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HomeMy WebLinkAboutAVOCETTE TECHNOLOGIES, INC. (5)INSURANCE NOT REQUIRED WORK MAY PROCEED N-2024-067 CITY CLERK DATE: MUTUAL RELEASE AND TERMINATION AGREEMENT 0% 1T 0) BETWEEN AVOCETTE TECHNOLOGIES, INC. AND u• Giuil�) s-A- THE CITY OF SANTA ANA This Mutual Release and Termination Agreement (hereinafter referred to as "Release") is entered N into on February, 2024 by and between Avocette Technologies, Inc., a Canadian corporation (hereinafter referred to as "Avocette") and the City of Santa Ana (hereinafter referred to as "City"). r` m Purpose: w This Release is intended to effect the termination of any obligations by either party as hereinafter designated. Recitals WHEREAS, disputes and differences have arisen between the parties with respect to Agreements #A-2021-092 and #A-2021-093 entered into by the parties and executed on July 1, 2021, copies of which are attached hereto as Exhibit A and Exhibit B, respectively (hereinafter referred to as the "Agreements"). WHEREAS, both parties have agreed to settle all disputes and differences which have arisen under the Agreements by executing this Release. WHEREAS, both parties recognize that by executing this Release, they are relinquishing their respective legal rights with reference to the herein mentioned disputes and differences which have arisen under the Agreements, and both parties agree that in consideration of the execution of this Release, and for the added consideration of full and final payment of $50,000.00 paid by City to Avocette for services rendered under the Agreements, receipt of which is hereby acknowledged by Avocette, each party for its heirs and assigns, expressly releases the other party and its heirs and assigns, from all liability for claims and/or demands which may arise from those certain Agreements referenced herein and attached hereto. Terms: Now, therefore, and for consideration of the payment contained herein, and the receipt of consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Without any admission as to liability, and in exchange for a negotiated final payment by City to Avocette in the amount of $50,000.00 for services rendered under Agreements #A- 2021-092 and #A-2021-093, City does hereby release, cancel, forgive and forever discharge Avocette, and each of its predecessors, parent corporations, holding companies, subsidiaries, affiliates, divisions, heirs, successors, and assigns, and all of its officials, officers, directors and employees from all actions, claims, demands, damages, obligations, liabilities, controversies, and executions, of any kind or nature, whatsoever, whether known or unknown, whether suspected or not, which have arisen, or may have arisen, or shall arise by reason of the indebtedness and/or the guarantee of payment of the indebtedness as designated and described in the Release from the first day of the world, including this day and each day hereafter, and City does specifically waive any claim or right to assert any Page 1 of 3 cause of action or alleged cause action or claim or demand which has, through oversight or intentionally or unintentionally or through a mutual mistake been omitted from this Release. 2. Without any admission as to liability, and in exchange for a negotiated final payment by City to Avocette in the amount of $50,000.00 for services rendered under Agreements #A- 2021-092 and 4A-2021-093, Avocette does hereby release, cancel, forgive and forever discharge City, and each of its predecessors, parent corporations, holding companies, subsidiaries, affiliates, divisions, heirs, successors, and assigns, and all of its officials, officers, directors and employees from all actions, claims, demands, damages, obligations, liabilities, controversies, and executions, of any kind or nature, whatsoever, whether known or unknown, whether suspected or not, which have arisen, or may have arisen, or shall arise by reason of the indebtedness and/or the guarantee of payment of the indebtedness as designated and described in the Release from the first day of the world, including this day and each day hereafter, and Avocette does specifically waive any claim or right to assert any cause of action or alleged cause action or claim or demand which has, through oversight or intentionally or unintentionally or through a mutual mistake been omitted from this Release. 3. Each Party understands that it may later discover claims or facts that may be different from, or in addition, to those that it now knows or believes to exist regarding the subject matter of the release and which, if known at the time of signing this Release, may have materially affected this Release and such Party's decision to enter into it and grant the Release. Nevertheless, the Parties intend to fully, finally, and forever settle and release all claims that now exist, may exist, or previously existed, whether known or unknown, foreseen or unforeseen, or suspected or unsuspected, and the release given herein is and will remain in effect as a complete release, notwithstanding the discovery or existence of such additional or different facts. The Parties hereby waive any right or claim that might arise as a result of such different or additional claims or facts. The Parties have been made aware of, and understand, the provisions of California Civil Code Section 1542 ("Section 1542"), which provides: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF I{NOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." The Parties expressly, knowingly, and intentionally waive any and all rights, benefits, and protections of Section 1542 and of any other state or federal statute or common law principle limiting the scope of a general release. 4. The Parties acknowledge this a general release, and represent and warrant that no other person or entity has, or has had, any interest in the claims, demands, or obligations set forth Page 2 of 3 N-2024-067 in this Release and that the Parties have the sole right and exclusive authority to execute this Release. 5. Agreements #A-2021-092 and #A-2021-093 are hereby terminated upon the execution of this Release. 6. Applicable law. This release shall be construed under, and in accordance with, the laws of the state of California. 7. This Agreement sets forth the entire agreement between the Parties hereto and fully supersedes any and all prior agreements or understandings, written or oral, between the Parties hereto pertaining to the subject matter hereof. 8. This Agreement shall be interpreted in accordance with the plain meaning of its terns and not strictly for or against any of the Parties hereto. 9. This Agreement may be executed in counterparts, secured via e-mail, facsimile transmission or otherwise, each of which shall be deemed to be an original. Photocopies of any executed counterpart shall have the same force and effect as an original. IN WITNESS WHEREOF, the parties hereto have executed this Release on the date and year first above written. ATTEST: APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: v— onathan T. Martine Assistant City Attorney RECOMMENDED FOR APPROVAL: ClCK CIULLA Cl of Technology Innovations Officer Information Technology Department CITY OF SANTA ANA THOMAS R.;Ar Interim City Manager AVOCETTE TECIUNOLOGIES, INC. /�7 13y: Scott Ross Title: CEO Page 3 of 3 EXHIBIT A N INSURANCE NOT ON FILE A-2021-092 WORK MAY NQTPROCEED 00 CLERK OF COUNCIL R&REEMENT WITH AVOCETTE TECHNOLOGIES, INC. TO PROVIDE IMPLEMENTATION SERVICES FOR LAND MANAGEMENT SYSTEM 0-:I7 (J'L* Wtliq)(D) TT TIES AGREEMENT is made and entered into on this I" day of July, 2021, by and between Avocette Technologies, Inc., a Canadian corporation ("Consultant'), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. On August 24, 2020, the City issued a Request for Proposals (RFP No. 20-I08) for an Enterprise Land management System and hnplementation Services. The RFP included extensive system requirements and objectives that are incorporated herein by this reference. B. Consultant represents that Consultant is able and willing to provide such implementation services to the City for the Clariti Platform Enterprise Land Management System. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in the Statement of Work attached hereto as Exhibit A and incorporated by reference. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services for City, the rates and charges identified in the Project Fixed Price attached hereto as Exhibit B and incorporated by reference. The total amount to be expended during the term of this Agreement shall be $1,171,079, plus a 30% contingency of $351,324, for a total not to exceed amount of $1,522,403. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work perfonmed, subject to City accounting procedures. A 10% holdback shall be applied against each deliverable. The 10% holdback invoice will be issued ten (10) days after the final deliverable D26 — Go Live and the completion of all outstanding issues. Payment need not be made for work which fails to meet the Page 1 of 9 standards of performance set forth in the Recitals which may reasonably be expected by City, 3. TERM This Agreement shall commence on the date first written above and continue for two (2) years through June 30, 2023, unless terminated earlier in accordance with Section 15, below, This Agreement shall also cover any and all services provided by the Consultant to the City prior to the execution of this Agreement. The Term of the Agreement may be extended by a writing executed by the City Manager and City Attorney, A. INDEPENDENT CONTRACTOR. Consultant shall, during the entire term of this Agreement, be construed to be an independent Consultant and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive. and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and 'otlier intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"), Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City, City shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a, Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be Page 2 of 9 limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate, Such insurance shall (a) name the City, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (e) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self- insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. C. Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses. £. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: i. Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. iii, Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. iv. Where the amounts or coverage provided by the certificates of insurance Page 3 of 9 provides coverage greater than those listed by this Agreement, the amounts provided by the certificates of insurance shall be incorporated by reference into the Agreement. V. Consultant shall supply City with a fully executed additional insured endorsement. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. INDEMNIFICATION Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) Prom any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies.to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason,of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. Page 4 of 9 9. RECORDS Consultant shall keep records and invoices in connection with the work to be performed tinder this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant tinder this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 10. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. It. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 12, NON-DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or nulitary and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement, Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. Page 5 of 9 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant, The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other contractors retained by City. 15. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant' prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 16. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. Page 6 of 9 17. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties finther agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 18. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such pennits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 19. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1998 Santa Ana, CA 92702-1988 Pax: 714- 647-6956 With courtesy copies to: Housing Division Manager Community Development Agency City of Santa Ana 20 Civic Center Plaza. (M-26) P.O. Box 1988 Santa Ana, California 92702 To Consultant: Avocette'rechnologies, Inc. 422 Sixth Street, 2" s Floor New Westminster, BC V3L 3132 Tel: 604,395.6000 Fax: 604.395.6004 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United. States mail, duty registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weelcends, federal, stars, County or City holidays shall be excluded. 20, MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. C. This Agreement must be signed below and may be signed in counterpart and delivered by fax, email as a PDF (Portable Document Format) file attachment, or by other means that displays the original or a copy of the signatures. Any subsequent amendments may be signed and delivered in the same manner. (signatures on following page) Page 8 of 9 A-2021-092 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CIITTYY OF SANTA ANA S Daisy Gomez Kristine Ridge �-Flerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: Ryan O. od Assistant ity Attorney RECOMMENDED FOR APPROVAL: JACi CIULLA Chie Technology Innovations Officer Info ation Technology Department CONSULTANT: s""'Q2)� By: Darrel Drab Title: VP Local Government Page 9 of 9 EXHIBIT A: STATEMENT OF WORK TECHNOLOGY TOGETHER Prepared for: City of Santa Ana 20 Civic Center Plaza • M42 Santa Ana, California 92702 Head Office: 2nd Floor - 422 Sixth Street New Westminster, BC V31- 3B2 Telephone: 604.395.6000 Fax:604.396.6004 www.avocette.com City of Santa Ana Statement of Work May 19, 2021 Project Sponsor: Darrel Drab Vice President, Product Integration Phone: (250)389-2993 Email: Darrel.Drab@Avocette.com Victoria Office 30 Floor, 1205 Broad Street Victoria, BC V8W 2A4 Telephone: 250.389.2993 www.avocette,com \ 2 \ E \ ) \ \ jU) : en �«;§:)§:)[ »0) CL { CL & ( ®`$ CL �\*(w(,:2# |\# ; \)mf)$§/>1 ®):0®®{f)ƒ /3_4G04 Q <0 @AS§) w LLI ywwww(D 0 G % G a 2 2 § ° ) 5 / / ( ? \ : 2 } L : S \ 3 ) ( 7 ) @ § [ § 2 ( ) ) ) \ \ § ( ~j{ \ < m m ) § \ \ 3 y y 2 §;2 / \ \ } \E)\} j § § § § } f K 5 I z c �* \ { \ j� \ ( < \ @ z / 2 0 0 0 0 u m 0 } _ I \ L \ O u 0 e E � , \ t m I u�i N G_ C C h u H J V � t6 a vi Q •E 0 m C C la L �p C w p Ci 6 N E U 0 p •� L Y •w ,� o m a E m 4 cps u c° cu N O � m o a O. a Q c a N c O '.N N H c `J L O u = N ++ cr' N L_ E O1 E o m N a. 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TO PROVIDE SUPPORT SERVICES FOR LAND MANAGEMENT SYSTEM U: ST(datK C"JA)(0) TT THIS AGREEMENT is made and entered into on this l"day of July, 2021, by and between Avocette Technologies, Inc., a Canadian corporation ("Consultant'), and the City of Santa Ana, a charter city and municipal corporation organized and existing tinder the Constitution and laws of the State of California (`City"). RECITALS A. On August 24, 2020, the City issued a Request for Proposals (RFP No. 20-108) for an Enterprise Land management System and Implementation Services. The RFP included extensive system requirements and objectives that are incorporated herein by this reference. B. Consultant represents that Consultant is able and willing to provide support services to the City for the Clariti Platform Enterprise Land Management System. C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in the ServicePhrs Support Services document attached hereto as Exhibit A and incorporated by reference. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services for City, the rates and charges identified in Exhibit A and the Cost Proposal attached hereto as Exhibit B and incorporated by reference. The total amount to be expended during the term of this Agreement shall include an annual not to exceed amount of $79,443, which includes a 30% contingency, for a total not to exceed amount of $317,772. b. Payment by City shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City. Page 1 of 9 3, TERM This Agreement shall commence on July 1, 2023 ("Commencement Date") and continue for three (3) years through June 30, 2026, unless terminated earlier in accordance with Section 15, below. The exact Commencement Date for this Agreement depends upon the completion of the implementation services provided for under a separate agreement between the parties. Accordingly, the Commencement Date may be changed pursuant to a writing executed by the City Manager or assignee, as necessary. This Agreement shall also cover any and all services provided by the Consultant to the City prior to the execution of this Agreement or the commencement date. The Term of the Agreement may be extended by a writing executed by the City Manager and City Attorney. 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent Consultant and not an employee of the City. This Agreement is not intended nor shall it be construed to create an cmployer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. OWNERSHIP OF MATERIALS This Agreement cre<tites a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and all Documents & Data. Consultant makes no such representation and warranty in regard to Documents & Data which were provided to Consultant by the City, City shall not be limited in any way in its use of the Documents and Data at any time, provided. that any such use not within the purposes intended by this Agreement shall be at City's sole risk, 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance, as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, Page 2 of 9 volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Worker's Compensation Insurance, In accordance with the provisions of Section 3706 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self- insurance. Prior to commencing the performance of the work tinder this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident, or to provide a confirming letter that Worker's Compensation Insurance is not required for Canadian employees, as applicable, C. If Consultant is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate, d. Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by Vendor in this agreement and shall include, but not be limited to, claims involving security breach, system failure, data recovery, business interruption, Cyber extortion, social engineering, infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, and alteration of electronic information. The policy shall provide coverage for breach response costs, regulatory fines and penalties as well as credit monitoring expenses. e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: i. Consultant shall maintain all insurance required above in frill force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. iv. Where the amounts or coverage provided by the certificates of insurance Page 3 of 9 provides coverage greater than those listed by this Agreement, the amounts provided by the certificates of insurance shall be incorporated by reference into the Agreement. V. Consultant shall supply City with a fully executed additional insured endorsement, f If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such. termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination, Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. INDEMNIFICATION Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers, agents, employees, contractors, special counsel, and representatives from liability: (t) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the negligent operations of the Consultant, its subcontractors, agents, employees, or other persons acting on its behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitablerelief suffered, or alleged to have been suffered; by reason of the -events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, darnages, just compensation, restitution, judicial or equitable relief clue to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Consultant's services are ,subject to Civil Code Section 2792.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 8. INTELLECTUAL PROPERTY INDEMNIFICATION Consultant shall defend and indemnify the City, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by Consultant to the City pursuant to this Agreement. 9. RECORDS Page 4 of 9 Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of the City to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. Consultant shall allow inspection of all work, data, doctmients, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 10. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care, "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without.an obligation of confidentiality;.(d).is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 11. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 12. NON-DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. Consultant affinns that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 13. EXCLUSIVITY AND AMENDMENT Page 5 of 9 This Agreement represents the complete and exchisive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail, This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instillment that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other contractors retained by City. 15. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for :all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product(s) completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate, b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 16. WAIVER No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 17. JURISDICTION - VENUE Page 6 of This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement, 18. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 19. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Cleric of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O, Box 1988 Santa Ana, CA 92702-1988 Fax: 714- 647-6956 With courtesy copies to: Housing Division Manager Community Development Agency City of Santa Ana 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 To Consultant: Avocette Technologies, Inc, 422 Sixth Street, 2"s Floor New Westminster, BC V3L 3B2 Tel: 604.395.6000 Fax: 604.395.6004 any communication shall be addressed and transmitted to the new address. If sent by mail, commuucation shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above, 1£ sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For pluposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 20. MISCELLANEOUS ]PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement, C. This Agreement must be signed below and may be signed in counterpart and delivered by fax, email as a PDF (Portable Document Format) file attachment, or by other means that displays the original or a copy of the signatures. Any subsequent amendments may be signed and delivered in the same manner. (signatures on, following page) Page 8 of 9 IN WITNFSS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Daisy Gomez Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney n By: Ryan 0.'t odg'e Assistant City Attorney RECOMMENDED FOR APPROVAL: JACK'IULLA Chief ethnology Innovations Officer Information Technology Department CITY OF SANTA ANA �- A A- L- Kristine Ridge City Manager CONSULTANT: By: Darrel Drab Title: VP Local Government Page 9 of 9 EXHIBIT A SERVICEPLUS SUPPORT SERVICES Avoce++e 'I'E:CHNOtACY T'<7C C:,"Fi "R Exhibit A- ServicePlu City of Santa Ana Operational Cuppr,rt Services Contract for Ciariti Deliver to: City of Santa Ana Attn: Jack Ciulla Phone: 714,647.5381 E-mail: JCiulla@santa-ana.org Response Contact: Darrel Drab Avocette Technologies Inc. Phone; (250) 389-2993 (X229) E-mail: Darrel.drab@avocette.com 2"d Floor-422 Sixth Street, New Westminster, BC V3L 3132 (604) 395-6000 Head Office: (604) 395-6004 Phone: 1-866.285-8885 Fax: Toli Free: ServicePlus Support Services Agreement Avoc&4-1 e Contents ServicePlus Vendor Services Agreement .................................. ........ .................. ,,..,.,,,,,,....................... ScheduleA Services: .............................................................................................................................. 1 Terms of Contract.................................................................................................................................ii 1,1 Vendor's Obligations..................................................................................................................... ii 1.2 Client's Obligations...................................................................................................................... ill 1.3 Contract Price and Payment Terms............................................................................................. iii 1.4 Termination.................................................................................................................................. ill 1.5 Non-Hlre....................................................................................................................................... iv 1.6 General......................................................................................................................................... iv 1.7 Signatures.................................................................................................................................... iv 2 Schedule „A„ _ Basic .......................................... 1 2.1 ServicePlus Basic Service...............................................................................................................1 2.2 Service Levels................................................................................................................................1 23 ServicePlus Service Levels.............................................................................................................2 2.4 Service Level Reporting.................................................................................................................3 2.4.1 Service Level Meetings...................................................................................................3 2.4.2 Service Level Report.......................................................................................................3 2.5 Service Delivery.............................................................................................................................4 2.6 Service Request Management......................................................................................................4 2.7 Incident Management...................................................................................................................4 2.8 Incident Management Process., ................................................... _ .............................................. 5 2.9 Request Management...................................................................................................................6 2.9,1 Request Management Process......................................................................................6 2.10 Approach to Maintaining Service Levels.......................................................................................8 2.11 Facilities and Equipment Requirements.......................................................................................8 2.12 Support Team— ..... I... ... I ............................... I .... I ... I I ............................... .................... I ................ 1.8 2.13 Additional Services...................................................................................................................... to AppendixA: Definitions...............................................................................................................................1 ServicePlus Support Services Agreement ServicePlus Vendor Services Agreement Between Avocette Technologies Inc. (the VENDOR) at the following address: 2nd Floor —422 Sixth Street New Westminster, BC V& 362 Phone: 604 395 6000 Phone Toll Free: 1 866 285 8886 City of Santa Ana (the CLIENT) at the following address: 20 Civic Center Plaza M42 Santa Ana, CA 94605 Phone: 510.544,2569 Avoce++e CLIENT AND THE VENDOR AGREE TO THE TERMS OF THIS DOCUMENT AND IN THE SCHEDULE OUTLINE BELOW. Schedule A Services: ServicePlus Basic Service - Provide support and consulting services in support of the Client's Clariti system As Per Attached Schedule A. Term: From (tentative based on Live Day) To and including: June 30, 2026 READ TERMS ON THE FOLLOWING PAGES 1 Terms of Contract 1.1 Vendor's Obligations 1. The VENDOR will: a) notwithstanding the date of execution and delivery of this agreement, provide the services (The "Services") during the term (The "Term") at the contract price established in Schedule "A" in accordance with this agreement; b) supply all labour resources necessary to provide the Service outlined In Schedule "A'; c) upon request of CLIENT, fully inform CLIENT of the work done by the VENDOR nominee in connection with the provision of the Services and permit CLIENT at all reasonable times to inspect, review and copy all accounting records, findings, data, specifications, drawings, working papers, reports, documents and material (collectively called the "Material) whether complete or otherwise that have been produced received or acquired by the VENDOR nominee as a result of this agreement; d) ensure that the VENDOR complies with the CLIENT's request that all time spent must be detailed in the ServicePlus IT Service Management System along with a descriptor of the work carried out on a daily basis; e) comply with all applicable municipal, provincial/State and federal laws; f) at all times maintain a standard of care, skill and diligence in performance of the Services exercised and observed by persons engaged in the provision of services similar to the Services; g) at all times treat as confidential all information or material supplied to or obtained by the VENDOR and Its nominees as a result of this agreement and will not permit the publication, release or disclosure of the same without the prior written consent of CLIENT; ServlcePlus Support Services Agreement Avoce++e h) be an Independent Contractor and not be the servant, employee or agent of CLIENT i) ensure that all persons employed by it in connection with the provision of the Services are competent to perform them, adequately trained, fully instructed and supervised; j) ensure that all personnel hired by the VENDOR to provide the Services will be the employees or subcontractors of the VENDOR and not of CLIENT. 1.2 Client's Obligations 2. CLIENT will: a) make available to the VENDOR all available information considered by CLIENT to be pertinent to the Services; b) make available to the VENDOR such staff and subject matter experts for consultation as required to ensure the VENDOR can meettheir obligation to the CLIENT; c) ensure that the Client Point -of -Contact is available to review and approve the completion of incident resolution in a timely manner; d) ensure that the Client Contract Manager is available to approve such Service Requests as may be necessary for the VENDOR to fulfill its obligations under the contract; e) ensure that staff are available to review and approve Service Requests in a timely manner; 1.3 Contract Price and Payment Terms 3. Contract Price and Payment Terms a) Stlbjoct to the terms of this agreement the VENDOR will invoice the CLIENT for approved services as outlined in Schedule "A". Fees will be calculated on the "Additional Hourly Service Request rate' on an hourly basis as outlined in Schedule "A"; b) The VENDOR will submit written statements of account to CLIENT commencing no sooner than the date set out in Schedule "A" as the "Billing Date" and thereafter as Specified in Schedule "A; c) All pricing Is in the currency of the CLIENT; d) Preapproved expenses for travel and living if required will be invoiced at cost; e) All invoices are payable net 45 days. 1.4 Termination 4. In the event of a substantial failure of a party to comply with the provisions of this agreement, it may be terminated by the other party on thirty (30) days written notice. 5. CLIENT may, in Its sole discretion, terminate this agreement on 30 days written notice and the payment of funds required to be made pursuant to Section 8, will discharge CLIENT of all its liability to the VENDOR under this agreement. 6. Where this agreement is terminated before 100% completion of the Services, CLIENT will, subject to Section 7, pay to the VENDOR that portion of the Contract Price which is equal to the portion of the Services completed. ServicePlus Support Services Agreement 1.5 Non -Hire Avoce+-e 7. CLIENT agrees that during the term of this Agreement, and for the non -solicitation period of six months thereafter, shall not, without the prior written consent of VENDOR, induce or attempt to influence, directly or indirectly, an employee or subcontractor of VENDOR to leave the employ of VENDOR; 1,6 General 8. This agreement will be governed and construed in accordance with the laws of the State of California, 9. Time will be of the essence of this agreement. 10. Any notice required to be given hereunder will be delivered by hand or mailed by prepaid registered mail to the address on this agreement or at such other address as either party may from time to time designate by notice In writing to the other, and any such notice mailed will be deemed to be received 48 hours after mailing. 11. This agreement will be binding upon CLIENT and its assigns and the VENDOR, its successors and permitted assigns. 12. A waiver of any provision or breach by the VENDOR of this agreement will be effective only If it is in Writing and signed by CLIENT and will not be deemed to be a waiver of any subsequent breach of the same or any other provision of this agreement. 13. All materials provided to the VENDOR are to be treated confidentially. 14. The copyright for Independent work produced prior to the start of this project and brought into this project remains exclusively the copyright of the producing party, all other copyright in the Material will belong to CLIENT. 15, The Schedules form an integral part of this agreement. 16.. No amendment or modification to this agreement will become effective unless the same will have been reduced to writing and duly executed by the parties hereto. 17. This agreement, and any amendment made pursuant to Section 18, constitute the entire agreement between the parties. 18. Sections 1(b), (c), and (e) of this Agreement will notwithstanding the expiration or earlier determination of the Term, remain and continue in full force and effect, 1.7 Signatures Avocette Technologies Inc. Name: barrel Drab Signed: 64 .a Title: VP Local Government City of Santa Ana Name: Date: May 31, 2021 Date: Iv ServicePlus Support Services Agreement Avoce++c 2 Schedule "A" — Basic ServicePlus level of Service selected: Basic Monthly Service Fee: $5,092.50 ($292.50 Signature Capture) Included Service Hours: 40 Additional Hourly Service Rate: $120.00/Hour (Additional hours over monthly service fee require client authorization) Ek . Avocette's ServicePlus Basic service provides defined on -going support services aimed at maintaining a stable Clariti environment. ServicePlus Basic Service Desk hours: 8:30 —17:00 PST Monday to Friday exclusive of Canadian Statutory Holidays The following service levels are included with ServicaPlus Basic service to achieve the level of support required for CLIENT'S Clariti environment. Service levels are divided into five priority levels and are monitored and measured against the service level commitment as shown below. Avocette uses the following definitions to measure service levels: • Acknowledge Request is an email from an Avocette representative that confirms that the request has been received and a ticket number has been assigned in our service request management system • Incident Resolution Time is the time from when the incident Is reported to the time a work around or temporary solution has been Implemented to address the specific incident. • Incident Closure is the time from when the incident was reported to the time to hand over for production deployment with a permanent correction for the incident. If the Incident closure requires an Clariti fix, the Incident Closure times will not apply and will require direct participation of Clariti which Avocette will assist with. 0 ServkePlus Support Services Agreement Avoce-H-e 2.3 ServicePlus Service Levels Priority 1 Service Disruption for major < 1 Hour < 4 Hours < 3 applications/systems and/or has major phone call Business impact on business operations and/or Acknowledgement Impacts external customers A days required Guideline — has significant business impact. Priority 2 Partial service disruption for major < 2 Hour < 4 Hours < 5 application/system and/or service Business disruption for minor system and/or has days moderate impact on business operations Guideline — affects business operation for at least one department. Priority 3 Minor service disruption impacting 1-2 < 1 Business day — users significantly and/or has minimal <3 < 30 impact on business operations. Does not Business Business affect service delivery to external clients. days days Service Request may be raised for Incident remediation and resolution Priority 4 Minor Service disruption with < 1 Business day Insignificant or no impact on business < 15 < g0 operations Business Business Workaround available days days Guideline — Affects < 5people Service Request may be raised for incident remediation and resolution Priority 5 Causes no service disruption with no < 5 Business days --- -- -- < impact on business operations and does < 30 120 Impact service deliver to clients. Business Business Additional work needed to perform some days days functions. Service Reeuest may be raised for incident remediation and resolution ServicePlus Support Services Agreement Avoce44e The above service levels are maintained providing there are hours remaining in the budget. If no hours remain in the budget service levels will only be maintained with Client authorization and are dependent on Avocette resource availability. Exclusions (Service Levels are no longer in effect): • A ticket is referred to Clariti as a product or SAAS Issue • A ticket relates to CLIENT network or system Issues not covered. • In the event of an external disaster or disruption. The following are required for Avocette to meet the above service levels: • CLIENT will provide all required subscription, software and/or hardware licenses required to support the application. • The support team will not be on -site at CLIENT's location and Avocette's support team will be able to access the CLIENT network remotely using an SSTP VPN connection to access the necessary application environments. " , if• 0 s�: Service level reporting is a key means of communication between CLIENT and Avocette. It is a forum to discuss the performance with respect to service levels, the accomplishments and challenges, and to have open honest dialog about the service delivery and relationship. It also allows potential risks to be discussed and addressed proactively. Service level reporting is provided through the Avocette service manager and as agreed to by the CLIENT. Service level meetings are recommended to review the report and to have dialog around the service delivery and support relationship. 2,4,1 Service Level Meetings The following service level meetings will be conducted: • Weekly Prioritization meeting to review and rank incidents in priority. • Monthly Planning meeting to assess service request planning, status, priority and actions. • Annual Service Delivery review meeting to review the previous year and determine what adjustments are required for the next year. Attendees will include at least: • Avocette Service Delivery Manager • CLIENT Contract Manager Note: Actual time spent conducting and documenting service level meetings will be charged at the contract rate. Note: Avocette Weekly, Monthly, Quarterly and Annual meetings will occur via conference call unless otherwise requested, 2.4.2 Service Level Report The service level report is prepared weekly and monthly and will include the following information: ServIcePlus Support Services Agreement • An itemized list of all active requests/incidents annotated by Avocette ticket number in the current month and previous month. • Hourly usage for each ticket in the current month, the previous month and overall. • The status of each ticket as of the end of the period as well as any information that will assist both CLIENT and VENDOR In resolving the ticket. 2.5 Service Delivery Service delivery is oriented around two specific processes: 1) Incident Management a. The handling of Break Fix situations, requests that involve software fixes, 2) Service Request Management In CLIENT terminology this Is the 'support' type of a. The handling of any request that is not expected to result In a software fix. This includes Maintenance, Enhancement and Operational (non -software related) requests. See section 2.13 for a list of additional services available. The following sections will outline all the elements involved in Service Delivery and also walk through the expected workflow for both Incident Management and Request Management. Avocette uses a Service Management system to record and track all incidents and service requests under this contract. Once submitted, service request management application is used to support incidents and requests, assign tasks to internal team members and track time spent on specific requests. The features offered are: • Application Change Management by logging and tracking requests, bugs, end enhancements by application and client • Cross-referencing of incident reports • Time recording for activities and reporting on effort • Root Cause capture • Control of user access to ensure security and privacy The service request management application is configured for each client and can be modified to accommodate business related requirements for reporting, 2.7 Incident Management The Incident management process occurs when CLIENT has a request to fix a production problem with your Claritl environment. The goal of incident management is to: • Return to the normal service level as soon as possible with the smallest impact on the business and user. ServlcePlus Support Services Agreement Avoce++-e The process is triggered when the authorized CLIENT Individual or group makes the request through: • E-mail to Avocette (for non -emergency items only) • Phone call to Avocette (for emergency and high priority Issues, phone is mandatory) The following describes how Avocette will respond to an incident request. This process can be reviewed and adjusted if necessary to meet CLIENT's specific needs. As noted previously, some Incident may require an Clariti fix and in those cases Avocette will support the reporting and communication with Clarlti. Figure 1: Procedure for Incident Management. ONEENNOMMUMMMIM 1.1 The CLIENT point -of -contact or Customer Service Center contacts the CLIENT Avocette Service Desk via toll -free telephone number or email address. application point -of - contact 1.2 All contacts are acknowledged upon receipt. Acknowledgement can be _ Avocette through email or by phone. In the event an incident is submitted which in Service Desk the judgement of the service desk should be a level 1 or 2 incident (not applicable for AS and WHEN) the service desk will acknowledge by phone and recommend an upgrade of the incident priority. 1.3 Avocette Service Desk creates a ticket for the request, assigning the Avocette request to Avocette's primary support person and Service Delivery Service Desk Manager. Automatic email notifications are generated and sent to the Avocette Service Manager. k7 ServlcePlus Support Services Agreement nvoce-Il-Fe 1.4 7thequest is a priority 1 or 2 (not applicable for AS and WHEN),the Avocette e Service Desk speaks to the support resource and Service Support y Manager directly to ensure the request is received in a timely Team r (Le., warm handover). CLIENT and Avocette's managers are Informed of priority 1 and priority 2 requests. The Service Delivery Manager liaises with the primary resource to coordinate a solution, and may approach service manager to assign additional support team resources to recover and resolve the Issue. 1.5 The support team works to recover the issue within the service levels. Avocette This may involve working directly with CLIENT staff to provide access to Support data, database logs, performance data, etc., in order to resolve the Team incident. The support team promotes the fix to the CLIENT environment and completes the necessary requests to migrate to production. 1.6a If resolution of the Issue provides recovery of the application, the ServiceFAvocefte Delivery Manager will seek approval from CLIENT to close the request. 1.7 If resolution of the issue does not also provide recovery of the application, the support team will work to complete the long-term solutionto the issue. Team 1.6b Avocette obtains approval from the CLIENT point -of -contact to close the CLIENT request.,The incident is only considered closed once It is successfully point -of - deployed to production and verified as being resolved by the CLIENT contact point -of -contact. lu Avocette's request management services support the management of service requests. This includes requests for maintenance, enhancements or other operational (non -software) requests. The goal of Request Management is to keep track of all requests, allow prioritization of the requests, track time spent, and report on the status of each request. Service request may be raised to address all Priority 3, 4 and 5 incident remediation and resolutions. 2.9.1 Request Management Process The following describes how Avocette will respond to a service request ServIcePlus Support Services Agreement Avoce+ `e Figure 2: Procedure for Maintenance, Enhancement and Operational Requests 1.1 The CLIENT point -of -contact creates the initial service request by CLIENT documenting the specific request and sending this to the Avocette's application Service Desk by sending an email. A template is used to document the point -of - Service Request. contact This will be logged if not already Initiated as a service request and assigned to the service delivery manager to assess, 1.2 The Service Delivery Manager will coordinate the team to assess the _ Avocette Service Request, complete the request with impacts and estimates, and Support Team return the service request to CLIENT for approval. The development of the service request may involve collaboration between CLIENT and Avocette to ensure the requirements are understood and impacts accurately accounted for. CLIENT will review and approve the Service Request. CLIENT 1.3 The service delivery manager will then schedule the work to be Avocette completed based on the agreed timeline expectations In the service Support Team request. 1.4 The service request is executed and the deliverables provided to Avocetto CLIENT. Support Team 1.5 CLIENT will review the deliverables and complete any necessary user CLIENT acceptance testing before giving the approval to proceed to production or accept the deliverable. Service Requests must be approved and signed by the CLIENT Contract Manager and Avocette's Client Manager before any work proceeds. ServicePlus Support Services Agreement Avoca +e Avocetto will assign qualified and cross trained resources to the support of the Supported Application Components, The support team will include a primary and backup resource fully trained in the application as well as the support procedures necessary to adhere to CLIENT standards. The Service Delivery Manager will ensure that the backup resource is ready in the event that the primary resource is unavailable for any reason. The primary goal is to ensure that service levels are maintained regardless of the individual schedules of the support team. In addition, the Avocette Service Desk is provided with primary and backup resource contact information and will be kept informed when the primary resource Is unavailable. Cross training of the backup resources will be provided as part of initial transition to support and will occur annually thereafter as a refresher. Avocette will maintain a repository for information, materials and details pertaining to support of the Supported Application Components (Knowledge Management). This will also Include details on the specific CLIENT policies and procedures that will apply to this support service. The Service Delivery Manager will ensure that there is adequate coverage during any absences or traditional vacation perlods (Christmas Holidays) end will also communicate any upcoming absences to CLIENT during the service level report meetings. In the event of a disaster in the Avocette Offices, CLIENT will be notified immediately, provided direct contact phone numbers for the support team, and support resources will work from home. 2,11 Facilities and Equipment Requirements CLIENT is not required to provide any permanent desk or office space. However, Avocette may require access to a drop in station at CLIENT from time to time during onsite visits. Avocette resources will require remote access Into the CLIENT environment using a secure VPN or similar connactlon. 2,12 Support "Team Avocette's support team is comprised of the following roles and provides on -going operation support for CLIENT's Clariti environment as follows: CLIENT Contract ManagerlPoint of The CLIENT will assign a CLIENT Contract Manager/Point of Contact Contact to be the primary contact for the Avocette Service Delivery Manager. (Note that other roles may be assigned as required)The CLIENT Contract manager/Point of Contact will: 1. Facilitate communications between Avocette and the CLIENT to clarify incidentiservice request particulars (as needed) 2. Facilitate communications between Avocette and other CLIENT departments or technical areas in order to diagnose and resolve the request 3. Arrange for User Acceptance Testing as required 4. Provide priorities and guidance to the Avocette support team for outstandina issues ServicePlus Support Services Agreement Avoce,+ "e 5. Complete resolution details In the support tracking system and closing the ticket 6. Attend monthly service level meetings 7. The following additional responsibilities are primarily related to Service Request Management: 6. Facilitate Authorization of work to proceed. 9. Manage communication with other application stakeholders on implementation or significant changes 10. Facilitate approval of requirements and functional specifications Avocette Service Desk Support Analyst Avocette's Service Desk is staffed with Service Desk Support Analysts who are responsible for receiving and acting upon incidents reported by ServicePlus clients. The Avocette Service Desk Support Analyst: 1. Responds to incidents from ServicePlus clients submitted by email or phone, 2. Provides basic user.support as required such as password resets and other user support Issues. 3. Based on the priority of the incident takes appropriate action to respond to the incident by performing a warm handoff. 4. Provides regular updates for high priority incidents. Avocette Account Manager An Avocette Account Manager is assigned to each _mm ServlcePlus client and will be the person responsible for ensuring Avocette meets Its commitments under this contract. The Client Account Manager is also responsible for approving service requests on behalf of Avocette. The Avocette Account Manager will: 1. Be responsible for Avocette's commitments under the contract. 2. Be available when necessary to meet with the client to address issues and concerns. 3. Approve Service Requests in a timely manner. Service Delivery Manager A Service Delivery Manager is assigned to each ServicePlus client and will be the primary contact for managing incident resolution and service requests. Avocette always assigns a backup Service Delivery Manager, typically the Subject Matter Expert, to each account so that service disruptions are avoided in the case of the primary service delivery manager not being available. The Service Delivery Manager will: 1. Be responsible for ensuring service levels are met for all reporting incidents and communicating status of incident resolution processes to stakeholders 2. Manage the delivery team and ensures support coverage is in place to meet or exceed all service levels 3. Ensure proper communication to CLIENT regarding release scope and expected delivery schedule and status during the implementation process ServlcePlus Support Services Agreement AVOCe-H-e _.—------ _--------- ----_----- 4. Provide estimates for Service Requests and work with the CLIENT Contract Manager to set priorities 5. Work with the CLIENT Contract Manager to develop release plans for Service Requests 6. Ensure all required authorizations have been provided prior to initiating work or conducting migrations 7, Be responsible for adjusting the release processes if necessary in order to improve quality, reliability, timeliness or overall customer satisfaction with the releases and documenting the revised processes 8. Ensure decisions, priorities and action items are properly documented and communicated to the team members 9. Work with the CLIENT Contract Manager and the Avocette Support Team to prioritize incident resolution and closure 10. Conduct regular team meetings involving release scope, scheduling and status 11. Reports regularly to the Avocette Account Manager Subject Matter Experts ! Business Analyst A primary and secondary Subject Matter Expert is assigned to each ServicePlus client and Is responsible for providing analysis of and recommendations for resolving incidents and providing analysis and design for service requests. The Subject Matter Expert will: 1. Be responsible for understanding the business needs in relation to the application 2. Gather requirements for enhancements or service requests 3. Document both "as Is" and "to be" to enable technical team members to effectively configure the application 4. Liaise with CLIENT staff to understand and document reporting requirements 5. Work with CLIENT to understand business problems in relation to the application 6. Works with the Avocette Service Delivery Manager to effectively timetable and deliver business analysis tasks as part of releases or service requests Database Administrator Avocette's —core also includes a Database Administrator. The Database Administrator is not assigned to the team but is available as and when needed. Assigned resources may hold one or more roles described above 2.13.Addl'kional Services The following table provides a list of some of the services that are available. 