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DECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
Municipal Software Corp.
CONTRACT AGREEMENT
Between
CITY OF SAN MATEO
and
MUNICIPAL SOFTWARE CORPORTION
December 29, 2003
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DUPLICATE ` r GINNN
City of San Mateo Municipal Software Corp,
DECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
TABLE OF CONTENTS
PREAMBLE 1
SECTION I: DEFINITIONS 2
A. DEFINITION OF TERMS 2
SECTION II: SCOPE AND TERM OF CONTRACT 3
A. SCOPE OF CONTRACT 3
B. TERM OF CONTRACT 4
SECTION III: MUNICIPAL'S RESPONSIBILITY 4
SECTION IV: CITY'S RESPONSIBILITY 5
SECTION V: SUPPORT SERVICES 6
A. SCOPE OF SUPPORT SERVICES 6
B. ON -GOING SUPPORT FOR LICENSED APPLICATION SOFTWARE 8
C. SYSTEM SUPPORT SERVICES 8
D. DATA CONVERSION 8
E. TRAINING 8
F. IMPLEMENTATION SUPPORT SERVICES 9
G. OTHER THIRD -PARTY SOFTWARE 9
SECTION VI: MODIFICATION OF SCOPE 10
SECTION VII: INSTALLATION, DELIVERY, AND TESTING 11
A. INSTALLATION AND DELIVERY 11
B. ACCEPTANCE TESTING 11
C. RELIABILITY TESTING 11
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City of San Mateo
DECEMBER 29, 2003
APPLICATION SOFTWARE CONTRACT AGREEMENT
Municipal Software Corp.
SECTION VIII: ACCEPTANCE PROCESS 12
A. ACCEPTANCE PROCEDURE 12
B. PAYMENT SCHEDULE 14
SECTION IX: APPLICABLE TAXES 15
SECTION X: WARRANTY OF PERFORMANCE 15
A. COMPLIANCE WITH STATE AND FEDERAL AUDIT REQUIREMENTS 15
B. WARRANTY OF PERFORMANCE 15
C. LIQUIDATED DAMAGES 15
D. CORRECTION OF ERRORS UNDER THE WARRANTY 16
E. ORAL REPRESENTATIONS 17
F. PROGRESS REPORTS 17
G. TERMINATION 17
SESSION XI: LIABILITY, INDEMNIFICATION AND DEFAULT 17
A. LIABILITY, INDEMNIFICATION AND DEFAULT 17
B. BANKRUPTCY/SUPPORT CESSATION 18
C. INSURANCE 18
D. LIMITATION OF LIABILITY 19
SESSION XII: GENERAL PROVISIONS 19
A. ASSIGNMENT 19
B. GOVERNING LAW 19
C. COSTS AND ATTORNEYS FEES 19
D. MEDIATION 19
E. ARBITRATION 20
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City of San Mateo
bEPEMBER 29, 2003
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APPLICATION SOFTWARE CONTRACT AGREEMENT
Municipal Software Corp.
F. ENTIRE AGREEMENTS)/AMENDMENTS 20
G. CONSTRUCTION 20
H. SERVICE OF NOTICE 20
SIGNATURES: 21
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City of San Mateo
DECEMBER 29, 2003
APPLICATION SOFTWARE CONTRACT AGREEMENT
Municipal Software Corp.
PREAMBLE
This contract entered into this 5th day of January 2004 on behalf of the City of San Mateo, a
California Municipal corporation duly organized under the laws of the State of California,
located at:
330 W. 20th Avenue
San Mateo, CA 94403
hereinafter referred to as `CITY' and Municipal Software Corporation, a British Columbia,
Corporation, authorized to sell in the State of California, and having its principal office located
at:
4464 Markham Street, Suite 1101
Victoria, British Columbia
V8Z 7X8
hereinafter referred to as `VENDOR;'
RECITALS:
WHEREAS, the CITY has established the need for computer application software and services
as set forth in the Request of Proposal (RFP); and
WHEREAS, in response to said Request for Proposal, VENDOR submitted an initial Proposal
dated September 22, 2003 (attached hereto as Exhibit A and made a part hereof) to provide such
services and subsequently submitted an amended pricing proposal dated attached
hereto as Exhibit B and made a part hereto (the "Final Pricing Proposal"); and
WHEREAS, after careful evaluation the CITY has determined that, due to its background and
expertise, VENDOR is qualified to provide the aforesaid application software and services, and
the CITY is desirous of entering into a contract with VENDOR to provide same; and
WHEREAS, VENDOR desires to provide said application software and services; and
WHEREAS, the application software and services contemplated by this Contract constitute an
inextricable integration of sophisticated technical skills, which are uniquely related to the
physical components of the system.
NOW, THEREFORE, IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES
HERETO AS FOLLOWS:
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City of San Mateo Municipal Software Corp.
DECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
SECTION I: DEFINITIONS
A. DEFINITION OF TERMS
It is the CITY's understanding that, a word in a contract means what the contract says it
means, within the limits of common usage.
For purposes of this Agreement, the following are defined terms:
Acceptance means the acceptance of the Application Software and Implementation
Services in accordance with the procedures and processes of this Contract by both
VENDOR and the CITY.
Application Software is the software and Third Party Software owned or marketed by
VENDOR as set out in the Final Proposal.
Primary Vendor means VENDOR who will provide the Application Software listed in the
Exhibit A of this contract.
Change Control Document means the formal printed paper prepared by the VENDOR
outlining specific changes, additions or deletions to the Implementation Services to be
completed.
Documentation means the formal printed paper or electronic technical and user manuals
supplied by VENDOR or its licensors for the Application Software.
Enhancements means updates, upgrades and other enhancements to the Software which
are generally released to the public by VENDOR after the execution date of this Contract
Agreement.
Implement means that the Application Software has been installed and all agreed upon
modifications, conversions and training have been completed and the Application Software
is made operational, all in accordance with the terms of this Contract Agreement.
Installation Activities means any and all software configuration activities, software
loading, software testing, etc., whether performed at the CITY's site or at VENDOR's site.
Product means the Application Software and related documentation, including manuals,
and any other information confidential to VENDOR or its licensors.
Scope Document means the formal printed paper prepared by VENDOR, which outlines
findings and recommendations on how to proceed through the project.
System Configuration means the hardware, server, workstations, peripherals, cabling,
networks, and other communications devices related to the physical installation.
Software means the compiled object code version of the latest version of VENDOR's
application software known as "CityView" and any enhancements and related
documentation, excluding maintenance diagnostics.
Third Party Software means any software (and related documentation) not developed by
VENDOR but purchased by the CITY from other provider under this project.
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City of San Mateo
DECEMBER 29, 2003
APPLICATION SOFTWARE CONTRACT AGREEMENT
Municipal Software Corp.
Training means dedicated professional education about all Application Software listed in
this Contract. Training may consist of both structured classroom training and individual
operator training and assistance.
SECTION II: SCOPE AND TERM OF CONTRACT
A. SCOPE OF CONTRACT
The CITY hereby retains VENDOR to implement the Application Software (as shown in Exhibit
A attached hereto and made a part hereof) in a project comprised of the following tasks (as further
described in Section 4 and 5 of the Final Proposal, Exhibit C attached hereto and made a part
hereof):
1. Infrastructure Review
2. Subject Matter Expert Training
3. Business Process Review and Data Collection
4. Functional Scope Documents Produced (including but not limited to Applications
Integration with Eden Financial Systems, Core Cashiering Systems, RVI Imaging
Systems, IVR Voice Response Systems, GIS System, and Tablet PCIHandHeld
Devices)
5. Application Prototype Development
6. User Review and Change Control Document Produced
7. Refinements
8. Data Conversion
9. Installation Services and Testing
10. Training (Final Change Control Document may be produced)
11. Final Acceptance
Once VENDOR provides the CITY with the required Detailed Functional Scope Documents, work
may not proceed to the next task until the Scope Documents has been agreed to in writing by the
CITY, and formal authorization must then be provided in writing to VENDOR by the CITY in
order to proceed to each of the following phases of the project, all as outlined in Section VIII, A.
Acceptance Procedure below. As each of the Scope Document and Change Control Document(s)
is completed and agreed to by the CITY, it becomes part of this contract.
