CONTRACT 6542 Service AgreementAgreement No. 6542
SOFTWARE SERVICES AGREEMENT
BETWEEN THE CITY OF EL SEGUNDO
AND
OPENGOV, INC.
THIS AGREEMENT, is entered into this 1st day of December 2022 by and
between CITY OF EL SEGUNDO, a municipal corporation ("CITY") and OpenGov, Inc.,
a Delaware Corporation ("CONSULTANT").
CONSIDERATION.
A. As partial consideration, CONSULTANT agrees to perform the scope of work
attached as Exhibit "B", and incorporated by reference ("SERVICES"). The
SERVICES include installing and maintaining a software program for various tasks
associated with OpenGov, Inc. ("SOFTWARE").
B. As additional consideration, CONSULTANT and CITY agree to abide by the terms
and conditions contained in this Agreement and Exhibit "A" - CONSULTANT's
Software Service Agreement (SSA);
C. As additional consideration, CITY will pay CONSULTANT the compensation set
forth in Exhibit "C", but in no event more than fifty thousand dollars ($50,000) per year
unless otherwise agreed to by the parties.
D. CITY will not be liable for any costs or expenses exceeding the sum paid to
CONSULTANT pursuant to Section 1(C) unless otherwise agreed to by the Parties
and by written amendment to this Agreement.
2. TERM. The term of this Agreement will be for three (3) years. This Agreement will
automatically renew as specified in Exhibit "B." Unless otherwise determined by written
amendment between the parties, this Agreement will terminate in the following instances:
A. Completion of the work specified in Exhibit "A";
B. Termination as stated in Section 7.
3. "SELF-HELP" AND "MALICIOUS" CODES PROHIBITED.
A. CONSULTANT understands and agrees that CONSULTANT's use of any "self-
help" or "malicious" codes, as defined by this Section, is prohibited and constitutes an
"unfair business practice" as defined by California law.
B. "Self-help code" means any back -door, time -bomb, drop -dead, time-out, lock -up,
slow -down, data freezing, logic bombs, or other software routine, code, devices,
techniques intended to disable, slow, prevent operation of, or otherwise interfere with
or change any operation of any computer system, software or other property
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automatically with the passage of time or under the prior instruction, triggering event
or control of someone other than Client.
C. "Malicious Code" means any virus, "spyware," "Trojan horse," "worm," "Easter
egg," "cancelbot," "trapdoor," or other unapproved or malicious software routine, code,
command, device, technique, or instruction or other contaminant intended to
i. Permit unauthorized access to, detection of, modification of, or monitoring
of any code, system, or data;
ii. Alter, supplement, disable, erase, limit, threaten, infect, assault, vandalize,
defraud, disrupt, damage, disable, shut down or delete, threaten, slow or otherwise
inhibit the functioning of, or otherwise harm any of the code, documentation or data
or any computer system, software or other property;
iii. Render any data irretrievable, modified, or disrupted so as to be unreliable
in any regard;
iv. Perform any other unauthorized action, or prevent, limit, condition or inhibit
performance of authorized actions or any function including, without limitation, to
its security or end user data.
4. LAWS AND REGULATIONS. CONSULTANT will be responsible for complying
with any and all applicable Federal, State, County, and Municipal laws and regulations
and the conditions of any required licenses and permits before entering into this
Agreement.
5. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
i. Indemnification for Professional Services. CONSULTANT will save
harmless and indemnify and at CITY's request reimburse defense costs for
CITY and all its officers, volunteers, employees and representatives from and
against any and all suits, actions, or claims, of any character whatever,
brought for, or on account of, any injuries or damages sustained by any
person or property resulting or arising from any gross negligence or
wrongful act, error or omission by CONSULTANT or any of CONSULTANT's
officers, agents, employees, or representatives, in the performance of this
Agreement, except for such loss or damage arising from CITY's sole
negligence or willful misconduct.
ii. Indemnification for other Damages. CONSULTANT indemnifies and
holds CITY harmless from and against any claim, action, damages, costs
(including, without limitation, attorney's fees), injuries, or liability, arising out
of gross negligence or a wrongful act or omission by the CONSULTANT in
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the performance of this Agreement, except for such loss or damage arising
from CITY's sole negligence or willful misconduct. Should CITY be named
in any suit, or should any claim be brought against it by suit or otherwise,
whether the same be groundless or not, arising out of this Agreement, or its
performance, CONSULTANT will defend CITY (at CITY's request and with
counsel satisfactory to CITY) and will indemnify CITY for any judgment
rendered against it or any sums paid out in settlement or otherwise.
iii. Intellectual Property Infringement. Notwithstanding any provision to
the contrary, CONSULTANT will, at its own expense, indemnify and defend
CITY against any claim that CONSULTANT's services or work product
furnished under this Agreement infringes a patent or copyright in the United
States or Puerto Rico. In such event, CONSULTANT will pay all costs
damages and attorney's fees that a court finally awards as a result of such
claim. To qualify for such defense and payment, CITY must (a) give
CONSULTANT prompt written notice of any such claim; and (b) allow
CONSULTANT to control, and fully cooperate with CONSULTANT in the
defense and all related settlement negotiations. CITY agrees that if the use
of CONSULTANT's services or work product becomes, or CONSULTANT
believes is likely to become, the subject of such an intellectual property
claim, CITY will permit CONSULTANT, at its option and expense, either to
secure the right for CITY to continue using CONSULTANT's services and
work product or to replace it with comparable services and work product.
