shared or used by more than one individual but may be permanently
reassigned to new Authorized Users. The number of Authorized User subscriptions purchased may be increased
(under a new Order) but cannot be decreased during any Subscription Period.
3. USE OF THE SERVICE
3.1. Accela's Responsibilities. Accela will: (i) provide to Customer support related to the Subscription Service in
accordance with the Accela Support Terms accessible at https:Ilaccela.box.comlSaaSSupportPolicv (which URL
location and content may be updated from time to time by Accela) and (ii) provide the Subscription Service only in
accordance with applicable laws and government regulations.
3.2. Customer's Responsibilities. Customer will (i) be responsible for meeting Accela's applicable minimum system
requirements for use of the Subscription Service; (ii) be responsible for Authorized Users' compliance with these Terms
and for any other activity (whether or not authorized by Customer) occurring under Customer's account, (iii) be solely
responsible for the accuracy, quality, integrity and legality of Communication Data, (iv) use commercially reasonable
efforts to prevent unauthorized access to or use of the Subscription Service under its account, and notify Accela
promptly of any such unauthorized access or use, and (v) use the Subscription Service only in accordance with the
applicable documentation, laws and government regulations, and any written instructions provided by Accela to
Customer.
3.3. Prohibitions. Customer will not, and will ensure that its Authorized Users do not, (i) make the Subscription Service
available to anyone other than Authorized Users; (ii) sell, resell, rent, lease or transfer the Subscription Service in whole
or in part to any third party (including Customer affiliates) without the express permission of Accela and execution of
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designated transfer documentation; (iii) use the Subscription Service to store or transmit infringing, libelous, or
otherwise unlawful or tortious material, or to store or transmit material in violation of third -party privacy or intellectual
property rights; (iv) use the Subscription Service to store or transmit viruses, worms, time bombs, Trojan horses and
other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or
performance of the Subscription Service or third -party data contained therein; (vi) attempt to gain unauthorized access
to the Subscription Service or any related systems or networks; or (vii) obtain intellectual property rights to the use of
any component of the Subscription Services (inclusive of APIs).
3.4. Software. Authorized Users may need to download and install client Software (as made available by Accela or
other third party authorized by Accela) on each device through which they intend to use the Subscription Service. All
use of such Software will be governed by terms of the applicable license agreement or terms of use that accompanies
or is made available in connection with the Software. Customer acknowledges that each Authorized User (or authorized
Customer representative) must accept such license agreement, and have Subscription Service -compatible device(s),
to download, install, and/or use the Software. Nothing in these Terms will be deemed to grant to Customer rights of
any kind in the Software.
3.5. Security Data and Privacy. Customer understands that failure to protect Security Data may allow an unauthorized
person or entity to access the Subscription Service. In addition, Customer acknowledges that Accela generally does
not have access to and cannot retrieve lost Security Data. If Customer loses Security Data, Customer may no longer
have access to the Subscription Service. Customer agrees that: (i) Customer (or its Authorized User) is solely
responsible for collecting, inputting and updating all Security Data; (ii) Accela assumes no responsibility for supervision,
management or control of Customer's and Authorized Users' Security Data; and (iii) Accela assumes no responsibility
for any fraudulent or unauthorized use of the Software or any portion of the Subscription Service. To the extent that
Accela has access to any personally identifiable information gathered from Customer or from Authorized Users in
connection with the Subscription Service, such information will be governed by the provisions of the Accela Privacy
Policy, a copy of which is available on the Accela website at https://accela.box,com/PrivacyPolicy (which URL location
and content may be updated from time to time by Accela).
4. PROPRIETARY RIGHTS
4.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Accela reserves all rights, title
and interest in and to the Subscription Service and any associated Software and documentation, including all related
Intellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
4.2. Restrictions. fn addition to the other prohibitions set forth in these Terms, Customer will not and will ensure that its
agents do not (i) create derivate works based on the Subscription Service, (11) copy, frame or mirror any part or content
of the Subscription Service, other than copying or framing on Customer's own intranets or otherwise for Customer's
internal business purposes in accordance with Accela's applicable documentation, (iii) reverse engineer the
Subscription Service, or (iv) access the Subscription Service (inclusive of any APIs) in order to build or patent a
competitive product or service or to copy any features, functions or graphics of the Subscription Service.
