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CivicPlus LLC; 2024-06-06;
CivicPlus 302 South 4th St. Suite 500 Manhattan, KS 66502 US Client: Carlsbad, CA CA Carlsbad - CivicRec - Statement of Work QTY Product Description PRODUCT TYPE 1 CivicRec Annual Fee Renewable 1 Okta Sign On Annual Fee Renewable 1 CivicRec Dedicated Hosting (Up to 125k-175k annual transactions) Renewable 1 Document Management Module Renewable Annual Recurring Services $74,075.00 1.Agreement. This renewal Statement of Work ("SOW") is between the Carlsbad, CA ) and CivicPlus, LLC and shall be subject to the terms and conditions of the and the MSA Addendum and Addendum) (collectively, the throughout the Term of this SOW. The SOW and Terms and Conditions form the entire agreement between Customer and CivicPlus (collectively, referred to as the The Parties agree the Agreement shall supersede and replace all prior agreements between the Parties. 2.Term. This SOW shall remain in effect for an initial term from January 10, 2024 through January 9, 2026 (the This SOW may be renewed for an additional three twelve-month renewal terms upon mutual agreement by the Parties. The Initial Term and all Renewal Terms are collectively referred to as the 3.Invoicing and Renewal Term Increases. Annual Recurring Services shall be invoiced on the first day of the Initial Term, and January 10 of each subsequent calendar year this Agreement is in effect, and shall be subject to a 0% uplift each Renewal Term. Client will pay all invoices within 30 days of the date of such invoice. Contact Information *all documents must be returned: Master Service Agreement, Statement of Work, and Contact Information Sheet. Organization City of Carlsbad URL carlsbadca.gov Street Address 1635 Faraday Avenue Address 2 City Carlsbad State California Postal Code 92008 CivicPlus provides telephone support for all trained clients from 7am 7pm Central Time, Monday-Friday (excluding holidays). Emergency Support is provided on a 24/7/365 basis for representatives named by the Client. Client is responsible for ensuring CivicPlus has current updates. Emergency Contact & Mobile Phone Devin Castel 442-339-2065 Emergency Contact & Mobile Phone Doug Kappel 442-339-2791 Emergency Contact & Mobile Phone Era Crenshaw - 442-339-2013 Billing Contact Era Crenshaw E-Mail renewals@carlsbadca.gov Phone 442-339-2013 Ext. Fax Billing Address 1635 Faraday Avenue Address 2 City Carlsbad State CA Postal Code 92008 Tax ID # Sales Tax Exempt # Billing Terms Account Rep Info Required on Invoice (PO or Job #) Contract Contact Devin Castel Email devin.castel@carlsbadca.gov Phone 442-339-2065 Ext. Fax Project Contact Era Crenshaw Email era.crenshaw@carlsbadca.gov Phone 442-339-2013 Ext. Fax 1 CivicPlus Master Services Agreement MSA by and between MSA governs the use and provision of any Services purchased by Customer, as described in any signed SOW, and the effective date of this Agreement shall commence on the date of signature of the SOW If a SOW has not been executed, then the Effective Date shall be determined as the start date of implementation of any software solution by CivicPlus for Customer. CivicPlus and Recitals I. WHEREAS, CivicPlus is engaged in the business of developing and providing access to proprietary community engagement and government content, workflow, and general management software II. WHEREAS, Customer wishes to engage CivicPlus for the procurement of the Services and/or receive a license subscription for the ongoing use of the Services, as set forth in the SOW; NOW, THEREFORE, Customer and CivicPlus agree as follows: Agreement Term & Termination 1. This Agreement shall commence on the Effective Date and shall remain in full force and effect for as long as any SOW is in effect between CivicPlus and Customer, or Services are being provided by CivicPlus to Customer, unless terminated in accordance with this §1 or as otherwise provided in this Agreement (the SOW, or at its discretion, effective immediately upon ninety (90) days written notice to the other Party. If the other Party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving notice of such breach, the non-breaching Party may terminate this Agreement. A delinquent Customer account remaining past due for longer than 90 days is a material breach by Customer and is grounds for CivicPlus termination. CivicPlus reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, non-payment. Upon termination for breach, right to access or use Customer Data immediately ceases, and CivicPlus shall have no obligation to maintain or forward any Customer Data. 2. Upon termination of this Agreement or any SOW for any reason, (a) the licenses granted for such relevant SOW by §11 below will terminate and Customer shall cease all use of the CivicPlus Property and Services associated with the terminated SOW and (b) any amounts owed to CivicPlus for work performed prior to termination shall immediately become due in full and payable. If Customer has paid in advance for the Services, and this Agreement terminates for convenience or due to material breach of this Agreement by CivicPlus, CivicPlus shall refund Customer a prorated amount of any amount already paid. Upon termination by Customer for convenience or due to material breach by Customer, , CivicPlus shall be entitled to retain any amounts already paid. Sections 7, 8, 10, 14, 15, 18, 32 -34, 40, and 42 will survive any expiration or termination of this Agreement. 3. At any time during the Term, CivicPlus may, immediately upon notice to Customer, suspend Customer and any of its Users access to any Service due to a threat to the technical security or technical integrity of the Services. 2 Invoicing & Payment Terms 4. Customer will pay the amounts owed to CivicPlus for the development and implementation of the Project subscription and licensing, and annual payment schedule set forth on the applicable SOW. Invoices shall be sent electronically to the individual/entity designated in the contact sheet that is required to be filled out and submitted by Customer ( submission of a signed SOW. Customer will maintain and promptly update the Contact Sheet information -copy invoices for a $5.00 convenience fee to be added to the mailed invoice. 5. Each SOW will state the amount of days from date of invoice payment is due. If the Customer's account exceeds 60 days past due, support will be discontinued until the Customer's account is made current. If the Customer's account exceeds 90 days past due, CivicPlus may suspend in progress Project Development and Annual Recurring Services will be discontinued, and the Customer will no longer have access to the Services until the Customer's account is made current. Customer will be given 15 written notice prior to discontinuation of Services for non-payment. 