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HomeMy WebLinkAboutSan Mateo agreement' City of San Mateo DECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT Municipal Software Corp. CONTRACT AGREEMENT Between CITY OF SAN MATEO and MUNICIPAL SOFTWARE CORPORTION December 29, 2003 Page i 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 Page ii 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 Page iii City of San Mateo bEPEMBER 29, 2003 ) APPLICATION SOFTWARE CONTRACT AGREEMENT Municipal Software Corp. F. ENTIRE AGREEMENTS)/AMENDMENTS 20 G. CONSTRUCTION 20 H. SERVICE OF NOTICE 20 SIGNATURES: 21 • Page iv 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: Page 1 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. Page 2 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) • Page 3 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: Page 4 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 Page 5 ,City of San Mateo QECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT Municipal Software Corp. 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 • Page 6 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 Page 7 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 Page 8 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. Page 9 City of San Mateo Municipal Software Corp. 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 • Page 10 City of San Mateo Municipal Software Corp. 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 Page 11 ,City of San Mateo Municipal Software Corp. pECEMBER 29, 2003 APPLICATION SOFTWARE CONTRACT AGREEMENT 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 Page 12 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 Page 13 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. • Page 14 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 Page 15 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. Page 16 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 • Page 17 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. Page 19 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.