102-A. Draft Contract.pdf ATTACHMENT A
THREE PARTY AGREEMENT BETWEEN THE CITY OF CUPERTINO,
COMPUTER SOFTWARE, INCORPORATED, AND AVOLVE SOFTWARE
CORPORATION FOR SOFTWARE, LICENSING, MAINTENANCE AND SUPPORT
SERVICES
THIS AGREEMENT for Software Licensing, Maintenance and Support ("Agreement") is
made this 4 day of ur , 2012 ("Effective Date") by and between the City of
Cupertino, a municipal corporation located at 10300 Torre Avenue, Cupertino, California
("CITY"), Computer Software, Inc., a Delaware corporation having its principal place of
business at 100 Highpoint Drive, Suite 104, Chalfont, PA 18914, ("CSI"), and Avolve
Software Corp., a Delaware corporation having its principal place of business at 4835 E.
Cactus Road, Suite 420, Scottsdale, Arizona 85254, ("AVOLVE" ), (together sometimes
referred to as the "Parties"). AVOLVE and CSI together may be referred to as
"CONSULTANTS".
RECITALS
A. CITY has approved a project for the procurement, installation, training and related
services for a comprehensive permit tracking system.
B. CITY desires to contract with CSI, to furnish the CITY with an Integrated Land Use
and Zoning Management, Permitting, Code Enforcement, Inspections, and Business
Licensing Software System, in accordance with specifications of the RFP dated August
1, 2011.
C. CITY also desires to contract with AVOLVE, to furnish CITY with an unlimited
software user license and maintenance services for AVOLVE's computer software
program called ProjectDox. ProjectDox is plan review software that is a necessary and
additional component of the above referenced Integrated Land Use and Zoning
Management, Permitting, Code Enforcement, Inspections, and Business Licensing
Software System.
D. CONSULTANTS are independent contractors and each covenant with CITY to
provide its software, services and licenses pursuant to all the terms and conditions of
this Agreement.
E. CONSULTANTS covenant that they are prepared and willing to work together and
enter into any necessary subcontracts between them, during the term of this Agreement
in order to timely provide CITY with the software, services and licenses described in the
Scope of Work but under no circumstances shall CSI be held liable or responsible for the
compliance or failures of AVOLVE to meet its separate requirements under this
Agreement and Exhibits; and under no circumstances shall AVOLVE be held liable or
responsible for the compliance or failure of CSI to meet its separate requirements under
this Agreement and Exhibits.
NOW, THEREFORE, in consideration of the Recitals and mutual promises contained
herein, CITY and CONSULTANTS agree as follows:
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F. CITY hereby engages CONSULTANTS for the services described herein to furnish
CITY with an Integrated Land Use and Zoning Management, Permitting, Code
Enforcement, Inspections, and Business Licensing Software System, in accordance with
the provisions contained in this Agreement.
G. Order of Precedence: In the event of any conflict between the terms of this
Agreement and the documents attached as Exhibits, the terms of this Agreement shall
prevail.
Section 1. DEFINITIONS. For the purposes of this Agreement, the following
definitions apply:
1.1 "Maintenance and Support" is the continuous attention to and updating of all
necessary software and support services provided by CONSULTANTS to the CITY for
the term defined in this Agreement. Maintenance and Support includes all standard
software releases and updates made available during the term of this Agreement.
Maintenance and Support services provided by AVOLVE are further
described in Exhibit 2.
1.2 "Single Jurisdiction License Grant" is the single unlimited user license of
AVOLVE's Software to run on a single server to be used by CITY and its applicants for
the purposes of electronic plan review, subject to the terms, conditions, and limitations
hereof; the non-transferable exclusive right to use and permit its users to use the
Software for the term set out herein solely for CITY's business operations.
1.3 "Software" includes the software solutions provided by CONSULTANTS as
outlined in the Scope of Work in Exhibit 1.
1.4 "Training, Technical Support and Deliverables" are the education, training
and technical support services and deliverables provided by AVOLVE according to the
allocation of time as outlined in Exhibit 1.
Section 2. SERVICES AND LICENSING. Subject to the terms and conditions set
forth in this Agreement, CONSULTANTS shall provide the CITY with the services,
software licenses and support described in the Scope of Work, (Exhibit 1).
CONSULTANTS will perform subsequent tasks as requested by the CITY, in
accordance with the Scope of Work.
2.1 Scope of Grant.
2.1.1 CITY is granted the right to:
a. make one copy of the Software for archival purposes, if the copy contains all
of the original Software's proprietary notices;
b. use the Application Programming Interfaces ("APIs") of the Software to
program those APIs (a "Custom Application") but only as described in the
documentation for the Software and only to the extent necessary to permit the
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CONSULTANTS' Custom Application to function with the Software through
the APIs as described in the Documentation;
c. use the Software solely for publishing, displaying, marking up and making
accessible internal documents and documents posted by any of CITY'S
applicants or vendors.
d. have concurrent users for the CITY and its direct customers.
2.1.2 The rights granted to CITY under this Agreement are subject to the following
restrictions:
a. except as expressly stated herein to the contrary, CITY shall not license,
sell, rent, lease, copy, transfer, assign, distribute, display, host, outsource,
disclose or otherwise commercially exploit or make the Software available to
any third party;
b. CITY shall not modify, make derivative works of, disassemble, reverse
compile, or reverse engineer any part of the Software, or access or use the
Software in order to build a similar or competitive product or service.
c. CITY shall not permit unauthorized individuals to use the Software except
under the terms listed above;
d. CITY shall not use any Custom Application on any computer server other than
the computer server on which the Software is installed without purchasing
additional licenses for each additional computer server on which Licensee
wish to use the Custom Application.
2.2 Term of Services. The term of this Agreement shall begin on the
20 and shall be for five (5) years and thereafter may be renewed yearly for
Maintenance and Support for the duration of the use of the software by the CITY.
After the expiration of the first five (5) year term, the Maintenance and Support
Contract will automatically renew for an additional years unless written notice is
sent by any party expressing its intention not to renew sixty (60) days prior to the
next year's term. The time provided to CONSULTANTS to complete the services
required by this Agreement shall not affect the CITY's right to terminate the
Agreement, as provided for in Section 7.
2.3 Standard of Performance. CONSULTANTS shall perform all services required
pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner of the profession in which CONSULTANTS
are engaged in the geographical area in which CONSULTANTS practice their
professions.
2.4 Time. CONSULTANTS shall devote such time to the performance of services
pursuant to this Agreement as may be reasonably necessary to satisfy each of
their contractual obligations.
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Section 3. COMPENSATION. CITY agrees to pay CSI a one-time fee for software
licensing, setup and configuration not to exceed $483,410.00 including fees for travel
expenses. Additional annual software maintenance and support are outlined in Exhibit
1, as are CONSULTANT'S hourly rates for additional services outside of the scope of
this Agreement. CITY hereby agrees to pay CONSULTANTS a sum not to exceed the
amounts and in accordance with the schedule outlined in Exhibit 1, notwithstanding any
contrary indications that may be contained in CONSULTANTS' proposals, for software
licensing, system setup, configuration, programming, data conversion, interfacing,
training, and other services as described in the proposal. CITY hereby agrees to pay
CONSULTANTS for annual maintenance and support services rendered pursuant to this
Agreement at the time and in the manner set forth herein. The base year and annual
payments specified herein and in Exhibit 1 shall be the only payments from CITY to
CONSULTANTS for services rendered pursuant to this Agreement, with the exception of
travel expenses and fees for extra services described below and in Exhibit 1. Travel
expenses shall be reimbursed as incurred and invoiced using the schedule of travel
expenses identified in Exhibit 1.