4.3. Communication Data Ownership. Customer reserves all its rights, title and interest in and to the Communication
Data. No rights are granted to Accela hereunder with respect to the Communication Data, except that Accela may (i)
store, copy, process, and transmit such Communication Data for purposes of providing the Subscription Service to
Customer and (ii) otherwise utilize Communication Data if and as permitted by the Accela Privacy Policy.
4.4. Customer Suggestions. Customer grants Accela a royalty -free, worldwide, transferable, sub-licenseable,
irrevocable, perpetual license to use or incorporate into the Subscription Service (or Accela's other software or services)
any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or Authorized
Users relating to the operation or features of the Subscription Service.
5. PAYMENT TERMS.
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5.1. Invoicing and Payment. Accela will invoice Customer in advance for the Subscription Service. Subscription Service
fees are due upon invoice and payable within thirty (30) days of the invoice or post mark date, whichever is later.
Subscription Service fees will be due no later than the first day of each Subscription Period to which the payment
relates. If Customer orders additional Authorized User quantities part-way through an existing Subscription Period,
and the initial Subscription Period for the additional quantity is adjusted as described herein, then the Subscription
Service fee for such additional quantity will be pro -rated accordingly. Optional Subscription Services will be due at the
same time as payment for the corresponding Subscription Service, or (if applicable) as otherwise specified in the
applicable Order or governing terms. Subscription Service fees will be subject to an automatic annual increase by the
percentage of the prior year's Subscription Service fees (the "Uplift") listed in the Order. Customer is responsible for
keeping Accela accurately and fully informed of Customers billing and contact information, including providing any
purchase order numbers in advance of invoice issuance
5.2. Overdue Charges. If any Fees are not received from Customer by the due date, then without limiting Accela's
rights or remedies, those charges will accrue late interest at the rate of one and a half percent (1.5%) of the outstanding
balance per month, or the maximum rate permitted by law, whichever is lower.
5.3. Suspension of Service and Acceleration. If any amount awing by Customer under this Agreement for any of the
Subscription Services is thirty (30) or more days overdue, Accela may, without limiting Accela's other rights and
remedies, accelerate Customer's unpaid fee obligations under this Agreement (including any Order or SOW) so that
all such obligations become immediately due and payable, suspend the Subscription Service and/or stop performance
of the Professional Subscription Services until such amounts are paid in full. Moreover, if any amount owing by
Customer under this Agreement for any Subscription Services is ninety (90) days delinquent, Accela may, in its sole
discretion, temporarily cease providing Customer Subscription Services and/or any pertinent support until past due
amounts are paid in full.
5.4. Taxes. Subscription Services fees do not include any taxes, levies, duties or similar governmental assessments
of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state,
provincial, federal or foreign jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes. If Accela
has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate
amount will be invoiced to and paid by Customer, unless Customer provides Accela with a valid tax exemption
certificate authorized by the appropriate taxing authority prior to invoice issuance. For clarity, Accela is solely
responsible for taxes assessable against it based on Accela's income, property and employees.
6. CONFIDENTIALITY
6.1. Definition. As used herein, "Confidential Information" means all confidential information disclosed by a party
("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as
confidential or that reasonably should be understood to be confidential given the nature of the information and the
circumstances of disclosure. However, Confidential Information will not include any information that (1) is or becomes
generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the
Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing
Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was
independently developed by the Receiving Party.
6.2. Protection. Except as otherwise permitted in writing by the Disclosing Party and subject to the other terms of this
Agreement (including Accela's Privacy Policy), (i) the Receiving Party will use the same degree of care that it uses to
protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not
to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these
Terms, and (ii) the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its
employees, contractors and agents who need such access for purposes consistent with these Terms and who are
legally bound to protect such Confidential Information consistent with these Terms.
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6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is
compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled
disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing
Party wishes to contest, limit, or protect the disclosure.
7. WARRANTIES AND DISCLAIMERS
7.1. Specifications. Subject to the limitations set forth below, Accela warrants that the Subscription Service will operate
in all material respects in accordance with the Specifications. As Customer's sole and exclusive remedy and Accela's
entire liability for any breach of the foregoing warranty, Accela will use commercially reasonable efforts to modify the
Subscription Service so that it conforms to foregoing warranty.