B. For purposes of this section "CITY" includes CITY's elected and appointed officials,
officers, employees, and volunteers.
C. It is expressly understood and agreed that the foregoing provisions will survive
termination of this Agreement.
D. The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT as required by Section 6, and any approval of said
insurance by CITY, are not intended to and will not in any manner limit or qualify the
liabilities and obligations otherwise assumed by CONSULTANT pursuant to this
Agreement, including, without limitation, to the provisions concerning indemnification.
6. INSURANCE.
A. Before commencing performance under this Agreement, and at all other times this
Agreement is effective, Consultant will procure and maintain the following types of
insurance with coverage limits complying, at a minimum, with the limits set forth below:
Type of Insurance Limits (combined single)
Commercial general liability: $1,000,000
Professional Liability $1,000,000
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Workers compensation Statutory requirement.
B. Commercial general liability insurance will meet or exceed the requirements of the
most current ISO-CGL Form. The amount of insurance set forth above will be a
combined single limit per occurrence for bodily injury, personal injury, and property
damage for the policy coverage. Liability policies will be endorsed to name City, its
officials, and employees as "additional insureds" under said insurance coverage and
to state that such insurance will be deemed "primary" such that any other insurance
that may be carried by City will be excess thereto. Such insurance will be on an
"occurrence," not a "claims made," basis and will not be cancelable or subject to
reduction except upon thirty (30) days prior written notice to City.
C. Professional liability coverage will be on an "occurrence basis" if such coverage is
available, or on a "claims made" basis if not available. When coverage is provided on
a "claims made basis," Consultant will continue to maintain the insurance in effect for
a period of three (3) years after this Agreement expires or is terminated ("extended
insurance"). Such extended insurance will have the same coverage and limits as the
policy that was in effect during the term of this Agreement, and will cover Consultant
for all claims made by City arising out of any errors or omissions of Consultant, or its
officers, employees or agents during the time this Agreement was in effect.
D. Consultant will furnish to City duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement,
endorsements as required herein, and such other evidence of insurance or copies of
policies as may be reasonably required by City from time to time. Insurance must be
placed with insurers with a current A.M. Best Company Rating equivalent to at least a
Rating of "A:VII."
E. Should Consultant, for any reason, fail to obtain and maintain the insurance
required by this Agreement, City may obtain such coverage at Consultant's expense
and deduct the cost of such insurance from payments due to Consultant under this
Agreement or terminate.
7. TERMINATION OF AGREEMENT. If either party materially breached any term of
the Agreement and fails to cure the breach within thirty (30) days after notice by the non -
breaching party (ten (10) in the case of non-payment), the non -breaching party may
terminate the contract. With respect to Software Services provided by the CONSULTANT
under the Agreement, the CITY will be responsible for payment of any portion of annual
Software Services fees due, and any payment made for Software Services shall be non-
refundable. With respect to Professional Services that may be provided by the
CONSULTANT pursuant to a Statement of Work, the CITY will be responsible for
payment of any portion of the Professional Services completed prior to termination of the
Agreement.
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CONSULTANT will notify CITY of changes in address. All notices given or required to be
given pursuant to this Agreement will be in writing and may be given by personal delivery
or by mail. Notice sent by mail will be addressed as follows:
To CITY:
To CONSULTANT.
City of El Segundo
Community Development Department
350 Main Street
El Segundo, California 90245
Attn: Director Michael Allen, mallen@elsegundo.org
OpenGov, Inc.
6525 Crown Blvd.
P.O. Box #41340
San Jose, CA 95160
ATTN: Legal Department
With a copy to:
legal@opengov.com
and, when addressed in accordance with this paragraph, will be deemed given upon
deposit in the United States mail, postage prepaid. In all other instances, notices will be
deemed given at the time of actual delivery. Changes may be made in the names or
addresses of persons to whom notices are to be given by giving notice in the manner
prescribed in this paragraph.
9. AUDIT AND ACCESS TO RECORDS. CONSULTANT, including
CONSULTANT's subcontractors, will maintain records and other evidence of all expenses
incurred in the performance of this Agreement for a period of three (3) years after
completion. CITY or any of its duly authorized representatives will, for the purpose of
audit and examination, have access to and be permitted to inspect such records and other
evidence of expenses and costs charged to CITY and/or incurred for work related to
SERVICES. For purposes of audit, the date of completion of the Agreement will be the
date of CITY'S payment for CONSULTANT's final billing (so noted on invoice) under this
Agreement. In no event shall any audit occur: (1) more than one (1) time per calendar
year, (2) no less than three (3) business days prior written notice or outside of
Consultant's normal business hours, and (3) on systems where such audit may, in
Consultant's sole reasonable discretion, violate its third party confidentiality obligations.
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10. NON -APPROPRIATION OF FUNDS. See Exhibit "B".
11. INDEPENDENT CONTRACTOR. CONSULTANT, CONSULTANT's
subconsultants, employees, agents, and representatives, will act as independent
contractors while performing the SERVICES and will have control of CONSULTANT's
work and the manner in which it is performed, except as is otherwise provided herein.