The CITY has agreed upon the following implementation deliverables:
1. Detailed Functional Scope Documents (will be attached as Exhibit to this contract once
completed)
2. Change Control Document(s) (will be attached as Exhibit to this contract once
completed)
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City of San Mateo Municipal Software Corp.
DECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
3. A maximum of 220 CityView forms/reports (to be developed and refined by
VENDOR)
4. Data Conversions
5. 3`d Party Application Integrations
b. End User Training and Testing
7. Final System Acceptance and Sign -off
8, Go Live
VENDOR shall perform all of the aforementioned Installation Services (will be attached as Exhibit
to this contract once completed) in accordance with the terms of the Final Proposal, except as may
otherwise be agreed to in writing by the CITY.
B. TERM OF CONTRACT
The term of this contract shall commence as of the date of the execution of this Contract and shall
end upon completion by VENDOR of the Installation Services (as evidence by a Letter of
Completion signed by both parties), unless this Contract is earlier terminated by the CITY pursuant
to the terms of this Contract. During the term, VENDOR will provide the Installation Services and
any other contractual services agreed to in writing by the parties. Any amendments or
modifications shall be executed in writing and signed by duly authorized representatives of both
parties. VENDOR shall complete the Installation Services in accordance with the delivery
schedule detailed in Section 4 and 5 of the Final Proposal and Project Schedule (will be attached as
Exhibit to this contract once completed), as may be modified by the Scope Document and Change
Control Document(s). The Application Software is being licensed to the CITY, and ongoing
maintenance and support of the Application Software will be provided by VENDOR, in
accordance with the terms of the Support Services detailed in Section V, Support Services below.
In the event of any conflicts between the terms contained in this Contract and the RFP or bid
documents, the terms of this Contract shall control unless other documents are incorporated by
reference.
SECTION III: VENDOR'S RESPONSIBILITY
VENDOR represents that it will furnish to the CITY a complete, fully operational Application
Software Systems as detailed in Scope Document and Change Control Document, and that the
Application Software shall be free from programming errors materially detrimental to the
operation of the system in accordance with the Documentation. This representation of VENDOR
shall survive for a period of one (1) year after the termination of this contract based on the
consideration provided by the City.
VENDOR agrees to be the primary vendor for all Application Software purchased from
VENDOR. VENDOR will acquire, deliver, install and certify (in the letter of Completion) the
proper operation of the Application Software on a turnkey basis. This includes:
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City of San Mateo
DECEMBER 29, 2003
APPLICATION SOFTWARE CONTRACT AGREEMENT
Municipal Software Corp.
1. Acting as single point of contact for Application Software installation, third party
software integration, Training and Software support issues, for all activities detailed in
the Installation Services.
2. Provide Application Software system support and maintenance on the Software
provided by VENDOR as per the VENDOR and the CITY shall protect the work sites
and work from damage and shall make good all entry to same occurring before the
completion of the work to be performed under this contract.
3. All on -site work shall be scheduled in advance by VENDOR and the CITY and shall be
approved by the CITY's Project Manager.
4. VENDOR and the CITY shall comply with .all applicable statutes, laws, ordinances,
rules and regulations relating to the performance of their respective work hereunder. If
any portion of this contract is at variance therewith, VENDOR and the CITY shall
promptly notify the other party upon discovering same and the responsible party shall
immediately bring the matter up to specification.
5. VENDOR shall secure at its own cost and expense, and be responsible for any and all
payment of all income taxes, social security, state disability insurance compensation,
unemployment compensation and other payroll deductions for VENDOR and its
officers, agents and employees and all business licensed, in connection with the project
and/or the services to be performed hereunder.
6. VENDOR agrees that title to all materials prepared hereunder, including, without
limitation, all original drawings, designs, reports, both field and office notices,
calculations, computer code, language, data or programs, maps, memoranda, letters and
other documents, shall belong to CITY, and VENDOR shall turn these materials over
to CITY upon expiration or termination of this Contract Agreement or upon project
completion, whichever shall occur first. These materials may be used by CITY as it
sees fit.
7. VENDOR shall be responsible for full compliance with the immigration and
naturalization laws of the United States and shall, in particular, comply with the
provision of the United States Code regarding employment verification.
8. Out-of-pocket expenses incurred by VENDOR for travel related, supplies, and other
expenses shall be paid by VENDOR.
SECTION IV: CITY'S RESPONSIBILITY
The CITY shall fully cooperate with and assist VENDOR in the performance of its responsibilities
under this contract. As part of the CITY's responsibilities, it will designate a qualified staff
member who will be the CITY's Project Manager, .and who will have authority to act for the CITY
and provide VENDOR with necessary information and data concerning CITY's operations and
activities.
The CITY will provide appropriate resources to participate in all business analysis phases, process
mapping, business rule definition and creation of acceptance criteria. During the business process
review and data gathering phase, the CITY may, subject to its written approval, be assigned
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,City of San Mateo
QECEMBER 29, 2003
APPLICATION SOFTWARE CONTRACT AGREEMENT
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additional tasks which may become additional responsibility of both the CITY and VENDOR to
complete.
Failure on the part of the CITY to complete assigned tasks within mutually agreed schedule will
constitute a delay beyond the control of VENDOR and subsequent schedules may be affected and
adjusted accordingly. `
Significant delay on the part of the CITY may cause VENDOR to incur costs not foreseen at the
creation of this Contract; provided, however, that the CITY shall not be liable for any additional
costs incurred by VENDOR due to such delay unless the CITY has failed to diligently commence
curing such delay within fifteen (15) days after receiving written notice from VENDOR detailing
the nature of the delay.
SECTION V: SUPPORT SERVICES
A. SCOPE OF SUPPORT SERVICES
VENDOR shall maintain CITY's Licensed Application Software so that they operate in
conformity with materials as set forth in the VENDOR'S RFP Response, Scope Document
and Change Control Document including all future updated or enhanced versions.
VENDOR shall use best efforts to correct reproducible material errors or malfunctions after
notification by CITY, supply technical bulletins, updated user guides and other Licensed
Materials as they are released by VENDOR, and supply CITY with Updates to the
Licensed Application Software within 30 days of their announced release.
VENDOR shall render support and services during Normal Working Hours (8:OOAM to
5:OOPM PST/PDT, Monday through Friday, excluding federal holidays and the day
following Thanksgiving) for the following:
1. Telephone Support - Calls for assistance related to operation of the Licensed
Application Software, reporting of a potential error condition or abnormal termination
of a program, or request for minor assistance related to the Licensed Application
Software;
2. Support Enhancements - Selected Enhancements, the nature and type of which shall be
determined solely by VENDOR. Such provision shall not preclude VENDOR from
providing other Enhancements of the Licensed Application Software to the CITY free
of charge.
3. Software Warranty — Since CITY is obtaining Software Support from VENDOR, and
such Software Support is in effect without interruption from inception of this Contract
Agreement, VENDOR will warrant the Licensed Application Software to be free of
errors for the life of this Agreement.
4. Error Correction - Any substantive, replicable problem, which causes interruptions to
the CITY's business operations, and is caused by incorrect operation of the computer
code of the Licensed Application Software or an incorrect statement or diagram in
Licensed Documentation that produces incorrect results or causes incorrect actions to
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City, of San Mateo Municipal Software Corp.
❑ECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
occur that CITY identifies and documents to VENDOR will be corrected by VENDOR
with either a software modification or addition that, when made or added to the
Licensed Application Software, establishes material conformity of the Licensed
Application Software to the Licensed Documentation, or a procedure or routine that,
when observed in the regular operation of the Licensed Application Software,
eliminates the practical adverse effect on Licensee of such non -conformity. The terms
and conditions for reporting and resolution for such errors are as follows:
• For any reproducible program error or malfunction of the Licensed Application
Software designated by CITY as "Critical" and reported by CITY during normal
support hours, VENDOR will begin a technical review of the problem and respond
by phone to CITY within two (2) working hours after receipt of such notification.
VENDOR shall work diligently to correct the error or malfunction and provide a
daily status briefing to the CITY as to the disposition of the problem, which will be
accessible by phone or access to VENDOR'S web site.
• For other reproducible program errors or malfunction of the Licensed Application
Software reported by CITY during normal support hours, VENDOR will use its
best efforts to assign a technician to the problem and provide status reports on
progress to resolution via web -based system. Problems of normal priority will be
automatically escalated to a higher priority if no action is taken within four (4)
business hours. Problems of lower priority (as designated by CITY) will not be
automatically escalated.
• If problems reported by CITY as Critical are determined to be caused by abuse,
misuse, or unauthorized modifications, and the proper use had been covered in a
VENDOR provided training session, VENDOR may charge CITY for the
documented technician hours of work on the problem at the then current technician
rates. Failure of VENDOR to initiate a review of a Critical problem and provide
daily status briefings will result in a penalty. It is understood and agreed that
continued functioning of the system is essential to the C1TY's business operations
and that it will be impossible to determine the actual damage which the CITY will
sustain in the event of, and by reason of, delayed technical support. It is agreed,
therefore, VENDOR will pay to CITY the sum of ten percent of the annual
maintenance fee for each calendar day delay in critical technical support response
or each calendar week delay in routine technical support response as liquidated
damages. This payment will be in the form of a check payable to the CITY or credit
against current or future invoices, at CITY's option.
• It is agreed and understood that minor variations in the above parameters may occur
from time to time and that such variance does not necessarily entitle the other party
to the remedy stated. However, if such variance is significant (i.e. more than eight
working hour response) or there is a consistent pattern of three or more minor
abuses, the offended party will be entitled to the remedies stated herein.
5. Maintenance Modifications — When any errors in the Licensed Application Software
are identified by CITY or other licensed user of VENDOR'S Licensed Application
Software, VENDOR will make modifications or revisions to the Licensed Application
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City of San Mateo Municipal Software Corp.
DECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
Software or Licensed Documentation that correct these errors and promptly distribute
thoroughly tested patches, updates, or new versions of the Licensed Application
Software along with detailed instructions as to how to apply the modifications to the
installed version of the Licensed Application Software.
B. ON -GOING SUPPORT FOR LICENSED APPLICATION SOFTWARE
VENDOR shall provide continuing on -going support services necessary to repair
Application Software systematic program bugs or identified logic and operational problems
and to keep the licensed Application Software compatible with then -current supported
versions of all (third party operating systems, database engines, and utilities) software
implemented in this project.
C. SYSTEM SUPPORT SERVICES
In addition to training services, VENDOR will provide system support services which shall
include, but not be limited to, cooperating with CITY staff in configuring CITY acquired
hardware and System Software as defined in Vendor's RFP response to support the
VENDOR's Licensed Application Software, setting up tables and parameters for CITY's
unique installation, preparing backup scripts to back up the databases for the applications,
and training CITY's technical staff how to perform these tasks as well as diagnostic
troubleshooting techniques for the VENDOR Licensed Application Software.
D. DATA CONVERSION
VENDOR shall be responsible for conversion of CITY's current data in machine-readable
form, if any, to the format required by the Licensed Application Software. CITY shall
provide all requested data for conversion using formats specified by VENDOR. In the
event that the CITY is unable to provide requested data in the format specified, VENDOR
may request a Change Control Document to assist CITY in transforming the requested data
to the prescribed format.
E. TRAINING
VENDOR shall provide all training as specified in the Contract directly to the various user -
groups for the Application Software at CITY's facilities. Additional training at CITY
request will be available at VENDOR'S then current rates (for similar agencies and similar
services). Trainers shall be experienced and knowledgeable in the specific VENDOR
Application Software they are teaching and familiar with the procedures in similar
VENDOR environments to the CITY. Furthermore, VENDOR shall provide a
comprehensive course outline for each training session at least two weeks prior to the start
of the session showing the course outline, who should attend, expected outcomes. In
addition, CITY may request modifications or enhancements to the specific course outlines
up to one week prior to the start of a session pursuant to the related Business Process tasks
associated with the Application Software. VENDOR will make reasonable effort to
accommodate such changes. VENDOR will provide necessary training materials and have
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City of San Mateo
DECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
Municipal Software Corp.
session outlines and agendas for all training sessions, provided to CITY at least five days in
advance of the scheduled sessions.
CITY may request a replacement trainer if, in the opinion of CITY there is evidence that
the trainer initially scheduled has been ineffective in conducting specific training sessions.
If VENDOR has been notified that a particular training session was ineffective because of
the qualifications or techniques of the trainer and uses the same trainer in a subsequent
session which also turns out to be ineffective, CITY will be entitled to withhold payment
for the subsequent session until a makeup session with a qualified trainer can be completed.
The training dates may be modified only by mutual agreement after the schedule is
developed of the CITY and VENDOR. In the event that the CITY cancels scheduled
training dates (excluding events beyond CITY's reasonable control), with less than two
weeks notice to VENDOR, VENDOR shall be compensated for all documented out-of-
pocket expenses incurred for said training.
F. IMPLEMENTATION SUPPORT SERVICES
The scope and sequence of the final implementation schedule will be determined by mutual
agreement at the project initiation kickoff meeting to be scheduled as soon as practical
following the execution of this agreement. As the final implementation schedule is
completed and agreed to by the CITY and VENDOR, it becomes part of this contract.
G. OTHER THIRD -PARTY SOFTWARE
In addition to VENDOR developed and supplied application software, certain specific
software have been proposed that are supplied by third -party vendors acting as sub-
contractors to VENDOR. It is understood that the CITY may enter into an agreement for
the purchase of this software independently, but that the interface and integration of the
third party vendor software with VENDOR application software is essential to this
agreement.
H. ACCESS TO PROGRAM SOURCE CODE
Vendor acknowledges that it has entered into an agreement (hereinafter called the "Escrow
Agreement") with Jones Emery Hargreaves Swan, Barristers and Solicitors, having an
office at Suite 1212 —1175 Douglas Street in the City of Victoria, in the Province of British
Columbia. A copy of the escrow Agreement is attached hereto as Schedule D. Said
Escrow Agreement provides that a licensee may gain access to program source code for
purpose of maintaining and supporting their program license all as provided in the Escrow
Agreement.
VENDOR agrees that for so long as the Software License and Support Agreement is in
effect it will deposit and periodically update, at VENDOR's sole cost, a copy of the current
version of the program source code for all programs for which the licensee holds license as
described in Schedule A attached hereto in Escrow.
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DECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
Vendor further agrees that for so long as this Software License and Support Agreement is
in effect it will take no steps or actions which would have the effect of modifying or
eliminating the Escrow Agreement without first having received written permission from
the Licensee to do so.
SECTION VI: MODIFICATION OF SCOPE
Services specified in Change Control Document may be agreed to between the CITY and
VENDOR. Such services may include special studies; database conversion; data conversion;
implementation planning, and procedures; installation evaluation; technical and user training; and
specification preparation. CITY shall request such changes in writing on a VENDOR -developed,
CITY -approved form and shall specify:
1. Nature of work to be performed;
2. Date on which assignment is to begin;
3. Length of assignment, including due date and Cost; and
4. Individual who will coordinate for CITY and VENDOR.
VENDOR shall use its best efforts to provide a quotation for each service request and will provide
a written quote within ten (10) working days following receipt by the VENDOR of the CITY's
request. Acceptance by CITY of VENDOR quotation for each service request is subject to
compliance with CITY's then existing purchasing ordinances and policies. Upon acceptance by
CITY and VENDOR, such request shall be called "additional work assignment".
Each additional work assignment shall be governed by the terms and conditions of the Contract
Agreement, the terms and conditions of the additional work assignment, and by such
supplementary written amendments of the Contract Agreement or the work assignment as may be,
from time to time, executed between the parties.
In the event of a conflict between the terms and conditions of the Contract Agreement and the
terms and conditions of any additional work assignment, the terms and conditions of the work
assignment shall govern.
No oral request for modification of services shall be binding on either party.
Further, the VENDOR agrees that its responsibilities under the Contract Agreement will not be
assigned or licensed by VENDOR without the prior written consent of the CITY.
VENDOR is willing to provide modifications of service at the same rates outlined in the Final
Scope Document and Change Control Document included as Exhibits in this Contract Agreement
for a period of two years from the date after the project go live. After two years has lapsed, rates
for service will be based upon VENDOR then current rates (for similar agencies and similar
services).
VENDOR shall have the right to decline to perform work associated with a service request if in
VENDOR'S sole opinion, VENDOR believes that the product resulting from said service request
will not result in an appropriate addition to the System or if VENDOR does not have sufficient
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DECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
resources to properly complete the service request. If VENDOR elects not to perform work
contained in a service request, VENDOR will notify CITY within ten (10) working days.
SECTION VII: INSTALLATION, DELIVERY, AND TESTING
A. INSTALLATION AND DELIVERY
Delivery of the Licensed Application Software and test data shall be complete when
Application Software are loaded onto the CITY's hardware environment and is fully
operational for testing purposes and appropriately labeled media and documentation is
presented to the CITY as a complete system backup of the application software and data.
The documentation shall include, but is not limited to, instructions as to how to completely
re -install the contents of the media onto the hardware proposed. The initial delivery will
include a fully functional test database, not necessarily with CITY converted data, which
the CITY can use as a test -environment for experimentation and technical review.
B. ACCEPTANCE TESTING
Once the hardware and Application/Utility Software has been delivered, installed, and
configured, and VENDOR has converted any relevant CITY data and trained the
designated CITY resources to operate the basic components of the proposed Licensed
Application Software, the Testing Period can begin. During the Testing Period, CITY will
test all delivered software by executing any or all of the features contained in the feature
responses in Scope Document and Change Control Document.
During this time, VENDOR will provide access (at no additional charge) to a qualified
technician either on -site or via telephone and dial -in modem to assist CITY in the testing of
the applications. Failure by the CITY to report any failures within 30 business days of the
start of Testing shall mean tacit acceptance and will be treated as if the CITY has accepted
the Application Software in its entirety.
If any part of the Application Software and integrated subsystems should fail (i.e. not
perform according to the function and feature of the Scope Document and Change Control
Document), CITY may designate that portion as a Project for delivery at a later date or
apply other remedies as specified in Section V, Acceptance Process.
C. RELIABE ITY TESTING
Once the Licensed Application Software and Projects have passed the Acceptance Tests,
the implementation into productive use will begin. This includes training of all users and
final conversion of all relevant data. Once VENDOR has designated a system is available
for productive use (in writing), a 30 business day Reliability Test will begin. During this
period all of the data, workstations, software, and peripherals must be available to all
designated users at least 99.9 % of the time. This will be determined by summing across
all workstations the ratios calculated by dividing downtime by expected available time for
each workstation and limiting the downtime to no more than 0.001 (0.1%). For example, a
standard desktop workstation rnight be available for 10% hours during the day, and the
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servers that CityView runs on would probably be required for 24 hours per day. If you had
50 workstations and 2 servers, the calculation over the 30-day Reliability Test would be:
(50 * 10 + 24 * 2) * .001 * 30 = 16.44 hours. Problems caused by the CITY's network or
computer hardware shall not be included.
Functional performance of the overall system will be measured, in a mutually agreed to
benchmark, such that during this period any user will experience the same or better
performance as demonstrated in VENDOR presentations.
SECTION VIII: ACCEPTANCE PROCESS
Acceptance of the development and implementation of the Application Software for the CITY will
be obtained throughout the scope of the project. Various stages of the process will be outlined in a
Scope Document developed by VENDOR in co-operation with the CITY.
A. ACCEPTANCE PROCEDURE:
1. VENDOR will provide the CITY with a Scope Document to be developed after initial
on -site review with the CITY. Such Scope Document will outline the Implementation
Services to be provided to complete further phases of the project. The Scope
Document must have the signature of the CITY's Project Manager and VENDOR prior
to any further work being commenced thereunder.
2. Upon acceptance of the Scope Document, VENDOR will complete the required tasks
and conduct an on -site user review of the prototyped application software. Resulting
from the on -site user review, VENDOR will provide the CITY with a Change Control
Document. Such Change Control Document will describe any and all changes to the
Implementation Services and whether such changes are Additional work assignment (as
described in Section 4 of the Final Proposal). Additional Work Assignment is to be
costed by VENDOR and approved in writing by the CITY's Project Manager prior to
being started.
3. Upon acceptance of the Change Control Document, VENDOR will complete the
Implementation Services listed in the Change Control Document.
4. VENDOR will provide training to the CITY in accordance with the Scope Document.
5. VENDOR will provide the Application Software to the CITY (along with the Web
application, Data Conversion, Third Party Software integrations, and all technical and
user documentation relating to all Application Software and the Third Party software
integration.
6. Delivery of the Licensed Application Software and test data shall be complete when
Application Software (along with the Web application, Third Party Software
integrations) are loaded onto the CITY's hardware environment and is fully operational
for testing purposes and appropriately labeled media and documentation is presented to
the CITY as a complete system backup of the application software and data. The
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City. of San Mateo
DECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
Municipal Software Corp.
documentation shall include, but is not limited to, instructions as to how to completely
re -install the contents of the media onto the hardware proposed. The initial delivery
will include a fully functional test database, not necessarily with CITY converted data,
which the CITY can use as a test -environment for experimentation and technical
review.
7. If any part of the Application Software and third party software integration test should
fail (i.e. not perform according to the Scope and Change Control Document(s), CITY
may require the following:
• VENDOR shall be giving the opportunity to extend the Acceptance testing period
for up to thirty (30) business days during which to bring such irregularities into
compliance. If after such time the performance irregularity is not remedied to the
CITY's sole satisfaction, the CITY may terminate the Contract Agreement with a
refund of any License Fees paid to that point, or
• At the CITY's sole option, relegate the non -compliant component as a Project to be
completed at a mutually agreeable date. As a bond to ensure timely completion of a
Project so -designated, VENDOR shall provide a cashier's check for the non-
compliant, incomplete, unacceptable, or non -delivered items in the amount equal to
or greater than the value of the non -delivered items. This value of this bond shall
be determined as a reasonable pro rata portion of relative value of the overall
functionality of the module without the non -compliant feature(s). The maximum
bond value shall not exceed $75,000. Specifications for the delivery and
acceptance for each such item will be the same as the acceptance provisions stated
above and shall include appropriate due dates. CITY may then close the initial
Acceptance Period for items delivered and functioning in accordance with their
specifications, pay for accepted items only, and open new testing periods for non -
delivered items backed by guarantees of performance in the form of cashier's
checks. The CITY shall then retain the cashier's checks, until the items are
delivered and accepted and have passed a 30-day Reliability Test. As each item is
accepted, the cashier's check will be returned and payment for the item processed.
If the agreed upon delivery dates are not met, or the item fails the acceptance
provisions, the CITY may cash the cashier's check and find an alternate solution.
This procedure shall continue until all undelivered items are delivered and accepted
or all cashiers' checks returned or retained. Final Reliability Testing will not be
complete until all such Projects are delivered and accepted by the CITY.
• The CITY shall have the right to terminate the Contract Agreement, upon written
notice effective immediately, at any time during the Acceptance period.
• In the event the VENDOR is rejected during the Acceptance period, the CITY will
agree to pay only those delivered and accepted phase of the project cost as specified
in the payment schedule.
8. VENDOR will submit a signed letter of Completion to the CITY detailing and
certifying that VENDOR has delivered and configured the Application Software
proposed with converted CITY data and that the Application Software performs at a
functional level consistent with what was documented in the Scope Document, Change
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City of San Mateo Municipal Software Corp.
• D,ECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
Control Document and completion of each phase of the project comprising the
Implementation Services. The letter must have the signature of the CITY's Project
Manager and VENDOR and will provide for acceptance by the CITY of completion of
each phase.
9. VENDOR shall not be authorized to perform any Implementation Services relating to
any subsequent phase of the project, and shall not be entitled to any payment therefore,
until such time as the CITY confirms and accepts VENDOR's completion of the then -
current phase of the project.
B. PAYMENT SCHEDULE
Payment will be authorized and processed by the CITY according to the Payment Schedule
which is attached hereto and incorporated into this Contract Agreement.
1. Reflective of a need to meet a staged requirement that the CITY has identified for the
licensing of their software products, and in consideration of the discounts and other
terms and conditions contained within this agreement, VENDOR agrees to waive its
standard "full initial payment" condition with the following licensing arrangement:
• On or by January 315`, 2004, the CITY will issue a purchase order for 10 licenses of
CityView at a price of $68,700 (32% of the license total);
• On or by February 27th, 2004, the CITY will purchase an additional 15 licenses of
CityView along with the related Web and third -party components at a price of
$86,793 (41% of the license total);
• On or by May 3151, 2004, the City will purchase the remaining CityView licensing
less a holdback of 10% at a price of $35,975 (17% of the license total); and,
• The 10% holdback on licensing costs ($21,275) will be paid upon successful
completion of the project, not to exceed 12 consecutive months of productive use.
2. Annual Software Maintenance fee will be invoiced annually and due on the anniversary
date commencing one (1) year from the anniversary date.
3. Subject Matter Expert training fee will be invoiced upon successful completion of the
training.
4. Infrastructure Review and Recommendations fee will be invoiced upon CITY receipts
of the detailed Infrastructure Review Document.
5. Data Collection and Project Scope Document fee will be invoiced upon CITY receipts
and approval of the detailed Scope Document.
6. FormlReport Prototype fee and User Review fee will be pay for as follows:
• 20 % upon CITY receipts and approval of the Scope Document;
• 20 % upon CITY receipts of the Prototype Application Software;
• 10 % upon CITY receipts and approval of Change Control Document;
• 10 % upon successful deployment of Web applications;
• 10 % upon successful completion of all third party software integration;
• 10 % upon successful completion of the data conversion;
• 10 % upon successful completion of the Reliability Test by the CITY;
• 10 % upon successful go live.
7. Upon completion of the designated tasks and presentation to the CITY of an itemized
invoice showing the specific tasks completed and the resources involved in each.
•
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City of San Mateo Municipal Software Corp.
DECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
S. Installation services and training will be invoiced upon successful completion of the
designated tasks and presentation to the CITY of an itemized invoice showing the
specific tasks completed and the resources involved in each.
SECTION IX: APPLICABLE TAXES
Taxes based upon net income or any other tax normally paid by VENDOR shall be the sole
responsibility of the VENDOR. The onus is on the CITY to self assess any sales taxes on
the licenses and services identified in this contract and to remit on their own behalf to the
appropriate taxing jurisdiction. Taxes based upon net income or any other tax normally
paid by VENDOR shall be the sole responsibility of the VENDOR. VENDOR shall obtain
and maintain during the duration of this Contract Agreement, a San Mateo CITY Business
License as required by the San Mateo MUNICIPAL Code.
SECTION X: WARRANTY OF PERFORMANCE
A. COMPLIANCE WITH STATE AND FEDERAL AUDIT REQUIREMENTS
As long as CITY maintains continuous support for the Application Software included
herein, VENDOR shall ensure that all application software will comply with any and all
then current State and Federal audit requirements, such that CITY will not be liable for
program flaws which may violate any such requirements.
B. WARRANTY OF PERFORMANCE
As long as CITY maintains continuous support for the Application Software included
herein, VENDOR shall warrant for a period equal to the term of the Contract Agreement,
commencing with the CITY's acceptance of the Licensed Application Software, that the
Licensed Application Software will perform in accordance with its specifications as set
forth in the Licensed Materials, if properly used in the operating environment specified in
Scope Document and Change Control document. VENDOR warrants that all components
are interoperable and the configuration is complete and suitable for the purpose specified
by the CITY in the Scope and Change Control Documents. VENDOR"S warranty of
performance shall be based on the specifications, terms and conditions contained in the
Agreement as a whole, including Pricing Proposal, Scope Document, Change Control
Document and VENDOR's RFP response.
C. LIQUIDATED DAMAGES
Time is of the essence in the Agreement. It is the understanding of the parties hereto that
because damages from delay are difficult, if not impossible, to predict in Application
Software installations, VENDOR agrees to pay the CITY five hundred dollars ($500.00)
per working day as reasonable charges for each working day that the Systems are not
operational sixty (60) calendar days after the specified dates in the Project Schedule (to be
mutually agreed), in the event that the delays are primarily caused by the actions or
inactions of the VENDOR. In the event that the delays are primarily caused by the actions
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City of San Mateo
DECEMBER 29, 2003
APPLICATION SOFTWARE CONTRACT AGREEMENT
Municipal Software Corp.
or inactions of the CITY, the CITY agrees to pay the VENDOR according to the same
terms and conditions. This amount shall apply to all reliability/go live due dates
established in the final Agreement unless waived by the CITY at its sole option in the event
that the VENDOR is the primary cause of delay, or waived by the VENDOR in the event
that the CITY is the primary cause of delay. The Project Schedule (to be mutually agreed)
may be modified only by mutual agreement of the CITY and VENDOR. In no event shall
the total damages exceed $25,000.
CITY and VENDOR are not responsible for failure to fulfill their obligation under the
Agreement due to causes beyond their reasonable control without the fault or negligence of
such party. In the event that failure to meet the established deadline(s) is outside the
control of both parties, the deadline(s) will be extended to mutually agreeable date(s) as
soon as possible. Such dates shall be attached, as amendment(s), to the final Contract
Agreement. CITY and VENDOR shall mutually and reasonably agree on which causes are
out of the VENDOR's control.
In the event that the VENDOR is the primary cause of delay, liquidated damages may be
deducted from unpaid Fees as identified. If delays cause the Liquidated Damages period to
begin, the daily amount shall accrue and accumulate for the period of time required for
VENDOR to deliver and install remedies to the non-functioning Application Systems. At
this point, the Acceptance procedures defined herein will resume. In lieu of liquidated
damages, at the CTTY's sole option, VENDOR may provide Project Bonds or cashier's
checks for each of the non -compliant, incomplete, unacceptable, or non -delivered items,
with appropriate specifications and due dates. CITY may then close the initial testing and
acceptance period for items delivered and functioning in accordance with their
specifications, pay for accepted items only, and open new testing periods for non -delivered
items backed by Project Bonds. CITY may then retain the Project Bond if the agreed upon
delivery dates are not met. Should VENDOR meet the delivery dates, CITY will test the
delivered items for another thirty (30) calendar days and accept these items if they are
compliant with their specifications and return the Project Bond for those items and pay the
agreed upon price. This procedure can continue until all Project bonds are satisfied.
In the event that the CITY is the primary cause of delay, the daily amount shall accrue and
accumulate for the period of time required for CITY to provide the necessary remedy. At
this point, an invoice will be issued to the CITY for the period of delay, and VENDOR and
CITY will agree to a mutually acceptable revised timetable.
D. CORRECTION OF ERRORS UNDER THE WARRANTY
At no charge to the CITY, VENDOR will promptly correct technical errors or in the
Licensed Application Software according to the terms of this Contract Agreement so that
the Licensed Application Software will perform as described in the Scope Document,
Change Control Document and VENDOR's RFP response proposal.
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1
City of San Mateo Municipal Software Corp.
DECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
E. ORAL REPRESENTATIONS
No CITY or VENDOR employee has the authority to bind either party to any oral
representation or warranty.
F. PROGRESS REPORTS
VENDOR will design a progress report form that itemizes the activities accomplished to
date, the activities planned and any problems which have occurred or are anticipated from
the point of contract signing until Final Acceptance. The forms' design and adequacy will
be subject to CITY approval. Progress reports will be prepared bi-weekly prior to
Acceptance and weekly thereafter by VENDOR and either mailed or e-mailed to the
CITY's Project Manager. Progress reports will be discontinued when the CITY, in its sole
judgment, deems the project to be complete and in conformance with the Scope Document
and VENDOR's Proposal and any subsequently agreed upon necessary modifications, and
deems VENDOR's commitments to be completed.
G. TERMINATION
VENDOR shall have the right to terminate this Contract Agreement if CITY fails to pay
charges due within forty-five (45) days of notice and demand. VENDOR shall thereafter
reinstate services under this Contract Agreement only upon payment of all past due charges
plus any additional late fees (as defined as 1% per month on uncontested invoices). City
shall have the right to terminate should VENDOR's product fail to perform as represented
and if said failure(s) are not corrected within reasonable period as determined by CITY.
In the event VENDOR ceases to provide maintenance and support for the Licensed
Application Software (including any VENDOR -supplied updates) for reasons other than
CITY's failure to pay maintenance fees, a current copy of the Source Code as defined in
Section V, clause H with complete system documentation will be provided to CITY in
order to ensure continued maintenance.
SESSION XI: LIABILITY, INDEMNIFICATION AND DEFAULT
A. LIABILITY, INDEMNIFICATION AND DEFAULT
CITY shall in no event be liable to VENDOR or other person claiming damages as a result
of the CITY's use of the Licensed Application Software and Materials in conformity of this
Contract Agreement, whether direct or indirect, special or general, consequential, or
incidental or arising from loss of profits; provided that this provision shall not apply to any
claim, demand, loss or action alleging that any modifications made by Licensee to the
Licensed Application Software and Materials infringe any third -party rights in the United
States respecting copyright, trade secret, or patent.
VENDOR shall indemnify, defend, and hold harmless from any demands, claims or suits
by a third party for loss, damages, expenses, liability, legal costs, and attorney's fees arising
out of allegations that the CITY's use of the Licensed Application Software and Materials
•
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City of San Mateo
DECEMBER 29, 2003
APPLICATION SOFTWARE CONTRACT AGREEMENT
Municipal Software Corp.
in conformity with this Agreement infringe any third -party rights in the United States
respecting copyright, trade secret, or patent.
After the successful completion of the acceptance period, any material failure by CITY or
VENDOR to comply with any term or condition under this Contract Agreement shall
entitle the other party to give the party in default written notice requiring it to make good
such default. Failure to make good such notified default within thirty (30) calendar days of
such notice shall constitute breach of contract by the defaulting party and grounds for
termination of this Agreement.
B. BANKRUPTCY/SUPPORT CESSATION
Tlie term "default" as used in this Contract Agreement shall include the institution of
proceedings by or against VENDOR under federal or state bankruptcy laws and assignment
or receivership for the benefit of creditors. CITY rights to a complete and documented
copy of all related Source Code corresponding to the then current released version of the
System/Utility Software (for internal use and not for resale) shall precede any bankruptcy
proceedings and stand before any trustee's claims for the benefit of creditors. In the event
that VENDOR ceases to provide support for the System/Utility Software for reasons other
than CITY's failure to pay maintenance fees, the CITY shall have the same rights as if
VENDOR had declared bankruptcy.
C. INSURANCE
VENDOR, at its own cost and expense, shall purchase and maintain during the life of this
Contract Agreement a comprehensive liability policy that shall protect VENDOR from
claims for property damage and injuries to persons, including accidental death, and name
the CITY as an additional insured under said policy in not less than the following amounts:
• General Liability including personal injury and property damage in the amount of
$1,000,000.
• Automobile Liability, all automobiles, in the amount of $1,000,000 for combined
single limit.
In addition, CITY shall be named as additional insured on such policies and shall be
notified by the insurance carrier of any change in or cancellation of coverage. VENDOR
further agrees during the life of this Contract Agreement to maintain, at VENDOR expense,
all necessary insurance for its employees, including, but not limited to, Workman's
Compensation, disability, and unemployment insurance.
VENDOR shall furnish a certificate of insurance countersigned by an authorized agent of
the insurance carrier on a form of the insurance carrier setting forth the general provisions
of the insurance coverage. The countersigned certificate shall name the CITY as an
additional insured under the policy. The certificate shall contain a statement of obligation
on the part of the insurance carrier to notify CITY of any material change, cancellation or
termination of the coverage at least thirty (30) calendar days in advance of the effective
date of any such material change. The certificate shall be furnished by VENDOR to CITY
prior to execution of this Contract Agreement by CITY.
Page 18
City of San Mateo
DECEMBER 29, 2003
Municipal Software Corp.
APPLICATION SOFTWARE CONTRACT AGREEMENT
D. LIMITATION OF LIABILITY
VENDOR's Iiability for direct damages to CITY or others resulting from the performance
of services under this Contract Agreement shall not exceed the amount of the total of
Licensed Application Software and Materials charges paid to VENDOR under this
Contract Agreement and all related agreements, and the total fees paid for training or other
related payments paid to VENDOR.
SESSION XII: GENERAL PROVISIONS
A. ASSIGNMENT
This Contract Agreement may be assigned by VENDOR to another person or organization
that acquires all or substantially all of the assets of VENDOR as long as all contractual
provisions and responsibilities are assumed by the acquiring person or organization and the
C1TY's approval is obtained which will not be unreasonably withheld. Any other assign-
ment by VENDOR shall be made only with the prior written consent of CITY which
consent shall not be unreasonably withheld provided that in the event of such assignment
the proposed assignee has agreed to be fully responsible for VENDOR obligations under
this Contract Agreement.
B. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the
state of California and any and all disputes or legal actions shall be venued in San Mateo
County or the nearest jurisdiction to the City of San Mateo.
C. COSTS AND ATTORNEYS FEES
Attorney fees in an amount not exceeding $85 per hour per attorney, and in total amount
not exceeding $5,000, shall be recoverable as costs (by the filing of a cost bill) by the
prevailing party in any action or actions to enforce the provisions of this agreement. The
above $5,000 limit is the total of attorneys fees recoverable whether in the trial court,
appellate court, alternative dispute resolution processes, including but not limited to
conciliation, mediation, and arbitration, or otherwise, and regardless of the number of
attorneys, trials, appeals, or actions. It is the intent of this agreement that neither party shall
have to pay the other more than $5,000 for attorney's fees arising out of an action, or
actions to enforce the provisions of this agreement.
D. MEDIATION
Should any dispute arise out of this Contract Agreement, any party may request that it be
submitted to mediation. The parties shall meet in mediation within 30 days of a request.
The mediator shall be agreed to by the mediating parties; in the absence of an agreement,
the parties shall each submit one name from mediators listed by either the American
Arbitration Association, the California State Board of Mediation and Conciliation, or other
agreed -upon service. The mediator shall be selected by a '.'blindfolded" process.
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City of San Mateo Municipal Software Corp.
. DECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
The cost of mediation shall be borne equally by the parties. Neither party shall be deemed
the prevailing party. No party shall be permitted to file a legal action without first meeting
in mediation and making a good faith attempt to reach a mediated settlement. The
mediation process, once commenced by a meeting with the mediator, shall last until
agreement is reached by the parties but not more than 60 days, unless the maximum tirne is
extended by the parties.
E. ARBITRATION
After mediation above, and upon agreement of the parties, any dispute or claim arising out
of or relating to this agreement may be settled by arbitration in accordance with the
Construction Industry Rules of the American Arbitration Association, and judgment upon
the award rendered by the arbitrators may be entered in any court having jurisdiction
thereof. The costs of arbitration shall be borne equally by the parties.
F. ENTIRE AGREEMENT(S)/AMENDMENTS
This Contract Agreement(s) constitutes the entire understanding of the parties with respect
to the matter contained herein. There are no promises, covenants or undertakings other
than those expressly set forth herein.
This Agreement(s) may not be amended except by writing signed by authorized
representatives of CITY and VENDOR and approved by CITY's CITY Council.
If any of the provisions of the Contract Agreement(s) are declared to be invalid, such
provisions shall be severed from the Contract Agreement(s) and the other provisions hereof
shall remain in full force and effect.
G. CONSTRUCTION
A term or condition of the Agreement can be waived only by written consent of both
parties.
Title and paragraph headings contained in the Contract Agreement are for convenient
reference and do not constitute part of the Contract Agreement and shall not affect the
interpretation of the Contract Agreement.
This Contract Agreement shall be binding upon and inure to the benefit of the parties to the
Agreement and their respective successors and assigns.
H. SERVICE OF NOTICE
Any notice required or permitted to be sent under the Contract Agreement shall be
delivered by hand or mailed by registered mail, return receipt requested, to the addresses of
the parties first set forth below.
VENDOR: Municipal Software Corporation
Robert Bennett, President and CEO
4464 Markham Street, Suite 1101
Page 20
City of San Mateo Municipal Software Corp.
DEbEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT
Victoria, BC
VSZ 7X8
CITY: City of San Mateo
Arne Croce, CITY Manager
330 W. 20th Avenue
San Mateo, CA 94403
SIGNATURES:
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day, month and year first above written.
CITY OF S MAT 0 Municipal Software Corporation
City M: nager
City Attorney
By:
Name:
Title:
By:
Name:
Title:
f 1:1 CS,AE61 /4 p C ti
Page 21
EXHIBIT "B"
PAYMENT SCHEDULE
In return for the work shown in Exhibit "A" to be provided by MUNICIPAL
SOFTWARE ("MUNICIPAL") pursuant to the terms of this Agreement, City of San
Mateo ("CITY") shall pay as follows:
LICENSING:
50 concurrent CityView Licenses
20 MapObjects Licenses
CityView Server
Mini -Browser Module
Web Services Module
CityView Mapping Server
On or by January 315`, 2004, the CITY will issue a purchase order for 10 licenses of
CityView at a price of $68,700 (32% of the license total)
On or by February 27th, 2004, the CITY will purchase an additional 15 licenses of
CityView along with the related Web and third -party components at a price of $86,793
(41% of the license total)
On or by May 315`, 2004, the City will purchase the remaining CityView licensing less a
holdback of 10% at a price of $35,975 (17% of the license total); and
The 10% holdback on licensing costs ($21,275) will be paid upon successful completion of
the project, not to exceed 12 consecutive months of productive use.
ANNUAL SOFTWARE MAINTENANCE:
$30,100 Annual Software Maintenance fee will be invoiced annually and due on the
anniversary date commencing one (1) year from the anniversary date which is established
as the date on which the contract is executed.
DES IGN/IMPLEMENTATION:
The City understands that costs for data conversion and the number of forms required are
estimates and may vary.
• Pre -Training (Subject Matter Expert Training in City View Essentials 2 days —14
students): $5,850 Subject Matter Expert training fee will be invoiced upon
successful completion of the training.
• Infrastructure Review and Recommendations — 4 days
$17,433 Infrastructure Review and Recommendations fee will be invoiced upon
CITY receipts of the detailed Infrastructure Review Document.
• Data Collection and Project Scope (data collection — 10 days and scope document
prepared)
• $37,089 - Data Collection and Project Scope Document fee will be invoiced upon
CITY receipts and approval of the detailed Scope Document.
• Implementation/Customization (Form/Report Prototype and Refinements - 220),
User Review (10 days)
$297,414 Form/Report Prototype/Refinements fee and User Review fee will be
paid for as follows:
20 % upon CITY receipts and approval of the Scope Document;
20 % upon CITY receipts of the Prototype Application Software;
10 % upon CITY receipts and approval of Change Control Document;
10 % upon successful deployment of Web applications;
10 % upon successful completion of all third party software integration;
10 % upon successful completion of the data conversion;
10 % upon successful completion of the Reliability Test by the CITY;
10 % upon successful go Iive.
Upon completion of the designated tasks and presentation to the CITY of an
itemized invoice showing the specific tasks completed and the resources involved
in each.
• Installation Services — (on site services — 9 days) $15,093 for installation services will
be invoiced upon successful completion of the designated tasks and presentation to
the CITY of an itemized invoice showing the specific tasks completed and the
resources involved in each
• Training - $34,950 for training will be invoiced upon successful completion of the
designated tasks and presentation to the CITY of an itemized invoice showing the
specific tasks completed and the resources involved in each
Essentials - 10 days 50 students
Application - 5 days 10 students per day
Sys Admin - 1 day 4 students
Designer - 1 day 14 students
Mapping Admin - 1 day 8 students
Reporter - 1 day 14 students
Web System Admin - 2 days 4 students
NOTE: Should the budgeted amounts for any of the services Iisted above not be
exceeded the City reserves the right to allocate the unused portion to other
services provided during the stages of implementation.
ALL OTHER CONSULTING SERVICES
Any billings for extra work or additional services authorized in advance and in
writing by CITY shall be invoiced separately to CITY. Should the budgeted amounts for
any step be reached, MUNICIPAL will stop work on that step until new funds are
approved. Such invoice shall contain all of the information required above, and in
addition shall list the hours expended and hourly rate charged for such time. Such
invoices shall be approved by CITY if the work performed is in accordance with the extra
work or additional services requested, and if CITY is satisfied that the statement of hours
worked and costs incurred is accurate. Such approval shall not be unreasonably withheld.
Any dispute between the parties concerning payment of such an invoice shall be treated
as separate and apart from the ongoing performance of the remainder of this Agreement.
MUNICIPAL shall submit to CITY an invoice for each progress payment due.
Such invoice shall:
1) Reference this Agreement;
2) Describe the services performed;
3) Show the total amount of the payment due;
4) Include a certification by a principal member of MUNICIPAL's
firm that the work has been performed in accordance with the
provisions of this Agreement; and
Upon submission of any such invoice, if CITY is satisfied that MUNICIPAL is
making satisfactory progress toward completion of tasks in accordance with this
Agreement, CITY shall approve the invoice, in which event payment shall be made
within thirty (30) days of receipt of the invoice by CITY. Such approval shall not be
unreasonably withheld. If CITY does not approve an invoice, CITY shall notify
MUNICIPAL in writing of the reasons for non -approval and the schedule of performance
set forth in Exhibit "A" may at the option of CITY be suspended until the parties agree
that past performance by MUNICIPAL is in, or has been brought into compliance, or
until this Agreement has expired or is terminated as provided herein.
EXHIBIT "D"
MUNICIPAL SOFTWARE ESCROW AGREEMENT
To: Jones Emery Hargreaves Swan
Barristers and Solicitors
Suite 1212 - 1175 Douglas Street
Victoria, B.C.
V8W 2E1
To; Each Declarant (as defined hereunder)
Municipal Software Corporation acknowledges that each licensee under the terms of a valid,
current Municipal Software Corporation Software License and Support Agreement which is not in
default (the "Declarant") is a beneficiary under this Escrow Agreement and entitled to enforce legal
rights and remedies hereunder.
1. Upon receipt by Jones Emery Hargreaves Swan of a Statutory Declaration from the
Declarant or an authorized officer of the Declarant containing the following provisions:
(a) The Declarant is a party to a Municipal Software Corporation Software License
and Support Agreement and the Declarant is not in default under the terms of
the agreement;
(b)
The Declarant has requested in writing performance of the Software License
and Support Agreement by Municipal Software Corporation;
(c) Municipal Software Corporation has not responded in writing to the Declarant
within 30 days from the date of the written request of the Declarant, with a
response which did not reasonably include an identification of the problem,
the timetable for resolution, and the proposed scope of the work required to
resolve the problem;
(d)
Notice of the intention of the Declarant to exercise the provisions of this
Escrow Agreement has been served upon Municipal Software Corporation not
less than 14 days prior to the date of execution of the Statutory Declaration;
(e) The Declarant undertakes to copy the program source code, the subject of the
Escrow Agreement, and to return the original to Jones Emery Hargreaves Swan
and to use the program source code only for the purposes of supporting and
maintaining its Municipal Software Corporation software program for its own
internal corporate purposes;
Jones Emery Hargreaves Swan shall release to the Declarant the program source code as
deposited by Municipal Software Corporation in a sealed envelope with Jones Emery
Hargreaves Swan pursuant to this Escrow Agreement;
2. Municipal Software Corporation shall, during the term of this agreement, submit revised
copies of the source code in a sealed envelope together with a list of current approved
declarants entitled to receive the same subject to the conditions in (1) above. Such revisions
shall be accompanied by a certificate from Municipal Software Corporation stating that:
-2-
(a) The contents of the escrowed materials are complete and would be
understandable and useable by a reasonably knowledgeable computer
programmer.
(b) The contents accurately reflect the most current version of the licensed
programs by the Licensee.
(c) The contents incorporate all changes made to the licensed programs or the
source material from the previous time the escrowed materials were delivered
to Jones Emery Hargreaves Swan under this agreement.
(d) The contents contain a separate CD or diskette that contains the CityView
License Key Generator Program with instructions for use, and,
(e) The contents contain no passwords, or other device that would prevent or
prohibit the use of the escrowed materials at any time.
3. Municipal Software Corporation will ensure that revised copies of the source code will be
placed with Ions Emery Hargreaves Swan within thirty (30) days after the public release of
a licensed program or a licensed program update.
4. Jones Emery Hargreaves Swan shall, upon receiving such a certificate from Municipal
Software Corporation, notify each of the declarants mentioned in (2) above, by mail of such
receipt.
5. It is understood that the duties of Jones Emery Hargreaves Swan, as escrow holder are
limited to those expressly set forth herein and, in addition to the carrying out of escrow
instructions, are limited to taking reasonable care of the subject matter of this agreement.
Jones Emery Hargreaves Swan make no representations or guarantee as to the escrow
materials and shall not be obligated to inquire into the accuracy or completeness of the
escrow materials or any declaration made hereunder. In the event that proceedings in a
court of law arise in relation to the subject matter of this Escrow Agreement, Jones Emery
Hargreaves Swan shall not be obligated to defend or enter an appearance and shall only be
obligated to participate after the Declarant and Municipal Software Corporation have placed
sufficient security for Jones Emery Hargreaves Swan's costs of such proceedings.
6. This agreement shall terminate ten (10) years from the date hereof, unless renewed by
mutual written agreement. Jones Emery Hargreaves Swan may resign as escrow agent
hereunder upon another party accepting the duties and obligations of escrow agent or upon
providing the Declarant and Municipal Software Corporation with sixty (60) days advance
written notice.
DATED at the City of Victoria, in the Province of British Columbia, this day
of , 2001.
MUNICIPAL SOFTWARE CORPORATION
Robert E. Bennett, President
The terms of this agreement are
hereby accepted by the firm of Jones
Emery Hargreaves Swan
Per:
Patrick C. Trelawny
EXHIBIT "E"
SOFTWARE LICENSE AND SUPPORT AGREEMENT
Municipal
SOFT .tiRs
1. LICENSE
Municipal Software Corporation (hereinafter called 'MUNICIPAL') hereby grants to the person or
corporation who purchased this License (hereinafter called the 'Licensee') a non -transferable, non-
exclusive license to:
(a) Use the CitvView application software (hereinafter called the 'PROGRAM'),
containing the system modules described in Schedule "A" attached to this
document. The PROGRAM is in "use" on a computer when it is loaded into
temporary memory (i.e., RAM) of that computer;
(b) Copy the PROGRAM into any machine readable or printed form for back-up,
archival or modification purposes in support of the Licensee's use of the PROGRAM_
on the computer system PROVIDED THAT:
(i) the Licensee shall maintain a record of the number and location of copies
made; and
(ii) the copies, together with the original, shall remain the property of
MUNICIPAL;
(c) Modify the PROGRAM or merge it with another program for the Licensee's use on
any single machine PROVIDED THAT:
(I) any portion of the PROGRAM modified or merged into another program shall
continue to be subject to the terms and conditions of the Agreement; and
(ii) upon termination of this Agreement, the PROGRAM or portion thereof shall
be completely removed from the modified or merged program and destroyed
or returned to MUNICIPAL at the request of MUNICIPAL.
2. SUPPORT
In consideration of payment of the annual support and maintenance fee, MUNICIPAL will provide:
(a) Priority response on support requests regarding licensed programs (and PROGRAM
updates),
(b) Application support will be provided at no additional charge whenever MUNICIPAL
delivers a set of custom built CityView applications to the Licensee. This support
service is not to be confused with the standard Technical Support Services that are
provided by MUNICIPAL. This support is not available once the Licensee makes any
alterations, additions or deletions to the application and is to be limited to:
(i)
Within the first two weeks of delivery, all support questions are directed to the
developer(s) involved with the application development. These may include
questions of functionality, operability, explanation of how business processes
have been implemented, and any questions of warranty. These questions
MNS rt±rrriir14Fan nv aimar narry in ar.nnrriarlr•c wItrf them tormc r_nntaincrl
d at any time between 8:30AM and 4:30PM Pacific Time,
ugh Friday;
two weeks of delivery, but still within a month of delivery, it is
at wherever possible questions are queued and consolidated so
intment with the application developer(s) may be booked. This
the best possible use of time for everyone involved;
month of delivery, all questions should be asked through the
;Ica/ support process. If the support issue requires assistance
Iication developer(s), the technical support analyst will draw
sources as is required;
for licenses described in Schedule "A" between the hours of
/f Eastern Time, Monday through Friday;
,f operational issues related to the PROGRAM and PROGRAM
'at the Licensee has obtained, at its cost, the necessary
and instruction to allow MUNICIPAL to provide such assistance.
for licensed programs at no extra charge except for magnetic
osts, these updates to include minor changes, enhancements,
problem resolutions (excludes all Xpress Licensees);
►ices set out above, the Licensee agrees to pay for each Licensed User
aintenance charge which shall be submitted by MUNICIPAL no later
date of expiration as specified in Schedule "A" (excludes all Xpress
A SOURCE CODE (excludes all Xpress Licensees)
that it has entered into an agreement (hereinafter called the "Escrow
nery Hargreaves Swan, Barristers and Solicitors, having an office at
Street in the City of Victoria, in the Province of British Columbia. A
lent is attached hereto as Schedule "B". Said Escrow Agreement
ay gain access to program source code for purposes of maintaining
!RAM licenses all as provided in the Escrow Agreement.
r so long as this Software License and Support Agreement is in effect it
update, at MUNICIPAL's sole cost, a copy of the current version of the
r all programs for which the Licensee holds licenses as described in
)to in Escrow.
that for so long as this Software License and Support Agreement is in
r actions which would have the effect of modifying or eliminating the
first having received written permission from the Licensee to so do.
upon installation and/or payment of the license fee and shall remain in
Schedule "A" attached hereto, and upon expiry of the initial term shall
identical term upon payment of the annual support and maintenance
less terminated by either party in accordance with the terms contained
terminate this Agreeement upon the giving of not less than sixty (60)
iCIPAL prior to each anniversary date of this Agreement. The Licensee
regiment provided that MUNICIPAL is in breach of this Agreement and
'nded to the Licensee within thirty (30) days from the date of the written
hich response did not reasonably include an identification of the
resolution, and the proposed scope of the work required to resolve the
terminate this Agreement if the Licensee is in breach of this Agreement
,ch within thirty (30) days after written notice from MUNICIPAL, including
ty (60) days of invoice date. In case of termination, the Licensee shall at
. either:
RAM together with all copies, modifications and merged portions, or
AM together with all copies, modifications, and merged portions
isee shall certify in writing that the original and all copies, modifications
y form have either been returned to MUNICIPAL or have been
' and 8 shall continue on and survive notwithstanding termination of this
ETARY RIGHTS
rein contained permits the limited use of the PROGRAM by the
►roperty in the PROGRAM, its name, logo and computer stored data
th MUNICIPAL.
owledges that the PROGRAM is the property of MUNICIPAL,
:rade secret, and agrees to exercise due care and diligence in
.M and MUNICIPAL's proprietary interest.
ledges that any negligence or deliberate violation of this Agreement on
are to protect MUNICIPAL's proprietary interest in the PROGRAM shall
rage MUNICIPAL.
ice with the terms of this Agreement, MUNICIPAL shall be entitled,
Licensee and subject to MUNICIPAL's compliance with Licensee's
res, to enter upon the Licensee's premises during normal business
isee to produce such information, records and documents as may be
liance.
update the PROGRAM or its product from time to time but shall have
:h revision or update to the Licensee, unless the Licensee has paid in
aintenance fee.
that:
fished, and all subsequent PROGRAM updates, shall function as
documentation accompanying the PROGRAM; and,
r cassette or magnetic tape on which the PROGRAM (including
is provided, shall be free from defects in materials and
normal use for a period of ninety (90) days from the date of
see as evidenced by the Licensee's delivery receipt.
'ided above., MUNICIPAL expressly disclaims all warranties in the
: not limited to the implied warranties of quality or fitness for a particular
sumes sole responsibility for the selection of the PROGRAM to achieve
!sults, and for the installation, use and results obtained from the
EDIES
`y and the Licensee's exclusive remedy shall be:
any CD or diskette or cassette not meeting MUNICIPAL's
nd which is returned to MUNICIPAL with a copy of the Licensee's
able to deliver a replacement CD or diskette or cassette which is
aterials or workmanship, the Licensee may terminate this
ning the PROGRAM to MUNICIPAL for a refund in full of
as long as such refund is requested within three (3) months of
of this Agreement.
'AL be liable to the Licensee for any damages, including any lost profits,
sntal or consequential damages arising out of the use or inability to use
INICIPAL has been advised of the possibility of such damages, or for
ty.
:he breach of any term, provision or condition of this Agreement by the
trable damage to MUNICIPAL in which case an award of damages may
IUNICIPAL. Therefore, the Licensee agrees that in addition to all the
IICIPAL in the event of any breach of this Agreement by the Licensee,
right to obtain timely injunctive relief to protect its proprietary right.
ion of this Agreement and each clause and part thereof shall be
Province of British Columbia without reference to principles of conflict
�LI the termsand conditions agreed on by the parties hereto with regard
3rein, and no understandings or agreements, verbal or otherwise, exist
t as herein expressly set out.
fhts and liabilities hereunder shall not be assigned by the Licensee
obtained from MUNICIPAL.
£SIGNS
to the benefit of and be binding upon the respective successors and
irties.
1ENT
layment of the licenses or software maintenance constitutes
this Agreement.