7.2. Subscription Service Level Commitment. During the Subscription Period, Accela further warrants that the
Subscription Service will meet the performance level specified in the Subscription Service Level Commitment, as made
available by Accela at https://accela.box.comfSaaSSLC (which URL location and content may be updated from time to
time by Accela). The Subscription Service Level Commitment sets forth Customer's sole and exclusive remedy for
Accela's failure to achieve the stated Subscription Service performance level.
7.3, Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ACCELA DOES NOT MAKE ANY WARRANTIES
OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ACCELA SPECIFICALLY
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON -
INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING OUT OF THE
COURSE OF DEALING OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Accela will not be responsible to the extent failure of the Subscription Service to operate as warranted is caused by or
results from: (i) any modification to the Subscription Service other than a Supported Modification; (ii) combination,
operation or use of the Subscription Service with Customer's or a third party's applications, software or systems;
(iii) abuse, willful misconduct or negligence by anyone other than Accela or Accela's designee; (iv) use of the
Subscription Service other than in accordance with the terms of this Agreement and/or the applicable Specifications
and Accela documentation or (v) any of the SLC Exclusions (as defined in the Subscription Service Level Commitment).
8. MUTUAL INDEMNIFICATION
8.1. Indemnification by Customer. Customer will defend (or settle), indemnify and hold harmless Accela from and
against any liabilities, Tosses, damages and expenses, including court costs and reasonable attorneys' fees, to the
extent that it is based upon a claim that: (i) a third party has suffered injury, damage or loss resulting from Customer's
or any Authorized User's use of the Subscription Service (other than any claim for which Accela is responsible under
Section 8.2); or (ii) Customer or any Authorized User has used the Subscription Service in a manner that violates these
Terms or applicable law. Customer's obligations under this Section 8.1 are contingent upon: (a) Accela providing
Customer with prompt written notice of such claim; (b) Accela providing reasonable cooperation to Customer in defense
and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.
8.2. Indemnification by Accela. Accela will defend (or settle), indemnify and hold harmless Customer from and against
any liabilities, losses, damages and expenses, including court costs and reasonable attorneys' fees, to the extent that
it is based upon a claim that the Subscription Service, as furnished by Accela hereunder, infringes or misappropriates
the Intellectual Property Rights of any third party. Accela's obligations under this Section 8.2 are contingent upon: (a)
Customer providing Accela with prompt written notice of such claim; (b) Customer providing reasonable cooperation to
Accela in the defense and settlement of such claim; and (c) Accela having sole authority to defend or settle such claim.
THIS SECTION 8.2 STATES THE ENTIRE OBLIGATION OF ACCELA AND ITS LICENSORS WITH RESPECT TO
ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS
BY THE SERVICE. Accela will have no liability under this Section 8.2 to the extent that any third -party claims described
herein are based on (i) any combination of the Subscription Service with products, services, methods, or other elements
not furnished by Accela or its contractors; (ii) any use of the Subscription Service in a manner that violates this
Agreement or the instructions given to Customer by Accela; (iii) Customer's failure to incorporate updates or upgrades
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that would have avoided the alleged infringement; (iv) Customer's breach of this Agreement; and/or Customer's
revisions of Subscription Services made without Accela's written consent.
8.3. Mitigation Measures. In the event that (i) any claim or potential claim covered by Section 8.2 arises or (ii) Accela's
right to provide the Subscription Service is enjoined or in Accela's reasonable opinion is likely to be enjoined, Accela
may, in its discretion, seek to mitigate the impact of such claim or injunction by obtaining the right to continue providing
the Subscription Service, by replacing or modifying the Subscription Service to make it non -infringing, and/or by
suspending or terminating Customer's use of the Subscription Service with reasonable notice to Customer. In the case
of a suspension or termination pursuant to this Section 8.3, Accela will refund to Customer a portion of fees prepaid by
Customer for the then -current Subscription period, prorated to the portion of that Subscription period that is affected
by the suspension or termination).
9. LIMITATIONS OF LIABILITY. IN NO EVENT WILL ACCELA'S AGGREGATE LIABILITY TO CUSTOMER OR
ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF
OR INABILITY TO USE THE SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF
LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY
SINGLE INCIDENT, THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTH PERIOD
PRECEDING THE INCIDENT.
