HomeMy WebLinkAboutResolution - 2007-R0141 - Contract With Accela - 04/12/2007Resolution No. 2007-RO141
April 12, 2007
Item No. 5.20
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute a Contract and any associated documents with Accela, Inc., of San Ramon,
California for implementation of a wireless inspection system, which Contract and any
associated documents are attached hereto as Exhibit A and made a part hereof for all
intents and purposes.
Passed by the City Council this 12th day of April , 2007.
DAVID A. MILLER, MAYOR
ATTEST:
RelSecca Garza, City Secretary
APPROVED AS TO CONTENT:
r
r,
Mar Yearw " d
Assistant City Manager/Chief Information Officer
APPROVED AS TO FORM:
Don Vandiver, t orney of tounsel
DDres. AccelaConMes
April 5, 2007
Resolution No. 2007-RO141
LICENSE AGREEMENT
1. Parties ACCELA
Accela, Inc.
2633 Camino Ramon, Suite 120
Bishop Ranch 3
San Ramon, California 94583
Attention: Colin Samuels
T: 925.659.3297
F: 925.659.3291
e-Mail: csamuels@accela.com
CUSTOMER
City of Lubbock, Texas
916 Texas Avenue
Lubbock,Texas 79401
Attention: Mark Yearwood
T: 806.775.2355
F: N/A
e-Mail: myearwood@ci.lubbock.tx.us
This License Agreement ("LA") 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 and Termination
2.1 Term Provided that Customer signs and returns this LA to Accela no later than April 30, 2007, this LA
is effective as of the date of Customer's signature ("Effective Date") and will continue
until terminated as provided herein.
2.2 Termination Either party may terminate if the other party materially breaches this LA and, after
receiving a written notice describing the circumstances of the default, fails to correct the breach within
thirty (30) calendar days. Upon any termination or expiration of this LA, all rights granted to Customer
are cancelled and revert to Accela.
3. Intellectual Property License
3.1 License The software products ("Software") listed in Exhibit A are protected under the laws of the
United States and the individual states and by international treaty provisions. Accela retains full
ownership in the Software and grants to Customer a limited, nonexclusive, nontransferable license to
use the Software, subject to the following terms and conditions:
3.1.1 The Software is provided for use only by Customer employees.
3.1.2 The Software may be installed on one or more computers but may not be used by more than
the number of users for which the Customer has named user licenses. The Software is
deemed to be in use when it is loaded into memory in a computer, regardless of whether a
user is actively working with the Software. Accela may audit Customer's use of the Software
to ensure that Customer has paid for an appropriate number of licenses. Should the results of
any such audit indicate that Customer's use of the Software exceeds its licensed allowance,
Customer agrees to pay all costs of its overuse as determined using Accela's then -current
pricing; any such assessed costs will be due and payable by Customer upon assessment.
Customer agrees that Accela's assessment of overuse costs pursuant to this Subsection is not
a waiver by Accela of any other remedies available to Accela in law and equity for Customer's
unlicensed use of the Software.
3.1.3 Customer may make backup copies of the Software only to protect against destruction of the
Software. Customer may copy Accela's documentation only for internal use by Customer's
employees.
License Agreement (LA), Version 4.2d Page 1 of 6
3.1.4 Customer may not make any form of derivative work from the Software, although Customer is
permitted to develop additional or alternative functionality for the Software using tools and/or
techniques licensed to Customer by Accela.
3.1.5 Customer may not obscure, alter, or remove any confidentiality or proprietary rights notices.
3.1.6 Customer is liable to Accela for any losses incurred as the result of unauthorized reproduction
or distribution of the Software which occur while the Software is in Customer's possession or
control.
3.1.7 Customer may use the Software only to process transactions relating to properties within both
its own geographical and political boundaries and may not sell, rent, assign, sublicense, lend,
or share any of its rights under this LA.
3.1.8 Customer is entitled to receive the Software compiled (object) code and is licensed to use any
data code produced through implementation and/or normal operation of the Software;
Customer is not entitled to receive source code for the Software except pursuant to an
Intellectual Property Escrow Agreement, which may be executed separately by the Parties.
3.1.9 All rights not expressly granted to Customer are retained by Accela.
3.2 License Warranties
3.2.1 Accela warrants that it has full power and authority to grant this license and that, as of the
effective date of this LA, the Software does not infringe on any existing intellectual property
rights of any third party. If a third party claims that the Software does infringe, Accela may, at
its sole option, secure for Customer the right to continue using the Software or modify the
Software so that it does not infringe. Accela will have the sole right to conduct the defense of
any legal action and all negotiations for its settlement or compromise.
