16-027 Computer Software Inc. (CSI) and Avolve, Tolling AgreementTOLLING AGREEMENT
THIS AGREEMENT is entered into between City of Cupertino (the "City") and Computer
Software, Inc. ("CSI").
EECITALS
In Febmary, 2012, the City entered into in Agreement with CSI and A VOL VE for the
purchase, installation, training and related services for a comprehensive on-line permit tracking
system and plan review software for 811 integrated "Land Use and Zoning Management,
Pennitting, Code Enforcement, Inspections and Business License Software" ("Software
Agreement") totaling $473,410.
On May 6, 20,14, the City notified CSI and A VOL VE through e-mail and U.S. Mail of
the alleged deficiencies in their performance and a demand to cure under the Software
Agreement.
On August 5, 2014, the City notified CSI and AVOLVE through e-mail and U.S. Mail of
further alleged deficiencies requiring correction under the Software Agreement, and stating that
the "City does not have a functioning integrated system, and by referring to 811 item as
'completed' the City reserves all rights and remedies under the contract, including those if
system does not perform as required."
On December 3, 2014, the City Manager sent a letter to CSI and AVOLVE demanding
that they complete the project and provide a ftmctioning integrated land use and zoning softwarn
system ("software system").
On April 30, 2015, at the City's request, CSI forwarded a letter stating its contention that
neither party was in breach of the Software Agreement at that time and confirming CS I's
Tolling Agreement -City of Cupertino/CSl/ AVOLVE Page 1 of3
agreement that claims be tolled effective April 30, 2015 provided prior notices of alleged default
were withdrawn. That letter was accepted by the City without objection tmtil February 2, 2016.
The City agreed to CST and AVOLVE's request for additional time and opp01iunity to
complete the Software Agreement, to provide a functioning software system and to address the
remaining items to be completed, to the satisfaction of the City.
On or about January 11, 2016, CST conducted an internal "go live" testing of most but not
all aspects of the permit tracking system and is continuing in its efforts to complete the project
and provide a fully functional integrated land use and zoning software system. The parties are
entering into this tolling agreement to provide additional time for CSI's completion, testing and
fue Citis use offue Software Agreement and System to the satisfaction of the City.
Pending final completion of the project and CSI's providing the City with a fully
functional Software System, and completion of CSI's rights, duties and responsibilities lmder the
Software Agreement, the parties wish to avoid the expense oflitigation.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
In consideration of the forbearance of the City or CSI from commencing or instituting
any action, including any action with respect to the above facts, the parties hereby agree that all
applicable statutes of limitations, including but not limited to, California Code of Civil Procedure
Sections 337 (breach of written contract), California Commercial Code Section 2725 (statute of
limitations in contracts of sale) that have not expired as of March 30, 2015, shall be, and hereby
are, waived and tolled tmtil December 31, 2016.
In further consideration to CSI's execution of this Tolling Agreement, the City agrees to
malce payments under the New Billing Plan attached hereto as Exhibit A .
.
Tolling Agreement-City of Cupertino/CSI Page 2 of3
The execution of this Agreement is not and shall not be deemed to constitute evidence of,
or an admission ofliability for any claim or cause of action arising out of the subject matter of
this Agreement.
This Agreement shall not be construed against either party.
The respective persons signing below are duly authorized to act on behalf of the persons
and entities obligated.
3/JJ/r (
Date
frt?V ~:
Title (
(l~J,UtA»le!f})A 'f7 ~a~
Date
Printed Name of Authorized Representative Title
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Tolling Agreement -City of Cupertino /CSI Page 3 of 3
jor_iginal Billing Plan _(~s p_er CC).nt_ract) ' I
I 1 Invoice: I Milestone Payment Notes I Date Invoiced ·Number:· Status/Terms , --. --· -I ----------------
Ready to Pilot Milestone (Soft
Launch)
Ready to Use Milestone (Final
Payment)
Year 1 Maintenance and Support
$52,065.00
$69,420.00 Upon Go"Llve
30 Days Post-Go-
$38,439.00 Live
8/4/2015 57487
[Ne~ Bill~n.& .P.!an .(to m~tch Actual Delivery Schedule) . __ . . . __ __ _. ·. I · . i · · Invoice I Invoice M1l~st~~e __________ Am~unt_ . Notes . ! Dat_e Number :
Ready to Pilot Milestone (Soft $41,652.00 80% of $52,065 1/8/2016 57522 Launch)-Back office
Ready to Pilot Milestone (Soft $10,413.00 20% of $52,065 NA Launch) -Portal
Ready to Use Milestone -Back Re-invoice with office (not including business $41,652.00 50% of $69,420 revised amount license)
Ready to Use Milestone -Bacl<
office (after business license $13,884.00 20% of $69,420 NA
implementation)
Ready to Use Milestone -Portal $13,884.00 20% of $69,420 NA
Year 1 Maintenance and Support 80% of
(BackOffice) $30,751.20 $38,439.00 NA
Calculated as Completion (20% of
Year 1 Maintenance and Support $38,439.00) " Date of Ready
TBD to use (Portal) fraction of year Milestone for remaining until Portal Jan W, 2017
Invoiced
--. .....
Status/Terms
To be paid upon signing of
agreement
Upon completion
To be paid upon signing of
agreement
Upon confirmation by the city
that CS! has correctly
implemented the final business
license requirements
Upon completion
To be paid upon signing of
Agreement-Covers
Maintenance and Support of
back office from Jan 11, 2016
thru Jan 10, 2017.
When ready, pro-rated
maintenance for Portal will be
calculated and reduced to only
include portal maintenance
from the point of go live
through Jan 10, 2017.