6. During the performance of Project Development, if Customer requests a change that requires repeated efforts to previously approved work product and such change causes CivicPlus to incur additional expenses (i.e. airline change fees, resource hours, consultant fees, Customer does not show up for scheduled meetings or trainings), Customer agrees to reimburse CivicPlus for such additional expenses. CivicPlus shall notify Customer in writing prior to incurring such expenses and shall only incur those expenses which are approved by Customer. Ownership & Content Responsibility 7. Upon full and complete payment of amounts owed for Project Development under the applicable SOW, Customer will own any website graphic designs, Services content, module content, tion, any elements of text, graphics, images, photos, audio, video, designs, artworks, logos, trademarks, services marks, and other materials or content which Customer provides to CivicPlus for processing, transmission, storage, or inputs into any website, software or module in connection with any Services. Customer Content excludes any content in the public domain and any content owned or licensed by CivicPlus, whether in connection with providing Services or otherwise. 8. Upon completion of the Project Development, Customer will take over the management and control of the Services and Customer will assume full responsibility for Customer Content maintenance and administration. Customer, not CivicPlus, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Content. Customer hereby grants CivicPlus a worldwide, non-exclusive right and license to reproduce, distribute and display the Customer Content as necessary to provide the Services. Customer represents and warrants that Customer owns all Customer Content or that Customer has permission from the rightful owner to use each of the elements of Customer Content and that Customer has all rights necessary for CivicPlus to use the Customer Content in connection with providing the Services. Customer agrees that CivicPlus shall not be responsible or liable for the content of messages created by Customer or by -users who access Service. Notwithstanding the foregoing, CivicPlus retains the right, but not the obligation, to remove any Customer Content that is libelous, harassing, abusive, fraudulent, defamatory, excessively profane, obscene, abusive, hate related, violent, harmful to minors, that advocates racial or ethnic intolerance, intended to advocate or advance computer hacking or cracking, or other material, products or services that violate or encourage conduct that would violate any laws or third-party rights. 3 9. At any time during the term of the applicable SOW, Customer will have the ability to download the Customer Content Customer may request CivicPlus to perform the export of Customer Data and provide the Customer Data to Customer in a commonly used format, at any time, for a fee to be quoted at time of request and approved by Customer. Upon termination of the applicable SOW for any reason, whether or not Customer has retrieved or requested the Customer Data, CivicPlus reserves the right to permanently and definitively delete the Customer Content and Customer Data held in the Services thirty (30) days following termination of the applicable SOW. During the thirty (30) day period following termination of the SOW, regardless of the reason for its termination, Customer will not have access to the Services. 10. Intellectual Property in the software or other original works created by or licensed to CivicPlus, including all software source code, documents, and materials used in performing the Services lus. CivicPlus Property specifically excludes Customer Content. Customer shall not (i) license, sublicense, sell, resell, reproduce, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any CivicPlus Property in any way, except as specifically provided in the applicable SOW; (ii) adapt, alter, modify or make derivative works based upon any CivicPlus Property; (iii) create internet to the CivicPlus Property software or or any CivicPlus Property administrative access on any other server or wireless or internet-based device that may allow third party entities, other than Customer, to use the Services; (iv) reverse engineer, decompile, disassemble or otherwise attempt to obtain the software source code to all or any portion of the Services; (v) make any attempt to gain unauthorized access to to: (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of any CivicPlus Property, or (c) copy any ideas, features, functions or graphics of any CivicPlus Property. The CivicPlus name, the CivicPlus logo, and the product and module names associated with any CivicPlus Property are trademarks of CivicPlus, and no right or license is granted to use them outside of the licenses set forth in this Agreement. 11. Provided Customer complies with the terms and conditions herein, the relevant SOW, and license restrictions set forth in §10, CivicPlus hereby grants Customer a limited, nontransferable, nonexclusive, non-assignable license to access and use the CivicPlus Property associated with any valid and effective SOW, for the term of the respective SOW. The license set forth herein, shall only apply to the extent that Customer is using the Services for legitimate business use as intended by the purpose of the Services and not for the purpose of comparing the Services to a competitor or similar product of CivicPlus. Customer hereby warrants and affirms its purpose in accessing or otherwise using the Services is for their intended purpose only and understands and agrees that any other use shall be considered fraud. 12. All CivicPlus helpful information and provide paper copies of its Documentation. Customer and its Users are granted a limited license to access Documentation as needed. Customer shall not copy, download, distribute, or make derivatives of the Documentation. 13. Customer acknowledges that CivicPlus may continually develop, alter, deliver, and provide to the Customer ongoing innovation to the Services, in the form of new features and functionalities. CivicPlus reserves the right to modify the Services from time to time. Any modifications or improvements to the Services listed on the SOW will be provided to the Customer at no additional charge. In the event that Customer desires these New Services, then Customer will have to pay CivicPlus the appropriate fee for the access to and use of the New Services. CivicPlus shall use its reasonable best efforts to provide workarounds in the event any modification to the Services causes Customer to lose substantial functionality of the Services. If CivicPlus cannot restore substantial functionality of the Services within thirty (30) days, the Customer may terminate this Agreement for its convenience, and notwithstanding Section 2, if Customer terminates for convenience under this Section 13, CivicPlus shall refund a prorated amount of any amount already paid. 4 14. CivicPlus in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by Customer to