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12-014 Computer Software and Avolve Software, Software Licensing Maintenance and Support ServicesTOLLING 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Page 1 of3 agreement that claims be tolled effective April 30, 2015 provided prior notices of alleged default were withdrawn.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 ~ 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. 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 day of y 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: Page 1 of 14 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 Page 2 of 14 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 Or OP- i1ULU1j20andshallbeforfive (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. Page 3 of 14 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 ofthisAgreement. CITY hereby agrees to pay CONSULTANTS a sum not to exceed the amounts and in accordance with the schedule outlined in Exhibit 1, notwithstanding anycontraryindicationsthatmaybecontainedinCONSULTANTS' proposals, for software licensing, system setup, configuration, programming, data conversion, interfacing, training, and other services as described in the proposal. CITY hereby agrees to payCONSULTANTSforannualmaintenanceandsupportservicesrenderedpursuanttothis 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 thatCITY'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 andSupportasoutlinedinExhibit1. 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 cif 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. Page 4 of 14 3.5 Change Request 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 CSI 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 CSI 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 Page 5 of 14 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 CST'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 CSI'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 Page 6 of 14 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, holdharmlessanddefendCITYandallofitsofficers, 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 proceedingforwhichCITYintendstoclaimindemnification; (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, AVOLV'E 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: Page 7 o f 14 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 bytheotherparty. 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 alllocating 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; Page 8 of 14 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 Page 9 of 14 backup and recovery, data integrity checks and database export procedures, shall be completely and dearly 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 C I T Y 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 Governina 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, Page 10 of 14 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. 9.5 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 unlawfullydiscriminateagainstanyemployee, 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. Page 11 of 14 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. 9.15 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 citymanager@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 cc AVOLVEsoftware.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 rai Signature of Authorized Representative Signatur of Authorized Representative 4\1 vi) K . k,rQA PP le,i -k-r.kx( ( 5(Th 1 Printed Name of Authorized Representative Printed Name of Authorized Representative Ct TN/ I-AA We5irtat\,- - Title Title AVOLVE pproved as to form: Signature of Authorized Representative ttomey r' Printed Name of Authorized Repre—tative A Title CSI&Avolve 3 Party Software Agreement Cupertino CSI 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. CSI 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 CSI'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 1of11 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 SUMMARY 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 ePlan Review Module component of the City's total software solution. Detailed MAGNET Scope of Work PRODUCTS: MAGNET Municipal 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 (inclludes 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 ally 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 SERVICES: 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. II. 