3.2.2 Accela has no obligation for any claim based upon a modified version of the Software or the
combination or operation of the Software with any product, data, or apparatus not provided by
Accela. Accela provides no warranty whatsoever for any third -party hardware or software
products.
3.2.3 Except as expressly set forth herein, Accela disclaims any and all express and implied
warranties, including but not necessarily limited to warranties of merchantability and fitness for
a particular purpose.
3.3 Compensation
3.3.1 License Fees In exchange for the Software described hereinabove, Customer will pay to
Accela the amounts indicated in Exhibit A.
3.3.2 Payment Schedule:
At signing of agreement
Upon Delivery of software
Upon completion of training
Upon acceptance by Customer
25% of total fee indicated in Exhibit A
40% of total fee indicated in Exhibit A
25% of total fee indicated in Exhibit A
10% of total fee indicated in Exhibit A
License Agreement (LA), Version 4.2d Page 2 of 6
3.3.3 Payment Terms Amounts are quoted in United States dollars and do not include applicable
taxes, if any. Customer will be responsible for payment of all federal, state or provincial, and
local taxes and duties, except those based on Accela's income. If Customer is exempt from
certain taxes, Customer will provide Accela with an appropriate certificate of exemption.
Customer will be invoiced for all amounts as they become due. The payment terms of all
invoices are net thirty (30) calendar days from the dates of the invoices. Any payment not paid
to Accela within said period will incur a late payment fee equal to five percent (5%) of the
amount past due and will accrue interest in an amount equal to one -and -a -half percent (1.5%)
per month, compounded monthly, on the outstanding balance from the billing date. Accela
may, at its sole discretion, suspend its obligations hereunder without penalty until payments for
all past -due billings have been paid in full by Customer.
4. Confidentiality
4.1 Definitions "Disclosing Party" and "Recipient" refer respectively to the party which discloses information
and the party to which information is disclosed in a given exchange. Either Accela or Customer may be
deemed Disclosing Party or Recipient depending on the circumstances of a particular communication or
transfer of information. "Confidential Information" means all disclosed information relating in whole or in
part to non-public data, proprietary data compilations, computer source codes, compiled or object
codes, scripted programming statements, byte codes, or data codes, entity -relation or workflow
diagrams, financial records or information, client records or information, organizational or personnel
information, business plans, or works -in -progress, even where such works, when completed, would not
necessarily comprise Confidential Information. The foregoing listing is not intended by the Parties to be
comprehensive, and any information which Disclosing Party marks or otherwise designates as
"Confidential" or "Proprietary" will be deemed and treated as Confidential Information. Information
which qualifies as "Confidential Information" may be presented to Recipient in oral, written, graphic,
and/or machine-readable formats. Regardless of presentation format, such information will be deemed
and treated as Confidential Information. Notwithstanding, the following specific classes of information
are not "Confidential Information" within the meaning of this Section:
a) information which is in Recipient's possession prior to disclosure by Disclosing Party;
b) information which is available to Recipient from a third party without violation of this LA or
Disclosing Parry's intellectual property rights;
c) information disclosed pursuant to Subsection 4.4 below;
d) information which is in the public domain at the time of disclosure by Disclosing Party, or which
enters the public domain from a source other than Recipient after disclosure by Disclosing
Party;
e) information which is subpoenaed by governmental or judicial authority; and
f) information subject to disclosure pursuant to a state's public records laws.
4.2 Confidentiality Term The obligations described in this Section commence on the Effective Date and will
continue until two (2) years following any termination or expiration of this LA ("Confidentiality Term").
4.3 Confidentiality Obligations During the Confidentiality Term, Recipient will protect the confidentiality of
Confidential Information using the same degree of care that it uses to protect its own information of
similar importance, but will in any case use no less than a reasonable degree of care to protect
Confidential Information. Recipient will not directly or indirectly disclose Confidential Information or any
part thereof to any third party without Disclosing Party's advance express written authorization to do so.
Recipient may disclose Confidential Information only to its employees or agents under its control and
direction in the normal course of its business and only on a need -to -know basis. In responding to a
request for Confidential Information, Recipient will cooperate with Disclosing Party, in a timely fashion
License Agreement (LA), Version 4.2d Page 3 of 6
and in a manner not inconsistent with applicable laws, to protect the Confidential Information to the
fullest extent possible.
4.4 Publicity During the term of this LA, including the term of any amendment hereto, Accela may publicly
disclose its ongoing business relationship with Customer. Such disclosures may indicate Customer's
identity and the Accela product(s) and services provided or contracted to be provided to Customer, but
may not expressly or impliedly indicate Customer's endorsement of Accela's products or services
without Customer's prior written authorization.