CivicPlus in connection with its access to and use of the Services (all reports, Customer hereby grants to CivicPlus a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback in the CivicPlus products and services. Indemnification 15. CivicPlus will defend at its expense or settle any third-party claim against Customer alleging that the Services provided under this Agreement infringe intellectual property rights. CivicPlus will pay infringement claim defense costs, CivicPlus negotiated settlement amounts, and damages finally awarded by a court. CivicPlus has no obligation for any claim of infringement arising from Customer's use of the Services for purposes not contemplated by this Agreement. CivicPlus s indemnification obligations under this Section 15 are conditioned upon the Customer (i) promptly notifying the CivicPlus of any claim in writing; (ii) cooperating with CivicPlus in the defense of the claim; and (iii) granting CivicPlus sole control of the defense or settlement of the claim. The indemnification obligations of CivicPlus herein shall not apply to any claims of intellectual property infringement related to Client Content. hould the Services or any part thereof become, or in CivicPlus intellectual property right, then CivicPlus shall, at its sole option and expense: (i) procure for Customer the right to use and access the infringing or potentially infringing item(s) of the Services Services place or modify the Affected Services with a non- infringing substitute otherwise materially complying with the functionality of the replaced system; or (iii) if neither of the foregoing is reasonably practicable, terminate the right to use and access the Affected Services and refund a prorated amount of any amount already paid. However, in the event CivicPlus exercises option (iii), CivicPlus shall provide Customer with ninety (90) days of use and access to the Affected Services prior to termination. Responsibilities of the Parties 16. CivicPlus will not be liable for any act, omission of act, negligence or defect in the quality of service of any underlying carrier, licensor or other third-party service provider whose facilities or services are used in furnishing any portion of the Service received by the Customer. 17. CivicPlus will not be liable for any failure of performance that is caused by or the result of any act or omission by Customer Project Development, Customer will be responsive and cooperative with CivicPlus to ensure the Project Development is completed in a timely manner. 18. Customer agrees that it is solely responsible for the end- personal data that Customer decides to solicit, collect, store, or otherwise use in connection with any Service provided by CivicPlus. Customer understands and agrees that CivicPlus provides certain solutions with increased security measures for the solicitation and storage of any sensitive dat determine whether the data it solicits and collects should be stored in such solutions. Customer understands and agrees that CivicPlus does not have knowledge or control over what type of data Customer solicits therefore CivicPlus has no responsibility for the use or storage of end-personal data in connection with the Services or the consequences of the solicitation, collection, storage, or other use by Customer or by any third party of any personal data. Customer has the sole control and responsibility over the determination of which data and information shall be included in the content that is to be transmitted and stored by CivicPlus. Customer shall not provide to CivicPlus or allow to be provided to CivicP rights of publicity or rights of privacy, (b) contains any defamatory material, or (c) violates any federal, 5 state, local, or foreign laws, regulations, or statutes. 19. Customer is responsible for all activity that occurs under Customer's accounts by or on behalf of Customer. Customer agrees to (a) be solely responsible for all designated and authorized individuals chosen by Customer activity, which must be in accordance with this Agreement and the CivicPlus Terms of Use; (b) be solely responsible for Customer Data; (c) obtain and maintain during the term all necessary consents, agreements and approvals from end-users, individuals or any other third parties for all actual or intended uses of information, data or other content Customer will use in connection with the Services; (d) use commercially reasonable efforts to prevent unauthorized access -in information and the Services, and notify CivicPlus promptly of any known unauthorized access or use of the foregoing; (e) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and CivicPlus Property and shall promptly notify CivicPlus of any unauthorized access or use of the Services and/or CivicPlus Property and any loss or theft or unauthorized use of any n User's password or username and/or personal information; and (f) use the Services only in accordance with applicable laws and regulations. 20. The Parties shall comply with all applicable local, state, and federal laws, treaties, regulations, and conventions in connection with its use and provision of any of the Services or CivicPlus Property. 21. CivicPlus shall not be responsible for any act or omission of any third-party vendor or service provider that Customer has selected to integrate any of its Services with. 22. Customer understands that CivicPlus must fastidiously allocate resources across all of its professional services, such as consulting or training, purchased by Customer are not used during the Project Development phase solely due to the inaction or unresponsiveness of Customer, then these services shall expire 30 days after completion of Project Development and receiving written notice. The Customer may re-schedule any unused professional services during this 30-day notice period as mutually agreed upon by the Parties. Any professional services that have not been used or rescheduled shall be marked as complete and closed upon the expiration of the 30-day notice period. Data Security 23. CivicPlus shall, at all times, comply with the terms and conditions of its Privacy Policy. CivicPlus will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data. CivicPlus will not modify Customer Data or disclose Customer Data, except (a) in order to provide the Services; (b) to prevent or address service or technical problems in connection with support matters; (c) as specifically directed or expressly permitted in writing by Customer, (d) in compliance with our Privacy Policy; or (f) if compelled by law. Notwithstanding the foregoing, CivicPlus reserves the right to delete, suspend, or block known malicious accounts without Customer authorization. Customer understands that CivicPlus has no obligation to provide the Services or maintain are past due and unpaid as set forth in this Agreement. 