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 Week 1 Week 2 Week 3 Week 4 Week 5 Week 6 InstallProjectDox , Begin Template/ I Support/ Workflow/eForm!j CIS Optimize I End-User Complete Test FinalDelivery Project Create T AcAt anoeanoe Confgurahors ProcessTraining Plan Review Date Set Configuration SoftLaunch) Review Remote Workflow OulkStart Configuration Training on Client BeginTest Plan Complete Documents Process toCore Acceptand ! ReviewOnsite Onsite Team Testing End, See Acceptance Accept Template/ Admin Training Workgow/eFomn Onsite ', Project Create Configuration j ViewerTraining Onsite 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 0.00Config(one-time)" Software Maintenance & $38,439.00 $38,439.00 $40,360.95 $40,360.95 $42,379.00Support(annual) Avolve ProjectDox Review Maintenance & Support INCLUDED $20,880.00 $21,924.00 $21,924.00 $23,020.20 annual) Estimated Travel - not to $10,000exceedamount 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 Product Name Product Quantity Unit Price Total Price Code ProjectDox System(75,000 Population) 380-QS 75 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 380-AWP-LD 1 27,000.00 $27,000.00 Permitting System-Bi-directional 380-lNT-PS 1 10,000.00 $10,000.00integration Total Software(included in total cost of Software License, Setup, Config(one-time) $ 126,000.00notedinTableIV.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/PANiewer 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 I IS (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: Milestone Payment Date 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 TBDMilestone After Completion of Ready to Test $52,065 TBDMilestone After Completion of Ready to Pilot $52,065 TBDMilestone (Soft Launch) After Completion of Ready to Use Milestone (Final Payment) 69,42.0 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: Schedule of Ongoing Maintenance and Support Payments Year 1 (CSI only—ProjectDox fee waived) 38,439.00 Year 2(CSI and ProjectDox) 59,319.00 Year 3(CSI and ProjectDox) 62,284.95 Year 4 (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: Schedule of Travel Expens:s CSI rates _ Per Diem Rate 177.00/day Airfare 400.00/flight Rental Car 50.00/day Avolve rates (if different) Per Diem Rate not utilized Actual 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. AVOLVE 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) Liability: 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 ofthe 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 Tone Avenue Cupertino, CA 95014-3202 Addendum to THREE PARTY AGREEMENT BETWEEN THE CITY OF CUPERTINO, COMPUTER SOFTWARE, INCORPORATED, AND AVOLVE SOFTWARE CORPORATION FOR SOFTWARE, LICENSING, MAINTENANCE AND SUPPORT SERVICES This document is in reference to the agreement dated on the 1st day of February , 2012 between the following parties that are named below in this document. May it be known that the undersigned parties, for good consideration, do hereby agree to make the following changes and /or additions that are outlined below. These additions shall be made valid as if they are included in the original stated contract. Escrow. At no additional cost to the City of Cupertino, AVOLVE agrees to name the City of Cupertino as a beneficiary under a source code escrow agreement established with a professional source code escrow depository institution. In the event that(a)AVOLVE is liquidated or dissolved, or (b) AVOLVE makes a general assignment for the benefit of creditors, or (c) a general receiver or trustee in bankruptcy is appointed over AVOLVE's business or property, or(d) an order for relief is entered for AVOLVE in a case under Chapter 11 of the United States Bankruptcy Code ("Chapter 11"), or(e) AVOLVE and its successors cease to carry on business on a regular basis or(f) AVOLVE ceases to continue to license the AVOLVE's ProjectDox Product or later versions thereof or(g)AVOLVE materially defaults in its performance of Support pursuant to any support services agreement between the parties, or(h) AVOLVE publicly announces that it will cease to support the AVOLVE's ProjectDox Product, or i) AVOLVE ceases to support the AVOLVE's ProjectDox Product, then access to or a copy of AVOLVE's full proprietary source language statements of the most recent version of the AVOLVE's ProjectDox Product and selected related documentation (the"Source Code") shall be made available to the City of Cupertino pursuant to the terms and procedures of the Escrow Agreement. The license to the AVOLVE's ProjectDox Product granted by this License shall be deemed to extend to any such Source Code, which the City of Cupertino shall use for the sole purpose of support, modification, or maintenance of the AVOLVE's ProjectDox Product for the City of Cupertino's internal use in accordance with this License. All Source Code will be treated as AVOLVE Confidential Information. No other terms or conditions of the above mentioned contract shall be negated or changed as a result of this here stated addendum. C O F C PERTINO AVOLVE Mt n=POnald k x sna, e,ou.Ronald o kDa:2 . a1...om..