CONSULTANT will be free to contract for other services performed during the term of this
Agreement. CONSULTANT is not an agent or employee of CITY and is not entitled to
participate in any pension plan, insurance, bonus or similar benefits CITY provides for its
employees.
12. ASSIGNMENT. An essential element of this Agreement is the skill and creativity
of CONSULTANT. CONSULTANT may not, except in the event of a change of control
, assign the creative portions of the work to a third party for the production of the work
without CITY's prior written consent. Failure to conform to this provision may result in
termination of the Agreement.
13. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the
main body of this Agreement takes precedence over the attached Exhibits; this
Agreement supersedes any conflicting provisions. Any inconsistency between the
Exhibits will be resolved in the order in which the Exhibits appear below:
CONSULTANT's Exhibit A - Software Service Agreement (SSA)
CONSULTANT's Exhibit B - Scope of Work (SOW)
CONSULTANT's Exhibit C - Fees
14. ENTIRE AGREEMENT. This Agreement, and its Exhibits, sets forth the Parties'
entire understanding. There are no other understandings, terms or other agreements
expressed or implied, oral or written. There are three (3 ) attachments to this
Agreement. Except as otherwise provided, this Agreement will bind and inure to the
benefit of the Parties to this Agreement and any subsequent successors and assigns.
15. MODIFICATION. No alteration, change or modification of the terms of the
Agreement will be valid unless made in writing and signed by both Parties hereto and
approved by appropriate action of CITY. The city manager may exercise this authority
on behalf of CITY.
16. ELECTRONIC SIGNATURES. This Agreement may be executed by the Parties
on any number of separate counterparts, and all such counterparts so executed constitute
one Agreement binding on all the Parties notwithstanding that all the Parties are not
signatories to the same counterpart. In accordance with Government Code § 16.5, the
Parties agree that this Agreement, Agreements ancillary to this Agreement, and related
documents to be entered into in connection with this Agreement will be considered signed
when the signature of a party is delivered by electronic transmission. Such electronic
signature will be treated in all respects as having the same effect as an original signature.
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17. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with
CONSULTANT's Taxpayer Identification Number.
18. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT
represents that CONSULTANT has demonstrated trustworthiness and possesses the
quality, fitness, and capacity to perform the Agreement in a manner satisfactory to CITY.
CONSULTANT represents that CONSULTANT's financial resources, surety and
insurance experience, service experience, completion ability, personnel, current
workload, experience in dealing with private parties, and experience in dealing with public
agencies all suggest that CONSULTANT is capable of performing the proposed contract
and has a demonstrated capacity to deal fairly and effectively with and to satisfy a public
agency.
19. WAIVER. A waiver by CITY of any breach of any term, covenant, or condition
contained in this Agreement will not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant, or condition contained in this Agreement whether
of the same or different character. The payment or acceptance of fees for any period
after a default will not be deemed a waiver of any right or acceptance of defective
performance.
19. SEVERABILITY. If any portion of this Agreement is declared by a court of
competent jurisdiction to be invalid or unenforceable, then such portion will be deemed
modified to the extent necessary in the opinion of the court to render such portion
enforceable and, as so modified, such portion and the balance of this Agreement will
continue in full force and effect.
20. FORCE MAJEURE. Should performance of this Agreement be prevented due to
fire, flood, explosion, acts of terrorism, war, embargo, government action, civil or military
authority, the natural elements, or other similar causes beyond the Parties' reasonable
control, then the Agreement will immediately terminate without obligation of either party
to the other.
21. INTERPRETATION; VENUE. This Agreement and its performance will be
governed, interpreted, construed and regulated by the laws of the State of California.
Exclusive venue for any action involving this Agreement will be in Los Angeles County.
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Agreement No. 6542
IN WITNESS WHEREOF the parties hereto have executed this contract the day and year
first hereinabove written.
OPENGOV, INC.
By:
Sean Wani
Title: General Counsel
Tax ID: 30-0717374
C'v OF EL S GUNDO
Darrell George,
City Manager
EST:
Tracy Wea ,
City Clerk
APPROVED AS TO FORM:
MARK A HF-NSLEY, City Attorney
Joaquin " 4zquez, Deputy City Attorney
Insura a Approval:
Hank L lsk Manager
Agreement No. 6542
Exhibit A
SOW
OpenGov's pricing model consists of a flat, annual subscription for the associated software and
professional services components. Our professional services include everything needed to ensure
a successful launch: Initiation, Configuration, Validation, Deployment, and Training. OpenGov
offers a non-restrictive, unlimited pricing model, meaning customers are not limited to the
number of users, logins, dashboards, reports or datasets. Rather, we charge a flat, annually
recurring subscription fee to encourage our customers to utilize the platform, increase adoption
throughout their organization, get valuable unlimited usage, and have a predictable annual cost.
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Agreement No. 6542
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Project Scope & Phase Summary
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Please find the summary of our project plan &phases below. If his y g � p
will prepare a formal statement of work and order form for your review.