5. Other Terms and Conditions
5.1 Applicable Law This LA is governed by the laws of the State of Texas.
5.2 Assignment Accela may assign its rights and obligations hereunder for purposes of financing or pursuant
to corporate transactions involving the sale of all or substantially all of its stock or assets. Accela agrees to notify
Customer in a timely manner if such transaction occurs. Any change to the provisions of this Agreement caused
by, or as a result of, said assignment requires approval of Customer. Said approval shall not be unreasonably
withheld.
5.3 Survival The following provisions will survive the termination or expiration of this LA: Section 3.3 and all
subsections thereof, as to Customer's obligation to pay any fees accrued or due at the time of termination or
expiration; Section 4 and all subsections thereof; and Section 5, and all subsections thereof.
5.4 Alternate Terms Disclaimed The parties expressly disclaim any alternate terms and conditions
accompanying drafts and/or purchase orders issued by Customer.
5.5 Severability and Amendment If any particular provision of this LA is determined to be invalid or
unenforceable, that determination will not affect the other provisions of this LA, which will be construed in all
respects as if the invalid or unenforceable provision were omitted. No extension, modification, or amendment of
this LA will be effective unless it is described in writing and signed by the Parties.
ACCELA
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Dated:
Exhibit Follows.
CUSTOMER
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Davi�A.iller, Mayor Date
Attest:
Rebecca Garza, City Secretary
Approved a§ to Cgntent:
Mark YIrwocd, Assist City Managbr
Approved as to Form:
Linda L. Chamales, Senior Attomey
License Agreement (LA), Version 4.2d Page 4 of 6
END OF DOCUMENT
License Agreement (LA), Version 4.2d Page 5 of 6
EXHIBIT A
Deliverables
Quantity
Fees
Accela WirelessTm Server License
1
$34,995.00
Accela Wireless Included Named User Licenses
5
$0.00,
Accela Wireless Additional Named User Licenses
5
$9,995.00
Total of Fees $44,990.002
1 Included Named User Licenses are included with fees for Accela Wireless Server License at no additional cost
to Customer.
2 Total of Fees does not include applicable sales and use taxes, if any.
License Fees are fixed -price deliverables for which full payment is due upon signing.
END OF DOCUMENT
License Agreement (LA), Version 4.2d Page 6 of 6
Resolution No. 2007-RO141
SERVICES AGREEMENT
1. Parties ACCELA
Accela, Inc.
2633 Camino Ramon, Suite 120
Bishop Ranch 3
San Ramon, California 94583
Attention: Colin Samuels
T: 925.659.3297
F: 925.659.3291
e-Mail: csamuels@accela.com
CUSTOMER
City of Lubbock, Texas
916 Texas Avenue
Lubbock,Texas 79401
Attention: Mark Yearwood
T: 806.775.2355
F: N/A
e-Mail: myearwood@ci.lubbock.tx.us
This Services Agreement ("SA") 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 and Termination
2.1 Term Provided that Customer signs and returns this SA to Accela no later than April 30, 2007, this
SA is effective as of the date of Customer's signature ("Effective Date") and will continue until
completion of the services deliverables described herein ("Project Completion Date").
2.2 Termination Either party may terminate if the other party materially breaches this SA and, after
receiving a written notice describing the circumstances of the default, fails to correct the breach within
thirty (30) calendar days. Upon any termination or expiration of this SA, all rights granted to Customer
are cancelled and revert to Accela.
3. Professional Services Accela will provide the implementation, data conversion, and/or training services
("Professional Services") described in the Preliminary Statement of Work (SOW) attached hereto as Exhibit B.
3.1 Warranty Accela will commence and complete the Professional Services in a good and workmanlike
manner, consistent with the practices and standards of care generally -accepted within and expected of
Accela's industry.
3.2 Acceptance Accela will notify Customer upon completion of the implementation services. For a period
not to exceed thirty (30) calendar days in duration ("Test Period"), Customer may evaluate the
operation of the implemented Accela software deliverables ("Deliverables") in a test environment or
using test data. If Customer reasonably determines that its operational use of the Deliverables is
substantially impaired by one or more material errors in the Deliverables, it will so notify Accela in
writing prior to the completion of the Test Period ("Adverse Notification"), specifying in sufficient detail
the nature of the enor(s). Upon receipt of an Adverse Notification, Accela will correct any identified and
reproducible material errors in the Deliverables within a reasonable time and Customer may retest the
Deliverables for as many as fifteen (15) additional calendar days. Acceptance will be deemed to occur
when a) Customer notifies Accela that the Deliverables have successfully completed Customer's testing;
b) the Test Period or subsequent retesting period(s) are completed without an Adverse Notification
being received by Accela from Customer, or c) Customer uses the Deliverables in a "live" environment
to perform its customary governmental, administrative, or business activities, whichever first occurs
("Acceptance Date").