3.1 Invoices. CSI agrees to bill CITY on behalf of CSI and AVOLVE for all Software,
licenses, Maintenance and Support, Training, Technical Support and any other
services provided under this Agreement, and CSI is responsible for ensuring that
CITY's payments for AVOLVE's services are timely provided to AVOLVE. CSI
shall submit progress-based invoices for the purchase and implementation of the
Software as outlined in Exhibit 1 during the term of this Agreement, based on
the cost for services performed and reimbursable costs incurred prior to the
invoice date. CSI agrees to bill CITY on AVOLVE's behalf for any services
provided by AVOLVE. Invoices shall be sent no more frequently than once per
month, except that CSI shall submit invoices annually for the Maintenance and
Support as outlined in Exhibit 1. Except as specifically authorized in advance
by CITY, CSI shall not bill CITY for duplicate services performed by more than
one person.
3.2 Monthly Payment. CITY shall make monthly payments, based on invoices
received, for services satisfactorily performed, and for authorized reimbursable
costs incurred. CITY shall have thirty (30) days from the receipt of an invoice
that complies with all of the requirements above to pay CSI.
3.3 Annual Payment. CITY shall make annual payments, based on invoices
received, for annual Maintenance and Support beginning (30) days after the go-
live date of the software. The annual Maintenance and Support payments will
repeat on their respective anniversary dates each year thereafter. CITY shall
have thirty (30) days from the receipt of an invoice that complies with all of the
requirements above to pay CSI.
3.4 Total Payment. CITY shall not pay any additional sum for any expense or cost
whatsoever incurred by CONSULTANTS in rendering services pursuant to this
Agreement. CITY shall make no payment for any extra, further, or additional
service pursuant to this Agreement. In no event shall CONSULTANTS submit
any invoice for an amount in excess of the maximum amounts of compensation
provided above either for a task or for the entire Agreement, unless the
Agreement is modified in writing prior to the submission of such an invoice.
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3.5 Change Reguest Any request outside the scope of work in Exhibit 1 shall be
first approved in writing by both the CITY and CONSULTANTS, and shall be
invoiced independently of the sum of expenses constituting the Total Payment of
this agreement. Change Requests will be invoiced according to Section 3.1,
Invoices.
3.6 Hourly Fees. Fees for work performed by CONSULTANTS on an hourly basis
shall not exceed the amounts shown on the fee schedule included with Exhibit
1. This hourly rate is subject to change provided 30 day written notice from
CONSULTANTS to the CITY. Any change to the hourly rate shall occur in
reasonable increments and shall be limited to the Cost of Living Index for the Bay
Area and not exceed rates charged for similar services in the corresponding
industry.
3.7 Payment of Taxes. CONSULTANTS are each responsible for the payment of
employment taxes, federal, state and local taxes incurred as a result of their
performance under this Agreement.
3.8 Payment upon Termination. In the event that the CITY, CSI or AVOLVE
terminates this Agreement pursuant to Section 7, the CITY shall compensate
CONSULTANTS for all outstanding costs and reimbursable expenses incurred
for work completed as of the date of written notice of termination.
CONSULTANTS shall maintain adequate logs and timesheets in order to verify
costs incurred to that date.
Section 4. LIMITED WARRANTY AND DISCLAIMER
4.1 CS] warrants that on acceptance date, the Software it provides under this
Agreement will be free from any significant programming errors and from material
defects in workmanship and shall operate and conform to the requirements
identified in this agreement. The CITY's sole remedy for failure of CS] to meet
this warranty shall be a refund of all previously paid Software fees. EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT, CSI MAKES NO
REPRESENTATIONS OR GUARANTEES, WHETHER EXPRESSED OR
IMPLIED, ARISING BY LAW, CUSTOM, ORAL OR WRITTEN STATEMENTS,
OR OTHERWISE, WITH RESPECT TO ITS SOFTWARE OR SERVICES OF
THEIR CONDITION, MERCHANTABILITY, OR FITNESS FOR USE FOR ANY
PARTICULAR PURPOSE BY THE CITY.
4.2 AVOLVE warrants that for a period of thirty (30) days following successful
completion of the Project Services set forth in Exhibit 1 (referred to as the
'Warranty Period") that the Software media it provides under this Agreement is
delivered free from defects in material and workmanship. AVOLVE further
warrants, for CITYs benefit alone, that during the Warranty Period the
Software shall operate substantially in accordance with the functional
specifications in the User's Manual. If during the Warranty Period, a defect in
the Software appears, CITY may return the Software to AVOLVE for either
replacement or, if so elected by AVOLVE, refund of amounts paid by CITY under
this Agreement. CITY agrees that the foregoing constitutes CITY's sole and
exclusive remedy for breach by AVOLVE of any warranties made under this
Agreement. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE
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SOFTWARE, AND THE SOFTWARE CONTAINED THEREIN, ARE LICENSED
"AS IS," AND AVOLVE DISCLAIMS ANY AND ALL OTHER WARRANTIES,
WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. THE CITY ASSUMES THE ENTIRE RISK AS TO
THE QUALITY OF PERFORMANCE WITH RESPECT TO THE SOFTWARE
AND THE SOFTWARE CONTAINED THEREIN, EXCEPT AS SPECIFICALLY
PROVIDED IN THIS AGREEMENT.
Section 5. INDEMNIFICATION.
5.1 CSI shall indemnify, hold harmless and defend the CITY and all of its officers,
employees, agents and volunteers from and against all claims, demand, or cause
of action of every name and nature arising out of negligent error, omission, or act
of CSI, its agents, servants, or employees in the performance of its services
under this Agreement. In the event an action for damages is filed in which
negligence is alleged on the part of CITY and CSI, CSI agrees to defend CITY,
but only to the extent of CSI's own negligence.
5.2 CSI is not responsible for any third party claims that arise out of and public
content being displayed by the Software. The CITY acknowledges that the
display of this content is in the CITY's full control and accepts full responsibility
for the accuracy and appropriateness of publically displayed information.
5.3 To the extent that a claim, suit, action, or proceeding is brought by any third
party against CITY arising out of or based on a claim that CITY's use of CSI's
Software infringes a copyright, patent, or other intellectual property right
enforceable in Canada or the United States, CSI shall indemnify, hold harmless
and defend CITY and all of its officers, employees, agents and volunteers from
and against any and all costs, liabilities, and expenses (including, but not
limited to, reasonable attorneys' fees); provided that CITY (a) shall promptly
notify CSI of any claim, demand, action or other proceeding for which CITY
intends to claim indemnification; (b) gives CSI the right to participate in, and to
the extent CSI so desires jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel selected by CSI; and (c)
reasonably cooperates with CSI and its legal representatives in the investigation
of any claim, demand, action or other proceeding covered by this Section. If
CST's Software is held to infringe any intellectual property right, CSI may, in its
sole discretion and at its own expense, either procure a license that will protect
CITY against such claim without cost to CITY or replace the Software with a
non-infringing service with comparable functionality. Provided that CSI
complies with this Section, CITY shall have no additional remedy against CSI by
reason of a third party infringement claim.