You'll note that we made a few changes to the project scope based on project requirements we
reviewed over the phone:
Phase 1: reduced number of record types to be built by OpenGov from 6 to 5
Phase 2: moved historical data migration & document migration to start of Phase 2
Phase I:
1 Service Area (Building)
5 Record Types (out of 11)
State Contractor Integration
4 Autofills
Financial Data Export
GIS Flags
Master Address Table
• Single Sign -on
• Administrator Training
• Configuration Training
End User Training
o Reporting Training
Phase I :
Historical Data Migration (Express & IRIS Permits)
Document Migration
• Additional Record Types Buildout
• Additional Training
• Additional Migrations (as needed)
Agreement No. 6542
Exhibit B
1. OpenGov Terms and Conditions — Software Services Agreement (Direct
Purchase with OpenGov)
This Software Services Agreement (this "Agreement") is entered into by OpenGov, Inc.,
a Delaware corporation with a principal place of business at 6525 Crown Blvd #41340,
San Jose, CA 95160 ("OpenGov") and the customer listed on the signature block below
("Customer"), as of the date of last signature below (the "Effective Date"). This
Agreement sets forth the terms under which Customer will be permitted to use OpenGov's
hosted software services.
1. DEFINITIONS
"Customer Data" means data that is provided by Customer to OpenGov pursuant to this
Agreement (for example, by email or through Customer's software systems of record).
Customer Data shall not include any confidential personally identifiable information.
"Documentation" means the documentation for the Software Services at the Customer
Resource Center page found at htt s://opengov.zendesk.com.
"Feedback" means suggestions, comments, improvements, ideas, or other feedback or
materials regarding the Software Services provided by Customer to OpenGov, including
feedback provided through online developer community forums.
"Initial Term" means the initial license term specified in number of years on the Order
Form, commencing on the Effective Date.
"Intellectual Property Right " means all intellectual property rights including all past,
present, and future rights associated with works of authorship, including exclusive
exploitation rights, copyrights, and moral rights, trademark and trade name rights and
similar rights, trade secret rights, patent rights, and any other proprietary rights in
intellectual property of every kind and nature.
"Order Form" means OpenGov's Software Services order form that: (a) specifies the
Software Services provided by OpenGov; (b) references this Agreement; and (c) is signed
by authorized representatives of both parties.
"Renewal Term" means each additional renewal period, which shall be for a period of
equal duration as the Initial Term, for which this Agreement is extended pursuant to
Section 7.2.
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2. SOFTWARE SERVICES, SUPPORT AND PROFESSIONAL SERVICES
2.1 Software Services. Subject to the terms and conditions of this Agreement, OpenGov
will use commercially reasonable efforts to perform the software services identified in the
applicable Order Form entered into by OpenGov and Customer ("Software Services").
2.2 Support & Service Levels. Customer support is available by email
to support@opengov.com or by using the chat messaging functionality of the Software
Services, both of which are available during OpenGov's standard business hours.
Customer may report issues any time. However, OpenGov will address issues during
business hours. OpenGov will provide support for the Software Services in accordance
with the Support and Software Service Levels found at https://opengov.com/service-sla,
as long as Customer is entitled to receive support under the applicable Order Form and
this Agreement.
2.3 Professional Services.
(a) If OpenGov or its authorized independent contractors provides professional
services to Customer, such as implementation services, then these professional
services will be described in a statement of work ("SOW") agreed to by the parties (the
"Professional Services"). Unless otherwise specified in the SOW, any pre -paid
Professional Services Fees must be utilized within one (1) year from the Effective
Date. Any unused pre -paid Professional Services Fees shall be forfeited.
(b) Unless the SOW provides otherwise, all reasonable travel expenses, pre -approved
by Customer and incurred by OpenGov in performing the professional services will be
reimbursed by Customer. Travel expenses include cost of coach airfare travel round
trip from the individual's location to Customer's location, reasonable hotel
accommodations, ground transportation and meals.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Restrictions. Customer may not use the Software Services in any manner or for any
purpose other than as expressly permitted by the Agreement. Customer shall not, and
shall not permit or enable any third party to: (a) use or access any of the Software
Services to build a competitive product or service; (b) modify, disassemble, decompile,
reverse engineer or otherwise make any derivative use of the Software Services (except
to the extent applicable laws specifically prohibit such restriction); (c) sell, license, rent,
lease, assign, distribute, display, host, disclose, outsource, copy or otherwise
commercially exploit the Software Services; (d) perform or disclose any benchmarking or
performance testing of the Software Services; (e) remove any proprietary notices included
with the Software Services; (f) use the Software Services in violation of applicable law; or
(g) transfer any confidential personally identifiable information to OpenGov or the
Software Services platform.
3.2 Res onsibilities. Customer shall be responsible for obtaining and maintaining
computers and third party software systems of record (such as Customer's ERP systems)
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needed to connect to, access or otherwise use the Software Services. Customer also
shall be responsible for: (a) ensuring that such equipment is compatible with the Software
Services, (b) maintaining the security of such equipment, user accounts, passwords and
files, and (c) all uses of Customer user accounts by any party other than OpenGov.
4.INTELLECTUAL PROPERTY RIGHTS; LICENSE GRANTS; ACCESS TO
CUSTOMER DATA
4.1 Software Services. OpenGov retains all right, title, and interest in the Software
Services and all Intellectual Property Rights in the Software Services. The look and feel
of the Software Services, including any custom fonts, graphics and button icons, are the
property of OpenGov and Customer may not copy, imitate, or use them, in whole or in
part, without OpenGov's prior written consent. Subject to Customer's obligations under
this Agreement, OpenGov hereby grants to Customer a non-exclusive, royalty -free
license during the Term to use the Software Services.