24. Customer acknowledges and agrees that CivicPlus utilizes third-party service providers to host and provide the Services and store Customer Data and the protection of such data will be in accordance Data. Notwithstanding anything to the contrary, CivicPlus shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and CivicPlus will be free (during and after the term hereof) to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other CivicPlus offerings. 25. CivicPlus may offer Customer the ability to use third-party applications in combination with the Services. Any such third-party application will be subject to acceptance by Customer. In connection with any such third-party application agreed to by Customer, Customer acknowledges and agrees that 6 CivicPlus may allow the third-party providers access to Customer Data as required for the interoperation of such third-party application with the Services. The use of a third-party application with the Services may also require Customer to agree to a separate agreement or terms and conditions with the provider of the third-party application, which will govern Customer's use of such third-party application. 26. In the event of a security breach due to the sole negligence, malicious actions, omissions, or misconduct of CivicPlus, CivicPlus, as the data custodian, will comply will all remediation efforts as required by applicable federal and state law. CivicPlus Support 27. CivicPlus will use commercially reasonable efforts to perform the Services in a manner consistent with applicable industry standards, including maintaining Services availability 24 hours a day, 7 days a week with 99.9% uptime. Customer will have 24/7 access to the online CivicPlus Help Center (civicplus.help) to review use articles, software best practices, receive maintenance release notes, as well as submit and monitor omni-channel support tickets and access solution specific support contact methods (https://www.civicplus.help/hc/en-us/requests/new). 28. CivicPlus provides live support engineers based in the domestic United States to respond to basic questions concerning use and configuration, to diagnose software code-related errors, and proactively identify potential systems issues. CivicPlus support engineers serve a preliminary function in the agile development process and escalate defects to software developers or architects for remediation. For security purposes, CivicPlus support engineers are not permitted to modify user accounts, and permissions nor distribute access outside of accounts established by means of a support interaction for testing. Customer delegated Users may receive tutorials and guidance on account modifications but will perform the action themselves. 29. CivicPlus support hours span between the hours of 7 am to 7 pm CST, but may vary by product. Customer may access the CivicPlus Help Center (civicplus.help) After hours support is available by toll- free phone call only. Non-emergency support requested outside of support hours will be subject to additional fees, such fees will be quoted to Customer at the time of the request and will be subject to Customer acceptance and invoiced the next business day following the non-emergency support. CivicPlus shall have the sole discretion to determine in good faith whether support requests qualify as an emergency, exceed reasonable use or are outside the scope of services outlined in any SOW. 30. If a reported problem cannot be solved during the first support interaction, Customer will be provided a ticket number that will be used as communication method throughout ticket escalation until a solution is provided. Support service does not include support for errors caused by third party products or applications for which CivicPlus is not responsible. Marketing 31. may publicly refer to itself as a customer of the CivicPlus Services, including on Customer's website and in sales presentations. Notwithstanding the foregoing, each Party hereby grants the other a limited, worldwide, license to use the In no event will either Party issue a press release publicly announcing this relationship without the approval of the other Party, such approval not to be unreasonably withheld. Limitation of Liability 7 Section 15 of this Agreement, which shall be limited to the full extent of its insurance limits available to CivicPlus at the time such a claim is made, including but not limited to, Liability Insurance, Umbrella Insurance, and Cyber Liability Insurance limits in accordance with Section 51 . 32. E liability arising out of or related to this Agreement, or any associated SOW, will not exceed the amounts paid by Customer for the Annual Recurring Services in the year prior to such claim of liability. 33. In no event will CivicPlus be liable to Customer or Customer be liable to CivicPlus for any consequential, indirect, special, incidental, or punitive damages arising out of or related to this Agreement. 34. The liabilities limited by Section 32 and 33 apply: (a) to liability for negligence; (b) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (c) even if the other Party was advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (d) even if remedies fail of their essential purposes. If applicable law limits the application of the provisions of this Limitation of Liability section, liability will be limited to the maximum extent permissible. Warranties and Disclaimer 35. Each person signing the SOW, or otherwise agreeing to the terms of this Agreement, represents and warrants that he or she is duly authorized and has legal capacity to execute and bind the respective Party to the terms and conditions of the SOW and this Agreement. Each Party represents and warrants to the other that the execution and delivery of the SOW and the performance thereunder have been duly authorized and that this Agreement is a valid and legal agreement binding on such Party and enforceable in accordance with its terms. Customer represents and warrants that Customer has not provided any false information to gain access to the Service and that Custome billing information provided on the Contact Sheet is correct; and it has all necessary rights in the Agreement without infringing the intellectual property or other rights of any third parties, violating any applicable laws, or violating the terms of any license or agreement to which it is bound. 36. CivicPlus warrants that the Services will perform substantially in accordance with documentation and marketing proposals, and free of any material defect. CivicPlus warrants to the Customer that, upon notice given to CivicPlus of any defect in design or fault or improper workmanship, CivicPlus will remedy any such defect. CivicPlus makes no warranty regarding, and will have no responsibility for, any claim arising out of: (i) a modification of the Services made by anyone other than CivicPlus, even in a situation where CivicPlus approves of such modification in writing; or (ii) use of the Services in combination with a third-party service, web hosting service, or server not authorized by CivicPlus. 37. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by CivicPlus or by third-party providers, or because of other causes beyond CivicPlus's reasonable control, but CivicPlus shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, SERVICE PROVIDER DOES NOT WARRANT THAT THE 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 SERVICES.EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE AND CIVICPLUS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A PRIOR COURSE OF DEALING. 38. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING 8 OFFERED BY CIVICPLUS TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. Force Majeure 39. No party shall have any liability to the other hereunder by reason of any delay or failure to perform any obligation or covenant if the delay or failure to perform is occasioned by force majeure, meaning any act of God, storm, pandemic, fire, casualty, unanticipated work stoppage, strike, lockout, labor dispute, civil disturbance, riot, war, national emergency, act of public enemy, internet service provider failure or delay, third party application failure, denial of service attack, or other cause of similar or dissimilar nature beyond its control. Taxes 40. The amounts owed for the Services exclude, and Customer will be responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the Services (excluding taxes based solely on income). If the Customer is tax-exempt, the Customer must provide CivicPlus proof of their tax-exempt status, within fifteen (15) days of contract signing, and the fees owed by Customer under this Agreement will not be taxed. If such exemption certificate is challenged or held invalid by a taxing authority then Customer agrees to pay for all resulting fines, penalties and expenses. Other Documents 41. This Agreement, including all exhibits, amendments, and addenda hereto and all SOWs, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement or any SOW will be effective unless in writing and signed by each Party. However, to the extent of any conflict or inconsistency between the provision in the body of this Agreement and any exhibit, amendment, or addenda hereto or any SOW, the terms of such exhibit, amendment, addenda or SOW will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or other order documentation (excluding SOWs) will be incorporated into or form any part of this Agreement, all such terms or conditions will be null and void, unless such term is to refer and agree to this Agreement. Interlocal Purchasing Consent/ Cooperative Purchasing 42. With the prior approval of CivicPlus, which may be withheld for any or no reason within CivicP - state to purchase at the SOW prices and specifications in accordance with the terms stated herein. 43. To the extent permitted by law, the terms of this Agreement and set forth in one or more SOW(s) may be extended for use by other local government entities upon execution of a separate agreement, SOW, or other duly signed writing by and between CivicPlus and such entity, setting forth all of the terms and conditions for such use, including applicable fees and billing terms. Miscellaneous Provisions 44. The invalidity or unenforceability, in whole or in part, of any provision of this Agreement shall not void, affect the validity or enforceability of any other provision of this Agreement. 45. The Parties negotiated this Agreement with the opportunity to receive the aid of counsel and, accordingly, intend this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting Party. The headings of Sections of this Agreement are 9 for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the 46. The Parties will use reasonable, good faith efforts to resolve any dispute between them in good faith prior to initiating legal action. 47. This Agreement and any SOW, to the extent signed and delivered by means of a facsimile machine or electronic mail, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. The Parties agree that an electronic signature is the legal equivalent of its manual signature on this Agreement and any SOW. The Parties agree that no certification authority or other third party verification is necessary to validate its electronic signature and that the lack of such cert signature or any resulting agreement between CivicPlus and Customer. 48. Due to the rapidly changing nature of software as a service and digital communications, CivicPlus may unilaterally update this Agreement from time to time. In the event CivicPlus believes such change is a material alteration of the terms herein, CivicPlus will provide Customer with written notice describing such change via email or through its website. continued use of the Services following such the terms herein, Customer must notify CivicPlus of its objection within ten (10) days receipt of notice of such update. 1 Master Service Agreement Addendum Exhibit A Addendum This Master Services Agreement addendum MSA hereby sets forth additional terms and conditions. as described below and, as agreed upon by CivicPlus and City. The Addendum shall be deemed to amend, modify, supplement, replace and/or supersede (as applicable) any inconsistent provisions, to the extent of the inconsistency. ALL TERMS AND CONDITIONS OF THE AGREEMENT NOT EXPRESSLEY MODIFIED HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT. Capitalized terms used and not defined herein shall have the meanings assigned to them in the Agreement (to which this Addendum is attached and incorporated). 1. ADDITIONAL TERMS. 49. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 50. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 51. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. a. Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations 1 or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. i. Commercial General Liability Insurance. $2,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. ii. Umbrella Insurance in the amount of $5,000,000. iii. Cyber Liability Insurance. $5,000,000 per occurrence or claim, $5,000,000 aggregate. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. iv. Automobile Liability. (If the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single limit per accident for bodily injury and property damage. v. Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. vi. Professional Liability. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. b. Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: i. The City will be named as an additional insured on Commercial General Liability and Cyber Liability, both of which shall provide primary coverage to the City. ii. Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. iii. This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. c. Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. d. Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach. 52. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 53. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be clearly identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 54. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of applicable federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be 1 responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 55. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 56. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. Nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 57. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 58. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 59. JURISDICTION AND VENUE This Agreement will be governed by the laws of the State of California regardless of conflict of laws principles. Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 60. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 61. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. 1 Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 62. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. 63. SECURITY SECURITY POLICIES AND TECHNOLOGY As outlined in the applicable Statement of Work, CivicPlus will provide all Services, using security technologies and techniques in accordance with standard industry practices, procedures and requirements, including those relating to the prevention and detection of fraud and any other inappropriate use or access of systems and networks. NETWORK AND APPLICATION SECURITY CivicPlus will implement and use network management and maintenance applications and tools, appropriate fraud prevention and detection, and data confidentiality/protection/encryption technologies. ENDPOINT AND SERVER SECURITY CivicPlus will implement and use management and maintenance applications and tools, appropriate fraud prevention and detection, hardware (e.g. firewall) and data confidentiality/protection procedures. This must include mechanisms to identify vulnerabilities and apply security patches. Encryption is done via the VPN for endpoints. AUDIT REQUIREMENTS CivicPlus will reasonably work with the City auditors to provide requested documentation, provided disseminating such information is not a security risk, and provided further that any such documentation shall be kept confidential by the City and its auditors. Any audit requests shall be limited to no more than once per calendar year, shall be made upon reasonable notice in writing to CivicPlus and shall not unreasonable interfere with CivicPlus's operations. SECURITY LEVEL In no event may CivicPlus's action or inaction result in any situation that is less secure than the security that CivicPlus provides for its own systems and data. INFORMATION ACCESS CivicPlus (including its employees, agents and contractors who may access the City's data and software) hereby affirms that any persons lawfully accessing the City's data and software for CivicPlus shall abide by the access protection and data/software security requirements of this Agreement. Computer data and software, including the City's data, provided by the City or accessed (or accessible) by the CivicPlus's personnel or CivicPlus's contractor personnel, must be used by such personnel only in connection with the obligations provided in this Agreement. Failure of CivicPlus or CivicPlus's contractors to comply with the provisions of this Agreement may result in the City restricting offending personnel from access to the hosted environment or data, or immediately terminating this Agreement. CivicPlus will be responsible for maintaining and ensuring the confidentiality and security of the City's data. CivicPlus will notify the City in advance if any planned maintenance, planned service, planned upgrades or planned tuning will be performed on the City's system. The City shall promptly notify CivicPlus of any City personnel no longer authorized to access the City's data. IDENTITY AND ACCESS MANAGEMENT The City will authorize, and CivicPlus will issue, any necessary information access mechanisms, including access identities (IDs) and passwords for City personnel. CivicPlus will issue any necessary information access mechanisms, including access identities (ID's) and passwords for CivicPlus personnel. Civic Plus will provide CivicPlus personnel only with the minimum level of access necessary on the hosted SQL Server to perform the tasks and functions for which they are responsible. CivicPlus will provide the City with an updated list of all system Users who have access to the City's hosted SQL Server, including the level of access, upon request by the City. The City shall promptly notify CivicPlus of any City personnel no longer authorized to access the City's hosted SQL Server. SECURITY MONITORING The City and CivicPlus will collaborate on security monitoring and incident response, define points of contact on both sides, establish monitoring and response procedures, set escalation thresholds, and conduct training. CivicPlus will, at the request of the City or, in the absence of any request from the City, at least quarterly, provide the City with a report of incidents of unauthorized access to the City's environment that it has identified and taken measures to resolve. 1 SAFETY CivicPlus understands that safety is a high priority and a material element of how the CivicPlus delivers the Services. CivicPlus, therefore, agrees to follow all the City's safety guidelines when at the City's facilities. CivicPlus also acknowledges that it may use the City's facilities only for the City's operations and that it must maintain these to standards required for such usage. CivicPlus will meet all guidelines from occupational safety and health administrations and similar national and International requirements regarding safety. CivicPlus will promptly report in writing all injuries, accidents, property damage, near-miss incidents, or any claims regarding damages or injury to the City (and/or its employees, contractors or subcontractors) that occur at a City facility. CivicPlus agrees to cooperate and help the City investigate any such incidents in accordance with the safety procedures that the City has in place at the time of any such incident. The operation of the CivicPlus's vehicles or private vehicles of CivicPlus personnel on the City's property will conform to any safe driving regulations and visible road or traffic-related signs. CivicPlus and/or any of its personnel involved in accidents on the City's property will promptly report the incidents to the City's appropriate security personnel. SECURITY ASSESSMENT AND TESTING CivicPlus currently performs an annual assessment. In addition, monthly external vulnerability testing and patching is performed. CivicPlus currently utilizes an enterprise level monitoring tool which it reserves the right to conduct such testing and assessment, in the future, through the use of different but comparable means. DATA LOCATION CivicPlus will host the City's data in a data center