5.4 AVOLVE shall indemnify, hold harmless and defend CITY and all of its officers,
employees, agents and volunteers from and against all claims, demand, or cause
of action of every name and nature arising out of negligent error, omission, or act
of AVOLVE, its agents, servants, or employees in the performance of its services
under this Agreement. In the event an action for damages is filed in which
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negligence is alleged on the part of CITY and AVOLVE, AVOLVE agrees to
defend CITY, but only to the extent of AVOLVE's own negligence.
5.5 To the extent that a claim, suit, action, or proceeding is brought by any third
party against CITY arising out of or based on a claim that CITY's use of
AVOLVE's Software infringes a copyright, patent, or other intellectual property
right enforceable in Canada or the United States, AVOLVE shall indemnify, hold
harmless and defend CITY and all of its officers, employees, agents and
volunteers from and against any and all costs, liabilities, and expenses
(including, but not limited to, reasonable attorneys' fees); provided that CITY (a)
shall promptly notify AVOLVE of any claim, demand, action or other proceeding
for which CITY intends to claim indemnification; (b) gives AVOLVE the right to
participate in, and to the extent AVOLVE so desires jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
selected by AVOLVE; and (c) reasonably cooperates with AVOLVE and its legal
representatives in the investigation of any claim, demand, action or other
proceeding covered by this Section. If AVOLVE's Software is held to infringe
any intellectual property right, AVOLVE may, in its sole discretion and at its own
expense, either procure a license that will protect CITY against such claim
without cost to CITY or replace the Software with a non-infringing service with
comparable functionality. Provided that AVOLVE complies with this Section,
CITY shall have no additional remedy against AVOLVE by reason of a third
party infringement claim.
Section 6. LEGAL REQUIREMENTS.
6.1 Compliance with Applicable Laws. CSI, AVOLVE and any subcontractor shall
comply with all applicable local, state and federal laws and regulations applicable
to the performance of the work hereunder.
6.2 Licenses and Permits. CONSULTANTS represent and warrant to CITY that
CSI, AVOLVE and their respective employees, agents, and any subcontractors
have all licenses, permits, qualifications, and approvals of whatsoever nature that
are legally required to practice their respective professions. CONSULTANTS
represent and warrant to CITY that CONSULTANTS's employees, agents, and
any subcontractors shall, at their sole cost and expense, keep in effect at all
times during the term or this Agreement any licenses, permits, and approvals that
are legally required to practice their respective professions. In addition to the
foregoing, CSI, AVOLVE and any subcontractors shall obtain and maintain
during the term of this Agreement valid Business Licenses from CITY.
Section 7. TERMINATION AND MODIFICATION.
7.1 Termination. This Agreement may be terminated at any time upon receipt of
written notice:
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7.1.1 By CSI or AVOLVE in the event that the CITY has any proceeding in bankruptcy
or insolvency and is more than 30 days overdue in payment to CSI.
7.1.2 By any party in the event the other fails to pay any undisputed fees pursuant to
this Agreement and such failure is not cured within 30 days after the party is
notified in writing of such failure.
7.1.3 By any party in the event that the other fails to remedy any material breach of this
Agreement within 30 days after written notice detailing the breach is provided by
the other party. For purposes of this Agreement, "material breach" by
CONSULTANTS is defined as a problem or defect with the software provided
which cannot be remedied within 30 days' notice by Customer and failure by CSI
or Avolve to cure. Customer's failure to pay any undisputed fees is also a
material breach of this Agreement.
7.1.4 By the CITY, without cause upon receipt of 90 days written notice, at which time
all material work of CONSULTANTS shall be returned to CONSULTANTS.
CONSULTANTS shall immediately cease work and all undisputed fees due and
payable at that time shall be made to CONSULTANTS unless both parties agree
to further work efforts.
7.1.5 By the CITY for cause, and if such cause is not cured within 30 calendar days
after written notice has been provided to CSI and/or AVOLVE, as applicable. The
CITY's remedy for termination for cause of either CSI or AVOLVE shall be a pro-
rated refund of the Software License fee and the remainder of any Maintenance
and Support fees paid to whichever entity is being terminated for cause. In the
event of termination for cause without remedy as outlined in this Subsection, CSI
and/or AVOLVE, as applicable, shall be entitled to compensation for services
performed to the effective date of termination; CITY, however, may condition
payment of such compensation upon CSI and/or AVOLVE, as applicable,
delivering to CITY any or all documents, photographs, video and audio tapes,
and other materials provided to CSI and/or AVOLVE or prepared for CSI and/or
AVOLVE by the CITY in connection with this Agreement.
7.2 Extension. Upon agreement of both parties, the CITY may extend the end date
of this Agreement beyond that provided for in Subsection 2.2. Any such
extension shall require a written amendment to this Agreement.
7.3 Amendments. The parties may amend this Agreement only by a writing signed
by all the parties.
7.4 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between CITY and
CONSULTANTS shall survive the termination of this Agreement.
7.5 Options upon material breach by CSI or AVOLVE. If CSI or AVOLVE
materially breaches any of the terms of this Agreement and is unable to cure as
outlined in Subsection 7.1.5, CITY's remedies shall include, but not be limited to,
any or all of the following:
7.5.1 Immediately terminate the Agreement under Subsection 7.1.5;
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7.5.2 Retain the plans, specifications, drawings, reports, design documents, and any
other work product prepared by CSI and/or AVOLVE, as applicable pursuant to
this Agreement so long as to not violate the intellectual property rights of CSI
and/or AVOLVE;
7.5.3 A timely refund of previously paid Software License fees to CSI and/or AVOLVE,
as applicable.
Section 8. KEEPING AND STATUS OF RECORDS.
8.1 Confidentiality of Records Created as Part of CONSULTANTS'
Performance.
8.1.1 All reports, data, maps, models, charts, studies, surveys, photographs,
memoranda, plans, studies, specifications, records, files, or any other documents
or materials, in electronic or any other form that CONSULTANTS obtain from the
CITY pursuant to this Agreement and that relate to the matters covered
hereunder shall be the property of the CITY. CONSULTANTS agree to deliver
those documents to the CITY upon termination of the Agreement. CITY,
CONSULTANTS agree that, until final approval by CITY, all data, plans,
specifications, reports and other documents are confidential and will not be
released to third parties without prior written consent of CITY and
CONSULTANTS, unless required by law. CONSULTANTS shall submit a
minimum of one electronic copy and may be required to also provide one hard
copy of any report, training and operating manual to CITY and CITY reserves the
right to make copies of such documents for internal use
8.1.2 Information will not be considered to be confidential information if (i) available to
the public other than by a breach of this Agreement; (ii) rightfully received from a
third party not in breach of any obligation of confidentiality, (iii) independently
developed by or for a party without access to confidential information of the
other; (iv) lawfully known to the receiving party at the time of disclosure, (v)
produced in compliance with applicable law, securities reporting requirement or
a government or court order, provided the other party is given notice and an
opportunity to intervene; or (vi) it does not constitute a trade secret and more
than three (3) years have elapsed from the date of disclosure.