4.2 Customer Data. Customer retains all right, title, and interest in the Customer Data and
all Intellectual Property Rights therein. Customer hereby grants to OpenGov a non-
exclusive, royalty -free license to, and permit its partners (which include, without limitation
the hosting providers of the Software Services) to, use, store, edit and reformat the
Customer Data, and to use Customer Data for purposes of sales, marketing, business
development, product enhancement, customer service, or for analyzing such data and
publicly disclosing such analysis ("Insights"), provided that in all such uses Customer
Data is rendered anonymous such that Customer is no longer identifiable.
4.3 Access to Customer Data. Customer may download the Customer Data from the
Software Services at any time during the Term, other than during routine software
maintenance periods. OpenGov has no obligation to return Customer Data to Customer.
4.4 Feedback. Customer hereby grants to OpenGov a non-exclusive, royalty -free,
irrevocable, perpetual, worldwide license to use and incorporate into the Software
Services and Documentation Customer's Feedback. OpenGov will exclusively own any
improvements or modifications to the Software Services and Documentation based on or
derived from any of Customer's Feedback including all Intellectual Property Rights in and
to the improvements and modifications.
5. CONFIDENTIALITY
5.1 Each party (the "Receiving Party") agrees not to disclose any Confidential
Information of the other party (the "Disclosing Party") without the Disclosing Party's prior
written consent, except as provided below. The Receiving Party further agrees: (a) to use
and disclose the Confidential Information only in connection with this Agreement; and (b)
to protect such Confidential Information using the measures that Receiving Party employs
with respect to its own Confidential Information of a similar nature, but in no event with
less than reasonable care. Notwithstanding the above, the Receiving Party may disclose
Confidential Information to the extent required by law or court order, provided that prior
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written notice of such required disclosure and an opportunity to oppose or limit disclosure
is given to the Disclosing Party.
5.2 "Confidential Information" means all confidential business, technical, and financial
information of the disclosing party that is marked as "Confidential" or an equivalent
designation or that should reasonably be understood to be confidential given the nature
of the information and/or the circumstances surrounding the disclosure (including the
terms of the applicable Software Agreement). OpenGov's Confidential Information
includes, without limitation, the software underlying the Software Services and all
Documentation.
5.3 Notwithstanding the foregoing, "Confidential Information" does not include: (a) "Public
Data," which is data that the Customer has previously released to the public, would be
required to release to the public, upon request, according to applicable federal, state, or
local public records laws, or Customer requests OpenGov make available to the public in
conjunction with the Software Services. Confidential Information does not include (b)
information that has become publicly known through no breach by the receiving party; (c)
information that was rightfully received by the Receiving Party from a third party without
restriction on use or disclosure; or (d) information independently developed by the
Receiving Party without access to the Disclosing Party's Confidential Information.
6. PAYMENT OF FEES
6.1 Fees: Invoicing, Payment; Expenses.
(a) Fees. The fees for the Software Services for the Initial Term and any Renewal
Term ("Software Services Fees") and the fees for Professional Services
("Professional Services Fees") are set forth in the applicable Order Form. Software
Services Fees and Professional Services Fees shall hereafter be referred to as
"Fees". Except to the extent otherwise expressly stated in this Agreement or in an
Order Form, (i) all obligations to pay Fees are non -cancelable and all payments are
non-refundable, (ii) Customer must pay all Fees due under all Order Forms and SOW
within thirty (30) days after Customer receives each invoice (invoices are deemed
received when OpenGov emails them to Customer's designated billing contact); (iii)
the Software Service Fee shall be due annually in advance, and (iv) Customer must
make all payments without setoffs, withholdings or deductions of any kind.
(b) Annual Software Maintenance Price Adjustment. OpenGov shall increase the Fees
payable for the Software Services during any Renewal Term by 5% each year of the
Renewal Term.
(c) Invoicing and Payment. OpenGov will invoice the Customer according to the Billing
Frequency listed on the Order Form. Customer shall pay all invoices according to the
Payment Terms listed on the Order Form.
(d) Travel Expenses. Unless the SOW provides otherwise, OpenGov will invoice
Customer for travel expenses, pre -approved by the Customer, incurred in connection
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with each SOW as they are incurred. Customer shall pay all such valid invoices within
thirty (30) days of receipt of invoice. Each invoice shall include receipts for the travel
expenses listed on the invoice.
(e) Customer Delays-, On Hold Fee.
I. On HoldNotice. Excluding delays caused by Force Majeure as described in
Section 10.5, if OpenGov determines that Customer's personnel or contractors are
not completing Customer's responsibilities described in the applicable SOW timely
or accurately, OpenGov shall promptly, but in no event more than thirty (30) days
from the date of such determination deliver to Customer a notice (an "On Hold
Notice") that (A) designates the Professional Services to be provided to the
Customer as "On Hold", (B) detail Customer's obligations and responsibilities
necessary for OpenGov to continue performing the Professional Services, and (C)
specify the Customer shall be invoiced for lost time in production (e.g. delayed or
lost revenue resulting from rescheduling work on other projects, delay in receiving
milestone payments from Customer, equipment, hosting providers and human
resources idle) for a fee equal to 10% of the first year Software Service Fee (the
"On Hold Fee").