3.3 Customer Cooperation As required, Customer agrees to provide Accela with appropriate access to
Customer's facilities, personnel, data systems, and other resources. Customer acknowledges that the
implementation process described in this SA is cooperative in nature and that Customer must complete
Services Agreement (SA), Version 4.2d Page 1 of 8
its designated tasks in a timely manner in order for Accela to proceed with and complete the
Professional Services. Customer delays during the implementation period may have adverse collateral
effects on Accela's overall work schedule. Although Accela will use its best efforts to immediately
resume work following such a delay, Customer acknowledges that schedules for the Professional
Services may be delayed by more than the number of days delayed by Customer. Customer agrees
that if additional time is required to complete the Professional Services because of Customer delays,
such time will be charged to Customer at Accela's then -current time -and -materials rates.
3.4 Compensation
3.4.1 Implementation Fees In exchange for the Professional Services described hereinabove,
Customer will pay to Accela the amounts indicated in Exhibit A. Professional Services are
fixed cost deliverables for which Customer will pay 50% upon receipt of purchase order or
contract, and 50% upon completion of project. The number of hours described in the
exhibits hereto represents a good faith estimate by Accela of the number of hours of effort
needed to complete the work and is not a guarantee. If additional implementation hours or
on -site trips are needed, outside of the proposed scope of work (Exhibit A), acange order
will be required (with signatures of both the client and Accela) before any additional work will
be done.
3.4.2 Payment Terms Amounts are quoted in United States dollars and do not include applicable
taxes, if any. Customer will be responsible for payment of all federal, state or provincial, and
local taxes and duties, except those based on Accela's income. If Customer is exempt from
certain taxes, Customer will provide Accela with an appropriate certificate of exemption.
Customer will be invoiced for all amounts as they become due. The payment terms of all
invoices are net thirty (30) calendar days from the dates of the invoices. Any payment not
paid to Accela within said period will incur a late payment fee equal to five percent (5%) of
the amount past due and will accrue interest in an amount equal to one -and -a -half percent
(1.5%) per month, compounded monthly, on the outstanding balance from the billing date.
Accela may, at its sole discretion, suspend its obligations hereunder without penalty until
payments for all past -due billings have been paid in full by Customer.
4. Confidentiality
4.1 Definitions "Disclosing Party" and "Recipient" refer respectively to the party which discloses information
and the party to which information is disclosed in a given exchange. Either Accela or Customer may be
deemed Disclosing Party or Recipient depending on the circumstances of a particular communication or
transfer of information. "Confidential Information" means all disclosed information relating in whole or in
part to non-public data, proprietary data compilations, computer source codes, compiled or object
codes, scripted programming statements, byte codes, or data codes, entity -relation or workflow
diagrams, financial records or information, client records or information, organizational or personnel
information, business plans, or works -in -progress, even where such works, when completed, would not
necessarily comprise Confidential Information. The foregoing listing is not intended by the Parties to be
comprehensive, and any information which Disclosing Party marks or otherwise designates as
"Confidential" or "Proprietary" will be deemed and treated as Confidential Information. Information
which qualifies as "Confidential Information" may be presented to Recipient in oral, written, graphic,
and/or machine-readable formats. Regardless of presentation format, such information will be deemed
and treated as Confidential Information. Notwithstanding, the following specific classes of information
are not "Confidential Information" within the meaning of this Section:
a) information which is in Recipient's possession prior to disclosure by Disclosing Party;
Services Agreement (SA), Version 4.2d Page 2 of 8
b) information which is available to Recipient from a third party without violation of this SA or
Disclosing Party's intellectual property rights;
c) information disclosed pursuant to Subsection 4.4 below;
d) information which is in the public domain at the time of disclosure by Disclosing Party, or which
enters the public domain from a source other than Recipient after disclosure by Disclosing
Party;
e) information which is subpoenaed by governmental or judicial authority; and
f) information subject to disclosure pursuant to a state's public records laws.
4.2 Confidentiality Term The obligations described in this Section commence on the Effective Date and will
continue until two (2) years following any termination or expiration of this SA ("Confidentiality Term").
4.3 Confidentiality Obligations During the Confidentiality Term, Recipient will protect the confidentiality of
Confidential Information using the same degree of care that it uses to protect its own information of
similar importance, but will in any case use no less than a reasonable degree of care to protect
Confidential Information. Recipient will not directly or indirectly disclose Confidential Information or any
part thereof to any third party without Disclosing Party's advance express written authorization to do so.
