HomeMy WebLinkAboutReso 63-22 Approving a Software-as-a-Service (SAAS) Agreement with Recyclist for Senate Bill 1383 RecordkeepingReso. No. 63-22, Item 4.11, Adopted 06/07/2022 Page 1 of 2
RESOLUTION NO. 63 – 22
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING A SOFTWARE-AS-A-SERVICE (SAAS) AGREEMENT WITH RECYCLIST FOR
SENATE BILL 1383 RECORDKEEPING
WHEREAS, in September 2016 the California legislature enacted Senate Bill (SB) 1383,
Short-Lived Climate Pollutants, with the goal to reduce emissions of short-lived climate
pollutants such as methane by mandating a reduction in disposal of organic waste in landfills,
among other requirements on dairies and waste haulers; and
WHEREAS, the California Department of Resources, Recycling, and Recovery
(CalRecycle) was given the regulatory authority to achieve the desired organic waste reduction
targets; and
WHEREAS, CalRecycle developed final rulemaking for SB 1383 with an implementation
date of January 1, 2022; and
WHEREAS, SB 1383 requires each jurisdiction to maintain an Implementation Record;
and
WHEREAS, the City seeks a software system that would assist with tracking SB 1383
compliance and outreach and fulfill the City’s SB 1383 recordkeeping requirements; and
WHEREAS, Chapter 2.36 of the Dublin Municipal Code establishes the procedures for
contracts and purchasing, which require City Council approval for procurement of goods and
services in excess of $45,000 via a competitive bidding process; and
WHEREAS, Section 2.36.100(B)(4) of the Dublin Municipal Code allows for an exception
to the competitive bid process when a contract or purchase of goods of a technical nature,
where it would be difficult for a vendor to bid on a standard set of specifications, and the
Purchasing Agent undertakes a thorough review of known products and a comparison of
features which would most closely meet the city’s needs at the lowest cost; and
WHEREAS, As part of the City’s SB 1383 Implementation Assistance Agreement with
Cascadia Consulting Group, Inc., a report was produced on the available recordkeeping and
database options; and
WHEREAS, Staff reviewed the report and found Recyclist to be the only comprehensive
platform to meet the City’s SB 1383 recordkeeping requirements; and
WHEREAS, Staff recommends that the City enter into an agreement with Recyclist for a
three-year term with a total not-to-exceed amount of $106,183 which includes a contingency
amount of $9,653.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby authorize the City Manager to execute the SAAS Agreement with Recyclist, attached
hereto as Exhibit A.
Reso. No. 63-22, Item 4.11, Adopted 06/07/2022 Page 2 of 2
BE IT FURTHER RESOLVED that the City Manager is authorized to approve the use of
the contingency funding of $9,653 in the event additional services are necessary.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute future
SAAS agreement renewals after the three-year agreement term as long as the City continues
utilizing the software and adequate budget is available.
PASSED, APPROVED AND ADOPTED this 7th day of June 2022, by the following vote:
AYES: Councilmembers Hu, Josey, Kumagai, McCorriston and Mayor Hernandez
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
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SAAS SERVICES ORDER FORM
Customer: City of Dublin Contact: Michelle Sung
Address: 100 Civic Plaza Phone: (925) 833-6630
Dublin, CA 94568 Email: michelle.sung@dublin.ca.gov
Services: Recyclist Program Tracker (the “Service(s)”). Initial Service Term: 36 months, commencing upon completion of
implementation.
Service Capacity: Management of regulatory compliance and
outreach for commercial and multi-family waste generators within
the City of Dublin service area.
Implementation Services: Company will use commercially
reasonable efforts to provide Customer the services described in the
Statement of Work ("SOW") attached as Exhibit A hereto
("Implementation Services"), and Customer shall pay Company the
Implementation Fee in accordance with the terms herein.
Service Fees: Base Annual Subscription Fee billed upon completion
of Implementation Services, subject to the terms of Section 4 herein.
Data Import Fees billed upon receipt of each data set, subject to the
terms of Section 4 herein.
Implementation Fees (one-time): Payable upon execution of the
Agreement, subject to the terms of Section 4 herein.
SERVICE FEES PRICE QTY 3-YEAR DISCOUNT SUBTOTAL
Program Tracker - Base Subscription (standard) $24,900.00 1 -$2,490.00 $22,410.00
Projected Data Set Imports (per data set) $1,000.00 4 -$400.00 $3,600.00
Add-On: Route Review Fieldwork Tool $5,000.00 1 -$500.00 $4,500.00
Total Projected Annual Fees $30,510.00
ONE-TIME FEES PRICE QTY SUBTOTAL
Program Tracker Implementation Fee $5,000.00 1 $5,000.00
Total One-Time Fees $5,000.00
Exhibit A
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SAAS SERVICES AGREEMENT
This SaaS Services Agreement (“Agreement”) is entered into on this 8th day of June 2022 (the “Effective Date”) between Citizen Communications,
LLC dba Recyclist with a place of business at 12313 Soaring Way, Suite 1D, Truckee CA 96161 (“Company”), and the Customer lis ted above
(“Customer”). This Agreement includes and incorporates the above Order Form, as well as the attached Terms and Conditions and contains, among
other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related
purchase order or similar form unless expressly identifying this Agreement, specifically referencing the provisions of this Agreement to be altered or
superseded and signed by the parties after the date hereof.