II. Effects of On Hold Notice. Upon issuing an On Hold Notice, OpenGov shall be
entitled, without penalty, to (A) reallocate resources otherwise reserved for the
performance of the Professional Services, and (B) stop or caused to be stopped
the Professional Services to be provided to the Customer until the Customer has
fulfilled its obligations as set forth in the On Hold Notice. OpenGov shall remove
the "On Hold" status, only upon Customer's fulfillment of its obligations set out in
the On Hold Notice, including payment of the On Hold Fee. Upon Customer's
fulfillment of its obligations in the On Hold Notice, OpenGov may, in its sole
discretion, extend the timeline to complete certain Professional Services up to six
(6) weeks, depending on the availability of qualified team resources (OpenGov
cannot guarantee that these team resources will be the same as those who were
working on the project prior to it being placed On Hold). OpenGov shall bear no
liability or otherwise be responsible for delays in the provision of the Professional
Services occasioned by Customer's failure to complete Customer's responsibilities
or adhere to a Customer schedule which were brought to the attention of the
Customer on a timely basis, unless such delays result, directly or indirectly from
the failure of OpenGov or its authorized independent contractors to perform the
Professional Services in accordance with this Agreement or applicable SOW.
6.2 Conse - uences of Non -Payment. If Customer fails to make any payments required
under any Order Form or SOW, then in addition to any other rights OpenGov may have
under this Agreement or applicable law, (a) Customer will owe late interest penalty of
1.5% of the outstanding balance per month, or the maximum rate permitted by law,
whichever is lower and (b) If Customer's account remains delinquent (with respect to
payment of a valid invoice) for thirty (30) days after receipt of a delinquency notice from
OpenGov, which may be provided via email to Customer's designated billing contact,
Agreement No. 6542
OpenGov may temporarily suspend Customer's access to the Software Service for up to
ninety (90) days to pursue good faith negotiations before pursuing termination in
accordance with Section 7. Customer will continue to incur and owe all applicable Fees
irrespective of any such Service suspension based on such Customer delinquency.
6.3 Taxes. All Fees under this Agreement are exclusive of any applicable sales, value-
added, use or other taxes ("Sales Taxes"). Customer is solely responsible for any and all
Sales Taxes, not including taxes based solely on OpenGov's net income. If any Sales
Taxes related to the Fees under this Agreement are found at any time to be payable, the
amount may be billed by OpenGov to, and shall be paid by, Customer. If Customer fails
to pay any Sales Taxes, then Customer will be liable for any related penalties or interest,
and will indemnify OpenGov for any liability or expense incurred in connection with such
Sales Taxes. In the event Customer or the transactions contemplated by the Agreement
are exempt from Sales Taxes, Customer agrees to provide OpenGov, as evidence of
such tax exempt status, proper exemption certificates or other documentation acceptable
to OpenGov.
7. TERM & TERMINATION
7.1 Term. Subject to compliance with all terms and conditions, the term of this Agreement
shall commence on the Effective Date and shall continue until the Subscription End Date
specified on the Order Form (the "Initial Term") unless sooner terminated pursuant to
Section 7.3 below.
7.2 renewal. This Agreement shall automatically renew for another period of the same
duration as the Initial Term (the "Renewal Term" and together with the Initial Term, the
"Term"), unless either party notifies the other party of its intent not to renew this
Agreement in writing no less than thirty (30) days before the end of the Initial Term.
7.3 Termination. Neither party shall have the right to terminate this Agreement without a
legally valid cause. If either party materially breaches any term of this Agreement and
fails to cure such breach within thirty (30) days after notice by the non -breaching party
(ten (10) days in the case of non-payment), the non -breaching party may terminate this
Agreement. Additionally, Customer may terminate this Agreement, upon providing at
least ninety (90) days notice prior to the annual anniversary date of the Agreement
("Anniversary Date") upon the occurrence of an Event of Nonappropriation as defined
below. An "Event of Nonappropriation" occurs when prior to each Anniversary Date: a)
Customer uses all efforts that are lawful and within Customer's official power, to secure
the appropriate funds for the next year's Fees, including indicating the Software Services
serve an essential purpose to Customer; and b) Customer has not acquired, used or
issued a proposal for similar products or services during this period or has not hired any
third party or allowed its own employees to use other services in place of the Software
Services. Customer shall permit OpenGov to assist with the efforts in a) above, including
providing OpenGov with direct access to Customer's applicable appropriations team.
7.4 Effect of Termination.
Agreement No. 6542
(a) In General. Upon termination pursuant to Section 7.3 or expiration of this
Agreement pursuant to Section 7.1: (a) Customer shall pay in full for all Software
Services and Professional Services performed up to and including the effective date
of termination or expiration, (b) all Software Services provided to Customer hereunder
shall immediately terminate; and (c) each party shall return to the other party or, at the
other party's option, destroy all Confidential Information of the other party in its
possession.