located within the United States. CivicPlus will notify the City of any plans to relocate its hosted services to another data center. INVESTIGATIVE SUPPORT CivicPlus will support investigation and discovery requests made by the City to determine the source of data addition, deletion or change. System logs specific to the investigation and discovery request should be made available to the City upon request. Acceptance IN WITNESS WHEREOF, the Parties have caused this Addendum to be executed by their duly authorized representatives as of the dates below. Customer CivicPlus By: By: Name: Name: Title: Title: Date: Date: APPROVED AS TO FORM: ATTEST: CINDIE K. McMAHON, City Attorney SHERRY FREISINGER, City Clerk BY: _____________________________ By: Deputy City Attorney Deputy City Clerk 1 EXHIBIT B Recreation Management (CivicRec) Scope of Work and Terms of $74,075.00 are based on the Customer processing volume of revenue per year in the last reportable year prior to the Customer procuring the Services, as communicated to CivicPlus at time of pu Renewal Term of this SOW, CivicPlus reserves the right (but not the obligation) to audit the Customer once l Processing CivicPlus will notify the Customer in writing within thirty (30) days of the audit of the Actual Processing Volume and the applicable increase in the Annual Fees resulting from such Actual Processing Volume. The increase in the Annual Fees shall be implemented the first of the month following the notice. CivicPlus Pay / Process Automation Pay / Pay r to receive online credit card payments for certain services or products the Customer provides via the Customer websites or recreation management system supported redirecting credit Gateway presents the payment form pa maintains Payment Card Industry (PCI) compliant controls for the system components and applications that provide the redirection services only. w Services. The Customer agrees to assume responsibility for ensuring execution of a Gateway contract with , and pay all fees required to maintain the services. The Customer acknowledges that the fees set forth in the applicable The Customer is solely responsible for their relationship with their selected Gateway. In no event 1. take part in negotiations, 2. pay any fees incumbent on the Customer or merchant account, or 3. acquire any liability for the performance of services of any chosen Gateway, including those Integrated Partners. The Customer acknowledges switching to a different Gateway after signing this SOW may incur additional fees and require a written and signed modification to this SOW. The Customer shall continue to be responsible for negotiating and executing any Gateway agreement as described herein for any additional service or breach of security by any Gateway provider selected by the Customer, whether such provider is an Integrated Partner or not. Document Management The Customer acknowledges that any forms to be used in Document Management Services must be created in Document Management, and such forms cannot be unencrypted or exported to unencrypted modules. The Customer is solely responsible for the updating and accuracy of their public-facing privacy policy. CivicPlus strongly recommends the Customer complete a Privacy Impact Statement ("PIA"), which shall practices and policies surrounding the use of, and any data stored within or collected by Services. The Customer further warrants appropriate employees have been adequately trained on the use and deployment of Services. 1 The Customer and CivicPlus each jointly acknowledge that for the duration of the applicable SOW, CivicPlus custody, transport, and storage of data and the Customer shall serve as the , responsible for the Operational and Privacy Specific Controls, including data collection, content, context, and use. Notwithstanding the foregoing, The Customer acknowledges that CivicPlus cannot detect or prevent unauthorized individuals accessing any CivicPlus system through use of valid log-in credentials as set up by the Customer. The Customer has sole responsibility for maintaining the security of such log-in credentials and assigning and defining roles and permission to each individual end-user. The Customer acknowledges that due to the nature of the encryption employed in the Services, CivicPlus staff are unable to access any data submitted or stored within Services. The Customer understands and agrees that the Services are not intended to collect or store any credit card information, or related identifiable or financial information and that the Customer shall not collect or store any such information in the Services. For the sake of clarity, the Services are not Payment Card Industry Data Security Standard (PCI DSS) or Health Insurance Portability and Accountability Act (HIPAA) compliant, and the Customer shall not use the Services for PCI DSS or HIPAA purposes. CivicPlus will provide the following level of encryption related to SPII documents that are uploaded to a Secure Document Type within Document Management: CivicPlus will leverage AES 256 which is the effective standard for the Federal Government established by the National Institute of Standards and Technology (NIST). CivicPlus will leverage encryption key management to securely store the encryption keys and limit access to the keys. Portions of the encryption access logs including IP address will be encrypted. Data and files uploaded will be encrypted in transit and at rest. Breach Notification Protocol: Upon discovery of a data breach, CivicPlus will notify the City of Carlsbad within 72 hours, detailing the breach specifics, per California Civil Code §§ 1798.29(a) and 1798.82(a). 1 Hosting, Support and Service Level Agreement Support and Maintenance Support Services -site support team is available from 7:00 am to 7:00 pm CT to assist clients with any questions, concerns or suggestions regarding the functionality and usage of CivicRec and associated applications. The support team is available during these hours via CivicP -free support number and e-mail. Support personnel will respond to calls as they arrive (under normal circumstances, if all lines are busy, messages will be returned within four hours; action will be taken on e-mails within four hours), and if Cli will begin. Emergency support is available 24-hours-a-day for designated, named Client points-of-contact, with members of support teams available for urgent requests. Emergency support is provided free-of-charge for true emergencies (ie: website is down, applications are malfunctioning, etc.), though Client may incur support charges for non- emergency requests during off hours (ie: basic functionality / usage requests regarding system operation and management). The current discounted rate is $200/hour. CivicPlus shall notify Client if a support request falls outside the included after-hours emergency support coverage prior to incurring such hourly rate. CivicPlus maintains