Citizen Communications, LLC dba Recyclist
Name:
Title:
Date:
City of Dublin
Name: Linda Smith
Title: City Manager
Date:
Emily Coven
5/31/2022
Managing Member
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TERMS AND CONDITIONS
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services.
As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company
reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with
Company’s standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source
code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to
the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly
permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise
for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for
use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such
Software during the Term only in connection with the Services.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or
anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United S tates Department of
Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and
(5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR sectio n
227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such com mercial software or
commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be p rohibited except
to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with its intended
functionality and all applicable laws and regulations. Customer shall be responsible for obtaining and maintaining any equipm ent and ancillary
services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers , software, operating
systems, networking, web servers and the like (collectively, “Equipment”). Customer is responsible for m aintaining the confidentiality of the
passwords assigned to Customer and its users. Customer will immediately notify Company if it becomes aware that a password is lost, stolen,
disclosed to an unauthorized third party, or otherwise compromised. Company wi ll be responsible for any and all activities made pursuant to the
licenses granted to Customer’s hereunder and any of its users’ or Equipment or the access credentials to the Services. Customer shall, and shall
ensure its users, use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Company promptly of any
unauthorized access or use. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so a nd may prohibit
any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose
business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the
Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the
Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services
(“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautio ns to protect such Proprietary Information, and (ii) not to use
(except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The
Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes
generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed
to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or
(e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and
interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions
or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the
foregoing.
3.3 Notwithstanding anything to the contrary, Company 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 Company will be free (during and after the term hereof) to (a) use such
information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in con nection with the
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Services and other Company offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business. No
rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services
in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth o n the Order Form or
otherwise requires the payment of additional fees (per the terms of this Agreement), Recyclist shall notify Customer in advance of any additional
fees. Upon acceptance of additional fees by Customer, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the
manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the
Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email ). Notwithstanding the
foregoing, all Data Import Fees set forth in the Order Form are, at any time during the Term, subject to reasonable increases bas ed on then-current
Company fees for Data Set Imports. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later
than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receiv e an adjustment or credit.
Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be
received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on
any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate
termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
4.3 Following the Initial Service Term, the annual subscription fee shall automatically increase (and annually thereafter) by an
amount equal to the greater of five percent (5%) or one hundred percent (100%) of the percentage increase in the Consumer Price Index, Urban
Consumers, All Cities Average 1982-84 Equals 100, (CPI-U) during the prior calendar year as published by the U.S. Department of Labor or any
successor index, compounded annually from the Effective Date.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Fo rm,
and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either
party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or
without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agre ement. Customer will
pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all
Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, bu t is not obligated to,
delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including,
without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liabilit y.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and
interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be
temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third -party providers, or
because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by
e-mail of any scheduled service disruption. However, Company 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 AS EXPRESSLY SET FORTH IN THIS SECTION,
THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. INDEMNITY
Company shall indemnify Customer from liability to third parties resulting from infringement by the Service of any United Sta tes patent or any
copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings relat ed
thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for
any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (a) not
supplied by Company, (b) made in whole or in part in accordance with Customer specifications, (c) that are modified after delivery by Company,
(d) combined with other products, processes or materials where the alleged infringement relates to such combination, (e) wher e Customer continues
allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement,
or (f) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringem ent, the Services are held
by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (i) rep lace or
modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (ii)
obtain for Customer a license to continue using the Service, or (iii) if neither of the foregoing is commercially practicable , terminate this Agreement
and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
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Company shall procure and maintain insurance during the term of this Agreement in the amounts and under the terms set forth i n Exhibit “B”
against claims that may arise from or in connection with the Agreement and performance of the Services.
8. LIMITATION OF LIABILITY
8.1 Customer acknowledges, understands and agrees that Company utilizes third party hardware, software and hosting solutions in
connection with the Services (“Third Party Solutions”) in order to economically provide the Services to Customer. Customer recognizes that the
quality of the Services is dependent upon such Third Party Solutions and that Company does not have nor exercise significant bargaining power
with such Third Party Solutions so as to reasonably control the Customer’s experience resulting from such Third Party Solutions, and therefore
notwithstanding any other provision of this Agreement to the contrary, agrees that Company shall not be liable or in breach o f this Agreement to the
extent such liability or breach is the result of the acts or omissions of Third Party Solutions or their providers. The location of Third Party Solutions
Data Centers is California (primary), New York (secondary), and an undisclosed location in the United States (backup). In the event that Company
changes Third Party Solutions resulting in a movement of Data Centers, Company shall provide Customer with prior written noti ce of said change
and disclose the name and location of new Third Party Solutions and Data Centers. The replacement of Third Party Solutions shall be reputable
compared to current, and the Data Centers shall be located within the United States.
8.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY
AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS,
AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT
TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR
INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY
OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR
ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS
ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER
THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR
NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUBJECT TO THE
INDEMNIFICATION OBLIGATIONS OF COMPANY HEREUNDER.
9. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent
necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or
sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under
this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes
and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and
that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint
venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any
respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recove r costs and
attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally
delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by
recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be
governed by the laws of the State of California without regard to its conflict of laws provisions.
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EXHIBIT A
Statement of Work
Implementation of the Recyclist Program Tracker includes:
● Configuring data import process to align with Customer’s data and programmatic objectives
● Importing initial compliance records
● Setting up user accounts and permissions
● Customizing database fields to meet reasonable customer needs
● Customizing reports to meet reasonable customer needs
Base subscription includes:
● Commercial and multi-family generator database for tracking:
○ Service levels
○ Contact information
○ AB 1826 & AB 341 compliance
○ SB 1383 compliance (rolling out in phases)
● Log of all outreach activities
● CRM features to schedule and track outreach to commercial generators, including:
○ Site Visits
○ Phone Calls
○ Emails
○ Photos taken
○ Task lists and calendars
○ Task reminders and summaries
● Customization of standard forms and reports to meet reasonable customer needs, such as:
○ Tracking local programs and pilot projects
○ Tracking compliance with state, regional and/or local ordinances
○ Complex customization projects necessitating new forms and/or reports may require additional professional services. Any
additional consulting, training, development, configuration, development and/or integration services may be out of scope and
subject to Company agreeing to provide such services pursuant to a change order to this SOW.
● Reports in list and/or graph format, with ability to search, sort and filter, and to export to Excel, PDF, or image file
● Cloud-based database that syncs data across all users in real time
● Web-based application, with mobile app for iOS and Android (requires internet connection)
● Secure web hosting with weekly backups
● Support via email, Monday-Friday 9am-5pm PT
● Support via phone by appointment
● Unlimited users
Data Import includes:
● Processing and importing a single-tab Excel worksheet or CSV file
● For service record data imports:
○ Importing new accounts, identifying possibly closed accounts and service-level changes
○ Updating generator compliance statuses to align with new data
● Custom Data Template Surcharge applicable to any Data Imports not delivered in the standard Recyclist Service Record Template
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EXHIBIT B
Insurance Requirements
Minimum Scope and Limits of Insurance
1. Commercial General Liability Insurance. Contractor, at its own cost and expense, shall maintain commercial general liability insurance
including operations, products, and completed operations, as applicable for the term of this Agreement in an amount not l ess than
$1,000,000 per occurrence/$2,000,000 aggregate for bodily injury, personal injury, and property damage. If Commercial General Liability
Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this
project/location or the general aggregate limit shall be at least twice the required occurrence limit.
2. Cyber and Professional Liability/Errors and Omissions. Contractor, at its own cost and expense, shall maintain cyber and professional
liability/errors and emissions insurance for the term of this Agreement in an amount no less than $1,000,000 per claim. Coverage shall be
sufficiently broad to respond to the duties and obligations as is undertaken by Contractor in this agreement and sh all include, but not be
limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark ,trade
dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of pr ivate information,
alteration of electronic information, extortion and network security. The policy shall provide coverage for breach response c osts as well as
regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to r espond to these obligations.
Deductibles and Self-Insured Retention
All self-insured retentions (SIR) must be disclosed to Risk Management for approval and shall not reduce the limits of liability. Policies containing
any SIR provision shall provide, or be endorsed to provide, that the SIR may be satisfied by either the named insured or the City of Dublin. The City
of Dublin reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise th is right shall not constitute
a waiver of right to exercise later.
Acceptability of Insurers
All insurance required by this exhibit is to be placed with insurers with a current A.M. Bests' rating of no less than A:VII and accepted to do
business in the State of California, unless otherwise acceptable to the City of Dublin.
Other Insurance Provisions
The general liability policy is to contain, or be endorsed to contain, the following provisions:
1. The City of Dublin, its officers, employees, and designated volunteers are to be covered as additional insureds as respects: liability arising
out of work or operations performed by or on behalf of the Contractor.
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