Recipient may disclose Confidential Information only to its employees or agents under its control and
direction in the normal course of its business and only on a need -to -know basis. In responding to a
request for Confidential Information, Recipient will cooperate with Disclosing Party, in a timely fashion
and in a manner not inconsistent with applicable laws, to protect the Confidential Information to the
fullest extent possible.
4.4 Publicity During the term of this SA, including the term of any amendment hereto, Accela may publicly
disclose its ongoing business relationship with Customer. Such disclosures may indicate Customer's
identity and the Accela product(s) and services provided or contracted to be provided to Customer, but
may not expressly or impliedly indicate Customer's endorsement of Accela's products or services
without Customer's prior written authorization.
5. Other Terms and Conditions
5.1 Mutual Indemnification Accela agrees to indemnify, defend, and hold Customer and its officers, agents,
and employees harmless against any claims, suits, or damages arising out of physical property damage
or bodily injury caused by the negligence or misconduct of Accela or its employees or agents while the
terms and conditions of this SA remain enforceable. Customer agrees to indemnify, defend, and hold
Accela and its officers, agents, and employees harmless against any claims, suits, or damages arising
out of physical property damage or bodily injury caused by the negligence or misconduct of Customer
or its employees or agents while the terms and conditions of this SA remain enforceable.
5.2 Limitation of Liability Accela 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 SA; Accela bears no liability for and
has no obligation to remedy such effects. Except as set forth herein, Accela provides all Professional
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 Accela's
cumulative liability for any general, incidental, special, compensatory, or punitive damages whatsoever
suffered by Customer or any other person or entity exceed the fees paid to Accela by Customer during
the twelve (12) calendar months immediately preceding the circumstances which give rise to such
claim(s) of liability, even if Accela or its agents have been advised of the possibility of such damages.
Services Agreement (SA), Version 4.2d Page 3 of 8
5.3 Insurance Coverage Accela will maintain insurance coverage at its sole cost and expense and will
provide certificates of insurance to Customer prior to commencement of contract. In addition, general
liability insurance shall name the City of Lubbock as an additional insured on a primary and non-
contributory basis. General liability and workers' compensation insurance shall be endorsed with a
waiver of subrogation in favor of the City of Lubbock. The insurance will not be cancelled or terminated
without thirty (30) days' advance written notice to Customer.
5.3.1 Required Coverage. Contractor shall obtain and maintain policies in insurance throughout the contract
term in limits specified below.
a) Accela shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the
Texas Labor Code. Further, Accela shall maintain said coverage throughout the term of the
Contract and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that the
Accela maintains said coverage. Any termination of worker's compensation insurance coverage by
Accela or any cancellation or nonrenewal of worker's compensation insurance coverage for the
Accela shall be a material breach of this Contract. The Accela may maintain Occupational
Accident and Disability Insurance in lieu of Workers' Compensation. In either event, the policy
must be endorsed to include a waiver of subrogation in favor of the City of Lubbock.
Employer's Liability with limits of at least $500,000 each accident, $500,000 by disease policy limit,
and $500,000 by disease each employee shall also be obtained and maintained throughout the
term of this Agreement.
a. Professional Errors and Omissions Liability. Accela shall maintain Professional E&O Liability
coverage. The policy shall have a minimum of Five Hundred Thousand and no/100 Dollars
($500,000) combined single limit in the aggregate and per occurrence.
c) General Liability. Accela shall maintain General Liability insurance coverage. The policy shall
have a minimum of Five Hundred Thousand and no/100 Dollars ($500,000) combined single limit in
the aggregate and per occurrence. Said policy shall include contractual liability.
Accela and its insurers providing the required coverages shall waive all rights to recovery against
Client and its directors, officers, employees, and agents
5.4 Force Maieure If either party is delayed in its performance of any obligation under this SA 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.
5.5 Assignment Accela may assign its rights and obligations hereunder for purposes of financing or
pursuant to corporate transactions involving the sale of all or substantially all of its stock or assets.
Accela may subcontract with qualified third parties to provide portions of the Professional Services
described hereinabove.
5.6 Survival The following provisions will survive the termination or expiration of this SA: Section 3.4 and
all subsections thereof, as to Customer's obligation to pay any fees accrued or due at the time of
termination or expiration; Section 4 and all subsections thereof; and Section 5 and all subsections
thereof with the exceptions of Subsections 5.1, 5.3, and 5.4.
5.7 Alternate Terms Disclaimed The parties expressly disclaim any alternate terms and conditions
accompanying drafts and/or purchase orders issued by Customer.
H
Services Agreement (SA), Version 4.2d Page 4 of 8
Services Agreement (SA), Version 4.2d Page 5 of 8
5.8 Severability and Amendment If any particular provision of this SA is determined to be invalid or
unenforceable, that determination will not affect the other provisions of this SA, which will be construed
in all respects as if the invalid or unenforceable provision were omitted. No extension, modification, or
amendment of this SA will be effective unless it is described in writing and signed by the Parties.
ACCELA
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Exhibits Follow.
CUSTOMER
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David A. Wi
llyor Date
Attest:
4P a"P—X' �:=)� —
Reb Garza, City Secretary
Approved as to Content:
Mark tearw&dstant City Manager
Approved as to Form:
Linda L. Chamales, Senior Attorney
END OF DOCUMENT
Services Agreement (SA), Version 4.2d Page 6 of 8
EXHIBIT A
Deliverables Fees
Professional Services — Implementation of Accela Wireless rm $14,800.00
Total of Fees $14,800.001
1 Total of Fees does not include consultant travel expenses or applicable sales and use taxes, if any.
Milestone Fees
Due Upon Signing $7,400.00
Acceatance Date $7,400.00
Total of Fees $14,800.002
2 Total of Fees does not include consultant travel expenses or applicable sales and use taxes, if any. Consultant
travel expenses will be billed to Customer as these are incurred or accrued by Accela.
END OF DOCUMENT
Services Agreement (SA), Version 4.2d Page 7 of 8
EXHIBIT B
Preliminary Statement of Work (SOW) document follows this page.
END OF DOCUMENT
Services Agreement (SA), Version 4.2d Page 8 of 8
Resolution No. 2007-RO141
MAINTENANCE AGREEMENT
1. Parties ACCELA
Accela, Inc.
2633 Camino Ramon, Suite 120
Bishop Ranch 3
San Ramon, California 94583
Attention: Colin Samuels
T: 925.659.3297
F: 925.659.3291
e-Mail: csamuels@accela.com
CUSTOMER
City of Lubbock, Texas
916 Texas Avenue
Lubbock,Texas 79401
Attention: Mark Yearwood
T: 806.775.2355
F: N/A
e-Mail: myearwood@ci.lubbock.tx.us
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 and Termination
2.1 Term Provided that Customer signs and returns this MA to Accela no later than April 30, 2007, this
MA is effective as of the date of Customers signature and will continue. Customer may renew its
maintenance coverage for additional annual periods by paying the then -current annual maintenance
fees. Should Customer fail to renew its maintenance coverage or pay the applicable fees, Accela
reserves the right to withhold all support. If Customer resumes maintenance coverage after one or
more periods without such coverage, Customer 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.
2.2 Termination Either party may terminate if the other party materially breaches this MA and, after
receiving a written notice describing the circumstances of the default, fails to correct the breach within
thirty (30) calendar days. Upon any termination or expiration of this MA, all rights granted to Customer
are cancelled and revert to Accela.
3. Scope of Maintenance
3.1 Maintenance Services
3.1.1 Telephone Support Accela will provide Customer with a telephone number to contact the
Customer Resource Center (CRC), Accela's live technical support facility, which is available
from 6:00 a.m. until 6:00 p.m. Pacific time Monday through Friday, excluding Accela's
observed holidays.
3.1.2 E-Mail Support Accela will provide Customer with one or more electronic mail addresses to
which Customer may submit routine or non -critical support requests, which Accela will address
during its regular business hours.
3.1.3 Online Support Accela will provide Customer with access to archived software updates and
other technical information in Accela's online support databases, which are continuously
available.
3.1.4 Remote Support When required to properly resolve a maintenance request, Accela will
provide remote assistance to Customer via the WebExTm Meeting CenterTm environment or
another mutually -acceptable remote communications method.
Maintenance Agreement (MA), Version 4.2d Page 1 of 6
3.1.5 On -Site Support If Customer does not wish for Accela to resolve its maintenance requests
remotely, Accela will provide on -site assistance to Customer at Accela's then -current time -
and -materials rates. In addition to these charges, Customer will compensate Accela for
associated airfare, lodging, rental transportation, meals, and other incidental expenses as
such expenses accrue.
3.1.6 Software Updates Accela will provide revisions of and enhancements to maintained software
products to Customer as such updates are generally -released by Accela.
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 Accela-maintained software products;
b) Services required due to software corrections, customizations, or modifications not
developed or authorized by Accela;
c) Services required by Customer to be performed by Accela outside of Accela's usual
working hours;
d) Services required due to external factors including, but not necessarily limited to,
Customer's use of software or hardware not authorized by Accela;
e) Services required to resolve or work -around conditions which cannot be reproduced
in Accela's support environment;
f) Services which relate to tasks other than maintenance of Customer's existing
implementation and configuration of the Accela-maintained software products
including, but not necessarily limited to, enhancing or adapting such products for
specific operating environments;
g) Services requested by Customer to implement software updates provided by Accela
pursuant to this MA; and
h) New or additional applications, modules, or functionality released by Accela during
the term of this MA.
3.2.2 Legacy Releases Accela 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". Accela 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
Accela 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.
3.3 Warranty Accela will commence and complete the maintenance obligations described in this MA in a
good and workmanlike manner, consistent with the practices and standards of care generally -accepted
within and expected of Accela's industry, to ensure that the operation of the maintained software
products does not materially differ from documented specifications. Accela may make repeated efforts
within a reasonable time period to resolve maintenance requests. When a maintenance request cannot
be resolved, Customer's exclusive remedy will be damages in an amount equal to the total of
maintenance fees paid to Accela for the defective or non -conforming software products; where this MA
has a multi -year term, such amount will be equal to the total of the maintenance fees paid to Accela for
the defective or non -conforming software products for the twelve (12) calendar months immediately
preceding Customer's maintenance request.
Maintenance Agreement (MA), Version 4.2d Page 2 of 6
3.4 Compensation
3.4.1 Maintenance Fees In exchange for the Maintenance Services described hereinabove,
Customer will pay to Accela the amounts indicated in Exhibit A. Maintenance fees for years
one (1), two (2), and three (3) will be fixed. Fee increases for years four (4) and five (5)
shall be no more than 5% of the fee for the previous year. Fee increases for subsequent
years shall be no more than 10% of the fee for the previous year.
3.4.2 Payment Terms Amounts are quoted in United States dollars and do not include applicable
taxes, if any. Customer will be responsible for payment of all federal, state or provincial, and
local taxes and duties, except those based on Accela's income. If Customer is exempt from
certain taxes, Customer will provide Accela with an appropriate certificate of exemption.
Customer will be invoiced for all amounts as they become due. The payment terms of all
invoices are net thirty (30) calendar days from the dates of the invoices. Any payment not
paid to Accela within said period will incur a late payment fee equal to five percent (5%) of
the amount past due and will accrue interest in an amount equal to one -and -a -half percent
(1.5%) per month, compounded monthly, on the outstanding balance from the billing date.
Accela may, at its sole discretion, suspend its obligations hereunder without penalty until
payments for all past -due billings have been paid in full by Customer.
4. Confidentiality
4.1 Definitions "Disclosing Party" and "Recipient" refer respectively to the party which discloses information
and the party to which information is disclosed in a given exchange. Either Accela or Customer may be
deemed Disclosing Party or Recipient depending on the circumstances of a particular communication or
transfer of information. "Confidential Information" means all disclosed information relating in whole or in
part to non-public data, proprietary data compilations, computer source codes, compiled or object
codes, scripted programming statements, byte codes, or data codes, entity -relation or workflow
diagrams, financial records or information, client records or information, organizational or personnel
information, business plans, or works -in -progress, even where such works, when completed, would not
necessarily comprise Confidential Information. The foregoing listing is not intended by the Parties to be
comprehensive, and any information which Disclosing Party marks or otherwise designates as
"Confidential" or "Proprietary" will be deemed and treated as Confidential Information. Information
which qualifies as "Confidential Information" may be presented to Recipient in oral, written, graphic,
and/or machine-readable formats. Regardless of presentation format, such information will be deemed
and treated as Confidential Information. Notwithstanding, the following specific classes of information
are not "Confidential Information" within the meaning of this Section:
a) information which is in Recipient's possession prior to disclosure by Disclosing Party;
b) information which is available to Recipient from a third party without violation of this MA or
Disclosing Party's intellectual property rights;
c) information disclosed pursuant to Subsection 4.4 below;
d) information which is in the public domain at the time of disclosure by Disclosing Party, or which
enters the public domain from a source other than Recipient after disclosure by Disclosing
Party;
e) information which is subpoenaed by governmental or judicial authority; and
f) information subject to disclosure pursuant to a state's public records laws.
4.2 Confidentiality Term The obligations described in this Section commence on the Effective Date and will
continue until two (2) years following any termination or expiration of this MA ("Confidentiality Term").
Maintenance Agreement (MA), Version 4.2d Page 3 of 6
4.3 Confidentiality Obligations During the Confidentiality Term, Recipient will protect the confidentiality of
Confidential Information using the same degree of care that it uses to protect its own information of
similar importance, but will in any case use no less than a reasonable degree of care to protect
Confidential Information. Recipient will not directly or indirectly disclose Confidential Information or any
part thereof to any third party without Disclosing Parry's advance express written authorization to do so.
Recipient may disclose Confidential Information only to its employees or agents under its control and
direction in the normal course of its business and only on a need -to -know basis. In responding to a
request for Confidential Information, Recipient will cooperate with Disclosing Party, in a timely fashion
and in a manner not inconsistent with applicable laws, to protect the Confidential Information to the
fullest extent possible.
4.4 Publicity During the term of this MA, including the term of any amendment hereto, Accela may publicly
disclose its ongoing business relationship with Customer. Such disclosures may indicate Customer's
identity and the Accela product(s) and services provided or contracted to be provided to Customer, but
may not expressly or impliedly indicate Customer's endorsement of Accela's products or services
without Customer's prior written authorization.
5. Other Terms and Conditions
5.1 Customer Obligations As required, Customer will provide Accela with appropriate access to
Customer's facilities, data systems, and other resources. If Security restrictions impair such access,
Customer acknowledges that some maintenance services hereunder may not be provided to Customer.
It is Customer's sole responsibility to maintain current backup copies of its data and of its
implementation of Accela's software products. If Customer's failure to create proper backups
substantially increases the difficulties of any remedial actions by Accela hereunder, Accela reserves the
right to charge Customer for any extra work reasonably -attributable to such increased difficulty, as
calculated at Accela's then -current time -and -materials rates.
5.2 Proprietary Rights The remedial methods, software updates, and product information provided to
Customer pursuant to this MA are protected under the laws of the United States and the individual
states and by international treaty provisions. Accela retains full ownership in such items and grants to
Customer a limited, nonexclusive, nontransferable license to use the items, subject to the terms and
conditions of this MA and other agreements between Accela and Customer.
5.3 Limitation of Liability Accela 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; Accela bears no liability for and
has no obligation to remedy such effects. Except as set forth herein, Accela 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 Accela's
cumulative liability for any general, incidental, special, compensatory, or punitive damages whatsoever
suffered by Customer or any other person or entity exceed the fees paid to Accela by Customer during
the twelve (12) calendar months immediately preceding the circumstances which give rise to such
claim(s) of liability, even if Accela or its agents have been advised of the possibility of such damages.
5.4 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.
5.5 Applicable Law This MA is governed by the laws of the State of Texas.
Maintenance Agreement (MA), Version 4.2d Page 4 of 6
5.6 Assignment Accela may assign its rights and obligations hereunder for purposes of financing or
pursuant to corporate transactions involving the sale of all or substantially all of its stock or assets.
Accela agrees to notify Customer in a timely manner if such transaction occurs. Any change to the
provisions of this Agreement caused by, or as a result of, said assignment requires approval of
Customer. Said approval shall not be unreasonably withheld. Accela may subcontract with qualified
third parties to provide portions of the Maintenance Services described hereinabove.
5.7 Survival The following provisions will survive the termination or expiration of this MA: Section 2.1, as to
Customer's obligation to pay any fees associated with a lapse in maintenance coverage upon
resumption of such coverage; Section 3.3, as to limitation of remedy; Section 3.4 and all subsections
thereof, as to Customer's obligation to pay any fees accrued or due at the time of termination or
expiration; Section 4 and all subsections thereof; and Section 5 and all subsections thereof with the
exceptions of Subsections 5.1 and 5.4.
5.8 Alternate Terms Disclaimed The parties expressly disclaim any alternate terms and conditions
accompanying drafts and/or purchase orders issued by Customer.
5.9 Severability and Amendment If any particular provision of this MA is determined to be invalid or
unenforceable, that determination will not affect the other provisions of this MA, which will be construed
in all respects as if the invalid or unenforceable provision were omitted. No extension, modification, or
amendment of this MA will be effective unless it is described in writing and signed by the Parties.
ACCELA
By:
(Signature)
(Print Name) I ✓
Its
(Title)
Dated: D lD
Exhibit Follows.
CUSTOMER
.�7-rcr v i
David A. rmayorDate
Attest:
Approved as to Content:
Ma I
Yearwood, sgistanT-Cky Attorney
Approved as to Form:
Linda Chamales, Senior Attorney
END OF DOCUMENT
Maintenance Agreement (MA), Version 4.2d Page 5 of 6
EXHIBIT A
Deliverables I Fees
First -Term Annual Maintenance for Accela WirelessTm (1 Server and 10 Named User 1 $8,998.00
Total of Fees
1 Total of Fees does not include applicable sales and use taxes, if any.
Maintenance Fees are fixed -price deliverables for which full payment is due upon signing.
END OF DOCUMENT
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