= Uatr.2012D2.1009A{3]-0]Tp' Signature of Authorized Representative Signature of Authorized Representative DAV ti) K. KivAPP Ronald Loback Printed Name of Authorized Representative Printed Name of Authorized Representative co.ar o C ITY MAI\JAEIER Title Title CSI pl( Li " Signature of uthorized Representative j k:- it,1 SM3C-cfrein th Printed Name of Authorized Representative PreCI de ri Title roved as to form: ttomey For„ W'9 Request for Taxpayer Give form to the Rev.October 2007) Identification Number and Certification requester. Do not Department of the Treasury send to the IRS. Internal Revenue Somas Name(as shownon your Income taxreturn) 4 Computer Software, Inc. Business name,If different from above g Check appropriate box: Individual/Sole proprietor ® Corporation Partnership Exempt Limited liability company.Enter the tax classification(D=disregarded entity,C=corporation,P=partnership) payer b Other(see moons)e IAddress(number,street,and apt.or suite no.) Requester's name and address(optional) i 100 Highpolnt Drive,Suite 104 City,state,and ZIP code Chalfont,PA 18944 Ust account number(s)here(optional) Part I Taxpayer identification Number(TIN) Enter your TiN In the appropriate box.The TIN provided must match the name given on Une 1 to avoid Social security number backup withholding.For individuals,this Is your social security number(SSN).However,for a resident Ialien,sole proprietor,or disregarded entity,see the Part I Instructions on page 3.For other entities,It Is ' your employer Identification number(Ely).if you do not have a number,see How to get a TIN on page 3. or Note.If the account Is In more than one name,see the chart on page 4 for guidelines on whose EmployerIdentification number number to enter. 11 I 3744855 Part II Certification Under penalties of perjury,I certify that: 1. The number shown on this form is my correct taxpayer Identification number(or I am waiting for a number to be Issued to me),and 2. I am not subject to backup withholding because:(a)I am exempt from backup withholding,or(b)I have not been notified by the Internal Revenue Service(IRS)that I am subject to backup withholding as a result of a failure to report all Interest or dividends,or(c)the IRS has notified me that I am no longer subject to backup withholding,and 3. I am a U.S.citizen or other U.S.person(defined below). Certification Inatruotlone.You must cross out Item 2 above If you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all Interest and dividends on your tax return.For real estate transactions,Item 2 does not apply.For mortgage interest paid,acquisition or abandonment of secured property,cancellation of debt,contributions to an individual retirement arrangement(IRA),and generally,payments other than inter t and dividends,you are not required to sign the Certification,but you must provide your correct TIN.See tbe•in tractions on page 4. Sign signature of ( 7- Date 2-9-2 012Hereu.&person II. General Instruction Definition of a U.S. person. For federal tax purposes, you are Section references are to the Internal Revenue Code unless considered a U.S.person If you are: otherwise noted. An Individual who is a U.S.citizen or U.S.resident alien, A partnership,corporation,company,or association created or Purpose of Form organized In the United States or under the laws of the United A person who Is required to file an Information return with the States, IRS must obtain your correct taxpayer Identification number(TIN) • An estate(other than a foreign estate),or to report,for example,Income paid to you,real estate A domestic trust(as defined in Regulations section transactions,mortgage Interest you paid,acquisition or 301.7701-7). abandonment of secured property,cancellation of debt,or Special rules for partnerships.Partnerships that conduct a contributions you made to an IRA. trade or business in the United States are generally required to Use Form W-9 only if you are a U.S.person(Including a pay a withholding tax on any foreign partners'share of Income resident alien),to provide your correct TIN to the person from such business.Further,in certain cases where a Form W-9 requesting It(the requester)and,when applicable,to: has not been received,a partnership is required to presume that 1.Certify that the TIN you are giving Is correct(or you are a partner Is a foreign person,and pay the withholding tax, waiting for a number to be Issued), Therefore,if you are a U.S.person that Is a partner In a 2.Certify that you are not subject to backup withholding,or partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. 3.Claim exemption from backup withholding If you are a U.S. status and avoid withholding on your share of partnership exempt payee.If applicable,you are also certifying that as a Income. U.S.person,your allocable share of any partnership Income from The person who gives Form W-9 to the partnership for a U.S.trade or business Is not subject to the withholding tax on purposes of establishing Its U.S.status and avoiding withholdingforeignpartners'share of effectively connected Income. on its allocable share of net income from the partnership Note.If a requester gives you a form other than Form W-9 to conducting a trade or business In the United States is In the request your TIN,you must use the requester's form If it Is following cases: substantially similar to this