8.2 System Documentation and Reports
a. CONSULTANTS shall supply full documentation, including site-specific
modifications, of the installed system. Final system documentation and
diagrams shall be provided in electronic form.
b. Documentation shall include, but not be limited to, configuration and
operation of all components of the system.
c. Ongoing system administration tasks to be performed by CITY personnel,
including, but not limited to, system startup and shutdown, system data
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backup and recovery, data integrity checks and database export procedures,
shall be completely and clearly explained in system documentation.
d. CITY reserves the right to make copies of system documentation for internal
use.
e. For each copy of each software module purchased under this Agreement,
CONSULTANTS shall supply a complete set of user manuals.
8.3 Ownership of Intellectual Property and Trademarks.
8.3.1 Intellectual Property. CONSULTANTS own all right, title, and interest in and
to all intellectual property rights (including all derivatives or improvements
thereof) in their respective software and any suggestions, enhancements
requests, feedback, recommendations or other information provided by CITY or
any of its users related to the software. CITY's rights in the software, updates,
and the related materials supplied by CONSULTANTS pursuant to this
Agreement are strictly limited to the right to use the proprietary rights in
accordance with the terms of this Agreement. No right of ownership, expressed
or implied, is granted under this Agreement.
8.3.2 Trademark. No right, license, or interest to trademarks held by
CONSULTANTS is granted hereunder, and CITY agrees that no such
right, license, or interest shall be asserted by CITY with respect to such
trademarks.
8.4 Source Code. CONSULTANTS' Software source code is confidential and
proprietary to each of them. CONSULTANTS agree to release the Software
source code and the necessary installation materials to the CITY if either
CONSULTANT declares inability to operate as a business and
surrenders/liquidates all company equity without validly assigning its
maintenance obligations and its obligations under the Agreement to a competent
third party.
Section 9. MISCELLANEOUS PROVISIONS.
9.1 Governincl Law and Venue. This Agreement shall be governed in accordance
with the laws of the State of California. The Uniform Computer Information
Transactions Act, the United Nations Convention on the International Sale of
Goods and choice of law rules of any jurisdiction will not apply to this
Agreement. Any legal action or proceeding relating to this Agreement shall be
instituted in a state or federal court in Santa Clara County, California, and each
party hereby submits to the personal jurisdiction of such courts and waives any
defense related to venue or forum non conveniens.
9.2 Export Restrictions. CITY agrees to comply strictly with all export laws and
restrictions or regulations of the United States or foreign agency or authority,
and not to export, or allow the export or re-export of the Software,
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Documentation or any technical data in violation of any such restriction, law or
regulation, without all necessary approvals.
9.3 Attorneys' Fees. If any party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees
and expenses including costs, in addition to any other relief to which that party
may be entitled. The court may set such fees in the same action or in a separate
action brought for that purpose.
9.4 Severability. If a court of competent jurisdiction finds or rules that any provision
of this Agreement is invalid, void, or unenforceable, the provisions of this
Agreement not so adjudged shall remain in full force and effect. The invalidity in
whole or in part of any provision of this Agreement shall not void or affect the
validity of any other provision of this Agreement.
9.6 No Implied Waiver of Breach. The waiver of any breach of a specific provision
of this Agreement does not constitute a waiver of any other breach of that term or
any other term of this Agreement.
9.6 Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of and shall apply to and bind the successors and assigns of the parties.
9.7 Assignment, This Licensed Software and any other information or rights
provided by CONSULTANTS, may not be sold, leased, assigned, sublicensed or
otherwise transferred in whole or in part. CITY may not assign this Agreement
or the benefits there from in whole or in part without the prior written consent of
CONSULTANTS and consent shall not be unreasonably withheld. Any
assignment made in conflict with this provision shall be voidable at the option
of CONSULTANTS.
9.8 Publicity. CONSULTANTS may identify CITY on their customer lists and list
CITY as a customer in their marketing and advertising materials.
9.9 Insurance. CONSULTANTS agree to provide insurance as described in Exhibit
3.
9.10 Equal Opportunity. CONSULTANTS comply with their state's Equal
Employment Opportunity Program and other applicable Federal, State, and
County laws, regulations and policies. CONSULTANTS shall not unlawfully
discriminate against any employee, applicant for employment, or service
recipient on the basis of race, national origin or ancestry, religion, sex, marital
status, age, political affiliation or disability.
9.11 Recycling. CONSULTANTS shall make a reasonable effort to comply with
CITY'S recycled product purchasing standards policy, which requires vendors to
use recycled paper for proposals/reports and for any printed or photocopied
material created as a result of a contract with the CITY. The policy also requires
vendors to use both sides of paper sheets for reports submitted to the CITY
whenever practical.
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9.12 Conflict of Interest. CONSULTANTS and CITY shall make all reasonable
efforts to ensure that no conflict of interest exists between their officers,
employees, or subcontractors, and CITY. CONSULTANTS and CITY shall make
all reasonable efforts to ensure that no CITY officer or employee, whose position
with CITY enables him/her to influence any award of this Agreement or any
competing offer, shall have any direct or indirect financial interest resulting from
the award of this Agreement or shall have any relationship to the
CONSULTANTS. In the event that CITY determines a conflict of interest
situation exists, CITY may disallow any increase in costs associated with the
conflict of interest situation and such conflict may constitute grounds for
termination of the Agreement. This provision shall not be construed to prohibit
employment of persons with whom CITY'S officers, employees, or agents have
family, business, or other ties so long as the employment of such persons
does not result in increased costs over those associated with the employment of
any other equally qualified applicant.
9.13 Disclosure of Criminal and Civil Proceedings. CITY reserves the right to
request the information described herein from CONSULTANTS. CITY also
reserves the right to obtain the requested information by way of a background
check performed by an investigative firm. CONSULTANTS may be asked to
disclose whether the firm, or any of its partners, principals, members,
associates or key employees (as that term is defined herein), within the last ten
years, has been indicted on or had charges brought against it or them (if still
pending) or convicted of any crime or offense arising directly or indirectly from
the conduct of the firm's business, or whether the firm, or any of its partners,
principals, members, associates or key employees, has within the last ten years,
been indicted on or had charges brought against it or them (if still pending) or
convicted of any crime or offense involving financial misconduct or fraud. If the
response is affirmative, CONSULTANTS shall describe any such indictments or
charges (and the status thereof), convictions and the surrounding circumstances
in detail. In addition, CONSULTANTS may be asked to disclose whether the
firm, or any of its partners, principals, members, associates or key employees,
within the last ten years, has been the subject of legal proceedings as defined
herein arising directly from the provision of services by the firm or those
individuals. "Legal proceedings" means any civil actions filed in a court of
competent jurisdiction, or any matters filed by an administrative or regulatory
body with jurisdiction over the firm or the individuals. If the response is
affirmative, CONSULTANTS shall describe any such legal proceedings (and the
status and disposition thereof) and the surrounding circumstances in detail. For
purposes of this provision "key employees" includes any individuals providing
direct service to CITY. "Key employees" do not include clerical personnel
providing service at the firm's offices or locations.
9.14 improper Consideration. CONSULTANTS shall not offer (either directly or
through an intermediary) any improper consideration such as, but not limited to,
cash, discounts, service, the provision of travel or entertainment, or any item of
values to any office, employee, or agent of CITY in an attempt to secure
favorable treatment regarding the award of this proposal. CITY, by written
notice, may immediately terminate this Agreement if it determines that any
improper consideration as described was offered to any officer, employee, or
agent of CITY with respect to the Agreement. CONSULTANTS shall
Page 12 of 14
immediately report any attempt by a CITY officer, employee or agent to solicit
(either directly or through an intermediary) improper consideration from
CONSULTANTS. The report shall be made to the supervisor or manager
charged with supervision of the employee or to CITY'S Administrative Office.
9.16 Notices.
Any written notice to CSI shall be sent to:
Jeffrey Smith, President
Computer Software, Inc.
100 Highpoint Drive, Suite 104
Chalfont, PA 18914
215.822.9100
Jeffrey.Smith@computersoftwareinc.com
Any written notice to CITY shall be sent to:
City Manager
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
408.777.3212
citvmanager(o)cupertino.org
Any written notice to AVOLVE shall be
sent to:
Ronald Loback, President/CEO
AVOLVE Software
4835 E. Cactus Road, Suite 420
Scottsdale, Arizona 85254
602-971-6061
rloback(a)AVOLV Esoftware.com
9.16 Integration. This Agreement, including the Scope of Work attached hereto and
incorporated herein as Exhibits 1, 2, and 3, represents the entire and
integrated agreement between CITY, and CONSULTANTS and supersedes all
prior negotiations, representations, or agreements, either written or oral.
9.17 Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be an original and all of which together shall constitute one
agreement.
Page 13 of 14
Section 10. Force Maieure.
CONSULTANTS' failure to perform any term or condition of this Agreement as a result of
conditions beyond their control such as, but not limited to, war, terrorist attacks, strikes,
fires, floods, acts of God, governmental restrictions, power failures, or damaged or
destruction of any network facility or servers, shall not be deemed a breach of this
Agreement.
Section 11. The Parties have executed this Agreement as of the Effective Date.
CITY OF CUPERTINO CSI
Signature of Authorized Representative Sign ure of Authorized Repr sentative
Printed Name of Authorized Representative Printed Name of Authorized Representative
2MC5�
Title Title
"OLVE
t
Signature of Authorized Representative
Printed Name of Authorized Representative
Title
CSI&Avolve 3 Party Software Agreement Cupertino CSl revision 1-31-12
Page 14 of 14
EXHIBIT 1
SCOPE OF WORK
AND SCHEDULE OF FEES AND PAYMENTS
I. Software, Licenses and Services to be provided by CSI:
A. MAGNET Software Licenses Included (unlimited users)
1. MAGNET Core
a. Parcel Manager
b. Real time GIS Interface
c. State, City and/or unincorporated community interfaces
d. Financial system interface
e. County Assessor Interface
f. Document imaging interface
g. GIS Mapping Tools
h. Full access to MAGNET reports, forms, and certificates
2. Permitting and Inspections Module
3. Land Development Manager Module
4. Business Licensing Module
5. Code Enforcement&Violations Manager Module
6. Citizen Response Management
7. CITY Web Portal Module
8. Mobile Module (hardware not included)
9. Data conversion process
B. CS] Services
1. Development of a Project Plan in Phases, with concurrence of CITY.
2. Project Management.
3. Software Set Up, Configuration, Programming, and Testing.
4. Design, implement, test, and maintain the interfaces outlined in the Cost
Summary of CST's Proposal. As described in CSI's Proposal, the success
of interfacing with third party applications is dependent on the third party
products supporting the desired business functions as well as providing
the necessary interface documentation. Maintenance of these interfaces
are contingent upon the continued, timely payment of annual
maintenance and support fees by the CITY, outlined in Section 3 of the
Software Services Agreement.
5. Unlimited creation of reports, forms, and certificates.
6. Unlimited data migration & verification of CITY's legacy system
databases, spreadsheets, etc. as outlined in the Cost Summary of CSI's
Proposal provided CITY provides clear mapping of the legacy source and
destination.
Page 1 of 11
7. CITY and CSI will work cooperatively when configuring the portal
disclaimers and click-through agreement language used on the CITY's
configuration of the MAGNET CITY Web Portal to protect both the CITY
and CSI.
8. CITY training on-site to cover all system users; Unlimited re-training
available, as needed, to any user who has previously gone through the
CSI training program. Free re-training will be provided remotely. If the
CITY requests onsite re-training, the CITY will be responsible for the
reimbursement of travel expenses and CSI will bill the expenses as
incurred.
9. Unlimited Maintenance and Support provided by the CSI Live Help Desk.
Maintenance and Support services shall be provided as defined in the
proposal response and are contingent upon the continued, timely
payment of annual maintenance and support fees by the CITY, outlined in
Section 3 of the Software Services Agreement.
C. Additional Scope of Work
1. Unlimited Concurrent Users
2. Zero On-Going Licensing Fees.
3. Unlimited Data Conversion for a Not-to-Exceed Price.
4. CSI's Total Training Approach includes all system end users for a not-to-
exceed price.
5. Specialized IT Administrator training included.
6. Free Unlimited Re-Training Sessions for any previously trained MAGNET
user.
7. Unlimited access to all reports, user dashboard widgets, forms, and
certificates in the MAGNET Library and ability to request at no additional
cost unlimited additional items not currently in the Library.
8. Multi-Lingual Customer Web Portal including Cantonese, Mandarin,
Spanish, and English.
9. The City's choice of any one of the three MAGNET Mobile options,
including the iPad Mobile Application.
10. Configuration and on-going maintenance of integrations to all requested
systems
Page 2 of 11
Software Licenses & Implementation Services
MAGNET Software Licenses & Implementation Services
• Software Licenses includes an unlimited number of City of Cupertino user seats for iPad
Mobile Module, Permitting, Inspections, Business Licensing, Planning, Land Use &Zoning
Management, External Customer Web Portal, and Code Enforcement& Citizen Response.
• Implementation Services includes System Set Up, Configuration, Programming, Project
Management, Interfacing, Data Conversion, and Training for an unlimited number of users.
ePlan Review Module Licenses & Implementation Services
• Software Licenses includes an unlimited number of City of Cupertino user seats for the
ProjectDox ePlan Review Module component of the City's total software solution.
• Implementation Services includes System Set Up, Configuration, Programming, Project
Management, Interfacing, and Training for an unlimited number of users.
Software Maintenance & Support Services
1. This includes the software maintenance and support services for all of the back-
office modules for Permitting, Inspections, Business Licensing, Planning, and Public
Works in addition to the modules for Electronic Plan Review, Customer Web Portal,
and in-field iPad Mobile Application. The CSI Support and Maintenance Program
also includes maintenance and support on the various system integrations for GIS,
Finance, County Assessor, State Licensing Board, and the Document Management
System.
2. City will receive all future software updates and feature releases at no additional cost
and free re-training for City staff for the lifetime of the system. The City is always
guaranteed to have access to the latest version of the MAGNET software at no
additional cost and to have a staff that is fully versed in the system and leveraging all
that it has to offer through their knowledge gained in ongoing CSI Training Sessions.
3. The annual maintenance program includes unlimited 7am to 6pm PST phone
support and email support, and unlimited requests for additional reports, user
dashboard widgets, forms, and certificates.
4. CSI will provide maintenance and support of all City MAGNET Modules and
Interfaces (all Back-Office Modules, Front-Office Customer Web Portal, and In-Field
iPad Mobile).
Page 3 of 11
5. CSI will provide all maintenance and support for the ProjectDox ePian Review
Module component of the City's total software solution.
Detailed MAGNET Scope of Work
- • �
MAGNETMunicipal Software Package includes:
• MAGNET Core(Base System)
Parcel manager, workflow, notifications, reporting, administrative panel, GIS
mapping tools, application tracking, etc.
• Permitting and Inspections Module
All City permit types supported.
Additional types can be added on at any time for no additional cost.
• Code Enforcement &Violations Management Module
All City types supported (includes citizen response management).
Additional types can be added on at any time for no additional cost.
• Land Development Module
All City planning, land use, zoning, and development review types
supported.
Additional types can be added on at any time for no additional cost.
• Business License Manager
All City types supported.
Additional types can be added on at any time for no additional cost.
• MAGNET Mobile Module
City will have its choice of any of the three MAGNET Mobile options listed in
our RFP response, including the MAGNET iPad Mobile Solution. 'Software
included. Hardware purchased separately.
Customer Portal and Service Package includes:
• Bi-Lingual
• Online Resident Mapping Viewer
• Online citizen complaints
• Online web-based applications for projects, permits, and licenses
• Online web-based information retrieval for properties, projects, permits, and
licenses
• Ability to obtain case information and case status
• Registration system
• Ability to schedule inspections
• Permitted uses document for every parcel
• Print Plot Plan on Graph Paper
• Online Acceptance of credit cards (does not include any payment gateway
charges)
Page 4 of 11
PROFESSIONAL
Project Management&Installation:
Coordinated by MAGNET implementation engineer. Requirements gathering, project
management, server hardware integration & configuration, testing, MAGNET software installation
and setup.
Programming Requirements:
Configuration:
All business rules, data fields, workflows, etc. will be configured to the specific needs and
requirements of the Community Development Department.
Reports, Forms, and Certificates:
The City will have full access and use of all the reports, forms, and certificates in the MAGNET
Library. Additionally, during the implementation process, your MAGNET Implementation Engineer
will work with the City to determine if there are any further reports, forms, or certificates the City
desires which CSI hasn't already developed as part of its library. If the City has an additional
report, form, or certificate they need, CSI will create this for the City at no additional charge and,
at the City's permission, CSI will add the new templates to the MAGNET Library for the benefit of
other municipalities. Likewise, when other MAGNET clients add to the library, the City will benefit
from the free use of these templates.
Interfacing:
CSI will design, implement, test, and maintain the interfaces requested by the City. Interfaces
Include: ESRI ArcGIS, County Assessor Data, California State Licensing Board, Financial
Software (i.e. SunGard), and Document Imaging System (LaserFiche).
Data Migration Cost:
CSI will migrate and import the City data from all existing relevant database systems (includes the
City's CommPlus SQL database, SunGard Pentamation, along with the Planning data in MS
Access (front-end) and SQL (back-end)). Data Migration also includes all of the City's digital
workstation files as necessary and in supported file format(Excel, Word, Access, etc.) currently
used by the City for. This includes, for example, the permit and receipt data files from the old MS
Excel legacy system.
D. System Testing and Acceptance
1. System Acceptance.
a. Once a Project Plan is developed, the performance period for each Phase
shall be mutually agreed by CITY and CSI in writing
b. CITY will grant system acceptance of each successful portion or Phase of
the Project after successful completion of the Performance Period, and the
completion of all tasks and work items identified in this Agreement for each
Phase.
Page 5 of 11
c. Acceptance testing shall be conducted in accordance with the Acceptance
Test Plan, as outlined below.
Inspection and Acceptance
Work supply or performance shall be conducted and completed in
accordance with recognized and customarily accepted industry practices,
and shall be considered complete when the services are approved as
acceptable by CITY (acceptance is defined in the paragraph below). In
the event of rejection of any deliverable, CSI shall be notified and shall
have fourteen (14) calendar days from date of issuance of notification to
correct the deficiencies and resubmit the deliverable.
Acceptance: The functionality of the system to be deemed acceptable is
based on the Scope of Work, as set forth in the RFP and as summarized
in this EXHIBIT 1. Acceptable availability is defined as follows:
a. Internally, all data viewing/editing functionality required for staff to
complete their work will be available and functioning within the
specified parameters.
b. Externally, the public portal must be operational for the system to be
considered acceptable
2. Performance Benchmarks.
During the installation and testing period, CITY and CSI shall work to
develop reasonable performance benchmarks that can be used to define
the successful operation of the system in the future. CSI agrees that such
beginning benchmarks shall be the standard for which CSI will attempt to
keep CITY's system performing to these same levels.
Il. Software, Licenses and Services to be provided by AVOLVE:
A. ProjectDox Electronic Plan Review Module (unlimited users)
1. Software Licenses provided by AVOLVE shall include ProjectDox
Electronic Plan Review Module (unlimited users).
B. Implementation services including: system set-up, configuration,
programming, project management, interfacing and training for an
unlimited number of users.
C. Maintenance and support shall include all maintenance and support for
the ProjectDox ePlan Review Module component of the City's total
software solution.
1. Schedule must be confirmed by both CITY and AVOLVE prior to
the start of the QuickStart engagement, and the CITY and
AVOLVE agree to conform to this schedule to the extent possible.
Changes in the schedule will require the agreement of both CITY
and AVOLVE.
Page 6 of 11
Project Schedule:
ProjectDox QuikStart Implementation Schedule
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III. Payments
A. Payment Information for CSI's Software, Licenses and Services:
Year 1 is defined in Sections IV.A and IV.B as commencing 30 days following go-live.
YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5
1. Software License, Setup, $473,410.00 $0.00 $0.00 $0.00 $0.00
Config(one-time).
Software Maintenance & $38,439.00 $38,439.00 $40,360.95 $40,360.95 $42,379.00
Support(annual)
Avofve ProjectDox Review
Maintenance & Support INCLUDED $20,880.00 $21,924.00 $21,924.00 $23,020.20
(annual)
Estimated Travel — not to $10,000 --
exceed amount
B. Payment Information for AVOLVE's Software, Licenses and Services (Cost
included in Tables III.A, IV.A, and IV.B):
Page 7 of 11
ProjectDox QuikStart Pricing Agreement
Product Name Product Quantity Unit Price Total Price
Code
ProjectDox System(75,000 Population) 380-QS75 1 $89,000.00 $89,000.00
Building Permits Standard Workflow
Process included in QuikStart 380-AWP-BP 1 $0.00 $0.00
Configuration
Incremental Workflow Process per
RFP requirements 360-AWP-LD 1 $27,000.00 $27,000.00
Permitting System-Bi-directional integration I
380-1NT-PS 1 $10,000.00 $10,000.00
Total Software(included in total cost of Software License, Setup, Config(one-time) $126,000.00
noted in Table IV.A. Section 1)
Total yearly maintenance cost $20,880.00
'Included for the first year. Begins in month 13.