9.1. Exclusion of Damages. NEITHER ACCELA NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING,
PRODUCING, OR DELIVERING THE SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY
OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL,
SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE
PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE
USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICE, WHETHER BASED ON WARRANTY, CONTRACT,
TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING
EXCLUSIONS APPLY WHETHER OR NOT ACCELA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGE, AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS
ESSENTIAL PURPOSE. NOTHING IN THESE TERMS EXCLUDES OR RESTRICTS THE LIABILITY OF EITHER
PARTY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE.
9.2. Security and Other Risks. Customer acknowledges that, notwithstanding security features of the Subscription
Service, no product, hardware, software or service can provide a completely secure mechanism of electronic
transmission or communication and that there are persons and entities, including enterprises, governments and quasi -
governmental actors, as well as technologies, that may attempt to breach any electronic security measure. Subject
only to its limited warranty obligations set forth in Section 7, Accela will have no liability for any security breach caused
by any such persons, entities, or technologies. Customer further acknowledges that the Subscription Service is not
guaranteed to operate without interruptions, failures, or errors. If Customer or Authorized Users use the Subscription
Service in any application or environment where failure could cause personal injury, loss of life, or other substantial
harm, Customer assumes any associated risks and will indemnify Accela and hold it harmless against those risks.
9.3. Basis of Bargain. THE LIMITATIONS OF LIABLITY AND EXCLUSIONS OF DAMAGES SET FORTH IN THIS
SECTION 9 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ACCELA AND
CUSTOMER AND WILL APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW.
10. SUBSCRIPTION PERIOD AND TERMINATION
10.1. Term of Authorized User Subscriptions. Authorized User Subscriptions purchased by Customer commence
on the start date specified in the applicable Order and, unless terminated earlier in accordance with these Terms,
continue for the term specified therein (the "Subscription Period"). A Subscription Period and/or pricing there on may
be subject to prorating where Accela deems it appropriate to cause newly purchased Subscriptions to expire or renew
simultaneously with Customer's pre-existing Subscription(s). Except as otherwise specified in the applicable Order, all
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Subscriptions will automatically renew for additional Subscription Periods equal to the expiring Subscription Period or
one year (whichever is shorter), unless either party gives the other at least sixty (60) days' notice of non -renewal before
the end of the relevant Subscription Period. The per-unit pricing during any such renewal Subscription Period may be
subject to annual pricing increase as designated by Accela and notified to Customer. Pricing increases will be effective
upon renewal of the Subscription Period and annually thereafter, unless otherwise agreed to by the parties. If either
party provides notice of non -renewal as set forth above, Customer's right to use the Subscription Service will terminate
at the end of the relevant Subscription Period.
10.2. Vermination or Suspension for Cause. A party may terminate any Subscription for cause upon thirty (30) days
written notice to the other party of a material breach if such breach remains uncured at the expiration of such thirty (30)
day period. In addition, Accela may, at is sole option, suspend or terminate Customer's or any Authorized User's
access to the Subscription Service, or any portion thereof, immediately if Accela, in its sole discretion: (1) if suspects
that any person other than Customer or an Authorized User is using or attempting to use Security Data, (ii) suspects
that Customer or an Authorized User is using the Subscription Service in a way that violates these Terms and could
expose Accela or any other entity to harm or legal liability, or (iii) is or reasonably believes it is required to do so by law
or court order.
10.3. Effect of Termination. Within thirty (30) calendar days following the end of Customer's final Subscription
Period, Customer may request in writing Accela to provide a copy of Customer's data and associated documents in a
database dump file format. Accela will comply in a timely manner with such request; provided that, Customer (a) pays
all costs of and associated with such copying, as calculated at Accela's then -current time -and -materials rates; and (b)
pays any and all unpaid amounts due to Accela.
10.4. Surviving Provisions. Sections 4 (Proprietary Rights), 5 (Confidentiality), 6.2 (Disclaimer), 7 (Mutual
Indemnification), 8 (Limitation of Liability), 9.3 (Effect of Termination), 9.4 (Surviving Provisions) and 10 (General
Provisions) will survive any termination or expiration of this Agreement.
11. GENERAL
11.1. Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will
be in writing and will be deemed to have been given upon: (i) personal delivery, (ii) the second business day after
mailing, or (iii) sending by confirmed email if sent during the recipients normal business hours (or, if not, then on the
next business day). Notices will be sent to the address specified by the recipient in writing when entering into this
Agreement or establishing Customer's account for the Subscription Service (or such other address as the recipient
may thereafter specify by notice given in accordance with this Section 10.1).
11.2. Governing Law and Jurisdiction. This Agreement and any action related thereto will be governed by the laws of
the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action
related to the Subscription Service or this Agreement will be the state and federal courts located in California and each
of the parties hereto waives any objection to jurisdiction and venue in such courts,
11.3. Compliance with Laws. Each party will comply with all applicable laws and regulations with respect to its activities
under this Agreement including, but not limited to, export laws and regulations of the United States and other applicable
jurisdictions. Without limiting the foregoing, Customer will not permit Authorized Users to access or use the
Subscription Service in violation of any U.S. export embargo, prohibition or restriction.
11.4. Insurance. Accela shall take out and maintain during the life of this Agreement, insurance coverage as set forth
in Exhibit t3 attached hereto and incorporated by this reference.
11.5. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency,
fiduciary or similar relationship between the parties.
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11.6. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement
will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition
to, and not exclusive of, any other remedies of a party at law or in equity.
11.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law,
the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original
provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
11.8. Assignment. Customer may not assign or transfer this Agreement, whether by operation of law or otherwise,
without the prior written consent of Accela. Any attempted assignment or transfer, without such consent, will be void.
Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors
and permitted assigns.
11.9. Publicity. Subject to the provisions of Section 5, each party will have the right to publicly announce the existence
of the business relationship between parties. In addition, during the Subscription Period of Customer's Subscription
Service use, Accela may use Customer's name, trademarks, and logos (collectively, "Customer's Marks") on Accela's
website and marketing materials to identify Customer as Accela's customer, and for providing the Subscription Service
to Customer; provided that, Accela will use commercially reasonable efforts to adhere to any usage guidelines furnished
by Customer with respect to Customer's Marks.
11.10. Force Majeure. Accela will not be liable for any delay or failure to perform under this Agreement to the extent
such delay or failure results from circumstances or causes beyond the reasonable control of Accela.
11,11. Entire Agreement, These Terms, including any attachments hereto as mutually agreed upon by the Parties,
constitute the entire agreement between the parties concerning its subject matter and supersedes all prior
communications, agreements, proposals or representations, written or oral, concerning its subject matter. No
modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by a
duly authorized representative of each party against whom the modification, amendment or waiver is to be asserted.
Notwithstanding any language to the contrary therein, no additional or conflicting terms or conditions stated in
Customer's order documentation will be incorporated into or form any part of these Terms, and all such terms or
conditions will be null.
Approved oc to form
Deputy City Attorney
Page 8 of 12
Form Approved by Legal (v.2 02/08/2018)
EXHIBIT A
Order Form
Accela
CITY OF LODI, CA - ORDER FORM
FY2018
City ofLodi, CA
Accela Land Management
March 22, 2018
Ron Schlrtzkus
Business Development Exec.