a customer support website that is accessible 24-hours-a-day with an approved client username and password. Service Escalation Processes In the event that support team is unable to assist Client with a request, question or concern, the issue is reported to the appropriate CivicPlus department. Client requests for additional provided services are forwarded to Client Care personnel. Client concerns/questions regarding CivicRec or associated application errors are re issue tracking and management system to be addressed in a priority order to be determined by technical team. All other requests that do not meet these criteria will be forwarded to appropriate personnel within organization at the discretion of the customer support liaison. Included Services: Support Maintenance of CivicPlus CivicRec 7 a.m. 7 p.m. (CST) Monday Friday (excluding holidays) Install Service Patches for OS System Enhancements 24/7 Emergency Support Fixes Usability Improvements Improvements Integration of System Enhancements Integration Proactive Support for Updates & Fixes Testing Monthly Newsletters Development Routine Follow-up Check-ins Usage License CivicPlus Service Level Agreement CivicPlus will use commercially reasonable efforts to make the CivicRec available with a Monthly Uptime Percentage (defined below) not meet the Service Commitment, you will be eligible to receive a Service Credit as described below. Definitions Uptime is calculated by subtracting from 100% the percentage of minutes during the month in which directly or indirectly from any Exclusion (defined below). 1 and mean: The HTML of the page of the site is not delivered in 10 seconds or less 3 times in a row when tested from inside our network and returns a status of 200. Unable to process transactions (customer-wide or system-wide) Unable to process registrations (customer-wide or system-wide) Unable to process facility reservations (customer-wide or system-wide) Login failure - users not able to log in to the system. For the sake of clarity, transactions that take longer than usual to process do not qualify as to A is a dollar credit, calculated as set forth below, that we may credit back to an eligible account. Service Commitments and Service Credits Service Credits are calculated as a percentage of the total charges paid by you for the month, beginning with the first full month of service, in accordance with the schedule below. Monthly Uptime Percentage Service Credit Percentage Less than 99.9% 1% of one fee We will apply any Service Credits only against future payments otherwise due from you. Service Credits will not entitle you to any refund or other payment from CivicPlus. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one dollar ($1 USD). Service Credits may not be transferred or applied to any other account. Unless otherwise provided in the Client Agreement, your sole and exclusive remedy for any unavailability, non-performance, or other failure by us to provide the service is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA. Credit Request and Payment Procedures To receive a Service Credit, you must submit a claim by opening a case with Support. To be eligible, the credit request must be received by us by the end of the second billing cycle after which the incident occurred and must include: 1. the words Credit in the subject line; 2. the dates and times of each Unavailability incident that you are claiming; 3. the affected Site domains; and 4. Any documentation that corroborate your claimed outage. If the Monthly Uptime Percentage of such request is confirmed by us and is less than the Service Commitment, then we will issue the Service Credit to you within one billing cycle following the month in which your request is confirmed by us. Your failure to provide the request and other information as required above will disqualify you from receiving a Service Credit. SLA Exclusions The Service Commitment does not apply to any unavailability, suspension or termination of CivicRec, or any other CivicRec performance issues: (i) that result from a suspension; (ii) caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of CivicPlus; (iii) that result from any actions or inactions of you or any third party; (iv) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control); (v) that result from any maintenance as provided for pursuant to the Client Agreement; or (vi) arising from our suspension and termination of your right to use the CivicRec in accordance with the Client Agreement (collectively, the If availability is impacted by factors other than those used in our Monthly Uptime Percentage calculation, then we may issue a Service Credit considering such factors at our discretion. Administrative Services Information Technology 1635 Faraday Ave.ï Carlsbad, CA ZIP code ï 760-602-2450 t Memorandum June 4, 2024 To:Geoff Patnoe, Assistant City Manager From:Doug Kappel, IT Enterprise Applications Manager Via:Maria Callander, Director of Information Technology Laura Rocha, Deputy City Manager Administrative Services Re:Renewal of Agreement for Activity Management Software Solution (AMSS) Services with CivicPlus, LLC DBA CivicRec Software This memorandum provides an explanation to the new agreement for AMSS Services with CivicPlus, LLC DBA CivicRec Software Purpose of Agreement This Agreement will renew the termed-out agreement with CivicPlus. The agreement will be for CivicRec Software for a total of $148,150 over the initial two-year term, with the option for three one-year extensions. The $74,075 annual amount is for annual software licensing and maintenance costs. The CivicRec solution is used by the Parks & Recreation and Library & Cultural Arts Departments for: Registration for Recreation sponsored programs such as camps and classes Reserving Park facilities Point of sale functionality at Alga Norte aquatic center Membership management for the Senior Center fitness center Managing swim passes at Alga Norte aquatic center and Monroe Street pool Facility reservations The extended lapse in coverage was due to a prolonged agreement review with the CivicPlus contract team related to indemnification and the security of personally identifiable information. Budget Impact The funding for the first year of the Agreement is in the fiscal year 2023-24 IT Department operational budget for $74,075. Funding for remaining years will be included in the IT annual budget requests. Attachment: A - Agreement for Activity Management Software Solution Services with CivicPlus, LLC DBA CivicRec Software cc: Brent Gerber, IT Dept. Senior Management Analyst SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBRWVDADDLINSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THISCERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED?(Mandatory in NH) DESCRIPTION OF OPERATIONS belowIf yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIREDAUTOS ONLY ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: