HomeMy WebLinkAbout _ 4.11(d)--Sole Source Contract Agreement with OpenGov � � �' � � �
� � � ' � �' � � ' � ` CITY OF REDDING
REPORT TO THE CITY COUNCIL
MEETING DATE: July 16, 2024 FROM: Michael Webb, Public Works
ITEIVI NO. 4.11(d) Director
***APPROVED BY***
�c a� � �bEi� 'c�r�Cs t7�reetcsr 7.t�r'2t}`?� te�r� , ;� � �:r 7i�1?C}?
mwebb@cityofredding.org btippin@cityofredding.org
SUBJECT: 4.11(d)--Approve a Three-Year Sole Source Contract Agreement with OpenGov
(G5574) for the Public Works Utilities Com uterized Maintenance Mana ement S stem
Recommendation
Approve the sole source contract renewal agreement (C-5574), which includes the Master
Services Agreement and the Order Form, with OpenGov, in a not to exceed amount of
$324,163.98 over a three-year term beginning July 30, 2024, through July 29, 2027, for the
software subscription, maintenance, and support services for the City of Redding Public Works
Utilities.
Fiscal Impact
There are sufficient funds budgeted annually from each of the following City of Redding (City)
Public Works' Divisions: Streets, Storm Drain, Industrial Waste, Wastewater Collections,
Wastewater Treatment, Water Treatment, Water Distribution, and Traffic Signals (Streets).
Proposed Proposed Proposed
OpenGov OMS OpenGov OMS OpenGov OMS
Plus Plus Plus
Division Annual Term 1 Annual Term 2 Annual Term 3
Streets $12,862.21 $13,491.84 $14,166.43
Storm Drain $12,862.22 $13,491.84 $14,166.43
Industrial Waste �1 Z,g62.22 $13,491.84 $14,166.44
Wastewater Collections $12,862.22 $13,491.85 $14,166.44
Wastewater Treatment �12,g62.22 $13,491.85 $14,166.44
Water Treatment $12,862.22 $13,491.85 $14,166.44
Water Distribution $12,862.22 $13,491.84 $14,166.44
Traffic Si als $12,862.21 $13,491.84 $14,166.43
Total: $102,897.74 $107,934.75 $113,331.49
Report to Redding City Council Ju1y 10,2024
Re: 4.12(d)--Sole Source ContractAgreement with OpenGov Page 2
Alternative Action
The City Council may choose not to approve the OpenGov contract and direct staff to solicit
asset management software through the request for proposal (RFP)process. This would allow for
a competitive process; however, it would take staff time and effort to develop and issue the RFP
and select the software. If a company other than OpenGov was chosen, the past 29 years of
historical asset data may be unusable moving forward and a completely new system would need
to be implemented.
Background/Analysis
OpenGov software, previously Cartegraph software, is a database system specifically designed
for the management of municipal infrastructure assets. Cartegraph was purchased by OpenGov
in 2022. The basic software functions include tracking the age and condition of system
inventories; tracking work requests and repairs; scheduling inspections and maintenance;
monitoring and recording information and alarms from treatment, distribution, and collection
facilities throughout the City. All records associated with particular assets or locations are
available to crews in the field and office staff, and information gathered can be entered directly
into the system, and integrated into the City Geographic Information System(GTS).
The City's Street Department began using Cartegraph (now OpenGov) as a pilot in 1995 to track
the City's street sign inventory and schedule replacements. Since that initial pilot, the Storm
Drain, Wastewater, and Water Utilities a11 now use OpenGov on a daily basis. Public Works
utilities updated their Cartegraph Navigator software to the Cartegraph Operations Management
System (OMS) software in 2019 due to N�avigator being phased out and no longer being
supported into the future. OpenGov has now released the newest version of the software, OMS
Plus, which the City is currently using.
Staff is pleased with the OMS P1us software and its functionality. The updated OMS Plus
software has been more user friendly, and a proven mobile device and GIS integrated system.
OpenGov 01VIS Plus provides the City with the capabilities to more efficiently and effectively
manage the 2,200 miles of pipeline, four treatment plants, 39 wells, lift and pump stations,
62,000 service connections, 420 miles of road, 100 traffic signals and flashers, and 11,000 street
signs. By sole sourcing to OpenGov, the City is simply renewing its relationship with OpenGov
and all historical asset data and information can continue to be accessed with no disruption in
service or additional training.
This contract agreement, including the Master Services Agreement and Order Form, have been
approved to form by the City Attorney.
Environmental Review
This action, contract agreement for software, is not a project as defined by the California
Environmental Quality Act. No fiirther action is required.
Report to Redding City Council Ju1y 10,2024
Re: 4.12(d)--Sole Source ContractAgreement with OpenGov Page 3
Council Priority/City Manager Goals
• Government of the 215� Century — `Be relevant and proactive to the opportunities and
challenges of today's residents and workforce. Anticipate the future to make better
decisions today."
Attachments
^City of Redding, CA_OpenGov_Order Form+MSA_2024JUN28
DocuSign Envelope ID:4D71972D-6C8C-4798-ACAA-5CED51673568
OpenGov Inc.
660 3rd Street,Suite]00
Sao Francisco,CA 94707
� United States
Order rorm N�mber: OU-OOCA58796
Created On: 4/23/20?A Prepared By: Senny Russell
Order rorm Expirarion: 7/14/202A Cmait: jrusselL@opengov.com
Subscription Stark Date: 7/7 5/20?A Contraet Term: Prorated+36 Months
Subscription End Date: 7/29/2027
Customer: Cify of Redding CA Contact Name: Ryan Baitey
Bill TolShip To: PO Box 496091 EmaiL• rbaitey@cityohedding.org
Redding,CaLifornia 9600t
United Sfates
a , a
13illfng Rrequency: Annually in Advance
Payment'Cerms:Net Thirty(30)Days
SOFTWARE SERVICES:
3'roduct f Service Statt T3are ��.:End Date Annual Fee�:.
AssetBtiiilder }��aCfG6,V.'P�,�3`4(Y.1Z,E4:,°ti�"C8"%t3a�S"8,0i8T'Y➢h"CT=: 7lIS/2024 7/29/2024 $]0274
Enter�rise AsseE Management
OMSPIus,AsseaBuiCder;FaeilifresDomain,SanifarySewerpomain,Signa7Domain, �(30/2024 7/29/2025 �102,795.00
Stormwater'Domqin,7�ransportation Domain,Wasxewater Treahnent Plan!Domain,
Water D'zstrtbutian Domain,OMS User(100 Users)
Enterprise AsseE Manegement
OMSPIus,AsseaBuiCder;FacilikesDomaira,SanitarySewerpomain,Signa7Domain, 9/30/2025 7/29/2025 �5107,93495
Stormwaker pomain,Tr�¢nsportation Domain,Waszewake��Treamzenk Plant Domain,
Wa[er Dislrlhution Doenain,OMS Oser(100 Users)
�nteiprise Asset Management
OMS Plus,Asset Builder,Faeilities Domain,Sani[ary Server poninin,Sigr�nl Doniain, 9/30/2026 729/2027 �113,337.49
SKosmwaKer pomain,7tan.sportation Domaln,Wastewates TreakmexK Plant Uomain,
Waker Dzst�ibutian Domazn,OMS User(100 Users)
Annual Subscripfion Totat: See Serviee Terms
Serivice Term.s
Service Date: � Amount. � � � �
Joly]5,202A $102.74 (P��orated ta Align to 7/30 Star[Date)
7uly 3Q 2024 $102,795.00
July 30,2025 $107,934.75
Joly 30,2026 S l l 3,331.49
�
This Ord�r Form ineorporates the OpenGov Master Services Agreement("MSA")attached he��e or availabte atlittps://opengov.com/terms-of-seroice/masterse�viees-agreement/.
'1'he"AgreemenY'be4ween OpenGov and the entify idenrified above(°Qistomer")sonsisfs of tl�e Order Forni,MSA,aud,if Professionel Services are pnrchased,the Statement of Work Untess otherwise specified above,fees for the
SoTtwue Services and Professionat Services shatt be due and payable,in advance,30 days from receipt of tlie invoice.
By signing this Agreement,Customer acknowledges that it has reviewed,and agrees to be legx(Iy boiwcl by fhe r�greement.Each party's aceeptance of this Agreement is conditionai npou fhe other's acceptance of the Ageement Eo the
exclusion of all other terms.
Ciry of Redding,CA OpenGov,In• pa��gjg����y�
Signaturc: Signattvc: C� r���
J
Namc: Name:Sam � ���
7'iHe: `title:
SVP, Finance
�a� �at� 7/1./2024
DocuSign Envelope ID:4D71972D-6C8C-4798-ACAA-5CED51673568
OpenGov Master Services Agreement
ThepartiestothisMasterServicesAgreement(this"Agreement")areOpenGov,Inc.,aDelaware
corporation("OpenGoW'),and the customer named in the signature block below("Customer').This
Agreement,which becomes binding when the parties have signed it(the"Effective Date"),sets forth
the terms underwhich Customerwill be permitted to use OpenGov's hosted software services and
receive professional services.
1. Definitions
1.1. "Customer Data" means data that is provided by Customer to OpenGov pursuant to this
Agreement(for example, by email or through Customers software systems of record).
Customer Data does not include any confidential personally identifiable information.
1.2. "Documentation" means materials produced by OpenGov that provide information about
OpenGov's software products and systems. Customers may access the most up-to-date
Documentation on the Customer Resource Center page at opengov.zendesk.com.
1.3. "Intellectual Property Rights"means all intellectual property rights including all past,
present,and future rights associated with works of authorship, including exclusive
exploitationrights,copyrights,andmoralrights,trademarkandtradenamerightsand
similar rights,trade secret rights, patent rights,and any other proprietary rights in
intellectual property of every kind and nature.
1.4, "OrderForm"meansthedocumentexecutedbythepartiesthatspecifiestheSoftware
Services that OpenGov will provide to Customer under this Agreement.
1.5. "Term"referstothelnitialTermdefinedinSection6.lplusallRenewalTermsdefinedin
Section 6.2.
2. Software Services, Support, and Professional Services
2.1. SoftwareServices.SubjecttothetermsandconditionsofthisAgreement,OpenGovwill
use commercially reasonable efforts to provide the commercial off-the-shelf software
solutions identified in the applicable Order Form("Software Services").
2.2. Support and 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 anytime.However,OpenGov will address issues during
business hours. OpenGov will provide support forthe Software Services in accordance
with the Support and Software Service Levels found at opengov.com/service-sla, as
long as Customer is entitled to receive support underthe applicable Order Form and this
Agreement.
2.3. Professional Services
2.3.1, If OpenGov or its authorized independent contractors provides professional services
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C7penGov P�as�er Services Agreement City ofi Redding,CA-Revised June 27,2024
DocuSign Envelope ID:4D71972D-6C8C-4798-ACAA-5CED51673568
to Customer, such as implementation services, then these professional services
("ProfessionalServices")willbedescribedinanapplicablestatementofwork("SOW")
agreed to by the parties. Unless otherwise specified in the SOW,any pre-paid
Professional Services must be utilized within one year from the Effective Date.
2.3.2, RelevanttravelexpensesareprovidedintheSOW.Anyothertravelexpensesrelatedto
the performance of the Professional Services shall be pre-approved by and
reimbursed by Customer.
3. Restrictions and Responsibilities
3.1. Restrictions.Customer may not use the Software Services in any manner or for any
purpose otherthan as expressly permitted bythe Agreement and Documentation.In
addition,Customershallnot,andshallnotpermitorenableanythirdpartyto:(a)useor
access any of the Software Services to build a competitive product or service;(b)modify,
disassemble,decompile,reverseengineerorotherwisemakeanyderivativeuse ofthe
Software Services(except to the extent applicable laws specifically prohibit such
restriction);(c)sell,license,rent,lease,assign,distribute,display,host,disclose,
outsource,copyorotherwise commerciallyexploitthe Software Services;(d)perform or
discloseanybenchmarkingorperformancetestingoftheSoftwareServices;(e)remove
any proprietary notices included with the Software Services;(f)use the Software
Services in violation of applicable law;or(g)transferany confidential personally
identifiable information to OpenGov or the Software Services platform.
3.2, Responsibilities. Customer shall be responsible for obtaining and maintaining
computers and third party software systems of record(such as Customer's ERP
systems)neededtoconnectto,accessorotherwise usetheSoftwareServices.
Customeralsoshaliberesponsiblefor:(a)ensuringthatsuchequipmentiscompatible
with the Software Services,(b)maintaining the security of such equipment,user
accounts,passwordsandfiles,and(c)all usesofCustomeruseraccountsbyanyparty
otherthan OpenGov.
4, Intellectual Property Rights; License Grants; Access to Customer Data
4.1, Software Services.OpenGov owns all interests and Intellectual Property Rights in the
Software Services.The look and feel of the Software Services, including any custom
fonts,graphicsand button icons,are the property of OpenGov.Customer may not copy,
imitate,orusethem,in whole or in part,without OpenGov's priorwritten consent. Subject
to Customer's obligations underthis Agreement,OpenGov grants Customera non-
exclusive, royalty-free license during the Term to use the Software Services.
4,2. CustomerData.CustomerDataandthelntellectualPropertyRightsthereinbelongtothe
Customer.CustomergrantsOpenGovanditspartners(suchashostingproviders)anon-
exclusive,royalty-free license to use,store,edit,and reformat the Customer Data for the
purpose of providing the Software Services.Customerfurtheragrees that OpenGov and
its partners may use aggregated,anonymized Customer Data for purposes of sales,
marketing, business development, product enhancement, customer service,and data
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Qpen�ov Mas�er Services Agreement City of Redd3ng,CR-Revised June 27,2024
DocuSign Envelope ID:4D71972D-6C8C-4798-ACAA-5CED51673568
analysis.Insights gleaned from aggregated,anonymized Customer Data will belong to
OpenGov.
4.3. Access to Customer Data.Customer may download the Customer Data from the
Software Services at anytime during the Term,excluding during routine software
maintenanceperiods.OpenGovhasnoobligationtoreturnCustomerDatatoCustomer.
4.4. Deletion of Customer Data. Unless otherwise requested pursuant to this Section 4.4,
upontheterminationofthisAgreement,theCustomerDatashallbedeletedpursuantto
OpenGov's standard data deletion and retention practices. Upon written request,
Customer may request deletion of Customer Data priorto the date of termi nation of this
Agreement.Such a request must be addressed to"OpenGovVice President,Customer
Success"at OpenGov's address for notice in Section 10.2.
4.5. Feedback."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 communityforums.
Customergrants OpenGova non-exclusive,royalty-free,irrevocable, perpetual,
worldwide license to use and incorporate into the Software Services and
DocumentationCustomer'sFeedback.OpenGovwillexclusivelyownanyimprovements or
modificationstotheSoftwareServicesandDocumentationbasedonorderivedfrom any
of Customer's Feedback including all Intellectual Property Rights in and to the
improvements and modifications.
5. Confidentiality
5.1. "Confidential Infarmation"means all confidential business,technical,and financial
information of the disclosing partythat is marked as"Confidential"oran equivalent
designationorthatshouldreasonablybeunderstoodtobeconfidentialgiventhenature of
the information and/or the circumstances surrounding the disclosure.OpenGov's
Confidential Information includes,without limitation,the software underlying the
Software Services, and all Documentation.
5.2, Confidential Information does not include:(a)data thatthe Customerhas previously
releasedtothepublic;(b)datathatCustomerwouldberequiredtoreleasetothepublic
uponrequestunderapplicablefederal,state,orlocalpublicrecordslaws;(c)Customer
Data that Customer requests OpenGov make available to the public i n conjunction with
theSoftwareServices;(d)informationthatbecomespubliclyknownthroughnobreach by
eitherparty;(e)informationthatwasrightfullyreceivedbyapartyfromathird party
without restriction on use ordisclosure;or(f)information independentlydeveloped by
the Receiving Party without access to the Disclosing Party's Confidential Information.
5.3. Each party agrees to obtain prior written consent before disclosing any of the other
party's Confidential Information.Each partyfurtheragrees to use the other's
Confidential Information only in connection with this Agreement. Each party further
agreesto protecttheotherparty'sConfidential Information usingthe measuresthat it
employswith respect to its own Confidential Information of a similar nature,but in no
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C7pen�ov Nlaster Serviees Agreen7ent City ofi Redding,CA-Revised June 27,2024
DocuSign Envelope ID:4D71972D-6C8C-4798-ACAA-5CED51673568
event with less than reasonable care.If a party is required to disclose Confidential
Informationbylaworcourtorder,theymustnotifytheotherpartyinwritingbefore making
the disclosure to give the other partyan opportunityto oppose or limit the disclosure.
6. Term and Termination
6.1. InitialTerm.ThisAgreementbeginsontheEffectiveDateandendsonthedatethe
subscriptionends("InitialTerm"),accordingtothe0rderForm,unlesssooner
terminatedpursuanttoSection6.3.
6.2. Renewal.This Agreement shall automatically renew for another period of the same
durationasthelnitialTerm(eachoneisanew"RenewalTerm")unlesseitherparty notifies
theotherpartyofitsintentnottorenewthisAgreementinwritingnolessthan 30 days
before the end of the then-current term.
6.3. Termination.IfeitherpartymateriallybreachesanytermofthisAgreementandfailsto
cure such breach within 30 days after receiving written notice by the non-breaching
party(10daysinthecaseofnon-payment),thenon-breaching partymayterminatethis
Agreement.Neitherpartyshall havethe righttoterminatethisAgreement earlywithout a
legally valid cause.
6.4. EffectofTermination.UponterminationofthisAgreementpursuanttoSection6.1,6.2, or
6.3:(a)Customershall pay in full forall Software Services and Professional Services
performeduptoandincludingthedateofterminationorexpiration,(b)OpenGovshall
stop providing Software Services and Professional Services to Customer;and(c)each
partyshall(attheotherparty'soption)returnordeleteanyoftheotherparty's
Confidential Information in its possession.
7, Payment of Fees
7,1. Fees;Invoicing;Payment;Expenses.
7,1.1. Fees. Fees for Software Services and for Professional Services are set forth in the
applicable Order Form,and OpenGovwill invoice Customeraccordingly.Customer
agreestopayinvoiceswithin30dayswithoutsetoffs,withholdingsordeductionsof
any kind.I nvoices are deemed received when OpenGov emails them to Customer's
designated billing contact.Obligations to pay fees are non-cancelable,and
payments are non-refundable.
7,�.2, AnnualSoftwareMaintenancePriceAdjustment.OpenGovshallincreasethefeesfor
the Software Services during any Renewal Term by 5%each year of the Renewal Term.
7.�.3. Travel Expenses.OpenGovwill invoice Customerfortravel expenses provided inthe
SOWastheyareincurred.Customershallpayallsuchvalidinvoiceswithin30daysof
receipt of invoice. Each invoice shall include receipts for the travel expenses listed
on the invoice.
7,1,4. Customer Delays;On Hold Fee.
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C}pen�ov Mas�er Services Agreement City ofi Redding,CA-Revised June 27,2024
DocuSign Envelope ID:4D71972D-6C8C-4798-ACAA-5CED51673568
7.1,4.1. On Hold.Excluding delays caused by a force majeure event 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 may place the Professional Services on hold.If
OpenGov places a Customeron hold,OpenGovwill ensure that Customer is made
aware of its obligations necessary for OpenGov to continue performing the
Professional Services.Upon placing a customeron hold,OpenGov may,without
penalty, suspend Professional Services to the Customer and reallocate
resourcesuntiltheCustomerhasfulfilled itsobligations.OpenGovshall bearno
liabilityorotherwiseberesponsiblefordelaysintheprovisionofthe Professional
Services occasioned by Customer's failure to complete Customer's
responsibilities.
7.1.4.2. On Hold Notice;On Hold Fee.OpenGovmayalso issuean"On Hold Notice"specifying
that the Customer will 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 providersand human
resourcesidle)forafeeequaltol0%ofthefirstyearsfee forSoftwareServices.
OpenGovmayremovetheon hold statusand mayrescind the fee in its discretion
upon Customer's fulfillment of its obligations set out in the On Hold Notice.And
OpenGov may extend the timeline to complete certain Professional Services
depending on the availability of qualified team resources(OpenGovcannot
guaranteethattheseteam resourceswill bethe sameasthose who were working
on the project priorto it being placed On Hold).
7.2. ConsequencesofNon-Payment.IfCustomerfailstomakeanypaymentsrequiredunder
any0rderFormorSOW,theninadditiontoanyotherrightsOpenGovmayhaveunderthis
Agreementorapplicablelaw,(a)Customerwillowelateinterestpenaltyof1.5%of the
outstandingbalancepermonth,orthemaximumratepermittedbylaw,whicheveris lower
and(b)If Customer'saccount remainsdelinquent(with respectto payment of a valid
invoice)for30daysafterreceiptofadelinquencynoticefromOpenGov,whichmay be
provided via email to Customer's designated billing contact,OpenGov may temporarily
suspend Customer's access to the Software Service for up to 90 days to pursue good
faith negotiations before pursuing termination in accordance with Section
6.3.Customerwillcontinuetoincurandoweallapplicablefeesirrespectiveofanysuch
Service suspension based on such Customer delinquency.
7.3. Taxes.AllfeesunderthisAgreementareexclusiveofanyapplicablesales,value-added,
useorothertaxes("SalesTaxes").Customerissolelyresponsibleforanyandall Sales
Taxes,notincludingtaxesbasedsolelyonOpenGov'snetincome.IfanySalesTaxes
related to the fees under this Agreement are found at any time to be payable,the amount
maybe billed byOpenGovto,and shall be paid by,Customer.If Customerfailsto payany
SalesTaxes,thenCustomerwillbeliableforanyrelatedpenaltiesorinterest, andwill
indemnifyOpenGovforanyliabilityorexpenseincurredinconnectionwithsuch Sales
Taxes.Intheevent Customerorthetransactionscontemplated bytheAgreement
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�penGov Master Services�lgreemenfi City c�f�edd'sng,CA-Revised June 27,2024
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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.
8. Representations and Warranties; Disclaimer
8.1. ByOpenGov.
8.1,1. GeneralWarranty.OpenGovrepresentsandwarrantsthatithasallrightand
authority necessary to enter into and perform this Agreement.
8.1,2, ProfessionalServicesWarranty.OpenGovfurtherrepresentsandwarrantsthatthe
Professional Services, if any,will be performed in a professional and workmanlike
manner in accordance with the related SOW 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 such work as warranted,
Customerwill be entitled to recoverall fees paid to OpenGovforthe deficient work.
Customer must give written notice of any claim under this warranty to OpenGov
within 90 days of performance of such work to receive such warranty remedies.
8,1.3. Software Services Warranty.OpenGov further represents and warrants that for a
period of 90 days after the Effective Date,the Software Services will perform in all
material respects in accordance with the Documentation.The foregoing warranty
doesnotapplytoanySoftwareServicesthathavebeenusedinamannerotherthan as
set forth in the Documentation and authorized underthis Agreement.OpenGov does
not warrant that the Software Services will be uninterrupted or error-free. Customer
mustgivewrittennoticeofanyclaimunderthiswarrantytoOpenGov duringthe
Term.OpenGov'sentireliabilityforanybreachoftheforegoingwarranty isto repairor
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.
8,1.4, Non-Infringement Warranty. OpenGov represents and warrants to the best of its
knowledge and belief that the Software Services and the Documentation,when
properly used as contemplated herein, will not infringe or misappropriate any third-
party Intellectual Property Rights.
8.2. ByCustomer.Customerrepresentsandwarrantsthat(a)ithasallrightandauthority
necessarytoenterintoandperformthisAgreement;and(b)OpenGov'suseofthe
CustomerDatapursuanttothisAgreementwillnotinfringe,violateormisappropriate
the Intellectual Property Rights of any third party.
8.3. Disclaimer.OPENGOVDOESNOTWARRANTTNATTNESOFTWARESERVICESWILLBE
UNINTERRUPTEDORERRORFREE;NORDOESITMAKEANYWARRANTYASTOTNE
RESULTSTHATMAYBEOBTAINED FROM USEOFTHESOFTWARESERVICES.EXCEPT AS
SETFORTHINTHISSECTION8,THESOFTWARESERVICESAREPROVIDED"ASIS"AND
OPENGOVDISCLAIMSALLOTHERWARRANTIES,EXPRESSORIMPLIED, INCLUDING,
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�penGov Master Services Agreement City c�f�edding,C�-Revised June 27,2024
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BUTNOTLIMITEDTO,IMPLIEDWARRANTIESOFMERCHANTABI�ITY,TITLE,FITNESS
FORA PARTICULAR PURPOSE,.
9. Limitation of Liability
9.1. ByType.NEITNERPARTY,NOR ITSSUPPLIERS,OFFICERS,AFFILIATES,
REPRESENTATIVES, CONTRACTORS OR EMPLOYEES, SHALL BE RESPONSIBLE OR
LIABLEWITH RESPECTTOANYSUBJECTMATTEROFTHISAGREEMENTUNDERANY
CONTRACT,NEGLIGENCE,STRICTLIABILITY,OROTHERTHEORY:(A)FORERROROR
INTERRUPTION OFUSEOR FOR LOSSOR INACCURACYOFDATAORCOSTOF
PROCUREMENTOFSUBSTITUTEGOODSORSERVICESORLOSSOFBUSINESS;(B)FOR ANY
INDIRECT,EXEMP�ARY,PUNITIVE,INCIDENTAL,SPECIAL,OR CONSEQUENTIAL
DAMAGES;OR(C)FORANYMATTERBEYONDAPARTY'SREASONABLECONTRO�,EVEN IF
SUCHPARTYHASBEENADVISEDOFTHEPOSSIBILITYOFSUCHLOSSORDAMAGE.
9.2. ByAmount.INNOEVENTSHALLEITNERPARTY'SAGGREGATE,CUMULATIVELIABILITY
FORANYC�AIMSARISINGOUTOFORINANYWAYRELATEDTOTNISAGREEMENT EXCEED
THEFEESPAIDBYCUSTOMERTOOPENGOVFORTHESOFTWARESERVICES UNDERTHIS
AGREEMENTINTHEI2MONTNSPRIORTOTHEACTTHATGAVERISETO THELIABILITY.
9.3. LimitationofLiabilityExclusions.ThelimitationsofliabilitysetforthinSections9.land
9.4. 9.2 above do not applyto,and each party accepts liabilityto the otherfor:(a)
claims based on either party's intentional breach of its obiigations set forth in
Section 5(Confidentiality),(b)claimsarisingoutoffraudorwillfulmisconductor
gross negiigence by either party,(c)either party s infringement of the other party's
Intellectual Property Rights; and(d)OpenGov obligation to defend and indemnify
the Indemnified Parties pursuant to section 10.12NoLimitationofLiabilityby�aw.
Becausesomejurisdictionsdonotallowliabilityordamagestobelimitedtotheextent
setforthabove,someoftheabovelimitationsmay not applyto Customer.
10. Miscellaneous
10.1. LogoUse.OpenGovshallhavetherighttouseanddisplayCustomer'slogosandtrade
namesformarketingandpromotionalpurposesinOpenGov'swebsiteandmarketing
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 ortelephone.However,for notices,including legal notices,required bythe
Agreement(insectionswheretheword"notice"appears)thepartiesmustcommunicate
more formally in a writing sent via USPS certified mail and via email.OpenGov's addresses
fornoticeare:OpenGov,Inc.,6525CrownBlvd#41340,SanJose,CA95160, and
legal@opengov.com.
10.3. Anti-corruption.Neither OpenGov nor any of its employees or agents has offered or
provided any illegal or improper payment,gift,ortransferof value in connection with this
Agreement.Thepartieswillpromptlynotifyeachotheriftheybecomeawareofany
violation of any applicable anti-corruption laws in connection with this Agreement.
10.4. Injunctive Relief.The parties acknowledge that any breach of the confidentiality
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provisionsortheunauthorizeduseofaparty'sintellectual propertymayresultinserious
and irreparable injuryto the aggrieved partyforwhich 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
injunctivereliefwithoutbeing requiredtopostabond orothersuretyortoproveeither
actual damages or that damages would be an inadequate remedy.
10.5. ForceMajeure.Neitherpartyshallbeheldresponsibleorliableforanylossesarisingoutof
anydelayorfailure in performance ofany part ofthisAgreement,otherthan payment
obligations,due to anyact of god,act of governmental authority,ordue to war,riot, labor
difficulty,failureofperformancebyanythird-partyservice,utilities,orequipment
provider,orany other cause beyond the reasonable control of the party delayed or
prevented from performing.
10.6. Severability;Waiver.IfanyprovisionofthisAgreementisfoundtobeunenforceableor
invalid,thatprovisionwillbelimitedoreliminatedtotheminimumextentnecessaryso
that this Agreement will otherwise remain in full force and effect and enforceable.Any
expresswaiverorfailureto exercise promptlyanyright underthisAgreementwill not
create a continuing waiver or any expectation of non-enforcement.
10.7, Survival.ThefollowingsectionsofthisAgreementshallsurvivetermination:Section5.
(Confidentiality),Section 7(Payment of Fees),Section 4.4(Deletion of Customer Data),
Section 8.3(Warranty Disclaimer),Section 9(Limitation of�iability)and Section 10
(Miscellaneous).
10.8. Assignment.There are no third-party beneficiaries to this Agreement. Except as set
forth in this Section 10.8,neither party may assign,delegate,or otherwise transfer this
Agreement or any of its rights or obligations to a third partywithout the other party's
written consent,which consent may not be unreasonably withheld,conditioned,or
delayed. Either party may assign,without such consent but upon written notice,its rights
andobligationsunderthisAgreementtoitscorporateaffiliateortoanyentitythat
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 will benefit and bind permitted assigns and successors.
10.9. IndependentContractors.ThisAgreementdoesnotcreateanagency,partnership,joint
venture,oremploymentrelationship,andneitherpartyhasanyauthoritytobindthe
other.
10.10. GoverningLawandJurisdiction.CalifornialawsgovernthisAgreement,withoutregard
to conflict of laws principles. Exclusivejurisdiction for litigation of any dispute,
controversyorclaimarisingoutoforinconnectionwiththisAgreementshallbeonlyin
the Federal or State court with competentjurisdiction located in San Mateo County,
California,and the parties submit to the personaljurisdiction and venue therein.
10.11. Complete Agreement.OpenGov has made no other promises or representations to
Customer other than those contained in this Agreement.Any modification to this
Agreement must be i n writi ng and sig ned by an authorized representative of each party.
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10.12. Indemnity.OpenGovwill defend,hold harmlessand indemnifyCustomer,itselected
officials,employees,officers,volunteers,contractors,and agents("Indemnified Parties")
fromanyinfringementclaimandindemnifyanylossarisingoutofan infringementclaim
(provided that with respect to patents,such claimsare limited to US patents)as set forth in
the following paragraphs:
(a) IfOpenGovdeterminesthataninfringementclaimisvalid,IndemnifiedParties
may,atitsexpense,either(i)obtainrightsforindemnifiedPartiestocontinueusing
OpenGovofferingsor(ii)modifytheOpenGovofferingswhilemaintaining
substantiallysimilarfunctionality.If neitheralternative iscommerciallyreasonable,
OpenGovmayterminate Indemnified PartiesrighttouseOpenGovofferingsandwill
refund any applicable services fees and unused portion of fees paid for term
licenses, subscriptions and maintenance on a pro rata basis.
(b) OpenGov has no obligation to defend an infringement claim orto indemnify
Indemnified Parties to the extent the infringement claim arises out of(i)the
combinationorintegrationofOpenGovofferingswithaproduct,process,system,or
element that Contractor has not supplied or specified in its documentation;or(ii)
OpenGovofferings'alterationbyanyoneotherthanOpenGovoritssubcontractors.
(c) IndemnifiedPartiesshall(a)promptlygivenoticeofaclaimtoOpenGov;(b)give
OpenGov sole control of the defense, provided, however,that OpenGov shall not
consent to any settlement or discharge, or consent to the entry of judgement
without prior consent of the Indemnified Parties in writing;and(c)providesto
OpenGovallavailableinformationand reasonableassistance.
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