(503) 820-6287
rschlitzkus@accek7. com
pG9e r 4f 4 Orcin Fgom
Farm �4ppraved by Lege/ A'. 109/2O,20/7J
Acce(a
CITY OF LODI, CA ORDER FORM
FY2018
Software and St3rvices
Anrnuct Subscrilptions
Produci Cod Product NAmr'
Barts Price Tates Prrce•
SVOAACAPDPbppl
Accata enr,rq» Acca.$
subscrrpru n AbpuJonorr
Axelo Citizen Access - Subscrlalon r p i atiorr
6465#
SVOAPHAL54 WOW
Accekp CA7[ Platiorm
S evwr . Submnielton
User
Ar c ele Crvic atrt for rrr S Y - Subscription User
15
11365.20
1591130.00
Grand Total. USD$67, OF9.53
Additional Start-up Costs
(Addilional Start-up Costs consists of Report Customizing, Implementation,
System Integration and Data Migration & Conversion)
$ 157,760.00
Contract not to exceed $530,000 over the five years
ug,_ ,.4t 4 rfro
l=arm .4pproyv-d by & egal fv. r 09.74.'24i7)
Acceta
CITY OF LODI, CA — ORDER FORM
FY2O18
Order Detail
Cu Llmler C_OHEacL
Cus:omcrAddress
2 l 1 WestHim. Lodi, California 95240
Governing Agreement(s)
Effective Dates]
71111111
r Terms -- -
Order Start Date
Unless otherwise specified in the Special Order Terms;
- Software Licenses & Subscriptions start on the date of delivery by AcceCa;
- H osdng and Support start on Aecela's delivery of the software hosted and/or supported; and
- Professional Services sun on the date listed to the applicable Exhibit, Statement of Work or
Governing Agreement, as applicable,
Order Duration
Unless otherwise specified in the Special Order Terms:
- Su bscri ptions continue from the Order Start Date through the number of months listed in this Order
Form (or If not listed, twelve (12) months), Thereafter Subsc i ptions automatically renew annually
as calculated from Order Start Date of Customer's first Subscription purchase.
• Any Software Licenses or ]iardware are one-time, non-refundable purchases of perpetual duration.
- Hosting and Support continue from the Order Start date through the number of months listed in this
Order Form (or if not listed, twelve [12] months).
= Professi vn a l Services continue for the duration as outlined in the app I imble Statement of Work,
Exhibit or the Governing Agreement as applicable.
Special Order "terms
Hone un Cess otherwise specified in this Section,
_
Payment Terrtrs
Currency
USD
invoice Date
U n] ess otherwise Mated in the Special Payment Terms, Invoice fur the Grand Total S above will be issued
on the Order Start Data
Payment Due Date
i
Unless otherwise stated. III tll0 Special Payment Terms or the Govern ing Agreement(s), all payments are
due on the Invoice Date and payable net 30 days.
Special Payment Terms
None u n less otherwise specified in this section.
Rigr 3 OF Q I
Order Fwwn
Fwin ApPTm vpd by Legal' (V. J O ` 0.12.0 J7)
Accela
CITY OF LODI, CA — ORDER FORM
FY2018
Fired Nunn
Accounts Payable Contact Information ?Required)
1 Z..thr Nom
Th
frnvYAddresx.
GAWK? Address
betNeryAdrLess
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Aft JtrvoKes WY be sent erectrorhieor 'to the EftsatJ AddJesa prCYRtred GIhava aanrdss ENNNAYM 7peJrJad OnSpeck', krvo errg Needs..
AemJaJ tJnrokfiQ
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Vendor
Jnvakr. QrfPrry hy P r es J74 -7I Iirr'd
Signature Section
Acreta, WC.
(Required;
CM forme:
C✓y *IWO, CA
SJgned By
&wed &y
Doran
D[rw
Name' frnitajcif
AuthpFr nj S +now
Costumer
—
Addrrrknar Signotures
irty of tad; CA
Name "Yu) or
Aittiotardr ,
Section (Optional)
Custorner
:.ry of Lod; CA
Sfyhad 9y
SrynC.rr Ey
Date
Guru
Jr Cu oiler requires
Purchase Order RPrrrancr
PO number oninvoices itmust he r i . .
AIJrhOr rr r Si r Thorn
(Oprjnrr.: r;
L- i.t ,..s ....1 .it:
r - r pnor to invoice
must provide POitOfifriequred):
issuance rate,
Accela city of tyre PO prior to invoice I cuingc�- I no PO num per pro
invoices issued on this Order Form will he valid without a PO reference.
Approver as to fob J^..
Deputy City Attorney
kJ! nit. 4 zpt . I
Order Foran
Fnfm Appraverf by 0912.102014
Exhibit B
NOTE: The City of Lodi is now using the online insurance program PINS Advantage. Once you have been
awarded a contract you will receive an email from the City's online insurance program requesting you to
forward the email to your insurance provider(s). Please see attached flyer regarding PINS Advantage.
insurance Requirements for Contractor The Contractor shall take out and maintain during the life of this Agreement,
insurance coverage as listed below. These insurance policies shall protect Contractor and any subcontractor performing
work covered by this Agreement from claims for damages for personal injury, including accidental death, as well as
from claims for property damages, which may arise from Contractor's operations under this Agreement, whether such
operations be by Contractor, or by any subcontractor, or by anyone directly or indirectly employed by either of them.