(b) Deletion of Customer Data. Unless otherwise requested pursuant to this Section
7.4(b), upon the expiration or termination of this Agreement the Customer Data,
excluding any Insights, shall be deleted pursuant to OpenGov's standard data deletion
and retention practices. Upon written request, Customer may request deletion of
Customer Data, excluding any Insights, prior to the date of termination or expiration
of this Agreement. Such request must be addressed to "OpenGov Vice President,
Customer Success" at OpenGov's address for notice described at Section 10.
7.5 Survival. The following sections of this Agreement shall survive termination: Section
5 (Confidentiality), Section 6 (Payment of Fees), Section 7.4(b) (Deletion of Customer
Data), Section 8.3 (Warranty Disclaimer), Section 9 (Limitation of Liability) and Section
10 (Miscellaneous).
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
r- r
(a) general Warranty. OpenGov represents and warrants that: (i) it has all right and
authority necessary to enter into and perform this Agreement; and (ii) the Professional
Services, if any, will be performed in a professional and workmanlike manner in
accordance with the related statement of work and generally prevailing industry
standards. For any breach of the Professional Services warranty, Customer's
exclusive remedy and OpenGov's entire liability will be the re -performance of the
applicable services. If OpenGov is unable to re -perform all such work as warranted,
Customer will be entitled to recover all fees paid to OpenGov for the deficient work.
Customer must make any claim under the foregoing warranty to OpenGov in writing
within ninety (90) days of performance of such work in order to receive such warranty
remedies.
(b) Software Services WaE2nty. OpenGov further represents and warrants that for a
period of ninety (90) days, the Software Services will perform in all material respects
in accordance with the Documentation. The foregoing warranty does not apply to any
Software Services that have been used in a manner other than as set forth in the
Documentation and authorized under this Agreement. OpenGov does not warrant that
the Software Services will be uninterrupted or error -free. Any claim submitted under
this Section 8.1(b) must be submitted in writing to OpenGov during the Term.
OpenGov's entire liability for any breach of the foregoing warranty is to repair or
Agreement No. 6542
replace any nonconforming Software Services so that the affected portion of the
Software Services operates as warranted or, if OpenGov is unable to do so, terminate
the license for such Software Services and refund the pre -paid, unused portion of the
Fee for such Software Services.
8.2 By Customer. Customer represents and warrants that (i) it has all right and authority
necessary to enter into and perform this Agreement; and (ii) OpenGov's use of the
Customer Data pursuant to this Agreement will not infringe, violate or misappropriate the
Intellectual Property Rights of any third party.
8.3 Disclaimer. OPENGOV DOES NOT WARRANT THAT THE SOFTWARE SERVICES
WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY
WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE
SOFTWARE SERVICES. EXCEPT AS SET FORTH IN THIS SECTION 8, THE
SOFTWARE SERVICES ARE PROVIDED "AS IS" AND OPENGOV DISCLAIMS ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A
PARTICULAR PURPOSE, AND NON -INFRINGEMENT.
9. LIMITATION OF LIABILITY
9.1 By Type. NEITHER PARTY, NOR ITS SUPPLIERS, OFFICERS, AFFILIATES,
REPRESENTATIVES, CONTRACTORS OR EMPLOYEES, SHALL BE RESPONSIBLE
OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY:
(A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OF
DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR
LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, PUNITIVE,
INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY
MATTER BEYOND SUCH PARTY'S REASONABLE CONTROL, EVEN IF SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
9.2 By Amount. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE, CUMULATIVE
LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO OPENGOV (OR, IN THE
CASE OF CUSTOMER, PAYABLE) FOR THE SOFTWARE SERVICES UNDER THIS
AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE
9.3 Limitation of Liability Exclusions. The limitations of liability set forth in Sections 9.1
and 9.2 above do not apply to, and each party accepts liability to the other for: (a) claims
based on either party's intentional breach of its obligations set forth in Section 5
(Confidentiality), (b) claims arising out of fraud or willful misconduct by either party and
(c) either party's unauthorized use, distribution, or disclosure of the other party's
intellectual property.
Agreement No. 6542
9.4 No Limitation of Liability by Law. Because some jurisdictions do not allow liability or
damages to be limited to the extent set forth above, some of the above limitations may
not apply to Customer.
10. MISCELLANEOUS
10.1 Lugo Use. OpenGov shall have the right to use and display Customer's logos and
trade names for marketing and promotional purposes in connection with OpenGov's
website and marketing materials, subject to Customer's trademark usage guidelines
provided to OpenGov.
10.2 Notice. Ordinary day-to-day operational communications may be conducted by
email, live chat or telephone communications. However, for notices, including legal
notices, required by the Agreement (in Sections where the word "notice" appears) the
parties must communicate more formally in a writing given by personal delivery, by pre-
paid first-class mail or by overnight courier to the address specified in the most recent
Order Form (or such other address as may be specified in writing in accordance with this
Section).
10.3 Anti -corruption. OpenGov has not offered or provided any bribe, kickback, illegal or
improper payment, gift, or thing of value to any Customer personnel in connection with
the Agreement, other than reasonable gifts and entertainment provided Customer in the
ordinary course of business. If OpenGov become aware of any violation of the above
restriction then OpenGov shall promptly notify Customer.