Form W-9. The U.S.owner of a disregarded entity and not the entity, Cat.No.10231X Form W-9 (Rev.10-2007) Form w"9 Request for Taxpayer Give Form to theRev.January 2011) Identification Number and Certification requester.Do notDepartment Internal RevenueService Trews& send to the IRS. Name(as shown on your Income tax return) Avolve Software Corp Business name/disregarded entity name,If different from above mrnm Check appropriate box forfederal tax co classification(required): 0 Individual/sole proprietor d = p p' Q C Corporation S Corporation Partnership Trust/estate G p Limited liability company.Enter the tax classification(C=C corporation,S=S corporation,P=partnership) 0 Exempt payee ae Li (see Instructions) EAddress(number,street,and apt.or suite no.)Requester's name and address(optional) c 4835 East Cactus Road,Suite 420 City,state,and ZIP code6 0 Scottsdale,AZ,85254 Listaccount number(s)here(optional) Part I Taxpayer identification Number(TIN) Enter your TIN in the appropriate box.TheTIN provided must match the name given on the"Name"line I Social security numbertoavoidbackupwithholding.For individuals,this is your social security number(SSN).However,for a resident alien,sole proprietor,or disregarded entity,see the Part I instructions on page 3.For other entities,it is your employer identification number(E1N).If you do not have a number,see How to get aTINonpage3. Note.If the account Is in more than one name,see the chart on page 4 for guicelines on whose Employer identification number number to enter. 2 6 44101PartIICertification Under penalties of perjury,I certify that: 1. The number shown on this form is my correct taxpayer identification number(or I am waiting for a number to be issued to me),and 2. I am not subject to backup withholding because:(a)I am exempt from backup withholding,or(b)I have not been notified by the Internal RevenueService(IRS)that I am subject to backup withholding as a result of a failure to report all interest or dividends,or(c)the IRS has notified me that I amnolongersubjecttobackupwithholding,and 3. I am a U.S.citizen or other U.S.person(defined below). Certification Instructions.You must cross out item 2 above ifyou have been rotted by the IRS that you are currently subject to backup withholdingbecauseyouhavefailedtoreportallinterestanddividendsonyourtaxreturn.For real estate transactions,item 2 does not apply.For mortgageinterestpaid,acquisition or abandonment of secured property,cancellation of debt,contributions to an individual retirement arrangement(IRA),andgenerally,payments other than i erest and dividends,you are not required to sign the certification,but you must provide your correct TIN.See theinstructionsonpage4. Sign Signature of i}Here U.S.person Date X/)p/ I t General Instructions Note.If a requester gives you a form other than Form W-9 to request your TIN,you must use the requester's form if it is substantially similarSectionreferencesaretotheInternalRevenueCodeunlessotherwisetothisFormW-9.noted. Definition of a U.S.person.For federal tax purposes,you arePurposeofFormconsideredaU.S.person if you are: A person who is required to file an information return with the IRS must •An individual who is a U.S.citizen or U.S.resident alien, obtain your correct taxpayer Identification number(TIN)to report,for A partnership,corporation,company,or association created orexample,income paid to you,real estate transactions,mortgage interest organized in the United States or under the laws of the United States,you paid,acquisition or abandonment of secured property,cancellation •An estate(other than a foreign estate),orofdebt,or contributions you made to an IRA. A domestic trust(as defined In Regulations section 301.7701-7).Use Form W-9 only if you are a U.S.person(including a resident alien),to provide your correct TIN to the person requesting it(the Special rules for partnerships.Partnerships that conduct a trade or requester)and,when applicable,to:business in the United States are generally required to pay a withholdingtaxonanyforeignpartners'share of income from such business.1.Certify that the TIN you are giving is correct(or you are waiting for a Further,in certain cases where a Form W-9 has not been received,anumbertobeissued), partnership is required to presume that a partner is a foreign person,2.Certify that you are not subject to backup withholding,or and pay the withholding tax.Therefore,if you are a U.S.person that is a 3.Claim exemption from backup withholding if you are a U.S.exempt partner In a partnership conducting a trade or business in the United payee.If applicable,you are also certifying that as a U.S.person,your States,provide Form W-9 to the partnership to establish your U.S. allocable share of any partnership income from a U.S.trade or business s+atus and avoid withholding on your share of partnership income. is not subject to the withholding tax on foreign partners'share of effectively connected income. Cat.No.10221X Form W-9(Rev.1-2011)