In the event Contractor's insurance cannot fully cover any hired subconsultants, the terms of insurance herein shall be
requirements For the subconsultant. The amount of such insurance shall be as follows:
COMPREHENSIVE GENERAL LIABILITY
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
2. PROFESSIONAL LIABILITY / ERRORS AND OMISSIONS
$1,000,000 Each Claim/Aggregate
When project specific insurance is required, all limits are to be designated strictly for the City of Lodi, its elected and
appointed boards, commissions, officers, agents, employees, and volunteers. All deductibles or self-insured retentions
(SIR) must be disclosed to City's Risk Manager for approval and shall not reduce the limits of liability set forth
hereinabove. Insurance policies containing any deductible or SIR provision shall provide, or be endorsed to provide,
that the deductible or SIR may be satisfied by either the Named Insured(s) or the City of Lodi.
It is required that any available insurance proceeds broader than or in excess of the specified minimum insurance
coverage requirements and/or limits set forth above, shall be available to City as an additional insured. Furthermore,
the requirements for coverage and limits shall be (i) the minimum coverage and limits specified in these insurance
requirements; or (ii) the broader coverage and maximum limits of coverage of any insurance policy or proceeds
available to the Contractor; whichever is greater.
Contractor agrees and stipulates that any insurance coverage provided to the City of Lodi shall provide for a claims
period following termination of coverage which is at least consistent with the claims period or statutes of limitations
found in the California Tort Claims Act (California Government Code Section 810 et seq.).
A copy of the certificate(s) of insurance with the following endorsements shall be furnished to the City.
Insurance Requirements for C'onrrarror (coniinued)
(a) Additional Named Insured Endorsement
Pursuant to a separate endorsement (ISO form CG 2010 (11/85) ora later version, that provides commercial
general liability coverage at least as broad as this form) such insurance as is afforded by this policy shall also
apply to the City of Lodi, its elected and appointed boards, commissions, officers, agents, employees, and
volunteers as additional named insureds. An additional named insured endorsement is also required for Auto
Liability.
(b) Primary and Non -Contributory Insurance Endorsement
Additional insurance coverage under the Contractor's commercial general liability and automobile liability policy
shall be "primary and non-contributory" and will not seek contribution from City's insurance or self-insurance and
shall be at !east as broad as ISO form CG 20 01 0413.
NOTE: (1) The street address of the CITY OF LQQI must be shown along with (a) and (b) above: 221 West Pine Street,
Lodi, California, 95240; (2) The insurance certificate must state, on its face or as an endorsement, a description
of the project that it is insuring.
(0)
Waiver of Subrogation
Include a waiver of subrogation against the City of Lodi, its elected and appointed boards, commissions,
officers, agents, employees, and volunteers. A waiver is required for General Liability and Auto Liability.
(d) Limits of Coverage
The limits of insurance coverage required may be satisfied by a combination of primary and umbrella or
excess insurance. Any umbrella or excess insurance of Contractor shall contain, or be endorsed to contain, a
provision that such coverage shall also apply on a primary and non-contributory basis for the benefit ofthe City
before the City's own insurance or self-insurance shall be called upon to protect the City as a named insured.
(e)
(f)
(9)
Severability of interest Clause
The term "insured" is used severally and not collectively, but the inclusion herein of more than one insured
shall not operate to increase the limit of the company's liability under the Contractors commercial general
liability and automobile liability policies.
Notice of Cancellation or Change in Coverage Endorsement
This policy may not be canceled nor the coverage reduced by the company without 30 days' prior written
notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine St.,
Lodi, CA 95240.
Continuity of Coverage
All policies shall be in effect on or before the first day of the Term of this Agreement. At least thirty (30) days
prior to the expiration of each insurance policy, Contractor shall furnish a certificate(s) showing that a new or
extended policy has been obtained which meets the minimum requirements of this Agreement. Contractor
shall provide proof of continuing insurance on at least an annual basis during the Term. If Contractor's
insurance lapses or is discontinued for any reason, Contractor shall immediately notify the City and
immediately obtain replacement insurance.