1. The AVOLVE ProjectDox QuikStart 30 Business-Day Guarantee: AVOLVE Software
guarantees that the ProjectDox QuikStart software and the standard Workflow
process will be installed, configured, tested and validated as operational for use.
AVOLVE Software also guarantees that the SA/PA/Viewer Training will be delivered
to the CITY's designated staff according to the implementation schedule in this
Exhibit 1.
2. CITY acknowledges that the ProjectDox QuikStart program and its
implementation are based on AVOLVE's standard QuikStart configuration.
ProjectDox QuikStart software license is based on contract terms and conditions
per single business workflow process (e.g. Building Plan review) and no custom
enhancements with the exception of the additional Incremental Workflow Process
that has been included according to the requirements stated in the CITY's RFP.
The license file will contain the required information for licensing the associated
Job Processor that will be used by the IIS (ProjectDox) server. The license
file is server-specific and, if a server is changed or moved, a new license file will
need to be generated and applied to all servers in the ProjectDox environment.
3. CITY acknowledges that full compliance with all required hardware specifications
and network configurations described in the QuikStart Requirements and
Configuration Specifications Guide must be verified by all parties prior to
software installation.
4. CITY acknowledges that the 30-day deployment guarantee refers to thirty (30)
business days from the date Software installation is completed.
Jurisdiction/Agency/Department time-off and/or holidays is not included. A notice
confirming the Software installation date will be sent to the designated CITY
contacts by the AVOLVE Professional Services team, and will include the
calculated "system production-ready" date that will act as the deployment
deadline.
Page 8 of 11
5. CITY agrees not to make any CITY-initiated modifications to AVOLVE software,
or associated hardware or network configurations during the QuickStart process,
unless at the request of AVOLVE
6. Maintenance for the first effective year is waived. This includes all maintenance
for 13 months past the date of go-live of the ProjectDox module. Maintenance
includes all service packs, service releases, and upgrades to modules
purchased. Maintenance also includes unlimited help desk support available from
7 a.m. to 5 p.m. Arizona time, Monday through Friday as well as web and email
support.
7. Licensing will be based on the IP address or Hostnames for the servers and is
not based on number of users or transactions. The license file is server specific
and if a server is changed or moved a new license file will need to be
generated and applied to all servers in the ProjectDox environment.
8. Maximum of 10 persons per training class (each with a computer).
9. ProjectDox Test Systems are available for$15,000.00. Maintenance for the test
server is provided at no charge if maintenance on the production system is paid
and current.
10. EFT Information:
Bank: Compass Bank
Routing: 122105744
Account#: 2519753300
IV. Schedule of Payments
A. Software licensing, system setup, configuration, programming, data migration,
training, and other services as described in the proposal and amount specified in this
agreement, will be billed based on progress according to the milestones of the
project schedule. A full payment schedule can be referenced below. The dates of the
payment schedule will be agreed upon by both parties upon Execution of this
Agreement and will be according to CONSULTANT'S progress against the project
schedule.
Progress based payment schedule:
MilestoneDate
Project Start Milestone $138,840 Upon Execution of Contract
ProjectDox ePlan Review Module $126,000 30 Days Post-Contract Execution
After Completion of Ready to Build $34,710 TBD
Milestone
After Completion of Ready to Test $52,065 TBD
Milestone
After Completion of Ready to Pilot $52,065 TBD
Milestone Soft Launch
After Completion of Ready to Use
Milestone (Final Payment) $69,420 Upon Go-Live
Year 1 Maintenance and Support $38,439 30 Days Post- Go-Live
Page 9 of 11
B. Software Maintenance and Support
The first year of Maintenance and Support will be billed 30 days following go-live
(milestone defined in Table IV "Schedule of Payments"). Each subsequent year will be
billed on the twelve (12) month anniversary of the go-live anniversary. Annual
increases will only occur on an every-other-year basis and will not exceed five percent
(5%). Software Maintenance will be billed annually according to the following schedule:
OngoingSchedule of
Payments
Year 1 (CSI only—ProjectDox fee
waived) $38,439.00
Year (CSI and ProjectDox) $59,319.00
Year (CSI and ProjectDox) $62,284.95
Year (CSI and ProjectDox) $62,284.95
Year 5(CSI and ProjectDox) $65,399.20
C. Travel Expenses
1. Travel Expenses will be billed as incurred according to the following schedule:
CSI rates
Per Diem Rate $177.00/da
Airfare $400.00/fli ht
Rental Car $50,00/da
Avolve rates if different
Per Diem Rate not utilized jActual
Airfare Actual
Rental Car Actual
Total for CSI and Avolve not to exceed
$10,000 per this contract.
All rates according to the City of Cupertino implementation schedule are CSI and
Avolve's best estimates for budgetary purposes. Travel expenses are invoiced
by CSI and Avolve as incurred.
A VOL VE will provide an invoice for the full amount of reasonable and customary
travel expenses to CSI for payment by the CITY. All travel and expense
payments are due net-30 days from the invoice date. AVOLVE agrees that
under no circumstances will travel costs above a total cumulative amount of
$5,000 be paid by the CITY during the QuikStart process without the express
written consent of the CITY.
Page 10 of 11
D. Extra Services
Services outside the scope of this Agreement are available to the CITY at the
following rates:
1. Extra Services Provided by CSI: $125 per hour, plus actual travel expenses.
2. Extra Services Provided by AVOLVE: $125/HR, plus actual travel expenses.
CSI&Avolve Agreement Exhibit Scope 1 Scope of Work and Payment CSI input 1-31-12
Page 11 of 11
EXHIBIT 2
MAINTENANCE
1. Scope of Maintenance Exhibit. This Exhibit describes the Technical Support
plans and terms and conditions currently applicable to the Software offered by Avolve
Software Corporation ("Licensor"). The Technical Support described below does not
expand or change any warranty provisions set forth in the Three Party Agreement Between
the City of Cupertino ("Licensee"), Computer Software, Incorporated, and Avolve Software
Corporation for Software, Licensing Maintenance and Support Services ("Agreement").
Capitalized terms used in this Exhibit and not separately defined below shall have the
meanings set forth in the Agreement.
2. Terms and Conditions Related to Standard Technical Support. Licensor
will provide the following standard Technical Support for the Software:
a. Designation of a User Login and Password. Licensee must register with
Licensor unique passwords and user names, which will be required when seeking
Technical Support. Licensee acknowledges and agrees that Licensee is prohibited
from sharing passwords and/or user names with unauthorized users. Licensee will
be responsible for the confidentiality and use of passwords and user names.
Licensor will act as though any electronic communication it receives under
Licensee's passwords, user names, and/or account number will have been sent by
Licensee. Licensee agrees to immediately notify Licensor if Licensee becomes
aware of any loss or theft or unauthorized use of any passwords, user names, and/or
account number.
b. Software Updates. Licensee will receive, at no additional charge, during
the term of its Maintenance Agreement all minor (e.g. from Release 1.0 to 1.1) and
major updates (e.g. from Release 1. 1 to 2.0) of the Software as they are generally
made available by Licensor. Where applicable, Licensee will also be entitled to driver
updates. Licensee will be notified by email when updates are available and may also
visit Licensor's website at www.avolvesoftware.com for current information
concerning updates. All Software and driver updates are provided under, subject to,
and governed by the terms and conditions of this Agreement. Upon installation of
updated Software, Licensee must destroy all prior releases/versions of the Software it
may have in its possession.
C. E-mail, Fax and Telephone Support. Licensee may contact Licensor's
helpdesk by phoning 602-714-9774 x1112 and speaking with a support
representative. Depending on availability, Licensee may be routed to voice mail to
report the problem. Licensee may send Licensor an email through Licensor's
customer support web interface, located in the technical support section of
Licensor's website, www.avolvesoftware.com, or by sending a fax to 602-923-3544.
Any e-mail or fax requests identifying potential errors or problems in Licensee's use
of the Software should provide Licensor with sufficient information to reproduce the
error. Licensor's helpdesk personnel will assist Licensee in accessing and utilizing
the Software, and work with Licensee in good faith to determine the final disposition
of all reported problems or errors, including identifying and providing
workarounds for any problem discovered. Assistance may include communicating
via telephone, e-mail, our Support web site, or if allowed by Licensee, remote
desktop sharing.
d. Support Hours. Licensor's helpdesk currently accepts calls, e-mails, and faxes
from 7 a.m. to 5 p.m., U.S. Arizona Time Monday through Friday (excluding standard
U.S. holidays).
e. Error Corrections. Licensor will use commercially reasonable efforts to
correct any reproducible and material programming error discovered in the Software
applying a level of effort reasonably commensurate with the severity of the error.
Licensor is not responsible for correcting errors that result from problems residing
outside of the Software. Typically, Licensor will address errors through updates to
the Software, but on occasion and at its sole discretion may provide Licensor with
an interim correction (such as a work-around) pending formal implementation of an
update.
f. Licensee's Suggestions: Any errors or suggested changes, clarifications,
additions or other improvements to the Software which Licensee communicate to
Licensor shall constitute Licensee grant to Licensor, without charge or other
obligation, of the right to incorporate such suggestions, changes and modifications
into the Software under Licensor's standard intellectual property notices.
3. Non-qualifying Issues & Events
a. Non-Qualified Products. Licensor does not provide Technical Support for
any hardware or software product that is not part of the Software licensed to
Licensee by Licensor (a "Nonqualified Product"). Licensee remains responsible for
the compatibility and functioning of Nonqualified Products with the Software. If
Licensor provides Technical Support for a problem caused by a Nonqualified
Product or the failure of Licensee's computer system or environment to comply
with the technical specification requirements included in the documentation
provided with the Software (or Licensor's Technical Support efforts are
materially increased as a result of Licensee's use of Nonqualified Products or
failure to comply with the technical specification requirements), Licensor
reserves the right to charge Licensee time and materials for such extra services at
Licensor's then current published rates for customized, premium technical support
services. No work on non-qualified products may take place without prior consent of
the Licensee.
b. Other Exclusions. Licensor's Technical Support does not cover:
(1) Software that has been superseded by a new update/release for
more than one (1) year;
(2) Altered, damaged, or modified Software;
(3) Software installed in an operating environment that is not supported by
Licensor or used other than as specified in the user manual.
4. General Terms and Conditions
a. Initial Term. For the term specified in Section 2.2 of the Three Party
Agreement and initiating on the date of development and deployment of the
ProjectDox product (unless, pursuant to the terms and conditions of the Agreement it
is terminated earlier) Licensee will be entitled at no extra charge to standard
Technical Support(the"Initial Term")for the Software.
b. Renewal Terms. Licensor shall automatically renew the standard Technical
Support at the end of the 'Initial Term" and every anniversary thereafter at the rates
listed in Exhibit 1, as a part of the integrated price for annual support for MAGNET
and ProjectDox.
c. Maintenance Fees. Maintenance fees are fully described in Exhibit 1.
CSI & Avolve Agreement Exhibit 2 Maintenance CSI input 1-31-12
EXHIBIT 3
Insurance Requirements
CONSULTANT shall purchase and maintain the insurance policies set forth below at its sole
cost and expense. Such policies shall be maintained for the full term of this Agreement. The
term "City" shall include the duly elected or appointed council members, commissioners,
officers, agents, employees and volunteers of the City of Cupertino, California, individually or
collectively.
1. MINIMUM SCOPE AND LIMITS OF REQUIRED INSURANCE POLICIES.
On or before the commencement of the terms of this Agreement, CONSULTANT shall furnish
City with certificates showing the type, amount, class of operations covered, effective dates and
dates of expiration of insurance coverage in compliance with this Exhibit. These certificates,
which do not limit CONSULTANT'S indemnification, shall also contain substantially the
following statement: "Should any of the above insurance covered by this certificate be canceled
or coverage reduced before the expiration date thereof, the insurer affording coverage shall
provide thirty (30) days' advance written notice to the City of Cupertino by certified mail,
"Attention: City Manager." Endorsements naming the City as additional insured shall be
submitted with the insurance certificates. The following policies shall be maintained with
insurers authorized to do business in the State of California and shall be issued under forms of
policies satisfactory to the City:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liabili :
Commercial general liability coverage in the following minimum limits:
Bodily Injury: $1,000,000
each occurrence
$2,000,000
aggregate-all other
Property Damage: $500,000 each occurrence
$1,000,000 aggregate
If submitted, combined single limit policy with aggregate limits in the
amounts of $2,000,000 will be considered equivalent to the required
minimum limits shown above.
(3) Automotive:
Comprehensive automobile liability coverage in the
following minimum limits:
Bodily injury: $500,000 each occurrence
Property Damage: $500,000 each occurrence
or
Combined Single Limit: $1,000,000 each occurrence
2. SUBROGATION WAIVER.
CONSULTANT agrees that in the event of loss due to any of the perils for which it has agreed to
provide comprehensive general and automotive liability insurance, CONSULTANT shall look
solely to its insurance for recovery. CONSULTANT hereby grants to City, on behalf of any
insurer providing comprehensive general and automotive liability insurance to either
CONSULTANT or City with respect to the services of CONSULTANT herein, a waiver of any
right to subrogation which any insurer of the CONSULTANT may acquire against City by virtue
of the payment of any loss under the insurance.
3. ABSENCE OF INSURANCE COVERAGE.
City may direct CONSULTANT to immediately cease all activities with respect to this
Agreement if it determines that CONSNT fails to carry, in full force and effect, all insurance
policies with coverages at or above the limits specified in this Agreement. Any delays or
expense caused due to stopping of work and change of insurance shall be considered
CONSULTANT'S delay and expense. At the City's discretion, under conditions of lapse, City
may purchase appropriate insurance and charge all costs related to such policy to
CONSULTANT.
4. PROOF OF INSURANCE COVERAGE AND COVERAGE VERIFICATION.
A Certificate of Insurance, on an Accord form, and completed coverage verification shall be
provided to City by each of CONSULTANT'S insurance companies as evidence of the stipulated
coverages prior to commencement of this Agreement, and annually thereafter for the term of this
Agreement. All of the insurance companies providing insurance for CONSULTANT shall have,
and provide evidence of, a Best Rating Service rate of A VI or above. The Certificate of
Insurance and coverage verification and all other notices related to cancellation or non-renewal
shall be mailed to:
City Clerk
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3202