10 ServicePlus Support Services Agreement Avoce-++e On call evening, weekend and holiday support can be arranged if required with 1 day notice. M7ts As and when required NIA NIA $100.00 per 8 Hours of on call support In the event where CLIENT As andN/A N/A $145.00/Hourhas made advance when arrangements for standby required service and a service request is received outside of normal business hours that requires Immediate response (i.e. cannot wait until the next business day) Avocetto will invoice for a minimum of four (4) hours or the actual hours worked, whichever is greater Rollout Clariti Implementation of annual Once per Clarti 80 Included major release major release in CLIENT's year (if application within Service environments available) environme Request • Includes testing of nt version Hours if current configurations level available, and functionality maintained additional • Does not include at 1 hours are implementation of new version behind charged at $125.00/Hour functionality) latest available. Rollout Clariti Implementation of feature Once each Clariti 15 Included feature pack packs in CLIENT's 6 Month application Nithin Service environments Period environme Request • Includes testing of nt feature Hours if current configurations pack available, and functionality version additional • Does not include level hours are Implementation of new maintained charged at functionality) at least 2 $125.00/Hour behind latest available. Rollout Clariti Implementation of Clariti As required Critical 20 Included Hotfixes patches In CLIENT's by Clariti hotfixes within Service environments patch (required Request • Includes testing of releases by Hours if current configurations CLIENT's available, and functionality current additional Clariti hours are version) harged at $125.00/Hour 11 ServicePlus Support Services Agreement Avoce++e Does not include Implementation of new functionality) Enhancement Service Request Hours draw YRecommen NIA mm As required Included s down budget for d that within Service enhancements to the Clariti CLIENT Request configuration allocate 30 Hours if hours per krvallable, month dditional ours are charged at 125.00/Hour 12 ServlcePlus Support Services Agreement AVOCe-l-ke Appendix A. Definitions The following definitions are used throughout this proposal "Acknowledge Request" means an email from an Avocette representative that confirms that a request has been received. "Additional Support Services" means any additional work requested by CLIENT beyond the Base Support Services. "Additional Support Services FOBS" means the monthly fee paid to the VENDOR for the delivery of Additional Support Services. "Approved Service Request" means a Service Request or a VENDOR Service Proposal for which the proposal and budget estimate provided by VENDOR has been approved by CLIENT and VENDOR has been instructed to proceed with delivery of the subject matter. "Base Support Services Fee" means the monthly fee paid to the VENDOR for the delivery of Base Support Services. "CLIENT Point of Contact" means the person in CLIENT responsible for managing the contract and approving all expenditures. This person is also the CLIENT reference of all administrative matters associated with this contract. "Contract Manager" means the Avocette Manager responsible for the delivery of Managed Services across multiple clients. The Service Delivery Manager reports to the Contract Manager. The Contract Manager is present at Monthly, Quarterly and Annual Service Level Review meetings with CLIENT. "Customer Support Center (CSC)" means CLIENT's first level helpdesk service if used. The Customer Support Center is responsible for declaring the initial priority of an Incident. "Incident" means an event that degrades or disrupts the normal operation of the application that is reported to the Service Desk and given a unique tracking number. "Incident Resolution Time" means the time to complete the permanent corrective solution (resolve the root cause). "On -call Hours" means those hours beyond the Standard Business Day. On -call services are available on request by CLIENT with one day's notice. "Preapproved Expenses" means those expenses incurred by the VENDOR in the execution of this contract including travel and living expenses as preapproved by the CLIENT. "Priority" means the degree of impact that an incident has on CLIENT business areas and clients. The priorities are graded from 1 through 5 and agreed response and resolution times are based on these priorities in the form of a Service Level Agreement. The Priority definitions can be found in Section 2.2 Service Levels. "Services" means Base Support Services and Additional Support Services. "Service Desk" means the service desk operated by the VENDOR providing a single point of contact and 20d level support for all Services Incidents, and 1 sr level support for all Service Requests and Approved Service Requests for In -Scope Servers and In -Scope Applications. A-1 ServIcePIus Support Services Agreement AVOC2"i 4-e "Service Delivery Manager" means the Avocette resource responsible for ensuring CLIENT service levels are met and that CLIENT remains satisfied with the service being provided. The Service Delivery Manager manages the support team, ensures adequate coverage Is In place, provides communication to CLIENT during incident recovery periods, and prepares the Service Level Reports. The Service Delivery Manager is present at Monthly, Quarterly and Annual Service Level review meetings at CLIENT. "Service Levels" means the operational performance required of, and guaranteed by, the VENDOR in the delivery of the Services, as set out in Section 2. "Service Management Reporting" means the design, generation and delivery by the VENDOR of reports and reporting sufficient to meet CLIENT's operational management requirements for the Services. "Service Request" means a formal request Issued by CLIENT for maintenance (upgrades, preventative maintenance) and enhancements. Service Requests are developed by CLIENT and typically include the description of the requested service, scope, expected deliverables and timeline expectations. Avocette will provide estimates for Service Requests within 5 business days. All service requests are sent to the Avocette Service Desk and given a unique tracking number. "Standard Business Day" will be 7:00 a.m. to 5:00 p.m. Monday to Friday, not including Statutory Holidays. "Statutory Holidays" — In the United States means New Year's day, Martin Luther King day, Presidents Day, Memorial day, Independence day, Columbus Day, Veteran's day, Thanksgiving day, Christmas day, Christmas day holiday and in Canada means New Year's Day, Family Day (including Islander day, Louis Riel day, Viola Desmond day), Good Friday, Easter Monday, Victoria Day, Canada Day, Civic holiday (including AB, BC, SK, ON, NB, NU), Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, and Boxing Day. "Support Team" means the Avocette resources that are involved in the day to day support of the Supported Application Components. "Ticket" is a generic term for a unique tracking number that is generated by the Customer Service Contra or Avocette's service request management application. A-2 EXHIBIT B COST PROPOSAL ServlcePlus Support Services Agreement Avoce-+-+-e Deliverable Deliverable Name Total Cost ServlcePlus Basic (40 hours/month) SP1 Term: GO Live —June 2023 $4,800.00/month ServlcePlus Basic (40 hours/month) SP2.1 Term: July 2023 — June 2024 $4,800.00Imonth SP2.2 Signature Capture Subscription`" $3,510.00/Year ServlcePlus Basic (40 hours/month) SP3-1 Term: July 2024 — June 2025 $4,800.00/month SP3-2 Signature Capture Subscription.* $3,510.00/Year ServicePlus Basic (40 hours/month) SP4.1 Term: July 2025 — June 2026 $4,$00.00/month SP4-2 Signature Capture Subscription* $3,510.00IYear users ( w r-250 range) $ Mluser l vvo user count) A-3