10.4 Injunctive Relief. The parties acknowledge that any breach of the confidentiality
provisions or the unauthorized use of a party's intellectual property may result in serious
and irreparable injury to the aggrieved party for which damages may not adequately
compensate the aggrieved party. The parties agree, therefore, that, in addition to any
other remedy that the aggrieved party may have, it shall be entitled to seek equitable
injunctive relief without being required to post a bond or other surety or to prove either
actual damages or that damages would be an inadequate remedy.
10.5 Force Maieure. Neither party shall be held responsible or liable for any losses arising
out of any delay or failure in performance of any part of this Agreement, other than
payment obligations, due to any act of god, act of governmental authority, or due to war,
riot, labor difficulty, failure of performance by any third -party service, utilities, or equipment
provider, or any other cause beyond the reasonable control of the party delayed or
prevented from performing.
10.6 Severabi'lity Waiver. If any provision of this Agreement is found to be unenforceable
or invalid, that provision will be limited or eliminated to the minimum extent necessary so
that this Agreement will otherwise remain in full force and effect and enforceable. Any
express waiver or failure to exercise promptly any right under this Agreement will not
create a continuing waiver or any expectation of non -enforcement. There are no third -
party beneficiaries to this Agreement.
Agreement No. 6542
10.7 Assignment. Except as set forth in this Section, neither party shall assign, delegate,
or otherwise transfer this Agreement or any of its rights or obligations to a third party
without the other party's prior written consent, which consent shall not be unreasonably
withheld, conditioned, or delayed. Either party may assign, without such consent but upon
written notice, its rights and obligations under this Agreement to: (i) its corporate affiliate;
or (ii) any entity that acquires all or substantially all of its capital stock or its assets related
to this Agreement, through purchase, merger, consolidation, or otherwise. Any other
attempted assignment shall be void. This Agreement shall inure to the benefit of and bind
each party's permitted assigns and successors.
10.8 Independent Contractors. No agency, partnership, joint venture, or employment is
created as a result of this Agreement and neither party has any authority of any kind to
bind the other party in any respect.
10.9 Attorneys' Fees. In any action or proceeding to enforce rights under this Agreement,
the prevailing party will be entitled to recover costs and attorneys' fees.
10.10 Governing Law and Jurisdiction. This Agreement shall be governed by the laws of
the State of California without regard to its conflict of laws provisions. Exclusive
jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection
with this Agreement shall be only in the Federal or State court with competent jurisdiction
located in San Mateo County, California, and the parties hereby submit to the personal
jurisdiction and venue therein.
10.11 Complete Agreement. This Agreement is the complete and exclusive statement of
the mutual understanding of the parties and supersedes and cancels all previous written
and oral agreements, communications, and other understandings relating to the subject
matter of this Agreement. No modification of this Agreement will be binding, unless in
writing and signed by an authorized representative of each party.
Last updated: June 1, 2021
Agreement No. 6542
Exhibit C
Quote Number:
0000-5934
Created On:
1111512022
Order Form Expiration:
11/30/2022
Subscription Start Date:
I111l20227
Subscription End Date:
11/3012025
Prepared BY: Alex Martinez
Email: f p 0 �t r�l t
Contract Term: 36 MondLs
Customer: City ofEl Segundo, CA Contact Name: SiaPoursabahi2n
Bill To/Ship To: 350 Main Street Email:
El Segundo, CA US Phone: 310-524-2339
United States
Billing. Frequency: Annually in Advance
Payment Terms: Net Thirty (30) Days
SOFTWARE SERVICES -
Product / Service Start Date End Date
Citizen Services -1 Service Area
Dashboards eSgn-- Tr envy, Stoyylluild-
,Reporting & Ana4,fics, Public Portal, Papnent Collection,
Open Ybwn Hall, Mulfi-Approwl Workflows-1 SuWco .4rea, 1211/-2022 11130t2025
Inspections, MATI-Assessor Systems, ESPJArcGIS, Flag
Integration, .Accounting & Exporting Autofill Export, Bluebeam
Integration
PROFESSIONAL SERVICES:
Product / Service Start Date
Professional Services Deployment - Prepaid 12JI122022
Billing Table:
Billing Date
Amount Due
December 1. 2022
$49,97000 (Payment 1 Annual Software Fee - Professional Services)
July 1, 2023
S12,70000 (Payment 2 Annual Software Fee)
December 1, 2023
$32,700.00
December 1, 2024
$32,70000
S32,70000
-Annual Subscription Total: See Bilting. Table
Professional Services Total: S29,970.00
Contract -CLEAN
Final Audit Report 2022-11-22
Created: 2022-11-22
By: Michael Allen (mallen@elsegundo.org)
Status: Signed
Transaction ID: CBJCHBCAABAAF1_opXLZY-tQA81SVCZyu2lxvJJmhgsp
"ES_OpenGov - Software Contract —CLEAN" History
Document created by Michael Allen (mallen@elsegundo.org)
2022-11-22 - 9:53:49 PM GMT
C�1 Document emailed to Sean Wani (swani@opengov.com) for signature
2022-11-22 - 9:54:30 PM GMT
Email viewed by Sean Wani (swani@opengov.com)
2022-11-22 - 10:04:07 PM GMT
e Document e-signed by Sean Wani (swani@opengov.com)
Signature Date: 2022-11-22 - 10:29:17 PM GMT - Time Source: server
Agreement completed.
2022-11-22 - 10:29:17 PM GMT