(h) Failure to Comply
If Contractor fails or refuses to obtain and maintain the required insurance, or fails to provide proof of coverage,
the City may obtain the insurance. Contractor shall reimburse the City for premiums paid, with interest on the
premium paid by the City at the maximum allowable legal rate then in effect in California. The City shall notify
Contractor of such payment of premiums within thirty (30) days of payment stating the amount paid, the
name(s) of the insurer(s), and rate of interest. Contractor shall pay such reimbursement and interest on the
first (1st) day of the month fallowing the City's notice. Notwithstanding any other provision of this Agreement,
if Contractor fails or refuses to obtain or maintain insurance as required by this agreement, or fails to provide
proof of insurance, the City may terminate this Agreement upon such breach. Upon such termination,
Contractor shall immediately cease use of the Site or facilities and commence and diligently pursue the
removal of any and all of its personal property from the site orfacilities.
(i)
Qualified Insureds)
All insurance required by the terms of this Agreement must be provided by insurers licensed to do business
in the State of California which are rated at least "A-, VI" by the AM Best Ratings Guide, and which are
acceptable to the City. Non -admitted surplus lines carriers may be accepted provided they are included on
the most recent list of California eligible surplus lines insurers (LESLI list) and otherwise meet City
requirements.
Workers Compensation Insurance The Contractor shall take out and maintain during the life of this Agreement,
Worker's Compensation Insurance for all of Contractor's employees employed at the site of the project and, if any
work is sublet, Contractor shall require the subcontractor similarly to provide Worker's Compensation Insurance for
all of the latter's employees unless such employees are covered by the protection afforded by the Contractor. In
case any class of employees engaged in hazardous work under this Agreement at the site of the project is not
protected under the Worker's Compensation Statute, the Contractor shall provide and shall cause each
subcontractor to provide insurance for the protection of said employees. A waiver of subrogation is required for
workers compensation insurance. This policy may not be canceled nor the coverage reduced without 30 days'
prior written notice of such cancellation or reduction in coverage to the Risk Manager, City of Lodi, 221 West Pine
St., Lodi, CA 95240.
NOTE: The City reserves the right to obtain a full certified copy of any insurance policy or endorsements
required. Failure to exercise this right shall not constitute a waiver of the City's right to exercise after the
effective date.
RESOLUTION NO. 2018-55
A RESOLUTION OF THE LODI CITY COUNCIL
AUTHORIZING THE CITY MANAGER TO EXECUTE A
FIVE-YEAR AGREEMENT FOR LAND MANAGEMENT PERMIT
SOFTWARE AND SOFTWARE MAINTENANCE SERVICES
WITH ACCELA, INC., OF RESTON, VIRGINIA
WHEREAS, a Request for Proposal for new land management software and maintenance
services was issued by the Community Development Department on November 1, 2017; and
WHEREAS, five responses were received as follows:
Vendor Startup Cost Annual Maint.
Accela Land Management $ 218,830.00 $ 61,070.00
MaintStar $ 185,000.00 $ 382,000.00
Superion (1) $ 446,770.00 $ 165,279.00
Superion (2) $ 488,470.00 $ 345,241.00
Superion (3) $ 366,428.00 $ 315,758.00
WHEREAS, all of the proposals were evaluated based on cost and function, but only one of
the proposals met the City's current and future function needs; and
WHEREAS, staff recommends awarding a five-year agreement to Accela, Inc.
NOW, THEREFORE, BE IT RESOLVED that the Lodi City Council does hereby authorize
the City Manager to execute a five-year agreement for land management permit software and
software services with Accela, Inc., of Reston, Virginia, in an amount not to exceed $530,000 over
the five-year term.
Dated: April 4, 2018
I hereby certify that Resolution No. 2018-55 was passed and adopted by the City Council of
the City of Lodi in a regular meeting held April 4, 2018 by the following vote:
AYES: COUNCIL MEMBERS — Chandler, Johnson, Kuehne, Mounce, and
Mayor Nakanishi
NOES: COUNCIL MEMBERS — None
ABSENT: COUNCIL MEMBERS — None
ABSTAIN: COUNCIL MEMBERS — None
NIFE';'i FERRAIOLO
City Clerk
2018-55